State v. Reynolds

Opinion

TABLE OF CONTENTS

I. THE FACTS................. 18

II. GUILT PHASE ISSUES........... 24

A. Sufficiency of the Information .... 24

B. The Defendant’s Challenge to the Panel’s Interpretation of § 53a-54b (1) 28

C. Motion to Suppress Statements ... 35

1. The Search.............. 43

2. The Arrest.............. 46

3. Miranda Violation......... 50

4. The Defendant’s Claim of Involuntariness................ 53

D. The Court’s Limitation on the Defendant’s Right of Cross-Examination . 57

III. PENALTY PHASE ISSUES......... 61

A. Issues Concerning the Aggravating Factor Enumerated in § 53a-46a (h) (D.................... 61

1. Facial Constitutionality of § 53a-46a (h) (1).............. 61

2. The State’s Burden of Satisfying the “Same Felony” Element of § 53a-46a (h)(1)........... 67

3. The Right to a Jury Determination on the Existence of the Aggravating Factor Enumerated in § 53a-46a (h) (1).............. 83

*13 4. The Sufficiency of Evidence of the Defendant’s Attempt to Commit the Crime of Sale of a Narcotic Substance During the Course of Committing the Capital Felony..... 87

B. Issues Concerning the Aggravating Factor Enumerated in § 53a-46a (h) (4).................... 89

1. Evidentiary Insufficiency...... 89

2. Denial of the Defendant’s Prepenalty Phase Motion to Dismiss the Aggravating Factor Enumerated in § 53a-46a (h) (4)........... 98

C. The Court’s Instructions on Reasonable Doubt............... 103

D. Effect of the Jury’s Invalid Finding as to the Existence of One Aggravating Factor on the Jury’s Finding as to the Existence of Another Aggravating Factor.................. 107

E. Three Judge Panel........... 110

F. Excusal of Juror for Cause...... 115

G. The Role of the Jury as Sentencer. . 120

H. The Right to a Bifurcated Penalty Phase Hearing............. 129

I. Issues Regarding the Mitigating Factors and Evidence........... 131

1. Evidence Establishing the Existence of One or More Mitigating Factors................ 131

2. Proof of Mitigating Value..... 136

3. Special Verdict Form—Mitigation 137

4. The Cumulative Effect of the Mitigating Evidence as an Independent Mitigating Factor.......... 138

5. Catchall Mitigating Factors .... 141

*14 6. The Defendant’s Request to Present as an Independent Mitigating Factor the Inappropriateness of the Death Penalty Under the Circumstances of the Case...... 143

7. Mercy as a Mitigating Factor . . . 146

J. Vagueness Challenge to § 53a-46a (d) 148

K. State’s Use of Evidence Purportedly Admissible During the Guilt Phase Only................... 152

L. The Admissibility of Anthony Crawford’s Testimony............ 153

M. Alleged Juror Misconduct....... 156

N. Preliminary Determination of the Evidentiary Sufficiency of the Aggravating Factors............... 157

IV. PROSECUTORIAL MISCONDUCT..... 160

A. References to Officer Williams’ Family .................... 166

B. Inviting the Jury to Ignore the Law 176

C. Expression of Personal Opinions and Beliefs During Closing Arguments. . 199

D. Conclusion............... 214

V. MISCELLANEOUS ISSUES......... 217

A. Change of Venue............ 217

B. The Trial Court’s Denial of the Defendant’s Postverdict Motions for the Imposition of a Life Sentence and an Evidentiary Hearing in Connection Therewith........ 226

C. Mandatory Sentence Review..... 234

VL THE CONSTITUTIONALITY OF CONNECTICUT’S DEATH PENALTY STATUTES ..................... 235

VII. PROPORTIONALITY REVIEW....... 237

ADDENDUM.................... 252B

Officer Walter Williams of the Waterbury police department was on patrol in the vicinity of Orange and Ward Streets in Waterbury in the early morning hours of December 18, 1992, when he was fatally shot in the head at point blank range by the defendant, Richard Reynolds, whom Williams had stopped for questioning. The defendant fled but was apprehended and arrested shortly thereafter and charged with one count of capital felony in violation of General Statutes (Rev. to 1991) § 53a-54b (l)1 and one count of murder in violation of General Statutes § 53a-54a (a).2 A three judge panel (panel) consisting of West, Fasano and Keller, Js., found the defendant guilty of both counts and, thereafter, the trial court, Fasano, J. ,3 conducted the penalty phase hearing before *16 a jury pursuant to General Statutes (Rev. to 1991) § 53a-46a.4 At the conclusion of the penalty phase hearing, the jury returned a special verdict finding the existence *17 of two aggravating factors and no mitigating factors. In accordance with the panel’s finding of guilt and the juiy’s special verdict, the trial court rendered judgment *18 of guilty and sentenced the defendant to death.5 On appeal to this court, the defendant raises a total of fifty-two challenges to the judgment of conviction and to the sentence of death. We affirm both the judgment of conviction and the death sentence.

I

THE FACTS

The panel reasonably could have found the following facts. In late 1992, the defendant, also known as “Kilt,” resided with his girlfriend, Karen Smith, and her four children, in Smith’s apartment on the second floor of 47 Wood Street in Waterbury. The defendant, a convicted drug dealer, was a member of a cocaine trafficking organization that used Smith’s apartment to process and package crack cocaine (cocaine) for sale to street level dealers. Other members of the organization included its leader, Kneshon Carr, and Anthony Crawford, Robert Bryant and Terry Brown.

*19 The members of Carr’s organization were together at Smith’s apartment early in the morning of December 18,1992, preparing cocaine for sale. The defendant and Crawford were each given approximately 175 bags of cocaine, worth about $3500, for sale to an individual located at an apartment on Locust Street. The two men left Smith’s residence and headed for Locust Street shortly before 4 a.m. Before leaving Smith’s apartment, however, Crawford loaded a .38 caliber semiautomatic pistol and handed it to the defendant, who put it in his right coat pocket. The defendant was carrying cocaine in his left coat pocket.

When the defendant and Crawford reached Orange Street on their way to Locust Street, they crossed paths with Margaret Powell, who previously had purchased cocaine from both the defendant and Crawford. Crawford offered to sell Powell some cocaine, but Powell declined because she had no money.

As the defendant and Crawford were approaching the intersection of Orange and Ward Streets, Officer Williams, who was on patrol alone in a marked police cruiser, turned onto Ward Street from Orange Street and parked near the intersection of those two streets. Williams was in uniform and wearing a bulletproof vest. Upon observing the defendant and Crawford, Williams exited his vehicle and ordered the two men to “[g]et up against” the cruiser. Crawford ignored Williams’ command and kept walking. The defendant complied with Williams’ order. Specifically, the defendant stopped and placed his left hand on the hood of the cruiser. The defendant, however, kept his right hand in his right coat pocket.

Williams, who was standing behind and slightly to the left of the defendant, repeatedly instructed the defendant to remove his right hand from his coat pocket. The defendant, however, refused to do so. Wil *20 liams then took hold of the defendant’s right arm in an effort to remove the defendant’s hand from his coat pocket. Williams could not wrest the defendant’s hand from the pocket, however, and, as Williams released his grip on the defendant, the defendant took his left hand off the hood of the cruiser and bumped his left elbow against Williams’ chest, which was protected by a bulletproof vest. The defendant then withdrew the pistol that he was carrying from his right coat pocket, spun around, and shot Williams behind the left ear from a distance of between one and two feet. Williams fell to the ground, and Crawford and the defendant fled the scene, returning to Smith’s apartment. As the defendant and Crawford ran, the defendant turned and fibred between three and six additional gunshots in Williams’ direction.6 Upon arriving at Smith’s apartment, the defendant told Bryant that he realized that he had to shoot Williams in the head when he bumped Williams’ chest and learned that Williams was wearing a bulletproof vest.7

Jesse Strohecker was driving north on Orange Street at about 4 a.m. the same day when he noticed a police cruiser parked at the intersection of Orange and Ward Streets.8 As Strohecker drove through the intersection, he saw Williams lying in the road. Strohecker stopped, *21 exited his car and approached Williams. Strohecker knelt down next to Williams and asked him if he was okay. Williams took a deep breath and said: “I’ve been hit. . . . I’ve been hit . . . .” Williams then started mumbling unintelligibly, and his body began to shake. Strohecker used the police radio in Williams’ cruiser to request assistance for Williams.

Officers Timothy Jackson and John Perugini were riding together in a cruiser approximately two blocks from the shooting when they heard Strohecker’s request for assistance on their radio. They arrived at the scene within one minute of receiving Strohecker’s transmission. Jackson ran to Williams and knelt beside him. Williams grasped Jackson’s shoulder for three to five seconds and attempted unsuccessfully to speak. Officer Joseph Flaherty arrived soon after Jackson and Perugini and observed that Williams’ eyes were open and that he was moving his arms or head. Williams’ lips also were moving, but it was impossible to discern what, if anything, he was saying. Flaherty and a second officer removed Williams’ equipment belt with Williams’ handgun still secured in its holster.

Moments later, an ambulance arrived and transported Williams, who, by that time, was unconscious, to Saint Mary’s Hospital in Waterbury. Williams lapsed into a coma at approximately 5:30 a.m. and died at 7 p.m. from complications resulting from the gunshot wound to his head.

The defendant was apprehended and charged with one count of capital felony in violation of § 53a-54b (1) and one count of murder in violation of § 53a-54a (a). The court, Murray, J., held a probable cause hearing in accordance with article first, § 8, of the state constitution, as amended by article seventeen of the amendm *22 ents,9 and General Statutes § 54-46a,10 at which the court, Murray, J., found probable cause to believe that the defendant had committed the crimes with which he was charged. Thereafter, the state notified the defendant of three aggravating factors that it intended to prove at the defendant’s penalty phase hearing, namely, that the defendant had committed the capital felony: (1) “during the . . . attempted commission of ... a felony and he had previously been convicted of the same felony”; General Statutes (Rev. to 1991) § 53a-46a (h) (1); (2) in such a manner as “knowingly [to create] a grave risk of death to another person in addition to the victim of the offense”; General Statutes (Rev. to 1991) § 53a-46a (h) (3); and (3) “in an especially heinous, cruel or depraved manner . . . .” General Statutes (Rev. to 1991) § 53a-46a (h) (4). The defendant waived his right to a jury trial and elected to be tried by a three judge court in accordance with General Statutes § 53a-45.11

*23 Prior to trial, the defendant filed a motion to suppress certain statements that he had made to the police during the investigation of the shooting of Williams. After an evidentiary hearing, the court, Kulawiz, denied the defendant’s motion to suppress. The defendant also filed a motion for a change of venue, which the trial court denied following an evidentiary hearing.

The trial then was held before the panel, which found the defendant guilty of both capital felony and murder. Thereafter, the defendant elected to have the penalty phase hearing held before a jury rather than the panel.12 The jury returned a special verdict finding that the state had established two aggravating factors, namely, that the defendant had committed the capital felony during the attempted commission of a felony having previously been convicted of the same felony, and that the defendant had committed the capital felony in an especially heinous, cruel or depraved manner. General Statutes (Rev. to 1991) § 53a-46a (h) (1) and (4). The jury also found, however, that the state did not satisfy its burden of proving that the defendant had committed the capital felony in such a manner as knowingly to create a grave risk of death to another person in addition to Officer *24 Williams. General Statutes (Rev. to 1991) § 53a-46a (h) (3). Finally, the jury found that the defendant did not satisfy his burden of proving any mitigating factors. The trial court rendered judgment in accordance with the jury’s special verdict, sentencing the defendant to death in connection with the defendant’s conviction of capital felony.13 This appeal followed.

II

GUILT PHASE ISSUES A

Sufficiency of the Information

The defendant contends that he is entitled to a new probable cause hearing because the information, in which he was charged with the crime of capital felony in violation of § 53a-54b (l),14 failed to allege an essential element of that offense, namely, that Officer Williams was “acting within the scope of his duties” at the time he was murdered. We disagree.15

On December 21, 1992, the state filed a short form information charging the defendant with the crime of capital felony in violation of § 53a-54b (1). On February 3,1993, in response to the defendant’s motion for a bill of particulars, the state filed a long form information charging the defendant with the crime of capital felony *25 as well as the crime of murder in violation of § 53a-54a (a). The state alleged in the long form information that the defendant “did commit the crime of [murder] . . . in that on or about [December 18, 1992], at approximately 4:00 a.m., at or near the intersection of Orange and Ward Streets . . . the [defendant], with the intent to cause the death of another person, [namely, Officer Williams] a member of the Waterbury . . . [p]olice [department, caused the death of [Officer Williams] by shooting him in the head with a handgun.” With respect to the capital felony count, the state alleged in relevant part that the defendant “did commit [murder] of a member of the local police department, [namely, Officer Williams] . . . .” After a hearing conducted in accordance with article first, § 8, of the Connecticut constitution, as amended by article seventeen of the amendments,16 of the Connecticut constitution and § 54-46a,17 the trial court, Murray, J., found probable cause to try the defendant on the capital felony and murder charges.

The defendant claims for the first time on appeal that he is entitled to a new probable cause hearing because the information did not specify that Williams was “acting within the scope of his duties”; General Statutes (Rev. to 1991) § 53a-54b (1); when the defendant shot and killed him. The defendant further maintains that “a proper finding of probable cause ... is a constitutional prerequisite to the exercise of trial jurisdiction over a person charged with [the] crime [of capital felony],” and, as a consequence of the “deficiency in the state’s charging document, there was no such probable cause finding with respect to the acting within the scope of duties element [of] the capital felony charge . . . .” *26 (Internal quotation marks omitted.) According to the defendant, this alleged deficiency vitiated the finding of probable cause, thereby requiring a new probable cause hearing.

The defendant’s argument is unavailing for two reasons. First, the defendant waived his claim inasmuch as he had failed to raise it in the trial court. “The defendant correctly asserts that a finding of probable cause is necessary to establish that a court has jurisdiction to try a suspect as to a certain charge. See State v. Mitchell, 200 Conn. 323, 332, 512 A.2d 140 (1986). As we stated in State v. John, 210 Conn. 652, 665 n.8, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989), however, our reference in State v. Mitchell, [supra, 330], to a determination of probable cause as a prerequisite to subsequent jurisdiction to hear the trial pertains, not to subject matter jurisdiction, but only to jurisdiction over the person of the defendant. General Statutes § 54-46a (a) expressly allows the waiver of a preliminary hearing to determine probable cause, so it obviously cannot be essential for subject matter jurisdiction. Accordingly, like other defects relating to jurisdiction of the person, any infirmity in the evidence presented at a probable cause hearing is deemed to be waived if not seasonably raised.” (Internal quotation marks omitted.) State v. Hafford, 252 Conn. 274, 309-10, 746 A.2d 150, cert. denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000). Having failed to raise a claim in the trial court that the evidence did not comport either with the charge or the allegations contained in the information, the defendant is barred from raising such a claim on appeal.

The defendant’s claim fails for a second, more fundamental reason. The particular allegations contained in an information do not limit or otherwise define the scope of the trial court’s responsibility to determine whether probable cause exists to proceed with the pros *27 ecution of an accused charged with an offense punishable by death or life imprisonment. In other words, it is the responsibility of the court, pursuant to § 54-46a, to determine whether there is probable cause to believe that the defendant committed the offense with which he has been charged. In the present case, the state charged the defendant with committing, inter alia, the crime of capital felony. Consequently, the trial court was responsible for determining whether the evidence adduced at the probable cause hearing was sufficient to warrant the continued prosecution of the defendant on the capital felony charge, and the trial court properly upheld its responsibility.

Under the view advanced by the defendant, the probable cause hearing may be used as a vehicle to test the sufficiency of the allegations contained in the information. That simply is not a purpose of a probable cause hearing. The probable cause hearing is designed to safeguard an accused’s rights by requiring the state to demonstrate, at an early stage of the prosecution, that the evidence of the defendant’s guilt is sufficient to warrant a prosecution in connection with the particular charge.

Moreover, the defendant’s argument regarding the variance between the “acting within the scope of his duties” language of § 53a-54b (1) and the allegations contained in the information, reflects a fundamental misperception of the purpose of the information. That purpose is not to set the parameters of the probable cause hearing but, rather, to “inform the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial suxprise and to make the charge definite enough to enable [the defendant] to plead his acquittal or conviction in bar of any future prosecution for the same offense . . . .” (Internal quotation marks omitted.) State v. McMurray, 217 Conn. 243, 249, 585 A.2d 677 (1991). Thus, contrary to the defendant’s claim, there *28 is no substantial relation between the information, on the one hand, and the probable cause hearing, on the other. Inasmuch as the defendant’s claim is predicated on the erroneous premise that such a relation exists, his claim must fail.18

B

The Defendant’s Challenge to the Panel’s Interpretation of § 53a-54b (1)

The defendant next claims that the panel improperly determined that, in order to satisfy the element of § 53a-54b (1) requiring proof that Officer Williams had been “acting within the scope of his duties” when he conducted a Terry19 stop of the defendant,20 the state was *29 required to prove merely that he was acting in the discharge of his official duties as a police officer at that time. The defendant claims that § 53a-54b (1) requires proof both that Williams was acting within the scope of his duties as a police officer when he was murdered and that his conduct was lawful. The defendant further claims that the state failed to satisfy its burden of proof in that respect because the evidence was insufficient to establish that Williams’ investigative stop of the defendant comported with the dictates of the fourth amendment to the United States constitution. The defendant claims, therefore, that his conviction of the crime of capital felony should be dismissed. The defendant further maintains that, even if the evidence established that Williams’ conduct was constitutionally permissible, the panel, in applying the wrong legal standard, failed to make such a finding and, consequently, the defendant is entitled to a new guilt phase hearing. We conclude that the state was required to prove only that Williams was acting in the good faith discharge of his official duties as a police officer when he stopped the defendant and attempted to subdue him.21 Because *30 the evidence adduced at the guilt phase hearing satisfied this statutory requirement, we need not, and, therefore, do not, address the defendant’s remaining two claims, both of which are predicated on an erroneous interpretation of § 53a-54b (1).

At the conclusion of its deliberations, the panel issued a memorandum of decision in which it found that Williams was acting within the scope of his duties as a member of the Waterbury police department when he was shot and killed by the defendant while investigating the activities of the defendant and Anthony Crawford. The panel also expressly stated, however, that it “makes no finding as to the legality of the stop [and] investigation, since it finds no authority for the defendant’s claim that the state must prove as an element of the crime of capital felony, that the officer was acting in the lawful performance of his duties at the time and place of the incident.” (Emphasis in original.) The defendant does not contest that Williams was on duty and acting in his capacity as a police officer when he stopped the defendant for investigative purposes. The defendant claims, rather, that § 53a-54b (1) applies only to law enforcement officers who, in the discharge of their official duties, act in accordance with constitutional requirements. We disagree.

*31 The defendant’s claim raises an issue of statutory construction and, therefore, our review is plenary. E.g., State v. Russo, 259 Conn. 436, 447, 790 A.2d 1132 (2002). It is axiomatic that, in construing statutes, our fundamental task is to ascertain and give effect to the apparent intent of the legislature. Id. “As with all issues of statutory interpretation, we look first to the language of the statute.” (Internal quotation marks omitted.) Gipson v. Commissioner of Correction, 257 Conn. 632, 639, 778 A.2d 121 (2001). On its face, the statutory language at issue, “acting within the scope of his duties”; General Statutes (Rev. to 1991) § 53a-54b (1); broadly encompasses any activity that falls within the officer’s official duties, which, of course, include the investigation of suspected criminal conduct. The language contains no limitation on the nature of that activity as long as it involves the discharge of the officer’s responsibilities as a sworn law enforcement officer. Thus, the wording of the statute strongly supports the conclusion that § 53a-54b (1) was intended to apply to circumstances such as those in the present case, in which the officer, acting in good faith, engages in an activity that falls within the officer’s official responsibilities, regardless of whether the officer’s conduct later may be found to have exceeded constitutional boundaries.

In interpreting statutes, we also look to the pertinent legislative history and circumstances surrounding the statute’s enactment, to the legislative policy the statute was designed to promote and to its relationship to existing legislation governing the same or related subject matter. E.g., State v. Vickers, 260 Conn. 219, 223-24, 796 A.2d 502 (2002). These considerations also lead us to reject the defendant’s construction of § 53a-54b (1) as unduly narrow.

It is clear- from the legislative history of § 53a-54b (1) that a primary purpose of that provision is to deter violence against police officers and certain other law *32 enforcement officers while they are performing their official duties. For example, during the Senate debate on the legislation implementing the current capital felony statutory scheme; see Public Acts 1973, No. 73-137 (P.A. 73-137); Senator George C. Guidera, the Senate chairman of the judiciary committee and a sponsor of the legislation, stated that the drafters of the bill had “selected those crimes in which there is a deterrent value to impose the death penalty.” 16 S. Proc., Pt. 4, 1973 Sess., p. 1871. In explaining that a principal purpose of the proposed legislation was to protect law enforcement officers, Guidera thereafter stated: “[W]e’re trying to protect, in this [b]ill, those individuals who are out on the street day in and day out who are trying to protect our lives and property including the police [men], the deputy sheriffs, the constables . . . and the Judiciary Committee simply felt that they should receive the protection that they are really due.” Id., pp. 1873-74.

Similarly, Representative James F. Bingham, also a member of the judiciary committee, explained during the debate on the proposed capital felony legislation in the House of Representatives that, “[i]t is the view of the judiciary committee that . . . the death penalty has deterrent value and that it may provide a measure of protection against incorrigible and dangerous individuals. The potential criminal will know that if his intended victims die, he may also die. The murderer of a member of the State Police ... or a local police department . . . will know that [he] may have to pay with [his] own [life] for any lives that [he] take[s].” 16 H.R. Proc., Pt. 6, 1973 Sess., p. 2975. Bingham further explained: “[T]he reason for this particular law is that society must be protected. We have come to this stage in our history in the [s]tate of Connecticut that society itself is crying out for protection and that those people who commit heinous crimes, such as the murder of a *33 policeman during the [performance] of his duties . . . must know that if they commit those crimes, the state will exact . . . the highest penalty.” Id., pp. 2976-77.

Our interpretation of the relevant statutory language of § 53a-54b (1) is consistent with the statute’s underlying purpose; when a police officer carries out his official duties—irrespective of whether his conduct eventually may be deemed to be unlawful—he is particularly vulnerable to the kind of murderous assault that the legislature sought to deter in enacting § 53a-54b (1). By contrast, the statutory construction urged by the defendant would thwart this legislative purpose because there is no logical reason why the legislature would have intended to deprive a police officer of this protection when that officer, acting in the good faith discharge of his duties, mistakenly engages in conduct that ultimately is determined to transgress constitutional boundaries. “It is not our practice to construe a statute in a way to thwart its purpose or lead to absurd results ... or in a way that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve.” (Citation omitted; internal quotation marks omitted.) Colonial Penn Ins. Co. v. Bryant, 245 Conn. 710, 725, 714 A.2d 1209 (1998).

Furthermore, our construction of the phrase “acting within the scope of his duties” contained in § 53a-54b (1) is guided by our interpretation of General Statutes § 53a-167c,22 which categorizes an assault of a law enforcement officer “acting in the performance of his or her duties” as a class C felony. In explaining that phrase, we recently stated: “[A] police officer has the *34 duty to enforce the laws and to preserve the peace. Whether he is acting in the performance of his duty . . . must be determined in the light of that purpose and duty. If he is acting under a good faith belief that he is carrying out that duty, and if his actions are reasonably designed to that end, he is acting in the performance of his duties. . . . Although from time to time a police officer may have a duty to make an arrest, his duties are not coextensive with his power to arrest. [His] official duties may cover many functions which have nothing whatever to do with making arrests. . . . The phrase in the performance of his official duties means that the police officer is simply acting within the scope of what [he] is employed to do. The test is whether the ¡police officer] is acting within that compass oris engaging in a personal frolic of his own.” (Emphasis added; internal quotation marks omitted.) State v. Casanova, 255 Conn. 581, 592-93, 767 A.2d 1189 (2001), quoting State v. Privitera, 1 Conn. App. 709, 722, 476 A.2d 605 (1984). Thus, § 53a-167c simply requires evidence establishing that the police officer had been performing his or her official duties in good faith when the officer was assaulted. Under § 53a-167c, the state need not prove that the officer had been performing his duties lawfully when the officer was assaulted. For purposes of the present case, we see no material difference between the phrase “acting within the scope of his duties” contained in § 53a-54b (1) and the phrase “acting in the performance of his or her duties” contained in § 53a-167c. Consequently, we see no reason to impute a requirement into the former phrase that is not contained in the latter.23 Accordingly, we reject the *35 defendant’s claim that the panel improperly dispensed with an essential element of § 53a-54b (1).

C

Motion to Suppress Statements

The defendant claims that the trial court, Kulawiz, J.,24 improperly denied his motion to suppress incriminating statements that he had made at police headquarters in response to questioning by investigating officers. In particular, the defendant contends that the statements should have been suppressed because they were the product of his illegal arrest, which, the defendant maintains, itself, was the product of an illegal search of the apartment in which he resided. The defendant further contends that he did not make the challenged statements voluntarily, and that they were obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). We reject the defendant’s claim that the court improperly denied his motion to suppress.

*36 The essential facts relevant to the defendant’s claim are set forth in the memorandum of decision of the court denying the defendant’s motion to suppress. “At approximately 4 a.m. on December 18, 1992, Officer . . . Williams of the Waterbury police department was shot in the head at the intersection of Orange Street and Ward Street and later that morning died from said injuries. Upon learning that [Joselyn Campos] was a possible witness, officers spoke with . . . Campos, who told officers at the scene and thereafter at headquarters, that she had observed two black males walking on Orange Street at approximately 4 a.m. and that she then heard gunshots and saw the same two men running down Ward Street. She stated to police that she saw them run into one of three houses that she pointed out to [Detective Sergeant Neil] O’Leary. . . . O’Leary testified that he ordered police to seal off the area and search houses pointed out by Campos. [Investigating] [o]fficers checked buildings and reported [that] nobody [was] considered a suspect. A call was received by police at around 6:30 a.m. that someone at 227 Walnut Street in the third floor apartment might have some information concerning the shooting. . . . O’Leary, [Detective Peter] Keegan and others went to that address [where they] found . . . Lucinda Crawford, George Washington and Robert ‘Po’ Bryant. . . . Lucinda Crawford told . . . O’Leary that . . . Bryant had information about the shooting. . . . O’Leary talked with . . . Bryant who told him that he had been at Karen Smith’s apartment on the second floor at Ward Street when [a man] he knew as Anthony Crawford and a guy he knew as ‘Kilt’ ran up the stairs to the apartment and said [that they had just shot a cop].

“At about 7:30 a.m. on December 18, 1992 . . . O’Leary . . . [Sergeant James] Griffin . . . Keegan [and two other police officers accompanied by Bryant] went to 47 Ward Street, one of the three buildings that *37 had been pointed out by Campos earlier. Officers had their guns drawn as they knocked on the door.25 . . . Smith answered the door and O’Leary told her why the police were there and she allowed them to enter.26 Directly in front of the door was a bed occupied by a black male. O’Leary told the male to get out of the bed. In response to the officer, he said his name was David Robinson .... [In fact, his real name was Richard Reynolds, the defendant.] Another black male was on the couch in the living room. This man gave his name as Jamal James. [In fact, his real name was Anthony Crawford.] [The] [p]olice [then] told Robinson to go into the living room. [The] [officers no longer had guns drawn at this point. [The] [p]olice asked for identification and the men said they had none. The man identifying himself as Jamal James gave a date of birth of November 7, 1974, and stated that he was twenty years old.

“While O’Leary was asking [for the] identity of [the] men, Keegan summoned [O’Leary] into the next room where Smith had [informed the officers] that the men were Anthony Crawford and David Robinson, known as ‘Kilt.’ Both men denied knowledge of the shooting. [Investigating officers] asked them where they had been earlier and they stated that they both had been at the apartment all night. O’Leary informed them that a police officer had been shot and seriously injured. O’Leary asked them if they were willing to go to police headquarters. Both agreed to go. [The investigating] [officers *38 asked them to put on shoes. The two men were not handcuffed and at no time [did they ask] to leave. [The] [officers proceeded to take [both men] to separate cars to transport them to headquarters.

“Immediately after they had left the apartment and before they were transported to headquarters . . . Smith told . . . Keegan that at about [3:50 a.m.] she was in bed sleeping when ‘Kilt’ . . . jumped in her bed, his heart pounding and said [that he] ‘shot a cop.’ . . . Keegan stayed with . . . Smith at Ward Street until [Smith] had [made child care arrangements].

“At about 8 a.m., [the] defendant and [Anthony] Crawford arrived at headquarters and were taken in through the police entrance rather than the public entrance. [The] [defendant and Crawford were placed in separate interview rooms. At about 8:20 [a.m.] . . . Smith arrived at headquarters. The [m]ayor and various officials were at headquarters. Officers [James] Egan and [James Clary] interviewed Crawford. . . . Keegan and . . . Griffin interviewed . . . Smith . . . and [another officer] interviewed Bryant.

“From about 8 a.m. until 10 a.m., [the] defendant was in a room by himself in police headquarters. O’Leary asked him if he wanted a soda or coffee or to use the bathroom during that time.

“Between 8 and 10 a.m., statements were being taken from Crawford and Bryant. At about 10:15 [a.m.] O’Leary decided to interview [the] defendant after others had said that [the] defendant had shot [Williams]. Inspector John Maia in the presence of . . . O’Leary read [the] defendant his [Miranda]27 rights using as a guide a form entitled ‘Voluntary Statement’ normally used for written statements. Maia informed [the] defendant of his right to remain silent, that anything he said *39 could be used against him, that he had the right to an attorney and that if he could not afford one, an attorney would be appointed for him, that an attorney could be with him while he was being questioned, [and] that he had the right to stop answering and refuse to answer any questions. [The] [defendant was not asked to initial this form. O’Leary asked [the] defendant if he had been arrested before to which he responded [that he had]. He also asked [the defendant] if he understood the rights read and [the defendant] responded [that he did]. [O’Leary] asked [the] defendant if he would talk and [the] defendant said [that he would but denied any involvement in the crime].

“O’Leary then observed high ranking officers at his door and asked Maia to move [the] defendant out of his office to another room so that O’Leary could talk with the officers. Maia complied. [The] [defendant said [that] he didn’t shoot the cop, Derrick did. Mala asked who Derrick was and [the] defendant said that Crawford would know. Maia went out and asked Crawford who said that there was no Derrick, ‘just me . . . and Kilt did it.’

“[Keegan] told O’Leary at this point that . . . Smith had given a written statement that [the] defendant had shot . . . Williams. O’Leary told Keegan to go in and tell [the] defendant. Keegan went into the room with [the] defendant and Maia and asked Maia if [the] defendant had been advised of his rights. Maia replied affirmatively. Keegan then told [the] defendant that . . . Smith had told him that [the] defendant had told her that he had shot a cop. Maia said to [the] defendant, ‘get it off your chest,’ and Keegan told him to take responsibility. [The] defendant put his head down and said, T did it, I shot the cop.’ [The] defendant [then] was asked if he would give a [written] statement and he said [that he would], Keegan went out of the room and told O’Leary that [the] defendant ‘went for it.’ Kee *40 gan went back into the room and asked about the weapon and [the] defendant said that it was in transit and nowhere to be found.

“[The] [defendant then said that he wanted an attorney. He was asked if he wanted a public defender or a private attorney to be called. No farther questions were asked. State’s Attorney [John A.] Connelly who was also at the police station was informed and [he] called Public Defender Alan McWhirter who arrived shortly thereafter. After speaking with [the] defendant . . . McWhirter stated that his client would make no statement. All questioning stopped when [the] defendant stated that he wanted an attorney. No audio or video recording had been taken of the interview . . . .”

In rejecting the defendant’s claims, the court found that, with respect to the police entry into Smith’s apartment, she voluntarily had allowed the officers in. The court emphasized that, although those officers had their guns drawn as they knocked on Smith’s door, they returned their guns to their holsters after observing that the occupants of the apartment were not armed.28

*41 The court also found that the defendant, who never was handcuffed, voluntarily consented to be driven to police headquarters and, furthermore, that he was not in custody until he entered the police vehicle for the ride to police headquarters.29 With respect to the existence of probable cause to arrest the defendant at that time, the court expressly credited the testimony adduced by the state that investigating officers previously had been told by Campos that she saw two men running into Smith’s apartment building from the area where she had heard gunshots, and by Bryant that he was at Smith’s apartment when he observed the defendant and Crawford run up the stairs, enter the apartment and exclaim, “[w]e just shot a cop.” The court concluded that this information constituted probable cause to arrest the defendant and Crawford. The court further noted that, “as soon as the two men left the apartment on their way downstairs to the police cars . . . Smith informed . . . Keegan that [the] defendant . . . earlier that morning, had jumped into bed with her and, with his heart pounding, said, ‘I just shot a cop.’ ” The court concluded that because the police had obtained this information immediately before the defendant was in custody, this information served to buttress the probable cause that the police already had to arrest the defendant.

Finally, the court found that the defendant’s statements were not the product of police coercion or over *42 reaching, and that they were freely and voluntarily made. The court also found that the defendant was properly advised of his Miranda rights, that he fully understood those rights and that he knowingly and intelligently waived them.

Our review of the defendant’s claim30 is governed by well established principles. “Under the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality. Wong Sun v. United States, [371 U.S. 471, 485, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)].” (Internal quotation marks omitted.) State v. Blackman, 246 Conn. 547, 553, 716 A.2d 101 (1998).31 Accordingly, we must determine whether the court properly concluded that the defendant’s statements were not the product of any police illegality. On appeal, we apply a familiar standard of review to a trial court’s findings and conclusions in connection with a motion to suppress. “A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision .... Whether the trial court properly found that the facts submitted were *43 enough to support a finding of probable cause is a question of law. . . . The trial court’s determination on the issue, therefore, is subject to plenary review on appeal.” (Citations omitted; internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 279, 764 A.2d 1251 (2001). “Because a trial court’s determination of the validity of a . . . search [or seizure] implicates a defendant’s constitutional rights, however, we engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence.” (Internal quotation marks omitted.) State v. Vivo, 241 Conn. 665, 674-75, 697 A.2d 1130 (1997). “However, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) State v. Clark, supra, 280.

With these standards in mind, we now turn to the defendant’s claim that his statements should have been suppressed: (1) as the product of an illegal search and illegal arrest; and (2) because they were involuntary and obtained in violation of his Miranda rights. We discuss, in turn, the search, the arrest and the police questioning that prompted the defendant’s statements.

1

The Search

Under both the fourth amendment to the federal constitution32 and article first, § 7, of the state constitution, *44 33 a warrantless search of a home is presumptively unreasonable. E.g., Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); State v. Gant, 231 Conn. 43, 63 and n.15, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995). A search is not unreasonable, however, if a person with authority to do so has voluntarily consented to the search. E.g., Schneckloth v. Bustamonte, 412 U.S. 218, 242—43, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); State v. Cobb, 251 Conn. 285, 314, 743 A.2d 1 (1999) (Cobb II), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000); State v. Reagan, 209 Conn. 1, 7, 546 A.2d 839 (1988). “The state bears the burden of proving that the consent was free and voluntary and that the person who purported to consent had the authority to do so.” (Internal quotation marks omitted.) State v. Reagan, supra, 7. “The state must affirmatively establish that the consent was voluntary; mere acquiescence to a claim of lawful authority is not enough to meet the state’s burden.” State v. Jones, 193 Conn. 70, 79, 475 A.2d 1087 (1984). “The question [of] whether consent to a search has . . . been freely and voluntarily given, or was the product of coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances”; (internal quotation marks omitted) State v. Reagan, supra, 7-8; and, ultimately, requires a determination regarding the putative consenter’s state of mind. Poulos v. Pfizer, Inc., 244 Conn. 598, 609, 711 A.2d 688 (1998).

There is no dispute that Smith, a resident and lessee of the apartment that the officers entered, had the authority to consent to the officers’ request to enter *45 the apartment. The sole issue, therefore, is whether Smith freely and voluntarily agreed to that request or whether her will was overborne by the officers. The defendant contends that the latter conclusion is the only one that reasonably may be drawn in light of what he characterizes as “a strong showing of armed police authority.” We disagree.

“Although the presence of drawn weapons is certainly a factor in determining voluntariness ... it is not dispositive.” State v. Boyd, 57 Conn. App. 176, 181, 749 A.2d 637, cert. denied, 253 Conn. 912, 754 A.2d 162 (2000). Indeed, in the present case, the officers who requested permission to enter the apartment were not in uniform but, rather, in plainclothes. Furthermore, “the manner in which the police encountered the defendant minimized the potentially coercive effect of their brandished weapons. [In the present case], the armed officers did not rouse the defendant out of bed in the middle of the night; cf. Harless v. Turner, 456 F.2d 1337, 1338 (10th Cir. 1972); break down the door to the defendant’s apartment in the early hours of the morning; cf. United States v. Mapp, 476 F.2d 67, 77-78 (2d Cir. 1973); or use threatening language. See Ex parte Tucker, 667 So. 2d 1339, 1344 (Ala.), cert. denied sub nom. Alabama v. Tucker, 516 U.S. 944, 116 S. Ct. 382, 133 L. Ed. 2d 305 (1995).” State v. Boyd, supra, 181-82. Rather, the officers arrived at Smith’s apartment at approximately 7:30 a.m., knocked on the door and, when greeted by Smith, explained to her why they were there. It was at that point that they requested permission to enter. The record indicates that the officers did not use loud or threatening language, nor did they point their handguns at anyone in the apartment. Moreover, Smith already was aware that the police were in search of a suspect in a police shooting because officers had spoken to her briefly several hours earlier in connection with then1 canvass of the area. Finally, it is significant *46 that Smith, herself, never has suggested, during her trial testimony or otherwise, that her decision to let the officers into her apartment was anything but the product of her own free will.

We conclude that the evidence amply supports the court’s finding that Smith voluntarily consented to the officers’ request for permission to enter her apartment. We next must address the issue of whether the defendant’s arrest properly was predicated upon probable cause.

2

The Arrest

“A lawful warrantless felony arrest requires that the arrest be supported by probable cause. . . . Probable cause to arrest exists if (1) there is probable cause to believe a crime has been committed; and (2) there is probable cause to believe that the person to be arrested committed that crime. . . . Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed. . . . The probable cause test [therefore] is an objective one. . . .

“While probable cause requires more than mere suspicion . . . the line between mere suspicion and probable cause necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances. . . . The existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence.” (Citations omitted; internal quotation marks omitted.) State v. Trine, 236 Conn. 216, 236-37, 673 A.2d 1098 (1996). Indeed, proof of probable cause requires less than proof by a preponderance of *47 the evidence. State v. Clark, supra, 255 Conn. 293. Finally, “[i]n dealing with probable cause ... as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” (Internal quotation marks omitted.) State v. Trine, supra, 237.

“In determining the threshold question of whether there has been a seizure, we examine the effect of the police conduct at the time of the alleged seizure, applying an objective standard. Under [article first, § § 734 and 935 of] our state constitution, a person is seized only if in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. State v. Oquendo, [223 Conn. 635, 647, 613 A.2d 1300 (1992)]; see United States v. Mendenhall, [446 U.S. 544, 553-54, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)]. Therefore, a seizure may take place under [our] state constitution even in a case [in which] there is no submission by the defendant to a show of authority or use of physical force by the police. State v. Oquendo, supra, 650-52.” (Internal quotation marks omitted.) State v. Greenfield, 228 Conn. 62, 68, 634 A.2d 879 (1993). “Under the federal constitution, in contrast, a seizure occurs only if there is a show of physical force . . . or . . . submission to the assertion of authority. California v. Hodari D., 499 U.S. 621, 626, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991).” (Internal quotation marks omitted.) State v. James, 237 Conn. 390, 404-405, 678 A.2d 1338 (1996).36

*48 The defendant contends, first, that he was seized when O’Leary ordered police to seal off the neighborhood, which included Smith’s apartment building.37 He further claims that, because the police lacked probable cause to arrest him at that time, the seizure was unlawful. Alternatively, the defendant argues that he was seized when the police entered Smith’s apartment and told him to get out of bed; according to the defendant, the police lacked probable cause to arrest him at that point as well. Finally, the defendant claims that even if, as the court found, he was not seized until he left Smith’s apartment with the police, the police still lacked probable cause to arrest him at that time. The defendant’s claims require a two part analysis. First, we must determine when the defendant was seized. Second, we must determine whether the police had probable cause when the seizure occurred. E.g., id., 404.

The defendant’s claims lack merit. With respect to his contention that he was seized when the police sealed off the general area in which Smith’s apartment is located, there is nothing in the record to establish either that the defendant believed that he was not free to leave or that he submitted to a show of police force or authority. Indeed, the defendant was in bed at the time, and although he may have suspected that a police investigation of the shooting had commenced, there is no indication that he was aware of O’Leary’s order to seal off the area.38 In the absence of any such evidence, the *49 defendant cannot prevail on his claim that he was seized upon execution of that order.

Nor can the defendant prevail on his claim that he was seized when the police told him to get out of bed and go into the living room. At that point, the police no longer had their guns drawn, and there is no evidence that they threatened or otherwise intimidated the defendant. He was not handcuffed or otherwise physically restrained in any way, and he gave no indication either that he wished to leave or that he wished to stop answering the questions asked of him by the investigating officers. Moreover, the police did not demand that the defendant go to headquarters with them; rather, they asked him if he would be willing to do so.

Even if we were to assume, arguendo, that, as the defendant claims, he was seized when the police entered Smith’s apartment and told him to get out of bed, the police had probable cause to arrest the defendant at that time. Prior to arriving at Smith’s apartment, O’Leary had been informed by Bryant that he was present at that apartment when the defendant and Crawford ran in and stated that they just shot a police officer.39 This information was corroborated by Campos’ report that the two men that she had observed on Orange Street just prior to the shooting ran down Ward Street moments after the shooting and disappeared into any one of three apartment buildings, one of *50 which was the building in which Smith resided. Because that information was sufficiently detailed and credible to give rise to a reasonable belief that the defendant and Crawford were involved in the shooting, the police had probable cause to arrest the defendant at that time. Consequently, the defendant’s contention that his statements were the product of an illegal arrest is without merit.

3

Miranda Violation

The defendant next claims that the court improperly concluded that the defendant’s waiver of his Miranda rights was knowing, voluntary and intelligent. We also reject this claim.

“To be valid, a waiver must be voluntary, knowing and intelligent. Miranda v. Arizona, [supra, 384 U.S. 475, 478]; State v. Gonzalez, 206 Conn. 213, 217, 537 A.2d 460 (1988); State v. Boscarino, 204 Conn. 714, 743, 529 A.2d 1260 (1987). The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights.40 State v. Hernandez, 204 Conn. 377, 395, 528 A.2d 794 (1987); State v. Chung, 202 Conn. 39, 48, 519 A.2d 1175 (1987); State v. Smith, 200 Conn. 465, 481, 512 A.2d 189 (1986). Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case. North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 2d *51 1461 (1938); State v. Boscarino, supra [743]; State v. Chung, supra [48].” (Internal quotation marks omitted.) State v. Stanley, 223 Conn. 674, 686, 613 A.2d 788 (1992).

“Whether the defendant has knowingly and intelligently waived his rights under Miranda depends in part on the competency of the defendant, or, in other words, on his ability to understand and act upon his constitutional rights. . . . Factors which may be considered by the trial court in determining whether an individual had the capacity to understand the warnings include the defendant’s experience with the police and familiarity with the warnings ... his level of intelligence, including his IQ . . . his age . . . his level of education . . . his vocabulary and ability to read and write in the language in which the warnings were given . . . intoxication . . . his emotional state . . . and the existence of any mental disease, disorder or retardation.” (Citations omitted; internal quotation marks omitted.) State v. Toste, 198 Conn. 573, 580-81, 504 A.2d 1036 (1986). “Although the issue [of whether there has been a knowing and voluntary waiver] is . . . ultimately factual, our usual deference to fact-finding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence.” State v. Harris, 188 Conn. 574, 580, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983).

The crux of the defendant’s claim is that the state failed to adduce substantial evidence establishing a valid waiver of his Miranda rights. This claim is belied by the record. Maia testified without contradiction that he orally advised the defendant of his Miranda rights by reading from a preprinted waiver form. After informing the defendant of his rights, Maia asked the defendant: “Now, do you feel like talking to us freely and voluntarily?” The defendant answered “yes.” Fur *52 thermore, the defendant indicated that he previously had been arrested and that he understood his rights. O’Leary then asked the defendant once again: “Do you waive your rights?” The defendant replied: “Yes, but I had nothing to do with it.” Shortly thereafter, the defendant was confronted with Smith’s statement that the defendant told her that he had shot a police officer. Keegan then suggested to the defendant that he “get it off [his] chest . . . .” The defendant bowed his head and stated, “I did it. I shot the cop.” After stating that the police would never find the gun used in the shooting, the defendant initially agreed to provide a written statement. Before a written statement could be taken, however, the defendant stated that he first wanted to speak to an attorney. Shortly thereafter, a public defender, Alan McWhirter, was permitted to consult with the defendant. After consulting with the defendant, McWhirter told the police that the defendant did not wish to speak to them.

The evidence clearly establishes, and the court found, that the defendant properly was advised of his Miranda rights, that he understood those rights and that he knowingly and intelligently waived them. “An express written or oral waiver is strong proof of the validity of the waiver.” State v. Negron, 221 Conn. 315, 319 n.5, 603 A.2d 1138 (1992), citing North Carolina v. Butler, supra, 441 U.S. 373. Moreover, the record established that the defendant previously had been arrested and that, consequently, he already was familiar with the nature of the rights that he is afforded under Miranda. See, e.g., State v. Stanley, supra, 223 Conn. 687; State v. Usry, 205 Conn. 298, 305, 533 A.2d 212 (1987). Furthermore, after the defendant waived his rights and spoke with the police, he invoked his right to stop answering questions and to consult with counsel. “[W]e have held that the [invocation] of the right to remain silent after an initial willingness to speak with police *53 is a strong indication that the defendant understood his rights.” (Internal quotation marks omitted.) State v. Rasmussen, 225 Conn. 55, 78, 621 A.2d 728 (1993); accord State v. Barrett, 205 Conn. 437, 451, 534 A.2d 219 (1987). Finally, the defendant, who was twenty-four years old at the time of the offense and who is reasonably intelligent,41 expressed no uncertainty regarding his rights; on the contrary, it is apparent that he fully understood them. There is nothing in the record to suggest that the defendant was under the influence of alcohol or any narcotic substance when he was advised of his rights, nor does the evidence indicate that he was suffering from any mental illness or defect that could have adversely affected his ability to comprehend fully his rights. Consequently, we conclude that there was substantial evidence to support the court’s finding that the defendant knowingly, voluntarily and intelligently waived his Miranda rights. Accordingly, the defendant’s claim of a Miranda violation is without merit.

4

The Defendant’s Claim of Involuntariness

The defendant further contends that his postarrest statements were involuntary and, therefore, in contravention of the due process clause of the fourteenth amendment to the United States constitution.42 This claim also is without merit.43

*54 “Irrespective of Miranda, and the fifth amendment itself . . . any use in a criminal trial of an involuntary confession is a denial of due process of law.” (Internal quotation marks omitted.) State v. Hafford, supra, 252 Conn. 298. “In order to be voluntary a confession must be the product of an essentially free and unconstrained choice by the maker. ... If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of the confession offends due process. . . . The determination of whether a confession is voluntary must be based on a consideration of the totality of circumstances surrounding it . . . including both the characteristics of the accused and the details of the interrogation.” (Citations omitted; internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 328, 696 A.2d 944 (1997).

“Under the due process clause of the fourteenth amendment, [however] in order for a confession to be deemed involuntary and thus inadmissible at trial, [t]here must be police conduct, or official coercion, causally related to the confession . . . .” (Internal quotation marks omitted.) State v. Lapointe, 237 Conn. 694, 728-29, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996); see also Colorado v. Connelly, 479 U.S. 157, 164, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986). Because of this “essential link between coercive activity of the [s]tate, on the one hand, and a resulting confession by a defendant, on the other”; Colorado v. Connelly, supra, 165; “mere examination of the [defendant’s] state of mind [although relevant to an assessment of the defendant’s susceptibility to police coercion] can never conclude the due process inquiry.” Id.

*55 “We have stated that the test of voluntariness is whether an examination of all the circumstances discloses that the conduct of law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined .... Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Schneckloth v. Bustamante, [supra, 412 U.S. 225].” (Internal quotation marks omitted.) State v. Hafford, supra, 252 Conn. 298-99.

“The trial court’s findings as to the circumstances surrounding the defendant’s interrogation and confession are findings of fact . . . which will not be overturned unless they are clearly erroneous. ... On the ultimate issue of voluntariness, however, we will conduct an independent and scrupulous examination of the entire record to ascertain whether the trial court’s finding is supported by substantial evidence.” (Citation omitted; internal quotation marks omitted.) State v. Correa, supra, 241 Conn. 328-29.

In support of his claim, the defendant refers to the allegedly coercive nature of the police conduct that preceded his statements, specifically, the officers’ entry into Smith’s apartment, the ride to police headquarters and the two hours of questioning to which the defendant was subjected “in the context of the pandemonium created by all of the high city and police officials who had crowded into the detective bureau just to watch until this important case was solved.”

Contrary to the defendant’s claim, the court properly concluded that the police conduct was neither intimidating nor coercive, and certainly was not of such a nature as to overcome the defendant’s will. With respect *56 to the search of Smith’s apartment, the police did not threaten the defendant, and, although they initially had their guns drawn, they never pointed their guns at the defendant. Moreover, they holstered the guns as soon as they were assured that no occupant of the apartment was armed. In addition, the police merely asked the defendant if he would be willing to go to police headquarters to answer some additional questions. Although the defendant remained at police headquarters for approximately two hours before he confessed to the shooting, there simply is nothing in the record to suggest that he was subjected to any coercive police tactics.

In the absence of any evidence of improper coercion on the part of police officers, the mere fact that the defendant remained at police headquarters for two hours provides no support for the defendant’s claim. Indeed, he never asked to leave and did not seek to have the police stop questioning him until after he had confessed to shooting Williams; when he eventually requested an attorney, one was provided immediately.44 The record also is devoid of any suggestion that the presence of certain city officials at headquarters had any effect on the defendant; in fact, the evidence does not establish that he even was aware of the presence of those officials.45 Finally, at the time of the events in question, the defendant, a reasonably bright adult, was not suffering from any physical or mental impairment that might have affected his ability to knowingly and voluntarily waive his right to remain silent. We therefore reject the defendant’s claim that his statements were obtained in violation of the fourteenth amendment due process clause.

*57 D

The Court’s Limitation on the Defendant’s Right of Cross-Examination

The defendant next contends that his rights under the confrontation clause of the sixth amendment46 were violated because the court, during the guilt phase hearing, improperly precluded him from asking Detective Keegan whether he knew “how the decision was made as to what charges to bring against Anthony Crawford . . . ,”47 We reject the defendant’s claim.

The following additional facts are relevant to our disposition of the defendant’s claim. During the guilt phase of the defendant’s case, Crawford testified for the state that he and the defendant each possessed a substantial quantity of cocaine when they were stopped by Officer Williams and that he witnessed the defendant shoot Williams in the head when Williams attempted to subdue the defendant. Crawford further testified that he had been charged with the crime of hindering prosecution in connection with the police investigation of the shooting, and that he had been acquitted of that charge.

Defense counsel cross-examined Crawford extensively about his recollection of the events, focusing, in particular, on discrepancies between his statements to the police and his testimony on direct examination. Defense counsel also elicited testimony from Crawford that: (1) he is a convicted felon; (2) he was incarcerated at the time of the defendant’s trial; (3) he was on parole *58 at the time of the shooting; and (4) he had a pending escape charge for which he had not yet negotiated a plea bargain. Although Crawford had not been charged in connection with his possession of cocaine on December 18,1992, defense counsel did not question Crawford about whether the state had promised him leniency in return for his testimony against the defendant. In addition, defense counsel did not question Crawford about whether he had received any other benefit from the state in connection with his cooperation in the state’s case against the defendant.

Thereafter, Keegan testified for the state. On cross-examination, the defendant asked Keegan whether he was “responsible for deciding what criminal charges would be lodged against . . . Crawford.” The state objected on relevancy grounds, to which defense counsel responded: “[I]t’s clearly relevant to any question of bias or motive for testifying or for giving a statement that . . . Crawford may have had . . . with respect to the relative [ly] minor criminal charges that were immediately brought against him.” The court then sustained the state’s objection.

“Our analysis of the defendant’s claim is guided by the familiar constitutional guidelines relevant to cross-examination by the defendant in a criminal trial. It is axiomatic that the defendant is entitled fairly and fully to confront and to cross-examine the witnesses against him. . . . The primary interest seemed by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation [for] testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. ... In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defen *59 dant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. . . .

“The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited through cross-examination. . . . The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence renders the existence of [other facts] either certain or more probable. . . .

“The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. . . .

“The proffering party bears the burden of establishing the relevance of the offered testimony. Unless a proper foundation is established, the evidence is irrelevant.” (Citations omitted; internal quotation marks omitted.) State v. Beliveau, 237 Conn. 576, 584-86, 678 A.2d 924 (1996).

The specific question that defense counsel asked of Keegan regarding what charges were to be filed against Crawford was, at most, only marginally relevant to the issue of Crawford’s bias or motive. As the members of the three judge panel certainly knew, the ultimate responsibility of charging a person with the commission of a crime is vested with the office of the state’s attor *60 ney, not the police.48 See General Statutes § 51-286a;49 see also Massameno v. Statewide Grievance Committee, 234 Conn. 539, 575, 663 A.2d 317 (1995) (“Prosecutors have enormous discretion in deciding which citizens should be prosecuted and for what charges they are to be held accountable. . . . The prosecutor is also the one to decide whether to offer a certain plea or disposition.” [Citations omitted.]). We need not decide, however, whether the question bore sufficient relevance to Crawford’s motive or bias such that the court should have allowed it because, even if we assume, arguendo, that the ruling was improper, it was harmless beyond a reasonable doubt. Although the court prohibited the defendant from asking that one question, there is nothing in the record to suggest that the court would have precluded the defendant from making further, more direct inquiries of Keegan as to Crawford’s possible bias or motive. Specifically, although defense counsel was not prohibited from questioning Keegan about whether he or anyone else had made any promises to Crawford in return for Crawford’s cooperation, or from asking Keegan whether, to Keegan’s knowledge, the state had afforded Crawford leniency as a consequence of Crawford’s cooperation, defense counsel opted not to do so. Thus, although *61 defense counsel had failed to elicit any information from Keegan regarding Crawford’s possible bias or motive, that failure cannot be attributed to the challenged evidentiary ruling but, rather, to defense counsel’s decision not to ask Keegan any additional questions about that issue. Consequently, the defendant’s claim of a constitutional violation is without merit.

Ill

PENALTY PHASE ISSUES

A

Issues Concerning the Aggravating Factor Enumerated in § 53a-46a (h) (1)

The defendant claims that the finding of the jury regarding the existence of the aggravating factor enumerated in § 53a-46a (h) (1) cannot stand. Specifically, the defendant contends that: (1) the aggravating factor is facially unconstitutional; (2) the state failed to satisfy the “same felony” element of § 53a-46a (h) (1); (3) the trial court improperly deprived him of his right to a jury determination as to the existence of the aggravating factor; and (4) the evidence was insufficient to establish that he was attempting to commit the crime of sale of a narcotic substance during the commission of the capital felony. We reject each of these claims, which we address in turn.

1

Facial Constitutionality of § 53a-46a (h) (1)

The defendant claims that § 53a-46a (h) (1), which requires proof that the defendant committed the capital felony during the commission or attempted commission of a felony and that the defendant previously had been convicted of the same felony, is unconstitutional on its face. Specifically, the defendant contends that because *62 § 53a-46a (h) (1) requires only a temporal relationship between the capital felony and the felony committed dining the commission of the capital felony, § 53a-46a (h) (1) violates the constitutional requirement that a capital sentencing scheme “meaningfully distinguish in a principled way [between] those . . . defendants who should receive the death penalty [and] those who should not.” We disagree.

“The United States Supreme Court has held that if a [s]tate wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a [s]tate’s responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates standardless [sentencing] discretion. Godfrey v. Georgia, 446 U.S. 420, 428, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980). Thus, where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action. Gregg v. Georgia, 428 U.S. 153, 189, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) (opinion of Stewart, Powell and Stevens, Js.).” (Internal quotation marks omitted.) State v. Breton, 212 Conn. 258, 263-64, 562 A.2d 1060 (1989) (BretonI). Consequently, “[t]o avoid [a] constitutional flaw, an aggravating [factor] must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant v. Stephens, 462 U.S. 862, 877, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

In State v. Ross, 230 Conn. 183, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995), we considered and rejected a constitutional challenge to the facial validity of our capital sen *63 tencing statutes. As we explained in Ross, “[i]n General Statutes §§ 53a-46a through 53a-46c, the legislature has established a three-tiered pyramid, in which each tier narrows the class of defendants that may be found eligible for the death penalty. At the first tier above the base of the pyramid, our statute separates capital felony homicides from other homicides, and authorizes bifurcated death penalty hearings only for those who have been found guilty of or have pleaded guilty to a capital felony. ... At the second tier, the statute further limits the death penalty by requiring the sentence!' to find, beyond a reasonable doubt, the existence of at least one statutorily delineated aggravating factor. ... At the third and final tier, our statute separates, from all cases in which a penalty of death may be imposed, those cases in which it shall be imposed ... by requiring a sentencer to find, by a preponderance of the evidence, whether a mitigating factor exists. . . .

“In their overall configuration, our death penalty statutes facially satisfy the constitutional requirements of the eighth and fourteenth amendments to the United States constitution. The multitiered pyramid meets the prerequisite of consistency and reliability by guiding the capital sentencer’s discretion with clear and objective standards that narrow the class of defendants eligible for the death penalty and by providing a meaningful basis for distinguishing between those cases in which the death penalty is imposed and those in which it is not.” (Citations omitted; internal quotation marks omitted.) Id., 236-38. Section 53a-46a (h) (1), as part of the second tier of our capital sentencing scheme, further narrows the group of persons who already have been convicted of a felony that, according to the legislature, warrants designation as a capital felony.

The defendant does not claim that § 53a-46a (h) (1) fails to reduce the number of defendants charged with a capital felony who are eligible to receive the death *64 penalty; certainly it does. Nor does he claim that it is too vague or indefinite, for certainly it is not. Rather, the defendant maintains that § 53a-46a (h) (1) does not narrow the category of death penalty eligible defendants in a meaningful or principled way because it requires only a temporal connection between the capital felony and the felony committed during the commission of the capital felony. In other words, the defendant contends that “it could be purely a matter of coincidence that the capital felony and the current felony [occur] at the same time, in which case the commission [of] the capital felony would have absolutely nothing to do with the commission of the current felony.”50 (Emphasis in original.) The defendant asserts that the *65 imposition of the death penalty under such circumstances would be so lacking in justification as to violate the eighth amendment51 to the United States constitution.52

It is well settled that, “[i]n the absence of weighty countervailing circumstances, it is improvident for the court to invalidate a statute on its face. . . . A judicial holding that a legislative [a]ct is unconstitutional is one of very grave concern. We ought not, and will not, declare a statute to be unconstitutional unless our judgment is formed in the light of this rule of our law: It is our duty to approach the question with caution, examine it with infinite care, make every presumption and intendment in its favor, and sustain the [a]ct unless its invalidity is, in our judgment, beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 320, 732 A.2d 144 (1999); accord Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 306-307, 695 A.2d 1051 (1997). Furthermore, “outside the context of the first amendment, in order to challenge successfully the facial validity of a statute, [the challenging] party [must] demonstrate as a threshold matter that the statute may not be applied constitu *66 tionaUy to the facts of his case.” Packer v. Board of Education, 246 Conn. 89, 106, 717 A.2d 117 (1998).

The defendant cannot sustain his burden of demonstrating that § 53a-46a (h) (1) is facially unconstitutional because he cannot establish that it is unconstitutional as applied to him. In the present case, the state claimed, and the jury found during the penalty phase hearing, that the defendant shot and killed Officer Williams after being stopped by Williams and during the defendant’s attempted commission of a narcotics felony. In such circumstances, the link between the capital murder and the narcotics felony was more than merely temporal or coincidental.

Indeed, the defendant acknowledges that the evidence adduced by the state indicates more than just a temporal connection between the capital felony and the drug felony committed by the defendant during the commission of the capital felony. The defendant asserts, however, that, because the court instructed the jury in accordance with the language of § 53a-46a (h) (1), the jury could have found the existence of that aggravating factor without also having found anything more than a temporal nexus between the capital felony and the narcotics offense. We disagree. On the basis of the specific facts that the state had presented and that the jury necessarily had found as reflected in its special verdict—i.e., that the defendant murdered an on-duty police officer while committing or attempting to commit a felony narcotics offense—a constitutionally sufficient nexus clearly existed between those two offenses.

Although, as the defendant asserts, it is possible to conjure up a situation in which there is only a coincidental relationship between the capital felony and the other felony committed during the course of the commission of the capital felony, the present case does not resemble *67 such a situation.53 Accordingly, the defendant’s constitutional claim is without merit.

2

The State’s Burden of Satisfying the “Same Felony” Element of § 53a-46a (h) (1)

The defendant claims that the trial court improperly concluded that the state had alleged and proven facts sufficient to establish the aggravating factor of § 53a-46a (h) (1). In particular, the defendant contends that the term “same felony” in § 53a-46a (h) (1) includes only Connecticut felonies and not out-of-state felonies. We disagree.

The following additional facts and procedural history are necessary to our resolution of this claim. At trial, the defendant stipulated to the fact that he had been convicted in 1989 of the criminal sale of a controlled substance in the fourth degree in violation of § 220.34 of the New York Penal Law.54 Criminal sale of a controlled substance in the fourth degree was categorized as a class C felony when the defendant committed the acts *68 that led to his conviction in 1989.55 N.Y. Penal Law § 220.34 (McKinney 1980). In support of its claim regarding the existence of the aggravating factor enumerated in § 53a-46a (h) (1), the state alleged that the defendant had murdered Williams during the attempted commission of a felony, namely, the sale of a narcotic substance in violation of General Statutes § 21a-277 (a),56 and that he previously had been convicted of the same felony, namely, the sale of a controlled substance in New York. The defendant filed a motion to dismiss the aggravating factor on the ground that, as a matter of law, the sale of a narcotic substance in violation of § 21a-277 (a) and the sale of a controlled substance in violation of N.Y. Penal Law § 220.34 do not constitute the “same felony” within the meaning of § 53a-46a (h) (1). The defendant’s motion was denied.57 On appeal, the defendant renews his claim that, for purposes of § 53a-46a (h) (1), the term “same felony” means the same Connecticut felony. Because the defendant previously has not been convicted of the sale of a narcotic substance in violation of § 21a-277 (a), he claims that he is entitled to dismissal *69 of the aggravating factor enumerated in § 53a-46a (h) (!)•

“The [defendant’s] claim raises an issue of statutory construction over which our review is plenary. . . . Our resolution of [this claim] is governed by well established principles. [I]t is axiomatic that the process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) State v. Russo, supra, 259 Conn. 447.

“When the statute in question is one of a criminal nature, we are guided by additional tenets of statutory construction. First . . . we must refrain from imposing criminal liability whe[n] the legislature has not expressly so intended. . . . Second, [c]riminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant. . . . Finally, unless a contrary interpretation would frustrate an evident legislative intent, criminal statutes are governed by the fundamental principle that such statutes are strictly construed against the state.” (Citations omitted; internal quotation marks omitted.) State v. Davis, 255 Conn. 782, 788-89, 772 A.2d 559 (2001). Moreover, “in this case we are construing [a death penalty] statute. The resolution of this issue could result in the imposition of the death penalty on this defendant and on other defendants charged with similar offenses. It is axiomatic that any statutory construction implicating the death penalty must be based on a conclusion that the legislature has clearly and unambiguously made its *70 intention known. . . . [Thus] [t]he rules of strict construction and lenity applicable to penal statutes generally are especially pertinent to a death penalty [provision] such as [§ 53a-46a (h) (1)].” (Citations omitted; internal quotation marks omitted.) State v. Harrell, 238 Conn. 828, 832-33, 681 A.2d 944 (1996).

“The rule of strict construction, however, does not require that the most narrow, technical and exact meaning be given to the language of a statute in frustration of an obvious legislative intent. . . . Common sense should be applied to the language of a penal statute, particularly if otherwise absurdity or frustration of the evident design of the legislature results.” (Internal quotation marks omitted.) State v. Albert, 50 Conn. App. 715, 726, 719 A.2d 1183 (1998), aff'd, 252 Conn. 795, 750 A.2d 1037 (2000). “No rule of construction . . . requires that a penal statute be strained and distorted in order to exclude conduct clearly intended to be within its scope—nor does any rule require that the act be given the narrowest meaning. It is sufficient if the words are given their fair meaning in accord with the evident intent of [the legislature]. . . . The rule that terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise; General Statutes § 1-1 (a); State v. Mattioli, [210 Conn. 573, 579, 556 A.2d 584 (1989)]; also guides our interpretive inquiry.” (Citation omitted; internal quotation marks omitted.) State v. Scott, 256 Conn. 517, 531-32, 779 A.2d 702 (2001).

As with all issues of statutory construction, our starting point is the relevant statutory language. General Statutes (Rev. to 1991) § 53a-46a (h) provides in relevant part: “If no mitigating factor is present, the court shall impose the sentence of death on the defendant if the jury . . . finds by a special verdict . . . that (1) the defendant committed the [capital] offense during the commission or attempted commission of ... a felony *71 and he had previously been convicted of the same felony . . . .” The term “same felony” is not defined in § 53a-46a (h) or in any other provision of the General Statutes.

The term “felony,” however, is defined by statute. General Statutes § 53a-25 (a)58 defines the term “felony” as “[a]n offense for which a person may be sentenced to a term of imprisonment in excess of one year . . . .” General Statutes § 53a-24 (a),59 in turn, provides in relevant part that “[t]he term ‘offense’ means any crime or violation which constitutes a breach of any law of this state or any other state, federal law or local law or ordinance of a political subdivision of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed . . . .” (Emphasis added.) Thus, under the pertinent statutory definitions, the term “felony” clearly encompasses out-of-state felonies. We, of course, “are bound to accept the legislative *72 definition of terms in a statute . . . .” (Citation omitted; internal quotation marks omitted.) Connecticut Light & Power Co. v. Texas-Ohio Power, Inc., 243 Conn. 635, 653, 708 A.2d 202 (1998); accord Rose v. Freedom of Information Commission, 221 Conn. 217, 225, 602 A.2d 1019 (1992). Inasmuch as the defendant’s conviction under N.Y. Penal Law § 220.34 carried the possibility of a term of imprisonment of more than one year; see footnote 55 of this opinion; the defendant’s New York conviction constitutes a conviction of a “felony” as that term is defined in the General Statutes. See General Statutes § 53a-25 (a); see also General Statutes § 53a-24 (a). Consequently, we must determine whether the felony proscribed by N.Y. Penal Law § 220.34 is the “same felony” as the felony proscribed by § 21a-277 (a). If they constitute the same felony, then the defendant’s prior conviction under N.Y. Penal Law § 220.34 falls squarely within the purview of § 53a-46a (h) (1).

Notwithstanding the clear import of the literal statutory language, the defendant contends that the context and legislative history of the relevant statutory provisions compel the conclusion that the legislature did not intend for out-of-state felonies to be included under § 53a-46a (h) (1). Before addressing the merits of the defendant’s contention, we briefly review the pertinent legislative genealogy.

As the defendant notes, the legislature revised Connecticut’s death penalty statutory scheme in 1973.60 See *73 generally P.A. 73-137. At that time, the definition of “felony” was virtually61 the same as it is today, that is, “[a]ny offense for which a person may be sentenced to a term of imprisonment in excess of one year . . . .” General Statutes (Rev. to 1972) § 53a-25 (a). In 1973, however, the term “offense” had a materially different meaning than it does today. In 1973, General Statutes (Rev. to 1972) § 53a-24 (a) defined the term “offense” as “any crime or violation which constitutes a breach of any law of this state or local law or ordinance of a political subdivision of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation.” (Emphasis added.) Consequently, in 1973, when the legislature revised our death penalty statutoiy scheme; see P.A. 73-137; the term “felony” was limited to crimes in violation of the laws of this state for which a term of imprisonment of more than one year could be imposed. It therefore is evident that, in 1973, the term “same felony,” as that term is used in § 53a-46a (h) (l)62 did not include out-of-state felonies. Just two years later, in 1975, however, the legislature passed Substitute Senate Bill No. 1453, which was enacted as Public Acts 1975, No. 75-380 (P.A. 75-380). Section 15 of P.A. 75-380 amended General Statutes (Rev. to 1975) § 53a-24 (a) by enlarging the definition of the term “offense” to include out-of-state and federal crimes and violations. In so doing, the legislature also expanded the definition of the term “felony” under § 53a-25 (a) *74 to include out-of-state and federal crimes carrying a possible prison term in excess of one year.

Because the conduct that led to the defendant’s conviction of capital felony in the present case occurred in 1992, long after the legislature expanded the meaning of “felony” to include out-of-state felonies, a literal application of the relevant statutory language to the facts of this case compels the conclusion that the defendant’s conviction for the criminal sale of a controlled substance pursuant to N.Y. Penal Law § 220.34 is a “felony” within the meaning of § 53a-46a (h) (1). Despite its facial applicability, however, the defendant maintains that the legislature did not intend for that expanded definition of the term “felony” to apply to § 53a-46a (h) (1). The defendant advances three arguments in support of his claim. First, the defendant claims that, because the legislature made express reference to out-of-state felony convictions in subdivision (2) of § 53a-46a (h),63 its failure to do so in subdivision (1) of § 53a-46a (h) indicates that the legislature intended to exclude out-of-state felonies from subdivision (1). Second, the defendant claims that the primary purpose of the legislation that enlarged the definition of the term “felony,” namely, P.A. 75-380, entitled “An Act Concerning the Offenses with Firearms,” was to create enhanced mandatory minimum penalties for certain designated offenses when those offenses are committed with a firearm,64 and that there is nothing in the *75 text of P.A. 75-380 to suggest that it was intended to enlarge the scope of the death penalty in any way. Third, the defendant claims that legislative amendments to our death penalty statutory scheme invariably are accompanied by considerable legislative debate, and because the legislative history of P.A. 75-380 contains no such debate,65 we cannot conclude that the legislature intended to change the definition of the term “felony” as that term is used in § 53a-46a (h) (1). None of these arguments provides persuasive support for the interpretation advanced by the defendant.

The defendant first claims that if the legislature had intended for the “same felony” requirement of § 53a-46a (h) (1) to apply to convictions for out-of-state felonies, the legislature would have used the language that it used in § 53a-46a (h) (2), which requires proof that the defendant, prior to committing the capital felony, had been convicted of a certain number and kind of “federal” or “state” offenses “for . . . which a penalty of more than one year imprisonment may be imposed . . . .” General Statutes (Rev. to 1991) § 53a-46a (h) (2). We agree with the defendant that the legislature evidently did intend to exclude out-of-state felony convictions from the coverage of § 53a-46a (h) (1) when that provision first was enacted in 1973 as part of P.A. 73-173, § 4, and codified at General Statutes (Rev. *76 to 1975) § 53a-46a (g) (1), because, as we have explained, at that time, the statutory definition of the term “felony” included felonies committed in this state only. See General Statutes (Rev. to 1975) § 53a-24 (a). We must presume, therefore, that, in 1973, the legislature used the term “same felony” in subdivision (1), rather than the language that it used in subdivision (2), because it intended for the aggravating factor of subdivision (1), in contrast to the aggravating factor of subdivision (2), to apply only to prior Connecticut felony convictions.

That the legislature apparently intended to limit the scope of the term “same felony” when P.A. 73-173, § 4, was enacted in 1973, however, provides no support for the defendant’s argument. As we have explained, the legislature enlarged the definition of “felony” in 1975 to include out-of-state felonies; P.A. 75-380, § 15, codified at General Statutes (Rev. to 1977) § 53a-24 (a); see also General Statutes § 53a-25 (a) (defining term “felony” as “[a]n offense [as defined in § 53a-24 (a)] for which a person may be sentenced to a term of imprisonment in excess of one year”); and there is nothing in the relevant statutoiy language or history to suggest that the expanded definition of “felony” is not applicable to § 53a-46a (h) (1). Indeed, it makes perfect sense that the legislature, having decided to include out-of-state and federal felonies in the group of felonies qualifying under § 53a-46a (h) (2), also would have chosen to include out-of-state and federal felonies in the group of felonies qualifying under § 53a-46a (h) (1). We therefore reject the defendant’s argument predicated on the language of § 53a-46a (h) (2).

The defendant next contends that because the legislature, in enacting P.A. 75-380, primarily was concerned with setting mandatory minimum penalties for certain offenses involving the use of firearms, it could not have intended for that act to bear upon the death penalty. *77 We disagree. We note, first, that there is absolutely nothing in P.A. 75-380 to indicate that the legislature intended to limit the definition of “offense,” and thus the definition of “felony,” to the offenses established by the act. Indeed, the defendant makes no such claim. Rather, the defendant apparently argues that § 53a-46a (h) (1) is the only provision of our Penal Code to which the expanded definition of “offense” does not apply. There simply is no reason to presume, however, that the legislature intended for that definition to apply in all but one instance. In fact, General Statutes § 53a-266 dictates the opposite conclusion. General Statutes § 53a-2 provides in relevant part that “[t]he provisions of [title 53a of the General Statutes] shall apply to any offense defined in [title 53a] of the general statutes, unless otherwise expressly provided or unless the context otherwise requires ....’' (Emphasis added.) Sections 53a-24, 53a-25 and 53a-46a all fall within title 53a of the General Statutes.67 There is nothing either express or implied in any provision of our statutes to indicate that §§ 53a-24 and 53a-25 do not apply to § 53a-46a (h) (1), and there is no contextual support for the defendant’s contention. Consequently, § 53a-2 renders the defendant’s argument unavailing.

The defendant’s argument would fail even in the absence of § 53a-2, moreover, because it flies in the face of well established principles of statutory construction. “In interpreting statutes . . . [w]e presume that laws are enacted in view of existing relevant statutes . . . and that [sjtatutes are to be interpreted with regard to other relevant statutes because the legislature *78 is presumed to have created a consistent body of law.” (Internal quotation marks omitted.) State v. Miranda, 260 Conn. 93, 131, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002). “An identical term used in [statutory provisions] pertaining to the same subject matter should not be read to have differing meanings unless there is some indication from the legislature that it intended such a result.” (Internal quotation marks omitted.) Nancy G. v. Dept. of Children & Families, 248 Conn. 672, 686, 733 A.2d 136 (1999). These presumptions apply with particular force to the present case because §§ 53a-24 and 53a-25 are definitional provisions of general applicability. Consequently, the possibility that the legislature intended for those statutory provisions to be applied selectively rather than universally is especially remote.

Finally, the legislature had completed its post-Fur-man68 revision of our death penalty statutes just two years prior to amending § 53a-24 in 1975. In light of the brief interval between the revisions to Connecticut’s death penalty statutory scheme in 1973 and the amendment to § 53a-24 (a) in 1975, it is difficult to imagine that the legislature would have declined to exclude § 53a-46a (h) (1) from the purview of General Statutes (Rev. to 1975) § 53a-24 (a), as amended by P.A. 75-380, § 15, if the legislature had intended to limit the scope of § 53a-24 (a) in that manner.

The defendant’s last argument also is unpersuasive. Although it undoubtedly is true that modifications to our death penalty statutory scheme generally are accompanied by spirited legislative debate, we simply cannot place on the absence of such debate the conclusive weight that the defendant’s argument would require. In light of the clarity of the language of the *79 statute, the fact that our death penalty legislation is as much a part of our Penal Code as any other part, and the fact that the application of the language yields reasonable results in keeping with the general purposes of our death penalty statutes, we cannot conclude that the absence of debate trumps all other factors ordinarily applied in the process of statutory construction. In sum, we cannot conclude that the legislature did not mean what its language plainly appears to mean simply because of the absence of legislative history affirming that meaning. Of course, this court frequently reviews statutory history as an aid in determining the meaning of particular statutory language. This court, however, never has suggested that a statute may be interpreted as the defendant would have us construe § 53a-46a (h) (1), that is, in complete disregard of its clear, unambiguous and reasonable import due solely to the absence of any legislative history substantiating that clear and rational meaning. Thus, we recently have reiterated that “[rjeliance on legislative silence is misplaced. It is a basic tenet of statutory construction that we rely on the intent of the legislature as that intent has been expressed.” (Internal quotation marks omitted.) Spears v. Garcia, 263 Conn. 22, 34, 818 A.2d 37 (2003), quoting Dept. of Social Services v. Saunders, 247 Conn. 686, 706, 724 A.2d 1093 (1999). Indeed, to rely on the absence of legislative history, as the defendant proposes we do in the present case, would turn the process of statutory construction on its head. More importantly, we would be exceeding our constitutional limitations by infringing on the prerogative of the legislature to set public policy through its statutory enactments.

Finally, there is compelling reason to reject the statutoiy construction advanced by the defendant, namely, that the state’s contrary interpretation furthers the fundamental purpose of § 53a-46a (h) (1), whereas the defendant’s construction is inconsistent with that pur *80 pose. It is apparent that § 53a-46a (h) (1) comprises part of our capital sentencing scheme because the legislature believed that a person who has been convicted of a noncapital felony, and who then commits a capital felony while committing the same noncapital felony for which he already has been convicted, falls within a small class of especially culpable recidivists who deserve to be eligible for the death penalty.69 The fact that a defendant may have been convicted of the same felony in federal court or the court of another state does not detract from the seriousness of that defendant’s conduct because, by definition, that prior felony is no different from the felony that the defendant committed or attempted to commit in this state during the commission of the capital felony. In other words, the legislative purpose behind the aggravating factor enumerated in § 53a-46a (h) (1) is promoted to the same extent regardless of whether the defendant’s prior felony was successfully prosecuted in Connecticut, another state or under federal law. By contrast, the statutory interpretation proposed by the defendant undermines the objective behind § 53a-46a (h) (1) by eliminating from its coverage a class of defendants with prior, out-of-state felony convictions, who are equally as culpable, for purposes of the aggravating factor, as those defendants with the same prior in-state felony convictions. In our view, it would be untenable for us to distinguish between these two classes of defendants in the absence of legislative intent to the contrary. We construe statutes so as not to thwart their intended purpose; e.g., *81 BEC Corp. v. Dept. of Environmental Protection, 256 Conn. 602, 622, 775 A.2d 928 (2001); and in a manner that will not lead to bizarre or irrational consequences. E.g., Modern Cigarette, Inc. v. Orange, 256 Conn. 105, 120, 774 A.2d 969 (2001). We therefore reject the defendant’s contention that an out-of-state felony cannot satisfy the “same felony” element of § 53a-46a (h) (1).

This conclusion does not end our inquiry, however, for we still must determine whether, for purposes of § 53a-46a (h) (1), the felony that the defendant committed during the commission of the capital felony, namely, sale of a narcotic substance, is the same as the New York felony for which he was convicted in 1989. We conclude that it is.

Again, our inquiry is one of statutory construction. Because the term “same” is not statutorily defined, we look to the commonly approved meaning of the word as defined in the dictionary. See, e.g., Perodeau v. Hartford, 259 Conn. 729, 736, 792 A.2d 752 (2002). The word “same” is defined as “resembling in every way: not different in relevant essentials at one time . . . conforming in every respect . . . corresponding so closely as to be indistinguishable: closely similar: comparable . . . .” Webster’s Third New International Dictionary.

Having determined that the term “same felony” in § 53a-46a (h) (1) encompasses out-of-state felonies, we conclude that our legislature likely did not intend to impose a requirement that the title and wording of the out-of-state provision under which the defendant previously had been convicted be identical to the title and wording of the Connecticut statutory provision that embraces the felony that the defendant is alleged to have committed or to have attempted to commit during the commission of the capital felony. The legislature *82 undoubtedly was aware that the penal statutes of other states generally are not precisely the same as the analogous statutory provisions of this state. More importantly, however, those linguistic differences frequently will have no bearing on whether a particular out-of-state felony reasonably may be considered the “same felony” within the meaning and purpose of § 53a-46a (h) (1). In other words, when viewed in context, the word “same” cannot mean exactly the same in all respects, whether the difference in the language of the statutes is material or immaterial.

We therefore conclude that, for purposes of § 53a-46a (h) (1), the term “same felony” means a felony that is the same in all material respects as the felony that is committed in this state during the commission of the capital felony. That requirement is fully satisfied only if the two felonies share the same essential elements.70 Inasmuch as the trial court properly concluded that the essential elements of the offense of sale of a narcotic substance in violation of § 21a-277 (a) are the same as the essential elements of the offense of criminal sale of a controlled substance in the fourth degree in violation of N.Y. Penal Law § 220.34 (McKinney 1980),71 we reject the defendant’s claim that those two offenses are not the “same felony” within the meaning of § 53a-46a (h) (!)•

*83 3

The Right to a Jury Determination on the Existence of the Aggravating Factor Enumerated in § 53a-46a (h) (1)

The defendant claims that the trial court improperly deprived him of his right to have the jury decide all of the factual issues relating to the existence of the aggravating factor of § 53a-46a (h) (1) and, in so doing, also improperly relieved the state of its burden of proving all of the elements of that aggravating factor beyond a reasonable doubt. We disagree.

With respect to the requirement of § 53a-46a (h) (1) that the defendant previously have been convicted of the “same felony” that he committed or attempted to commit during the commission of the capital felony, the state relied on the defendant’s stipulation that he has a prior felony conviction in New York for the sale of a controlled substance.72 Although the defendant did not dispute his conviction under N.Y. Penal Law § 220.34, he did not agree that the offense enumerated therein and the offense that the state alleged he was attempting to commit when he shot and killed Williams, were the “same felony” within the meaning of § 53a-46a (h) (l).73 See part III A 2 of this opinion.

*84 At the conclusion of the penalty phase hearing, the court charged the jury on the elements of § 53a-46a (h) (1) as follows: “The first statutory aggravant alleged is that the defendant committed the offense of capital felony during an attempt to commit a felony, specifically, a violation of § 21a-277 (a) of the General Statutes, in that the defendant was attempting to sell to another person a narcotic substance, cocaine, specifically in this case crack cocaine, and [that] he had been previously convicted of the same felony. The state has the burden of proving each and every element of [the] aggrava[ting] [factor] beyond a reasonable doubt.”

The court next instructed the jury on the crime of sale of a narcotic substance in violation of § 21a-277 (a)74 and explained that, if the state had satisfied its burden of proving that the defendant had committed or had attempted to commit that felony, then the jury also was required to determine whether the evidence established that the defendant had murdered Williams during the commission of that felony. The court then informed the jury: “ [T] o find that the defendant commit *85 ted this [§ 53a-46a (h) (1)] aggravant, you would first have to find that, at some point in time prior to the commission of the above stated attempt to commit a violation of § 2la-277 (a), the defendant had previously been charged with and convicted of the same felony which he allegedly attempted in this instance. As you recall, the parties have agreed and stipulated that the defendant had previously been convicted in New York of the crime of sale of a controlled substance in the fourth degree and that that crime is a felony. I charge you further that, for the purpose of this matter, the essential elements of [the] sale of a controlled substance in the fourth degree and § 2 la-277 (a) of our General Statutes, inasmuch as they relate to the sale of narcotics, are the same. Thus, for your purpose, the two felonies are the same. So if you find the prior elements of that aggravant proven beyond a reasonable doubt, as I’ve explained them to you, you may consider this final element proven also, that is, that the defendant was previously convicted of the same felony attempt in this mMter.”75 (Emphasis added.)

The defendant contends that he was entitled to have the jury, rather than the court, decide whether the criminal sale of a controlled substance in the fourth degree, *86 of which the defendant was convicted in 1989, and the felony that the jury found he was attempting to commit when he fatally shot Williams, were the “same felony” within the meaning of § 53a-46a (h) (1). Although the defendant acknowledges that it is the province of the trial court to ascertain the elements of the two offenses and to instruct the jury on those elements,76 he claims that the issue of whether the two sets of elements are the same for purposes of § 53a-46a (h) (1) is a factual one for the jury. In other words, the defendant contends that the jury, not the trial court, should have compared the elements of the two offenses to determine whether the state had satisfied the “same felony” element of § 53a-46a (h) (1).

We agree with the trial court that the issue of whether the two narcotics offenses constitute the “same felony” for purposes of § 53a-46a (h) (1) is an issue to be resolved by the court, not the jury. The process of statutory interpretation in no way implicates the fact-finding function of the jury but, rather, presents a pure question of law. Consequently, it is a matter within the sole province of the court. The process of comparing statutory provisions to determine whether they are the “same” within the meaning of a third statute is no more a fact-based inquiry than determining the elements of the offenses enumerated therein.77 We therefore reject *87 the defendant’s contention that the trial court improperly concluded that the court, not the jury, was responsible for determining whether the two offenses constituted the “same felony” within the meaning of § 53a-46a (h) (1).*

4

The Sufficiency of Evidence of the Defendant’s Attempt to Commit the Crime of Sale of a Narcotic Substance During the Course of Committing the Capital Felony

The defendant next claims that the evidence was insufficient to support the jury’s finding that the state had proven the elements of § 53a-46a (h) (1) beyond a reasonable doubt. Specifically, the defendant claims that, at most, the evidence supported a finding that he was committing “the felony of attempted possession of cocaine with the intent to sell” when he was stopped by Williams, and not that he was attempting to sell cocaine. This claim also is without merit.

“[B]ecause of the seriousness of any death penalty determination, we will subject a finding of an aggravating factor to the same independent and scrupulous examination of the entire record that we employ in our review of constitutional fact-finding, such as the voluntariness of a confession ... or the seizure of a defendant.” (Citations omitted.) State v. Ross, supra, 230 Conn. 259. “However, [e]ven with the heightened appellate scrutiny appropriate for a death penalty case, the defendant’s challenge to the sufficiency of the evidence of aggravating circumstances must be reviewed, in the final analysis, by considering the evidence presented at the defendant’s penalty hearing in the light most favorable to sustaining the facts impliedly found *88 by the jury. . . . Furthermore, [i]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with [the existence of the aggravating factor] and is not required to draw only those inferences consistent with [its nonexistence]. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Citation omitted; internal quotation marks omitted.) State v. Johnson, 253 Conn. 1, 64, 751 A.2d 298 (2000).

On the basis of the evidence adduced by the state at the penalty phase hearing, the jury reasonably could have found that, in the early morning hours of December 18, 1992, both the defendant and Crawford, members of the same drug trafficking organization, were each in possession of approximately 175 bags of cocaine, worth about $3500, for sale to a person who resided on Locust Street in Waterbury. The defendant also was carrying a loaded .38 caliber semiautomatic pistol in his right coat pocket. The two men were walking to the Locust Street address to consummate the drug sale when they were approached by Williams, who ordered them to stop and place their hands on his cruiser. Crawford ignored Williams’ command and walked away. The defendant stopped and placed his left hand on the cruiser, but refused to take his right hand out of his coat pocket, where his gun was concealed. When Williams forcibly tried to remove the defendant’s right hand from the defendant’s pocket, the defendant turned and shot Williams in the head to avoid the discovery of the weapon and the cocaine. These facts amply support the jury’s determination that the defendant shot and killed Williams while he and Crawford were involved in an attempt to sell a narcotic substance, namely, cocaine.

*89 We agree with the defendant insofar as he claims that the evidence was sufficient to warrant a finding that the capital felony occurred during the defendant’s commission of the crime of possession of cocaine with intent to sell. See State v. Robinson, 227 Conn. 711, 743, 631 A.2d 288 (1993) (single act may violate elements of more than one criminal statute). The fact that the evidence was sufficient to establish that the defendant was committing the felony of possession of a narcotic substance with intent to sell when he committed the capital felony does not militate against a finding of the existence of the aggravating factor enumerated in § 53a-46a (h) (1), however, in view of the fact that the jury properly determined that the defendant also was committing the felony of attempted sale of a narcotic substance when he committed the capital felony and previously had been convicted of that same felony. We therefore reject the defendant’s evidentiary sufficiency claim.

B

Issues Concerning the Aggravating Factor Enumerated in § 53a-46a (h) (4)

1

Evidentiary Insufficiency

The defendant contends that the evidence was insufficient to establish beyond a reasonable doubt that he murdered Officer Williams in an “especially heinous, cruel or depraved manner,” as required under § 53a-46a (h) (4). Specifically, the defendant claims that the jury reasonably could not have concluded that he had the intent necessary to satisfy that aggravating factor. We agree with the defendant.78

*90 “Before we review the evidence adduced by the state [in the present case], we again define the standard by which it is to be measured. As we acknowledged in [Breton I, supra, 212 Conn. 265], the phrase ‘in an especially heinous, cruel or depraved manner’ from § 53a-46a (h) (4) contains an arguably subjective standard that runs the risk of being unconstitutionally vague. Therefore, to avoid constitutional jeopardy [in connection with] this aggravating factor, we adopted a limiting construction of that statutory language. Focusing on the meaning of ‘especially cruel,’ we concluded that an acceptable core construction of this term ‘must include the intentional infliction of extreme pain or torture above and beyond that necessarily accompanying the underlying killing.’ ” State v. Johnson, supra, 253 Conn. 65, quoting Breton I, supra, 270. This extreme, additional pain or torture can be physical or, as the state alleged and the jury found in the present case, psychological.79 E.g., State v. Ross, supra, 230 Conn. 262. Thus, “in reviewing the sufficiency of the evidence to support *91 the jrny’s finding of [the] aggravating factor [of] § 53a-46a (h) (4), [we must determine] whether the state has proved, beyond a reasonable doubt, that the defendant engaged in intentional conduct that inflicted extreme . . . psychological pain or torture on [Williams] above and beyond that necessarily accompanying the underlying killing, and that the defendant specifically intended to inflict such extreme pain and torture.”80 (Emphasis in original.) State v. Johnson, supra, 66.

The defendant contends that the state failed to establish beyond a reasonable doubt that he intended to inflict extreme psychological pain or torture on Williams above and beyond that necessarily accompanying the murder.81 The state counters that the jury was entitled to make such a finding on the basis of evidence establishing that the defendant, after shooting Williams in the head from close range, continued to fire six additional gunshots at Williams as the defendant fled the crime scene. The state maintains that the evidence of intent, although circumstantial, was sufficient to establish beyond a reasonable doubt that the defendant had fired the additional gunshots not with an intent to kill Williams but, rather, with an intent to terrorize him for the purpose of torturing him psychologically.

*92 “In reviewing a claim that the evidence failjed] to support the finding of an aggravating factor specified in [§ 53a-46a (h)]; General Statutes (Rev. to 1991) § 53a-46b (b) (2) [as amended by Public Acts 1992, No. 92-260, § 23] ;82 we subject that finding to the same independent and scrupulous examination of the entire record that we employ in our review of constitutional fact-finding, such as the vohmtariness of a confession; State v. Medina, 228 Conn. 281, 294, 636 A.2d 351 (1994); State v. Smith, [supra, 200 Conn. 478]; or the seizure of a defendant. State v. Greenfield, 228 Conn. 62, 68-69, 634 A.2d 879 (1993); State v. Northrop, 213 Conn. 405, 414, 568 A.2d 439 (1990). State v. Ross, [supra, 230 Conn. 259].” (Internal quotation marks omitted.) State v. Johnson, supra, 253 Conn. 64. In such circumstances, we axe required to determine whether the factual findings are supported by substantial evidence. E.g., State v. Medina, supra, 294; State v. Smith, supra, 478.

“Even with the heightened appellate scrutiny appropriate for a death penalty case, the defendant’s challenge to the sufficiency of the evidence of aggravating circumstances must be reviewed, in the final analysis, [first] by considering the evidence presented at the defendant’s penalty hearing in the light most favorable to sustaining the facts impliedly found by the jury.” State v. Ross, supra, 230 Conn. 264. “Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established [the existence of the aggravating factor] beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that *93 of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 732, 759 A.2d 995 (2000).

“Furthermore, [i]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with [the existence of the aggravating factor] and is not required to draw only those inferences consistent with [its nonexistence], The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Johnson, supra, 253 Conn. 64.

“Because [t]he only kind of an inference recognized by the law is a reasonable one [however] . . . any such inference cannot be based on possibilities, surmise or conjecture. ... It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence. . . . [T]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment.” (Citations omitted; internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 338-39, 746 A.2d 761 (2000); accord State v. Niemeyer, 258 Conn. 510, 518, 782 A.2d 658 (2001).

*94 “[Finally], [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes [the existence of an aggravating factor] in a case involving substantial circumstantial evidence. . . . Indeed, direct evidence of the [defendant’s] state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” (Citation omitted; internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 239-40, 745 A.2d 800 (2000); accord State v. Niemeyer, supra, 258 Conn. 517-18. Guided by these principles, we turn to the merits of the defendant’s claim.

Viewed in the light most favorable to the state, the evidence that the state adduced at the penalty phase hearing established that, while Williams was attempting to subdue the defendant, the defendant bumped Williams in the chest to determine whether Williams was wearing a bulletproof vest. Upon ascertaining that, in fact, Williams was wearing a protective vest, the defendant removed a .38 caliber semiautomatic pistol from his pocket, turned and shot Williams in the head from a distance of one to two feet. The defendant immediately fled and, as he was running away, fired six additional gunshots in Williams’ direction.83 The defendant *95 ran to Karen Smith’s apartment and, upon arrival, told Robert Bryant that he had shot Williams in the head when he realized that Williams was wearing a bulletproof vest. When Anthony Crawford asked the defendant why he shot Williams, the defendant responded: “[M]y mother didn’t name [me] ‘Kilt’ for nothing.”

The state claims that, in view of the fact that the defendant shot Williams in the head from such close range, it was reasonable for the jury to conclude that, as the defendant fled, he knew that Williams lay helpless in the street, dying. The state further contends that, because the jury reasonably could have found that the defendant was aware that Williams had been fatally wounded, it also was proper for the jury to infer that the defendant fired the additional gunshots with an intent to torture Williams psychologically and not with an intent to kill him. The state points to no other evidence in support of its claim.

There can be no doubt that the evidence supported a finding that the defendant shot Williams in the head with the intent to kill him.84 It also would have been reasonable for the jury to conclude that the defendant probably concluded that Williams was grievously wounded when the defendant turned and fired the additional gunshots in Williams’ direction. Under the circumstances, however, we are not persuaded that the facts warrant a reasonable inference that the defendant fired those additional gunshots with the specific intent of psychologically torturing Williams. In other words, we are not convinced that the correlation between the facts and the conclusion that the defendant had intended to torture Williams psychologically is sufficient to support that inference with the requisite degree of certainty.

*96 The only logical inference to be drawn from the evidence is that the defendant ran from the scene in fear that he would be seen or apprehended, and that he turned and fired toward Williams because he could not be sure that he had killed Williams, or even that he had fully disabled him. Because the defendant fled immediately after seeing Williams fall to the ground, the only reasonable inference is that the defendant did not know for sure whether Williams was too seriously wounded either to unholster his weapon and fire at the defendant as he fled or to seek assistance in apprehending the defendant via radio or by hailing a passerby. Moreover, because the defendant fled so quickly after shooting Williams in the head, the defendant could not be positive that Williams’ wound, though grave, necessarily was fatal. In view of the fact that Williams, if he survived, potentially could have identified the defendant as his assailant, it is very likely that the defendant continued to fire as he ran in hopes that one or more of those gunshots would strike and kill Williams in the event that Williams was not already mortally wounded.

Contrary to the state’s claim, the evidence does not reasonably support the conclusion that the defendant continued to fire at Williams with the intent to torture him psychologically. To reach such a conclusion, it would be necessary for a fact finder to infer, on the basis of the defendant’s conduct, that the defendant’s state of mind changed from an intent to kill to an intent to torture in the brief interval between the point at which the defendant shot Williams in the head and the point at which the defendant fired the additional gunshots in Williams’ direction while fleeing the crime scene.85 In light of the extraordinarily exigent circum *97 stances that the defendant had created for himself and the exceedingly short time frame during which he could react to those circumstances, the inference that the defendant intended to torture Williams simply is not reasonable even when the evidence is viewed most favorably toward the state’s case.

Of course, “[p]roof of a material fact by inference from circumstantial evidence need not be so conclusive as to exclude every other hypothesis. . . . Thus, in determining whether the evidence supports a particular inference, we ask whether that inference is so unreasonable as to be unjustifiable. ... In other words, an inference need not be compelled by the evidence; rather, the evidence need only be reasonably susceptible of such an inference.” (Internal quotation marks omitted.) State v. Niemeyer, supra, 258 Conn. 518-19. As we have indicated, however, we are not persuaded that the evidence in the present case is reasonably susceptible of an inference that the defendant intended to torture Williams.

We acknowledge that it probably would not have been impossible for the defendant to have formulated the intent to torture Williams in the extremely brief period of time between the firing of the first shot and the firing of the additional gunshots. An inference is not legally supportable, however, merely because the scenario that it contemplates is remotely possible under the facts. To permit such a standard would be to sanction fact-finding predicated on mere conjecture or guesswork. Proof by inference is sufficient, rather, only “if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact.” (Emphasis added; internal quotation marks omitted.) Id., 519. Under the circumstances of the present case, the likelihood that the defendant had changed his intent in the brief interval that separated the first shot from the remaining gunshots simply is *98 too remote to be reasonable. We therefore agree with the defendant that the evidence was insufficient to establish the existence of the aggravating factor enumerated in § 53a-46a (h) (4).86

2

Denial of the Defendant’s Prepenalty Phase Motion to Dismiss the Aggravating Factor Enumerated in § 53a-46a (h) (4)

The defendant next claims that the panel improperly denied his prepenalty phase motion to dismiss the aggravating factor enumerated in § 53a-46a (h) (4)87 on the ground of evidentiary insufficiency. We disagree.

*99 The following facts and procedural history are relevant to our disposition of the defendant’s claim. Prior to the penalty phase hearing, the defendant moved to dismiss, inter alia, the aggravating factor enumerated in § 53a-46a (h) (4) on the ground that the “[e]vidence adduced at [his] trial and at other relevant court proceedings as well as discovery provided by the [s]tate” demonstrated that the state could not establish that the defendant had intentionally inflicted physical pain and torture upon Williams above and beyond that necessarily accompanying the killing. The panel denied the defendant’s motion.88 During the ensuing penalty phase hearing, the state sought to introduce into evidence a number of autopsy photographs for the purpose of assisting the jury in understanding the nature of the gunshot wound that Williams had sustained and the pain and suffering that he had endured. The trial court permitted the state to introduce some of the autopsy photographs but sustained the defendant’s objections to several other photographs.89 Among the photographs admitted into evidence was a particularly graphic photograph that depicted Williams’ head with his scalp peeled back to expose his skull.

In view of the gruesome nature of the autopsy photographs, the trial court cautioned the jury in relevant part as follows: “[P]art of the evidence consists of . . . slides of the deceased. I would just point out these slides are not offered for their emotional impact but the nature and the extent and the severity of injuries suffered by [Williams]. Emotional impact of the photos should have absolutely no effect on your consideration now and your consideration during deliberation. Cer *100 tainly, you don’t see photos of this nature every day. You don’t see a deceased party in various medical intervention that takes place, so it certainly will have an effect and that’s normal. What I’m saying is it should play no part whatsoever in your deliberations and I think you all understand that. And, in fact, the state doesn’t offer them for any other purpose other than issues in this case, not for emotional impact.”

At the conclusion of the state’s evidence on the aggravating factors, the defendant renewed his motion to dismiss the aggravating factor enumerated in § 53a-46a (h) (4). The trial court granted the defendant’s motion limited to the state’s claim regarding the defendant’s alleged intentional infliction of extreme physical pain or torture. Accordingly, the court thereafter instructed the jury that “there is no claim by the state that there exists evidence in this case of the intentional infliction of extreme physical pain beyond that necessarily accompanying the underlying killing.” The court then instructed the jury on the law applicable to the state’s claim concerning the existence of the aggravating factor enumerated in § 53a-46a (h) (4) by virtue of the defendant’s allegedly intentional infliction of extreme psychological pain or torture beyond that necessary to accomplish the killing.

On appeal, the defendant contends that the panel improperly declined to dismiss, in advance of the penalty phase hearing, the aggravating factor enumerated in § 53a-46a (h) (4), on the ground that the evidence was insufficient to establish that the defendant intentionally inflicted extreme physical pain or torture beyond that necessary to accomplish the killing. The defendant further claims that he was prejudiced by the panel’s denial of his motion in advance of the penalty phase hearing because the autopsy photographs that were admitted at that hearing were both prejudicial and irrelevant to any other issue in the case.

*101 Contrary to the defendant’s claim, we are aware of no authority, and the defendant has presented us with none, in support of his assertion that he was entitled to have the panel engage in a prepenalty phase evaluation of the evidentiary sufficiency of one or more of the aggravating factors alleged by the state. Indeed, as a general rule, a capital defendant is not entitled to any such prepenalty phase determination with respect to the evidentiary sufficiency of the aggravating factors alleged by the state. Cf. State v. Solek, 242 Conn. 409, 431, 699 A.2d 931 (1997) (“[there is] no authority aside from the constitutionally required hearing in probable cause . . . that entitles a defendant to a pretrial judicial determination of ineligibility for the death penalty” [citation omitted]).

Moreover, the photographs were relevant to the state’s claim that the defendant had intentionally inflicted extreme psychological pain or torture on Williams beyond that necessary to accomplish the killing. In order to prove the existence of the aggravating factor enumerated in § 53a-46a (h) (4), the state sought to establish that Williams was conscious and, consequently, was able to experience the terror of hearing six additional gunshots90 being fired at him as he lay critically wounded in the street. In order to show that Williams had suffered extreme psychological torture, the state also had to prove that Williams, despite having been shot at from close range, nevertheless retained the capacity to hear those additional gunshots. To establish that fact, the state adduced testimony from several expert witnesses regarding the precise nature of Williams’ injury and the effect that his wound likely would have had on his ability to hear and to understand what was going on around him immediately after suffering the gunshot wound to his head. Inasmuch as the autopsy photographs revealed the location and extent of Wil *102 liams’ gunshot wound, they were particularly relevant to the jury’s consideration of the expert testimony and generally relevant to the issue of Williams’ psychological suffering. Although there exists a heightened concern for the potential prejudice that may arise from the use of inflammatory photographs in capital cases; see State v. Ross, supra, 230 Conn. 277; “even gruesome photographs are admissible if they would prove or disprove a material fact in issue, or illuminate a material inquiry.”91 Id.

Finally, the trial court strongly cautioned the jurors about the graphic nature of the photographs of Williams and emphasized that they should take particular care to guard against any unduly emotional reaction. Such an instruction likely reduced any possible prejudice to the defendant that might have arisen from the state’s use of the photographs.92 We conclude, therefore, that *103 the defendant cannot prevail on his claim that he was entitled to the prepenalty phase dismissal of the aggravating factor enumerated in § 53a-46a (h) (4) on the ground that the evidence was insufficient, to establish that the defendant had intentionally inflicted extreme physical pain or torture beyond that necessary to accomplish the murder.

C

The Court’s Instructions on Reasonable Doubt

The defendant claims that the trial court’s instructions on reasonable doubt93 improperly diluted the *104 state’s burden of proving the existence of the aggravating factors in violation of his federal constitutional right to a fair trial. Specifically, the defendant challenges the following portions of the trial court’s charge on the meaning of reasonable doubt: (1) “[a] reasonable doubt is not a doubt . . . suggested by the ingenuity of counsel”; (2) “[a reasonable doubt] is a doubt for which you can in your own mind conscientiously give a reason”; (3) “[a] [Reasonable doubt . . . is areal doubt, an honest doubt, a doubt which has its foundation in the evidence or the lack of evidence”; and (4) “[a reasonable doubt is] the kind of doubt which in the serious affairs which concern you in everyday life you would pay heed to and attention to.” The defendant’s claim is meritless.94

*105 “It is fundamental that proof of guilt in a criminal case must be beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) .... The [reasonable doubt concept] provides concrete substance for the presumption of innocence— that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law. . . . [Id.], 363. At the same time, by impressing upon the [fact finder] the need to reach a subjective state of near certitude of the guilt of the accused, the [reasonable doubt] standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself. Jackson v. Virginia, [443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)]. [Consequently] [t]he defendants in a criminal case are entitled to a clear and unequivocal charge by the court that the guilt of the defendants must be proved beyond a reasonable doubt. . . .

“In determining whether a trial court’s charge satisfies constitutional requirements, however, individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper *106 verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.” (Citation omitted; internal quotation marks omitted.) State v. Griffin, 253 Conn. 195, 205-206, 749 A.2d 1192 (2000).

As the defendant acknowledges, this court previously has applied this standard of review in rejecting claims identical in all material respects to those advanced by the defendant. E.g., State v. Velasco, 253 Conn. 210, 249, 751 A.2d 800 (2000) (rejecting constitutional challenge to instruction that reasonable doubt is “a real doubt, an honest doubt, a doubt which has its foundation in the evidence or lack of evidence” [internal quotation marks omitted]); State v. Griffin, supra, 253 Conn. 205 (rejecting constitutional challenge to instruction that reasonable doubt is “such a doubt, as in serious affairs that concern you, you would heed, that is, such a doubt as would cause reasonable men and women to hesitate to act in matters of importance” [internal quotation marks omitted]); State v. Lewis, 245 Conn. 779, 816, 717 A.2d 1140 (1998) (rejecting constitutional challenge to instruction that reasonable doubt is doubt “for which you can in your own mind conscientiously give a reason” [internal quotation marks omitted]); State v. Taylor, 239 Conn. 481, 504, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997) (rejecting constitutional challenge to instruction that reasonable doubt “is [not] a doubt suggested by the ingenuity of counsel” [internal quotation marks omitted]).95 The defendant has presented no persuasive rea *107 son why the challenged language, when viewed in the broader context of the court’s otherwise proper charge on reasonable doubt, dilutes the state’s burden of proving the existence of the aggravating factors. We therefore reject the defendant’s claim of instructional impropriety.

D

Effect of the Jury’s Invalid Finding as to the Existence of One Aggravating Factor on the Jury’s Finding as to the Existence of Another Aggravating Factor

The defendant next claims that he is entitled to a new penalty phase hearing on the existence of the aggravating factor enumerated in § 53a-46a (h) (l)96 in light of our determination that the evidence was insufficient to support the jury’s finding that the state had proven the existence of the aggravating factor of § 53a-46a (h) (4) beyond a reasonable doubt. In essence, the defendant contends that the jury’s finding with respect to the aggravating factor of § 53a-46a (h) (1) necessarily was tainted by its unsupported finding of the existence of the aggravating factor of § 53a-46a (h) (4). We disagree.

In State v. Webb, 238 Conn. 389, 479-83, 680 A.2d 147 (1996) (Webb I), we addressed an issue virtually identical to the issue raised by the defendant’s claim97 *108 and concluded that harmless error analysis applies in circumstances, such as those in the present case, in which the jury’s finding of the existence of one aggravating factor is invalid and the jury’s finding of the existence of another aggravating factor is not otherwise invalid. We concluded in Webb that the determination of whether the impropriety surrounding the invalid aggravating factor improperly affected the jury’s finding with respect to the existence of the valid aggravating factor is to be made on a case-by-case basis. Id., 483 n.63.

Contrary to the defendant’s claim, the state has demonstrated beyond a reasonable doubt that the jury’s finding concerning the existence of the aggravating factor of § 53a-46a (h) (4) did not improperly affect its finding concerning the existence of the aggravating factor of § 53a-46a (h) (1). Our reasoning in Webb is equally applicable in the present case. First, “the two aggravants are logically and factually distinct, and the trial court’s instructions properly presented the aggravants as separate matters for the jury’s consideration. In this connection . . . the trial court expressly instructed the jury that the state was required to prove only one aggravating factor .... Moreover, the trial court gave separate instructions concerning each aggravant and marshaled the evidence related to each aggravant separately.” Id., 482. Furthermore, “overwhelming evidence supported the jury’s finding of the aggravating factor set forth in § 53a-46a (h) (1). To find this factor, the jury was required to conclude only that the murder of the victim occurred in the course of an attempted [sale of a narcotic substance]. The evidence in th[e] [present] case unequivocally supports] the jury’s conclusion that the defendant murdered [Officer Williams] during the commission of ... an attempted [narcotics sale].”98 Id., 483.

*109 The defendant nevertheless contends that the state has failed to show that the invalid finding concerning the existence of the aggravating factor enumerated in § 53a-46a (h) (4) was harmless beyond a reasonable doubt. In support of his claim, the defendant asserts that the evidence adduced by the state pertaining to the gunshots that the defendant fired after he had shot Williams in the head was admissible only to prove the existence of the aggravating factor enumerated in § 53a-46a (h) (4), and, therefore, the jury should not have heard that evidence in light of our conclusion that the evidence was insufficient to sustain the jury’s finding regarding the existence of that aggravating factor. The defendant further contends that the evidence regarding those additional gunshots was unduly harmful.

The simple answer to the defendant’s claim is that the evidence of those additional gunshots was admissible under General Statutes (Rev. to 1991) § 53a-46a (d),99 which provides that the jury shall determine whether any alleged mitigating factor is, in fact, mitigating in nature, “considering all the facts and circumstances of the case.” Certainly, the particular manner in which the defendant committed the capital felony is one of the relevant “facts and circumstances of the case” to be considered by the jury in evaluating the defendant’s alleged mitigating factors. Moreover, the evidence of those additional gunshots also was admissible in connection with the state’s allegation of the existence of the aggravating factor enumerated in General Statutes (Rev. to 1991) § 53a-46a (h) (3), which requires proof that “the defendant committed the [capital felony] and in such commission knowingly created a grave risk of death to another person in addition to the victim of the *110 offense . . . .”100 Inasmuch as the evidence concerning the additional gunshots properly was admitted for the foregoing purposes, the defendant cannot prevail on his claim that he was harmed by the jury’s consideration of the evidence concerning the additional gunshots or that the jury’s improper finding regarding the existence of the aggravating factor enumerated in § 53a-46a (h) (4) otherwise improperly affected its finding of the existence of the aggravating factor enumerated in § 53a-46a (h) (l).101

E

Three Judge Panel

The defendant next claims that the panel improperly denied his motion to have all three members of the panel preside over the penalty phase hearing rather than just one member. The defendant maintains that § 53a-46a (b)102 entitled him to have the same three judges who determined his guilt preside over the penalty phase hearing.103 We disagree.

*111 The defendant relies on the following language of § 53a-46a (b), the statutory provision governing the procedure for the penalty phase in capital cases, to support his claim: “For the purpose of determining the sentence to be imposed when a defendant is convicted of . . . a capital felony, the judge or judges who presided at the trial . . . shall conduct a separate hearing to determine the existence of any mitigating factor . . . and any aggravating factor . . . .” (Emphasis added.) General Statutes (Rev. to 1991) § 53a-46a (b). The defendant contends that § 53a-46a (b) clearly directs that the “judges” who decided the guilt phase of the case, that is, the three members of the panel, are to preside over the penalty phase hearing.

We note, preliminarily, that several other statutory provisions and their relationship to § 53a-46a (b) inform our resolution of the defendant’s claim. Under General Statutes § 54-82 (a),104 a criminal defendant has the option of having his or her guilt or innocence determined by the court instead of a juiy. Pursuant to General Statutes §§ 53a-45 (b)105 and 54-82 (b),106 a defendant *112 charged with committing a capital felony who elects a court trial is entitled to have a three judge panel determine guilt. In the present case, the defendant elected to be tried by a three judge panel but elected to have a jury determine his sentence during the penalty phase.

As the panel noted in its decision denying the defendant’s motion, it is true that the first sentence of § 53a-46a (b), when viewed in isolation, may be read to suggest that a capital defendant is entitled to have the three judges who determined the defendant’s guilt also preside over the penalty phase hearing. There is, however, no mention of any such right in the third sentence of § 53a-46a (b), which governs, inter alia, cases such as the present case, in which a defendant, who has elected to have his guilt or innocence determined by a three judge panel, chooses to have a jury determine his sentence at the penalty phase hearing.

To be sure, the first sentence of § 53a-46a (b) provides that the penalty phase hearing shall be conducted by “the judge or judges who presided at” the guilt phase portion of the case. But pursuant to §§ 53a-45 and 54-82, the chief court administrator is responsible for designating one of the members of the panel to be the presiding judge. When §§ 53a-46a, 53a-45 and 54-82 are read together, it is apparent that only the panel member who had been selected to be the presiding judge during the guilt phase shall preside over the penalty phase hearing. Thus, we do not believe that the literal language of § 53a-46a (b) dictates that all three panel members before whom the guilt phase was conducted must preside at a penalty phase hearing that is conducted before a jury. Indeed, we are persuaded that the term “judges” in the first sentence of § 53a-46a (b) does not apply to *113 the first two subdivisions of the third sentence of § 53a-46a (b), both of which contemplate that the penalty phase hearing will be conducted before a jury. See General Statutes (Rev. to 1991) § 53a-46a (b) (penalty phase hearing “shall be conducted (1) before the jury which determined the defendant’s guilt, or (2) before a jury impaneled for the purpose of such hearing if (A) the defendant was convicted upon a plea of guilty; (B) the defendant was convicted after atrial before three judges as provided in subsection (b) of section 53a-45; or (C) if the jury which determined the defendant’s guilt has been discharged by the court for good cause”). Rather, we conclude that the term “judges” refers to the final subdivision of the third sentence of § 53a-46a (b), pursuant to which a capital defendant, upon approval of the court and the consent of the state, may elect to have his penalty phase hearing conducted before a court rather than a jury. General Statutes (Rev. to 1991) § 53a-46a (b) (penalty phase hearing “shall be conducted . . . (3) before the court, on motion of the defendant and with the approval of the court and the consent of the state”).

We reach this conclusion for several reasons. First, the defendant has not proffered an explanation, and we are aware of none, why the legislature would have required all three members of the panel who determined the defendant’s guilt to preside over the penalty phase hearing when that proceeding is to be conducted before a jury. In such circumstances, there simply is no reason to have more than one judge preside over the penalty phase hearing. In contrast, when the court is called upon to serve as the fact finder in a murder case, that function is performed by three judges rather than one for good reason, namely, because the legislature has concluded that the “burden of having a murder case tried to the court, when the accused so elect[s], should *114 not be imposed upon a single judge . . . .” McBrien v. Warden, 153 Conn. 320, 329, 216 A.2d 432 (1966).

Second, there is no other circumstance under which a three judge panel is authorized to preside over a jury trial. This is hardly surprising in light of the fact that, as we already have explained, there is no justification for having more than one judge preside over a hearing or trial in which a jury, rather than a judge, serves as the fact finder. Because the role of a three judge court is to serve as a substitute for a jury,107 it would make no sense to establish a scheme whereby three judges preside over a trial in which a jury, not the court, serves as the fact finder. We will not lightly interpret § 53a-46a (b) to reach an untenable result. See, e.g., Southington v. Commercial Union Ins. Co., 254 Conn. 348, 360, 757 A.2d 549 (2000) (“[w]e ordinarily read statutes with common sense and so as not to yield bizarre results”); Interlude, Inc. v. Skurat, 253 Conn. 531, 539, 754 A.2d 153 (2000) (“[t]he law favors a rational statutory construction and we presume that the legislature intended a sensible result” [internal quotation marks omitted]).

Third, there exists a strong reason why there should not be more than one judge presiding over a jury trial, namely, only one judge is necessary to perform the duties of the court. Indeed, to have three judges participate in the time consuming task of jury selection for the penalty phase hearing, and then to require the same three judges to preside over that hearing, would result in a significant waste of judicial resources.

Finally, there is nothing in the relevant statutory genealogy or legislative history to support the defendant’s *115 claim. On the contrary, those considerations militate against the statutory construction urged by the defendant. Prior to 1973, sentencing in capital matters was governed by General Statutes (Rev. to 1972) § 53a-46,108 which contains no provision for a penalty phase hearing before a jury and a three judge panel. As the legislative history of § 53a-46a reflects, this state enacted a revised capital sentencing scheme in 1973 in response to Furman v. Georgia, 408 U.S. 238, 239-40, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), in which the United States Supreme Court essentially rendered various death penalty statutes throughout the country, including this state’s death penalty statutory scheme, constitutionally infirm. There is nothing in that legislative history to suggest that the legislature intended to change the preexisting scheme in the manner asserted by the defendant. We agree with the state that, if the legislature had intended such a radical departure from the traditional role of the three judge court, it most likely would have articulated that change explicitly and unambiguously.

For the foregoing reasons, we conclude that, inasmuch as the defendant had elected to have a jury determine his sentence at the penalty phase hearing, the panel properly determined that the defendant was not entitled to have all three members of the panel preside over that hearing. Consequently, we reject the defendant’s claim to the contrary.

F

Excusal of Juror for Cause

The defendant next claims that the trial court improperly granted the state’s request to excuse a prospective *116 juror, M.K.,109 for cause. The defendant contends that the reason that the trial court gave for excusing M.K., namely, that M.K. appeared to be unwilling to return a verdict that would result in the imposition of the death penalty, is not supported by the record and, therefore, M.K.’s dismissal from the panel of venirepersons violated the defendant’s rights under the United States constitution. We disagree.110

We begin our analysis of the defendant’s claim with a brief review of the governing law. “Our constitutional and statutory law permit each party, typically through his or her attorney, to question each prospective juror individually, outside the presence of other prospective jurors, to determine the venireperson’s fitness to serve on the jury. Conn. Const., art. I, § 19; General Statutes § 54-82f;111 Practice Book § [42-12].112 After the comple *117 tion of the voir dire of a particular venireperson, a party may challenge the venireperson for cause. The court must excuse that juror if the judge ... is of the opinion from the examination that [the] juror would be unable to render a fair and impartial verdict .... General Statutes § 54-82f; Practice Book § [42-12], . . . The trial court is vested with wide discretion in determining the competency of jurors to serve. . . . [T]he exercise of [the trial court’s] discretion will not constitute reversible error unless it has clearly been abused or harmful prejudice appears to have resulted.” (Citations omitted; internal quotation marks omitted.) State v. Griffin, 251 Conn. 671, 710-11, 741 A.2d 913 (1999).

“In Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985) . . . the United States Supreme Court . . . considered the effect [of] a prospective juror’s beliefs concerning the death penalty ... on that individual’s eligibility to serve as a juror in a capital case . . . [and] clarified the standard for determining whether a venireperson properly may be challenged for cause on the basis of his beliefs regarding the death penalty. Specifically, the court concluded that the federal constitution permits the excusa! for cause of venirepersons whose opposition to capital punishment would prevent or substantially impair the performance of their duties as jurors in accordance with the court’s instructions and the juror’s oath. Id., 424. . . . [A]s interpreted in . . . Witt, the federal constitution permits the excu *118 sal for cause of venirepersons whose opposition to the death penalty would prevent or substantially impair the performance of their duties as jurors during either: (1) the guilt phase of the trial; or (2) the sentencing phase of the trial. For a venireperson’s opposition to the death penalty to be considered as preventing or substantially impairing the performance of that individual’s duties as a juror during the sentencing phase of the trial, so as to permit excusa! for cause, the federal constitution does not require that the venireperson explicitly state that ... he automatically would vote not to impose a sentence of death. Instead, the federal constitution permits the excusal for cause of venirepersons whose responses during voir dire raise serious doubt as to their ability to follow the law during the sentencing phase.”113 (Citation omitted; emphasis in original.) State v. Griffin, supra, 251 Conn. 686-87.

Furthermore, “a trial judge’s finding that a particular venire [person] was not biased and therefore was properly seated [is] a finding of fact .... [T]he question whether a venire [person] is biased has traditionally been determined through voir dire culminating in a finding by the trial judge concerning the venire[person’s] state of mind. . . . [S]uch a finding [also] is *119 based upon determinations of demeanor and credibility that are peculiarly within a trial judge’s province. Such determinations [are] entitled to deference even on direct review .... [This] holding applies equally [as] well to a trial court’s determination that a prospective capital sentencing juror was properly excluded for cause.” (Citation omitted.) Wainwright v. Witt, supra, 469 U.S. 428-29.

Applying the foregoing principles to the present case, we conclude that the record fully supports the court’s decision to strike M.K. for cause. First, M.K. stated on his jury questionnaire that he could not serve as a juror because he did not believe in capital punishment. Thereafter, in response to questions by the state’s attorney regarding his views on the subject, M.K. stated that he believed that capital punishment is morally wrong and that he “wouldn’t want to be part of” the process of evaluating the alleged aggravating and mitigating factors for the puipose of determining whether the defendant would be sentenced to death. When the trial court sought to clarify M.K’s views on the death penalty, M.K. indicated that those views probably would affect his ability to be impartial, and that he would “tend more toward the defendant.” Although M.K. later stated, in response to questioning from defense counsel, that he would be able to find facts fairly, he also reiterated his desire that he not be required to participate in a fact-finding process that might lead to the imposition of the death penalty in light of his belief that “it’s [not] the right thing to do.”

We conclude that the trial court properly excused M.K. for cause. M.K. expressed strong moral opposition to capital punishment and repeatedly explained that, in light of his views, it would be very difficult for him to remain impartial. Although M.K. did indicate that he thought that he could listen to and analyze the evidence fairly, he also candidly acknowledged that he was, at *120 the least, uncertain as to whether he could discharge his responsibility to be objective if, on the basis of the factual findings, the defendant would be subject to the death penalty. Furthermore, at no time during voir dire did M.K. retreat from his views or otherwise indicate that he could find in favor of the state, if the facts so required, notwithstanding his belief in the immorality of capital punishment.114 In light of M.K.’s strongly held views against the death penalty and his clearly articulated concern about his ability to be impartial when evaluating whether the defendant should live or die, we reject the defendant’s claim that the trial court improperly excused M.K. for cause.

G

The Role of the Jury as Sentencer

The defendant also contends that the court’s jury instructions did not adequately apprise the jury of its responsibility to determine whether the defendant would be sentenced to death or to life in prison without the possibility of release.115 We disagree.

*121 It is a well established principle of death penalty jurisprudence that “the capital sentencer must make a reasoned moral and individualized determination based *122 on the defendant’s background, character and crime that death is the appropriate punishment. Penry v. Lynaugh, [492 U.S. 302, 319, 109 S. Ct. 2934, 106 L. Ed. *123 2d 256 (1989)]; Caldwell v. Mississippi, [472 U.S. 320, 330-32, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985)]; see also Saffle v. Parks, [494 U.S. 484, 492-93, 110 S. Ct. 1257, 108 L. Ed. 2d 415 (1990)]; California v. Brown, [479 U.S. 538, 541, 543, 107 S. Ct. 837, 93 L. Ed. 2d 934 (1987)].” (Internal quotation marks omitted.) Cobb II, supra, 251 Conn. 454. Under our capital sentencing scheme, “ [t]he sentencer determines whether the defendant, who has been convicted of a capital felony, should receive the punishment of death by making findings regarding the existence of any aggravating or mitigating factors. . . . The requirement that the sentencer’s determination be made by setting forth its findings regarding aggravating and mitigating factors merely guides the sentencer’s discretion to achieve a more focused and rational response. . . .

“The sentencer makes the required moral and individualized determination, under our statute, because it must consider a nonexclusive list of mitigating factors *124 as well as a catchall category consisting of any other mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime. . . . The catchall category of mitigating factors includes those factors which, in fairness and mercy, may be considered as tending either to extenuate or reduce the degree of [the defendant’s] culpability or blame for the offense or to otherwise constitute a basis for a sentence less than death. . . . The ability to consider an unrestricted set of mitigating factors satisfies the federal constitutional requirements for a moral and individualized decision. . . .

“Furthermore, it is evident that the capital sentencer, either a jury or the court, in making its determination regarding the existence of aggravating and mitigating factors during the separate sentencing hearing is aware that its task [is] the serious one of determining whether a specific human being should die at the hands of the [s]tate. . . . Finally, the death sentence is mandatorily imposed only after the capital sentencer has determined unanimously that at least one aggravating factor exists and no mitigating factors exist, and has come to this unanimous determination by engaging in a full, individualized consideration as to whether death is the appropriate penalty for each defendant.” (Citations omitted; internal quotation marks omitted.) State v. Ross, supra, 230 Conn. 240-41.

Thus, “great care must be taken by the trial court to ensure that a capital sentencing jury fully appreciates the momentous nature of its duty and, in particular, that the jury not be led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere. Caldwell v. Mississippi, supra, [472 U.S.] 329.” (Internal quotation marks omitted.) State v. Breton, 235 Conn. 206, 245-46, 663 A.2d 1026 (1995) (Breton II). To ensure that the jury is “fully aware of its determinative role in our capital sentencing *125 process”; id., 246; “[i]t is imperative . . . that the jury instructions in a capital case clearly and unequivocally explain to the jury that it is solely responsible for determining whether the defendant will receive the death penalty or, instead, a sentence of life imprisonment without the possibility of release.” Id., 249.

The defendant claims that the trial court’s instructions regarding the jury’s ultimate role in determining the appropriate sentence were inadequate because “[t]he overall effect of [those] . . . instructions . . . was an impermissible lessening or lowering of the jurors’ sense of responsibility” in regard to that role. The defendant further contends that the trial court improperly declined to give the charge that he had requested regarding the jury’s responsibility in deciding the appropriate sentence.116

*126 The defendant’s claim fails because the trial court’s instructions adequately apprised the jury of its responsibility for determining whether the defendant would be sentenced to death or to life imprisonment without the possibility of release. After explaining that only two sentences were possible, namely, death or life imprisonment without the possibility of release, the court apprised the jury that it would “make the determination of facts which will result in the court imposing one or the other” of those two sentences. The court then explained: “Specifically, you will be asked to determine the existence or nonexistence of aggravating and mitigating factors based upon the evidence adduced at the hearing. The existence or nonexistence of these factors will dictate the ultimate sentence. You must recognize that your decision is not one of simply making objective factual findings. Rather, you are, in fact and in law, actually making the decision whether the defendant should be sentenced to life imprisonment with *127 no possibility of release or to death. Your response, therefore, is truly of immense proportion as you are no doubt aware.” (Emphasis added.) The court then reiterated that the defendant would receive a sentence of death if the jury found the existence of an aggravating factor but did not find the existence of a mitigating factor, and a sentence of life imprisonment without the possibility of release if the jury did not find the existence of an aggravating factor or if it did find the existence of a mitigating factor. The court also instructed the jury properly regarding statutoiy and nonstatutory mitigating factors. With respect to the latter, the court made it clear that, in determining whether such a mitigating factor existed, the jury was required to determine whether the alleged mitigating factor exists as a matter of fact and, if so, whether those facts were sufficiently mitigating such that they tended to11 extenuate or reduce the degree of [the defendant’s] culpability or blame for the [capital] crime or to otherwise constitute a basis for a sentence of less than death.” (Emphasis added.)

The trial court’s instructions were sufficient to inform the jurors that they were ultimately responsible, by virtue of their statutory duty to determine the existence or nonexistence of the alleged aggravating and mitigating factors, for deciding whether the defendant would be sentenced to death or to life imprisonment without the possibility of release. Furthermore, inasmuch as the court properly had explained the jury’s role in evaluating the defendant’s claimed mitigating factors, the jury necessarily was aware of the “moral and individualized”; State v. Ross, supra, 230 Conn. 240; nature of its determination.

The defendant also contends that the trial court should have instructed the jury, as he had requested, that it “ultimately must determine the punishment in this particular case.” Contrary to the defendant’s contention, the trial court was not obligated to instruct the *128 jury in the precise language requested as long as the court’s instructions were legally correct and adapted to the issues, thereby providing the jury with a clear understanding of its determinative role in the sentencing process. E.g., State v. Pinnock, 220 Conn. 765, 789-90, 601 A.2d 521 (1992). We are satisfied that the court’s instructions met that standard.

In addition to his general challenge to the effect of the jury charge as a whole, the defendant specifically challenges the following language contained in the court’s charge: “It’s not within your province to be affected by the consequences your verdict may have upon the participants in this trial or anyone else.” The defendant contends that this portion of the court’s instructions, which was given toward the conclusion thereof, conveyed the false impression that the jury’s function merely was to find facts without regard to whether death was the appropriate sentence.

“The standard of review for constitutional claims of improper jury instructions is well settled. In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Respass, 256 Conn. 164, 182, 770 A.2d 471, cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001).

It is clear that the challenged language, when considered in the broader context of the charge as a whole, *129 simply was intended to remind the jury that its verdict was to be predicated upon the facts and the law, and not on any undue concern, borne of passion, sympathy or other emotion, as to how that verdict might affect the defendant, the state or anyone else. Inasmuch as the court’s instructions informed the jury of its function and responsibility, we are satisfied that there is no reasonable possibility that the jury was misled by the challenged portion of the charge.

H

The Right to a Bifurcated Penalty Phase Hearing

The defendant next asserts that the panel improperly denied his motion for a bifurcated penalty phase hearing. Specifically, the defendant contends that he was entitled to separate hearings to determine the existence of the aggravating factors that the state alleged, on the one hand, and to determine the existence of the mitigating factors that he alleged, on the other hand, the necessity of the latter hearing being dependent on whether the jury found the existence of one or more aggravating factors during the first hearing. According to the defendant, the panel’s failure to bifurcate the penalty phase hearing gave rise to an undue risk that the jury, in deliberating on the alleged aggravating and mitigating factors, weighed those factors in contravention of the statutory sentencing scheme.117 We are not persuaded by the defendant’s claim.

*130 First, there is nothing in the relevant statutory provisions to support the defendant’s contention that he was entitled to a bifurcated penalty phase hearing.118 On the contrary, § 53a-46a makes repeated reference to the “hearing” that is to be conducted in the event that the defendant is found guilty of having committed a capital felony. Section 53a-46a contains no language to suggest that the hearing is to be bifurcated.119 The pertinent legislative history similarly contains no indication that the legislature contemplated a bifurcated penalty phase hearing. See, e.g., 16 S. Proc., supra, p. 1863, remarks of Senator Guidera (“[The statute] essentially sets up a two-step procedure. Step [one] would be the finding of guilt in the Commission of Selected Crimes which have been labeled capital felonies. Even if a defendant were found guilty of one of the crimes specified, there would be a second step which is a special hearing to determine whether the sentence shall be life imprisonment or in fact the death penalty.” [Emphasis added.]).

Furthermore, we see no reason why a bifurcated penalty phase hearing was necessary under the circumstances of the present case. Pursuant to the court’s instructions, the jury was required to determine, first, *131 whether one or more aggravating factors existed. The court further instructed the jury that if it failed to find an aggravating factor, its task was complete: in such circumstances, the jury was not to consider whether the defendant had established the existence of one or more mitigating factors because, in the absence of the existence of a single aggravating factor, the defendant necessarily would receive a sentence of life without the possibility of release. Only if the jury had disregarded these instructions could it possibly have engaged in an improper weighing of the aggravating and mitigating factors. In the absence of a showing that the jury failed or declined to follow the court’s instructions, we presume that it heeded them. E.g., State v. Ancona, 256 Conn. 214, 219, 772 A.2d 571 (2001) (“[u]nless there is evidence to the contrary, the jury is presumed to follow the court’s instructions” [internal quotation marks omitted]). Because there is nothing to suggest that the jury failed to follow the court’s instructions regarding the manner in which it was to consider the aggravating and mitigating factors, the defendant cannot prevail on his claim that the panel’s decision not to bifurcate the penalty phase hearing resulted in the jury’s improper weighing of aggravating and mitigating factors.

I

Issues Regarding the Mitigating Factors and Evidence

1

Evidence Establishing the Existence of One or More Mitigating Factors

The defendant contends that the jury “erroneously and arbitrarily” failed to find that the evidence adduced at the penalty phase hearing established the existence *132 of one or more mitigating factors.120 In support of his *133 claim, the defendant argues that, under § 53a-46a *134 (d),121 the jury was required to find the existence of an alleged mitigating factor if: (1) the evidence established the existence of the mitigating factor as a matter of fact; and (2) the mitigating factor was “mitigating . . . even to the slightest degree.” The defendant claims that this test is required because to permit the capital sentencer to determine whether the mitigating factor is sufficiently mitigating to warrant a sentence of life imprisonment without the possibility of release instead of death would be tantamount to requiring the sentencing authority to weigh aggravating and mitigating factors, a process that is not permitted under the statutory scheme in effect when the defendant murdered Officer Williams. The defendant further asserts that many of his alleged mitigating factors satisfied the test he advances because the evidence establishing the existence of those mitigating factors was undisputed and, in addition, each of those mitigating factors was mitigating, at least to some extent.

*135 In Cobb II, supra, 251 Conn. 285, we recently addressed and rejected a claim identical to the claim that the defendant raises in the present case. We stated in Cobb II: “The defendant [Sedrick Cobb] contends . . . that if anything positive—no matter how slight— was established about him, § 53a-46a required the panel to find the existence of mitigation. In [Cobb’s] view, permitting a capital sentencer to determine whether proof of something positive about a defendant constitutes mitigation under all the facts and circumstances of the case improperly allows the sentencer to balance aggravation against mitigation. . . . Thus, [Cobb] argues that, unless his interpretation of the statutory scheme is adopted—namely, that proof of the underlying factual basis of any claimed nonstatutory factor requires a concomitant finding of proof of a mitigating factor—the statute becomes in effect a weighing or balancing statute, [even though State v. Ross, supra, 230 Conn. 239] plainly holds it is not. We disagree.

“First, [Cobb’s] argument would effectively read out of § 53a-46a (d) the requirement that the sentencer determine whether that factor is mitigating in nature .... We ordinarily do not read statutes so as to render parts of them superfluous or meaningless. United Illuminating Co. v. New Haven, [240 Conn. 422, 439, 692 A.2d 742 (1997)]. Thus, § 53a-46a (d) contemplates that a capital sentencer may reject a proven proposed mitigant on the ground that, under all of the facts and circumstances of the case, the factor does not extenuate or reduce the degree of [the defendant’s] culpability or blame for the offense or to otherwise constitute a basis for a sentence of less than death.

“Second, we can discern nothing inconsistent between the statutory provision, on the one hand, that directs a capital sentencer to consider the facts and circumstances of the case in determining whether a particular factor is in fact mitigating in nature; see Gen *136 eral Statutes (Rev. to 1989) § 53a-46a (d); and the statutory requirement, on the other hand, that, once a particular factor has been found to be mitigating in nature, the capital sentencer may not balance that mitigating factor against the proven aggravants, but instead must impose a sentence of life without possibility of release. See General Statutes (Rev. to 1989) § 53a-46a (f) and (g). A [sentencer] that is entrusted with the awesome responsibility for deciding whether the death penalty should be imposed cannot be asked to find facts in a vacuum. State v. Ross, supra, 230 Conn. 284. Thus, the sentencer, in determining whether a proposed, factually proven mitigating factor is actually mitigating in nature, in light of all the facts and circumstances of the case, must make a value judgment about that factor in light of those facts and circumstances. That is not the same, however, as balancing a factor proven to be mitigating against the aggravating factor or factors that have been proven.

“In sum, § 53a-46a does not require a capital sentencer to give mitigating force to any particular proven factor solely because that factor establishes something good about the defendant. Instead, the statute leaves the decision as to whether a proven factor is mitigating in nature to the sentencer’s reasoned moral judgment.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Cobb II, supra, 251 Conn. 494-96. The defendant has failed to articulate any reason why we should reconsider our conclusion in Cobb II, and we know of none. Consequently, the defendant’s claim fails.

2

Proof of Mitigating Valúe

The defendant also asserts that the trial court improperly instructed the jury that the defendant had the burden of proving, not only the existence of an alleged *137 mitigating factor as a matter of fact, but, in addition, that the mitigating factor was sufficiently mitigating to warrant a sentence of life imprisonment without the possibility of release rather than a sentence of death. As we have explained, however; see part III 11 of this opinion; that is precisely what the defendant was required to do. See Cobb II, supra, 251 Conn. 458 (defendant shoulders burden of establishing mitigating nature of facts proven in furtherance of establishing existence of mitigating factor). We therefore reject the defendant’s claim.

3

Special Verdict Form—Mitigation

At the conclusion of the penalty phase hearing, the defendant requested that the court give the jurors a special verdict form requiring them to indicate, for each of the forty-one mitigating factors alleged by the defendant, whether they had found a factual basis for each of the alleged mitigating factors and, if so, whether one or more jurors had found that factor to be mitigating. The defendant claimed that this customized special verdict form was necessary for adequate appellate review of the jury’s findings concerning the mitigating factors. The trial court rejected the defendant’s request and, instead, provided the jury with a special verdict form that required the jury to indicate only whether it unanimously had found the existence of any mitigating factor.122 On appeal, the defendant renews his claim that *138 the special verdict form submitted to the jury did not provide sufficient information for meaningful review of the jury’s verdict with respect to the mitigating factors. We reject the defendant’s claim.

As the defendant notes, “it is important that the record on appeal disclose to the reviewing court the considerations which motivated the death sentence in every case in which it is imposed.” Gardner v. Florida, 430 U.S. 349, 361, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977). Consistent with this requirement, General Statutes (Rev. to 1991) § 53a-46a (e) provides that “[t]he jury or, if there is no jury, the court shall return a special verdict setting forth its findings as to the existence of any aggravating or mitigating factor.” (Emphasis added.) The special verdict form that the trial court submitted to the jury satisfies that statutory mandate, and the defendant has failed to articulate any reason why a form that complies with § 53a-46a (e) is inadequate for appellate review of the jury’s findings with respect to the mitigating factors. We, like the United States Supreme Court, “are not impressed with the claim that without written jury findings concerning mitigating circumstances, appellate courts cannot perform their proper role.” Clemons v. Mississippi, 494 U.S. 738, 750, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990). Accordingly, we reject the defendant’s claim.

4

The Cumulative Effect of the Mitigating Evidence as an Independent Mitigating Factor

The defendant next contends that the trial court improperly rejected his request to include, in his written *139 list of proposed mitigating factors submitted to the jury, a mitigating factor predicated upon the cumulative effect of all of the evidence adduced by the defendant in support of his claim of mitigation. Although we agree with the defendant that he was entitled to have the cumulative effect of the mitigating evidence as an independent factor included in his list of mitigating factors, we nevertheless conclude, under the circumstances, that the court’s refusal to do so does not warrant a new penalty phase hearing.

The following facts are necessary to our determination of this issue. The defendant requested that the following mitigating factor be submitted to the jury along with his other proposed mitigating factors: “That any of the [mitigating] factors, either taken individually or in combination with any other factor, constitutes not an excuse for the murder of [Williams], but in fairness or mercy provides a reason for sentencing [the defendant] to life in prison with no possibility of release rather than sentencing him to death . . . .” The defendant also requested that the trial court instruct the jury that it “must . . . consider the cumulative or combined effect of all of the mitigating evidence and information which [it had] heard. If the cumulative or combined effect of that evidence satisfies the preponderance of the evidence standard, and is in your judgment mitigating, then you will have found a mitigating factor . . . .”

The trial court rejected the defendant’s request, essentially concluding that the proposed mitigating factor regarding the cumulative effect of the mitigating evidence was not factually separate and distinct from the other proposed mitigating factors, and, therefore, there was no reason to include that factor in the list of mitigating factors to be submitted to the jury. The court, however, instructed the jury that it “may consider the cumulative impact of some or all of the evidence offered *140 in mitigation as constituting the equivalent of a mitigating factor.”

A defendant is entitled to have the capital sentencer consider individual mitigating factors as well as their combined effect. “[E]ven if [specific mitigating facts] are not in themselves cause for a sentence less than death, they are still relevant to mitigation and must be weighed in conjunction with other factors to determine if all of the circumstances together warrant a lesser sentence.” Smith v. McCormick, 914 F.2d 1153, 1168 (9th Cir. 1990); see also Boyde v. California, 494 U.S. 370, 377-78, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990) (eighth amendment requires capital sentencers to consider “all relevant mitigating evidence” offered by defendant). Moreover, we have stated that, as a matter of sound judicial policy, the trial court should submit an accurate written list of each of the claimed statutory and nonstatutory mitigating factors if the defendant so requests. BretonII, supra, 235 Conn. 254—55.123 Although a claimed mitigating factor that is based upon the cumulative effect of the evidence already adduced in support of the other mitigating factors does not require the jury to consider any new or additional evidence, it nevertheless provides an independent basis upon which the jury may conclude that a sentence of death is not warranted. Consequently, a mitigating factor founded on the cumulative weight of the evidence adduced in support of a defendant’s claim of mitigation is sufficiently distinct from any other mitigating factor to warrant its inclusion as a separate factor in a written list of mitigating factors submitted to the jury.

*141 Although the trial court failed to include the cumulative effect of the mitigating evidence as a separate mitigating factor in the defendant’s list of proposed mitigating factors, the court did instruct the jurors that “[it] may consider the cumulative impact of some or all of the evidence offered in mitigation as constituting the equivalent of a mitigating factor.” This instruction properly apprised the jury that it was to consider the cumulative effect of the mitigating evidence as it would any other mitigating factor. In the absence of any indication to the contrary, we presume that the jury followed the court’s instruction. E.g., State v. Ancona, supra, 256 Conn. 219. In light of the court’s instruction, there is no reasonable possibility that the defendant was prejudiced by the court’s failure to include the cumulative effect of the mitigating evidence as an independent mitigating factor in the defendant’s written list of mitigating factors.124 Accordingly, we reject the defendant’s claim.

5

Catchall Mitigating Factors

The defendant asserts that the trial court improperly determined that he was not entitled to include, in his written list of mitigating factors, two claimed mitigating *142 factors concerning any facts or circumstances of a mitigating nature that otherwise were not identified in the defendant’s list. We reject the defendant’s claim that the court’s refusal to allow the defendant to include those mitigating factors in his list of mitigating factors warrants a new penalty phase hearing.

The defendant sought to include in his written list of mitigating factors the following two factors: (1) “That there exists a factor concerning the facts or circumstances of the case that has not been specifically mentioned in this list that a juror or jurors consider in fairness or mercy to constitute a basis for imposing ... a sentence of life in prison with no possibility of release rather than [a sentence of death] and (2) “ [t]hat there exists a factor concerning [the defendant’s] character, history or background that has not been specifically mentioned in this list that a juror or jurors consider in fairness or mercy as [a] basis for sentencing [the defendant] to life in prison with no possibility of release rather than sentencing him to death . ...” In addition, the defendant sought an instruction explaining these two proposed mitigating factors.125

The trial court declined to allow the defendant to include the two mitigating factors in his list, concluding that it was not appropriate to do so because those *143 factors were not based on any specific evidence adduced during the penalty phase hearing. The court, however, instructed the jury as follows: “[I]n addition to any of the statutory and nonstatutory mitigating factors claimed by the defendant, you may give mitigating force to any fact taken alone or in conjunction with any—or facts presented providing, of course, you are satisfied [as] to the existence of the fact or facts by a preponderance of the evidence and that the facts are mitigating in nature .... You are bound by our law and by your oath as jurors to consider any mitigating factor whether statutory or nonstatutory as well as any other mitiga,ting evidence presented concerning the defendant’s character, background and history, or the nature and circumstances of the offense.” (Emphasis added.)

As we have explained previously in this opinion; see part III 14 of this opinion; a trial court, if so requested, should include all proposed mitigating factors in the list of mitigating factors submitted to the jury. Breton II, supra, 235 Conn. 254-55. The defendant should have been permitted to include these so-called “catchall” mitigating factors in the list along with his other proposed mitigating factors. The court’s failure to do so, however, does not constitute reversible error because the court, in its instructions to the jury, adequately apprised the jury of its responsibility to consider those proposed mitigating factors. In view of the court’s instructions, it is not reasonably possible that the jury failed to consider the defendant’s proposed catchall mitigating factors.

6

The Defendant’s Request to Present as an Independent Mitigating Factor the Inappropriateness of the Death Penalty Under the Circumstances of the Case

The defendant maintains that the trial court improperly declined to allow the jury to consider, as an inde *144 pendent mitigating factor, the defendant’s claim that the jury’s finding of the existence of one or more aggravating factors nevertheless did not warrant the imposition of the death penalty under the circumstances of the present case. In other words, the defendant contends that, even if the jury was to find that the state had established the existence of one or more aggravating factors and that the defendant had failed to establish the existence of a mitigating factor, the jury nevertheless should have been required to make the additional finding that, notwithstanding the existence of one or more aggravating factors and the nonexistence of a mitigating factor, the circumstances of the case still warranted the imposition of the death penalty. We are not persuaded by the defendant’s claim.

The defendant sought to include the following mitigating factor on his list of mitigating factors: “That, because of considerations of fairness or mercy, a juror or jurors do not consider the existence of any aggravating factor which [they] may have found proven beyond a reasonable doubt to be a sufficient basis for [the defendant’s] execution under the facts and circumstances of the case.”126 The court denied the defendant’s *145 request, concluding that the requested instruction was “inaccurate as a matter of law in that [it] suggests that the jury [should] ignore proof of one of the aggravating factors.” On appeal, the defendant renews his claim that he is constitutionally entitled to have the jury determine whether a sentence of death is unwarranted notwithstanding the existence of one or more aggravating factors and the absence of a mitigating factor.

The trial court properly declined the defendant’s request to permit the jury to consider the proposed mitigating factor. See Cobb II, supra, 251 Conn. 475-76, 478 (rejecting substantially similar claim). First, the defendant’s contention is incorrect “[a]s a matter of the meaning of our statutory capital sentencing scheme”; id., 476; which requires the imposition of the death penalty if the sentencer finds the existence of one or more aggravating factors and no mitigating factor. See General Statutes (Rev. to 1991) § 53a-46a (f) (“[i]f the jury or, if there is no jury, the court finds that one or more of the [aggravating] factors set forth in subsection (h) exist and that no mitigating factor exists, the court shall sentence the defendant to death”). “Thus, contrary to the defendant’s contention, under our statute, once the sentencer has found an aggravating factor proven beyond a reasonable doubt, there is no requirement that it go further and make an additional determination that the presence of that factor justifies the imposition of the death penalty. In effect, the legislature has stated that as a matter of fundamental policy, the presence of such a factor requires the imposition of that penalty unless a mitigating factor is found.” Cobb II, supra, 478. Second, as we repeatedly have stated, our capital sentencing scheme fully comports with the constitutional requirement that the capital sentencer make a *146 reasoned and individualized determination regarding whether the death penalty should be imposed by affording the defendant a full and fair opportunity to present any and all mitigating evidence. See id., 478-80; see also State v. Ross, supra, 230 Conn. 240-41. Because the defendant’s claim finds no constitutional or statutory support, we must reject it.

7

Mercy as a Mitigating Factor

The defendant claims that the trial court improperly failed to instruct the jury that mercy is an independent mitigating factor. Although the defendant acknowledges that he did not request such an instruction, he seeks review of his claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),127 and the plain error doctrine.128 The defendant’s claim is without merit.

We note, preliminarily, that considerations of mercy play an important role in our capital sentencing scheme. *147 General Statutes (Rev. to 1991) § 53a-46a (d)129 expressly provides that “[m]itigating factors ... do not constitute a defense or excuse for the capital felony of which the defendant has been convicted, but . . . in fairness and mercy, may be considered as tending either to extenuate or reduce the degree of [the defendant’s] culpability or blame for the offense or otherwise constitute a basis for a sentence less than death.” (Emphasis added.) Because the trial court used this exact language in its instructions explaining the mitigating factors, the jurors were well aware of the relevance of mercy to its ultimate sentencing decision. Under the statutory scheme applicable to the present case, however, once the state has proven the existence of at least one aggravating factor beyond a reasonable doubt, a sentence of death is mandatory unless the defendant can establish that, in light of his “character, background or history, or the nature and circumstances of the crime”; General Statutes (Rev. to 1991) § 53a-46a (d); a sentence of life imprisonment without the possibility of release is appropriate. Thus, under the statutoiy scheme, mercy is a legitimate consideration only insofar as it is related to mitigating evidence.

The defendant nevertheless claims that he was constitutionally entitled to have the court instruct the jury that mercy itself constituted an independent mitigating factor. In essence, the defendant claims that he had a right to have the jury consider whether he should receive a sentence of life imprisonment without the possibility of release on the basis of mercy irrespective of whether the facts adduced at the penalty phase hearing warranted a finding of the existence of any other mitigating factor. This claim is foreclosed by United States Supreme Court precedent. The United States Supreme Court has held that a state properly may prohibit the capital sentencer from “dispensing] mercy *148 [solely] on the basis of a sympathetic response to the defendant.” Johnson v. Texas, 509 U.S. 350, 371, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993); see also Saffle v. Parks, supra, 494 U.S. 493 (“[t]he [s]tate must not cut off full and fair consideration of mitigating evidence; but it need not grant the jury the choice to make the sentencing decision according to its own whims or caprice”); California v. Brown, supra, 479 U.S. 542-43 (federal constitution does not prohibit instruction cautioning jurors not to be swayed by considerations, such as those based on sympathy, which are wholly divorced from evidence adduced during penalty phase hearing). In other words, as long as the capital sentencing scheme does not limit the defendant’s right to present all mitigating evidence, the state may guide the sentencer’s discretion by requiring the defendant to prove facts sufficient to warrant a sentence of life imprisonment without the possibility of release rather than of death. Thus, the legislature was free to craft a statute limiting arguments based on mercy to the jury’s consideration of facts supporting the existence of mitigating factors. See United States v. Allen, 247 F.3d 741, 782 (8th Cir. 2001). Consequently, the defendant cannot prevail on his claim that he has a constitutional right to have the jury determine whether considerations of mercy, unrelated to any evidence, warrant a sentence of life imprisonment without the possibility of release as opposed to a death sentence.

J

Vagueness Challenge to § 53a-46a (d)

The defendant asserts that § 53a-46a (d), which directs the capital sentencer to consider “all the facts and circumstances of the case” in determining the existence of mitigation is unconstitutionally vague because it authorizes the capital sentencer to reject evidence of mitigation on irrelevant and improper grounds. The *149 defendant maintains that the vagueness doctrine requires that the phrase “all the facts and circumstances of the case” contained in § 53a-46a (d) be given a limiting construction or be read out of the statute altogether.

We rejected a virtually identical claim raised by Sedrick Cobb, the defendant in Cobb II, supra, 251 Conn. 482-86. We stated in Cobb II: “[I]n this context, constitutional vagueness analysis involves the application of the eighth amendment . . . [rather than] the due process fair notice principle. The purpose of the eighth amendment vagueness doctrine is to channel the capital sentencing decision sufficiently so as to ensure that the decision is not made arbitrarily and capriciously. Put another way, the eighth amendment vagueness doctrine requires that a death penalty statute adequately inform the capital sentencer regarding what it must find in order to impose the death penalty. See Breton I, supra, 212 Conn. 264. Moreover, eighth amendment vagueness analysis applies only to the eligibility phase and not to the selection phase of the sentencing hearing of a capital felony trial. The due process vagueness principle, however, requires fair warning as to whether conduct constitutes a crime, and clarity of the prohibited conduct sufficient to prevent arbitrary enforcement. It therefore is not relevant at the sentencing phase of a capital trial. . . .

“In Buchanan v. Angelone, 522 U.S. 269, 275-77, 118 S. Ct. 757, 139 L. Ed. 2d 702 (1998), the United States Supreme Court stated: [0]ur cases have distinguished between two different aspects of the capital sentencing process, the eligibility phase and the selection phase. Tuilaepa v. California, 512 U.S. 967, 971 [114 S. Ct. 2630, 129 L. Ed. 2d 750] (1994). In the eligibility phase, the [sentencer] narrows the class of defendants eligible for the death penalty, often through consideration of aggravating circumstances. [Id.] In the selection phase, *150 the [sentencer] determines whether to impose a death sentence on an eligible defendant. [Id., 972]. ... It is in regard to the eligibility phase that we have stressed the need for channeling and limiting the [sentencer’s] discretion to ensure that the death penalty is a proportionate punishment and therefore not arbitrary or capricious in its imposition. In contrast, in the selection phase, we have emphasized the need for a broad inquiry into all relevant mitigating evidence to allow an individualized determination. [Id., 971-73]; Romano v. Oklahoma, 512 U.S. 1, 6-7 [114 S. Ct. 2004, 129 L. Ed. 2d 1] (1994); McCleskey v. Kemp, 481 U.S. 279, 304-306 [107 S. Ct. 1756, 95 L. Ed. 2d 262] (1987); [Zant v. Stephens, supra, 462 U.S. 878-79],

“In the selection phase, our cases have established that the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence. Penry v. Lynaugh, [supra, 492 U.S. 317-18]; Eddings v. Oklahoma, [455 U.S. 104, 113-14, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982)]; Lockett v. Ohio, [438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978)]. However, the state may shape and structure the [capital sentencer’s] consideration of mitigation [as] long as it does not preclude the [sentencer] from giving effect to any relevant mitigating evidence. Johnson v. Texas, [supra, 509 U.S. 362]; Penry [v. Lynaugh, supra, 326]; Franklin v. Lynaugh, 487 U.S. 164, 181 [108 S. Ct. 2320, 101 L. Ed. 2d 155] (1988). Our consistent concern has been that restrictions on the . . . sentencing determination not preclude the [sentencer] from being able to give effect to mitigating evidence. . . . [0]ur decisions suggest that [at the selection phase], complete . . . discretion is constitutionally permissible. See Tuilaepa [v. California, supra, 512 U.S. 978-79] (noting that at the selection phase, the state is not confined to submitting specific propositional questions to the [capital sentencer] and may indeed allow [it] unbridled *151 discretion); [Zant v. Stephens, supra, 462 U.S. 875] (rejecting the argument that a scheme permitting the [capital sentencer] to exercise unbridled discretion in determining whether to impose the death penalty after it has found the defendant eligible is unconstitutional, and noting that accepting that argument would require the [c]ourt to overrule Gregg [v. Georgia, supra, 428 U.S. 153]). . . . See also State v. Ross, supra, 230 Conn. 232 ([a] statutory requirement that, before death may be imposed, the sentencer must find at least one statutorily mandated aggravating circumstance is a constitutionally permissible response to the need to avoid standardless sentencing discretion). Consequently, [Cobb’s] vagueness challenge to § 53a-46a (d), which pertains only to the selection phase and not to the eligibility phase of a capital sentencing hearing, is without merit.

“It is equally well settled that the federal constitution permits a capital sentencer to consider the circumstances of the crime in deciding whether to impose the death penalty. Tuilaepa v. California, supra, 512 U.S. 976; see also Monge v. California, 524 U.S. 721, 731-32, 118 S. Ct. 2246, 141 L. Ed. 2d 615 (1998); Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976). Further, although [General Statutes (Rev. to 1989)] § 53a-46a is not a balancing statute; see State v. Ross, supra, 230 Conn. 239; the federal constitution permits a state to adopt a death penalty scheme that requires the capital sentencer to balance aggravating factors against mitigating factors at the sentencing hearing. See Tuilaepa v. California, supra, 979; Clemons v. Mississippi, supra, 494 U.S. 745; Blystone v. Pennsylvania, [494 U.S. 299, 305, 110 S. Ct. 1078, 108 L. Ed. 2d 255 (1990)]; McCleskey v. Kemp, supra, 481 U.S. 313-15 n.37. Obviously, in order to balance aggravating factors against mitigating factors, a capital sentencer first must be permitted to consider evidence regarding aggravation. Thus, the federal constitution *152 necessarily permits a capital sentencer to consider evidence relating to aggravation at the selection phase of a sentencing hearing. Consequently, [Cobb’s] argument that [General Statutes (Rev. to 1989)] § 53a-46a (d) violates the constitution by permitting a capital sentencer to consider evidence regarding the circumstances of the crime and aggravation [in determining whether an alleged factor is mitigating in nature] is without merit.

“Furthermore, [Cobb’s] claim that [General Statutes (Rev. to 1989)] § 53a-46a (d) unconstitutionally authorizes a capital sentencer to reject a factor that has been proposed as a mitigant on improper grounds, such as the respective races of the defendant and the victim, is unpersuasive. Section 53a-46a (d) simply directs the sentencer to make its determination as to whether a proven factor is mitigating in nature in light of all of the evidence that has been presented in the case; it cannot reasonably be construed to authorize a capital sentencer to base its determination on nonevidentiary factors. [Cobb], moreover, has presented absolutely no evidence that . . . the panel based its determination that the defendant had not proven the existence of a mitigating factor on any improper ground.” (Citation omitted; internal quotation marks omitted.) Cobb II, supra, 251 Conn. 483-86.

The defendant has suggested no reason why we should reconsider our conclusion in Cobb II regarding the constitutionality of § 53a-46a (d), and we know of none. We therefore reject the defendant’s constitutional challenge to § 53a-46a (d).

K

State’s Use of Evidence Purportedly Admissible During the Guilt Phase Only

The defendant claims that the trial court improperly permitted the state to offer evidence, during the penalty *153 phase hearing, that the defendant intentionally bumped his left elbow into Officer Williams’ chest for the purpose of determining whether Williams was wearing a bulletproof vest. According to the defendant, this prejudicial evidence, although relevant to the issue of the defendant’s guilt, had no bearing on any aggravating or mitigating factor and, therefore, should have been excluded.130 We disagree.

Under General Statutes (Rev. to 1991) § 53a-46a (d), a capital sentencer is required to determine, with respect to each of the defendant’s proposed mitigating factors, whether any such factor “is mitigating in nature, considering all the facts and circumstances of the case.” (Emphasis added.) In recognition of the fact that a sentencer “entrusted with the awesome responsibility for deciding whether the death penalty should be imposed cannot be asked to find facts in a vacuum”; State v. Ross, supra, 230 Conn. 284; we previously have recognized that the relevant facts and circumstances of the case include the facts and circumstances of the underlying capital offense. See Cobb II, supra, 251 Conn. 494. Thus, the defendant’s contrary contention is without merit.131

L

The Admissibility of Anthony Crawford’s Testimony

The defendant next contends that the trial court improperly permitted the state to elicit certain testimony from Anthony Crawford during the penalty phase hearing because that testimony differed materially from *154 the statements contained in the state’s revised bill of particulars. We reject this claim.

The following additional facts are necessary to our determination of this issue. Prior to the commencement of the penalty phase hearing, the court ordered the state to file a supplemental bill of particulars setting forth the factual basis for its claim regarding the existence of the aggravating factor enumerated in § 53a-46a (h) (l).132 The state thereafter filed a revised bill of particulars that provided in relevant part: “The [s]tate alleges that the defendant committed the offense of [c]apital [f]elony dining the attempted commission of a felony, to wit, a violation of [General Statutes §] 21a-277 (a) in that the defendant was attempting to sell, dispense, offer, or give to another person the narcotic substance cocaine. The factual basis for said allegation is contained in [the transcription] of . . . Crawford’s testimony given on September 15, 1994 . . . .” The two pages attached to the bill of particulars contained a transcription of a portion of Crawford’s guilt phase testimony during which he stated that he and the defendant were proceeding to an apartment on Locust Street to “drop . . . off’ some cocaine when they were stopped by Officer Williams in the early morning hours of December 18, 1992.

During the penalty phase hearing, Crawford testified that he and the defendant had been on their way to Locust Street to “[s]ell” some cocaine when Williams stopped them. The defendant moved to strike Crawford’s testimony that he and the defendant were planning to “[s]ell” drugs that morning, claiming a material difference between that testimony and the testimony referred to in the state’s revised bill of particulars that Crawford and the defendant were planning to “drop *155 . . . off’ drugs at the Locust Street address. The trial court denied the defendant’s motion to strike.

“The purpose of a bill of particulars is to inform the defendant of the charges against him with sufficient precision to enable him to prepare his defense and avoid prejudicial surprise. ... A bill of particulars limits the state to proving that the defendant has committed the offense in substantially the manner described.” (Citation omitted; internal quotation marks omitted.) State v. Correa, supra, 241 Conn. 341. “It is the defendant’s burden on appeal to demonstrate that he was in fact prejudiced in his defense on the merits as a result of a material variance between the allegations in a bill of particulars and proof at trial, and that substantial injustice was done to him because of the language of the state’s pleadings.” (Internal quotation marks omitted.) State v. Steve, 208 Conn. 38, 45, 544 A.2d 1179 (1988). “[If] the state’s pleadings . . . informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and were definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty.” (Internal quotation marks omitted.) State v. Killenger, 193 Conn. 48, 55, 475 A.2d 276 (1984).

We conclude that the slight difference between Crawford’s guilt phase testimony and penalty phase testimony did not require the trial court to grant the defendant’s motion to strike Crawford’s testimony during the penalty phase hearing. First, there is no inherent inconsistency between “dropping off’ drugs and “selling” them; indeed, drugs generally are dropped off, or delivered, when they are sold. Second, for purposes of § 2 la-277 (a)—the provision setting forth the felony offense that the defendant was alleged to have been attempting to commit when he committed the capital *156 felony—the term “sale” is broadly defined as “any form of delivery which includes barter, exchange or gift, or offer therefor, and each such transaction made by any person whether as principal, proprietor, agent, servant or employee . . . .” General Statutes § 21a-240 (50). Thus, the defendant has failed to establish any material variance between Crawford’s guilt phase testimony, as set forth in the state’s revised bill of particulars, and his penalty phase testimony. Finally, the defendant otherwise has failed to demonstrate that he suffered any prejudice as a result of the slight and insignificant difference in Crawford’s guilt phase testimony and penalty phase testimony. Inasmuch as the state’s revised bill of particulars afforded the defendant fair notice of the state’s evidence in regard to the alleged existence of the aggravating factor enumerated in § 53a-46a (h) (1), we conclude that the trial court properly denied the defendant’s motion to strike.

M

Alleged Juror Misconduct

The defendant claims that certain comments purportedly made by several jurors to a reporter133 after the conclusion of the penalty phase hearing indicate that one or more of those jurors failed to follow the law in its deliberations and, consequently, reached an arbitrary verdict in violation of General Statutes § 53a-46b (b) (1).134 The defendant seeks either a new penalty phase *157 hearing or a remand to the trial court for an evidentiary hearing on the issue of whether the jury properly followed the court’s instructions.

The defendant’s claim is not properly before this court. To the extent that the defendant is aware of facts that support his allegation of juror impropriety, those facts have not been established.135 “[I]t is the function of the trial court, not this court, to find facts.” (Internal quotation marks omitted.) State v. Cobb, 234 Conn. 735, 750, 663 A.2d 948 (1995) (Cobb I). Indeed, the defendant has filed a petition for a new trial in the trial court raising this precise claim. Consequently, the defendant is not entitled to appellate review of the merits of his claim.

N

Preliminary Determination of the Evidentiary Sufficiency of the Aggravating Factors

The defendant requests that this court invoke its supervisory authority over the administration of justice to require our trial courts, upon request by a defendant charged with a capital felony, to conduct a preliminary hearing to determine whether there is sufficient evidence to establish the existence of the aggravating factor or factors alleged by the state.136 Although the defendant does not seek such a hearing at this advanced *158 stage of the proceedings, he requests that we require such hearings in future capital cases.137

The defendant advances several arguments in support of his contention. First, he maintains that a preliminary hearing would provide a necessary check on the power of the state to allege the existence of aggravating factors for which there is insufficient evidence. Next, he claims that “ ‘the spect[re] of death should not hang over the head of an accused without some basis of fact.’ ” The defendant further claims that the hearing he contemplates would eliminate the unnecessary selection of death-qualified jurors, who, according to the defendant, may be more conviction-prone than non-death qualified jurors.138 Finally, the defendant maintains that considerations of judicial economy militate in favor of such a hearing.139

We decline to exercise our supervisory authority as the defendant requests for two primary, albeit nonexclusive, reasons. First, the procedures governing the prosecution of capital cases are the subject of a comprehensive legislative scheme, and we will not tinker with those procedures in the absence of a compelling justifi *159 cation to do so. Indeed, if the legislature had determined that a preliminary hearing on the sufficiency of evidence supporting the existence of the alleged aggravating factors was appropriate, the legislature would have provided for such a hearing in the statutory scheme. The second reason is related to the first: we are not persuaded that such a preliminary hearing is necessary, because we disagree with the defendant’s basic premise, namely, that prosecutors in this state are apt to allege the existence of aggravating factors without a sufficient basis in fact or for reasons unrelated to the merits of the case. Although it is true that both courts and juries have found on numerous occasions that the evidence adduced by the state was insufficient to sustain a finding of the existence of the aggravating factor alleged by the state—indeed, this case provides an example of each—we are not convinced that this fact alone militates in favor of engrafting a second “probable cause” hearing onto our capital sentencing scheme.140 The mere fact that the state ultimately fails to establish the existence of a particular aggravating factor beyond a reasonable doubt does not mean that the state alleged the existence of that aggravating factor in bad faith. Moreover, as we previously have observed, “[c]onstitutional, statutory and procedural limitations are generally adequate to protect the rights of the defendant and the integrity of the judicial system. Our supervisory powers are invoked only in the rare circumstance [in which] these traditional protections are inadequate to ensure the fair and just administration of the courts.” State v. Hines, 243 Conn. 796, 815, 709 A.2d 522 (1998). Thus, we conclude that, under the circumstances of the present case, it would be inappropriate to invoke our supervisory authority over the administration of justice *160 to require trial courts to conduct the type of hearing that the defendant proposes.

IV

PROSECUTORIAL MISCONDUCT

The defendant contends that he was deprived of his constitutional right to a fair penalty phase hearing owing to the misconduct of the state’s attorney during the penalty phase hearing. Specifically, the defendant claims that the state’s attorney: (1) made irrelevant and prejudicial references to the family of Officer Williams during voir dire, cross-examination and closing arguments; (2) invited the jury, during closing arguments, to ignore the legal standards governing the determination of whether to impose the death penalty; and (3) injected his personal opinions and beliefs into his closing arguments. Because the defendant failed to object to the majority of the conduct that he challenges on appeal,141 he seeks to prevail under State v. Golding, supra, 213 Conn. 233,142 the plain error doctrine143 and this court’s inherent supervisory authority over the administration of justice.144 Although we agree with the *161 defendant that several of the comments made by the state’s attorney were improper, we disagree that those improprieties entitle the defendant to a new penalty phase hearing.145

Before addressing the merits of the defendant’s claim, we first review the principles that govern our resolution of claims of prosecutorial misconduct. “[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, and not the culpability of the prosecutor. . . . The issue is whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . [MJoreover ... [a defendant is not entitled to prevail under Golding] whe[n] *162 the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial.” (Citations omitted; internal quotation marks omitted.) State v. Brown, 256 Conn. 291, 306, 772 A.2d 1107, cert. denied, 534 U.S. 1068, 122 S. Ct. 670, 151 L. Ed. 2d 584 (2001); accord State v. Correa, supra, 241 Conn. 357. “In determining whether the defendant was denied a fair trial [by virtue of prosecutorial misconduct] we must view the prosecutor’s comments in the context of the entire trial.” (Internal quotation marks omitted.) State v. Brown, supra, 297-98.

As we previously have recognized, prosecutorial misconduct of a constitutional magnitude can occur in the course of closing arguments. E.g., State v. Whipper, 258 Conn. 229, 262, 780 A.2d 53 (2001); State v. Broom, supra, 256 Conn. 306. “When making closing arguments to the jury, [however] [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.” (Citation omitted; internal quotation marks omitted.) State v. Whipper, supra, 252-53. “Moreover, [i]t does not follow . . . that every use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument.” (Internal quotation marks omitted.) State v. Singh, 259 Conn. 693, 712, 767 A.2d 1214 (2002).

Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury’s attention from the facts of the case. “[The prosecutor] is not only an officer of the court, *163 like every attorney, but is also a high public officer, representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent. ... By reason of his office, he usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty [is] at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment. If the accused [is] guilty, he should [nonetheless] be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe. While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury ha[s] no right to consider.” State v. Ferrone, 96 Conn. 160, 168-69, 113 A. 452 (1921); accord State v. Williams, 204 Conn. 523, 537-38, 529 A.2d 653 (1987).

Thus, the “prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses. . . . Nor should a prosecutor express his opinion, directly or indirectly, as to the guilt of the defendant. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor’s special position. . . . Moreover, because the jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence ... it is likely to infer that such matters precipitated the personal opinions.” (Internal quotation marks omitted.) State v. Singh, supra, 259 Conn. 713. A prosecutor also may not appeal to the emotions, passions and prejudices of the jurors; e.g., State v. Alexander, 254 Conn. 290, 307, 755 *164 A.2d 868 (2000); or otherwise “inject extraneous issues into the case that divert the jury from its duty to decide the case on the evidence.” (Internal quotation marks omitted.) State v. Whipper, supra, 258 Conn. 271.

“Prosecutorial misconduct [also] may occur in the course of cross-examination of witnesses; State v. Hafner, 168 Conn. 230, 249, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975); and may be so clearly inflammatory as to be incapable of correction by action of the court. Id., 252-53. In such instances there is a reasonable possibility that the improprieties in the cross-examination either contributed to the jury’s verdict of guilty or, negatively, foreclosed the jury from ever considering the possibility of acquittal. Id., 253.” (Internal quotation marks omitted.) State v. Singh, supra, 259 Conn. 700; accord State v. Williams, supra, 204 Conn. 538-39.

“In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. . . . Included among those factors are the extent to which the misconduct was invited by defense conduct or argument; State v. Falcone, 191 Conn. 12, 23, 463 A.2d 558 (1983); the severity of the misconduct; see United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981), cert. denied, 456 U.S. 989, 102 S. Ct. 2269, 73 L. Ed. 2d 1284 (1982); the frequency of the misconduct; State v. Couture, 194 Conn. 530, 562-63, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985) . . . the centrality of the misconduct to the critical issues in the case; Hawthorne v. United States, 476 A.2d 164, 172 (D.C. App. 1984); the strength of the curative measures adopted; United States v. Modica, supra, 1181 . . . and the strength of the state’s case. See [id.] . . . .” (Citations omitted; internal quotation marks *165 omitted.) State v. Whipper, supra, 258 Conn. 262-63; accord State v. Singh, supra, 259 Conn. 700-701.

Furthermore, whether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any of the prosecutor’s improper remarks. When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendant’s right to a fair trial. State v. Negron, supra, 221 Conn. 330; see also State v. Andrews, 248 Conn. 1, 19-20, 726 A.2d 104 (1999) (failure of defense counsel to object to prosecutor’s rebuttal argument suggested that “defense counsel did not believe that it was unfair in light of the record of the case at the time”); State v. Robinson, supra, 227 Conn. 745-46 (failure to object to closing arguments indicated that defense counsel “did not regard . . . remarks as seriously prejudicial at the time they were made”). Moreover, ordinarily, when a defendant who raises an objection to the allegedly improper remarks of a prosecutor elects to pursue one remedy at trial instead of another, he will not be permitted to claim on appeal that the remedy he pursued was insufficient. Cf. State v. Drakeford, 202 Conn. 75, 81, 519 A.2d 1194 (1987).

“[E]ven when prosecutorial misconduct is not so egregious as to implicate the defendant’s [due process] right to a fair trial, an appellate court may invoke its supervisory authority [over the administration of justice] to reverse a criminal conviction when the prosecutor deliberately engages in conduct that he or she knows, or ought to know, is improper. . . . Such a sanction generally is appropriate, however, only when the [prosecutor’s] conduct is so offensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal.” (Citations omitted; internal quotation marks *166 omitted.) State v. Pouncey, 241 Conn. 802, 811-12, 699 A.2d 901 (1997). Thus, in cases in which prosecutorial misconduct does not rise to the level of a constitutional violation, we will exercise our supervisory authority to reverse an otherwise lawful conviction only when the drastic remedy of a new trial is clearly necessary to deter the alleged prosecutorial misconduct in the future. See, e.g., State v. Andrews, supra, 248 Conn. 20. Accordingly, “[r]eversal of a conviction under [our] supervisory powers . . . should not be undertaken without balancing all of the interests involved: the extent of prejudice to the defendant; the emotional trauma to the victims or others likely to result from reliving their experiences at a new trial; the practical problems of memory loss and unavailability of witnesses after much time has elapsed; and the availability of other sanctions for such misconduct.” (Internal quotation marks omitted.) State v. Pouncey, supra, 813. With these overarching principles in mind, we turn to the defendant’s specific allegations of prosecutorial misconduct.

A

References to Officer Williams’ Family

The defendant claims that the state’s attorney repeatedly made improper, prejudicial and gratuitous references to Officer Williams’ wife and children, and to the anguish that they had suffered as a result of Williams’ death. The defendant contends that the sole objective of the state’s attorney in making these allegedly inflammatory comments was to arouse the passions of the jury to the detriment of the defendant and, further, that the remarks of the state’s attorney likely achieved their intended effect. According to the defendant, these improprieties occurred during the voir dire process, during cross-examination of several defense witnesses and during closing arguments.

*167 The defendant first claims that the state’s attorney made several unnecessary and prejudicial references to Williams’ family during his introductory remarks to several panels of venirepersons during jury selection.146 In support of his claim, the defendant notes that the state’s attorney stated that Williams had a wife and children who lived in Wolcott, and that some members of the Williams family would be present in the courtroom during the penalty phase hearing.

The defendant also challenges the propriety of certain statements made by the state’s attorney during his cross-examination of several of the defendant’s witnesses. First, the state’s attorney asked James McLaughlan, one of the ambulance attendants who had transported Williams to the hospital, if he knew the name of Williams’ wife.147 Second, during his cross-examination of the defendant’s sister, Jacqueline Reynolds, about her grandfather’s death and its impact on the defendant,148 the state’s attorney asked: “And to lose aparent at ayoung age like that is just a terrible, terrible, terrible thing, isn’t it?” The state’s attorney also asked the defendant’s sister about the difficulties that her grandmother had encountered after her grandfather’s death. Specifically, the state’s attorney asked: “[It is] *168 tough being a single parent, isn’t it?”149 The defendant challenges the propriety of both of those questions, claiming that they were thinly veiled attempts to remind the jury of the tragic consequences of Williams’ death.

A third instance of alleged improper cross-examination by the state’s attorney involves his questioning of John Collins, a psychologist retained by the defendant. Collins testified on direct examination that he administered the Thematic Apperception Test (test) to the defendant. Collins explained that, as part of the test, he had shown the defendant a drawing of a reclining female figure. According to Collins, the defendant interpreted the drawing as depicting a wife worrying about her husband who had been critically injured in a serious accident. Collins opined that, inasmuch as the defendant’s grandfather had died as a result of injuries he had suffered in an accident, the defendant’s reaction to the drawing supported the conclusion that the defendant had been affected deeply by his grandfather’s death. On cross-examination, the state’s attorney asked Collins if he knew that Williams had a wife, that Williams had lived for fifteen hours after having been shot by the defendant, and that this fifteen hour time period was extremely traumatic for Williams’ wife.150 After reciting certain details relating to the shooting and its immediate aftermath, the state’s attorney then asked Collins if he saw any parallel between the suffering that Williams’ wife and the defendant’s grandmother were forced to endure while awaiting word as to whether their respective husbands would survive the critical injuries that they had sustained.151 Finally, the state’s attorney elic *169 ited testimony from Collins that at no time during Collins’ interviews with the defendant did the defendant express remorse for killing Williams or for the pain that he had caused Williams’ family.152

The defendant also contends that the state’s attorney improperly referred to Williams’ suffering and that of his family during closing arguments. In particular, the defendant refers to three occasions on which the state’s attorney mentioned that Williams had died “one week before Christmas.” On each such occasion, the state’s attorney referred to the temporal proximity of Christmas to the shooting in furtherance of his argument that Williams had suffered extreme psychological pain,153 a fact necessary to establish the existence of the aggravating factor enumerated in § 53a-46a (h) (4).154 See part III B 1 of this opinion.

The defendant alleges a second improper reference to Williams’ wife and family during a rebuttal argument in which the state’s attorney alluded to certain comments that defense counsel had made in his closing argument about the aggravating factor enumerated in § 53a-46a (h) (4). Specifically, defense counsel argued, in support of his contention that the state’s attorney had failed to prove the existence of that aggravating *170 factor, that “there is a difference between somebody who intentionally kills somebody and somebody who taunts them, somebody who tortures them psychologically. Now you know what we’re talking about. You’ve seen it in every Clint Eastwood movie made. You’ve seen it in all sorts of literature [and] television program^]. This is the psychopath who before he shoots the person starts talking about, ‘you’re going to die.’ And he inflicts upon them psychological—extreme psychological pain above and beyond that necessarily accompanying the killing.” In his rebuttal argument, the state’s attorney responded to defense counsel’s comments by stating: “And [defense counsel is] . . . very, very, very wrong in another respect. This is not a Clint Eastwood movie. This is real life. This is life in an urban center in 1990 in America. In a Clint Eastwood movie, Officer Williams would have been able, after being shot in the head—would have been able, when the director called ‘cut,’ to get up and go to his wife and family. This is not a movie. . . . [R]eal life doesn’t happen like things happen in the movie[s].”155 (Emphasis added.)

The defendant claims that the state’s attorney made yet another improper reference to Williams’ family during closing arguments. At the conclusion of his closing argument, the state’s attorney urged the jury to view the photographs that had been taken in connection with the autopsy performed on Williams. In directing the jury’s attention to those photographs, the state’s attorney noted that defense counsel had introduced the defendant’s family album into evidence. The state’s attorney then referred to the autopsy photographs as the “Williams [family] album” and informed the jurors that they also would have that album in the jury room *171 to review. The state’s attorney further stated that the defendant “created these [autopsy] pictures and I know they are not pleasant to look at and they weren’t introduced . . . and shown to you to make you feel uneasy. They were introduced because this is what [the defendant] left the [Williams family]. That’s their family album.”156

The state maintains that none of the foregoing comments was improper. According to the state, the state’s attorney was entitled to apprise the venirepersons that Williams had a wife and children who resided in Wolcott so that prospective jurors could determine whether they knew any member of the Williams family. The state also claims that the fact that Williams had a wife and children was admissible for the purpose of establishing the extreme psychological pain or torture element of the aggravating factor enumerated in § 53a-46a (h) (4), because there is a reasonable likelihood that Williams would have been thinking about his family as he lay in the street, critically wounded, while the defendant fired six additional gunshots in his direction. The state further contends that testimony and argument as to the impact of Williams’ death on his wife and children was appropriate under General Statutes (Rev. to 1991) § 53a-46a (d),157 which provides that the jury “shall . . . determine whether a particular factor concerning the defendant’s character, background or history . . . has been established by the evidence, and shall determine further whether that factor is mitigating in nature, considering all the facts and circumstances of the case.”158 *172 (Emphasis added.) According to the state, the impact of a capital felony on Williams’ family is undeniably one of the relevant “facts and circumstances of the case.” General Statutes (Rev. to 1991) § 53a-46a (d).

We reject the defendant’s claim that it was improper for the state’s attorney to have referred to Williams’ wife and children and their town of residence in his remarks to prospective jurors. Both the state and the defendant had the right to apprise prospective jurors of the identities of persons connected with the case so that those prospective jurors could ascertain whether they knew any such person and, if so, report that potentially disqualifying fact to the court and to the parties.159

The defendant’s more substantive claim of impropriety relates to the references of the state’s attorney, during cross-examination and closing arguments, to the mental pain and anguish that Williams’ wife and children had suffered as a result of Williams’ death. Before addressing this claim, however, it is important to emphasize that the federal constitution erects no per se bar to the state’s use of victim impact evidence in capital cases. In Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991), the United States Supreme Court stated that “a [s]tate may properly conclude that for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. [T]he [s]tate has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss *173 to society and in particular to his family. . . . [I]f the [s]tate chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A [sjtate may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed.”160 (Citations omitted; internal quotation marks omitted.) Id., 825-27; see also Jones v. United States, 527 U.S. 373, 395, 119 S. Ct. 2090, 144 L. Ed. 2d 370 (1999). The court further explained that, “[i]n the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the [d]ue [p]rocess [c]lause of the [fjourteenth [a]mendment provides a mechanism for relief.” Payne v. Tennessee, supra, 825.

Although the court in Payne opined that victim impact evidence “serves entirely legitimate purposes” in most capital cases; id.; it did not purport to adopt a rule authorizing the use of such evidence in all capital cases. The court made clear, rather, that a state is free to permit the use of such evidence, if it so chooses, subject only to constraints of due process. Id., 825-27. As we have indicated, the state contends that § 53a-46a (d) reflects a determination by our legislature that victim impact evidence is admissible in penalty phase hearings inasmuch as that statutory provision expressly requires the fact finder to determine whether the mitigation evidence introduced by the defendant is sufficient, “considering all the facts and circumstances of the case”; General Statutes (Rev. to 1991) § 53a-46a (d); to *174 warrant a sentence of life imprisonment without the possibility of release rather than a sentence of death.161

In light of Payne, we need not decide, for purposes of the present case, whether § 53a-46a (d) authorizes the use of victim impact evidence in capital cases, because even if we assume, arguendo, that it does not, the defendant can prevail on his constitutional claim only if he can establish that the references made by the state’s attorney concerning the suffering of Williams’ family were so inflammatory and prejudicial as to render his penalty phase hearing fundamentally unfair. We are not persuaded that the defendant has demonstrated that the remarks of the state’s attorney deprived him of a fair hearing.

With respect to the questions about the suffering of Williams’ family, those questions were few in number and were neither asked nor answered in such a manner as to give rise to any reasonable likelihood of prejudice to the defendant. Indeed, jurors necessarily are aware that the tragic loss of a loved one inevitably causes great emotional distress to the family of the decedent; the questions posed by the state’s attorney did no more than underscore that obvious fact. Thus, the state’s attorney’s questions on cross-examination about the grief and suffering of the Williams family were not so inflammatory or provocative as to cause undue prejudice to the defendant.

We also disagree with the defendant that the references to Christmas were gratuitous and likely to arouse the passions of the jury. First, the state plausibly argued that Williams’ mental suffering may have been exacerbated by his realization that he likely would not have been with his family to celebrate Christmas. Even if we assume, however, that, contrary to the state’s argument, *175 the proximity of the shooting to Christmas was irrelevant to the issue of Williams’ suffering, we nevertheless are not persuaded that the references to Christmas had any bearing on the jury’s verdict. Although it is true that the state’s attorney mentioned Christmas on three occasions during closing arguments, his comments regarding Christmas did not comprise a major focus or theme of those arguments. Rather, the comments were more in the nature of passing references. Furthermore, on each such occasion, the state’s attorney expressly linked the reference to Christmas to Williams’ suffering in order to establish the aggravating factor of § 53a-46a (h) (4). The state’s attorney did not refer to Christmas in such a manner as to create a realistic risk of unfair prejudice to the defendant. Under the circumstances, therefore, we are not persuaded that the brief references to Christmas caused the defendant any appreciable harm.

With respect to the reference to the autopsy photographs, we agree with the defendant that characterizing those photographs as the “Williams [family] album” exceeded the bounds of appropriate argument. Although the state contends that the comments of the state’s attorney were a fair rejoinder to the defendant’s use of his family album, we believe, to the contrary, that the comments constituted an improper appeal to the emotions of the jury. As we have indicated, some leeway is permitted to account for zeal of counsel in the heat of closing arguments, which “are seldom[ly] carefully constructed in toto before the event . . . .” Donnelly v. DeChristoforo, 416 U.S. 637, 646-47, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974). The reference of the state’s attorney to the autopsy photographs as the “Williams [family] album,” however, cannot be defended as mere rhetorical flourish.

Nevertheless, we are not persuaded that that reference violated the defendant’s right to a fair penalty *176 phase hearing. The reference, although improper, was brief and isolated, and did not direct the jury’s attention to facts not in evidence. Moreover, the defendant failed to object to the reference. As we previously have noted, defense counsel’s failure to object to the allegedly improper argument when it was made indicates that counsel did not consider it to be unfair or seriously prejudicial in light of the record of the case at the time.162 E.g., State v. Andrews, supra, 248 Conn. 19-20; see State v. Satchwell, 244 Conn. 547, 565, 710 A.2d 1348 (1998). When the reference to the autopsy photographs is viewed in the broader context of the entire penalty phase hearing, we are convinced that it did not so taint that hearing as to render it unfair.

We conclude, therefore, that the questions and comments of the state’s attorney regarding Williams’ wife and children and the impact of his death on them were not unduly prejudicial. Consequently, the defendant has failed to establish that those questions and comments violated his due process rights or that they otherwise require a new penalty phase hearing.

B

Inviting the Jury to Ignore the Law

The defendant next claims that the state’s attorney engaged in misconduct in his closing argument by inviting the jury to ignore the legal principles that govern the *177 question of whether death is the appropriate sentence. Specifically, the defendant maintains that the state’s attorney improperly: (1) suggested that the jury was not ultimately responsible for determining whether the defendant would be sentenced to death or to life imprisonment without the possibility of release; (2) indicated to the jurors that their “oath” and “civic duty” required them to find that the defendant’s conduct warranted the imposition of the death penalty; (3) urged the jury to return a verdict that would send a message to the community regar ding the conduct of the defendant; (4) argued that a capital defendant who, like the defendant, commits the “ultimate crime,” should receive the “ultimate penalty”; (5) mischaracterized the function of the mitigating factors under our capital sentencing scheme; and (6) urged the jury to draw an adverse inference from the defendant’s failure to call his father as a witness in support of the existence of mitigating factors. We reject each of these claims, which we address in turn.

1

The defendant first contends that the state’s attorney improperly argued to the jury that it was responsible only for finding facts and not for the ultimate determination of whether the defendant should five or die. We disagree.

We begin our consideration of this claim by acknowledging that a capital defendant has an eighth amendment right to “a capital sentencing jury [that] recognizes the gravity of its task and [that] proceeds with the appropriate awareness of its truly awesome responsibility.” (Internal quotation marks omitted.) Caldwell v. Mississippi, supra, 472 U.S. 341, quoting McGautha v. California, 402 U.S. 183, 208, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971). Because of the “[e]ighth [a]mendment’s heightened need for reliability in the determination that death is the appropriate punishment in a specific case; *178 Caldwell v. Mississippi, supra, [340], quoting Woodson v. North Carolina, [supra, 428 U.S. 305]; see State v. Ross, supra, 230 Conn. 230; the jury must be fully aware of its determinative role in our capital sentencing process.” (Internal quotation marks omitted.) Breton II, supra, 235 Conn. 246. Consequently, “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Caldwell v. Mississippi, supra, 328-29; see also Breton II, supra, 245-46. In addition, it is improper for a prosecutor to argue to the jury that it is not ultimately responsible for determining whether the capital defendant will live or die; see, e.g., Caldwell v. Mississippi, supra, 325-26, 333; and “[s]uch comments, if left uncorrected, might so affect the fundamental fairness of the sentencing proceeding as to violate the [e]ighth [a]mendment.” Id., 340. A review of the closing argument of the state’s attorney in the present case, however, does not support the claim that he improperly advised the jury that it was not responsible for deciding whether the defendant would live or die.

At the beginning of his closing argument, the state’s attorney stated that “[t]here’s been a lot of evidence presented, a lot of testimony and, indeed, the task you’re about to embark on is, as we’ve said from the beginning when we were questioning you in voir dire . . . perhaps the most awesome task that the government could ever ask one of its citizens to participate in, that is, determining whether or not the death penalty should be imposed in this case.

“Now, in our final arguments, I’m going to allude to some of the evidence. I’m also going to make comments about the law. Now the important thing to remember about that—and I’m sure [defense counsel] is going to do the same thing—the important thing to remember *179 about that, what I say the facts are or what I view the evidence to be or what [defense counsel] views the evidence to be or even what [the judge] may comment on the evidence, the facts of this case are not what I believe the facts to be, not what [defense counsel] believes the facts to be, or not even what [the judge] believes the facts to be. The job of deciding what the facts in this case are—that’s what the jury does. The jury decides the facts. So if I state a fact that . . . you may disagree with, I’m not trying to mislead you. That’s just my recollection of the facts, but again, it’s your recollection of the facts that counts.

“And . . . you must follow what the judge says the law is. Nobody is going to intentionally try to mislead you, but if my version of the law or [defense counsel’s] version differs from what the judge says it is, it’s the judge that you have to follow because, again, as we said during the voir dire process, the job of the jury— you decide what the facts are, you take the law from the judge, you apply the law to the facts, and that’s how [you] come up with your decision.”

The state’s attorney continued: “Now, the task that is before you ... is unique .... The defendant has already been proven guilty beyond a reasonable doubt .... And because it is a capital felony conviction . . . that is what brings us here, to determine what the appropriate punishment would be.

“And again . . . there is a lot of talk and controversy and debate about the death penalty and a lot of people . . . they say if it was up to me, I’d pull the switch or I don’t believe in the death penalty. And I think some of your attitudes may have reflected one way or the other when you first came in. But believe me, I know that today what we’re asking you to do is to make that decision and it is not easy at all. I know it’s not easy for anyone in this courtroom. It’s not easy for me. I *180 think the most awesome task that I will ever face in my entire life being a lawyer, being a state’s attorney, being a human being is to come before people and ask them to make a decision that will lead to the death of another human being. That’s not easy for me. . . . It’s not easy, but that doesn’t mean it can’t be done. It has to be done.”

The defendant asserts that these remarks were misleading because they suggested that the jury was not truly responsible for determining whether the defendant would receive a sentence of death or life imprisonment without the possibility of release. In essence, the defendant contends that the state’s attorney minimized the jury’s responsibility by indicating that its function was limited to “apply[ing] the law to the facts . . . .” We disagree that the remarks of the state’s attorney conveyed any such improper suggestion.

The state’s attorney initially explained the respective functions of the court and the jury by emphasizing that the court’s role is to apprise the jury of the applicable law and the jury is responsible for finding the facts and applying the law to those facts. This explanation of the respective roles of the court and the jury was accurate in all respects.

Thereafter, the state’s attorney repeatedly reminded the jurors of their responsibility to decide that ultimate question. First, the state’s attorney emphasized that “the task you’re about to embark on is, as we’ve said from the beginning when we were questioning you in voir dire . . . perhaps the most awesome task that the government could ever ask one of its citizens to participate in, that is, determining whether or not the death penalty should be imposed in this case.” (Emphasis added.) Second, the state’s attorney emphasized that “the job of the jury ... [is to] decide what the facts are, [to] take the law from the judge, [to] apply the law to the *181 facts, and that’s how [you] come up with your decision.” (Emphasis added.) Third, the state’s attorney emphasized that “the task that is before you ... is unique .... And because it is a capital felony conviction . . . that is what brings us here, to determine what the appropriate punishment would be.” (Emphasis added.) Fourth, the state’s attorney stated: “[A] lot of people . . . say if it was up to me, I’d pull the switch or I don’t believe in the death penalty. . . . But believe me, I know that today what we’re asking you to do is to make that decision and it is not easy at all. . . . It’s not easy, but that doesn’t mean it can’t be done.” (Emphasis added.) The foregoing comments forcefully underscored the jury’s “unique” and “awesome” responsibility of determining whether the defendant would live or die.

Furthermore, the trial court properly instructed the jury regarding its responsibility in relevant part: “You, the jury, will make the determination of facts which will result in the court imposing [a sentence of death or a sentence of life imprisonment without the possibility of release]. Specifically, you will be asked to determine the existence or nonexistence of aggravating and mitigating factors based upon the evidence adduced at the hearing. The existence or nonexistence of these factors will dictate the ultimate sentence. You must recognize that your decision is not one of simply making objective factual findings. Rather, you are, in fad and in law, actually making the decision whether the defendant should be sentenced to life imprisonment with no possibility of release or to death. Your response, therefore, is truly of immense proportion as you are no doubt aware. Basically, if you find the state has proven the existence of an aggravant beyond a reasonable doubt and are further satisfied that the defense has failed to prove any mitigating factor by a preponderance of the evidence, then the court will *182 impose the death penalty. If the state fails to prove an aggravating [factor] or the defense proves any mitigating factor, the court will then impose a sentence of life without the possibility of release.” (Emphasis added.)

We find no merit to the defendant’s contention that the comments of the state’s attorney led the jury to believe that it was not ultimately responsible for determining whether the defendant would be sentenced to death or to life imprisonment without the possibility of release. Moreover, any possibility of confusion was eliminated by the trial court’s clear and forceful instructions. We therefore reject the defendant’s claim.

2

The defendant also maintains that the state’s attorney improperly suggested to the jurors that his oath of office required him to seek the death penalty and that their oath and “civic duty” obligated them to return a verdict requiring the imposition of the death penalty. The state responds that the challenged argument was nothing more than a reminder to the jurors of their duty to set aside any personal feelings about the death penalty and to decide the issue solely on the basis of the law and the facts. We are not persuaded that the comments of the state’s attorney require a new penalty phase hearing.

The following additional facts are necessary to our resolution of this claim. After telling the jury that it had the “awesome task” of “determining whether or not the death penalty should be imposed,” the state’s attorney remarked: “I took an oath to enforce the laws of the state of Connecticut. The judge took an oath and you as jurors took an oath to see that the laws of the state of Connecticut are upheld and I do this, I make this argument to you . . . because I, like you, have taken an oath to uphold and enforce the law. And, indeed, if the facts are there and the law calls for it, based on my oath and your oath and the court’s oath, the death *183 penalty must be imposed. ... I know it’s not easy. I don’t take it lightly and I know nobody on this panel takes it lightly and [the judge] doesn’t take it lightly, but it’s asking—we’ve been sworn as citizens as part of our civic duty to do.”

At the conclusion of closing arguments and before the court instructed the jury, defense counsel objected to the comments of the state’s attorney concerning his “oath” and the oath taken by the jurors. Defense counsel further requested the court to instruct the jurors that defense counsel, too, had taken such an oath. The court overruled the objection and also refused to instruct the jury in accordance with defense counsel’s request.

As the defendant contends, it generally is improper for the state to argue that the jurors’ oath obligates them to return a particular verdict because such language poses a risk of diverting the jury from its duty of deciding the case on the basis of the evidence and the applicable law. E.g., State v. Pennington, 119 N.J. 547, 576, 575 A.2d 816 (1990). We are not persuaded, however, that the comments of the state’s attorney, when considered in context, were likely to have had such an effect. The comment to which the defendant primarily objects, namely, “based on . . . your oath . . . the death penalty must be imposed,” was immediately preceded by the qualifying statement, “if the facts are there and the law calls for it . . . .” The comment regarding the jurors’ “civic duty” also was qualified by an earlier reference to the facts and the law. Thus, the challenged argument was a rhetorical device employed by the state’s attorney to remind the jurors of their duty to render a verdict requiring a sentence of death if, upon application of the facts to the law, that verdict was appropriate.

We also believe, however, that the state’s attorney should not have referred to his oath of office in *184 explaining why, in his view, the defendant should receive a death sentence. A jury in a capital case undoubtedly knows that the prosecutor has concluded that the death penalty is warranted under the particular facts of the case. A prosecutor is not justified, however, in suggesting, by reference to his oath, that it is his sworn duty to seek the death penalty. Argument of that kind is all too likely to convey the false impression that, under the circumstances, the law requires the state to seek execution in all capital cases.163 In the present case, however, the reference of the state’s attorney to his oath of office was a fleeting one, and he did not repeat or otherwise emphasize it. In light of the fact that the jurors repeatedly were apprised that it was their responsibility, and their responsibility alone, to determine the appropriate sentence, there is no reason to believe that the isolated reference of the state’s attorney to his oath had any bearing on the jury’s verdict. We therefore conclude that none of the challenged comments requires a new penalty phase hearing.

3

The defendant next claims that the state’s attorney improperly invited the jury to send a message to the community by returning a verdict requiring a sentence of death. We disagree.

During his argument to the jury, the state’s attorney remarked: “The death penalty is about a person being told by society you have to take responsibility for your conduct. That’s what the death penalty is: society as a community pointing to someone who has committed a terrible crime, who has committed the ultimate crime, *185 and sayfing] to that person you have to take responsibility for your actions. Don’t blame your father. Don’t blame your teacher in school. . . . Step up and take responsibility for your actions. You committed the ultimate crime. Now you must pay with the ultimate penalty. That’s what the death penalty is about. That’s the message that has to be sent. Richard, Kilt, David Robinson,164 whatever your name is, you committed the ultimate atrocity. . . . Take responsibility for that.”

After closing arguments and before the court charged the jury, defense counsel objected to the comment that the jury should send a message by its verdict and requested a curative instruction that sending a “message” to the community was not a proper consideration for the jury. Neither the court nor the state’s attorney could recall the challenged argument, and the court therefore overruled the objection and refused to give the requested instruction. On appeal, the defendant renews his claim that it is improper for a prosecutor to exhort the jury to send a message to the community by returning a verdict requiring the imposition of the death penalty.165

*186 We reject the defendant’s claim because we disagree with his characterization of the state’s attorney’s argument. Although the state’s attorney did state that the jury should send a “message,” he did not urge the jury to send that message to the community but, rather, to the defendant himself The state’s attorney first explained that the death penalty reflected society’s judgment as to the price that an accused should pay for committing the “ultimate crime . . . .” He next indicated that because the defendant had committed such a crime, the defendant should suffer the “ultimate penalty,” namely, death. In making this point, the state’s attorney urged the jury to send “the message that has to be sent” by saying to the defendant, through its verdict requiring the imposition of a death sentence, that, “you committed the ultimate atrocity. . . . Take responsibility for that.”

Thus, a fair interpretation of the challenged argument leads us to conclude that the defendant, not the community, was the intended receiver of the message that the state’s attorney urged the jury to send through its verdict.166 Consequently, the defendant’s claim is without merit.

*187 4

The defendant next claims that the state’s attorney improperly argued that, because the defendant had committed the “ultimate crime,” he should receive the “ultimate penalty.” We are not persuaded by the defendant’s claim. The use of such rhetoric in closing argument is not necessarily inappropriate. E.g., State v. Singh, supra, 259 Conn. 712. The state’s attorney used the challenged language in the course of extended argument as to why the jury should hold the defendant accountable for his conduct, which, by any standard, was egregious. When viewed in that context, the remarks were not improper.

5

The defendant further contends that the state’s attorney’s closing argument contained several misleading and prejudicial statements regarding the mitigating factors alleged by the defendant. The defendant claims that he is entitled to a new penalty phase hearing because the state’s attorney: (1) mischaracterized the proof necessary to establish two of those mitigating factors; (2) argued that the jury should not find the defendant’s confession to be a mitigating factor as alleged by the defendant because he never expressed remorse for murdering Williams; and (3) improperly characterized several of the defendant’s mitigating factors as “emotional blackmail.” The state contends that the comments of the state’s attorney were not improper. The state also asserts that, to the extent that any of the relevant comments were inaccurate, they were neither intentionally misleading nor prejudicial. We conclude that, although several of the state’s attorney’s comments were improper, those improper comments do not merit a new penalty phase hearing.

The defendant first claims that the state’s attorney misled the jury with respect to the proof necessary to *188 establish two of the mitigating factors alleged by the defendant. Specifically, the defendant asserts that, with respect to the nonstatutory mitigating factor relating to the defendant’s allegedly abusive childhood, the state’s attorney incorrectly suggested that the defendant was required to establish that he had murdered Williams “because of’ his allegedly abusive childhood. The defendant further claims that the state’s attorney incorrectly indicated that, in order to prove the existence of the statutory mitigating factor enumerated in § 53a-46a (g) (2),167 the defendant was required to demonstrate that he was unable to “conform his conduct to the requirements of law . . . .” General Statutes (Rev. to 1991) § 53a-46a (g) (2). The defendant contends that he was prejudiced by this comment because the mitigating factor enumerated in § 53a-46a (g) (2) requires proof only that the defendant’s “ability to conform his conduct to the requirements of law was significantly impaired . . . .” (Emphasis added.) General Statutes (Rev. to 1991) § 53a-46a (g) (2).

The following excerpts from the transcription of the state’s attorney’s closing argument and the trial court’s jury instructions are necessary to our resolution of the defendant’s claim. The state’s attorney commenced his closing argument with the admonition that, if either counsel’s comments about the law differed from the instructions of the court, the jurors “must follow what the judge says the law is. Nobody is going to intentionally try to mislead you, but if my version of the law . . . differs from what the judge says it is, it’s the judge that you have to follow . . . .” Later, after summarizing the evidence adduced by the defendant in support of his claim that he had been subject to abuse as a child, the state’s attorney commented: “So [the defendant’s mental health experts] come in and . . . say [that the defendant] had a terrible childhood. You have to ask *189 yourselves if [the defendant] had such a terrible childhood and because of this terrible childhood he shot Officer Williams.” (Emphasis added.)

With respect to the defendant’s proof concerning the mitigating factor enumerated in § 53a-46a (g) (2), the state’s attorney remarked: “[Defense counsel] ... is going to stand up and tell you why [the defendant] shot . . . Williams. He’s going to tell you it’s because of his antisocial personality disorder. He can’t conform his conduct to the law. That’s what he’s going to tell you. I haven’t heard him say that but I know he’s going to tell you that. Couldn’t conform his conduct to the law? When he wanted to do good in school, he could. When he wanted to be a good son and be a mechanic, he could. When he wanted to help the kids in the neighborhood fix their bike, he could. To say that because of their—you know, to say that people who have this personality disorder shouldn’t be held responsible [for] the ultimate punishment is nonsense.” (Emphasis added.)

Thereafter, defense counsel asserted during his closing argument that the evidence supported the existence of the nonstatutory mitigating factor regarding the defendant’s allegedly abusive childhood. In explaining that mitigating factor, defense counsel repeatedly argued that the defendant’s difficult childhood, although not an excuse for his crime, “mattered] enough” to warrant a sentence of life imprisonment without the possibility of release rather than a death sentence. Defense counsel also emphasized that the mitigating factor enumerated in § 53a-46a (g) (2) requires only that the defendant establish that his psychiatric condition significantly impaired his ability to conform his conduct to the law, not that he establish that his condition was so “extreme” that it “caused [the defendant] to shoot” Williams.

Thereafter, the court instructed the jury on the law governing mitigating factors. With respect to the miti *190 gating factor enumerated in § 53a-46a (g) (2), the court informed the jury that “the defendant claims . . . [t]hat, at the time [he] committed the capital felony, his ability to conform his conduct to the required elements of law was significantly impaired but not so impaired as to constitute a defense for the prosecution.” After reminding the jury that the defendant’s claim under § 53a-46a (g) (2) was predicated on evidence adduced by the defendant that he suffered from “a condition known as antisocial personality disorder,” the court continued: “It should be noted that, as a matter of law, the condition does not constitute a defense to the crime of capital felony. The inquiry as to the defendant’s ability to conform his conduct to the requirements ... of [the] law relate [s] to his condition at the time of the offense. The question is whether he was or was not significantly impaired at that time, that is, impaired to a degree that affected his conduct in some noticeable or material manner. . . .

“Thus, to find the existence of this statutory mitigating factor, you must find the following elements proven to you by a preponderance of the evidence: number one, that at the time of the capital felony, number two, his ability to conform his conduct to the requirements of the law was significantly impaired. If you find this statutory mitigating factor proven by a preponderance of the evidence, then the court will impose the penalty of life without the possibility of release.”

Under all of the circumstances, we disagree with the defendant that the comments of the state’s attorney were likely to have confused or misled the jury regarding the proof necessary to establish either the statutory mitigating factor enumerated in § 53a-46a (g) (2) or the nonstatutory mitigating factor concerning the defendant’s allegedly abusive childhood. The brevity of the ostensibly objectionable comments belies the defendant’s suggestion that the state’s attorney intentionally *191 misstated the essential nature of the mitigating factors alleged by the defendant. At most, the challenged comments were inaccurate in a technical sense only, and any such inaccuracy was not likely to have affected the jury’s view of the alleged mitigating factors. Indeed, defense counsel’s failure to object to the challenged statements when they were made strongly supports our conclusion. Moreover, as we have indicated; see footnote 166 of this opinion; closing argument is rarely scripted and, as in the present case, counsel are required to address a broad range of issues within the time frame allotted by the court.168 Closing argument must be considered in light of this reality and in the broader context of the entire case. To hold that the challenged comments were improper would require us to engage in the kind of hindsight dissection of closing argument that we generally have refused to undertake on appeal. See, e.g., State v. Brown, supra, 256 Conn. 304; State v. Copas, supra, 252 Conn. 337.

Finally, the state’s attorney reminded the jurors that the court, not counsel, was responsible for instructing the jury on the law. In addition, defense counsel accurately summarized the precise nature of the mitigating factors, and the court properly instructed the jury on the law governing mitigating factors generally and on the particular mitigating factors alleged by the defendant. We conclude, therefore, that the defendant’s contention of prosecutorial impropriety is without merit.

The defendant also claims that the state’s attorney improperly argued that the defendant’s confession should not be considered a mitigating factor because the defendant lacked remorse for having murdered Wil *192 Hams and, in fact, had denied doing so. We reject this claim.

The evidence adduced at the penalty phase hearing revealed that several hours after the shooting, investigators learned that Robert Bryant had information relating to the crime. The investigating officers interviewed Bryant, who told them that he had been in Karen Smith’s apartment earlier that morning when the defendant and Anthony Crawford came running in and “talked about shooting the police officer.” The officers then went to Smith’s apartment169 and entered the apartment with Smith’s consent. The door through which the investigating officers entered Smith’s apartment opened directly into Smith’s bedroom, where the defendant was lying in bed. Sergeant O’Leary asked the defendant his name, and the defendant told O’Leary that his name was “David.” Other officers found Crawford lying on a couch in the living room. O’Leary asked the defendant to go into the living room and join Crawford on the couch, and the defendant did so. O’Leary then asked the defendant and Crawford their names. The defendant identified himself as David Robinson, and Crawford told O’Leary that his name was Jamal James. Ultimately, Crawford admitted his true identity. After establishing Crawford’s identity, O’Leary asked the defendant and Crawford where they had been earlier that morning. Both men indicated that they had been in Smith’s apartment all night and denied having any knowledge of the shooting. Both the defendant and Crawford then agreed to accompany the investigating officers to the police station. Upon their arrival at the station, the two men were separated and interviewed individually.

After being advised of his rights, the defendant initially denied having any knowledge of the shooting. The *193 defendant told Inspector Maia of the Waterbury office of the state’s attorney that “Derrick shot the cop.” When asked who Derrick was, the defendant stated that Crawford would know who he was.

The police then questioned Crawford about Derrick. Crawford responded that Derrick did not exist. Crawford thereafter admitted that he was present when the defendant shot Williams. Other investigators learned from Smith that the defendant had admitted to her that he had shot Williams and that he had expressed sorrow for what he had done. Armed with this information, Maia and Detective Keegan confronted the defendant and told him that Smith had given a sworn statement that the defendant had told her that he had “just shot a police officer.” Keegan then indicated that the defendant should take responsibility for his actions, and Maia suggested that the defendant should “get it off his chest . . . .” The defendant then put his head in his hands and said, “I did it. I shot the cop.” When asked about the gun that had been used in the shooting, the defendant responded that it was “in transit” and never would be found. Keegan asked the defendant if he would be willing to provide a written statement explaining his involvement in the shooting, and the defendant agreed. Before Keegan could locate a typewriter to take the defendant’s statement, however, the defendant indicated that he wanted to speak to an attorney before proceeding any further.

During the fingerprinting process, the defendant again stated that his name was David Robinson and signed the fingerprint identification card in that name. After taking the defendant’s fingerprints, the police immediately sent the fingerprint identification card to the identification division of the Federal Bureau of Investigation (FBI). Within one hour, the FBI notified the Waterbury police that the fingerprints were those of Richard Reynolds. O’Leary then asked the defendant *194 if that was his real name, and the defendant answered in the affirmative.

The defendant did not again acknowledge his involvement in the shooting. In fact, John Collins, the psychologist who testified for the defendant, indicated that the defendant had denied to him that he had committed the crime.170

The defendant alleged numerous mitigating factors, one of which was his cooperation with the police in admitting that he had shot Williams. The defendant also alleged as a mitigating factor that he had demonstrated remorse for his conduct by telling Smith that he was sorry for shooting Williams.

In his closing argument, the state’s attorney commented in relevant part: “There’s one [mitigant] in here. It says, well, it’s mitigating because when [the defendant] went to the police station [and] when Inspector[s] Keegan171 and Maia told him to get it off his chest, he admitted it. He said, I shot the cop. So that’s mitigating? What was all the stuff that led up to that scenario prior to him saying I shot the cop? He lied to the cops about his name. He lied up at the house. He gave his name as David Robinson. He lied to the police about his name. They only found out who he really was [when] they got his fingerprints back from the FBI and did he confess to the police? After he was advised of this rights . . . what . . . did he say, gee, I’m sorry I shot the cop, I didn’t mean it? Derrick shot the cop? Remember he told *195 Mala that? That’s remorse? That’s forgiveness? That’s a mitigating factor?

“He also told him [that] you’re not going to find the gun. My gun’s a .45 [caliber] and the gun is in transit. So that’s again . . . the kind of thing I’m asking . . . you [to] look at when you look at this list they172 proposed and it’s their list. It’s not the legislature’s list like the aggravants are. It’s not [the judge’s] list. It’s their list.”

The defendant contends that these remarks improperly suggested to the jury that his inculpatory statement to the police was not a valid mitigating factor because the defendant also had not shown any remorse for the crime. We are not persuaded by this argument. General Statutes (Rev. to 1991) § 53a-46a (c)173 provides in relevant part that “ [a]ny information relevant to any mitigating factor may be presented by either the state or the defendant . . . [and] [t]he state and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any mitigating . . . factor. ...” Thus, the trial court properly instructed the jurors that they were to consider each of the mitigating factors alleged by the defendant “in the context of all the facts and circumstances of the case, including the nature of the capital felony itself and all the surrounding circumstances.” The court further instructed the jury that “[m]itigation should not be considered in a vacuum.” Inasmuch as the defendant sought to persuade the jury that his admission to the police and his alleged statements to Smith after the shooting were sufficiently mitigating to warrant a sentence of life imprisonment *196 without the possibility of release rather than a death sentence, the state’s attorney was entitled to argue to the jury that it should consider and reject those claims in the broader factual context of the case. With respect to the defendant’s admission to the police, that factual context included the circumstances leading up to and following his admission, including the overwhelming nature of the evidence against him and his refusal to provide the police with his real name. With respect to the defendant’s claim that he had expressed remorse for his conduct, it was reasonable for the state’s attorney to urge the jury to consider that claim in light of the fact that the defendant had denied to Collins that he had committed the crime. The comments of the state’s attorney, therefore, were not improper.

The defendant next claims that the state’s attorney improperly characterized certain of the defendant’s mitigating factors, including the factor concerning abuse that the defendant suffered during childhood, as “emotional blackmail,” and as an effort to shift responsibility for his conduct to others. In particular, the defendant challenges the following comments of the state’s attorney: “Emotional blackmail. . . . [TJhat’s what this mitigating evidence is. It’s an attempt to promote emotional blackmail on the jury. And that’s not what the death penalty is about. The death penalty is about a person being told by society you have to take responsibility for your conduct. That’s what the death penalty is: society as a community pointing to someone who has committed a terrible crime, who has committed the ultimate crime, and say[ing] to that person you have to take responsibility for your actions. Don’t blame your father. Don’t blame your teacher in school. Don’t blame your grandparents in Jamaica. Don’t blame your sister. Don’t blame your brother. Don’t blame the courts. Don’t blame that you run around with the wrong crowd. Step up and take responsibility for your actions. . . . Take *197 responsibility for that. For once in your life, don’t hold eveiybody up to emotional blackmail.”

We acknowledge that it would have been preferable for the state’s attorney to have refrained from using the term “emotional blackmail” to characterize the mitigating factors alleged by the defendant. Although the state’s attorney was entitled to argue forcefully why, in his view, the defendant’s mitigating factors lacked merit, he was not free to do so in an inflammatory manner or by appealing to the emotions of the jury. The reference to “emotional blackmail” exceeded the bounds of fair comment because such a reference goes beyond a claim that the mitigating factors lack merit; the term suggests, rather, that those mitigating factors constituted an improper attempt by the defendant to coerce or manipulate the jurors by appealing unfairly to their emotions. Nevertheless, we do not believe that the two isolated references to the term—to which defense counsel raised no objection—were likely to have affected the jury’s consideration of the defendant’s mitigating factors.

Contrary to the defendant’s claim, the state’s attorney’s argument that the jury should hold the defendant fully responsible for his crime was not improper. The state’s attorney merely was expressing the position of the state that the mitigating factors alleged by the defendant were not of sufficient force to minimize the consequences of the defendant’s crime. Those comments, therefore, constituted fair argument in support of the contention of the state’s attorney that the defendant had not established any persuasive reason why he should be spared the death penalty.

6

Finally, the defendant claims that the state’s attorney improperly indicated that the defendant should have called his father as a witness. The defendant contends *198 that his father, who, according to the evidence, mistreated the defendant during his childhood, clearly was not a witness whom the defendant would have been expected to call and, consequently, the contrary suggestion made by the state’s attorney constituted misconduct.

The defendant’s claim is predicated on the following remarks that the state’s attorney made during his closing argument: “Where’s [the defendant’s father] Cleveland Reynolds? I didn’t see him on the stand. Other people spoke for him. Dr. [Cecil St. George] Henry174 spoke for him. But I didn’t hear Cleveland’s side.” The defendant did not object to these comments.

In Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), overruled by State v. Malave, 250 Conn. 722, 738, 737 A.2d 442 (1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000), we stated that “[t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.” (Internal quotation marks omitted.) Secondino v. New Haven Gas Co., supra, 675. When the party seeking to invoke this principle, commonly referred to as the Secondino rule or the missing witness rule, has established both that the witness is available and that the opposing party naturally would have produced the witness, the party invoking the rule is entitled to an instruction that the jury may draw an inference adverse to the party who failed *199 to call the witness.175 Furthermore, a party who has satisfied the requirements of the Secondino rule is permitted to argue that adverse inference to the jury. See, e.g., State v. Woods, 250 Conn. 807, 813 n.5, 740 A.2d 371 (1999).

In the present case, however, the state did not claim that the defendant’s father was a witness whom the defendant naturally would have called, and it did not seek a missing witness instruction. Moreover, the state’s attorney did not argue to the jury that it should draw an adverse inference by virtue of the fact that the defendant had failed to call his father as a witness. Rather, the state’s attorney’s remarks served only to underscore the fact that the evidence adduced at the penalty phase hearing regarding the abuse that the defendant had suffered at the hands of his father had come not from the father’s trial testimony but, rather, from the testimony of those who had interviewed the defendant, his father or both of them. Consequently, the comments of the state’s attorney were intended only to raise a question regarding the reliability of the evidence adduced by the defendant concerning the abuse that he claimed to have suffered. Because such argument is not improper; see, e.g., State v. Malave, supra, 250 Conn. 739; we reject the defendant’s claim.176

C

Expression of Personal Opinions and Beliefs During Closing Arguments

The defendant also contends that the state’s attorney improperly expressed his personal opinions and beliefs *200 dining closing arguments. Specifically, the defendant claims that he is entitled to a new penalty phase hearing because the state’s attorney expressed his personal opinion that: (1) the evidence established the three aggravating factors alleged by the state; (2) the mitigating factors alleged by the defendant were weak; (3) defense counsel, himself, lacked confidence in the viability of those mitigating factors; and (4) the testimony of certain defense witnesses was fabricated or contrived. The defendant also maintains that the state’s attorney improperly vouched for the credibility of Anthony Crawford, who testified for the state. We agree with the defendant that, on several occasions, the state’s attorney improperly expressed his personal opinions during closing arguments. We also conclude that the comments regarding Crawford’s credibility were improper. We nevertheless are not persuaded that those improprieties were sufficiently serious to warrant a new penalty phase hearing in light of the particular facts and circumstances of the case.

1

The following additional facts and procedural history are necessary to our resolution of the defendant’s claims. Prior to the conclusion of the evidentiary portion of the penalty phase hearing, the trial court informed the parties and the jury that closing arguments would proceed as follows: (1) the state’s attorney would address the aggravating factors; (2) defense counsel would respond to the state’s argument on the aggravating factors and then address the mitigating factors; (3) the state’s attorney would then respond to defense counsel’s argument on the mitigating factors and summarize its claims regarding the aggravating factors; and (4) defense counsel would summarize his claims regarding the mitigating factors.

While addressing the aggravating factors in his first argument, the state’s attorney remarked: “Now is my *201 chance to argue to you why I feel that we have proven each of these aggravants beyond a reasonable doubt. Again, we don’t have to prove all three. . . . [0]f course, it’s my belief that the evidence in this case supports the finding that all three have been proven.” (Emphasis added.)

During defense counsel’s first argument, defense counsel adverted only briefly, and in general terms, to the defendant’s mitigating factors, choosing instead to address the mitigating factors in detail in his final argument. At the conclusion of defense counsel’s first argument, the state’s attorney complained to the court, outside the presence of the jury, about defense counsel’s failure to address the mitigating factors in any detail. Specifically, the state’s attorney claimed that defense counsel’s strategy of waiting until his final argument to discuss the mitigating factors violated the court’s order regarding the procedure to be followed with respect to closing arguments. The state’s attorney further claimed that defense counsel’s alleged transgression had prejudiced the state by depriving the state’s attorney of a meaningful opportunity to rebut defense counsel’s argument regarding the mitigating factors. Finally, the state’s attorney asserted that the appropriate sanction for defense counsel’s alleged failure to comply with the court’s directive regarding closing arguments was to prohibit defense counsel from commenting on the mitigating factors in his final argument. The trial court overruled the state’s attorney’s objection to the manner in which defense counsel had chosen to proceed, concluding, in essence, that defense counsel had not violated either the letter or the spirit of the court’s order regarding the manner in which closing arguments were to be conducted.

Thereafter, the state’s attorney stated during his final argument to the jury: “I don’t know how I can argue or rebut the mitigants. [Defense counsel] refused to *202 argue to you when he had the opportunity what these mitigating factors were and what they all meant. He told you [the state’s attorney] is going to stand up and he’s going to wave the list and smile and laugh. I’m not laughing .... I take nothing about this case lightly. I ask you, if [defense counsel] felt that his mitigating evidence was so strong and so convincing, why didn’t he argue it to you when I would have the opportunity to come up and argue against it? I can’t argue against anything now ... so I’m left here kind of punching at shadows. If he felt the way I feel—I felt my aggravants are strong. I felt the evidence supported them and I argued those aggravants to you and I said here they are. Now, [defense counsel stands] up and tries to knock them down. I have confidence in my case. You can’t knock them down. . . . His part of the case is mitigants. Does he have confidence in his mitigants? No, because he knows if he puts them up there, I’d have the opportunity to come up and knock them down. So you have to ask that. Where’s his big argument for the mitigants? . . . Because this is my last opportunity and because I don’t know what [defense counsel] is going to say about mitigants, I am going to say something about them because I do think the mitigants are weak.” (Emphasis added.)

The state’s attorney also made the following comments with regard to certain specific mitigating factors: “I’m saying just because they say it’s a mitigant doesn’t mean it is and I’m not going to point out the one about the middle child. If you ask me if I thought that was a mitigant, I’d say no.” (Emphasis added.) The state’s attorney continued: ilIf [defense counsel] did not have the courage to stand in front of you and argue the mitigants so I can come up and attack them, you have to ask yourselves how strong are those mitigants.” (Emphasis added.) Defense counsel did not object to these comments when they were made.

*203 Following closing arguments of counsel and immediately prior to the trial court’s instructions to the jury, defense counsel stated: “The next matter, Your Honor, would be a charge to the jury . . . and comments by the court to the jury regarding both the personal opinions of the attorneys as well as the personal involvement of any of the attorneys in either prosecuting or defending this matter to the effect that that’s not something—either the personal opinions or personal involvement or performance of any attorneys is not a matter that the jury should give any weight to ... . There was a fair amount of comment by the state’s attorney concerning his impression of certain witnesses and what he believed about certain witnesses, Your Honor, which I think quite—in a very technical strict manner is—we’re not raising an objection to the improper nature of argument but what we’re asking the court to do is [to] address it in [the] charge by indicating that the personal opinions of the attorneys are not anything of any weight for the jurors, Your Honor.” (Emphasis added.) The trial court responded: “I think both attorneys delved into opinion and I may indicate at the appropriate point that the opinions are not evidence in the case . . . ,”177

In accordance with defense counsel’s request for an instruction regarding the personal opinions of counsel, the trial court, during the initial portion of its charge *204 to the jury, instructed the jury that “the evidence from which [it was] to decide what the facts are consistas] of the following: number one, the sworn testimony of witnesses both on direct and cross-examination, regardless of who called the witnesses; number two, the exhibits which you received into evidence; and number three, any facts to which the lawyers have agreed and there are several facts in that regard. In reaching your verdict, you should consider all the testimony and exhibits received into evidence. Certain things are not, however, evidence, and you should not consider them in deciding what the facts are. Now, [here is] a list of items that are not evidence. The arguments and statements by the lawyers do not constitute evidence in the case. And in this regard, during the course of arguments, there is a tendency to give opinion or beliefs by the attorney. This, of course, is not evidence in the case. . . . What they have said in their closing arguments and at other times is intended to help you interpret the evidence but is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of [the] facts controls.”178 The defendant did not object to this instruction or seek any further instruction regarding the expression of personal opinion by counsel.

As we previously have indicated, it is improper for a prosecutor to express his or her personal beliefs about any aspect of the case. “[T]he prosecutor’s opinion carries with it the imprimatur of the [state] and may induce the jury to trust the [state’s] judgment rather than its own view of the evidence.” United States v. Young, 470 U.S. 1, 18-19, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985). Because “[t]he prosecutor’s office carries a special prestige in the eyes of the jury . . . [i]t is obligatory for prosecutors to find careful ways of inviting jurors to *205 consider drawing argued inferences and conclusions and yet to avoid giving the impression that they are conveying their personal views to the jurors.” (Citations omitted; internal quotation marks omitted.) State v. Singh, supra, 259 Conn. 722; see also Rules of Professional Conduct 3.4 (5) (during trial, lawyer shall not “state a personal opinion as to the justness of a cause, the credibility of a witness ... or the guilt or innocence of an accused”).

The remarks of the state’s attorney violated this well established prohibition. Although each of the challenged comments was improper, the most objectionable comments were, “I [feel] my aggravants are strong,” and “I have confidence in my [aggravants],” while defense counsel did not “have confidence in his mitigants.”

With respect to the state’s attorney’s comment on his personal belief in the merits of the aggravating factors, such comment clearly was inappropriate. The state’s attorney compounded the impropriety when he personalized the state’s case by characterizing the aggravating factors as “my aggravants . . . .” We repeatedly have emphasized that counsel, and especially prosecutors, must be particularly careful to avoid the unnecessary use of the first person. See, e.g., State v. Singh, supra, 259 Conn. 713-15 and n.18; State v. Satchwell, supra, 244 Conn. 565-66. Although we do not excuse the impropriety that inheres in such comments, they represent the kind of lapse that sometimes occurs, without premeditation, in the heat of the moment and at the close of an emotional trial. Thus, isolated comments of this type generally do not give rise to a due process violation or otherwise result in manifest injustice because a properly instructed jury is likely to appreciate fully its duty to decide the case on the evidence and not on the basis of such rhetoric.

Of greater concern, however, was the state’s attorney’s utterly unsupported assertion that defense coun *206 sel, himself, lacked confidence in the viability of the mitigating factors alleged by the defendant. This argument had no purpose other than to undermine the legitimacy of those mitigating factors on the basis of a wholly irrelevant consideration, namely, the extent to which defense counsel personally believed in the merits of the defendant’s case. Although it is apparent that the state’s attorney’s comments were prompted by defense counsel’s tactical decision to reserve discussion about the mitigating factors until his final argument, the trial court had rejected the contention of the state’s attorney that it was improper for defense counsel to do so. The remarks of the state’s attorney concerning defense counsel’s personal beliefs, therefore, cannot be justified on the ground that defense counsel’s trial strategy unfairly had prejudiced the state. Indeed, the remarks cannot be justified on any basis whatsoever. Cf., e.g., State v. Moore, 122 N.J. 420, 462, 585 A.2d 864 (1991) (cautioning against comments to jury that defense counsel does not believe in theory of defense).

Nevertheless, defense counsel did not object to the comments when they were made, suggesting that he did not view the comments to be seriously prejudicial at the time. E.g., State v. Andrews, supra, 248 Conn. 19-20; see State v. Satchwell, supra, 244 Conn. 565. In fact, the likelihood of any such prejudice was significantly reduced because the jury was aware that the comments were prompted by the manner in which defense counsel chose to apportion his closing arguments and not by any real insight or information that the state’s attorney might have had regarding defense counsel’s personal beliefs. Most importantly, however, it appears that defense counsel made a conscious decision not to seek either a mistrial or a strongly worded curative instruction condemning the improper comments. Rather, defense counsel sought and obtained an *207 instruction from the trial court regarding the irrelevance of the opinions or beliefs of counsel.

Inasmuch as defense counsel had heard the comments of the state’s attorney when they were made, defense counsel was in a position to assess what impact, if any, the comments may have had on the jury and to determine what remedy to seek. Indeed, defense counsel reasonably could have concluded that the comments, which the state’s attorney likely made in a fit of pique over opposing counsel’s trial strategy and the trial court’s tacit approval of that strategy, were so peevish and unprofessional as to undermine the credibility of the state’s attorney in the eyes of the jurors. Thus, after referring to the irrelevance of argument concerning “personal opinions or the personal involvement or performance of the attorneys,” defense counsel expressly stated that the defendant was “not raising an objection to the improper nature of argument but [rather was] asking the court to . . . address it in [the] charge by indicating that the personal opinions of the attorneys are not anything of weight for the jurors . . . .’’As we previously indicated, the trial court gave an instruction along the lines requested by defense counsel, who neither objected to the instruction as given nor sought any further curative action by the court.

“Our rules of procedure do not allow a defendant to pursue one course of action at trial and later, on appeal, argue that a path he rejected should now be open to him. ... To rule otherwise would permit trial by ambuscade. . . . An appellant cannot create a reviewable claim because his appellate counsel disagrees with the strategy of his trial counsel.” (Citations omitted; internal quotation marks omitted.) State v. Clark, 48 Conn. App. 812, 819-20 n.6, 713 A.2d 834, cert. denied, 245 Conn. 921, 717 A.2d 238 (1998); see also Johnson v. United States, 318 U.S. 189, 201, 63 S. Ct. 549, 87 L. *208 Ed. 704 (1943) (“We cannot permit an accused to elect to pursue one course at the trial and then ... to insist on appeal that the course which he rejected at the trial be reopened to him. . . . [T]he protection which could have been obtained was plainly waived .... The court only followed the course which he himself helped to chart . . . .”); State v. Drakeford, supra, 202 Conn. 81 (same).

In light of the court’s straightforward and timely instruction and defense counsel’s informed decision regarding the most efficacious way to address the comments of the state’s attorney, we cannot conclude that those comments, although improper, so compromised the fairness of the penalty phase hearing as to constitute a violation of the defendant’s due process rights. Under the circumstances—including the fact that defense counsel, apparently for tactical reasons, expressly waived any further curative instructions or other remedy—we also are not persuaded that the comments of the state’s attorney necessitate a new penalty phase hearing in the exercise of our supervisory authority over the administration of justice. See part IV D of this opinion. Accordingly, we reject the defendant’s claim that the state’s attorney’s improper injection of his personal opinion entitles the defendant to a new penalty phase hearing.

2

The defendant next claims that the state’s attorney suggested during closing arguments that certain statements made by the defendant’s family members to defense experts were fabricated to help the defendant avoid the death penalty. The defendant contends that such argument was unfair and improper because there was no evidence in the record to support such an inference. The state claims that the state’s attorney did not act improperly in calling into question the credibility *209 of the defendant’s family members in light of their potential bias in favor of the defendant.

The defendant bases his claim on the following comment of the state’s attorney: “I don’t fault the Reynolds family [for telling the psychologist that the defendant’s father beat him during his childhood]. I think anyone of us would have done the same thing to try to save [the defendant] from the fate that he faces. I don’t blame parents for that.” (Emphasis added.)

To the extent that the defendant’s claim is predicated on the contention that the state’s attorney was prohibited from raising doubt about the accuracy of the information supplied by the defendant’s family members to the defendant’s experts, we disagree with that claim. For example, it would not have been improper for the state’s attorney to point out that persons related to the defendant may have had an interest in exaggerating the nature of the abuse that the defendant had suffered in light of their probable desire to assist him. Inasmuch as the state’s attorney had adduced no specific evidence to indicate that the defendant’s family or friends were lying when they reported the abuse that the defendant allegedly had suffered as a child, however, it would have been preferable for the state’s attorney to have spoken in somewhat less categorical terms. Nonetheless, in light of the isolated nature of comment and the court’s instructions to the jury regarding the expression of personal opinions by counsel, we are not persuaded that the comment of the state’s attorney prejudiced the defendant.

3

The defendant also claims that the state’s attorney improperly vouched for the credibility of Crawford, one of the state’s witnesses, during closing arguments. We conclude that the state’s attorney acted improperly under the circumstances but reject the defendant’s *210 claim that the impropriety entitles him to a new penalty phase hearing.

During the penalty phase hearing, Crawford testified that he had been convicted of robbery in the third degree in 1991, and that he had received a suspended sentence and three years probation for that offense. Crawford also testified that, later that year, he was convicted of larceny in the second degree and received a sentence of ten years imprisonment, execution suspended after five years, and five years probation. According to Crawford, he was on parole when the defendant shot and killed Williams and was on probation as of the date of his testimony during the guilt phase of the defendant’s case. Crawford also acknowledged that he was in possession of $3500 worth of cocaine when the shooting occurred. At no time, however, did Crawford indicate that he had been charged in connection with his possession of cocaine at the time of the shooting. Crawford further testified that, approximately one year prior to the penalty phase hearing in the defendant’s case, he had been charged with escape in the first degree, a felony carrying a maximum sentence of ten years imprisonment, in connection with his unauthorized departure from a halfway house.179 Crawford indicated that those charges, which had been pending in the judicial district of Hartford, were nolled by the office of the state’s attorney after Crawford testified during the guilt phase of the defendant’s case.180 Crawford also stated that he had been charged with hindering prosecution in connection with the investiga *211 tion of the murder of Williams.181 Finally, Crawford indicated that there were no charges currently pending against him, and that the state had not made him any promises in return for his cooperation or testimony against the defendant.

During his initial closing argument to the jury, the state’s attorney, who anticipated that defense counsel would argue that Crawford lacked credibility because he had received special treatment from the state, commented as follows: “Crawford. He’s no altar boy. He told you what he was, and believe me, they are going to say, well, don’t believe . . . Crawford because he got a break from the state. He didn’t get a break from the state. I prosecuted him for hindering prosecution in this case. If I wanted to give Crawford a break in exchange for his testimony, the easiest thing for me to do was not to prosecute him .... We don’t give a damn what happens to him later on. ... If I wanted to give . . . Crawford a break in exchange for his testimony . . . would I have ever prosecuted him . . . ? So . . . Crawford has been given no break. He came and he testified.” (Emphasis added.)

Later, while defending the credibility of Crawford’s testimony as to the number of gunshots fired, the state’s attorney remarked: “You know why I believe . . . Crawford that there were seven shots? I’m going to tell you why I believe . . . Crawford . . . (Emphasis added.) The state’s attorney then proceeded to recite in detail the facts upon which Crawford’s testimony was based.

During his initial closing argument, defense counsel did, in fact, challenge Crawford’s credibility by reference to the special treatment that Crawford ostensibly had received from the state. Defense counsel argued *212 in relevant part: “Well, Crawford is on probation or parole at the time [of the shooting] for robbery second. He’s also on probation at the time for a larceny second. . . .

“He’s never been prosecuted. If they have got such a strong case . . . that [the defendant] was involved in the attempted sale of drugs that night, they have got just as strong a case that Crawford was. In fact, [it is] stronger because Crawford admitted it, in open court, under oath. So why has he not been prosecuted? I’m not suggesting that [the state’s attorney] has gone out and made some under-the-table deal, that he’s now lying to you all about giving these guys any promises. What I’m suggesting—and I don’t think that’s the important part—what I’m suggesting is that Crawford’s credibility should be held in doubt because he was—he’s under probation now ....

“There’s this drug situation which he admitted would be a fifteen year felony, right? He’s got fifteen years that he could get for his own drug activities in this situation if you believe him.

“We know about the escape situation, right? That’s a ten year felony, and we know that that was dropped right after he testified at the earlier trial, right?”

We agree with the defendant that the state’s attorney improperly vouched for Crawford’s credibility when he stated that he believed Crawford’s testimony regarding the number of gunshots that the defendant had fired. As we have explained, “[s]uch expressions of personal opinion are a form of unsworn and unchecked testimony, and particularly difficult for the jury to ignore because of the prosecutor’s special position. . . . Moreover, because the jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence ... it is likely to infer that such matters precipitated the per *213 sonal opinions.” (Internal quotation marks omitted.) State v. Singh, supra, 259 Conn. 713.

We nevertheless are persuaded that the comment was not likely to have prejudiced the defendant. First, the state’s attorney followed the objectionable comment with a detailed explanation of the facts that supported Crawford’s testimony. Second, defense counsel did not object to the comment at the time it was made, suggesting that he did not view the remark as particularly harmful. E.g., State v. Andrews, supra, 248 Conn. 19-20; State v. Robinson, supra, 227 Conn. 745-46. Finally, at the conclusion of closing arguments, defense counsel, after reminding the court that the state’s attorney had expressed his personal opinion on several occasions, stated that he was “not raising an objection to the improper nature of [that] argument . . . .” Rather, defense counsel requested and received a general instruction to the effect that the opinions or beliefs of counsel are not evidence and are not to be considered by the jury. Under these circumstances, we are not persuaded that the comment of the state’s attorney was harmful.182

We now turn to the comment of the state’s attorney that he had not made a deal with Crawford in return for his testimony. Although the state’s attorney was entitled to underscore Crawford’s testimony by asserting that the state had made no promises of leniency to him, the state’s attorney should not have stated, as he did, that he personally had not made any deal with Crawford in order to obtain Crawford’s testimony against the defendant. We previously have stated *214 that the proper method of addressing the issue is “by reference to the evidence, or lack thereof, and not via a first person denial of the existence of [an] . . . agreement [between the state and the witness] . . . .” (Citation omitted.) State v. Satchwell, supra, 244 Conn. 565-66.

Again, however, we are not persuaded that this comment prejudiced the defendant. Indeed, defense counsel, himself, stated in closing argument that he was not claiming that the state’s attorney had made any secret deals or promises to Crawford or to any other witness. Moreover, defense counsel did not seek any remedy other than the instruction that the court had given regarding the irrelevance of any expression of personal opinion or beliefs by counsel. Finally, defense counsel forcefully challenged Crawford’s testimony that he had no expectation of leniency by highlighting the fact that Crawford had not been charged in connection with his possession of cocaine at the time of the defendant’s murder of Williams, that his felony escape charge had been nolled and that he had not been charged with a violation of the conditions of his probation. Thus, even though the state’s attorney improperly injected his own credibility into the case by denying that he personally had given Crawford “a break in exchange for his testimony,” we do not believe that the impropriety, when viewed in context, constituted harmful error.

D

Conclusion

As we have explained, the state’s attorney engaged in conduct that clearly was improper on several occasions. For the foregoing reasons, however, we are not persuaded that the sum total of those improprieties rendered the defendant’s penalty phase hearing *215 fundamentally unfair,183 in violation of his right to due process.184 In so concluding, we are guided by the principle that “[t]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, and not the culpability of the prosecutor.” (Internal quotation marks omitted.) State v. Brown, supra, 256 Conn. 306.

We also do not believe that a new penalty phase hearing is warranted in the exercise of our supervisory authority over the administration of justice. “Our supervisory powers are not a last bastion of hope for every untenable appeal. [The exercise of our supervisory powers is] an extraordinary remedy to be invoked only when circumstances are such that the issue at hand, while not rising to the level of a constitutional violation, is nonetheless of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.” (Emphasis in original; internal quotation marks omitted.) State v. Hines, supra, 243 Conn. 815.

We acknowledge that the conduct of the state’s attorney, at times, did not meet the standard of professionalism required of prosecutors in this state. We strongly disapprove of that conduct and, in particular, the state’s attorney’s interjection of his personal opinion. The improprieties are especially disturbing in light of the fact that the state’s attorney is an experienced litigator who has successfully prosecuted numerous cases, including several death penalty cases. The defendant, *216 however, expressly declined to seek any remedy for the state’s attorney’s expression of his personal beliefs other than a general instruction to the effect that the personal opinion of counsel is not entitled to any evidentiary weight. The defendant also did not express any dissatisfaction with the instruction that the court gave in response to his request. In determining whether this is an appropriate case for the exercise of our supervisory powers, we cannot ignore the defendant’s informed decision on how best to deal with the improper comments of the state’s attorney. We also have carefully considered all of the other factors relevant to the defendant’s supervisory authority claim, including our determination that the defendant was not unduly prejudiced by the conduct of the state’s attorney and the emotional trauma to Officer Williams’ family that inevitably would result from a new trial. See, e.g., State v. Pouncey, supra, 241 Conn. 813. Under all of the circumstances, therefore, we are not persuaded that the extraordinary remedy of a new penalty phase hearing is necessary to vindicate the interests of the defendant or the public in the fair administration of justice.185 *217 Accordingly, we decline the defendant’s invitation to afford him a new hearing in the exercise of our supervisory authority over the administration of justice.

V

MISCELLANEOUS ISSUES A

Change of Venue

The defendant next claims that the trial court improperly denied his motion for a change of venue.186 We reject this claim.

The following facts and procedural history are necessary to our resolution of this claim. Prior to the guilt phase of the defendant’s case, the defendant filed a motion for a change of venue, claiming that “intense and pervasive media coverage” in the Waterbury area concerning Officer Williams’ murder had created “a substantial likelihood” that the defendant would not be able to obtain a fair trial in the judicial district of Waterbury. At a hearing on the defendant’s motion, the defendant elicited testimony from G. Donald Ferree, associate director of the Institute for Social Inquiry at the University of Connecticut. Ferree testified that his organization had conducted a telephone poll of residents of the Waterbury, Stamford and Middlesex judicial districts. According to the poll, 16 percent of those *218 surveyed in the Waterbury judicial district indicated that they were “[v]ery familiar” with the case whereas only between 1 and 2 percent of those surveyed in the Stamford and Middlesex judicial districts were very familiar with the case. In addition, 66 percent of those persons polled in the Waterbury judicial district indicated that a person who deliberately murders a police officer always should be sentenced to death. Of those persons polled in the Stamford and Middlesex judicial districts only between 40 and 50 percent agreed that a person who deliberately murders a police officer always should be sentenced to death. Finally, the poll indicated that persons residing in the Waterbury judicial district generally were more familiar with the case than persons residing in the Stamford and Middlesex judicial districts.

The defendant also submitted 158 articles that had been written about the case in the Waterbury Republican-American, Waterbury’s daily local newspaper. Furthermore, the defendant provided videotapes reflecting coverage by local affiliates of all of the major television networks in the area, namely, National Broadcasting Company (NBC), American Broadcasting Companies (ABC), Columbia Broadcasting System (CBS), and the Fox Television Network, as well as a videotape of coverage of the case on a local cable access channel.

At the conclusion of the hearing, the trial court denied the defendant’s motion without prejudice to renewal pending the voir dire process. In its memorandum of decision on the motion, the court explained that, with respect to press accounts of the case, those accounts were most pervasive in the first two weeks after the murder. Notably, however, even those accounts were, by and large, “straightforward, factual, and, aside from the headlines . . . neither inflammatory nor sensationalized.” Although some newspaper articles contained information of an emotional or potentially prejudicial *219 nature, such as accounts of Williams’ funeral, the birth of Williams’ child less than two weeks after the shooting, the impact of the murder on the Williams family, the state’s announcement of its decision to seek the death penalty, and statements by death penalty advocates regarding the case, the court noted that those accounts were most prevalent in the month after the murder. With respect to television coverage of the case, although “intense on the dates of the incident, arrests, and [Williams’] funeral . . . with some emphasis on aggravating circumstances and prejudicial comments by individual citizens and officers,” such coverage thereafter was “straightforward, factual and not extensive, and, therefore, not a significant factor for the court’s consideration . . . .”187

Finally, although the trial court acknowledged Ferree’s expertise and credibility generally, the court also concluded that the results of the telephone poll were of limited value. Specifically, the court observed that the poll was not designed to address the issues that were central to the defendant’s motion for a change of venue, including the extent to which the persons polled had prejudged the defendant’s guilt or innocence and the extent to which those persons could decide the case fairly and objectively notwithstanding any views they may have expressed—about the case specifically or the death penalty generally—in connection with the survey.188 The court, however, did accept the survey “as *220 a legitimate indicator of [the] high degree of awareness [about the case] in the Waterbury area . . . .” The court also noted, however, that this fact alone shed no light on the question of whether, notwithstanding that awareness, a fair and impartial jury could be selected from the Waterbury area.

The court concluded that the evidence adduced at the hearing indicated that the defendant could receive a fair trial in the judicial district of Waterbury. In so concluding, the court underscored the fact that the “[p]roper use of [this state’s] individual voir dire should be sufficient to assure the defendant of a fair and impartial jury.” The court noted, however, that the voir dire process would provide “an opportunity [for the court] to test its . . . [conclusion]” that a change of venue was not warranted. The court indicated that if, during voir dire, it appeared that an impartial jury could not be selected in the judicial district of Waterbury, the court then would reconsider transferring the case to another judicial district.189

On the day that jury selection was scheduled to commence, the defendant notified the court that, in light of the court’s denial of his motion for a change of venue, he was inclined to change his election from a jury trial to a trial before a three judge panel. The defendant nevertheless requested an opportunity to reflect further on the matter and proposed that the court proceed with jury selection for two days pending the defendant’s final decision on the matter.190 The court granted the *221 defendant’s request and reiterated that the denial of the motion for a change of venue was subject to reconsideration depending on what would transpire during voir dire.191

Jury selection thereafter commenced and proceeded for two days. The initial panel consisted of thirty-three venirepersons, of which twenty-six were excused prior to voir dire. Only one venireperson, however, was excused for reasons relating to pretrial publicity. The remaining seven venirepersons were questioned, and two were chosen to serve as jurors. At the beginning of the third day of jury selection, the defendant elected to be tried before a three judge panel instead of a jury, reasoning that he did not believe that a fair and impartial jury could be selected in the judicial district of Waterbury. With these facts in mind, we now turn to the *222 defendant’s claim that the trial court improperly denied his motion for a change of venue.

“In requesting a change of venue, a defendant bears the burden of showing that he could not otherwise receive a fair and impartial trial. The trial court exercises its discretion in deciding whether to grant such a change of venue. State v. Miller, 202 Conn. 463, 477, 522 A.2d 249 (1987); State v. Piskorski, 177 Conn. 677, 685, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). The trial court’s discretion is governed by Practice Book [§ 41-23], which provides: ‘Upon motion of the prosecuting authority or the defendant, or upon his own motion, the judicial authority may order that any pending criminal matter be transferred to any other court location: (1) If the judicial authority is satisfied that a fair and impartial trial cannot be had where the case is pending ....’” State v. Townsend, 211 Conn. 215, 224-25, 558 A.2d 669 (1989). “Despite the broad discretion vested in the trial court in considering such a motion, its denial has constitutional implications and appellate review requires an independent evaluation of the circumstances upon which the claim of an unfair trial is based. Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966); State v. Piskorski, [supra, 685].” State v. Vitale, 190 Conn. 219, 227, 460 A.2d 961 (1983).

The text continues — open the document to read the rest.