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STATE OF CONNECTICUT v. KEVIN JACKSON
(AC 38227)
Lavine, Elgo and Beach Js.
Syllabus
Convicted, following a trial to the court, of the crimes of assault in the first
degree and tampering with a witness, the defendant appealed to this
court. The assault charge arose out of an incident in which the defendant
stabbed the victim, and the tampering with a witness charge concerned
his conduct in sending a letter to the victim’s girlfriend, W, who had
witnessed the stabbing and had identified the defendant as the perpetra-
tor. On appeal, the defendant claimed, inter alia, that the trial court
improperly denied his motion to dismiss the witness tampering charge
and restricted his recross-examination of W. Held:
1. The evidence was sufficient to prove the defendant’s identity as the
perpetrator of the stabbing to support his conviction of assault in the
first degree: the defendant’s claim that the state failed to prove his
identity beyond a reasonable doubt solely rested on his challenge to
the credibility of W’s testimony, which the trial court found credible,
the court did not credit the defendant’s testimony that two other men
stabbed the victim, and this court would not revisit the trial court’s
credibility determinations; moreover, in addition to W’s testimony that
she saw the defendant stab the victim, the state presented strong evi-
dence identifying the defendant as the perpetrator, including evidence
that the knife used to stab the victim was from the cutlery set found
in the defendant’s vehicle and was in the defendant’s possession when
police arrested him.
2. The evidence was sufficient to support the defendant’s conviction of
tampering with a witness arising out of his letter to W; the defendant’s
letter, in which he stated that the real perpetrator wore a mask and
shades and asked W to say she was not sure who it was, was not
merely providing his version of events or offering information about
the incident, but rather attempted to induce W to falsely testify that other
individuals stabbed the victim, contrary to her positive identification of
the defendant as the perpetrator to both a 911 dispatch operator and
to police at the time of his arrest.
3. The defendant could not prevail on his claim that the trial court, which
dismissed one count of tampering with a witness, improperly denied
his motion to dismiss both charges of tampering with a witness, which
was based on his claim that the state violated the separation of powers
doctrine when it added two witness tampering charges to the amended
information without a judicial determination as to whether probable
cause existed for the added offenses; our rules of practice permitted
the state to file the amended information adding those charges, the
defendant availed himself of the proper procedure to challenge the lack
of a probable cause finding by filing a motion to dismiss, which the
court denied, and he could not reasonably argue that probable cause
did not exist for those charges, the court having found that the state
proved beyond a reasonable doubt that he had tampered with a witness.
4. The record was inadequate to review the defendant’s unpreserved claim,
under State v. Golding (213 Conn. 233), that the trial court violated his
sixth amendment right to confrontation and abused its discretion when
it prevented him from questioning W on recross-examination about
certain statements she had made during a 911 call; there was no indica-
tion in the record as to what questions, if any, the defendant sought to
ask W on recross-examination regarding her ability to describe the
defendant’s clothing that he could not have asked during cross-examina-
tion, and the defendant’s claim on appeal that his recross-examination
was within the scope of the state’s redirect-examination because it
implicated W’s ability to recall the events of the evening was not raised
before the trial court and, therefore, was not reviewable.
Argued October 12—officially released December 26, 2017
Procedural History
Amended information charging the defendant with
two counts each of the crimes of assault in the first
degree and tampering with a witness, brought to the
Superior Court in the judicial district of New Haven,
where the matter was tried to the court, B. Fischer, J.;
verdict of guilty of two counts of assault in the first
degree and one count of tampering with a witness;
thereafter, the court dismissed one count of assault in
the first degree; judgment of guilty of assault in the first
degree and tampering with a witness, from which the
defendant appealed to this court. Affirmed.
Peter G. Billings, with whom, on the brief, was Sean
P. Barrett, for the appellant (defendant).
Elizabeth S. Tanaka, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, and John Waddock, former supervisory assis-
tant state’s attorney, for the appellee (state).
Opinion
LAVINE, J. The defendant, Kevin Jackson, appeals
from the judgment of conviction, following a trial to
the court, of assault in the first degree in violation of
General Statutes § 53a-59 (a) (1) and tampering with a
witness in violation of General Statutes § 53a-151 (a).
On appeal, the defendant claims that (1) the state pre-
sented insufficient evidence to sustain his conviction
for those offenses, (2) the court erred when it denied
his motion to dismiss two counts alleging tampering
with a witness, and (3) the trial court improperly
restricted his recross-examination of a witness. We are
unpersuaded by each of the defendant’s claims and
affirm the judgment of the trial court.
The trial court’s oral decision sets forth the following
relevant facts. On February 10, 2014, at 135 4th Street
in Hamden, the defendant stabbed Geoffrey Golding,
the victim, with a knife four times; three times in his
abdomen, and one time on his left elbow. The victim’s
wounds were serious and life threatening. The victim’s
girlfriend, Sammantha Wright, and their young children
also lived at the residence. The defendant and the victim
had been friends for a couple of years, and the defen-
dant visited on either a monthly or bimonthly basis.
At the time of the stabbing, Wright, the victim, and the
defendant were the only adults present at the residence.
Although the victim did not see who stabbed him, the
court found that ‘‘Wright was in the bedroom, sitting
on her bed at approximately 8:20 [p.m.] when she saw
the defendant stabbing [the victim] in the hallway out-
side her bedroom. . . . Wright was approximately ten
feet away from the defendant when he was stabbing
[the victim]. The court finds that her testimony is credi-
ble. The hallway was well illuminated and her bedroom
was also illuminated. . . . Wright saw the faces of [the
victim] and [the defendant]. . . . The defendant did
not have a mask or a hoodie on at all, nothing that
was concealing his face. Miss Wright was one hundred
percent sure it was the defendant who was stabbing
[the victim].’’ Wright called 911 after she saw the victim
bleeding and told the 911 dispatch operator that the
defendant had just stabbed the victim.
The defendant left the house after the stabbing and
headed to Walmart in New Haven, where he was
detained approximately ninety minutes later. Hamden
police took Wright to Walmart, and she positively identi-
fied the defendant as the person who stabbed the victim.
As found by the court: ‘‘He had the same clothing on that
he had on during the stabbing. Also, on [the defendant’s]
person was the kitchen knife he used to stab the victim
. . . . On the blade of the knife were blood stains that
were confirmed by DNA analysis to be the blood of the
victim . . . . In the defendant’s car . . . he had a
three piece cutlery set . . . . The knife he used was
one of the three pieces, the smaller piece from that
cutlery set, that smaller knife had been removed from
the packet and it was identical to the other two knives
from that set, same color, same style.’’
The defendant testified at trial and claimed that two
other men entered the home that evening. ‘‘The court
does not find credible his testimony of others in the
home that evening. The court does not find credible
his denial of stabbing [the victim].’’
‘‘Now, [the victim], after he returned home after the
surgery, he did receive a letter from the defendant
. . . . He did read the letter, but he did not understand
the letter. He was not intimidated or upset by the letter.
Now . . . Wright also received a letter from the defen-
dant shortly after the stabbing . . . . It was addressed
to her and the letter states in part, and I quote directly
from the letter, ‘Sam, please tell them you are not sure
who it was. They think it’s me.’ She was scared and
upset after . . . reading the letter; she immediately
called the police department after the receipt of the
letter.’’
Police arrested the defendant at Walmart the night
of the stabbing, February 10, and charged him with one
count of assault in the first degree and two counts of
risk of injury to a child in violation of General Statutes
§ 53-21. By way of an amended long form information,
dated November 24, 2014, the state charged the defen-
dant with assault in the first degree in violation of § 53a-
59 (a) (1), assault in the first degree in violation of
§ 53a-59 (a) (3), and two counts of tampering with a
witness in violation of § 53a-151 (a). The court, B.
Fischer, J., found the defendant not guilty of one count
of tampering with a witness, but guilty as to the
remaining counts. The court later dismissed the defen-
dant’s conviction for assault in the first degree in viola-
tion of § 53a-59 (a) (3), because it was charged as an
alternative to assault in the first degree in violation of
§ 53a-59 (a) (1). The court, therefore, convicted the
defendant of one count of assault in the first degree in
violation of § 53a-59 (a) (1) and one count of tampering
with a witness in violation of § 53a-151 (a).
On March 6, 2016, the court sentenced the defendant
to a term of imprisonment of fourteen years, followed
by six years special parole, on the assault in the first
degree conviction and a concurrent sentence of five
years of imprisonment on the tampering with a witness
conviction. The defendant, therefore, received a total
effective sentence of fourteen years of imprisonment,
followed by six years special parole. This appeal fol-
lowed. Additional facts will be set forth as necessary.
I
We begin with the defendant’s claim that the state
presented insufficient evidence to sustain his convic-
tions. With regard to his conviction for assault in the
first degree, he argues that the state failed to prove
identity. As for his conviction for tampering with a
witness, he argues that the state failed to prove that he
attempted to influence Wright to testify falsely.1 We
disagree.
‘‘We begin by setting forth the applicable standard
of review. In [a defendant’s] challenge to the sufficiency
of the evidence . . . [w]hether we review the findings
of a trial court or the verdict of a jury, our underlying
task is the same. . . . We first review the evidence
presented at trial, construing it in the light most favor-
able to sustaining the facts expressly found by the trial
court or impliedly found by the jury. We then decide
whether, upon the facts thus established and the infer-
ences reasonably drawn therefrom, the trial court or
the jury could reasonably have concluded that the
cumulative effect of the evidence established the defen-
dant’s guilt beyond a reasonable doubt. . . . In
assessing the defendant’s claim that the evidence
against him was insufficient to establish his guilt . . .
we must look to the trial court’s findings of fact. . . .
[W]e give great deference to the findings of the trial
court because of its function to weigh and interpret the
evidence before it and to pass upon the credibility of
witnesses. . . .
‘‘In evaluating evidence that could yield contrary
inferences, the trier of fact is not required to accept as
dispositive those inferences that are consistent with
the defendant’s innocence. . . . The trier [of fact] may
draw whatever inferences from the evidence or facts
established by the evidence it deems to be reasonable
and logical. . . . As we have often noted, proof beyond
a reasonable doubt does not mean proof beyond all
possible doubt . . . nor does proof beyond a reason-
able doubt require acceptance of every hypothesis of
innocence posed by the defendant that, had it been
found credible by the trier [of fact], would have resulted
in an acquittal. . . . On appeal, we do not ask whether
there is a reasonable view of the evidence that would
support a reasonable hypothesis of innocence. We ask,
instead, whether there is a reasonable view of the evi-
dence that supports the [trier of fact’s] verdict of guilty.’’
(Citations omitted; internal quotation marks omitted.)
State v. Drupals, 306 Conn. 149, 157–58, 49 A.3d 962
(2012).
A
Notwithstanding the trial court’s explicit finding that
Wright was credible, the defendant argues that the state
failed to meet its burden of proving identity because
‘‘it was not possible for . . . Wright to see the alleged
incident due to the layout of the home.’’ The defendant
argues that the state failed to prove identity beyond a
reasonable doubt solely because Wright lacked credi-
bility.
‘‘It is black letter law that in any criminal prosecution,
the state bears the burden of proving beyond a reason-
able doubt the defendant’s identity as . . . the [perpe-
trator] of the crime charged.’’ State v. Smith, 280 Conn.
285, 302, 907 A.2d 73 (2006). ‘‘Furthermore, when a
defendant is tried to the court, the trial judge is the
sole arbiter of the credibility of the witnesses and the
weight to be given specific testimony. . . . Where
there is conflicting evidence . . . we do not retry the
facts or pass on the credibility of the witnesses.’’ (Inter-
nal quotation marks omitted.) State v. Van Eck, 69 Conn.
App. 482, 499, 795 A.2d 582, cert. denied, 260 Conn.
937, 802 A.2d 92, cert. denied, 261 Conn. 915, 806 A.2d
1057 (2002).
The state presented a strong case identifying the
defendant as the perpetrator of the assault. Wright’s
testimony, which the court found credible, was that she
saw the defendant stab the victim. The court also had
before it evidence that police seized a knife from the
defendant’s person containing the victim’s DNA when
he was arrested at Walmart. The court found that the
knife used to stab the victim was from the cutlery set
found in the defendant’s vehicle and was in the defen-
dant’s possession when police arrested him. The record
supports these findings. See, e.g., State v. Farr, 98 Conn.
App. 93, 103–104, 908 A.2d 556 (2006) (identity may be
proven by circumstantial evidence). Additionally, the
court did not credit the defendant’s testimony that two
other men entered the residence and stabbed the victim.
We will not revisit the court’s credibility determinations
with respect to both Wright and the defendant. See, e.g.,
State v. Van Eck, supra, 69 Conn. App. 499; see also
State v. Kehayias, 162 Conn. App. 310, 321, 131 A.3d
1200 (2016) (arguments challenging witness’ credibility
‘‘are not the proper subject of an appeal’’ [internal quota-
tion marks omitted]). Under these circumstances, the
trial court could reasonably have concluded that the
state proved, beyond a reasonable doubt, that the defen-
dant stabbed the victim.
B
The defendant argues that the state failed to present
sufficient evidence that he attempted to induce Wright
to testify falsely by sending her a letter concerning his
pending charges for assault in the first degree. Specifi-
cally, he argues that the letter did not ask, request,
or suggest that she testify falsely. According to the
defendant, ‘‘the letter provides [his] version of events,
offers information about the incident, and explains that
[he] does not want any problems with [the victim] or
Ms. Wright.’’ We are unpersuaded.2
Section 53a-151 (a) provides: ‘‘A person is guilty of
tampering with a witness if, believing that an official
proceeding is pending or about to be instituted, he
induces or attempts to induce a witness to testify falsely,
withhold testimony, elude legal process summoning
him to testify or absent himself from any official pro-
ceeding.’’3 ‘‘The language of § 53a-151 plainly warns
potential perpetrators that the statute applies to any
conduct that is intended to prompt a witness to testify
falsely . . . in an official proceeding that the perpetra-
tor believes to be pending or imminent. . . . A defen-
dant is guilty of tampering with a witness if he intends
that his conduct directly cause a particular witness to
testify falsely . . . . So interpreted, § 53a-151 applies
to conduct intentionally undertaken to undermine the
veracity of testimony given by a witness. . . . The stat-
ute applies to successful as well as unsuccessful
attempts to induce a witness to render false testimony.’’
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) State v. Carolina, 143 Conn. App.
438, 444, 69 A.3d 341, cert. denied, 310 Conn. 904, 75
A.3d 31 (2013).
Viewing the evidence in the light most favorable to
sustaining the verdict, we conclude that the state pre-
sented sufficient evidence to prove, beyond a reason-
able doubt, that the defendant attempted to induce
Wright to testify falsely. Wright told the 911 dispatch
operator that the defendant stabbed the victim and posi-
tively identified the defendant at Walmart as the perpe-
trator of the stabbing. The defendant’s possession of a
knife with the victim’s blood on it further identified the
defendant as the individual who stabbed the victim. In
his letter to Wright, the defendant stated: ‘‘Sam, please
tell them you not sure who it was. They think it’s me.’’
The defendant began the letter by stating that ‘‘[y]ou
and [the victim] know that was dead wrong’’ because,
according to the defendant, the real perpetrator wore
a ‘‘mask and shades.’’ Wright testified that the victim,
the defendant, she, and two of her young children were
the only individuals at the residence when the stabbing
occurred. The court did not credit the defendant’s testi-
mony that other individuals entered the home on the
night of the stabbing. Accordingly, the court reasonably
could have concluded that the defendant’s letter
attempted to induce Wright to falsely testify that other
individuals stabbed the victim.4
On the basis of this evidence, the trial court reason-
ably could have concluded that the state proved, beyond
a reasonable doubt, that the defendant attempted to
induce Wright to falsely testify that he did not stab the
victim. State v. Carolina, supra, 143 Conn. App. 444
(‘‘[t]he defendant’s conduct, i.e., writing a letter to his
cousin that solicited his help in securing [the] false
testimony [of his cousin’s daughter], clearly is prohib-
ited by § 53a-151’’); see id. (‘‘§ 53a-151 applies to con-
duct intentionally undertaken to undermine the
veracity of testimony’’ [emphasis added]).5
II
We next address the defendant’s claim that the court
erred when it denied his motion to dismiss the charges
of tampering with a witness. Specifically, the defendant
argues that the factually distinct tampering with a wit-
ness charges required the state to first obtain a warrant
to arrest him and then file a motion for joinder of the
charges before the tampering charges could be consoli-
dated for trial with his assault charges. The state simply
added the tampering with a witness charges to the
amended long form information and, according to the
defendant, the state’s failure to follow the procedure
just outlined violated the separation of powers doc-
trine.6 We disagree.7
The following procedural history is relevant. As pre-
viously noted, police arrested the defendant on Febru-
ary 10, 2014, without a warrant, on charges of assault
in the first degree and two counts of risk of injury
to a child. During a bond reduction hearing for the
defendant, held on April 11, 2014, the state referenced
the letters sent by the defendant to the victim and
Wright, indicating that it was considering witness tam-
pering charges. On October 29, 2014, the state indicated
that it was not pursuing the risk of injury charges, but
did add two additional counts of witness tampering to
the long form information. The defendant pleaded not
guilty to the witness tampering charges that same day.
On the first day of trial, November 21, 2014, defense
counsel noted her intention to challenge the witness
tampering charges ‘‘on procedural grounds,’’ and did
so on November 24, 2014, by filing a motion to dismiss
pursuant to Practice Book § 41-8 (4). She argued that
the witness tampering charges ‘‘have never been sub-
jected to judicial review for a determination of probable
cause.’’ The court denied the defendant’s motion on
November 26, 2014. Defense counsel also argued on
November 26 that the state had failed to prove its case
with respect to the witness tampering charges and that
those charges should be dismissed pursuant to Practice
Book § 41-8 (5) based on a lack of probable cause.8 The
court denied both motions.9
‘‘A motion to dismiss . . . properly attacks the juris-
diction of the court, essentially asserting that the [state]
cannot as a matter of law and fact state a cause of action
that should be heard by the court . . . . A motion to
dismiss tests, inter alia, whether, on the face of the
record, the court is without jurisdiction. . . . [O]ur
review of the trial court’s ultimate legal conclusion and
resulting [decision to deny] . . . the motion to dismiss
will be de novo.’’ (Internal quotation marks omitted.)
State v. Oral H., 125 Conn. App. 276, 280, 7 A.3d 444
(2010), cert. denied, 300 Conn. 902, 12 A.3d 573, cert.
denied, 564 U.S. 1009, 131 S. Ct. 3003, 180 L. Ed. 2d
831 (2011).
We conclude that State v. Oral H., supra, 125 Conn.
App. 281–82, disposes of the defendant’s separation
of powers claim. In that case, the defendant similarly
argued that the state violated the separation of powers
doctrine when it added a charge to a substitute informa-
tion without a judicial determination that probable
cause existed for the added offense. Id., 281. This court
rejected the defendant’s argument that the trial court
should have dismissed the added charge, noting that our
rules of practice permitted the state to file a substitute
information; see Practice Book § 36-17; and the defen-
dant could have moved to dismiss the charge. State v.
Oral H., supra, 282, citing Practice Book § 41-8 (5). This
court held that ‘‘[t]he defendant did not avail himself
of this procedure. . . . [and] cannot now reasonably
argue that probable cause did not exist . . . .
[because] the jury determined that the state proved
beyond a reasonable doubt that the defendant had com-
mitted the offense.’’ Id.
The defendant in the present case has not provided
us with any reason to depart from Oral H., and we are
unaware of any reason to do so. Not only did the court
find that the state proved beyond a reasonable doubt
that the defendant had tampered with one witness, but
the defendant did move to dismiss the charges in accor-
dance with Practice Book § 41-8 (5) prior to the court’s
guilty finding. Accordingly, we reject the defendant’s
separation of powers claim.
III
The defendant’s final claim is that the trial court
improperly restricted his recross-examination of
Wright. Specifically, he argues that the court violated
his sixth amendment right to confrontation10 and abused
its discretion when it prevented him from questioning
Wright about certain statements she made during a call
to 911 dispatch. The state argues, inter alia, that the
defendant’s unpreserved constitutional claim is unre-
viewable under Golding11 because the record is inade-
quate. We agree with the state and decline to address
the defendant’s unpreserved evidentiary argument.
The following additional facts and procedural history
are relevant. During the state’s direct examination of
Wright, it played a recording of Wright’s call to 911
dispatch regarding the stabbing. In that call, Wright
described the clothing she saw the defendant wearing
at the time he stabbed the victim. The defendant, during
cross-examination, also questioned Wright about the
clothing that she described in the 911 call. During his
redirect-examination, the prosecutor did not ask any
questions about the 911 recording. During recross-
examination, the defendant attempted to revisit the
911 recording:
‘‘[Defense Counsel]: The 911 tape that you heard.
‘‘[Wright]: Yes.
‘‘[Defense Counsel]: There was a part there where
the dispatcher asked what the person was wearing; do
you recall that?
‘‘[Wright]: Yes.
‘‘[Defense Counsel]: Do you recall having—Do you
recall not knowing the answer to that question?’’
Before Wright could answer the latter question, the
prosecutor objected, arguing that it was beyond the
scope of redirect-examination. The court sustained the
objection, and defense counsel did not ask any addi-
tional questions. Nor did defense counsel explain to the
court why she attempted to ask Wright that question.
Defense counsel simply stated, ‘‘Nothing further. Thank
you, Judge.’’ The court then excused Wright from the
witness stand.
The defendant argues, for the first time on appeal,
that the court deprived him of the opportunity to pursue
questions on recross-examination regarding Wright’s
statements during the 911 call that would have chal-
lenged her credibility. He seeks review of his unpre-
served constitutional claim under State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989).12
‘‘[A] defendant can prevail on a claim of constitutional
error not preserved at trial only if all the following
conditions are met: (1) the record is adequate to review
the alleged claim of error; (2) the claim is of constitu-
tional 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 beyond a rea-
sonable doubt. In the absence of any one of these condi-
tions, the defendant’s claim will fail. The appellate
tribunal is free, therefore, to respond to the defendant’s
claim by focusing on whichever condition is most rele-
vant in the particular circumstances.’’ (Emphasis in
original; footnote omitted.) Id., 239–40, as modified in
In re Yasiel R., 317 Conn. 773, 780–81, 120 A.3d 1188
(2015).
The record is inadequate to review the defendant’s
constitutional claim. It is devoid of any indication as
to what questions, if any, the defendant sought to ask
Wright on recross-examination regarding her ability to
describe the defendant’s clothing that he could not have
asked during cross-examination. See, e.g., State v. Moye,
214 Conn. 89, 98–99, 570 A.2d 209 (1990) (record inade-
quate to review defendant’s confrontation clause claim
because defendant did not question witness about how
witness’ arrest and subsequent detention had direct
bearing on her credibility). Nor does the record indicate
whether Wright ‘‘recall[ed] not knowing the answer’’ to
the question asked by the 911 dispatch operator about
the defendant’s clothing. Accordingly, the defendant’s
claim fails the first prong of Golding.
We also decline to review the defendant’s alternative
argument that the court abused its discretion under
these circumstances. Appellate courts are ‘‘not bound
to consider claims of law not made at the trial.’’ (Internal
quotation marks omitted.) State v. Patterson, 170 Conn.
App. 768, 786, 156 A.3d 66, cert. denied, 325 Conn. 910,
158 A.3d 320 (2017); see also Practice Book § 60-5. On
appeal, the defendant argues that his recross-examina-
tion was within the scope of redirect-examination
because it ‘‘implicated [Wright’s] ability to recall the
events of [the evening],’’ which the prosecutor sought
to bolster on redirect-examination. The defendant did
not articulate this argument before the trial court.
Accordingly, we will not review it on appeal.13
The judgment is affirmed.
In this opinion the other judges concurred.
1
The state charged the defendant with two counts of tampering with a
witness—counts three and four of the information. Count three focused on
the defendant’s conduct toward the victim, while count four focused on his
conduct toward Wright. After hearing the evidence, the court found the
defendant not guilty of count three.
2
Aside from arguing that it presented sufficient evidence to sustain the
defendant’s conviction, the state also argues that we need not reach the
merits of this claim because the court rendered a general verdict. Count
four of the information charged the defendant with attempting to induce
Wright ‘‘either to testify falsely or to withhold testimony,’’ and, according
to the state, the court did specify which theory the state proved beyond a
reasonable doubt. Because we conclude that the state presented sufficient
evidence to prove, beyond a reasonable doubt, that the defendant attempted
to induce Wright to testify falsely, we do not reach the state’s alternative
argument.
3
The defendant limits his argument to ‘‘the second portion of the tamper-
ing statute: whether [the defendant] attempted to induce . . . Wright to
testify falsely by sending her a letter concerning the case.’’ (Emphasis in
original.) Accordingly, it is undisputed that the defendant believed that an
official proceeding was pending.
4
We limit our sufficiency of the evidence analysis to the way that the
state tried the case and, accordingly, consider only the evidence that the
state actually relied on to prove count four of the information. See, e.g.,
State v. Carter, 317 Conn. 845, 854–56, 120 A.3d 1229 (2015) (sufficiency
analysis must be considered in conjunction with theory of case doctrine);
State v. Robert H., 273 Conn. 56, 81–84, 866 A.2d 1255 (2005) (same). Although
the state argues on appeal that the trial court was free to consider the
defendant’s letter to the victim with regard to count four, we note that, at
trial, the state’s theory was that the defendant’s letter to Wright proved
count four.
5
Our conclusion that the state proved, beyond a reasonable doubt, that
the defendant attempted to induce Wright to testify falsely should not be
read to suggest that a defendant lacks the right to urge a witness to support
his theory of defense. That, however, is not what happened in this case.
Notwithstanding Wright’s previous statements to 911 dispatch and police
identifying the defendant as the perpetrator, the defendant asked Wright to
‘‘tell them you not sure who it was’’ and to potentially testify in accordance
with what the court reasonably could have considered a scripted, false alibi.
6
Although the defendant claims that his rights under article first, § 8, and
article second, as amended by article eighteen of the amendments, of the
Connecticut constitution were violated, he has failed to provide an indepen-
dent analysis under our state constitution. Accordingly, we deem his state
constitutional claims abandoned. See, e.g., State v. Bennett, 324 Conn. 744,
748 n.1, 155 A.3d 188 (2017).
7
The defendant, relying on State v. Payne, 303 Conn. 538, 34 A.3d 370
(2012), also claims that adding the witness tampering charges in a single
information deprived him of due process by impermissibly ‘‘[flipping] the
burden of joinder from the state to the defendant’’ and that the trial court
abused its discretion when it allowed the charges to remain joined. See id.,
548–50 (if charges are joined in single information, presumably because
they are of ‘‘ ‘same character,’ ’’ defendant bears burden of proving that
charges should be tried separately, but if charges are set forth in different
informations, presumably because charges are not of ‘‘ ‘same character,’ ’’
then state bears burden of proving that joinder is appropriate); see also
General Statutes § 54-57; Practice Book § 41-19.
We decline to review these claims. The defendant did not specifically
raise them at trial and did not file a motion to sever; see Practice Book
§ 41-18; rather, he filed a motion to dismiss, focusing his claim on whether
adding the tampering with a witness charges violated the separation of
powers doctrine. See, e.g., State v. Snowden, 171 Conn. App. 608, 614–19,
157 A.3d 1209 (defendant failed to preserve claim because his objection at
trial to joinder of charges of murder, criminal possession of pistol or revolver,
and attempt to tamper with witness was different from claim asserted on
appeal), cert. denied, 326 Conn. 903, 163 A.3d 1204 (2017); see also Practice
Book § 60-5.
To the extent that the defendant seeks review of these claims under State
v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified in In re
Yasiel R., 317 Conn. 773, 780–81, 120 A.3d 1188 (2015), we are unpersuaded.
Regardless of which party bore the burden of demonstrating that the charges
should, or should not, have been tried together, or if the court abused its
discretion by not ordering separate trials, the ultimate issue is whether the
charges were properly joined in a single trial. ‘‘Whether multiple charges
should be tried separately is within the court’s sound discretion and generally
is not of a constitutional nature.’’ (Internal quotation marks omitted.) State
v. Madore, 96 Conn. App. 235, 243, 899 A.2d 721, cert. denied, 280 Conn.
907, 907 A.2d 92 (2006); see also State v. Payne, supra, 303 Conn. 552–53
and 553 n.15 (joinder of separate informations is nonconstitutional); State
v. Berube, 256 Conn. 742, 749 n.7, 775 A.2d 966 (2001) (claim that trial court
improperly failed to sever charges stemming from two separate informations
is nonconstitutional in nature). Although the defendant attempts to cloak
the issue in the majestic garb of a due process violation, the ultimate issue—
joinder of the charges—is nonconstitutional in nature. Accordingly, these
claims fail the second prong of Golding. And because these claims fail the
second prong of Golding, we need not reach the state’s argument that the
defendant waived any claim of improper joinder.
8
Practice Book § 41-8 provides in relevant part: ‘‘The following defenses
or objections, if capable of determination without a trial of the general
issue, shall, if made prior to trial, be raised by a motion to dismiss the
information . . .
‘‘(4) Absence of jurisdiction of the court of the defendant or the sub-
ject matter;
‘‘(5) Insufficiency of evidence or cause to justify the bringing or continuing
of such information or the placing of the defendant on trial . . . .’’
9
On March 5, 2014, the defendant filed a motion to dismiss the charges
against him pursuant to Practice Book § 41-8 (5) and General Statutes § 54-
56. The defendant filed this motion prior to the addition of the witness
tampering charges, but the record does not indicate whether the court ruled
on this particular motion.
10
The sixth amendment to the United States constitution provides in
relevant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him . . . .’’
11
Because the defendant did not argue that the trial court’s ruling deprived
him of his sixth amendment right to confrontation, he seeks review of his
unpreserved constitutional claim under State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989), as modified in In re Yasiel R., 317 Conn. 773,
780–81, 120 A.3d 1188 (2015).
12
It is well established that ‘‘[t]he sixth amendment to the [United States]
constitution guarantees the right of an accused in a criminal prosecution
to confront the witnesses against him. . . . The primary interest secured
by confrontation is the right to cross-examination . . . .’’ (Internal quotation
marks omitted.) State v. Beverley, 169 Conn. App. 689, 701, 151 A.3d 854
(2016), cert. denied, 324 Conn. 924, 155 A.3d 755 (2017); accord State v.
Annulli, 309 Conn. 482, 491–92, 71 A.3d 530 (2013).
13
Even if this evidentiary argument was properly before us, we would
reject it on the merits. The trial court enjoys ‘‘a considerable latitude’’ in
controlling the extent of cross-examination and recross-examination, and
we review the court’s ruling for an abuse of discretion. See, e.g., State v.
Gould, 127 Conn. App. 354, 359, 14 A.3d 1032 (2011). On the basis of our
review of the record, we would conclude that the court did not abuse its
discretion in ruling that the defendant’s question was outside the scope
of redirect-examination. None of the prosecutor’s questions on redirect-
examination dealt with the 911 recording.