******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. DASHAWN
JAMES REVELS
(SC 19170)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Vertefeuille, Js.
Argued December 11, 2013—officially released September 30, 2014
James B. Streeto, assistant public defender, for the
appellant (defendant).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Michael L. Regan, state’s
attorney, and David J. Smith, senior assistant state’s
attorney, for the appellee (state).
Hope C. Seeley filed a brief for the Innocence Project
as amicus curiae.
Lisa J. Steele filed a brief for the Connecticut Crimi-
nal Defense Lawyers Association et al. as amici curiae.
Opinion
ESPINOSA, J. The defendant, Dashawn James Revels,
appeals1 from his judgment of conviction, following a
jury trial, of murder in violation of General Statutes
§ 53a-54a. On appeal, the defendant raises the following
four claims: (1) the trial court improperly denied his
motion to suppress the pretrial and in-court2 identifica-
tions of the defendant because the court concluded that
the one-on-one showup identification procedure was
not unnecessarily suggestive, and, even assuming that
it was, the identification nonetheless was reliable; (2)
the trial court improperly denied the defendant’s motion
to have the jury view the crime scene; (3) the state
did not disprove beyond a reasonable doubt that the
defendant acted in self-defense; and (4) the trial court
improperly instructed the jury that an ‘‘initial aggressor’’
includes a person who appeared to threaten the immi-
nent use of physical force. We affirm the judgment of
conviction, addressing each of the defendant’s claims
in turn.
The jury could have found the following relevant
facts. On the night of March 31, 2009, sometime shortly
before 11 p.m., the victim, Bryan Davila, was walking
on Crystal Avenue, near the Thames River Apartments,
a three building complex in New London (apartment
complex). A group of approximately eight to nine men,
including the defendant, were walking closely behind
him. The victim crossed over from Crystal Avenue to
State Pier Road. Most of the men in the group continued
walking toward a nearby footbridge to a nearby housing
project. Two men in the group, however, one of whom
was the defendant, remained near the victim. The defen-
dant then ran toward the victim, who was on the side-
walk on State Pier Road in front of a building housing
an electrical supply company. When the victim
attempted to run, the defendant fired numerous shots
at the victim, who fell to the ground. The defendant
then fled the scene on foot.
Immediately after he was shot, the victim called 911.
He was unable to communicate with the dispatcher, so
she triangulated his location to the closest cell phone
tower. She then notified the New London Police Depart-
ment of the call and the likely location of the victim.
When police reported to the area, they found the victim
lying face up on the sidewalk, breathing, but unable
to communicate, with a nine millimeter semiautomatic
pistol near his right hand and his cell phone on the
ground nearby, with the call to the 911 dispatcher still
connected. After securing the area, some officers
remained to assist emergency medical services as they
provided treatment to the victim, while others were
sent to canvass the neighborhood. The victim was sub-
sequently taken by ambulance to the hospital, where
he was pronounced dead at 11:37 p.m. The autopsy
later revealed that the victim bled to death from gunshot
wounds, one in the abdomen, another in the left but-
tock, and a grazing wound near the left shoulder blade.
Two .22 caliber bullets were recovered from the victim’s
body. Eight spent .22 caliber shell casings were discov-
ered at the scene. A single, nine millimeter cartridge
case was removed from the chamber of the nine milli-
meter pistol.
While canvassing the area of the apartment complex,
Officer Justin Clachrie was approached by two women,
Fidelia Carrillo and her younger sister. Because Carrillo
spoke only Spanish, her younger sister translated for
her. Carrillo explained to Clachrie that she had seen
the shooting from her apartment windows on the fifth
floor of 40–46 Crystal Avenue, a building in the apart-
ment complex. Although the building was located
approximately 265 feet away from where the victim’s
body was found, Carrillo had been able to see that the
shooter was a black male with braided hair, wearing a
green camouflage jacket, a red baseball cap, dark pants
and dark tennis shoes. Shortly after Clachrie broadcast
the description of the suspected shooter over the radio,
he received news that other officers had located a sus-
pect matching that description. He then asked Carrillo
if she and her sister would accompany him to view the
suspect, which Carrillo agreed to do.
Clachrie drove Carrillo and her sister to Home Street
in New London, where officers had apprehended the
defendant. When Clachrie pulled up at approximately
11:40 p.m., the defendant was standing in the middle
of the road, handcuffed and surrounded by uniformed
police officers. Clachrie directed the spotlight on his
cruiser toward the suspect, at which point Carrillo,
with no prompting from Clachrie, exclaimed in Spanish,
‘‘That’s him!’’ The defendant was wearing a camouflage
jacket, a red cap, and dark pants.
The police had apprehended and detained a second
suspect, Eric Caple, in the same general vicinity as the
defendant. After she had identified the defendant, they
brought Caple forward to show him to Carrillo.
Although Carrillo identified Caple as being present at
the murder scene, she hesitated in making the identifi-
cation and did not evince the same level of ‘‘excitement’’
that she had displayed when identifying the defendant.
The defendant was taken to the New London Police
Department, where his hands and clothes were tested
for gunshot residue,3 and he was interviewed twice by
Detective Richard Curcuro. During the first interview,
after he was advised of his rights, the defendant denied
being in the area of the shooting. When Curcuro inter-
viewed the defendant for a second time, however, the
defendant admitted to being present at the crime scene
after being shown still photographs of him taken from
video surveillance footage from cameras at one of the
buildings in the apartment complex. The defendant
admitted that outside the apartment complex, his group
had a confrontation with a Hispanic man. The Hispanic
male then pulled out a gun and fired shots at the defen-
dant’s group. Finally, the defendant told Curcuro that
he had fired back at the victim, and then had discarded
the gun by throwing it down an embankment near the
footbridge as he ran away.4
In a substitute information, the defendant was
charged with murder in violation of § 53a-54a. Follow-
ing his conviction, the defendant’s subsequent motions
for a new trial and a judgment of acquittal were denied.
This appeal followed.
I
IDENTIFICATION
We first address the defendant’s claim that the trial
court improperly denied his motion to suppress both
the pretrial and in-court identifications. The defendant
claims that both identifications should have been pre-
cluded because the one-on-one showup identification
procedure was unnecessarily suggestive without any
exigency that supported a need for an immediate identi-
fication, and because the identification was unreliable.
Assuming without deciding that the identification pro-
cedure was suggestive, we conclude that it was not
unnecessarily so because the procedure was justified
by the need for an immediate identification. Accord-
ingly, we affirm the ruling of the trial court denying the
defendant’s motion to suppress.5
The following additional facts are relevant to our
resolution of this claim. During trial, the defendant
moved to suppress Carrillo’s identification of him, on
the bases that the one-on-one showup procedure was
unnecessarily suggestive, and that, viewed under the
totality of the circumstances, the identification was
unreliable. The trial court held a hearing on the motion
to suppress, during which the court heard testimony
from Clachrie and Carrillo, and from Officer Roger New-
ton, who was present both at the crime scene and the
showup identification. Clachrie’s testimony closely mir-
rored the testimony he offered at trial, with the excep-
tion that he mistakenly identified a legal intern seated
at defense counsel’s table as the defendant.
Carrillo was questioned extensively during the sup-
pression hearing regarding what she witnessed on the
night of the shooting. She testified that on that night,
she was in her fifth floor apartment at 40–46 Crystal
Avenue. At approximately 11 p.m., she heard a distur-
bance outside, so she looked out her kitchen window.
She saw the victim walking on Crystal Avenue, and a
group of men walking on the other side of the street.
She observed the victim walk toward State Pier Road,
while the group of men walked toward a footbridge
that leads to a housing project. Two of the men in the
group, however, then turned around and ran back to
the victim, who was now on the sidewalk on State Pier
Road, standing in front of an electrical supply company.
Carrillo testified that her view from the kitchen window
was unobstructed and the two men were standing
directly under a street light. The victim tried to run and
then Carrillo heard approximately six gunshots. At the
same time that she heard the gunshots, Carrillo could
see flashes emanating from the hand of one of the two
men who had run toward the victim. Although she could
not see a gun, she inferred from the sounds and the
flashes that the man had shot the victim. Carrillo could
see that the shooter was black, that his hair was braided,
and that he was wearing a red cap, a green camouflage
jacket, dark pants and dark tennis shoes.
Carrillo testified during the suppression hearing that
during the one-on-one showup procedure, she had iden-
tified the defendant on the basis of the clothing he was
wearing. When the prosecutor asked her if she saw
the person she had identified as the shooter in the
courtroom, Carrillo said that she did, and then pointed
to a legal intern seated at defense counsel’s table. When
questioned on cross-examination regarding her mis-
identification of the intern, who is black, as the defen-
dant, Carrillo responded, ‘‘But you don’t see that they’re
the same? And two years have gone by since all this.’’
The day after the trial court denied the defendant’s
motion to suppress, Carrillo testified, and was again
asked by the prosecutor to identify the shooter in the
courtroom. She correctly identified the defendant as
the shooter. During cross-examination, defense counsel
elicited testimony from Carrillo concerning her mis-
identification the prior day.
The legal principles guiding our review of a defen-
dant’s constitutional challenge to an eyewitness identi-
fication procedure are well established. ‘‘In determining
whether identification procedures violate a defendant’s
due process rights, the required inquiry is made on
an ad hoc basis and is two-pronged: first, it must be
determined whether the identification procedure was
unnecessarily suggestive; and second, if it is found
to have been so, it must be determined whether the
identification was nevertheless reliable based on exami-
nation of the totality of the circumstances. . . . State
v. Theriault, [182 Conn. 366, 371–72, 438 A.2d 432
(1980)]; see also Manson v. Brathwaite, [432 U.S. 98,
107, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977)] ([T]he first
inquiry [is] whether the police used an impermissibly
suggestive [identification] procedure. . . . If so, the
second inquiry is whether, under all the circumstances,
that suggestive procedure gave rise to a substantial
likelihood of irreparable misidentification.); United
States v. DeCologero, 530 F.3d 36, 62 (1st Cir.) (we first
determine whether the identification procedure was
impermissibly suggestive, and if it was, we then look
to the totality of the circumstances to decide whether
the identification was reliable), cert. denied, 555 U.S.
1005, 129 S. Ct. 513, 172 L. Ed. 2d 376 (2008).’’ (Emphasis
in original; internal quotation marks omitted.) State v.
Outing, 298 Conn. 34, 47–48, 3 A.3d 1 (2010), cert.
denied, U.S. , 131 S. Ct. 1479, 179 L. Ed. 2d 316
(2011). We emphasized in Outing that ‘‘[w]e continue
to endorse and adhere to this widely utilized analytical
approach. . . . Therefore, [t]he critical question . . .
is what makes a particular identification procedure sug-
gestive enough to require the court to proceed to the
second prong and to consider the overall reliability of
the identification. . . . In deciding that question . . .
the entire procedure, viewed in light of the factual cir-
cumstances of the individual case . . . must be exam-
ined to determine if a particular identification is tainted
by unnecessary suggestiveness. The individual compo-
nents of a procedure cannot be examined piecemeal
but must be placed in their broader context to ascertain
whether the procedure is so suggestive that it requires
the court to consider the reliability of the identification
itself in order to determine whether it ultimately should
be suppressed.’’ (Citations omitted; emphasis in origi-
nal; internal quotation marks omitted.) Id., 48–49.
‘‘Because, [g]enerally, [t]he exclusion of evidence
from the jury is . . . a drastic sanction, one that is
limited to identification testimony which is manifestly
suspect . . . [a]n identification procedure is unneces-
sarily suggestive only if it gives rise to a very substantial
likelihood of irreparable misidentification.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Ledbetter, 275 Conn. 534, 548, 881 A.2d 290 (2005), cert.
denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537
(2006). ‘‘We have recognized that generally a one-to-
one confrontation between a [witness] and the suspect
presented to him for identification is inherently and
significantly suggestive because it conveys the message
to the [witness] that the police believe the suspect is
guilty. . . . We also have recognized, however, that the
existence of exigencies may preclude such a procedure
from being unnecessarily suggestive. . . .
‘‘In the past, when we have been faced with the ques-
tion of whether an exigency existed, we have consid-
ered such factors as whether the defendant was in
custody, the availability of the victim, the practicality
of alternate procedures and the need of police to deter-
mine quickly if they are on the wrong trail. . . . We
have also considered whether the identification proce-
dure provided the victim with an opportunity to identify
his assailant while his memory of the incident was still
fresh.’’ (Citations omitted; emphasis in original; internal
quotation marks omitted.) Id., 549.
In the present case, the police needed to act quickly.
At the time that they detained the defendant, they knew
that a shooting homicide had been committed immedi-
ately prior to their arrival at the scene of the crime.
The report of shots fired came over the dispatch at
approximately 11 p.m., and officers were at the scene
within minutes, where the victim lay dying. They did
not know, however, whether the gun found near the
victim’s body was the murder weapon. That gun’s loca-
tion near the victim’s hand made it reasonable for the
police to believe that it more likely belonged to the
victim. It was reasonable for the police to believe, there-
fore, that the shooter was likely to be on the run, in
the area, and armed. Safeguarding the public from a
possibly armed and dangerous fugitive was an immedi-
ate and pressing need. Moreover, although the defen-
dant matched the description of the shooter, and was
in custody at the time of the identification procedure,
the police had not recovered a gun from him. It was
possible, therefore, that they had not apprehended the
shooter. Thus, it was necessary to conduct a showup
procedure in order to eliminate him as a suspect as
soon as possible so that the police could continue to
search for the shooter and recover the murder weapon.
Finally, although there were no problems with Carrillo’s
future availability, the immediate identification ensured
that she viewed the suspect while her recollection was
still fresh. This is particularly significant in light of the
trial court’s finding that because it was approximately
11:40 p.m. when Carrillo was brought to the area where
police had detained the defendant, it would not have
been practicable to conduct a lineup or a photographic
array.6 Weighing all of these factors, we conclude that
the trial court properly determined that, although the
court had found that the one-on-one showup procedure
was suggestive, it was not unnecessarily so.7
We find unpersuasive the defendant’s argument that
our case law supports the conclusion that because there
was no evidence that the victim’s murder was part of
an ongoing crime spree at the time that the police
detained the defendant, there was no exigency justi-
fying the showup. The defendant contends that the
police should have treated the incident as a ‘‘completed’’
crime, and thus that there was no exigency in the pre-
sent case. Relying on this court’s decision in State v.
Ledbetter, supra, 275 Conn. 534, the defendant’s argu-
ment suggests that the police should have assumed
that no further criminal activity would occur in the
immediate future, and, therefore, that quick action was
not necessary to protect the public. Nothing in our case
law supports this conclusion, which would require the
police to make assumptions inconsistent with their duty
to protect the public. It is true that in concluding that
the showup identification procedure at issue in Ledbet-
ter was necessary, we considered it significant that
at the time that the victim in that case identified the
defendant, there had been three reports of similar rob-
beries in the general vicinity. Id., 550. The fact that
there was a possibility that the perpetrators could still
be active in the area was relevant to our conclusion
that the showup procedure was necessary. Id. Simply
because we relied on that fact in Ledbetter, however,
does not mean that its absence in the present case
means that the showup procedure was not necessary.
The significance of the string of robberies in Ledbetter
was that it supported the reasonable belief of the police
that immediate action was necessary to safeguard the
public from danger. In the present case, the facts sup-
porting the immediate need for a showup identification,
although different, are no less compelling. The police
had reason to believe that an armed and dangerous
person, who had just shot and killed a man less than
one hour before they had detained the defendant, was
at large in the community.
II
JURY VIEWING
We next address the defendant’s claim that the trial
court abused its discretion in denying his motion to
have the jury view the scene of the crime. The defendant
maintains that the viewing would have been helpful to
the jury, as it would have illustrated to the jury the
significant distance from which Carrillo witnessed the
shooting. The defendant contends that in light of the
importance of Carrillo’s testimony to the strength of
the state’s case, it was vital that the jury view the scene
in order to be able properly to evaluate the adequacy
of her opportunity to view the shooting. The trial court
denied the defendant’s motion on the basis that the
scene of the crime would appear significantly different
in late July, at the time of trial, than it had appeared
on March 31, at the time of the shooting. The state
argues that the trial court properly denied the defen-
dant’s motion, because conditions at the scene of the
crime had changed so much that a viewing would not
be helpful.
It is within the discretion of the trial court to allow
the jury to view a ‘‘place or thing involved in the case’’
if the court ‘‘is of the opinion that a viewing . . . will
be helpful to the jury in determining any material factual
issue . . . .’’ Practice Book § 42-6. In exercising its dis-
cretion, the test applied by the trial court is ‘‘whether
a view is necessary or important in order to obtain a
clearer understanding of the issues and to apply the
evidence properly.’’ Dickson v. Yale University, 141
Conn. 250, 256, 105 A.2d 463 (1954). ‘‘[T]he power to
authorize a view of the scene should be invoked only
after the court is satisfied that the present conditions
at the site are the same as those that existed on the
date of the underlying incident.’’ (Internal quotation
marks omitted.) State v. Boutilier, 133 Conn. App. 493,
503–504, 36 A.3d 282, cert. denied, 304 Conn. 914, 40
A.3d 785 (2012); see also C. Tait & E. Prescott, Connecti-
cut Evidence (5th Ed. 2014) § 11.9.2, p. 731 (‘‘[b]efore
a court can grant a view, it must be satisfied that the
conditions at the time of the view are substantially
similar to those that existed at the time of the event’’).
We conclude that the trial court acted within its dis-
cretion in denying the defendant’s motion to have the
jury view the crime scene. There had been testimony
that, although there was a tree between Carrillo’s apart-
ment windows and the shooting scene, there were no
leaves on the tree on the night of the crime, March
31. Because the defendant’s trial took place in July,
however, the court properly relied on the fact that the
tree would have leaves, a significant change from the
conditions that existed on the night of the murder.
III
SUFFICIENCY OF THE STATE’S EVIDENCE
TO DISPROVE SELF-DEFENSE
The defendant next claims that the state failed to
meet its burden to disprove his claim of self-defense.
The defendant concedes that this claim is unpreserved
and seeks review pursuant to State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989). We have
observed that ‘‘any defendant found guilty on the basis
of insufficient evidence has been deprived of a constitu-
tional right, and would therefore necessarily meet the
four prongs of Golding.’’ State v. Adams, 225 Conn.
270, 276 n.3, 623 A.2d 42 (1993). Accordingly, because
there is ‘‘no practical significance . . . for engaging in
a Golding analysis,’’ we review an unpreserved suffi-
ciency of the evidence claim as though it had been
preserved. Id. Our review of the record, however, per-
suades us that the state produced sufficient evidence
to disprove the defendant’s claim of self-defense beyond
a reasonable doubt.
‘‘On appeal, the standard for reviewing sufficiency
claims in conjunction with a justification offered by the
defense is the same standard used when examining
claims of insufficiency of the evidence.’’ State v. Brocug-
lio, 56 Conn. App. 514, 517, 744 A.2d 448, cert. denied,
252 Conn. 950, 748 A.2d 874 (2000). ‘‘In reviewing a
sufficiency of the evidence claim, we apply a two part
test. First, we construe the evidence in the light most
favorable to sustaining the verdict. Second, we deter-
mine whether upon the facts so construed and the infer-
ences reasonably drawn therefrom the [jury] reasonably
could have concluded that the cumulative force of the
evidence established guilt beyond a reasonable doubt
. . . . This court cannot substitute its own judgment
for that of the jury if there is sufficient evidence to
support the jury’s verdict.’’ (Internal quotation marks
omitted.) State v. Allan, 311 Conn. 1, 25, 83 A.3d 326
(2014). Moreover, ‘‘we do not ask whether there is a
reasonable view of the evidence that would support a
reasonable hypothesis of innocence. We ask, instead,
whether there is a reasonable view of the evidence that
supports the jury’s verdict of guilty.’’ (Internal quotation
marks omitted.) State v. Stephen J. R., 309 Conn. 586,
594, 72 A.3d 379 (2013).
The rules governing the respective burdens borne by
the defendant and the state on the justification of self-
defense are grounded in the fact that ‘‘[u]nder our Penal
Code, self-defense, as defined in [General Statutes]
§ 53a-19 (a) . . . is a defense, rather than an affirma-
tive defense. See General Statutes § 53a-16. Whereas
an affirmative defense requires the defendant to estab-
lish his claim by a preponderance of the evidence, a
properly raised defense places the burden on the state
to disprove the defendant’s claim beyond a reasonable
doubt. See General Statutes § 53a-12. Consequently, a
defendant has no burden of persuasion for a claim of
self-defense; he has only a burden of production. That
is, he merely is required to introduce sufficient evidence
to warrant presenting his claim of self-defense to the
jury. . . . Once the defendant has done so, it becomes
the state’s burden to disprove the defense beyond a
reasonable doubt. General Statutes § 53a-12 (a) . . . .’’
(Citations omitted; emphasis in original; footnotes omit-
ted; internal quotation marks omitted.) State v. Clark,
264 Conn. 723, 730–31, 826 A.2d 128 (2003).
The substantive principles governing a defendant’s
claim of self-defense are well settled. Under § 53a-19
(a), ‘‘a person may justifiably use deadly physical force
in self-defense only if he reasonably believes both that
(1) his attacker is using or about to use deadly physical
force against him, or is inflicting or about to inflict
great bodily harm, and (2) that deadly physical force
is necessary to repel such attack. . . . We repeatedly
have indicated that the test a jury must apply in analyz-
ing the second requirement, i.e., that the defendant rea-
sonably believed that deadly force, as opposed to some
lesser degree of force, was necessary to repel the vic-
tim’s alleged attack, is a subjective-objective one. The
jury must view the situation from the perspective of
the defendant. Section 53a-19 (a) requires, however,
that the defendant’s belief ultimately must be found
to be reasonable.’’ (Internal quotation marks omitted.)
Id., 731.
In order to determine whether the state produced
sufficient evidence to disprove beyond a reasonable
doubt the defendant’s claim of self-defense, we must
first set forth the defendant’s theory of self-defense.
Specifically, at trial, the defendant consistently pursued
as his theory of self-defense that, if the jury believed
that the defendant was the shooter, he had acted in
self-defense because the victim shot first. The defen-
dant relied on the following evidence. The police discov-
ered a gun at the scene of the shooting, near the victim’s
hand. The gun was a nine millimeter semiautomatic
pistol, and it was not the gun used to kill the victim.
The state’s gunshot residue expert testified that he
found lead and antimony particles on samples taken
from the victim’s left and right palms and lead particles
on a sample taken from the back of the victim’s right
hand. The victim’s girlfriend, Alexandra Moya, testified
that prior to the shooting, the victim was with her in
her apartment on Federal Street. He left the apartment,
immediately returned, grabbed a gun, and then left
again. A short time later, she heard gunshots. Carrillo
testified that she was first drawn to look out her window
by the sounds of yelling outside. When she looked out-
side to determine the source of the yelling, that was
when she first saw the victim and the group of men
walking behind him. She also testified that when the
shooter shot the victim, she saw ‘‘flash[es]’’ coming
from the shooter’s hand, from which she inferred that
he fired a gun. She was clear that she could not see a
gun in the shooter’s hand from that distance. Finally,
the defendant testified that members of his group shot
at the victim only after the victim shot at them first.
During closing argument, the defendant claimed that
the evidence established that the victim had fired a shot
at the scene of the crime. If the jury disbelieved the
defendant’s primary defense of misidentification, the
defendant submitted, he was entitled to defend himself
‘‘if [the victim] started shooting first . . . .’’
The state produced the following evidence to dis-
prove the defendant’s claim that he was entitled to
defend himself because the victim started shooting first.
James Stephenson, a forensic science examiner special-
izing in firearm and tool marks, testified that he exam-
ined the nine millimeter semiautomatic pistol found at
the scene. He also examined a discharged nine millime-
ter cartridge case that was removed from the chamber
of the pistol. He testified that a properly functioning
semiautomatic firearm ejects the shell casings upon
firing. He had tested the pistol and found it to be in
working condition. The only nine millimeter casing
recovered from the scene was the one that was in the
chamber of the pistol found near the victim’s body. The
remaining shell casings recovered from the scene were
from a .22 caliber firearm or firearms. Stephenson fur-
ther testified that the nine millimeter pistol could not
have been fired without first removing the spent car-
tridge from the weapon. Additionally, the state pointed
to Moya’s testimony that when the victim left the apart-
ment with a gun, there was to her knowledge only one
cartridge in the gun. The state also relied on Carrillo’s
testimony that she saw flashes coming only from the
hand of the person wearing the camouflage jacket, and
that she did not see any flashes coming from the victim’s
hand. Finally, the state relied on the fact that two of
the three bullets hit the victim when he was facing away
from the shooter, hitting him in the left buttock and
the left shoulder blade.
Construing the evidence in the light most favorable
to sustaining the verdict, we conclude that the state
produced ample evidence to disprove the defendant’s
defense of self-defense beyond a reasonable doubt. The
defendant’s theory was that he reasonably believed that
it was necessary to use deadly force because the victim
fired a gun at him. The state produced overwhelming
evidence that the pistol found near the victim could
not have been fired at the scene.8 The evidence clearly
establishes that if the semiautomatic nine millimeter
pistol had been fired, there would be shell casings on
the ground to confirm that. There were none. The pres-
ence of the spent cartridge in the chamber of the pistol
made it even less likely that the pistol could have been
fired, because expert testimony established that the
cartridge would have had to be removed before the
weapon was fired. The testimony of Moya, which the
jury was entitled to credit, established that there was
only one cartridge in the victim’s pistol. Carrillo’s testi-
mony that she saw flashes coming only from the defen-
dant’s hand, and not from the victim’s hand, provides
further support for the conclusion that the defendant
did not shoot in response to the victim opening fire. If
the jury chose to credit the state’s testimony, which it
obviously did, that evidence was more than sufficient
to support the finding that the state disproved the defen-
dant’s justification defense.
IV
JURY INSTRUCTION ON INITIAL AGGRESSOR
Finally, we address the defendant’s claim that the
trial court committed plain error in its charge to the
jury on the defendant’s claim of self-defense when it
defined an ‘‘initial aggressor’’ as ‘‘the first person who
threatened to use physical force or even the first person
who appeared to threaten the imminent use of physical
force under the circumstances.’’ The defendant claims
that the definition improperly broadened the meaning
of ‘‘initial aggressor’’: (1) by suggesting that a person
could be found to be the initial aggressor solely on the
basis of his use of words; and (2) by failing to insert
the word ‘‘reasonably’’ before the word ‘‘appeared.’’
That failure, the defendant contends, suggests that the
appearance of a threat is defined solely from the per-
spective of the complaining witness, removing the rea-
sonable person standard from the instruction. The
defendant also claims that the omission of the word
‘‘reasonable’’ suggests that a defendant could be found
to be the initial aggressor on the basis of mere words.
We conclude that the instruction did not constitute
plain error.
We first set forth the principles governing our stan-
dard of review for a claim that a jury charge constitutes
plain error. ‘‘[T]he plain error doctrine . . . is not . . .
a rule of reviewability. It is a rule of reversibility. That
is, it is a doctrine that this court invokes in order to
rectify a trial court ruling that, although either not prop-
erly preserved or never raised at all in the trial court,
nonetheless requires reversal of the trial court’s judg-
ment, for reasons of policy. . . . In addition, the plain
error doctrine is reserved for truly extraordinary situa-
tions where the existence of the error is so obvious
that it affects the fairness and integrity of and public
confidence in the judicial proceedings. . . .
‘‘[W]e recently clarified the two step framework
under which we review claims of plain error. First, we
must determine whether the trial court in fact commit-
ted an error and, if it did, whether that error was indeed
plain in the sense that it is patent [or] readily discernable
on the face of a factually adequate record, [and] also
. . . obvious in the sense of not debatable. . . . We
made clear . . . that this inquiry entails a relatively
high standard, under which it is not enough for the
defendant simply to demonstrate that his position is
correct. Rather, the party seeking plain error review
must demonstrate that the claimed impropriety was
so clear, obvious and indisputable as to warrant the
extraordinary remedy of reversal.’’ (Internal quotation
marks omitted.) State v. Darryl W., 303 Conn. 353, 371–
73, 33 A.3d 239 (2012).
‘‘[I]ndividual 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 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. . . . In
other words, we must consider whether the instructions
[in totality] are sufficiently correct in law, adapted to
the issues and ample for the guidance of the jury.’’
(Citation omitted; internal quotation marks omitted.)
State v. Peeler, 271 Conn. 338, 360–61, 857 A.2d 808
(2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L.
Ed. 2d 110 (2005).
After the trial court instructed the jury regarding the
standards applicable to the defendant’s claim of self-
defense, the court set forth the statutory disqualifica-
tions to self-defense, including the initial aggressor
exception. The trial court instructed the jury that ‘‘a
person is not justified in using any degree of physical
force in self-defense against another . . . when he is
the initial aggressor in the encounter with the other
person and does not both withdraw from the encounter
and effectively communicate his intent to do so before
using the physical force at issue in the case.’’ In order
to prove that the defendant was the initial aggressor,
the court explained, ‘‘the state need not prove that the
defendant was the first person to use physical force in
that encounter. The initial aggressor can be the first
person who threatened to use physical force or even
the first person who appeared to threaten the imminent
use of physical force . . . under the circumstances.’’
Although the challenged portion of the instruction
does not clarify that in order for a defendant’s actions
to qualify as having the appearance of threatening the
imminent use of physical force, those actions must be
judged by the objective, reasonable person standard,
we look to the court’s entire charge on self-defense to
determine whether it is reasonably possible that the
jury was misled. State v. Jimenez, 228 Conn. 335, 341,
636 A.2d 782 (1994). At other points in the court’s
instructions relating to self-defense, the court properly
and thoroughly explained that in order for a defendant
to claim that he has acted in self-defense, the defen-
dant’s belief that the other actor is about to use physical
force must be a reasonable one. The court’s definition
of ‘‘initial aggressor’’ must be understood therefore to
incorporate the notion that only actions that reasonably
appear to threaten the imminent use of physical force
will make the defendant an initial aggressor. We there-
fore conclude that there was no reasonable possibility
that the jury was misled. The instruction did not consti-
tute plain error.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The defendant appealed from the judgment of conviction to this court,
and we transferred the appeal to the Appellate Court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1. Thereafter, upon the motion
of the defendant, we transferred the appeal to this court pursuant to § 51-
199 (c) and Practice Book § 65-2.
2
The defendant’s challenge to the in-court identification was based on
his claim that the original identification was both unnecessarily suggestive
and unreliable.
3
The results of the gunshot residue tests were inconclusive. They revealed
the presence of lead and antimony particles on the victim’s palms and the
presence of lead on the defendant’s left palm and the back of his right hand.
A single lead particle was discovered on the right cuff of the defendant’s
sweatshirt, and no lead particles were discovered on his jacket. On the
basis of these results, the state’s forensic expert testified that he could not
conclude whether either the defendant or the victim had fired a gun on the
night of the shooting.
4
The interviews that Curcuro conducted of the defendant were recorded,
and the transcript of the recording indicates that rather than stating, as
Curcuro testified, ‘‘I shot back,’’ the defendant stated that after the victim
fired on the defendant’s group, ‘‘we start shooting back.’’ (Emphasis added.)
The state claimed at trial that the recording from which the transcript was
taken was garbled, and that the transcriber incorrectly heard the defendant
to say ‘‘we’’ shot back, instead of ‘‘I’’ shot back. The audio recording of the
interviews was played to the jury during trial.
5
Our conclusion that the one-on-one showup procedure was justified by
exigency renders it unnecessary for us to address the defendant’s claim
that the identification was unreliable. We accordingly need not address the
defendant’s claim that this court should abandon the use of the eyewitness’
level of certainty as one of the factors for evaluating the reliability of an
eyewitness’ identification. See State v. Ledbetter, 275 Conn. 534, 546 n.8,
881 A.2d 290 (2005) (summarizing factors for evaluating reliability under
Neil v. Biggers, 409 U.S. 188, 199–200, 93 S. Ct. 375, 34 L. Ed. 2d 401 [1972]);
cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).
6
The defendant argues that advances in digital and computer technology,
which have made the process of assembling photographs much quicker,
render the trial court’s finding that it was impracticable to assemble an
array at that late hour reversible error. The defendant appears to suggest
that the trial court’s factual finding is clearly erroneous. We disagree. Regard-
less of advances in technology, the trial court was entitled to take into
account the time of day when assessing the practicability of assembling a
photographic array.
7
The defendant did not object to the in-court identification on the basis
of the misidentification one day earlier at the suppression hearing. During
cross-examination at trial, however, the defendant did question Carrillo
about the misidentification. The exchange between defense counsel and
Carrillo demonstrates that the jury was made aware of the earlier misidentifi-
cation:
‘‘[Defense Counsel]: Do you recall testifying here yesterday at our hearing?
Do you remember being here yesterday?
‘‘[Carrillo]: Correct.
‘‘[Defense Counsel]: And when you identified somebody other than my
client, do you remember that?
‘‘[Carrillo]: Correct.’’
The defendant, therefore, had the opportunity to impeach Carrillo’s credi-
bility before the jury on the basis of the misidentification, and he availed
himself of that opportunity. It was thereafter within the province of the jury
to weigh that impeachment evidence accordingly in determining whether
to credit Carrillo’s in-court identification of the defendant as the shooter.
8
The defendant contends that the state failed to meet its burden of persua-
sion because it failed to disprove that the victim was facing the defendant
with a drawn firearm when the defendant fired upon him. It was not suffi-
cient, the defendant claims, for the state to disprove the defendant’s claim
that the victim fired first. According to the defendant, the state also had to
disprove beyond a reasonable doubt a claim that the defendant never made
at trial, that the victim merely drew his gun and pointed it at the defendant,
supporting the defendant’s reasonable belief that the victim was about to
use deadly force against him. We disagree. The defendant’s theory of self-
defense was specific. He claimed that if the jury concluded that he was the
shooter, he reasonably believed that he needed to use deadly force to defend
himself because the victim fired first. He did not testify that he responded
to the victim’s action of aiming a gun at him. His account of the event,
therefore, is not even factually consistent with the self-defense theory that
he claims the state bore the burden to disprove beyond a reasonable doubt.
The defendant cites to no authority, and we have found none, to support
the proposition that the state was required to disprove not only the theory
of self-defense presented by the defendant at trial, but also any possible
theory he could have presented, even if his own testimony is not consistent
with the theory of self-defense that he claims the state should be required
to disprove.