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STATE OF CONNECTICUT v. NUELITO
MOREL-VARGAS
(SC 20572)
McDonald, D’Auria, Mullins, Kahn, Ecker and Keller, Js.
Syllabus
Convicted of the crime of sexual assault in the first degree, the defendant
appealed. The defendant, a non-English speaker who required the use of
an interpreter, did not testify in his own defense at trial. The prosecutor,
before deciding whether to rest the state’s case, indicated that she would
proceed directly to closing argument if the defense was not going to
introduce any evidence. Defense counsel replied that he had had exten-
sive conversations with the defendant regarding his decision whether
to testify and that it was unlikely that the defense would introduce
evidence, but that he would like to confer with the defendant one more
time. The court granted a short recess to allow defense counsel the
opportunity to confer with the defendant. Thereafter, defense counsel
informed the trial court that the defendant would not testify, and the
defendant did not express any disagreement or concern in response to
counsel’s representation. Although the trial court inquired of defense
counsel whether it should conduct a canvass, defense counsel replied,
‘‘I think we’re all right.’’ After the jury returned to the courtroom, defense
counsel again indicated that the defense would ‘‘rest on the state’s case,’’
and the defendant remained silent. On appeal, the defendant claimed,
inter alia, that, as a matter of constitutional law, a criminal defendant
personally must inform the trial court, either orally or in writing, that
he is waiving his right to testify, that counsel’s in-court representation
that the defendant waived his right to testify was invalid and, therefore,
that his conviction must be reversed. Held:
1. The defendant could not prevail on his unpreserved claim that his convic-
tion must be reversed on the ground that he did not affirmatively inform
the trial court that he was waiving his right to testify, this court having
concluded that a trial court is not constitutionally required to obtain
such an on-the-record waiver from the defendant, himself: this court
concluded, consistent with the majority of courts that have ruled on
the issue, that the right to testify is a personal constitutional right that
can be waived only by the defendant, rather than a tactical right that
defense counsel may waive on a criminal defendant’s behalf as a matter
of trial strategy; nevertheless, the right to testify is not among the per-
sonal constitutional rights that require an affirmative waiver on the
record by the criminal defendant, himself, as the majority of courts have
concluded that a criminal defendant’s waiver of that right may be inferred
from the defendant’s act of not taking the stand or from defense counsel’s
in-court representation that the defendant has elected not to testify
combined with the defendant’s coincident silence, and, in the absence
of evidence of a problem in the attorney-client relationship, the represen-
tation by defense counsel that a defendant is waiving his right to testify,
together with the defendant’s silence at the time of counsel’s in-court
representation, satisfies the constitutional requirement of a knowing,
intelligent and voluntary waiver; moreover, courts have declined to
create a per se canvass requirement on the ground that a colloquy with
a judge regarding the right to testify may, in some circumstances, run
the risk of improperly influencing a criminal defendant’s decision not
to testify; furthermore, the defendant could not prevail on his claim that
this court’s decision in State v. Gore (288 Conn. 770), which held that
the right to a jury trial is a personal constitutional right that a criminal
defendant must personally waive, required a contrary conclusion, as
this court had held in other cases prior to Gore that the waiver of the
right to self-representation and the right against self-incrimination, both
personal constitutional rights, could be effectuated in the absence of
an affirmative, on-the-record indication from the defendant, himself,
and nothing in Gore suggested that its holding was applicable to all
personal constitutional rights.
2. In the exercise of its supervisory authority over the administration of
justice, this court required, in future cases, that a trial court presiding
over a criminal trial either canvass the defendant prior to the waiver
of his right to testify in order to ensure that the waiver is made knowingly,
intelligently and voluntarily, or, alternatively, inquire of defense counsel
directly to determine whether counsel has adequately advised the defen-
dant regarding the waiver of his right to testify, but only when defense
counsel advises the trial court that counsel believes that a direct canvass
carries the risk of inadvertently interfering with a decision made by the
defendant after extensive conversations with counsel regarding trial
strategy.
3. This court declined to review the defendant’s unpreserved claim that the
prosecutor had committed improprieties during her direct examination
of the victim by virtue of her allegedly excessive use of leading questions,
in violation of the defendant’s right to a fair trial, as the defendant’s
challenge to the prosecutor’s use of leading questions was purely eviden-
tiary in nature rather than a constitutional claim that, even though
unpreserved, could be reviewed on appeal under this court’s decisions in
State v. Williams (204 Conn. 523) and State v. Warholic (278 Conn. 354).
Argued October 22, 2021—officially released May 10, 2022
Procedural History
Substitute information charging the defendant with
the crime of sexual assault in the first degree, brought
to the Superior Court in the judicial district of Fairfield
and tried to the jury before Kavanewsky, J.; verdict and
judgment of guilty, from which the defendant appealed.
Affirmed.
Megan L. Wade, assigned counsel, with whom were
James P. Sexton, assigned counsel, and, on the brief,
Emily Graner Sexton, assigned counsel, and Meryl R.
Gersz, assigned counsel, for the appellant (defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Joseph T. Corradino, state’s
attorney, and Pamela Esposito, assistant state’s attor-
ney, for the appellee (state).
Opinion
McDONALD, J. In this appeal, we must decide which
procedures are required for a defendant to validly waive
his right to testify on his own behalf at or during a
criminal trial. The defendant, Nuelito Morel-Vargas,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of sexual assault in the first
degree. On appeal, the defendant, who did not testify
at trial, challenges defense counsel’s purported waiver
of his right to testify. Specifically, the defendant con-
tends that defense counsel’s representation on the
record, in the presence of a defendant, that the defen-
dant has waived his right to testify, together with the
defendant’s coincident silence, is insufficient to consti-
tute a waiver of that right. We disagree with the defen-
dant and conclude that the constitution does not require
that a defendant, himself, personally assert the waiver
of his right to testify on the record. Nevertheless, we
acknowledge that an on-the-record canvass of a defen-
dant is the best practice to ensure that the defendant’s
waiver of his constitutional right to testify is made
knowingly, intelligently and voluntarily. Therefore, we
exercise our supervisory authority to require, prospec-
tively, that a trial court either canvass the defendant
or, in certain circumstances, inquire of defense counsel
directly to determine whether counsel properly advised
the defendant regarding the waiver of his right to testify.
The jury reasonably could have found the following
facts. In 2015, the defendant was charged with sexual
assault in the first degree. The charges stemmed from
a sexual assault that occurred after the defendant drove
the victim, S,1 home from a friend’s party.
At trial, the defendant, a non-English speaker who
required the use of an interpreter, did not testify in his
own defense. As the prosecutor was deciding whether
she would rest the state’s case-in-chief, she indicated
that, ‘‘if the defense [was] not going to put on evidence,’’
she would proceed directly to closing argument.
Defense counsel replied that it was unlikely that the
defense would introduce evidence but requested ‘‘one
last opportunity to briefly discuss with [his] client his
decision to testify or not.’’ Counsel further indicated:
‘‘We had extensive conversations about [the defendant’s
decision whether to testify] already, and I think we
settled on a decision. But I just—after—we’re at the
point where he’s now seen everything, and I just want
to make sure that that is still where he’s at.’’ The court,
while remaining on the bench, allowed a recess for
defense counsel to confer with the defendant.
After the court returned from the recess, defense
counsel informed the court, ‘‘I’ve had an opportunity
to confer with my client, Your Honor, thank you; and
he’s not going to testify.’’ The court responded, ‘‘[o]kay.
Do you wish me to canvass in that regard, or are you
all right?’’ Defense counsel replied, ‘‘I think we’re all
right.’’ Thereafter, the state rested its case. The trial
court then asked defense counsel whether the defense
would present any evidence, and defense counsel indi-
cated that the defense would ‘‘rest on the state’s case.’’
Subsequently, the jury found the defendant guilty, and
he was sentenced to fifteen years of incarceration, exe-
cution suspended after eight years, followed by ten
years of probation and registration on the sex offender
registry for life. The defendant appealed to the Appel-
late Court from the trial court’s judgment, and the
appeal was transferred to this court.
The defendant raises two claims on appeal. First, he
claims that the constitution2 requires that the defendant,
himself, affirmatively inform the trial court, either orally
or in writing, that he is waiving his right to testify. As
a result, the defendant contends, his counsel’s in-court
representation that the defendant waived his right to
testify was invalid, and his conviction must be reversed.
Although, in the defendant’s view, the constitution
requires an affirmative indication of the waiver of the
right to testify on the record from the defendant person-
ally, the defendant concedes that the constitution does
not mandate the form that this particular waiver must
take. Accordingly, the defendant requests that, consis-
tent with the approach we took in State v. Gore, 288
Conn. 770, 786–90, 955 A.2d 1 (2008), we exercise our
supervisory authority to create a procedural rule that
would require trial courts to canvass defendants to
ensure that the waiver of their right to testify is made
knowingly, intelligently and voluntarily. Second, as a
separate ground for reversing his conviction, the defen-
dant argues that he was deprived of a fair trial due to
certain instances of prosecutorial impropriety based
on the prosecutor’s excessive use of leading questions
during her direct examination of S.
We conclude that defense counsel’s in-court repre-
sentation that the defendant waived his right to testify,
together with the defendant’s coincident silence, satis-
fied the constitutional requirement for a valid waiver.
Nevertheless, because we recognize that an on-the-
record canvass is the best practice, we exercise our
supervisory authority over the administration of justice
to require, prospectively, that a trial court, when presid-
ing over a criminal trial, either canvass the defendant
or, in certain circumstances, inquire of defense counsel
whether counsel adequately advised the defendant
regarding the waiver of his right to testify. Finally, we
conclude that the defendant’s claim alleging prosecu-
torial impropriety is unreviewable.
I
A
The defendant first contends that his conviction must
be reversed because the trial court did not obtain an
affirmative indication on the record from the defendant,
himself, that he had personally waived his right to testify
on his own behalf, as required by the federal and state
constitutions. The defendant does not contend that he
was unaware of his right to testify, that he intended to
testify at trial, or that his counsel prohibited him from
testifying. Instead, he argues that the trial court’s failure
to obtain an on-the-record waiver from the defendant
himself merits reversal. The state argues that, although
the right to testify is a personal constitutional right, it
does not follow that, to effectively waive that right,
the defendant himself must affirmatively articulate his
waiver on the record. According to the state, although
certain personal constitutional rights must be waived by
a defendant on the record, the waiver of other personal
constitutional rights—including the right to testify—
can be accomplished through other means.
We begin with the standard of review and relevant
legal principles. The defendant did not raise this claim
at trial and seeks review pursuant to State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified
by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188
(2015). Under Golding, ‘‘a defendant can prevail on a
claim of constitutional error not preserved at trial only
if all of 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 constitu-
tional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis in original; footnote
omitted.) State v. Golding, supra, 239–40; see In re
Yasiel R., supra, 781 (modifying third prong of Golding).
Because the record is adequate for review, and the
defendant’s claim, which alleges a violation of his funda-
mental right to testify, is of constitutional magnitude;
see, e.g., Rock v. Arkansas, 483 U.S. 44, 51, 107 S. Ct.
2704, 97 L. Ed. 2d 37 (1987); our inquiry focuses on
whether the violation alleged by the defendant exists.
In Rock v. Arkansas, supra, 483 U.S. 44, the United
States Supreme Court held that there is a constitutional
right to testify in one’s own defense. Id., 51. We must
now address significant questions concerning this right
left unanswered by Rock. First, we must determine
whether the right to testify is a tactical right, which
defense counsel may waive on the defendant’s behalf
as a matter of trial strategy—an affirmative determina-
tion of which would end our inquiry; see, e.g., State
v. Culbreath, 340 Conn. 167, 179, 263 A.3d 350 (2021)
(‘‘defense counsel may waive certain tactical trial rights
that are not personal to the defendant . . . as part of
trial strategy’’ (internal quotation marks omitted))—or
a personal constitutional right, which can be waived
by the defendant alone. Second, if the right to testify
in one’s own defense is a personal constitutional right,
we must decide what is constitutionally required to
demonstrate that a criminal defendant, himself, know-
ingly, intelligently and voluntarily waived that right.
Specifically, we must determine whether the record
must contain some affirmative indication from a defen-
dant, himself, that the defendant is waiving his right to
testify, or, alternatively, whether defense counsel’s in-
court expression of the waiver on the defendant’s
behalf, combined with the defendant’s silence while
counsel makes this representation, may constitute a
knowing, intelligent and voluntary waiver. We under-
take these inquiries in turn.
We note initially that ‘‘[w]hat suffices for waiver
depends on the nature of the right at issue. [W]hether
the defendant must participate personally in the waiver;
whether certain procedures are required for waiver;
and whether the defendant’s choice must be particularly
informed or voluntary, all depend on the right at stake.
. . . For certain fundamental rights, the defendant
must personally make an informed waiver. . . . For
other rights, however, waiver may be effected by action
of counsel.’’ (Citations omitted; internal quotation
marks omitted.) New York v. Hill, 528 U.S. 110, 114,
120 S. Ct. 659, 145 L. Ed. 2d 560 (2000). Included in the
former category of rights are decisions personal to a
criminal defendant—namely, decisions that affect per-
sonal constitutional rights—such as the decision of
whether to enter a guilty plea, waive a jury trial, and
pursue an appeal. See State v. Gore, supra, 288 Conn.
779 n.9. Included in the latter category are tactical
rights, which primarily involve trial strategy and tactics,
such as ‘‘the statutory protection of a probable cause
hearing . . . the right to call witnesses . . . and the
composition of a jury charge.’’ (Citations omitted.) Id.3
Although this court previously has recognized the
tactical versus personal rights distinction in other con-
texts; see, e.g., id., 778–81; State v. Gibbs, 254 Conn. 578,
610–11, 758 A.2d 327 (2000); it has never affirmatively
analyzed whether a criminal defendant’s right to testify
is a tactical or personal right. A review of our jurispru-
dence in this area, however, reveals that this court
has considered the right to testify as belonging to the
defendant. See State v. Jan G., 329 Conn. 465, 474, 186
A.3d 1132 (2018) (‘‘[t]he defendant’s right to testify . . .
cannot be waived by counsel’’ (internal quotation marks
omitted)). After considering the tactical versus personal
rights distinction in the present case, consistent with
the vast majority of other state and federal courts that
have addressed this question, we conclude, and the
parties agree, that a defendant’s right to testify is a
personal constitutional right that can be waived only
by the defendant. See, e.g., Brown v. Artuz, 124 F.3d
73, 77 (2d Cir. 1997) (‘‘every [federal court of appeals]
that has considered this question has placed the defen-
dant’s right to testify in the ‘personal rights’ category—
i.e., waivable only by the defendant himself regardless
of tactical considerations’’), cert. denied, 522 U.S. 1128,
118 S. Ct. 1077, 140 L. Ed. 2d 135 (1998); see also, e.g.,
id. (citing cases); Boyd v. United States, 586 A.2d 670,
674 (D.C. 1991) (citing cases).
We reach this conclusion for two reasons. First,
although the United States Supreme Court in Rock did
not explicitly classify the right to testify in one’s own
defense as a personal constitutional right, the court did
compare a criminal defendant’s right to testify with the
right of self-representation and described the defen-
dant’s right to testify as ‘‘[e]ven more fundamental to
a personal defense than the right of self-representation
. . . .’’ (Citation omitted; emphasis added.) Rock v.
Arkansas, supra, 483 U.S. 52. The court’s designation
of the right to testify in one’s own defense as ‘‘more
fundamental’’ than the right to self-representation—
which the court deemed a personal constitutional right
in Faretta v. California, 422 U.S. 806, 819–20, 95 S. Ct.
2525, 45 L. Ed. 2d 562 (1975)—logically implies that the
decision of whether to testify is also personal to the
defendant. Second, in Rock, the Supreme Court noted
that a criminal defendant’s right to testify is ‘‘a neces-
sary corollary to the [f]ifth [a]mendment’s guarantee
against compelled testimony. . . . Every criminal
defendant is privileged to testify in his own defense, or
to refuse to do so.’’ (Citation omitted; internal quotation
marks omitted.) Rock v. Arkansas, supra, 52–53. Indeed,
‘‘[a] criminal defendant clearly cannot be compelled to
testify by defense counsel who believes it would be in
the defendant’s best interest to take the stand. It is only
logical, as the Supreme Court has recognized, that the
reverse also be true: A criminal defendant cannot be
compelled to remain silent by defense counsel.’’ United
States v. Teague, 953 F.2d 1525, 1532 (11th Cir.), cert.
denied, 506 U.S. 842, 113 S. Ct. 127, 121 L. Ed. 2d 82
(1992).
We pause to explain one fleeting reference in State
v. Paradise, 213 Conn. 388, 567 A.2d 1221 (1990), over-
ruled in part on other grounds by State v. Skakel, 276
Conn. 633, 888 A.2d 985, cert. denied, 549 U.S. 1030,
127 S. Ct. 578, 166 L. Ed. 2d 428 (2006), that could be
misunderstood to suggest that the right to testify in
one’s own defense is a tactical right. In Paradise, this
court held that a trial judge does not have an affirmative
duty to canvass a criminal defendant regarding the
waiver of the defendant’s right to testify. See id., 404–
405. In our summary analysis of the issue, we did not
explicitly apply the distinction between personal and
tactical rights. The following language is included in
our analysis: ‘‘ ‘[Although] the due process clause of
the [f]ifth [a]mendment may be understood to grant the
accused the right to testify, the ‘‘if’’ and ‘‘when’’ of
whether the accused will testify is primarily a matter
of trial strategy to be decided between the defendant
and his attorney.’ ’’ Id., 405, quoting United States v.
Systems Architects, Inc., 757 F.2d 373, 375 (1st Cir.),
cert. denied, 474 U.S. 847, 106 S. Ct. 139, 88 L. Ed. 2d
115 (1985). It is clear to us that the court’s recognition
that the ‘‘if’’ and ‘‘when’’ of whether the accused will
testify is primarily a matter of trial strategy does not
establish that the court in Paradise considered the right
to testify in one’s own defense to be a tactical right.
Rather, the reference merely reflects the court’s uncon-
troversial acknowledgment that the decision of whether
to testify—although ultimately the defendant’s choice—
is a strategic decision, involving consultation between
the defendant and his counsel. Indeed, a personal con-
stitutional right can still be exercised strategically. See,
e.g., Brooks v. Tennessee, 406 U.S. 605, 612, 92 S. Ct.
1891, 32 L. Ed. 2d 358 (1972) (‘‘[w]hether the defendant
is to testify is an important tactical decision as well
as a matter of constitutional right’’); United States v.
Teague, supra, 953 F.2d 1532 (holding that right to tes-
tify ‘‘is personal to the defendant and cannot be waived
either by the trial court or by defense counsel,’’ and also
acknowledging that ‘‘[t]he decision whether a criminal
defendant should take the witness stand in his own trial
unquestionably has tremendous strategic impor-
tance’’).4
Having concluded that the right to testify in one’s
own defense is a personal constitutional right, we must
next determine whether the constitution mandates the
form the waiver of that right must take. The defendant
argues that defense counsel’s in-court expression of
the waiver on a defendant’s behalf, combined with the
defendant’s silence while counsel makes this represen-
tation, is insufficient to constitute a knowing, intelligent
and voluntary personal waiver. The defendant contends
that the constitution requires that a criminal defendant,
himself, affirmatively inform the trial court, either orally
or in writing, of his decision to waive his right to testify.
Specifically, the defendant asks this court, as a constitu-
tional minimum, to adopt the ‘‘colloquy approach,’’ as
described in Boyd v. United States, supra, 586 A.2d
675–76, which would require a trial court to engage in
a brief, on-the-record colloquy with the defendant to
ensure that he has knowingly waived his right to testify.5
The state disagrees and argues that, although the right
to testify in one’s own defense is a personal constitu-
tional right, not all personal constitutional rights require
affirmative waivers by a defendant, himself, on the
record. The state argues that the waiver of the right to
testify, like the waiver of the right to silence, to repre-
sent oneself at trial, or to take an appeal, does not
require an on-the-record indication from a defendant,
himself, that he has chosen to waive his right. We agree
with the state.
As we have explained, ‘‘[i]n general, federal and state
constitutional and statutory rights can be waived’’;
(internal quotation marks omitted) New Haven v. Local
884, Council 4, AFSCME, AFL-CIO, 237 Conn. 378, 385,
677 A.2d 1350 (1996); and ‘‘[t]he mechanism by which
a right may be waived . . . varies according to the right
at stake.’’ (Internal quotation marks omitted.) State v.
Kitchens, 299 Conn. 447, 467, 10 A.3d 942 (2011). The
standard for an effective waiver of a constitutional right
related to the procedure for the determination of guilt
or innocence, such as the right to testify in one’s own
defense, ‘‘is that it must be knowing and intelligent, as
well as voluntary. . . . Relying on the standard articu-
lated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.
Ct. 1019, 82 L. Ed. 1461 (1938), we have adopted the
definition of a valid waiver of a constitutional right as
the intentional relinquishment or abandonment of a
known right. . . . In determining whether this strict
standard has been met, a court must inquire into the
totality of the circumstances of each case. . . . When
such a claim is first raised on appeal, our focus is on
compliance with these constitutional requirements
rather than on observance of analogous procedural
rules prescribed by statute or by the [rules of practice].
. . . Our task, therefore, is to determine whether the
totality of the record furnishes sufficient assurance of
a constitutionally valid waiver of the right to [testify].
. . . Our inquiry is dependent [on] the particular facts
and circumstances surrounding [each] case, including
the background, experience, and conduct of the [defen-
dant]. . . . In examining the record, moreover, we will
indulge every reasonable presumption against waiver
of fundamental constitutional rights and . . . [will] not
presume acquiescence in the loss of fundamental rights.
. . . [Id.] In addition, a waiver of a fundamental consti-
tutional right is not to be presumed from a silent record.
See Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709,
23 L. Ed. 2d 274 (1969).’’ (Citations omitted; internal
quotation marks omitted.) State v. Gore, supra, 288
Conn. 776–77.
In determining the form that the waiver of a criminal
defendant’s constitutional right to testify must take,
we recognize that, in some areas involving personal
constitutional rights, this court has required an affirma-
tive waiver by the defendant, himself, on the record,
following a trial court’s inquiry. See, e.g., State v. Bras-
well, 318 Conn. 815, 828, 123 A.3d 835 (2015) (assistance
of counsel); State v. Gore, supra, 288 Conn. 783–84 (jury
trial); State v. Carter, 243 Conn. 392, 397–98, 703 A.2d
763 (1997) (guilty plea). For certain other personal con-
stitutional rights, however, we have determined that a
trial court may properly infer waiver from the defen-
dant’s conduct. See, e.g., State v. Pires, 310 Conn. 222,
246–49, 77 A.3d 87 (2013) (right to self-representation);
State v. Castonguay, 218 Conn. 486, 491–92 n.2, 590
A.2d 901 (1991) (right against self-incrimination).
The majority of courts that have considered the
requirements for a valid waiver of the right to testify
have determined that a criminal defendant’s waiver of
this right may be inferred from the defendant’s conduct,
namely, from the defendant’s act of not taking the stand;
see, e.g., State v. Thomas, 128 Wn. 2d 553, 559, 910 P.2d
475 (1996); or defense counsel’s in-court representation
that the defendant has elected not to testify, together
with the defendant’s coincident silence. See, e.g.,
United States v. Ortiz, 82 F.3d 1066, 1072 (D.C. Cir.
1996). For example, in Ortiz, the United States Court
of Appeals for the District of Columbia Circuit rejected
the defendant’s argument that, ‘‘whenever [a criminal]
defendant does not testify,’’ ‘‘there is a per se require-
ment that the [trial] court inquire directly of the defen-
dant whether he knowingly and intelligently waives his
right to testify.’’ Id., 1071. The District of Columbia
Circuit reasoned that it is ultimately defense counsel,
not the trial court, who has the obligation to advise a
defendant of his right to testify ‘‘in a manner that would
enable the defendant to make a knowing and intelligent
choice.’’ Id., 1070. ‘‘This advice is crucial because there
can be no effective waiver of a fundamental constitu-
tional right unless there is an intentional relinquishment
or abandonment of a known right or privilege.’’ (Empha-
sis in original; internal quotation marks omitted.)
United States v. Teague, supra, 953 F.2d 1533.6 In the
absence of evidence of a problem in the attorney-client
relationship, the representation by defense counsel that
a defendant is waiving his right to testify, together with
the defendant’s silence at the time of counsel’s in-court
representation, satisfies the constitutional requirement
of a knowing, intelligent and voluntary waiver. A per
se rule requiring a canvass would ‘‘inappropriate[ly]
[interfere] with the client-counsel relationship when the
court can . . . readily determine from counsel
whether the defendant has been properly advised.’’
(Emphasis added.) United States v. Ortiz, supra, 1071.
Indeed, we may presume, in the absence of evidence
to the contrary, that defense counsel provided the
defendant with the information necessary to make an
informed decision regarding the waiver of his right to
testify. See, e.g., State v. Castonguay, supra, 218 Conn.
492 n.2.
Courts have also declined to create a per se canvass
requirement on the ground that a colloquy with a judge
regarding the right to testify may, in some circum-
stances, risk improperly influencing a defendant’s deci-
sion not to testify. See, e.g., United States v. Martinez,
883 F.2d 750, 760 (9th Cir. 1989), vacated on other
grounds, 928 F.2d 1470 (9th Cir.), cert. denied, 501 U.S.
1249, 111 S. Ct. 2886, 115 L. Ed. 2d 1052 (1991). As the
United States Court of Appeals for the Third Circuit
has explained, ‘‘[t]he right to testify qualitatively differs
from those constitutional rights [that] can be waived
only after the [trial] court inquires into the validity of
the waiver. In anchoring the accused’s right to testify
to the [c]onstitution, the [United States] Supreme Court
in Rock . . . described it as a necessary corollary to
the [f]ifth [a]mendment’s guarantee against compelled
testimony . . . . Exercise of either the right to testify
or the right not to testify necessarily would waive the
other right. Thus, a trial court’s advice as to the right
to testify could inappropriately influence the defendant
to waive his [or her] constitutional right not to testify,
thus threatening the exercise of this other, converse,
constitutionally explicit, and more fragile right.’’ (Cita-
tion omitted; emphasis omitted; internal quotation
marks omitted.) United States v. Pennycooke, 65 F.3d
9, 11 (3d Cir. 1995); see, e.g., United States v. Anderson,
1 F.4th 1244, 1259 (11th Cir. 2021) (recognizing that
certain questions posed by trial court regarding defen-
dant’s right to testify ‘‘might disturb the attorney-client
relationship, undermine the defendant’s ability to make
a knowing and intelligent decision, or overpower the
defendant’s will’’); United States v. Campione, 942 F.2d
429, 439 (7th Cir. 1991) (‘‘[d]iscussing the issue [of
whether the defendant will testify] directly with the
defendant may inappropriately involve the judge in the
unique attorney-client relationship, raising . . . [f]ifth
[a]mendment problems’’ (internal quotation marks
omitted)). Moreover, courts have deemed it ‘‘ill-advised
to have judges intrude into the attorney-client relation-
ship or disrupt trial strategy with a poorly timed inter-
jection.’’ (Internal quotation marks omitted.) State v.
Lee, 12 Wn. App. 2d 378, 390, 460 P.3d 701, review
denied, 195 Wn. 2d 1032, 468 P.3d 622 (2020).
We find these rationales persuasive and, accordingly,
consistent with the majority of federal courts of appeals
that have ruled on this issue, conclude that a trial court
is not constitutionally required to obtain an on-the-
record waiver from the criminal defendant, himself.
See, e.g., Brown v. Artuz, supra, 124 F.3d 79; United
States v. Ortiz, supra, 82 F.3d 1071–72; United States
v. Pennycooke, supra, 65 F.3d 11–12; United States v.
Brimberry, 961 F.2d 1286, 1289–90 (7th Cir. 1992);
United States v. Teague, supra, 953 F.2d 1533 n.8;
United States v. McMeans, 927 F.2d 162, 163 (4th Cir.
1991); United States v. Martinez, supra, 883 F.2d 760.
In so holding, we emphasize that it is defense counsel’s
responsibility to advise his or her client, the defendant,
of the benefits and hazards regarding the decision of
whether to testify, to discuss the strategic benefits
involved, and to inform the defendant that this decision
is ultimately the defendant’s to make. Indeed,
‘‘[although] defense counsel serves as an advocate for
[his or her] client, it is the client who is the master of
his or her own defense.’’ (Emphasis added; internal
quotation marks omitted.) State v. Ayala, 324 Conn.
571, 601, 153 A.3d 588 (2017).
The defendant nevertheless contends that our hold-
ing in State v. Gore, supra, 288 Conn. 770, requires that
a criminal defendant, himself, inform the trial court of
his decision to waive his right to testify. Specifically,
the defendant argues that, because we held in Gore that
the right to a jury trial is among ‘‘[t]he fundamental
rights’’ that ‘‘a criminal defendant personally must
waive’’; id., 778–79; see also id., 779 n.9; a defendant is
required to assert on the record, himself, the waiver of
all personal constitutional rights, including his right to
testify. Although we agree with the defendant insofar
as we recognize that the decision to waive the right to
testify must be made personally by a criminal defen-
dant; see State v. Gore, supra, 779 n.9; it does not follow
that the constitution therefore mandates that a trial
court obtain an on-the-record waiver of this particular
right directly from the defendant, himself.
In Gore, following our conclusion that the right to a
jury trial is a personal constitutional right, we addressed
the form that the waiver of that right must take. See
id., 781. Specifically, we explained: ‘‘[W]e must decide
what is constitutionally required to demonstrate that
the defendant, himself, knowingly, intelligently and vol-
untarily waived a jury trial. . . . [W]e must determine
whether the record must contain some affirmative indi-
cation from the defendant personally that he or she is
waiving the right to a jury trial, or, alternatively, whether
counsel’s expression of the waiver on the defendant’s
behalf, combined with the defendant’s silence while
counsel waives the right to a jury trial, may constitute
a knowing, intelligent and voluntary waiver.’’ (Emphasis
added.) Id., 777. Accordingly, although we ultimately
concluded that the waiver of the right to a jury trial
required that ‘‘the record . . . contain some affirma-
tive indication from the defendant personally that he or
she is waiving the right’’; id.; we nevertheless confirmed
that, for certain other personal constitutional rights,
waiver can be accomplished through defense counsel’s
in-court representation that a defendant has chosen to
waive the right, combined with the defendant’s coinci-
dent silence. See id. At the time Gore was decided, we
had already concluded that the waiver of the right to
self-representation and the right against self-incrimina-
tion—both personal constitutional rights—could be
effectuated in the absence of an affirmative, on-the-
record indication from a defendant. See, e.g., State v.
Pires, supra, 310 Conn. 246–49 (right to self-representa-
tion); State v. Castonguay, supra, 218 Conn. 491–92
n.2 (right against self-incrimination). Nothing in Gore
suggested a one-size-fits-all requirement applicable to
all personal constitutional rights. Thus, our holding in
this case that the constitution does not require a defen-
dant, himself, to waive his right to testify on the record
is not inconsistent with our holding in Gore that the
waiver of certain personal constitutional rights may be
expressed by defense counsel on the defendant’s behalf.
See State v. Gore, supra, 288 Conn. 777.
Moreover, a number of courts that require an on-the-
record, affirmative indication from a defendant, him-
self, to effectuate a waiver of the right to a jury trial
do not require the same to demonstrate a waiver of the
right to testify. Compare State v. Upton, 658 So. 2d 86,
88 (Fla. 1995) (concluding that, because ‘‘there was
no affirmative showing on the record’’ that defendant
personally waived his right to jury trial, state could not
prove waiver was knowingly, intelligently and volunta-
rily made), with Torres-Arboledo v. State, 524 So. 2d
403, 410–11 (Fla.) (deciding that right to testify ‘‘does
not fall within the category of fundamental rights [that]
must be waived on the record by the defendant him-
self’’), cert. denied, 488 U.S. 901, 109 S. Ct. 250, 102 L.
Ed. 2d 239 (1988). Compare People v. Cook, 285 Mich.
App. 420, 422–23, 776 N.W.2d 164 (2009) (noting that
defendant’s waiver of right to jury trial did not comply
with statute that required trial court to advise defendant
in open court of right to trial by jury before defendant
can be said to validly waive right), with People v. Sim-
mons, 140 Mich. App. 681, 684, 364 N.W.2d 783 (‘‘declin-
[ing] to require an on-the-record waiver of defendant’s
right to testify’’), appeal denied, 422 Mich. 963 (1985).
Compare Jones v. Commonwealth, 24 Va. App. 636, 639,
484 S.E.2d 618 (1997) (‘‘[t]o waive trial by jury, the
[defendant] must give express and intelligent consent
. . . and that consent . . . must be entered of record’’
(citation omitted)), with Vay v. Commonwealth, 67 Va.
App. 236, 260, 795 S.E.2d 495 (2017) (determining that
defense counsel’s in-court representation that defen-
dant would not testify, coupled with defendant’s silence
while counsel made this representation, was sufficient
to constitute waiver of defendant’s right to testify).
Compare State v. Stegall, 124 Wn. 2d 719, 724–25, 881
P.2d 979 (1994) (requiring defendant’s personal expres-
sion of waiver of right to twelve person jury), with
State v. Thomas, supra, 128 Wn. 2d 559 (concluding
that defendant’s on-the-record indication that he has
waived his right to testify is not required for valid waiver
of that right).
In this case, the record indicates that the defendant
had ‘‘extensive conversations’’ with his counsel regard-
ing his decision whether to testify. Before the state
rested its case, defense counsel spoke with the defen-
dant again regarding his decision whether to testify,
giving the defendant an additional opportunity to exer-
cise his right after viewing and hearing all of the state’s
evidence. Furthermore, the defendant was present in
court when defense counsel informed the trial judge
that the defendant would not testify, and the defendant
did not express any disagreement or concern with coun-
sel’s representation, much less any desire to the con-
trary. The defendant was also present when the jury
returned and defense counsel indicated that the defense
would ‘‘rest on the state’s case,’’ and the defendant again
remained silent. As we have explained, in the absence
of evidence to the contrary, we presume, for purposes
of a constitutional challenge, that defense counsel pro-
vided the defendant with the information necessary to
make an informed decision regarding whether to testify.
State v. Castonguay, supra, 218 Conn. 492 n.2. The record
in this case is devoid of any indication that the defen-
dant’s silence was the product of anything other than a
knowing, intelligent and voluntary waiver. Accordingly,
we conclude that defense counsel’s in-court representa-
tion that the defendant waived his right to testify,
together with the defendant’s coincident silence, was
sufficient to satisfy the constitutional requirement for
a valid waiver of the defendant’s right to testify. The
defendant’s unpreserved constitutional claim therefore
fails Golding’s third prong.
B
Having concluded that the constitution does not
require a defendant, himself, to assert affirmatively his
waiver of the right to testify on the record, we next
address the defendant’s request that we exercise our
supervisory authority to require that a trial court can-
vass a defendant prior to the waiver of his right to
testify.7 See, e.g., State v. Gore, supra, 288 Conn. 786–87
(exercising supervisory authority to require prospec-
tively that trial courts canvass criminal defendants to
ensure valid waiver of right to jury trial).
We begin with the relevant legal principles that guide
our analysis. ‘‘It is well settled that [a]ppellate courts
possess an inherent supervisory authority over the
administration of justice.’’ (Internal quotation marks
omitted.) State v. Rose, 305 Conn. 594, 607, 46 A.3d
146 (2012). ‘‘Under our supervisory authority, we have
adopted rules intended to guide the lower courts in the
administration of justice in all aspects of the criminal
process. . . . The exercise of our supervisory powers
is an extraordinary remedy to be invoked only when
circumstances are such that the issue at hand, [although]
not rising to the level of a constitutional violation, is
nonetheless of utmost seriousness, not only for the
integrity of a particular trial but also for the perceived
fairness of the judicial system as a whole.’’ (Citation
omitted; emphasis omitted; internal quotation marks
omitted.) State v. Lockhart, 298 Conn. 537, 576, 4 A.3d
1176 (2010).
Consistent with our decision in State v. Paradise,
supra, 213 Conn. 404–405, we decline to exercise our
supervisory authority to create a per se rule requiring
trial courts to canvass criminal defendants in all cases
because there may be circumstances under which a
canvass is inadvisable. See, e.g., United States v. Marti-
nez, supra, 883 F.2d 760. For example, by advising a
defendant of his right to testify, a trial court may inad-
vertently influence the defendant to waive his ‘‘more
fragile right’’ not to testify. Siciliano v. Vose, 834 F.2d
29, 30 (1st Cir. 1987); see, e.g., United States v. Ber-
nloehr, 833 F.2d 749, 752 n.3 (8th Cir. 1987) (stating
that per se canvass requirement presents ‘‘a danger of
improper comment on or judicial interference with the
defendant’s right not to testify’’). A canvass could, in
some instances, ‘‘frustrate a thoughtfully considered
decision by the defendant and counsel who are design-
ing trial strategy’’; State v. Albright, 96 Wis. 2d 122, 134,
291 N.W.2d 487, cert. denied, 449 U.S. 957, 101 S. Ct.
367, 66 L. Ed. 2d 223 (1980); as there is a risk that
the defendant may interpret the canvass as an implicit
recommendation by the trial judge that the defendant
should testify. In situations in which defense counsel
believes that a canvass would encourage the defendant
to testify after extensive conversations have led the defen-
dant to a contrary decision—thereby upsetting carefully
crafted trial strategy—a per se canvass requirement could,
indeed, have deleterious consequences. See, e.g., United
States v. Pennycooke, supra, 65 F.3d 11 (‘‘A colloquy
on the right to testify [in certain circumstances] . . .
inadvertently might cause the defendant to think that
the [trial] court believes the defense has been insuffi-
cient. This belief in turn might prompt the defendant
to abandon an appropriate defense strategy without good
reason.’’ (Citations omitted.)).
Nevertheless, we recognize that, in the majority of
cases, a canvass of the defendant is the best practice.
Often, ‘‘the best means of demonstrating the defen-
dant’s state of mind are his own declarations on the
record.’’ (Internal quotation marks omitted.) People v.
Curtis, 681 P.2d 504, 515 (Colo. 1984). Furthermore, a
canvass facilitates any appellate review or collateral
challenge by placing the defendant’s waiver on the
record. See, e.g., Boyd v. United States, supra, 586 A.2d
675 (noting that colloquy allows court ‘‘[to determine]
whether there is an intelligent and competent waiver by
the [defendant]’’ (internal quotation marks omitted));
State v. Walen, 563 N.W.2d 742, 751–52 (Minn. 1997)
(‘‘placement on the record of a defendant’s waiver of
his right to testify often will save both the court and
defense counsel considerable time at any postconvic-
tion proceeding’’).
Recognizing the benefits of a canvass in the context
of the right to testify, while also acknowledging that a
canvass may, in some circumstances, be inadvisable,
we have chosen to craft a rule that adequately balances
these two competing considerations. Accordingly, we
take this opportunity to exercise our supervisory
authority prospectively to require a trial court, when
presiding over a criminal trial, to either canvass the
defendant prior to his waiver of his right to testify or,
alternatively, to inquire of defense counsel directly to
determine whether counsel has adequately advised the
defendant regarding the waiver of his right to testify.
This latter option—a judicial inquiry of defense coun-
sel—shall be used, however, only when defense counsel
advises the trial court that counsel believes that a direct
canvass carries the risk of inadvertently interfering with
a decision made by the defendant after extensive con-
versations with counsel regarding trial strategy.
Although we do not prescribe the exact form that this
canvass of a criminal defendant or inquiry of defense
counsel should take, both inquiries must be sufficient
to satisfy the trial court, at minimum, that (1) defense
counsel informed the defendant that the defendant has
the right to testify, as well as the right not to testify,
and should the defendant choose not to testify, the fact
finder may not draw any adverse inferences from the
defendant’s choice not to testify, (2) defense counsel
explained to the defendant that the right to testify
belongs to the defendant alone, and no one, including
defense counsel, can prevent the defendant from testi-
fying, (3) the defendant has consulted with counsel in
making the decision not to testify, and counsel has
discussed with the defendant the advantages and disad-
vantages of testifying, (4) the defendant has had enough
time to discuss with counsel the right to testify and the
strategic decision not to testify, and the defendant has
understood the information counsel has provided, and
(5) the defendant has personally waived the right to
testify knowingly, intelligently and voluntarily. Cf.
Momon v. State, 18 S.W.3d 152, 162 (Tenn. 1999) (requir-
ing that, in every trial in which defendant does not
testify, defense counsel canvass defendant outside pres-
ence of jury to inquire of defendant whether defendant
has made knowing, intelligent and voluntary waiver of
right to testify to ensure that defense counsel does
not ‘‘unilaterally deprive . . . [the defendant] of the
fundamental right to testify’’).
This approach strikes the proper balance between
the competing concerns of ensuring that criminal defen-
dants understand their fundamental right to testify on
their own behalf, on the one hand, and minimizing the
danger, in some circumstances, that judicial interven-
tion may inadvertently pressure defendants into testi-
fying, on the other. It seeks to preserve a defendant’s
fundamental right to testify, while also protecting the
relationship and confidences between a defendant and
his counsel. This approach also facilitates appellate
review by placing, on the record, the circumstances
of a defendant’s waiver of his right to testify. Cf. id.
(describing benefits of approach adopted by court,
which will require defense counsel to conduct on-the-
record canvass of defendant prior to valid waiver of
defendant’s right to testify).
II
The defendant’s final claim on appeal is that the pros-
ecutor committed improprieties on several occasions
during her direct examination of S, in violation of the
defendant’s right to a fair trial. Specifically, the defen-
dant contends that the prosecutor’s excessive use of
leading questions in at least ‘‘three separate contexts’’8
throughout the course of her direct examination of S
assumed facts not in evidence and stood to bolster S’s
testimony. The state, however, contends that, because
defense counsel did not object to the prosecutor’s use
of leading questions at trial, the defendant’s claims are
unpreserved evidentiary issues, rather than constitu-
tional ones, and are therefore unreviewable. We agree
with the state.
Defense counsel did not object to the prosecutor’s
use of leading questions at trial, and the defendant now
argues on appeal that his claim should nevertheless be
reviewed under State v. Williams, 204 Conn. 523, 529
A.2d 653 (1987), and State v. Warholic, 278 Conn. 354,
897 A.2d 569 (2006). Although we have held that unpre-
served claims of prosecutorial impropriety are to be
reviewed under the factors set forth in State v. Wil-
liams, supra, 540; see, e.g., State v. Spencer, 275 Conn.
171, 178, 881 A.2d 209 (2005); that rule does not apply
to ‘‘unpreserved evidentiary claims masquerading as
constitutional claims . . . .’’ State v. Golding, supra,
213 Conn. 241.
Although the defendant argues that the prosecutor’s
use of leading questions throughout the course of her
direct examination of S constituted prosecutorial
impropriety, our review of the record reveals that his
claims are unreviewable because they raise nothing
more than unpreserved evidentiary issues.9 As the state
notes, ‘‘the defendant does not cite a single fact elicited
by leading questions that could not also have been elic-
ited by nonleading questions, had [defense counsel]
raised any objection’’ during the prosecutor’s direct
examination of S. Thus, the defendant’s claims, at bot-
tom, take issue with the form of the prosecutor’s ques-
tions and not the information elicited. See, e.g., State
v. Jose G., 290 Conn. 331, 343, 963 A.2d 42 (2009) (‘‘An
objection that a question is leading is a procedural
objection aimed at the manner in which a question is
being asked, not at the evidence sought to be elicited.
. . . In other words, it is not the propriety of the evi-
dence being questioned, but, rather, the manner in
which it is being obtained.’’ (Citation omitted; emphasis
altered.)). Accordingly, we conclude that the defen-
dant’s challenges, on appeal, to the prosecutor’s use of
leading questions during her direct examination of S
are purely evidentiary in nature and are unpreserved.
The claim is not one of prosecutorial impropriety, and,
therefore, it is not reviewable under Williams or War-
holic.
The judgment is affirmed.
In this opinion the other justices concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
2
The defendant refers to the right to testify afforded by the federal and
state constitutions in general only. Because the defendant has not provided
a separate analysis of the right to testify under our state constitution, and
he has not claimed that the state provisions provide greater protection than
their federal counterparts, for purposes of this appeal, we treat the right to
testify arising from the state and federal constitutions as coextensive. See,
e.g., State v. Gore, 288 Conn. 770, 776 n.7, 955 A.2d 1 (2008) (applying this
analysis to right to jury trial); State v. Velasco, 253 Conn. 210, 237 n.19, 751
A.2d 800 (2000) (applying this analysis to right to impartial jury).
3
The distinction between personal constitutional rights and tactical rights
is largely premised on promoting expeditious litigation. ‘‘Tactical decisions
appropriately may be waived by counsel acting alone because [t]he adversary
process could not function effectively if every tactical decision required
client approval. . . . [G]iving the attorney control of trial management mat-
ters is a practical necessity. . . . Numerous choices affecting conduct of
the trial, including the objections to make, the witnesses to call, and the
arguments to advance, depend . . . [on] tactical considerations of the
moment and the larger strategic plan for the trial. . . . To hold that every
instance of waiver requires the personal consent of the client himself or
herself would be impractical.’’ (Citation omitted; internal quotation marks
omitted.) State v. Gore, supra, 288 Conn. 779 n.10.
4
Indeed, there are indications in our decision in Paradise that the court
recognized that the right to testify is a personal constitutional right. In
support of our determination that federal law does not require that a trial
judge canvass a criminal defendant to ensure that he validly waived his
right to testify, we cited cases recognizing that, notwithstanding the conclu-
sion that a trial court is not required to canvass a defendant regarding the
waiver of his right to testify, only a defendant can waive this right. See State
v. Paradise, supra, 213 Conn. 405; see also, e.g., Siciliano v. Vose, 834 F.2d
29, 30 (1st Cir. 1987) (declining to require trial court to follow specific
procedure explicitly canvassing defendant on right to testify, as trial court
‘‘could inappropriately influence the defendant to waive his constitutional
right not to testify’’ (emphasis altered)); United States v. Bernloehr, 833
F.2d 749, 751 (8th Cir. 1987) (‘‘[b]ecause the right to testify is a fundamental
constitutional guarantee, only the defendant is empowered to waive the
right’’); United States v. Janoe, 720 F.2d 1156, 1161 n.10 (10th Cir. 1983)
(‘‘[t]he decisions which are to be made by the accused after full consultation
with counsel are . . . [1] what pleas to enter . . . [2] whether to waive
jury trial . . . and . . . [3] whether to testify in his or her own behalf’’
(emphasis altered; internal quotation marks omitted)), cert. denied, 465 U.S.
1036, 104 S. Ct. 1310, 79 L. Ed. 2d 707 (1984).
5
The defendant argues that, in Paradise, we implicitly adopted the
‘‘ ‘demand approach,’ ’’ as described in Boyd v. United States, supra, 586
A.2d 676. Under this approach, ‘‘a defendant who fails to complain about
the right to testify during trial is conclusively presumed to have waived that
right.’’ Id. Contrary to the defendant’s contention, we have never adopted
the waiver approaches described in Boyd, and we decline to do so today.
Nevertheless, to the extent that this court’s decision in Paradise left open
questions regarding the procedural requirements necessary for a defendant
to waive his right to testify, we now clarify those requirements.
6
Other courts have similarly placed the onus on defense counsel, not the
trial judge, to ensure that a defendant has been adequately advised of his
right to testify. See, e.g., Brown v. Artuz, supra, 124 F.3d 79; United States
v. Teague, supra, 953 F.2d 1533; United States v. Campione, 942 F.2d 429,
439 (7th Cir. 1991); DeLuca v. Lord, 858 F. Supp. 1330, 1355–60 (S.D.N.Y.
1994), aff’d, 77 F.3d 578 (2d Cir.), cert. denied, 519 U.S. 824, 117 S. Ct. 83,
136 L. Ed. 2d 40 (1996); State v. Johnson, 298 Neb. 491, 506, 904 N.W.2d
714 (2017).
7
Alternatively, the defendant requests that, ‘‘in light of the exceptional
circumstances of this case,’’ namely, that the defendant is a non-English
speaker and relied exclusively on the assistance of an interpreter throughout
trial, we exercise our supervisory authority to reverse the defendant’s convic-
tion. Specifically, the defendant argues that ‘‘the fast pace of proceedings
and the delay between the in-court colloquies and interpretation for the
defendant created a risk that the defendant did not have time to raise an
objection,’’ and, thus, ‘‘the absence of a canvass [regarding the defendant’s
right to testify] resulted in exceptional circumstances necessitating rever-
sal.’’ We are unpersuaded. The defendant does not allege that his use of an
interpreter prevented him from understanding his right to testify or that he
would have testified if he ‘‘ha[d] time to raise an objection’’ to defense
counsel’s expression of the defendant’s waiver. Further, he does not cite any
cases, and we have found none, in which this court exercised its supervisory
authority to reverse a defendant’s conviction in a similar circumstance. We
therefore decline the defendant’s invitation to exercise our supervisory
authority to reverse his conviction on that basis.
8
These ‘‘three separate contexts’’ involved questions regarding the timing
of S’s observation of blood after the alleged assault, the accuracy of the
photographs of S’s injuries, and the substance of S’s prior statements.
9
We do not suggest that a prosecutor’s use of leading questions can never
rise to the level of prosecutorial impropriety. For instance, a prosecutor
may not pose a question, in any form, ‘‘that implies the existence of a factual
predicate when the prosecutor knows that no such factual basis exists.’’
State v. Salamon, 287 Conn. 509, 564, 949 A.2d 1092 (2008). Nothing of the
kind occurred in the present case. Furthermore, even if reviewed through
the lens of a claim of prosecutorial impropriety, the defendant’s claim would
fail on the merits because the ‘‘the [trial] court has discretion to allow
[leading questions on direct examination] in certain circumstances.’’ Id.,
559, citing Conn. Code Evid. § 6-8 (b). The commentary to § 6-8 (b) (3) of
the Connecticut Code of Evidence explains that ‘‘the court may allow the
calling party to put leading questions . . . to a witness who has trouble
communicating.’’ (Citations omitted.) Conn. Code Evid. § 6-8 (b) (3), com-
mentary. Our review of the record in this case reveals that S responded to
the prosecutor’s open-ended questions with cursory, often one word
answers, and she was not descriptive throughout her direct examination.
Thus, our review leads us to believe that the prosecutor’s use of leading
questions was necessary to develop S’s testimony, which very well may
explain why defense counsel did not raise an objection. Accordingly, we
conclude that the prosecutor’s use of leading questions in this case was
not improper.