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STATE OF CONNECTICUT v. ALBERTO RIOS
(AC 36987)
DiPentima, C. J., and Prescott and Gruendel, Js.
Argued September 19, 2016—officially released February 28, 2017
(Appeal from Superior Court, judicial district of
Fairfield, Kahn, J.)
Mary A. Beattie, assigned counsel, for the appel-
lant (defendant).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Pamela J. Esposito, senior assistant
state’s attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Alberto Rios, appeals
from the judgment of conviction, rendered after a jury
trial, of assault in the first degree in violation of General
Statutes § 53a-59 (a) (1), assault in the second degree
in violation of General Statutes § 53a-60 (a) (2), and
three counts of reckless endangerment in the first
degree in violation of General Statutes § 53a-63 (a).1 On
appeal, the defendant claims that (1) the trial court
improperly denied his motion to set aside the verdict
and for a new trial because the jury’s verdict on several
counts was legally inconsistent, and he was not afforded
sufficient notice of the charges brought against him,
(2) the trial court improperly permitted the state to
question the defendant about the credibility of another
witness and the defendant’s tattoos, (3) the trial court
improperly instructed the jury regarding the scope of
his duty to retreat before engaging in self-defense, (4)
prosecutorial improprieties during the trial deprived
him of due process, and (5) this court should exercise its
supervisory authority over the administration of justice
and order a new trial because of the prosecutor’s alleged
pattern of improper conduct in this case and other
cases. We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. During the spring of 2013, Edwin Nunez lived
with his girlfriend, Jessica Sanchez (Jessica), in her
apartment near the corner of Washington Avenue and
Coleman Street in Bridgeport. Jessica and her sister,
Erica Sanchez (Erica), had known the defendant since
childhood, and Erica and the defendant had previously
dated. The defendant lived on Olive Street in Bridgeport.
The defendant lived in the same neighborhood as Lucy
Lucasio, the mother of Jessica and Erica, who knew
the defendant because he had dated Erica.
On April 22, 2013, the defendant sent Nunez a threat-
ening message via Facebook. Prior to receiving this
message, Nunez did not know the defendant. Although
the message did not contain the defendant’s name, the
message was accompanied by a photograph of the
defendant. In the message and in subsequent messages
between Nunez and the defendant, the defendant threat-
ened to harm Nunez and indicated that he previously
had assaulted Erica and members of her family, had
set Lucasio’s house on fire, and had accused Erica of
cheating on him.
Nunez asked Erica about the messages, and she iden-
tified the defendant as the true sender of them. Nunez
also was aware that there was ‘‘bad blood’’ between
Erica’s family and the defendant. As a result of these
messages, which also disparaged Jessica, Nunez con-
cluded that he had to ‘‘stick up’’ for Jessica and wanted
to call the defendant’s ‘‘bluff.’’ Accordingly, he arranged
to meet the defendant near the corner of Washington
Avenue and Coleman Street, but did not take the defen-
dant’s threats seriously because, in his view, people
often ‘‘say stuff on the Internet, and they don’t mean
it.’’ Shortly before going outside to meet the defendant,
Nunez received a call from Erica in which she indicated
that she had just received a threat from the defendant.
Nunez left his apartment in the middle of the day to
meet the defendant at the street corner, but did not
take a weapon with him. Nunez observed the defendant,
alone in his vehicle, drive by him, after which Nunez
immediately received a Facebook message on his phone
from the defendant, asking him: ‘‘What are you doing
out in the open? I like to get away with crime.’’ Shortly
thereafter, Jessica joined Nunez outside on the sidewalk
near Washington Avenue.
Five or ten minutes later, the defendant returned in
his vehicle, this time accompanied by a passenger who
was later identified as Robert McDougall. Although
Nunez had temporarily turned his back to the street,
Jessica observed the defendant accelerate his car
toward them. The defendant drove the vehicle directly
at Nunez and Jessica while accelerating, striking them
both. Nunez was propelled onto the hood of the car,
off its windshield, and against a wall. Following the
crash, the defendant and McDougall exited the vehicle.
McDougall fled the scene, but the defendant immedi-
ately approached Nunez, got on top of him, and began
punching him in the face. Jessica, who was not as seri-
ously injured as Nunez, pulled the defendant off of
Nunez. The defendant left the scene on foot before the
police arrived.
Both Jessica and Nunez were taken to the hospital.
Jessica received four stiches to mend a laceration on
her lip. Nunez had surgery to repair a broken arm and
leg, and never fully regained mobility in his arm and
leg due to the serious trauma to his limbs.
The defendant was arrested and ultimately charged
in a five count amended information as follows. In count
one, the defendant was charged with assault in the
first degree by using his motor vehicle, a dangerous
instrument, to strike Nunez with the intent to cause
serious physical injury to him in violation of § 53a-59
(a) (1). In count two, the defendant was charged with
assault in the second degree arising from the same
conduct as alleged in count one, the difference being
that, with the intent to cause serious physical injuries
to Nunez, he caused serious physical injury to Jessica
in violation of § 53a-60 (a) (2). In counts three, four,
and five, the defendant was charged with reckless
endangerment in the first degree for engaging in unspec-
ified reckless conduct with extreme indifference to
human life, which created a risk of serious injury to
Jessica, Nunez, and McDougall, respectively, in viola-
tion of § 53a-63 (a).
At trial, the defendant testified that he drove toward
Nunez in self-defense. He asserted that it had been
Nunez who had threatened him, and that, as he
approached Nunez and Jessica, he observed Nunez
reaching into his coat toward his waistband for what
he believed was a gun. The defendant testified that he
believed that he was going to ‘‘get shot’’ and that he
instinctively attempted to protect himself by driving the
car toward Nunez.
The jury returned a verdict of guilty on all five counts.2
This appeal followed. Additional facts and procedural
history will be set forth later as necessary to address
the specific claims of the defendant.
I
The defendant first claims that the court improperly
denied his motion to set aside the verdict and for a new
trial. The defendant’s claim on appeal is twofold. First,
he argues that the verdict on counts one, two, and
four is legally inconsistent. Specifically, the defendant
argues that the jury’s necessary conclusion that he had
engaged in an intentional assault of Nunez and Jessica
as charged in counts one and two, is legally inconsistent
with its conclusion that he recklessly engaged in con-
duct that created a risk of serious physical injury to
Nunez, as charged in count four of the amended infor-
mation. In response, the state argues that the verdict
is not legally inconsistent because a ‘‘plausible theory’’
exists under which the jury reasonably could have
found the defendant guilty of all three offenses. The
state’s ‘‘plausible theory’’ is that the defendant’s convic-
tion on counts one and two was based on his conduct in
steering his automobile directly into Nunez and Jessica,
whereas his conviction on count four was based upon
his postcrash conduct during which the defendant
exited the vehicle and proceeded to punch Nunez in
the face while he lay on the ground already seriously
injured.
Second, the defendant argues on appeal that he
lacked constitutionally sufficient notice of the charges
of which he could be convicted because the state’s
theory of the case at trial was never that he acted
recklessly in harming the victims but, instead, that he
was on a ‘‘hunting mission’’ and intended to assault
Nunez. The state counters that its theory of the case
was not limited to the defendant’s intentional assault
but, instead, included a theory that the defendant, after
he had intentionally assaulted Nunez and Jessica, reck-
lessly engaged in conduct that created a risk of serious
harm to Nunez by exiting his vehicle and punching
Nunez. For the reasons subsequently set forth, we dis-
agree with the defendant’s assertions.
The following facts and procedural history are rele-
vant to these claims. At trial, the state called Nunez to
testify, and he described the defendant’s conduct prior
to and after the defendant crashed into him and Jessica
with his vehicle. Specifically, Nunez testified that he
was ‘‘flipped over’’ by a speeding vehicle driven by
the defendant and ‘‘landed near the building’’ he was
standing by with Jessica. After Nunez landed, he heard
Jessica ‘‘screaming’’ and then witnessed the defendant
approach him. Nunez stated that the defendant got on
top of him and struck him with his fists while he lay
seriously injured from being struck by the defendant’s
vehicle. In addition to Nunez’ testimony, other evidence
was introduced that described the defendant’s post-
crash conduct, including the testimony of Jan Zolotov,
an eyewitness, who described the event in similar
terms.3
Following the conclusion of trial, the defendant filed
a motion to set aside the verdict and for a new trial.
In support of his motion, the defendant argued that the
verdict on counts one and two required proof of a men-
tal state legally inconsistent with that required to find
him guilty on count four. Specifically, the defendant
argued that his conviction under counts one and two
is legally inconsistent with the conviction under count
four because the first two counts required the jury to
conclude that his conscious objective was to cause
serious physical injury to Nunez, while count four
required the jury to conclude that the defendant reck-
lessly engaged in conduct that created a risk of serious
physical injury to Nunez. To support his inconsistent
verdict claim, the defendant argued that the state’s the-
ory of the case was that he was on a ‘‘hunting mission’’
and that the evidence presented at trial tended to show
only that he intended to cause serious physical injury
to Nunez.
In response, the state argued that the jury plausibly
could have found that the defendant possessed distinct
mental states before and after the vehicle crash. Specifi-
cally, the state argued that the jury could have found
that the defendant intended to cause serious physical
injury to Nunez when the defendant drove his vehicle
into Nunez, and that the defendant was reckless in
creating a risk of serious physical injury to Nunez when
the defendant exited the vehicle after the crash and
began striking Nunez with his fists. Additionally, the
state claimed that the prosecutor ‘‘never argued a fac-
tual basis for [first degree] reckless endangerment’’ and
that the jury was ‘‘free’’ to come to such conclusions
on the basis of the ‘‘evidence available’’ to it.
On May 15, 2014, the trial court denied the defendant’s
motion to set aside the verdict and for a new trial. The
court agreed with the state that the evidence introduced
at trial supported a ‘‘rational theory’’ of both intentional
assault and reckless endangerment, and that the defen-
dant reasonably could have possessed ‘‘different mental
states as to different results.’’ The court pointed to the
defendant’s testimony that after he crashed into Nunez,
he exited his vehicle, jumped on Nunez, and struck him
with his fists, disregarding the serious physical injuries
that Nunez had already suffered.
Before turning to the merits of the defendant’s claims
on appeal, it is important to review some recent devel-
opments in the law of inconsistent verdicts and to dis-
cuss how the timing of these developments affected
the defendant’s presentation of his claim to the trial
court that the verdict as to certain of the counts in this
case was legally inconsistent.
At the time the defendant moved to set aside the
verdict on the ground that it was legally inconsistent,
he relied heavily upon this court’s decision in State v.
King, 149 Conn. App. 361, 87 A.3d 1193 (2014), rev’d,
321 Conn. 135, 136 A.3d 1210 (2016). In King, the defen-
dant was tried on two counts of assault in the first
degree in violation of § 53a-59 (a) (1) and (3). State v.
King, 321 Conn. 135, 137, 136 A.3d 1210 (2016). The
first count alleged that the defendant intentionally had
stabbed the victim. Id., 137–39. The second count
alleged that he recklessly engaged in conduct under
circumstances evincing an extreme indifference to
human life and thereby caused serious physical injuries
to the victim. Id.
At trial, the jury in King was presented with evidence
regarding the underlying criminal conduct that
occurred in two phases. Id., 142. The jury first heard
evidence of a dispute between the defendant and Kyle
Neri over an unpaid loan at the victim’s home. Id., 138,
142–43. As the dispute escalated, the defendant grabbed
a knife and began swinging it at Neri. Id., 138, 143.
The victim intervened in the dispute and attempted to
remove the knife from the defendant’s grasp, but was
struck by the knife and injured. Id., 139. Later, the jury
was presented with an account of the defendant’s subse-
quent conduct; id., 143–44; in which the defendant threw
the victim up against a wall and stabbed her ‘‘at least
three times with a steak knife.’’ Id., 144.
The trial court in King denied a motion to set aside
the verdict on the ground that it was legally inconsis-
tent. Id., 139. The defendant appealed to this court, and
we reversed the judgment of conviction on the ground
that the verdict was legally inconsistent. State v. King,
supra, 149 Conn. App. 363.
In doing so, this court held that a proper assessment
of whether a verdict is legally inconsistent must be
conducted in light of the state’s theory of the case.
Specifically, this court stated that ‘‘[i]n determining
whether a verdict is legally and logically inconsistent
. . . a reviewing court must also consider the way in
which the state presented the case to the jury.’’ Id., 371.
This court then analyzed the record and concluded that
the state pursued the charges against the defendant as
alternative theories of liability, that is, as one substan-
tive criminal offense that was committed either reck-
lessly or intentionally. Id., 373. As a result, this court
concluded that the judgment of conviction on both
counts violated ‘‘the defendant’s due process rights to
fair notice of the charges against him . . . .’’ Id., 375.
Relying in part on our decision in King, the defendant
in the present case presented a single claim to the court
in his motion to set aside the verdict: The verdict on
counts one and two was legally inconsistent with the
verdict on count four. That single claim, however,
appeared to employ the analytical framework set forth
in this court’s decision in King because it rested, in part,
on a subsidiary assertion that the state, by amending the
information before trial, had abandoned its reliance
upon the defendant’s postcrash conduct as a factual
basis of guilt and, therefore, should not be permitted to
argue on appeal that the verdict was legally consistent
because of the defendant’s postcrash conduct. In so
doing, however, the defendant did not raise a separate
claim that his due process right to notice of the charges
against him had been violated because he had been
convicted of having engaged in conduct with which he
had not been charged.
After the defendant filed his principal brief in this
court, our Supreme Court reversed this court’s decision
in State v. King, supra, 149 Conn. App. 361. See State
v. King, supra, 321 Conn. 148. Specifically, our Supreme
Court clarified that a defendant’s claim that a verdict
is legally inconsistent is conceptually distinct from a
claim that the state altered its theory of the case after
the verdict; id., 148–49; which is more properly charac-
terized as a separate due process claim. Id. The Supreme
Court concluded that these are ‘‘ultimately separate
issues and reviewing courts should evaluate them as
such.’’ Id., 148. The court emphasized that the resolution
of a claim that a verdict is legally inconsistent should
not be resolved by reference to the state’s theory of
the case but, instead, by examining the elements of
the charges at issue to determine whether there is any
plausible view of the evidence that would render the
verdict legally consistent. Id., 140–41. Thus, in order
to address the defendant’s arguments properly in the
present case, we separate and analyze the two argu-
ments independently pursuant to the direction of our
Supreme Court in King.
A
We first turn to whether there was ‘‘any plausible
theory’’; id., 141; under which the jury reasonably could
have concluded that the defendant was guilty of all
crimes charged under counts one, two, and four without
creating a legal inconsistency. The defendant argues
that there is no plausible theory under which the jury
could have found him guilty of both intentional assault
in counts one and two and reckless endangerment in
count four because the requisite mental states for those
charges are legally inconsistent, and are based upon
the same criminal conduct and result. In response, the
state argues that the defendant’s conduct gave rise to
two separate crimes whereby the defendant acted inten-
tionally and recklessly at different times, and with
respect to different results. We agree with the state.
The following legal principles guide our decision. A
legally inconsistent conviction exists when ‘‘a convic-
tion of one offense requires a finding that negates an
essential element of another offense of which the defen-
dant also has been convicted.’’ State v. Nash, 316 Conn.
651, 659, 114 A.3d 128 (2015). ‘‘When confronted with
such a claim we carefully examine the elements of both
offenses.’’ State v. King, supra, 321 Conn. 140. ‘‘In exam-
ining a claim of legal inconsistency, we must closely
examine the record to determine whether there is any
plausible theory under which the jury reasonably could
have found the defendant guilty of both offenses. . . .
Additionally, in determining whether two mental states
are mutually exclusive, the court must consider each
mental state as it relates to the particular result
described by the statute.’’ (Citation omitted; internal
quotation marks omitted.) Id., 140–41. The determina-
tion of whether the defendant’s conviction is legally
inconsistent is a question of law, over which we exer-
cise plenary review. Id., 141.
Here, the defendant argues that there is no ‘‘plausible
theory’’ under which the jury could have found him
guilty of both intentional assault and reckless endanger-
ment. Specifically, the defendant argues that his con-
duct amounted to one continuous act, and that his
conviction on counts one, two, and four required the
jury to find that he simultaneously acted intentionally
and recklessly ‘‘with regard to the same victim, the
same act, and the same result.’’
The defendant argues that the facts before us are
analogous to those set forth in State v. King, 216 Conn.
585, 583 A.2d 896 (1990), a 1990 decision of our Supreme
Court that is not to be confused with its 2016 decision
in State v. King, supra, 321 Conn. 135. The defendant
in State v. King, supra, 216 Conn. 586, was charged
with and found guilty of the crimes of assault in the
first degree in violation of § 53a-59 (a) (3), arson in the
first degree in violation of General Statutes § 53a-111
(a) (2), and attempt to commit murder in violation of
General Statutes §§ 53a-49 and 53a-54a (a). The defen-
dant’s conviction arose from an incident that occurred
while serving a prison sentence at the Bridgeport Com-
munity Correctional Center. Id., 588. In the early morn-
ing of June 20, 1988, a fire broke out in one of the cells
that caused serious harm to the cell’s occupant. Id. It
was later discovered that, prior to the fire, the defendant
and the victim had been in a dispute, and that the defen-
dant started the fire to harm the victim following that
dispute. Id.
Following his conviction, the defendant claimed on
appeal that the trial court improperly denied his motion
for a new trial because it should not have instructed
the jury that it could find him guilty of both attempted
murder and assault (reckless) in the first degree. Id.,
592. Our Supreme Court agreed, vacating the conviction
of assault in the first degree and attempted murder,
and ordering a new trial. Id., 603–604.
Our Supreme Court explained that in order for the
jury to find the defendant guilty of attempted murder,
it must have concluded that the ‘‘defendant acted with
the intent to cause the death of the victim.’’ (Footnote
omitted.) Id., 593. ‘‘On the other hand, the jury’s verdict
of guilty on the count of assault [reckless] necessitated a
finding that the defendant acted recklessly, and thereby
created a risk of death to the victim.’’ (Emphasis in
original; footnote omitted.) Id. Our Supreme Court rec-
ognized that ‘‘[t]o return verdicts of guilty for both
attempted murder and assault in the first degree [reck-
less] . . . the jury would have had to find that the
defendant simultaneously acted intentionally and reck-
lessly with regard to the same act and the same result,
i.e., the injury to the victim.’’ Id. The defendant’s convic-
tions were overturned because ‘‘the transgression that
caused the victim’s injuries was either intentional or
reckless; it could not, at one and the same time, be
both.’’ Id., 594.
We acknowledge that the defendant before us was
convicted of crimes that, like those in State v. King,
supra, 216 Conn. 585, possess mutually exclusive men-
tal states, but disagree that the facts of that case are
analogous to those before us. The primary distinction
between the present facts and those in State v. King,
supra, 585, is that the jury here was presented with
evidence of two separate criminal acts. Although it is
undisputed that an individual cannot simultaneously
act intentionally and recklessly, that notion is limited
to the same criminal conduct and result. See id., 594
(explaining that a single act cannot both be intentional
and reckless). The defendant in King committed a sin-
gle criminal act when he started a fire within the cell
that caused harm to the victim. Id., 588. The opposite
is true here, as the jury reasonably could have con-
cluded that the defendant’s conduct amounted to two
distinct criminal acts in which he possessed otherwise
mutually exclusive mental states.
Instead, the present case is more analogous to the
later King (2016) decision, the facts of which we have
discussed previously. See State v. King, supra, 321
Conn. 135, the facts of which we have discussed pre-
viously. In King (2016), our Supreme Court clarified
that, under certain circumstances, a jury reasonably
could conclude that a criminal defendant can possess
otherwise mutually exclusive mental states throughout
the course of temporally related but separate criminal
acts. Id., 144. Specifically, the jury in that case could
have found that the defendant ‘‘was guilty of both
crimes by stabbing the victim while recklessly swinging
the knife at Neri and then intentionally stabbing the
victim after she intervened and the defendant threw
her against the wall.’’ Id. Our Supreme Court further
reasoned that ‘‘a defendant may be convicted of crimes
that require differing mental states, so long as those
states relate to different criminal results.’’ Id., 145; see
also State v. Nash, supra, 316 Conn. 666 (affirming the
defendant’s conviction ‘‘because the two mental states
required to commit the offenses relate to different
results’’).
In the present case, with respect to the defendant’s
conviction of assault as charged in counts one and
two, evidence was presented at trial that sufficiently
described a plausible theory whereby the jury reason-
ably could have concluded that the defendant, who had
been seeking to initiate a physical confrontation with
Nunez, committed the crimes of (1) assault in the first
degree pursuant to § 53a-59 (a) (1)4 by intentionally
striking Nunez with his vehicle with the intent to cause
him serious physical injuries; (2) assault in the second
degree pursuant to § 53a-60 (a) (2),5 by causing serious
physical injury to Jessica by striking her with his vehicle
with the intent to cause serious physical injuries to
Nunez; and (3) reckless endangerment in the first
degree pursuant to § 53a-63 by exiting his vehicle fol-
lowing the crash and striking an already seriously
injured Nunez with his fists, thereby creating a risk of
exacerbating those injuries. Even though the defen-
dant’s acts here were temporally related, the jury rea-
sonably could have concluded that the defendant was
guilty of intentionally assaulting Nunez and Jessica, and
reckless endangerment by discrete acts throughout the
entire course of conduct described to the jury.
We, therefore, conclude that a plausible theory exists
whereby the jury reasonably could have concluded that
the defendant’s conduct amounted to separate criminal
acts. Accordingly, the defendant’s conviction of assault
and reckless endangerment under counts one, two, and
four is not legally inconsistent.
B
We next consider whether the defendant received
constitutionally sufficient notice of the charges brought
against him. The defendant argues that he was not
afforded such notice, in part because the state aban-
doned charges relating to the defendant’s postcrash
conduct by amending, on the eve of trial, the original
information. Specifically, the defendant argues that the
state proceeded at trial solely on a theory that he acted
intentionally because he was on a ‘‘hunting mission.’’
We disagree.
Before turning to the merits of this claim, we note
that, because the defendant did not raise this due pro-
cess claim as a separate and distinct claim to the trial
court, we arguably are not bound to consider it. Practice
Book § 60-5; Travelers Casualty & Surety Co. of
America v. Netherlands Ins. Co., 312 Conn. 714, 761,
95 A.3d 1031 (2014). In this case, however, we elect to
review the defendant’s due process claims for several
reasons.
First, the defendant presented his inconsistent ver-
dict and due process claims to the trial court as one
claim, on the basis of the existing structural framework
used by this court in State v. King, supra, 149 Conn.
App. 361. Although that framework was subsequently
rejected by our Supreme Court, it would be unfair to
penalize the defendant by declining review of his due
process claim for structuring it on the basis of applica-
ble law at that time.
Second, although the defendant’s due process claim
was not raised independently from his inconsistent ver-
dict claim, the essence of the claim actually was pre-
sented to and decided by the trial court. Specifically,
the trial court understood and rejected the defendant’s
argument that he somehow lacked notice of the charges
against him because the state’s theory of the case post-
verdict was different from the manner in which it was
presented to the jury. Accordingly, affording this claim
review on appeal will not result in trial by ambuscade
or be unfair to the trial court or the opposing party. See
State v. Elson, 311 Conn. 726, 749, 91 A.3d 862 (2014).
Third, although the Supreme Court’s decision in State
v. King, supra, 321 Conn. 135, was not released until
after the state had filed its appellee brief, the state
devoted several pages in its brief to the defendant’s
argument that the state had altered its theory of the
case. Finally, our consideration of this claim is appro-
priate because we decide it adversely to the defendant,
and the state is, therefore, not prejudiced by its review.
See State v. Gaines, 257 Conn. 695, 713 n.13, 778 A.2d
919 (2001).
The following additional facts and procedural history
are relevant to the defendant’s due process claim. Prior
to the eve of trial, the defendant had been charged in
an eight count information dated May 16, 2013. The
first five counts of the original information were almost
identical to the amended information filed on January
26, 2014, upon which the state ultimately proceeded to
trial. In the original information, however, count one
charged the defendant with assault in the first degree
in that the ‘‘[defendant], with intent to cause serious
physical injury to one Jessica Sanchez, did cause seri-
ous physical injury to the said Jessica Sanchez with a
dangerous instrument, to wit: a motor vehicle . . . .’’
In the amended information, the state altered count one
to allege a charge of an intentional assault of Nunez
and amended count two to allege an assault of Jessica
under a theory of transferred intent, i.e., with the intent
to cause serious physical injuries to Nunez, he caused
serious physical injury to Jessica.
The original information also contained three addi-
tional counts that were deleted from the amended infor-
mation upon which the case was tried. In count six,
the state had charged the defendant with assault in the
third degree, alleging that the defendant, with the intent
to cause physical injury to Nunez, caused physical
injury to Nunez. In count seven, the state had charged
the defendant with threatening in the second degree,
alleging that the defendant had physically threatened
Jessica at or near Washington Avenue and Coleman
Street with the intent to place her in fear of imminent
serious physical injury. In count eight, the state had
charged the defendant with threatening in the second
degree, alleging that the defendant had physically
threatened Nunez at or near Washington Avenue and
Coleman Street with the intent to place him in fear
of imminent serious physical injury. The state did not
explain at the time it filed the amended information
any of its reasons for dropping counts six, seven, and
eight. Further, the state did not discuss whether the
remaining charges were exclusively applicable to the
defendant’s conduct in striking Nunez and Jessica with
his vehicle.
At the time the state filed its amended information,
the court stated that it understood that the state had
amended the information to clarify ‘‘in count two that
it’s charging [the defendant] with intent to cause physi-
cal injury to Edwin Nunez, [he caused] physical injury
to [Jessica], by means of a dangerous weapon.’’ The
court proceeded to ask the defendant if he waived a
reading of the information and advisement of rights,
to which he responded, through his counsel, in the
affirmative, and entered pro forma pleas of not guilty.
As noted previously, the defendant moved the court
to set aside the verdict and for a new trial following
the verdict. The defendant argued in support of that
motion that his conscious objective to cause serious
physical harm to Nunez as charged in counts one and
two was legally inconsistent with the mental state of
recklessness required to be convicted under count four.
The defendant supported his argument by claiming that
all of the charged counts implicated the same criminal
conduct and the same victim throughout a nonbifur-
cated and ‘‘fast-moving event.’’ Further, the defendant
claimed that the state’s theory of the case was that he
was on a ‘‘hunting mission,’’ and that, collectively, the
evidence tended to support only a theory of intentional
assault. In response, the state argued that the jury was
free to find the defendant guilty on all counts on the
basis of the evidence presented at trial and the charges
brought against the defendant in the information.
With respect to the defendant’s argument that the
state was not pursuing charges relating to the defen-
dant’s postcrash conduct, the court asked the following:
‘‘[Y]ou’re not claiming like the State v. King [supra, 149
Conn. App. 361] case that your client or you had no
notice that the state was pursuing charges that were
both intentional and reckless. You’re not claiming that
in this case, are you?’’ The court immediately followed
that question with a more pointed question, asking
whether the defendant and counsel ‘‘knew what the
charges were,’’ to which defense counsel responded,
‘‘[o]f course.’’
On May 15, 2014, the court denied the defendant’s
motion. In denying that motion, the court reasoned
that the defendant was ‘‘well aware that the state was
pursuing the different and separate offenses,’’ and that
he had sufficient notice of the charges brought
against him.
The following principles guide our analyses. ‘‘A fun-
damental tenet of our due process jurisprudence is that
[i]t is as much a violation of due process to send an
accused to prison following conviction of a charge on
which he was never tried as it would be to convict him
upon a charge that was never made. . . . Accordingly,
the United States Supreme Court has explained that
[t]o uphold a conviction on a charge that was neither
alleged in an indictment nor presented to a jury at trial
offends the most basic notions of due process. Few
constitutional principles are more firmly established
than a defendant’s right to be heard on the specific
charges of which he is accused. . . . Reviewing courts,
therefore, cannot affirm a criminal conviction based on
a theory of guilt that was never presented to the jury
in the underlying trial. . . .
‘‘Principles of due process do not allow the state, on
appeal, to rely on a theory of the case that was never
presented at trial. . . . Although we recognize that the
finder of fact may consider all of the evidence properly
before it, in order for us to uphold the state’s theory
of the case on appeal, that theory must have been not
merely before the jury due to an incidental reference,
but as part of a coherent theory of guilt that, upon
[review of] the principal stages of trial, can be character-
ized as having been presented in a focused or otherwise
cognizable sense. . . . Essentially, the state may not
pursue one course of action at trial and later, on appeal,
argue that a path [it] rejected should now be open
to [it] . . . . To rule otherwise would permit trial by
ambuscade. . . . Accordingly, on appeal, the state may
not construe evidence adduced at trial to support an
entirely different theory of guilt than the one that the
state argued at trial. . . . Whether a defendant has
received constitutionally sufficient notice of the
charges of which he was convicted may be determined
by a review of the relevant charging document, the
theory on which the case was tried and submitted to
the jury, and the trial court’s jury instructions regarding
the charges.’’ (Citations omitted; emphasis added; inter-
nal quotation marks omitted.) State v. King, supra, 321
Conn. 148–50.
We first examine the state’s amended information
upon which the case was tried. It is well established
that an information provides notice to the defendant
of the charges of which he may be convicted. See State
v. James, 247 Conn. 662, 679, 725 A.2d 316 (1999); State
v. Tanzella, 226 Conn. 601, 608, 628 A.2d 973 (1993);
State v. Spigarolo, 210 Conn. 359, 382, 556 A.2d 112,
cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed.
2d 312 (1989); see also Practice Book § 36-13 (‘‘[t]he
information shall state for each count the official or
customary citation of the statute, rule, regulation, or
other provision of law which the defendant is alleged
to have violated’’).
The state’s amended information charged the defen-
dant with multiple counts of intentional assault and
reckless endangerment, and did not in any way suggest
that they represented alternative theories of liability or
that the state did not intend to present all charges to
the jury for consideration. The amended information
contains five separate counts—one for each offense.
Nothing in the amended information explicitly or
implicitly indicates that the state intended to prosecute
count four as an alternative to criminal liability under
counts one and two.
Importantly, if the defendant had been unclear of the
charges brought against him, nothing precluded him
from filing a motion for a bill of particulars pursuant
to Practice Book § 41-20. See State v. King, supra, 321
Conn. 151. Furthermore, if the defendant truly had
believed at the time of trial that certain charges had
been brought only as alternative theories of guilty, he
presumably would have requested an instruction from
the court explaining to the jury that it could not find
him guilty of reckless endangerment as to Nunez if it
concluded that he was guilty of counts one or two.6
The defendant did not pursue either of these measures
to resolve any potential confusion he may have had
with respect to the charged offenses. Thus, the state’s
amended information tends to suggest that the defen-
dant was on notice that count four sought to impose
criminal liability on him for conduct that was distinct
from counts one and two.
We next examine the evidence that the state intro-
duced at trial. In that regard, it is clear that the state
introduced evidence that the defendant intentionally
assaulted Nunez by crashing his vehicle into him and
Jessica, and also that he subsequently exited his vehicle
and engaged in conduct that risked causing further seri-
ous physical injury to Nunez. Thus, the state introduced
evidence that supported all charges listed in the
amended information.
Like in King (2016), it is true that the state in the
present case did not present its evidence in a manner
that necessarily delineated the charges to which spe-
cific evidence or testimony related. Our Supreme Court
in King (2016) recognized, however, that a prosecutor’s
failure to do so ‘‘is not equivalent to a prosecutor who
does specify the evidence underlying a charge and then
subsequently adopts a different evidentiary justification
for that charge.’’ Id., 153. Here, as in King (2016), the
state did not take any action while presenting its case
that would have induced the defendant to refrain from
defending against all of the evidence or to believe that
the evidence related only to one charge or another.
Instead, the state presented evidence of the defendant’s
entire encounter, which, as previously discussed, evi-
denced two independent criminal acts.
In determining the state’s theory of the case, examina-
tion of the state’s closing argument is also an important
consideration. See id., 154–55. The manner in which
the prosecutor conducted the state’s closing argument
also did not suggest that the state had intended to prose-
cute any of the charges as alternatives to each other.
Unlike the situation in State v. King, supra, 321 Conn.
155–56, the prosecutor here did not make any state-
ments, ambiguous or otherwise, that could reasonably
be construed as framing certain charges in the disjunc-
tive. It is true that the prosecutor spent the bulk of her
argument on analyzing the defendant’s conduct that
formed the bases of the two counts of intentional
assault. Indeed, it is likely that the state focused on
those charges because they were the most serious
charges and the defendant had raised the justification
of self-defense arising out of his factual contention that
he intentionally had crashed his car into Nunez in order
to avoid being shot.
It is not true, however, that the prosecutor ignored
the defendant’s postcrash conduct or the reckless
endangerment charges during her closing argument.
During her closing argument, the prosecutor conveyed
to the jury that ‘‘[t]he other thing you have to conclude
is that [the defendant] immediately got out of the car
and assaulted Edwin Nunez.’’7 If the state was proceed-
ing, as the defendant argues, solely on a theory that
he was on a ‘‘hunting mission,’’ it would have been
unnecessary for the state to prove or for the jury to
conclude that he assaulted Nunez after he got out of
the car in order to find the defendant guilty on the first
two counts of the information.
Finally, the court’s charge to the jury supports a con-
clusion that the defendant had adequate notice that he
could be convicted on the first two counts and count
four of the information. In its charge to the jury, the
court never stated or implied that any of the charges
were brought against the defendant in the alternative
or that the jury should consider count four only if it
had found the defendant not guilty on counts one and
two. Instead, the court charged the jury on all counts
contained in the amended information and stated that
it was the jury’s ‘‘duty to consider each count separately
in deciding the guilt or nonguilt of the defendant.’’
Importantly, the court stated that ‘‘the determination
of one count or charge or one part of the charging
document does not automatically make the defendant
guilty or not guilty of any other count or charge.’’
Our review of the court’s instructions reveals that
the court clearly conveyed to the jury that there were
five counts listed in the amended information and that
the jury was obligated to come to a verdict on each of
the five counts. Counsel had the opportunity to object
to the court’s instructions or request that the court
clarify, but did not. Thus, the court’s instructions amply
suggest that the defendant had notice of all the charges
the jury was to consider.
Finally, we address the defendant’s argument that
he lacked adequate notice of the charges against him
because the state, by amending the information on the
eve of trial, abandoned counts relating to his postcrash
conduct, and, thus, the theory of the case had changed
following his conviction. We disagree for two reasons.
First, the defendant’s assertion that the state, by with-
drawing counts six through eight of the original infor-
mation, intended to abandon reliance on the
defendant’s postcrash conduct is speculative at best
because it is premised on an assumption that those
counts sought to impose criminal liability on the defen-
dant for his postcrash conduct. None of the withdrawn
counts, however, explicitly referred to postcrash con-
duct as the factual basis for the crime alleged therein.
Instead, these counts, similar to counts three through
five, merely stated that the defendant committed the
crime charged in that specific count by engaging in
conduct that constituted the elements of the offenses
at the specified date and time at the location of Washing-
ton Avenue and Coleman Street. Thus, we are unwilling
to infer, as the defendant invites us to do, that the state
intended to abandon its reliance on postcrash conduct
by withdrawing counts six, seven, and eight because
they were vaguely worded and did not explicitly rely
on postcrash conduct. Each of these counts could be
construed to impose liability on the defendant for
unspecified conduct he committed before he exited his
vehicle. Indeed, the state may have chosen to withdraw
these counts because, in its view, they implicated con-
duct that was already covered by the remaining charges,
or in order to reduce any confusion for the jury regard-
ing what alleged conduct related to which charge.8
Second, the state did not provide any reasons as to
why it was withdrawing the counts and, thus, did not
induce the defendant to believe that it had abandoned
any reliance on his postcrash conduct as a basis for
criminal liability in the case. To the extent that the
withdrawal of these counts raised such an inference in
the defendant’s mind, he could have requested that the
court require the state to provide its reasons for with-
drawing the counts.
Moreover, we disagree with the defendant’s assertion
in his reply brief that a colloquy between the court and
his counsel at the hearing on the defendant’s motion
to set aside the verdict demonstrates that the state had
abandoned, prior to trial, any reliance on his postcrash
conduct. During argument, defense counsel stated that
his understanding was that ‘‘the state had originally
charged [the defendant] with assault and threatening
for [the] postcrash event. And, as I understood, the
state’s theory of the case was that the state did not
pursue those charges and was not pursuing the events
that happened postcrash.’’ The prosecutor did not
affirmatively respond to this assertion, but did generally
argue that the state had not changed its theory of the
case.
The defendant argues that because the state did not
affirmatively disagree with defense counsel’s state-
ment, the state conceded that it had abandoned prior
to trial a theory of liability relating to the defendant’s
postcrash conduct. We are unwilling to imply such a
significant concession from the state’s failure to
respond to one of the many assertions defense counsel
made during argument on the motion to set aside the
verdict. The state never affirmatively conveyed that it
agreed with defense counsel’s assertion and was not
given an opportunity to respond to it before the court
denied the motion. According, this argument lacks
merit.
In sum, after our review of the amended information,
the evidence introduced at trial, the state’s closing argu-
ment, and the court’s charge to the jury, we conclude
that the defendant had sufficient notice of the charges
brought against him, and that he could be convicted of
all charged offenses, including for conduct he commit-
ted after intentionally crashing his vehicle into Nunez
and Jessica. Accordingly, the defendant’s due process
rights were not violated.
II
The defendant next claims that the trial court made
two improper evidentiary rulings. First, he claims that
the court improperly allowed the prosecutor to question
the defendant on the credibility of another witness.
Second, he claims that the court improperly admitted
evidence regarding his tattoos. We conclude that the
court improperly permitted the state to question the
defendant regarding the credibility of another witness.
We also assume, without deciding, that the court
improperly admitted evidence of the defendant’s tat-
toos. Nevertheless, we conclude that neither ruling con-
stituted harmful error.
As a preliminary matter, we set forth our standard
of review. ‘‘We review the trial court’s decision to admit
evidence, if premised on a correct view of the law . . .
for an abuse of discretion. . . . It is axiomatic that
[t]he trial court’s ruling on the admissibility of evidence
is entitled to great deference. . . . In this regard, the
trial court is vested with wide discretion in determining
the admissibility of evidence . . . . Accordingly, [t]he
trial court’s ruling on evidentiary matters will be over-
turned only upon a showing of a clear abuse of the
court’s discretion. . . . Furthermore, [i]n determining
whether there has been an abuse of discretion, every
reasonable presumption should be made in favor of the
correctness of the trial court’s ruling, and we will upset
that ruling only for a manifest abuse of discretion.’’
(Citation omitted; internal quotation marks omitted.)
State v. Popeleski, 291 Conn. 769, 774, 970 A.2d 108
(2009). ‘‘Even when a trial court’s evidentiary ruling is
deemed to be improper, we must determine whether
that ruling was so harmful as to require a new trial.
. . . In other words, an evidentiary ruling will result in a
new trial only if the ruling was both wrong and harmful.’’
(Internal quotation marks omitted.) State v. Abreu, 106
Conn. App. 278, 283, 941 A.2d 974, cert. denied, 286
Conn. 919, 946 A.2d 1249 (2008).
A
First, the defendant contends that the court improp-
erly permitted the prosecutor to ask the defendant
whether another witness had lied when testifying. In
response, the state concedes that at least one of the
questions that it asked was improper, but argues that
the defendant has not satisfied his burden of demonstra-
ting any harmful error. We agree that the defendant has
not met his burden to establish harmful error.
The following facts are relevant to our resolution
of this claim. Zolotov, an eyewitness, agreed with the
prosecutor that Nunez and Jessica were standing ‘‘idly’’
when they were struck by the defendant’s car. The
defendant later testified that Nunez signaled the defen-
dant, and later motioned toward his waist, for what
the defendant believed to be a firearm. The following
colloquy occurred between the state and the defendant
during its cross-examination of him in which he dis-
cussed Zolotov’s testimony:
‘‘[The Prosecutor]: And so when Mr. Zolotov sat there
and said that they were just standing there when your
car came and careened into them, that was incorrect?
‘‘[Defense Counsel]: Objection, Your Honor.
‘‘The Court: Overruled. . . .
‘‘[The Defendant]: Can you please state that again?
‘‘[The Prosecutor]: I said, when Mr. Zolotov, the man
with the Russian accent, you—
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: —remember him? So, when he
sat there and told this jury that the two people on the
corner were minding their own business and your car
came and crashed into them, that was incorrect?
‘‘[The Defendant]: That he also said that he saw my
car speed up, so, obviously, when—
‘‘[The Prosecutor]: No, sir. Sir—
‘‘[The Defendant]: —he saw my car, his eyes were
not on the two people.
‘‘[The Prosecutor]: Sir, was it incorrect?
‘‘[The Defendant]: Yes, it was incorrect.
‘‘[The Prosecutor]: So, do you believe that he purpose-
fully sat there and mischaracterized the event?
‘‘[The Defendant]: I believe he was mistaken.’’
It is well established that questions seeking a witness’
opinion regarding the veracity of another witness are
barred. State v. Singh, 259 Conn. 693, 706, 793 A.2d 226
(2002). The underlying basis for such a rule is to prohibit
a fact witness from invading the jury’s exclusive func-
tion to determine the credibility of witnesses. Id., 707.
‘‘[Q]uestions of this sort . . . create the risk that the
jury may conclude that, in order to acquit the defendant,
it must find that the witness has lied.’’ Id., 708. This
prohibition includes questions that ask whether another
witness is lying, mistaken, wrong, or incorrect. Id., 712.
We turn then to whether the defendant has established
that he was harmed by this colloquy between the prose-
cutor and the defendant.9
‘‘[T]he proper standard for determining whether an
erroneous evidentiary ruling is harmless [is] whether
the jury’s verdict was substantially swayed by the error.
. . . In applying this standard, which expressly requires
the reviewing court to consider the effect of the errone-
ous ruling on the jury’s decision, an appellate court may
conclude that a nonconstitutional error is harmless only
when it has a fair assurance that the error did not
substantially affect the verdict. . . . In reviewing the
case, we consider a number of factors, namely, the
overall strength of the state’s case, the impact of the
improperly admitted or excluded evidence on the trier
of fact . . . and the presence of other evidence corrob-
orating or contradicting the point for which the evi-
dence was offered.’’ (Citations omitted; internal
quotation marks omitted.) State v. Calabrese, 279 Conn.
393, 411–12, 902 A.2d 1044 (2006). It is the defendant’s
burden to show that any errors were harmful. State v.
Eleck, 314 Conn. 123, 129, 100 A.3d 817 (2014).
Our Supreme Court ‘‘has never had a case in which
a Singh violation, standing alone, was deemed suffi-
ciently egregious to entitle the defendant to a new trial.
Rather, in every case in which a defendant has claimed
that the prosecutor improperly asked him to character-
ize another witness’ testimony as a lie, mistaken or
wrong . . . it was the cumulative effect of the Singh
violation and the other prosecutorial improprieties that
ultimately was deemed to entitle the defendant to a
new trial.’’ (Emphasis added.) State v. Jones, 320 Conn.
22, 43–44, 128 A.3d 431 (2015).
For several reasons, we conclude that the defendant
was not harmed by the court’s ruling that permitted the
state to cross-examine him on the veracity of Zolotov’s
testimony that Nunez and Jessica were standing idly
prior to being struck by the defendant’s vehicle. Import-
antly, the defendant’s testimony did not implicate a core
justification for the Singh rule because it did not force
the jury to find him not guilty only if it first concluded
that Zolotov had lied about what he had seen. In fact,
the defendant ultimately rejected the notion that Zolo-
tov had purposefully mischaracterized the event and,
instead, testified that Zolotov had simply been mis-
taken. Thus, the jury could have concluded that the
defendant was not guilty by crediting his version of the
events—that Zolotov was merely mistaken—without
concluding that Zolotov had intentionally lied.
Second, as a factual matter, there was little, if any,
direct conflict between Zolotov’s testimony and the
defendant’s testimony on the critical question regarding
whether Nunez had engaged in any threatening conduct
on the street corner giving rise to the defendant’s right
to exercise self-defense. As our Supreme Court has
stated, ‘‘[i]t is axiomatic . . . that [if] . . . the jury is
not required to resolve any such conflict, the harm that
might otherwise ensue from such a question will be
significantly reduced if not completely avoided.’’
(Emphasis in original.) Id., 43. Zolotov conceded that
his attention was diverted away from Nunez before
the crash occurred because he had looked toward the
defendant’s vehicle. Indeed, defense counsel argued to
the jury that Zolotov could not have ‘‘been watching
Mr. Nunez and [Jessica] at the same time he was watch-
ing the red light, and at the same time he’s watching
[the defendant’s] car.’’ Thus, Zolotov’s testimony was
in large part consistent with the defendant’s testimony
that Zolotov may not have observed Nunez’ allegedly
threatening conduct because his attention had been
diverted. Accordingly, any harm by the question was
minimized if not avoided altogether.
Third, because Zolotov was a lay witness and not a
law enforcement officer, the prosecutor’s question did
not implicate another core concern recognized by the
Singh rule: ‘‘[T]he principal reason why a prosecutor
may not ask a defendant about the truthfulness of an
officer’s contradictory testimony is to reduce the risk
that the jury will resolve material conflicts between the
testimony of the defendant and the officer in favor of
the state, out of a concern that to do otherwise would
reflect adversely on the honesty of the officer.’’ State
v. Jones, supra, 320 Conn. 43.
Fourth, the court emphasized in its instructions that
the jury remained the sole arbiter of any witness’ testi-
mony. Specifically, the court charged the jury that it
‘‘should size up the witness, then make your own judg-
ment as to their credibility and decide what portion
. . . all, some or none . . . of any particular . . . wit-
ness’ testimony you will believe.’’ We presume that the
jury here followed the court’s instructions, as nothing
in the record indicates otherwise. State v. Mucha, 137
Conn. App. 173, 196, 47 A.3d 931, cert. denied, 307 Conn.
912, 53 A.3d 998 (2012).
Finally, the overall strength of the state’s case leads
us to conclude that any Singh violations were not harm-
ful. The principal disputed issue in this case was not
whether the defendant struck Nunez and Jessica with
his vehicle, and then exited his vehicle and punched
Nunez in the face. These facts were largely unchal-
lenged and admitted in large measure by the defendant
during his testimony. Instead, the disputed issue was
whether the defendant’s actions were justified because
he properly acted in self-defense.
‘‘It is well settled that a jury’s evaluation of a claim
of self-defense has both subjective and objective ele-
ments. . . . In evaluating a claim of self-defense, a trier
of fact must first examine the danger that a defendant
claims he faced. It is clear that here [t]he statute focuses
on the [defendant] claiming self-defense. It focuses on
what he reasonably believes under the circumstances
. . . . The jury must view the situation from the per-
spective of the defendant. . . . The defendant’s belief
[however] ultimately must be found to be reasonable.’’
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) State v. Peters, 40 Conn. App. 805,
816, 673 A.2d 1158, cert. denied, 237 Conn. 925, 677
A.2d 949 (1996).
The state presented compelling evidence that the
defendant sought out a confrontation with Nunez,
expressed an intention to harm him, and then hunted
him down on the street. The defendant’s actions after
striking Nunez and Jessica with his vehicle are strongly
corroborative that he had intended to assault Nunez
all along and was not acting in self-defense. From the
defendant’s conduct in exiting his vehicle and assaulting
Nunez further, the jury was highly likely to conclude
that the defendant’s action in striking Nunez with his
car was not in reaction to Nunez reaching for a weapon,
which did not occur because Nunez was unarmed. If
the defendant had truly acted in self-defense, there
would have been no need to further attack Nunez, who
lay seriously injured on the ground.
In light of these considerations, we conclude that the
defendant has not met his burden to demonstrate that
any Singh violations were harmful. Accordingly, we
reject this claim.
B
The defendant next claims that the court improperly
allowed the state to question him regarding his tattoos.
Specifically, the defendant argues that evidence of his
tattoos was irrelevant and that the probative value of
it did not outweigh its prejudicial effect. Even if we
assume, without deciding, that the court’s ruling was
improper, we conclude that the defendant has failed to
demonstrate that he was harmed by the admission of
the tattoo evidence.
The following additional facts are relevant to this
claim. At trial, the defendant testified on direct examina-
tion that he drove his car into Nunez as an act of self-
defense because he believed that Nunez would shoot
him after he saw Nunez reach toward his waistband
for what he believed was a gun. The defendant further
testified that he believed Nunez possessed a firearm
because he had seen a Facebook photograph of Nunez
holding a firearm. Additionally, the defendant testified
that he had learned from others that Nunez was a dan-
gerous person. On cross-examination, the defendant
admitted that he did not know whether the gun Nunez
held in the Facebook photograph was real or not. None-
theless, the defendant stated that he believed the gun
depicted in the photograph was real on the basis of
what he had learned about Nunez.
Following the defendant’s testimony that he feared
Nunez, the following colloquy occurred between the
state and the defendant during its cross-examination
of him:
‘‘[The Prosecutor]: And you’re a scaredy-cat; is that
what your testimony is?
‘‘[The Defendant]: Absolutely. I would be, I think
being afraid of a gun is something human.
‘‘[The Prosecutor]: Is [it true] that you have tattoos
all over your body, sir?
‘‘[Defense Counsel]: Objection, Your Honor.
‘‘[The Prosecutor]: Sidebar?
‘‘(The court and counsel conferred at the sidebar.)
‘‘[The Prosecutor]: May I continue, Your Honor?
‘‘The Court: Yes, the objection is overruled in part
and sustained in part . . . per the instructions at side-
bar. . . .
‘‘[The Prosecutor]: Isn’t it true, sir, you have a tattoo
around your collarbone that says, Let him hate so long
as they fear?
‘‘[The Defendant]: Yes, I do.
‘‘[The Prosecutor]: And isn’t it true, sir, you have a
tattoo on your arm, [that says], hate, love and love,
hate, with a skull in the middle?
‘‘[The Defendant]: Yes, a skull with a cross.’’
The court later clarified, outside the presence of the
jury, its ruling relating to the objection made by the
defendant. The court stated in relevant part: ‘‘[T]here
was an objection to—I believe the first objections and
first sidebar related to the tattoos, the state’s wanting
to introduce evidence of the tattoos. I looked at . . .
the booking pictures of the tattoos. The state indicated
at sidebar that it was not going to introduce the actual
booking photos, but that it would ask the defendant if
he had these tattoos, and if he denied it then they would
seek to introduce the booking photos. There were sev-
eral tattoos and the state’s claim was that . . . they
were relevant, that the defendant had opened the door
based on his testimony that he was fearful, and that he
had done research relating to the . . . alleged victim,
and in response to the questions on direct as well as
. . . leaving the jury with the impression that he was
a—well, these were the state’s words, not the court’s—
a scaredy-cat. The court indicated [at sidebar] that it
was relevant, given the line of questioning. The objec-
tion . . . was that they were prejudicial and not rele-
vant. The court ruled that it would allow only three of
the tattoos—the ones that related to hate, love, love,
hate, and, let them hate [so] long as they fear. That
went to whether this defendant reasonably was fearful
for his life under the circumstances as this case
unfolded.’’
As a preliminary matter, we note that the state con-
ceded at oral argument before this court that, had the
defendant not ‘‘opened the door’’ to his character by
agreeing with the prosecutor that he was a ‘‘scaredy-
cat,’’ evidence of the defendant’s tattoos would have
been otherwise inadmissible.
Under the doctrine of opening the door, evidence
that otherwise would be inadmissible is admissible for
the limited purpose of rebutting testimony once the
witness ‘‘opened the door . . . .’’ State v. Brown, 309
Conn. 469, 479, 72 A.3d 48 (2013). In essence, the under-
lying purpose of the doctrine of opening the door is to
prevent a defendant from introducing irrefutable, self-
serving evidence.10 Id. Although we have serious doubts
that the defendant ‘‘opened the door’’ to this evidence
regarding his character by agreeing that he was a ‘‘scar-
edy-cat’’ in response to the state’s single, sarcastic ques-
tion on cross-examination about guns, we need not
decide whether the court’s ruling was improper
because, even if it was, the defendant has failed to
persuade us that this evidence substantially swayed the
jury’s verdict.
The legal principles we rely upon in determining
whether an erroneous evidentiary ruling is harmless
are set forth in part II A of this opinion. See State v.
Calabrese, supra, 279 Conn. 411–12. After reviewing the
entire record, we conclude for several reasons that the
tattoo evidence was unlikely to have substantially
swayed the jury’s verdict.
First, as we discussed in analyzing the defendant’s
other evidentiary claim, the state’s case was strong,
including its tendency to disprove the defendant’s claim
of self-defense. The evidence presented to the jury
strongly supported the state’s claim that the defendant
sought out a confrontation with Nunez, motivated by
the defendant’s strong animosity and conflict with Jes-
sica and other members of her family, and Nunez’ rela-
tionship with them. The defendant expressed an
intention to harm Nunez and then hunted him down
on the street as the initial aggressor. The defendant’s
subjective lack of fear of Nunez was primarily estab-
lished, not by the defendant’s vague pronouncements
on his tattoos, but in part by the evidence that showed
that the defendant did not exhibit any fear of Nunez
when he initially drove by him and sent him a Facebook
message asking, ‘‘[w]hat are you doing out in the open?
I like to get away with crime.’’
The state’s evidence disproving the objective reason-
ableness of any subjective fear the defendant allegedly
may have had, even if he actually saw Nunez reaching
toward his waist, was also strong. The jury properly
was instructed that ‘‘before a defendant uses physical
force upon another person to defend himself, he must
have two reasonable beliefs. . . . [T]he first is a rea-
sonable belief that physical force is about to be used
upon him. The second is a reasonable belief that the
degree of force he is using to defend himself from what
he believes to be an imminent force is necessary for
that purpose.’’
The defendant conceded that he never saw Nunez
display a gun and that he merely saw him reaching
into his coat. Even if the jury believed the defendant’s
testimony that he previously had seen a photograph of
Nunez holding a firearm, the jury was likely to conclude
that it was not objectively reasonable to believe that
Nunez was about to shoot at him without, at the least,
actually seeing a gun. Moreover, at the time he claims
he saw Nunez reaching into his coat, the defendant was
in the relative safety of his moving vehicle and had
ample opportunity to steer his vehicle away from
Nunez. Thus, the evidence strongly suggested that the
defendant’s belief that he must use deadly force was
objectively unreasonable. The tattoo evidence had little
or no bearing on the questions.
Second, we disagree with the defendant’s contention
that the tattoo evidence was so unduly prejudicial that
it substantially swayed the jury’s verdict. Specifically,
the defendant contends that the evidence of the tattoos
was unduly prejudicial because jurors were likely to
conclude that because he has tattoos, he is a bad person
and is likely to have a propensity to engage in criminal
behavior. We are not persuaded.
Evidence is unduly prejudicial if, among other things,
it may ‘‘unduly arouse the [jurors’] emotions, hostility
or sympathy . . . .’’ (Internal quotation marks omit-
ted.) State v. Hill, 307 Conn. 689, 698, 59 A.3d 196 (2013).
In this regard, we note that the defendant never asked
the court to give the jury a limiting instruction to reduce
the risk that the jury would misuse the evidence as
tending to show his general propensity to engage in
criminal conduct.
Tattoos have become ubiquitous in modern society,
and acceptance of tattoos by those who do not have
one has risen substantially.11 Numerous courts have
upheld the admission of tattoo evidence after weighing
the probative value of the evidence versus its prejudicial
effects; see, e.g., United States v. Boswell, 772 F.3d 469,
476–78 (7th Cir. 2014) (tattoo of revolver on defendant’s
neck), cert. denied, U.S. , 135 S. Ct. 1721, 191
L. Ed. 2d 690 (2015); or concluded that, even if tattoo
evidence was improperly admitted, its admission was
not so prejudicial as to warrant a new trial. See, e.g.,
United States v. Smith, 348 Fed. Appx. 636, 638–39 (2d
Cir. 2009) (harmless error to admit tattoo depicting the
‘‘skull, arms, and ribcage of a skeleton firing a weapon,
with shell cases being ejected from the gun, flame com-
ing out of the barrel, and the words ‘D’EVILS WITHIN’
printed above’’), cert. denied, 559 U.S. 930, 130 S. Ct.
1310, 175 L. Ed. 2d 1106 (2010); United States v. New-
som, 452 F.3d 593, 603–605 (6th Cir. 2006) (harmless
error to admit evidence of defendant’s tattoos depicting
guns and referencing ‘‘ ‘thug life’ ’’).12
The defendant cites, and our research has found, only
one case in which an appellate court has concluded that
improperly admitted tattoo evidence was so prejudicial
that it warranted a new trial. See United States v.
Thomas, 321 F.3d 627, 637 (7th Cir. 2003). Thomas,
however, is distinguishable on several grounds.
The defendant in Thomas was convicted of posses-
sion of a firearm by a convicted felon and simple posses-
sion of crack cocaine, on the basis of testimony by an
eyewitness that the defendant pointed a gun at her and
later threw the weapon in some nearby bushes. Id.,
629–30. At trial, the court improperly admitted (1) a
photograph of a tattoo on the defendant’s arm depicting
two crossed revolvers and (2) evidence of the fact that
the defendant had twice been convicted of illegal pos-
session of a firearm. Id., 635.
On appeal, the United States Court of Appeals for
the Seventh Circuit concluded that the erroneous
admission of the tattoo evidence and the convictions
were not harmless error. Id., 637. In reaching that con-
clusion, the court stressed that the government’s case
was weak because it relied upon a theory of construc-
tive possession of the firearm in light of the fact that
the weapon was not found in the defendant’s posses-
sion. Id., 636. More importantly, the court relied on the
risk that the gun tattoo evidence would be misused by
the jury as direct evidence of the defendant’s propensity
to possess firearms, rather than as a mere propensity
to engage in bad acts generally. Id., 632. In combination
with the improperly admitted prior gun possession con-
victions, the court concluded that the risk that the jury
used the evidence for the improper purpose of finding
that the defendant’s propensity to possess firearms was
high and that admission of that evidence was harmful.13
Id., 636. Finally, we note that, unlike the situation in
the present case, the burden was on the government
to prove that the evidentiary errors were harmless. Id.,
635; see Fed. R. Crim. P. 52 (a).
In the present case, the defendant’s tattoos did not
relate directly to the specific crimes with which he was
charged. Thus, the risk is more attenuated in this case
than in Thomas that the jury misused the tattoo evi-
dence as evidence of a propensity to engage in the
specific crimes of assault and reckless endangerment.
With this understanding, and in light of the overall
strength of the state’s evidence in the present case and
the differing burdens of persuasion with respect to
harmful error, we decline to follow the reasoning in
Thomas.
In conclusion, the defendant’s tattoos were not a
central part of the state’s case, and admission of that
evidence alone could not have substantially swayed the
jury’s decision. Cf. State v. Calabrese, supra, 279 Conn.
411–12. Independent of the tattoo evidence, the state
presented strong evidence demonstrating that the
defendant had set out to attack Nunez and tending to
disprove the defendant’s asserted claim of self-defense
by showing that he did not subjectively fear Nunez
and that any fear the defendant may have had was
objectively unreasonable. Accordingly, even if we
assume the tattoo evidence was admitted improperly
into evidence, the defendant has failed to persuade us
that any error was harmful.
III
The defendant next claims that the trial court improp-
erly instructed the jury regarding his duty to retreat.
Specifically, the defendant argues that the court’s
charge was improper because it instructed the jury to
determine whether his knowledge or belief that he
could not retreat in complete safety was objectively
reasonable. The defendant acknowledges that his claim
is unpreserved and seeks to prevail pursuant to State
v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989);
see In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188
(2015) (modifying third condition of Golding); or, in
the alternative, the plain error doctrine. See Practice
Book § 60-5.
The state concedes that the court’s instruction was
improper because it ‘‘failed to properly apprise the
jurors of the subjective component of the duty to retreat
test.’’ The state, however, argues that the defendant
waived his challenge to the court’s instructions under
State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942
(2011), and thus is not entitled to Golding or plain
error review. We agree with the state that the defendant
cannot prevail on this claim.
The following procedural history is relevant to our
resolution of this claim. On January 29, 2014, the court
provided both parties a draft of its proposed jury
instructions, which contained the court’s instruction on
the duty to retreat. The following day, the court held
a charging conference on the record and solicited com-
ments from the parties after it extensively reviewed the
instructions with the parties.
During the charging conference, the court directed
the parties to the section of the written instructions
that contained the challenged duty to retreat instruc-
tions and asked the parties whether they had any com-
ments or objections.14 The defendant did not object or
suggest any changes to the court’s instructions. Simi-
larly, the defendant did not object to the instructions
when the challenged language was read to the jury.
Our Supreme Court concluded in Kitchens that
‘‘when the trial court provides counsel with a copy
of the proposed jury instructions, allows a meaningful
opportunity for their review, solicits comments from
counsel regarding changes or modifications and coun-
sel affirmatively accepts the instructions proposed or
given, the defendant may be deemed to have knowledge
of any potential flaws therein and to have waived implic-
itly the constitutional right to challenge the instructions
on direct appeal.’’ Id. Recently, in State v. Bellamy, 323
Conn. 400, 439, 147 A.3d 655 (2016), our Supreme Court
declined to overturn the rule that unpreserved instruc-
tional claims are waived under Kitchens. See also State
v. Herring, 323 Conn. 526, 528, 147 A.3d 653 (2016).
Here, the court furnished to the parties a copy of its
draft of the proposed jury charge, which included the
challenged language, one day in advance of the charging
conference and, thus, provided the defendant a mean-
ingful opportunity to review it. The defendant also did
not submit a request to charge on this topic. Further-
more, prior to closing arguments, the court held a charg-
ing conference at which the court reviewed the
proposed charge page by page and solicited comments
and objections from both parties. The defendant raised
no objection to the charge. The defendant also did not
object when the court gave the charge to the jury. In
our view, the defendant had ample opportunity to object
to the challenged duty to retreat instruction but did
not. Accordingly, the defendant waived his instructional
claim under Kitchens and, thus, cannot prevail under
Golding.15
Alternatively, the defendant requests that this court
review his unpreserved claim under the plain error doc-
trine. A party may prevail under the doctrine of plain
error only in ‘‘truly extraordinary situations [in which]
the existence of the error is so obvious that it affects
the fairness and integrity of and public confidence in
the judicial proceedings. . . . Thus, in addition to
examining the patent nature of the error, the reviewing
court must examine that error for the grievousness of
its consequences in order to determine whether reversal
under the plain error doctrine is appropriate. A party
cannot prevail under plain error unless it has demon-
strated that the failure to grant relief will result in mani-
fest injustice. . . . In State v. Fagan, [280 Conn. 69,
87, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269,
127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007)], we described
the two-pronged nature of the plain error doctrine: [An
appellant] cannot prevail under [the plain error doc-
trine] . . . unless he demonstrates that the claimed
error is both so clear and so harmful that a failure to
reverse the judgment would result in manifest injus-
tice.’’ (Citations omitted; emphasis omitted; internal
quotation marks omitted.) State v. Myers, 290 Conn.
278, 287–88, 963 A.2d 11 (2009).
Our Supreme Court has recently recognized that
‘‘there appears to be some tension in our appellate case
law as to whether reversal on the basis of plain error
could be available in cases where the alleged error is
causally connected to the defendant’s own behavior. In
Mozell v. Commissioner of Correction, 291 Conn. 62,
70, 967 A.2d 41 (2009), this court held that where the
defendant, personally and through counsel, had
expressly waived his right to trial, reversal for plain
error was not appropriate because if there has been a
valid waiver, there is no error for us to correct. . . .
In other cases, this court has addressed a claim of plain
error despite a finding of waiver or induced error, but
nonetheless has relied in part on the defendant’s action
as a basis for concluding that the defendant had not
demonstrated the manifest injustice or prejudice
required to prevail under the plain error doctrine.’’
(Citation omitted; internal quotation marks omitted.)
State v. Darryl W., 303 Conn. 353, 371–72 n.17, 33 A.3d
239 (2012); see also State v. Kitchens, supra, 299 Conn.
474 n.18 (‘‘a valid waiver precludes a finding that a
jury instruction constitutes plain error because a valid
waiver means that there is no error to correct’’); State
v. Bialowas, 160 Conn. App. 417, 430, 125 A.3d 642
(2015) (‘‘waiver thwarts a finding that plain error
exists’’).
In Bellamy, our Supreme Court did not resolve the
question of whether waiver under Kitchens precludes
relief under the plain error doctrine: ‘‘We . . . decline
to address the parties’ arguments regarding the effect
of Kitchens on plain error review because it is the
subject of a pending appeal before this court. See State
v. McClain, 319 Conn. 902, 122 A.3d 637 (2015) (granting
certification to review issue of whether ‘the Appellate
Court properly determine[d] that an implied waiver of
a claim of instructional error that satisfies [Kitchens]
also forecloses plain error review’ [citation omitted]).’’
State v. Bellamy, supra, 323 Conn. 433 n.22.
Nevertheless, even if we were to assume, without
deciding, that the defendant’s waiver under Kitchens
would not preclude him from prevailing under the plain
error doctrine, we conclude that the defendant cannot
demonstrate that the claimed instructional error was
‘‘so clear, obvious and indisputable to warrant the
extraordinary remedy of reversal.’’ See State v. Elias
V., 168 Conn. App. 321, 338, 147 A.3d 1102 (concluding,
but not deciding, that even if the defendant’s waiver
under Kitchens would not preclude him from seeking
relief under the plain error doctrine, the claimed error
did not warrant reversal), cert. denied, 323 Conn. 938,
A.3d (2016).
Our Supreme Court held in State v. Ash, 231 Conn.
484, 492, 651 A.2d 247 (1994), that General Statutes
§ 53a-19 (b), which governs the duty to retreat, requires
the finder of fact, in deciding whether the state had
disproven self-defense beyond a reasonable doubt, to
ascertain whether the defendant had actual knowledge
regarding his ability to retreat in complete safety. In
other words, the duty to retreat contains a subjective
component. Id.; see also State v. Amado, 254 Conn. 184,
194, 756 A.2d 274 (2000); State v. Montanez, 71 Conn.
App. 246, 263, 801 A.2d 868, cert. denied, 261 Conn. 935,
806 A.2d 1069 (2002).
Here, the initial portion of the court’s instructions
stated properly that the state must prove that the defen-
dant ‘‘knows that he can avoid the necessity of using
[deadly physical] force with complete safety by
retreating.’’ The court repeated this requirement a sec-
ond time. In defining the concept of knowledge, the
court made clear that it was referring to actual knowl-
edge by stating that a ‘‘person acts knowingly with
respect to a circumstance . . . when he is aware that
such circumstance exists.’’ (Emphasis added.) Thus,
the court’s instructions, at least initially, appropriately
informed the jury of the necessity to consider the sub-
jective belief of the defendant, that is, whether he had
actual knowledge that he could retreat in complete
safety.
Later in the instruction, however, the court may have
muddied the waters somewhat with respect to the
knowledge component of the duty to retreat when it
attempted to explain to the jury that such knowledge
is typically established only ‘‘through an inference from
other proven facts and circumstances.’’ In attempting
to explain that any such inferences that may be drawn
must be reasonable, the court stated: ‘‘The inference
may be drawn if the circumstances are such that a
reasonable person of honest intention in the situation
of the defendant would have concluded that one could
avoid the necessity of using deadly force by making
that completely safe retreat.’’
We agree with both the defendant and the state that
this sentence, like portions of the instructions in Ash,
risked diluting the jury’s understanding of the need to
ascertain whether the defendant had actual knowledge
that he could retreat in complete safety. If this claim
of instructional error had been properly preserved at
trial, we would then proceed to analyze whether, in
light of the court’s entire instructions and the evidence
presented to the jury, it was reasonably possible that
the jury was misled by the inclusion of this single sen-
tence.16 In our view, such a claim would present a
close question.
Importantly, however, this instructional error was
not preserved at trial and, in fact, was waived pursuant
to Kitchens. Instead, application of the plain error doc-
trine requires us to ask whether any error by the court
was ‘‘ ‘so clear, obvious and indisputable as to warrant
the extraordinary remedy of reversal’ ’’ because it
would result in manifest injustice. State v. Darryl W.,
supra, 303 Conn. 373. Because it is a close question
whether the court’s instructions misled the jury in this
case, we conclude that the defendant has fallen far
short of his burden to establish that he is entitled to
relief pursuant to the plain error doctrine.17
IV
The defendant next claims that the state deprived
him of due process by committing various acts of prose-
cutorial impropriety. In particular, the defendant con-
tends that the prosecutor improperly (1) asked the
defendant to comment on Zolotov’s credibility and
relied upon his answers in closing arguments, (2) com-
pared the defendant’s actions to those of a mentally ill
person, (3) repeatedly used the phrase ‘‘hunting mis-
sion’’ to describe the defendant’s actions, (4) mischarac-
terized the defendant’s testimony, and (5) relied upon
and misused the defendant’s tattoo evidence. We
address each in turn.
We begin our review of the defendant’s claim by
setting forth the applicable standard of review and guid-
ing legal principles. ‘‘In analyzing claims of prosecu-
torial impropriety, we engage in a two step process.
. . . First, we must determine whether any impropriety
in fact occurred; second, we must examine whether
that impropriety, or the cumulative effect of multiple
improprieties, deprived the defendant of his due pro-
cess right to a fair trial. . . . To determine whether the
defendant was deprived of his due process right to a
fair trial, we must determine whether the sum total of
[the prosecutor’s] improprieties rendered the defen-
dant’s [trial] fundamentally unfair . . . . The question
of whether the defendant has been prejudiced by prose-
cutorial [impropriety], therefore, depends on whether
there is a reasonable likelihood that the jury’s verdict
would have been different absent the sum total of the
improprieties.’’ (Internal quotation marks omitted.)
State v. Gould, 290 Conn. 70, 77–78, 961 A.2d 975 (2009).
‘‘Accordingly, it is not the prosecutorial improprieties
themselves but, rather, the nature and extent of the
prejudice resulting therefrom that determines whether
a defendant is entitled to a new trial.’’ State v. Jones,
supra, 320 Conn. 34–35.
‘‘To determine whether any improper conduct by the
[prosecutor] violated the defendant’s fair trial rights is
predicated on the factors set forth in State v. Williams
[204 Conn. 523, 540, 529 A.2d 653 (1987)], with due
consideration of whether that misconduct was objected
to at trial. . . . These factors include the extent to
which the [impropriety] was invited by defense conduct
or argument . . . the severity of the [impropriety] . . .
the frequency of the [impropriety] . . . the centrality
of the [impropriety] to the critical issues in the case
. . . the strength of the curative measures adopted
. . . and the strength of the state’s case.’’ (Internal quo-
tation marks omitted.) State v. Devito, 159 Conn. App.
560, 573, 124 A.3d 14, cert. denied, 319 Conn. 947, 125
A.3d 1012 (2015).
A
The defendant first argues that the prosecutor com-
mitted impropriety by cross-examining the defendant
regarding Zolotov’s credibility and later referring to that
testimony during closing argument. We agree, for the
reasons stated in part II A of this opinion, that the
prosecutor committed an impropriety by asking the
defendant to comment about the veracity of another
witness’ testimony in violation of rule set forth in State
v. Singh, supra, 259 Conn. 706. We, however, conclude
that because the court permitted the state to pursue
this line of inquiry, the prosecutor did not commit an
impropriety by referring to the defendant’s answers
during closing argument.18
Our Supreme Court has held that ‘‘[a]rguing on the
basis of evidence explicitly admitted . . . cannot con-
stitute prosecutorial [impropriety].’’ State v. Rowe, 279
Conn. 139, 152, 900 A.2d 1276 (2006). ‘‘[O]nce the testi-
mony [at issue] was in evidence, the prosecutor [is]
permitted to use it during [closing] argument . . . .’’
(Citation omitted.) State v. Cromety, 102 Conn. App.
425, 434, 925 A.2d 1133, cert. denied, 284 Conn. 913,
931 A.2d 932 (2007); see also State v. Devito, supra, 159
Conn. App. 575. The court here admitted the defendant’s
testimony into evidence, thus, the prosecutor was enti-
tled to rely upon the court’s ruling and discuss the
evidence in her closing argument.
Furthermore, the prosecutor’s closing argument also
did not in any way mischaracterize the defendant’s testi-
mony or otherwise use his testimony in an improper
way. See State v. Otto, 305 Conn. 51, 76–81, 43 A.3d 629
(2012). During its closing argument, the state’s only
reference to the defendant’s opinion regarding Zolotov’s
testimony was to convey to the jury that Zolotov
remained a credible witness. The state sought to explain
to the jury that the defendant’s assertion that Zolotov
was somehow an unreliable witness was implausible.
Accordingly, the prosecutor’s comments during closing
argument regarding the defendant’s opinion of Zolotov’s
credibility does not constitute impropriety.
B
The defendant next argues that the prosecutor
improperly attacked his competency during the state’s
closing argument. Specifically, the defendant argues
that the state impermissibly characterized his actions
as ‘‘akin to that of a mentally ill person . . . .’’ We
disagree.
During the state’s closing argument, the prosecutor
made several statements in an attempt to disprove that
the defendant was reasonably fearful with respect to
his asserted claim of self-defense. The defendant claims
that the following constituted prosecutorial impropri-
ety: ‘‘[The defendant] told you he believed that his life
was in imminent danger at the moment he saw Edwin
Nunez flagging him down on the corner. And let’s pre-
tend for a moment that for whatever reason, you’ve
decided that . . . he really believed that. . . . Was
that a reasonable, rational belief? . . . And the state
would argue to you it never could have been. Therefore
you must reject . . . his claim of [self-defense], and
here’s why. We don’t live in the wild west, ladies and
gentlemen. . . . This isn’t TV; this is the real world and
we have real laws. And we have real expectations of
safety as the citizens of the state. And perhaps I am
wrong, perhaps you believe it is reasonable that one
text message sent to you two days prior should give
you the right . . . to go on some paranoid investiga-
tion, some irrational investigation, leading to some irra-
tional belief that now this person is trying to kill you,
with no other evidence than one text message.’’
The prosecutor later argued that ‘‘[t]here’s no evi-
dence that the police were out to get [the defendant].
So, again, if the . . . law were to excuse the conduct
of the defendant, then this is what the law would be
saying. Or it would be saying that, you know, it might
be a paranoid delusion, it might be irrational, but as
long as you thought your life was in danger, you go
ahead and you take your car and you run down whoever
you think is trying to get you. . . . [N]o one can deny
that after he hit him with the car, the defendant got out
and beat up Edwin Nunez. This person that he’s so
afraid of, he goes over to him and beats him up. Is that
self-defense? When you’re kicking the guy on the ground
with a broken arm and a broken leg, is that self-defense?
No. Afraid he’s going to shoot him through the car, like
some video game? Again, it has to be a reasonable and
rational belief. . . . You could believe it all day, if you
want, that your life was in danger, but if it was an
irrational belief, if it was an unreasonable belief, the
law does not excuse it. The law does not allow us to
act as [irrational] people, committing random acts of
violence because we have some paranoid, irrational
belief that it’s necessary to protect ourselves, necessary
to put all these other people’s lives in danger.’’
We disagree with the defendant’s assertion that the
prosecutor attacked his ‘‘competency’’ or suggested
that he is mentally ill by describing the defendant as
‘‘paranoid,’’ ‘‘delusion[al],’’ and ‘‘irrational,’’ during the
state’s closing argument. ‘‘[A]s the state’s advocate, a
prosecutor may argue the state’s case forcefully, [pro-
vided the argument is] fair and based upon the facts in
evidence and the reasonable inferences to be drawn
therefrom. . . . 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.’’ (Internal quotation marks omitted.) State
v. Otto, supra, 305 Conn. 76. Our law is well settled that
‘‘[the prosecutor’s] conduct and language in the trial of
cases in which human life or liberty [is] at stake should
be forceful, but fair, because he [or she] represents the
public interest, which demands no victim and asks no
conviction through the aid of passion, prejudice or
resentment. . . . That is not to say, however, that every
use of rhetorical language or device [by the prosecutor]
is improper. . . . The occasional use of rhetorical
devices is simply fair argument. . . . The state’s attor-
ney should not be put in [a] rhetorical straitjacket
. . . .’’ (Citations omitted; internal quotation marks
omitted.) State v. Wilson, 308 Conn. 412, 435, 64 A.3d
91 (2013).
When read in the context of this case, the state used
those words as a rhetorical device to assert that the
defendant’s conduct, at best, was undertaken in
response to an unreasonable fear that his life was in
danger. Simply put, the state conveyed to the jury that
its position, with respect to the defendant’s asserted
claim of self-defense, was that his belief was unrea-
sonable.
The prosecutor supported that position by explaining
to the jury that a claim of self-defense does not excuse
acts of violence in response to an ‘‘irrational’’ or ‘‘delu-
sion[al]’’ subjective fear of danger. Nothing in the state’s
closing argument or the record suggests that the prose-
cutor attacked the defendant’s mental competency, but
instead the prosecutor described the importance of the
requirement that a defendant’s action must be reason-
able when acting in self-defense. Importantly, the prose-
cutor did not improperly divert the jury from the facts
in evidence, but instead focused the jury’s attention
on a hotly disputed question of fact. Accordingly, the
prosecutor’s statements were not improper.
C
Next, the defendant argues that the prosecutor com-
mitted impropriety when she used the phrase ‘‘hunting
mission’’ twice to describe the defendant’s conduct. He
further argues that the prosecutor’s use of that phrase
improperly connected gun violence caused by mental
illness. We disagree.
The challenged statements by the prosecutor argued
are: ‘‘Now, the state would argue that if you look at all
the evidence in the case, this was a hunting mission.
. . . In this case, the way the law of self-defense works,
is, even if you buy that the defendant was not on a
hunting mission. . . . Even if you believe that at that
moment the defendant honestly believed that he was
in fear for his life, was that belief reasonable . . . [?]’’
As noted in the foregoing, ‘‘a prosecutor may argue
the state’s case forcefully’’ so long as that argument is
fair and based on facts in evidence and the reasonable
inferences to be drawn therefrom. State v. Otto, supra,
305 Conn. 76. ‘‘Although a state’s attorney may argue
that the evidence proves the defendant guilty, he may
not stigmatize the defendant by the use of epithets
which characterize him as guilty before an adjudication
of guilt.’’ State v. Williams, supra, 204 Conn. 545–46.
On the basis of our review of the record, the prosecu-
tor’s use of the phrase ‘‘hunting mission’’ was reason-
ably based upon evidence presented at trial.
Part of the state’s theory at trial was that the defen-
dant had used social media to stoke an ongoing conflict
with Nunez, arranged to confront Nunez on the street
and then intentionally assaulted him by driving a vehicle
into him. In an effort to persuade the jury of the defen-
dant’s conscious objective to physically harm Nunez,
the prosecutor described his conduct as a ‘‘hunting
mission.’’ In our view, describing the defendant’s overall
course of conduct as a ‘‘hunting mission’’ was a reason-
able rhetorical device and was based upon the evi-
dence.19 We also simply do not understand how the
state’s use of the phrase ‘‘hunting mission’’ created an
improper connection between gun violence and mental
illness. The state drew no such connection, and the use
of the phrase, ‘‘hunting,’’ does not necessarily invoke
gun violence, particularly here, where a gun was not
used by anyone. Accordingly, we conclude that the
state’s use of the phrase ‘‘hunting mission’’ did not con-
stitute impropriety.
D
The defendant next argues that the prosecutor mis-
characterized the defendant’s testimony during the
state’s closing argument. Specifically, he argues that
the prosecutor committed impropriety when she stated
that he testified that he ‘‘was reasonably in fear of
imminent harm.’’ We disagree that the prosecutor’s
remark was improper.
The prosecutor’s statement, in context was: ‘‘[I]f
motivation is a basis for incredibility, ladies and gentle-
men, who’s more motivated than the defendant, who,
by the way, is the only witness [who] sat here and
listened to all the evidence and testified last, after he
got to hear everybody’s story? So, what does that tell
you about how he crafted the testimony that he crafted,
using, interestingly enough, legal terms during his testi-
mony. I was reasonably in fear of imminent harm.
Something like that. There’s nothing wrong with that;
I’m just saying . . . if we’re judging credibility on how
a person testifies, their demeanor during their testi-
mony, what they say, as the defense has asked you to
do with [Nunez] . . . what’s good for the goose is good
for the gander.’’ (Emphasis added.)
It is well established that ‘‘[a] prosecutor . . . may
not . . . inject extraneous issues into the case that
divert the jury from its duty to decide the case on the
evidence. . . . A prosecutor, in fulfilling his duties,
must confine himself to the evidence in the record. . . .
[A] lawyer shall not . . . [a]ssert his personal knowl-
edge of the facts in issue, except when testifying as a
witness. . . . Statements as to facts that have not been
proven amount to unsworn testimony, which is not the
subject of proper closing argument.’’ (Citation omitted;
internal quotation marks omitted.) State v. Moore, 293
Conn. 781, 809, 981 A.2d 1030 (2009), cert. denied, 560
U.S. 954, 130 S. Ct. 3386, 177 L. Ed. 2d 306 (2010).
We conclude that the prosecutor did not mischarac-
terize, at least in any intentional or substantial sense,
the defendant’s testimony. During the state’s closing
argument, the prosecutor argued that the defendant
testified that he ‘‘was reasonably in fear of imminent
harm . . . [s]omething like that.’’ (Emphasis added.)
Although the defendant actually testified that he ‘‘went
in [Nunez’] direction in fear for my life,’’ the prosecu-
tor’s use of the qualifier, ‘‘something like that,’’ when
recounting that testimony makes clear she was not
attempting to mislead the jury into believing that those
were the precise words used by the defendant in his
testimony. Moreover, the state began its closing argu-
ment with an admonition to the jury that it is the jury’s
recollection of the evidence that controls, not the state’s
recollection that matters.
Finally, it is important to remember that, although the
prosecutor could have expressed herself with greater
precision, we cannot say that her argument constituted
impropriety, particularly in light of her qualifying
remark. ‘‘[W]e are mindful . . . that closing arguments
of counsel . . . are seldom carefully constructed in
toto before the event; improvisation frequently results
in syntax left imperfect and meaning less than crystal
clear.’’ (Internal quotation marks omitted.) State v. Wil-
liams, 102 Conn. App. 168, 197, 926 A.2d 7, cert. denied,
284 Conn. 906, 931 A.2d 267 (2007).
Instead, the prosecutor’s primary point, in context,
was to suggest that the defendant had witnessed the
prior testimony admitted throughout the trial before he
testified and that he had the opportunity to conform his
testimony to the evidence and the law. The challenged
statement, at its heart, was not intended to persuade
the jury to accept facts not in evidence, but instead
sought to attack the motivations of the defendant to
craft his testimony in a self-serving manner. Thus, the
prosecutor’s statements during closing argument were
not improper.
E
Finally, the defendant argues that the prosecutor
improperly used and misused the defendant’s tattoo
evidence. We disagree.
Notwithstanding our assumption in part II B of this
opinion that the court improperly admitted the defen-
dant’s tattoo evidence, we repeat that ‘‘[a]rguing on
the basis of evidence explicitly admitted . . . cannot
constitute prosecutorial [impropriety].’’ State v. Rowe,
supra, 279 Conn. 152. Accordingly, we conclude that
the prosecutor’s reference in closing argument to the
admitted tattoo evidence was not improper.
F
We briefly turn then to the question of whether the
sole instance of prosecutorial impropriety identified in
this case, specifically, the prosecutor’s questions asking
the defendant to opine on the credibility of another
witness, deprived the defendant of a fair trial. In part
II A of this opinion, we concluded that the trial court’s
improper evidentiary ruling permitting this inquiry did
not constitute harmful error for a multitude of reasons.
Those same reasons are applicable here with respect
to the defendant’s claim of prosecutorial impropriety
and we need not repeat them.
The judgment is affirmed.20
In this opinion the other judges concurred.
1
The court sentenced the defendant to a total effective term of imprison-
ment of twenty years, execution suspended after fourteen years, and five
years of probation.
2
The jury was instructed on counts one and two to consider certain lesser
included offenses if it found the defendant not guilty on either count.
3
On the day of the assault, Zolotov was in his vehicle while stopped at
a red traffic signal located near the area where the defendant drove his
vehicle into Nunez and Jessica.
4
General Statutes § 53a-59 (a) provides in relevant part: ‘‘A person is
guilty of assault in the first degree when . . . (1) [w]ith intent to cause
serious physical injury to another person, he causes such injury to such
person or to a third person by means of a deadly weapon or a dangerous
instrument . . . .’’
5
General Statutes § 53a-60 (a) provides in relevant part: ‘‘A person is
guilty of assault in the second degree when . . . (2) with intent to cause
physical injury to another person, the actor causes such injury to such
person or to a third person by means of a deadly weapon or a dangerous
instrument other than by means of the discharge of a firearm . . . .’’
We note that although § 53a-60 has been amended since the events at
issue in this appeal, those amendments are not relevant here. We therefore
refer to the current revision of § 53a-60 as codified in the 2016 supplement
to the General Statutes.
6
Prior to closing arguments on January 30, 2014, the court gave the parties
an opportunity to read the proposed jury instructions. The court proceeded
to review the entire proposed jury instructions page by page. For each of
the challenged counts—counts one, two, and four—defense counsel raised
no objection.
7
The prosecutor further stated that ‘‘[r]eckless endangerment is merely
[that the defendant] did an act that was so out of the ordinary, with extreme
indifference to human life, that by [his] actions [the defendant] had abso-
lutely no regard for the safety of the persons involved.’’ The prosecutor
argued that ‘‘the actions of [the defendant] constituted an extreme indiffer-
ence to human life, with reckless disregard for whether or not he could
cause serious physical injury to either [McDougall], [Jessica] or [Nunez].’’
8
It is not unusual or an unwise practice for the state to file, close to the
time of trial, a substituted information reducing the number of offenses
charged or changing the particular crimes charged because the prosecutor
who is assigned to try the case has done a substantial amount of trial
preparation and has a more precise grasp of the evidence that the state
intends to offer at trial.
9
We note that the defendant objected to the first question, but did not
object to the subsequent questions, including the most objectionable ques-
tion, which asked him whether Zolotov had intentionally mischaracterized
the evidence. Our Supreme Court has held that an objection to a question
does not relieve a party from the obligation to object to similar subsequent
questions; Sears v. Curtis, 147 Conn. 311, 313, 160 A.2d 742 (1960); unless
the court has granted a continuing or running objection to that line of
inquiry; Putnam, Coffin & Burr, Inc. v. Halpern, 154 Conn. 507, 512–13,
227 A.2d 83 (1967); or unless the prior ruling indicated that later objections
would be futile. Cf. State v. Spencer, 198 Conn. 506, 512, 503 A.2d 1165
(1986). Any appellate claim arising from the subsequent questions, therefore,
arguably is unpreserved. The state, however, does not argue that we should
decline to review this claim, and we elect to do so in light of our ultimate
conclusion that the defendant has not demonstrated the harmfulness of
any error.
10
‘‘Generally, a party who delves into a particular subject during the
examination of a witness cannot object if the opposing party later questions
the witness on the same subject. . . . The party who initiates discussion
on the issue is said to have opened the door to rebuttal by the opposing
party. Even though the rebuttal evidence would ordinarily be inadmissible
on other grounds, the court may, in its discretion, allow it where the party
initiating inquiry has made unfair use of the evidence. . . . This rule oper-
ates to prevent a defendant from successfully excluding inadmissible prose-
cution evidence and then selectively introducing pieces of this evidence for
his own advantage, without allowing the prosecution to place the evidence
in its proper context. . . . The doctrine of opening the door cannot, of
course, be subverted into a rule for injection of prejudice. . . . The trial
court must carefully consider whether the circumstances of the case warrant
further inquiry into the subject matter, and should permit it only to the
extent necessary to remove any unfair prejudice which might otherwise
have ensued from the original evidence. . . . Thus, in making its determina-
tion, the trial court should balance the harm to the state in restricting the
inquiry with the prejudice suffered by the defendant in allowing the rebuttal.’’
(Internal quotation marks omitted.) State v. Brown, supra, 309 Conn. 479.
11
In support of this assertion, we take judicial notice of a recent Harris
poll that reveals that 29 percent of adults in the United States have at least
one tattoo, and 69 percent of those individuals have two or more tattoos.
See The Harris Poll, ‘‘The Harris Poll #12, February 10, 2016,’’ (last modified
February 10, 2016), available at http://www.theharrispoll.com/health-and-
life/Tattoo Takeover.html (last visited February 17, 2017) (copy contained
in the file of this case in the Appellate Court clerk’s office); see also State
v. Santiago, 318 Conn. 1, 127, 122 A.3d 1 (appellate courts permitted to
take notice of extra-record materials, including scientific and sociological
studies). Less than half of the surveyed individuals who do not have a tattoo
believe that those with tattoos are ‘‘more rebellious.’’ The Harris Poll, supra.
12
See also United States v. Quintero, 1991 U.S. App. LEXIS 10446, *8 (9th
Cir. May 15, 1991) (‘‘[w]e do not believe that all tattoos, as a general matter,
create juror prejudice sufficient to violate a defendant’s right to a fair trial’’)
(decision without published opinion, 933 F.2d 1017 [9th Cir. 1991]).
13
We also note that Thomas was decided in 2003, when negative societal
attitudes about tattoos may have been more prevalent.
14
The challenged duty to retreat instruction provides in relevant part: ‘‘A
person is not justified in using deadly force upon another person if he knows
that he can avoid the necessity of using such force with complete safety
by retreating. This disqualification requires the defendant to retreat instead
of using deadly force whenever two conditions are met. One, a completely
safe retreat is in fact available to him, and, two, he knows that he can avoid
the necessity of using deadly physical force by making that completely safe
retreat. . . . The term complete safety as used in [the] statute [that governs
the duty to retreat, General Statutes § 53a-19] means, without any injury
to the defendant whatever. A person acts knowingly with respect to a
circumstance described in a statute when he is aware that such circumstance
exists. . . . Ordinarily, knowledge can be established only through an infer-
ence from other proven facts and circumstances. The inference may be
drawn if the circumstances are such that a reasonable person of honest
intention in the situation of the defendant would have concluded that one
could avoid the necessity of using deadly physical force by making that
completely safe retreat. The determinative question is whether the circum-
stances in the particular case form a basis for a sound inference as to the
knowledge of the defendant in the circumstances under inquiry.’’ (Empha-
sis added.)
15
‘‘Under Golding, a defendant may prevail on an unpreserved claim only
if the following conditions are met: (1) the record is adequate to review the
alleged claim of error; (2) the claim is of constitutional magnitude alleging
the violation of a fundamental right; (3) the alleged constitutional violation
. . . exists and . . . deprived the defendant of a fair trial; and (4) if subject
to harmless error analysis, the state has failed to demonstrate harmlessness
of the alleged constitutional violation beyond a reasonable doubt.’’ (Internal
quotation marks omitted.) State v. Wright, 319 Conn. 684, 688, 127 A.3d 147
(2015). ‘‘[T]he first two [prongs of Golding] involve a determination [as to]
whether the claim is reviewable; the second two . . . involve a determina-
tion [as to] whether the defendant may prevail.’’ (Internal quotation marks
omitted.) State v. LaBrec, 270 Conn. 548, 555, 854 A.2d 1 (2004).
Although the record is adequate to review and the defendant claims he
was deprived of his constitutional right of due process, he cannot prevail
under Golding. ‘‘[A] constitutional claim that has been waived does not
satisfy the third prong of the Golding test because, in such circumstances,
we simply cannot conclude that injustice [has been] done to either party
. . . .’’ (Internal quotation marks omitted.) State v. Kitchens, supra, 299
Conn. 467. Thus, in light of the defendant’s waiver under Kitchens, the
defendant cannot prevail under Golding.
16
The claim of instructional error in State v. Ash, 33 Conn. App. 782, 795,
638 A.2d 633, rev’d on other grounds, 231 Conn. 484, 651 A.2d 247 (1994),
had been preserved by the defendant ‘‘by filing a proper request to charge
with respect to the issue of self-defense . . . .’’
17
The defendant also requests that this court grant him relief on this issue
through an exercise of its supervisory power over the administration of
justice. ‘‘Supervisory powers are exercised to direct trial courts to adopt
judicial procedures that will address matters that are 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.’’ (Internal quotation marks omit-
ted.) State v. Elson, supra, 311 Conn. 764–65. The circumstances of this
case are not sufficiently serious to warrant exercise of our supervisory
powers, and, thus, we decline the defendant’s request.
18
During the state’s closing argument, the prosecutor argued in relevant
part: ‘‘Edwin Nunez did not flag anybody down because Jan Zolotov would
have seen it. And the defendant’s theory that Jan Zolotov looked away and
never saw Edwin Nunez flagging him down makes no sense because Jan
Zolotov said he didn’t look away, he just noticed a car speeding. Until he
noticed a car speeding, he saw the people on the corner. And if you are to
listen to the way the defendant tells you the story, he didn’t speed up until
he was flagged by Edwin Nunez. Do you understand what I am saying? So,
that chronology, that flow, those two sets of facts have to be reconciled by
you, the jury.’’
The prosecutor later argued: ‘‘If you can find evidence in this case, a
reason, to say that Jan Zolotov was an incomplete fact witness because he
did not have a good look at this particular incident, I challenge you to make
that decision based on the evidence or lack of evidence in the case. How
the defendant has characterized Jan Zolotov as an unreliable eyewitness
. . . it’s pulled out of the air, it’s speculation.’’
19
Even if it were improper, the phrase was only used twice and ‘‘does
not rise to the level of continuous use of invective [that] would have the
improper effect of appealing to the emotions and prejudices of the jurors.’’
(Internal quotation marks omitted.) State v. Medrano, 308 Conn. 604, 616,
65 A.3d 503 (2013).
20
We note that the defendant requests, in the alternative, that this court
exercise its supervisory power over the administration of justice to reverse
his conviction on the basis of a pattern of prosecutorial impropriety by this
prosecutor. In light of our preceding resolution of the alleged improprieties,
we decline the defendant’s request to exercise our supervisory power.
Accordingly, we decline to reverse the defendant’s conviction.