******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. JOHNNY MARTINEZ
(AC 38788)
DiPentima, C. J., and Keller and Calmar, Js.
Argued October 18, 2016—officially released March 28, 2017
(Appeal from Superior Court, judicial district of
Waterbury, Crawford, J.)
Steven B. Rasile, assigned counsel, for the appel-
lant (defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Cynthia S. Serafini and Terence Mariani,
senior assistant state’s attorneys, for the appellee
(state).
Opinion
KELLER, J. The defendant, Johnny Martinez, appeals
from the judgment of conviction rendered by the trial
court, following a jury trial, of felony murder in violation
of General Statutes § 53a-54c, robbery in the first degree
in violation of General Statutes § 53a-134 (a) (1), rob-
bery in the first degree in violation of General Statutes
§ 53a-134 (a) (3), conspiracy to commit robbery in the
first degree in violation of General Statutes §§ 53a-48
(a) and 53a-134 (a), and tampering with evidence in
violation of General Statutes (Rev. to 2010) § 53a-155
(a) (1).1 The defendant claims that the court (1) violated
his right to present a defense by prohibiting him from
presenting evidence concerning an altercation that took
place in the hours prior to the events at issue, (2) vio-
lated his right to cross-examination by limiting the
scope of his cross-examination of a state’s witness, (3)
improperly instructed the jury with respect to accesso-
rial liability in the course of its instructions concerning
the murder count, (4) improperly failed to comply with
the jury’s request to have certain testimony played back,
and (5) improperly denied his request to suppress a
written statement that he provided to the police. We
dismiss the appeal with respect to the third claim, and
with respect to the remainder of the appeal, we affirm
the judgment of the trial court.
On the basis of the evidence presented at trial,2 the
jury reasonably could have found the following facts.
Shortly after 4 a.m., on November 2, 2010, the victim,
Arnaldo Gonzalez, left his residence on Savings Street
in Waterbury and began walking to an election polling
station on Washington Street, where he was scheduled
to report at 5 a.m. to work as a bilingual interpreter.
When the victim left his residence, he was carrying a
black backpack.
The victim made his way to Baldwin Street when an
automobile being driven by Manuel Vasquez, and in
which the defendant, Michael Mark,3 and Anthony Gar-
cia were passengers, drove by him. The four men in
the automobile were on their way to purchase liquor
at a ‘‘bootleg house’’ at which liquor was sold ‘‘after
hours,’’ when bars and package stores were not open
for business. Mark observed the victim and commented
aloud that he intended to rob him.4
Vasquez parked the automobile along Baldwin Street,
near the bootleg house. Before going to purchase liquor,
Vasquez cautioned Mark not to do anything ‘‘stupid.’’
The defendant and Mark then exited the automobile
and proceeded on foot in the victim’s direction. Garcia
remained in the automobile.
The defendant and Mark followed the victim
intending to rob him. As they got closer to the victim,
Mark picked up a hard object, perhaps a brick or a
rock, from the ground. Mark ran toward the victim from
behind while the defendant ran into the street to prevent
the victim from fleeing from them. Mark struck the
victim in the back of the head with the hard object.
The victim did not have time to react, but immediately
fell to the ground. Mark repeatedly struck the victim,
who was lying face down on the ground. When the
defendant, wearing white sneakers, came upon the vic-
tim, he stomped on the victim’s head, causing blood to
transfer onto one of his sneakers. Mark left the victim
while in possession of the victim’s backpack.
When Vasquez returned to the automobile a short
time later, Garcia informed him that he thought that
the defendant and Mark had gone ‘‘up the street’’ to
‘‘rob’’ the victim. Vasquez drove a short distance before
he observed the defendant and Mark running in a south-
erly direction, on opposite sides of the street, near the
intersection of Baldwin and Galivan Streets. Vasquez
stopped the automobile to permit both men to get inside
of it. Mark remained in possession of the victim’s back-
pack. Mark was ‘‘bugging out,’’ looking at his hands,
and he stated three times that he had killed the victim.
The defendant stated that Mark had hit the victim ‘‘ ‘in
the head over and over again.’ ’’ Also, the defendant
stated that he had kicked the victim. The victim, who
sustained multiple skull fractures and brain hemorrhag-
ing, died as a result of blunt force trauma to his head
that was consistent with being hit with a hard object
such as a rock and being kicked with a shod foot.
Vasquez drove the men to the defendant’s residence
on Second Avenue. There, in the kitchen, Mark referred
to the manner in which he had struck the victim in the
head; he imitated the cracking sound that he had heard
during his assault of the victim.5 The defendant and
Garcia rummaged through the items in the victim’s
backpack, which included several items that the victim,
a diabetic, used to care for himself. The commotion
caused the defendant’s sister-in-law, Joan Ruiz, to come
to the kitchen. Ruiz asked the defendant about the
appearance of blood on one of his sneakers, to which
the defendant replied that they had ‘‘jumped a crack-
head’’ who owed them money and that he had ‘‘kicked
him in the head.’’ Later, after Ruiz learned from the
defendant that Mark had killed someone, Ruiz told
everyone to leave and to remove the victim’s backpack
from her residence.
After Ruiz observed the blood on the defendant’s
sneaker, he went to a bathroom and cleaned the blood
off of the sneaker. The defendant concealed the back-
pack by tossing it on the roof of a neighbor’s garage.
In the hours following the murder, the defendant
appeared to be crying and he stated that ‘‘he couldn’t
believe that he kicked the guy.’’
Additional facts will be set forth as necessary.
I
First, the defendant claims that the court violated
his right to present a defense by prohibiting him from
presenting evidence concerning an altercation that took
place in the hours prior to the events at issue. Although
we agree that the court erroneously ruled as it did,
we conclude that the error was harmless beyond a
reasonable doubt.
The following procedural history provides necessary
context for our analysis of the defendant’s claim. At
trial, the state presented evidence that, following the
victim’s murder, blood was present on one of the defen-
dant’s sneakers. The defense attempted to demonstrate
that the blood was not the victim’s blood, but that it
was the blood of a third party with whom the defendant
had been involved in a physical altercation in the hours
prior to the victim’s murder.
During his direct examination by the state at trial,
Garcia testified that, when he, the defendant, Vasquez,
and Mark were at the residence on Second Avenue
following the victim’s murder, he observed blood on
one of the defendant’s sneakers. He recalled that, after
Ruiz asked the defendant why there was blood on his
sneaker, the defendant ‘‘went to clean it.’’ During the
defense’s cross-examination of Garcia, he was asked
about an event that occurred while he was with the
defendant, Vasquez, and Mark, in the hours prior to the
victim’s murder. The state objected to this inquiry and,
outside of the presence of the jury, the state argued
that it appeared that the defense was attempting to
elicit testimony concerning an event ‘‘where the four
individuals . . . got into a fight or a scuffle with some-
body, that there was a dispute over the purchase of
either powdered or crack cocaine. That was where
[defense counsel] was trying to get with this particular
witness.’’6 The state argued that the inquiry was objec-
tionable on the grounds that it was beyond the scope
of the state’s direct examination of Garcia and because
the evidence was not relevant to the events that tran-
spired on Baldwin Street and resulted in the victim’s
death.
Defense counsel argued that the line of inquiry was
proper. First, he argued that the evidence was within
the scope of the state’s direct examination because the
state had elicited testimony from Garcia with respect
to events that transpired when the four men (the defen-
dant, Vasquez, Garcia, and Mark) ‘‘got together’’ in the
hours prior to the murder. Second, the defendant’s
attorney argued that the evidence he was trying to elicit
would tend to demonstrate that, in the hours prior to
the murder, the defendant had kicked a third party (a
person he referred to as a ‘‘crackhead’’). He argued that
this evidence was ‘‘absolutely relevant’’ and ‘‘material
to the defense of the case’’ because it tended to demon-
strate that the blood on the defendant’s sneaker was
not caused by his conduct with respect to the victim
in this case but that it resulted from the defendant’s
violent conduct in an unrelated incident. The defen-
dant’s attorney told the court that the evidence was
relevant to demonstrate ‘‘[t]hat the [prior] incident
occurred and whether or not [Garcia] knows if the blood
[on the defendant’s sneaker] came from that incident,
as opposed to a later incident.’’
The court sustained the state’s objection in part. The
court ruled that the defense could inquire of Garcia as
to whether he knew the source of the blood on the
defendant’s sneaker but that ‘‘[a]ny details as to any
encounter concerning a crackhead, or however the per-
son was referred to, those details are not essential to
determining whether or not he knew the source of the
blood on the shoe. Since what is relevant appears to
be . . . that he saw the defendant washing blood off
of his shoe, you may inquire as to whether he knew
about the source of that blood on his shoe. . . . [T]he
details concerning the prior encounter, that is not
allowed. . . . [Y]ou can inquire as to whether or not
he was present at a previous encounter and whether
or not he knows of . . . that encounter being the
source of the blood.’’ The court went on to explain: ‘‘The
details as to the encounter, as in there was somebody
talking about going to take something from a crackhead
and what they took and didn’t take, what is relevant to
this is . . . the source of the blood on the defendant’s
shoe. . . . You may inquire as to what he knows con-
cerning the source of the blood, and that can be done
without the details of the encounter.’’ The court stated:
‘‘Here’s the question[s] that you will be permitted to
ask. Was there a prior altercation involving the four
individuals in the car? How long did that happen before
the encounter with [the victim]? And whether he saw
any blood on the defendant’s shoes from that alter-
cation.’’
After the court’s ruling, the following colloquy
occurred between defense counsel and Garcia:
‘‘Q. [D]id an incident occur in the late evening hours
of November 1, or the early morning hours of November
2, 2010, where you, [Vasquez, Mark, and the defendant]
had an altercation with a third party, not [the victim]?
‘‘A. Yes.
‘‘Q. Okay. Do you recall approximately how long from
that incident until you went to the bootlegger store,
approximately how long was that time frame?
‘‘A. It was a big time frame . . . probably like around
four hours, three, four hours.
‘‘Q. As a result of that altercation do you know
whether or not that was the source of the blood on [the
defendant’s] shoes that you saw at Second Avenue?
‘‘A. It could have been, but I don’t know.’’
During Garcia’s continued cross-examination by
defense counsel, the following colloquy occurred:
‘‘Q. [On Second Avenue] [s]omeone asked [the defen-
dant] about where the blood came from, didn’t they?
‘‘A. Yes.
‘‘Q. And [the defendant] gave an answer to that,
didn’t he?
‘‘A. Yes.
‘‘Q. [He] said he kicked a crackhead, isn’t that true?
‘‘A. True.
‘‘Q. [The defendant] said he kicked a crackhead in
the head, correct?
‘‘A. True.
‘‘Q. At the time that statement was made do you know
whether or not [the victim] was a crackhead?
‘‘A. No.
‘‘Q. Do you have any reason to believe that he was
a drug user that evening?
‘‘A. No.’’
Following Garcia’s testimony and outside of the pres-
ence of the jury, defense counsel renewed his argument
that the court should have permitted him greater leeway
to develop a factual basis concerning the prior physical
altercation involving the defendant and the third party.
The court, observing that its ruling would apply to the
defense’s examination of other witnesses, responded
by stating in relevant part: ‘‘The details as to that inci-
dent are irrelevant. I allowed what the court deemed
to be relevant: that there was an earlier incident, that
there was an altercation, that they were involved. You
were allowed to address your claim concerning whether
or not there was blood because there was a question
concerning . . . the defendant washing blood off of
his shoes.’’ The court further explained: ‘‘The fact that
there was something earlier, I’ve allowed. The time
frame between that and the incident involving [the vic-
tim] is allowed. And any questioning concerning any
blood from that incident versus any blood from the
later incident is allowed. The details that had been put
before the court on the record concerning who they
saw, what they did to him, who did what, I’m not going
to allow the details. Who owed what for drugs or who
owed money. I have ruled that portion of that incident
is not admissible.’’ The court then stated: ‘‘One of the
big problems is, the details concerning that [prior] inci-
dent are likely to be confusing and create other prob-
lems. But what I have ruled is relevant is that there
was an incident, that they were involved. There seems
to have been some altercation and you’re permitted to
question concerning whether or not there was blood
from that incident to explain the blood that [the defen-
dant] was seen washing off [his sneaker].’’
The court had occasion to revisit its evidentiary ruling
during the testimony of Sonia Hernandez, who had
observed the victim’s lifeless body on Baldwin Street.
See footnote 5 of this opinion. During her direct exami-
nation by the state, Hernandez testified that in the early
morning of November 2, 2010, she was in a car with
Vasquez and Mark. As the car traveled down Baldwin
Street, Hernandez observed a male lying on the side-
walk, as well as blood. Hernandez stated that when she
brought this to Mark’s attention, he stated ‘‘ ‘[t]hat he
was just a crackhead. He deserved that. He owed [me]
money or something.’ ’’ Hernandez testified that Mark
then exited the automobile in the vicinity of the person
lying on the sidewalk and stated that he had to hide a
brick. Following this testimony, defense counsel argued
that Hernandez’ testimony, viewed in conjunction with
Garcia’s testimony, gave rise to an inference that the
defendant had kicked the victim. Thus, defense counsel
argued, the court should permit the defense to elicit
additional details with respect to the prior incident to
rebut this inference. Specifically, defense counsel
argued that the state had presented evidence that
tended to demonstrate that the victim in the present
case was the ‘‘crackhead’’ described by Garcia, but that
the court’s ruling unfairly precluded the defense from
demonstrating that there was another ‘‘actual crack-
head incident’’ that did not involve the victim. The court
stated that Hernandez’ testimony, in which she stated
that Mark had referred to the victim as a ‘‘crackhead,’’
did not cause it to change its ruling with respect to the
parameters of defense counsel’s inquiries. The court
stated that its limitations did not preclude the defense
from eliciting facts that tended to demonstrate that the
blood on the defendant’s sneaker came from the prior
incident, not the incident on Baldwin Street involving
the victim. The court added that the evidence that the
defense sought to introduce had ‘‘a tendency to confuse
the jurors in terms of the actual details of a different
incident.’’
At trial, Vasquez testified with respect to the activities
of November 2, 2010. He stated in relevant part that,
when he returned to the automobile he was driving
after he made a purchase at the ‘‘after hours’’ liquor
store, he discovered only Garcia inside. Garcia told him
that the defendant and Mark had gone ‘‘up the street.’’
Vasquez testified that he drove south on Baldwin Street
until he observed the defendant and Mark running. He
stopped the automobile and both men got inside. Mark,
in possession of a black backpack, was ‘‘bugging out,’’
stating that he had ‘‘killed the guy.’’ Vasquez testified
that the defendant stated that he had ‘‘kicked him,’’ or
that he referred to the fact that he had kicked some-
body. Vasquez stated that when he arrived at the resi-
dence on Second Avenue, he observed blood on the
defendant’s white Nike sneakers.
Also, Vasquez testified that ‘‘an incident’’ had
occurred in the hours prior to the incident on Baldwin
Street, prior to the time at which he went to the ‘‘after
hours’’ house to purchase liquor. He stated that he, the
defendant, Garcia, and Mark were present at that prior
incident. During recross-examination by defense coun-
sel, the following colloquy with Vasquez occurred:
‘‘Q. [Y]ou testified on redirect [examination] regard-
ing my client making some comment about kicking
someone, is that correct?
‘‘A. That’s correct.
‘‘Q. You have no knowledge who he was referring
to, correct?
‘‘A. Correct.
‘‘Q. It could have been the individual in the earlier
incident, is that correct?
‘‘A. Correct.’’
Ruiz, who is the defendant’s sister-in-law and Vas-
quez’ sister, testified that she observed the defendant,
Vasquez, Mark, and Garcia at her and the defendant’s
residence on Second Avenue in the early morning hours
of November 2, 2010. When she heard them come inside
the residence, she went downstairs and observed the
defendant and Garcia looking inside of a black back-
pack. The following colloquy between the prosecutor
and Ruiz occurred:
‘‘Q. Did you notice anything on either Mr. Garcia or
[the defendant]?
‘‘A. I noticed blood.
‘‘Q. On where?
‘‘A. On [the defendant’s] sneaker.
‘‘Q. Do you remember which sneaker it was?
‘‘A. No, I don’t.
‘‘Q. And can you describe it?
‘‘A. On the side of the sneaker.
‘‘Q. And what color was it?
‘‘A. Red.
‘‘Q. And did you inquire about that?
‘‘A. Yeah.
‘‘Q. What was the response that you got?
‘‘A. That he had kicked a crackhead that owed
them money.
‘‘Q. Okay. And who said that?
‘‘A. [The defendant].
‘‘Q. [H]e said what exactly?
‘‘A. That he had–they jumped a crackhead and he had
kicked him in the head and that he owed them money.’’
Ruiz proceeded to testify that there was ‘‘a lot of
blood’’ on the sneaker and that, following her comment
to the defendant, she observed him remove his sneaker
and clean it in a bathroom sink. Ruiz testified that she
also spoke with Mark, who told her that, using a rock,
he had killed a man. Specifically, Mark told Ruiz that
‘‘they had robbed a crackhead for the black backpack’’
and that this crime had transpired on Baldwin Street.
During cross-examination of Ruiz, defense counsel
revisited the issue of the bloody sneaker, as reflected
in the following colloquy:
‘‘Q. Now, at some point you ask [the defendant] about
something on his shoes, correct?
‘‘A. Yes.
‘‘Q. And he made a statement that you testified earlier,
they jumped a crackhead and he kicked him in the head
because he owed them money, is that correct?
‘‘A. Yes.
‘‘Q. Now, were you aware that earlier that evening,
[Mark, Garcia, the defendant and Vasquez] were
involved in another incident?
‘‘A. No.
‘‘Q. Did your brother [Vasquez] ever tell you that there
was an incident that the four of them jumped someone
else earlier that evening?
‘‘A. No.
‘‘Q. Did [Mark] ever tell you that the four of them
jumped someone else earlier that evening?
‘‘A. No.
‘‘Q. Did [Garcia] tell you that the four of them jumped
someone else earlier that evening?
‘‘A. No.
‘‘Q. Do you have any idea where the blood on those
shoes came from?
‘‘A. No, I don’t.
‘‘Q. Do you know whether or not it came from that
other incident?
‘‘A. No.
‘‘Q. So your brother [Vasquez] never told you about
this prior incident?
‘‘A. No.’’
Once more, following Ruiz’ testimony, defense coun-
sel expressed dissatisfaction with the court’s ruling that
precluded inquiry with respect to the details of the prior
incident. The defense paid particular attention to the
court’s ruling that limited inquiry with respect to Garcia.
Defense counsel’s arguments arose in the context of
the defense’s motion for the court to issue a capias
to compel the appearance of Garcia, who had been
subpoenaed by the defense to testify, but did not appear.
Specifically, during a lengthy exchange with the court,
defense counsel argued that additional details were nec-
essary in light of statements attributed to the defendant,
in which he used the term ‘‘crackhead,’’ and Ruiz’ testi-
mony that Mark appeared to have referred to the victim
as ‘‘a crackhead.’’ The court reaffirmed its prior ruling,
stating that the defendant was permitted to present
evidence, and had presented evidence, with respect to
when the prior incident had occurred, who was present
when it occurred, the fact that the prior incident
included an altercation, and whether the witnesses
knew if the blood seen on his sneaker was the result
of that prior incident. The court stated that it would
not permit the defense to elicit evidence with respect
to the attributes of the victim of the prior incident
(whether he was a ‘‘crackhead’’ or not) or with respect
to the motive for that altercation because it did not view
such details as being relevant to the issue of whether the
blood on the defendant’s shoe was the result of his
conduct toward the victim on Baldwin Street.
The following day, the court heard further argument
with respect to the defendant’s motion for the court to
issue a capias to compel Garcia’s appearance. With
respect to why the defense wished to compel Garcia
to testify, defense counsel indicated that the defense
wished to recall Garcia for the purpose of rebutting the
inference, which could be drawn from the evidence
presented thus far in the case, that the defendant’s
references to kicking a crackhead were to the victim.
In a written offer of proof, the defense represented that
it would present testimony from Garcia that, during the
prior incident, Vasquez had attempted to sell crack to
a male third party described as ‘‘a crackhead’’ or ‘‘[a]
dopehead,’’ the third party took possession of the crack
and ran away, and that this led to ‘‘an altercation’’
involving the third party, Vasquez, Mark, Garcia, and
the defendant. Additionally, the defense intended to
present Garcia’s testimony that he did not have any
reason to believe that the victim in this case was a
crackhead. Further, defense counsel indicated that it
wished to present testimony of a similar nature from
the defendant and Vasquez during its case-in-chief, and
submitted an offer of proof in this regard that set forth
details concerning the altercation with the third party
in the prior incident. Once again, defense counsel
argued that, to dispel any confusion with respect to
the defendant’s statements following the murder (about
kicking a crackhead), it was imperative for the jury to
hear the foregoing testimony that the third party in the
prior incident, ‘‘the actual true source of the blood on
[the defendant’s] shoes,’’ was a crackhead.
In a lengthy ruling, the court reiterated in substance
its prior ruling with respect to the details of the prior
incident. The court stated that the reasons as to why
the prior incident occurred or why the defendant acted
the way he did in the prior incident were not relevant
to the issues before the jury. The court stated that ‘‘this
is not the place to adjudicate whether or not that person
[in the prior incident] was a crackhead.’’ The court
rejected the defendant’s argument that its ruling
infringed on his right to present a defense; the court
noted that the defendant was permitted to present evi-
dence that the altercation occurred, when it occurred,
what he did during the altercation, and who was present
at the altercation. The court observed, as well, that the
defendant was free to testify with respect to what he
actually stated following the murder and what he did
during the altercation to explain the source of the blood
that had been observed on his sneaker. The court
observed that, although its earlier ruling had not pre-
cluded such inquiry, during cross-examination of prior
state witnesses, the defense had not explored the issue
of what the defendant did with respect to the third
party in the prior incident by, for example, inquiring as
to whether he had kicked the third party and whether
he had blood on his shoes immediately following the
prior incident. The court made clear that the defense
had ample opportunity to demonstrate that the defen-
dant was involved in a prior incident and that the third
party involved in that incident was the source of the
blood on his sneaker, not the victim. The court stated
that such a theory of defense ‘‘has not been impeded
in any way.’’
Subsequently, the defendant testified. With respect
to his participation in the victim’s murder generally,
the defendant testified that he was in the automobile
being driven by Vasquez, in which he, Garcia, and Mark
were passengers, when Mark observed the victim and
stated that he intended to rob him. He testified that,
when Vasquez went into the ‘‘bootleg’’ house, Mark
exited the automobile and that he followed him in an
attempt to stop him.7 He recalled that Mark proceeded
in the victim’s direction, he bent down and then got
back up, and then he ‘‘took off like a rocket’’ toward
the victim. He continued to follow Mark and then he
heard ‘‘something hitting the ground hard.’’ Before he
and Mark got back into Vasquez’ automobile, he
observed a person lying on the ground. The defendant
said that Mark stated that he thought he had ‘‘ ‘just
killed that guy,’ ’’ and that he replied to Mark, ‘‘why’d
you have to do that?’’
The defendant testified that once the four men in his
group arrived at the residence on Second Avenue, Ruiz
asked him about his sneaker. He testified that he replied
that ‘‘we just had . . . a fight [with] somebody up the
block.’’ He stated that, he was talking about ‘‘[t]he inci-
dent before we went to the bootleg spot, the individual
there that we all . . . jumped basically.’’ He stated that,
in his comment to Ruiz, he was not referring to the
victim. According to the defendant, he proceeded to
clean the blood off of his sneakers in a bathroom.
During his redirect examination, defense counsel
elicited testimony from the defendant with respect to
the prior incident. The defendant testified that he, Vas-
quez, Mark, and Garcia were exiting the residence on
Second Avenue and walking toward an automobile
when Vasquez had a conversation with a third party.
The defendant testified that he, Mark, and Garcia either
were inside of the automobile or entering the automo-
bile when Vasquez banged on a window and asked them
to help him. The three men exited the automobile and,
along with Vasquez, walked across Second Avenue and
confronted this third party by physically striking him.
The defendant testified that this occurred because the
third party had ‘‘done something to’’ his cousin, Vas-
quez. The defendant said that the third party was ‘‘a
good sized man,’’ who was approximately two inches
taller than him. He stated that he punched the third
party in the face with ‘‘one quick jab,’’ and then the third
party ran into the street. He stated that his associates
pursued the third party and, as they fought with him,
the third party fought back. The defendant testified that
using his right foot he kicked the third party in the face,
by the area of his nose and mouth, causing bleeding, and
that the blood subsequently observed on his sneaker
resulted from that conduct. He stated that, when he
saw blood on his sneakers, he stopped. The defendant
stated that after that incident occurred, he, Vasquez,
Mark, and Garcia ‘‘went back in the car and went to
the bootleg spot.’’ He stated that Vasquez used a certain
route to drive to the bootleg house because, at that
time, he was ‘‘riding around with drugs,’’ specifically,
crack cocaine.8
Following the verdict, the defendant filed a motion
for a new trial. One of the grounds raised was that
‘‘[t]he verdict of guilty rendered by the jury was the
result of the court’s decision to limit the defendant’s
ability to elicit testimony regarding the true source of
the blood on the defendant’s sneakers and properly
explain that the individual the defendant admitted to
kicking was, indeed, a crackhead and not the alleged
victim . . . .’’ In argument on the motion, defense
counsel stated that the defense was unfairly precluded
from demonstrating that the third party in the prior
incident was a crackhead and that this was made preju-
dicial by the state’s argument that the evidence of the
defendant’s statement that he kicked a crackhead
referred to the victim. In denying the motion as to this
ground, the court stated: ‘‘[T]here was testimony con-
cerning the source of the blood. What the court had
indicated . . . was that whether or not the individual
in that first incident was a crackhead, that this was not
the place to adjudicate that. And whether or not he was
a crackhead didn’t matter. The fact is it was the jurors
who were going to decide if they believed that the
source of the blood on the shoe was from the first
incident or from the second incident. They made their
determination as to the source of the blood on the shoe.
And the defendant did testify, and as a matter of fact,
he also demonstrated how he kicked the individual in
the first incident.’’
On appeal, the defendant claims that the court errone-
ously prohibited him from presenting evidence concern-
ing the prior incident, specifically, evidence ‘‘that the
prior incident victim was an identified and known
crackhead . . . .’’9 As he did before the trial court, he
argues that such evidence was relevant because it
‘‘made it more probable that [his] statement that he
kicked a crackhead in the head was in reference to
the prior incident and not, therefore, [the victim].’’ The
defendant argues that ‘‘the probative value [of the evi-
dence] was not outweighed by its prejudice, as it (1)
would not unduly arouse the jury’s emotions, hostility,
or sympathy; (2) would not create a side issue that will
unduly distract the jury from the main issues; (3) would
not create or consume an undue amount of time; and
(4) involved no issue of surprise to either side.’’ Addi-
tionally, as he did before the trial court, the defendant
asserts that the court’s evidentiary ruling violated his
due process right to establish a defense.
Well established principles guide our resolution of the
defendant’s claim. ‘‘The federal constitution require[s]
that criminal defendants be afforded a meaningful
opportunity to present a complete defense. . . . The
sixth amendment . . . [guarantees] the right to offer
the testimony of witnesses, and to compel their atten-
dance, if necessary, [and] is in plain terms the right to
present a defense, the right to present the defendant’s
version of the facts as well as the prosecution’s to the
jury so that it may decide where the truth lies. . . . The
defendant’s right to present a defense is not absolute,
however; [t]he right may, in appropriate cases, bow to
accommodate other legitimate interests in the criminal
trial process. . . . The accused does not have an unfet-
tered right to offer testimony that is incompetent, privi-
leged, or otherwise inadmissible under standard rules of
evidence.’’ (Citations omitted; internal quotation marks
omitted.) State v. Tilus, 157 Conn. App. 453, 474–75,
117 A.3d 920 (2015), appeal dismissed, 323 Conn. 784,
151 A.3d 387 (2016).
‘‘[A] defendant’s right to present a defense does not
include a right to present evidence that properly is
excluded under the rules of evidence. . . . The sixth
amendment to the United States constitution require[s]
that criminal defendants be afforded a meaningful
opportunity to present a complete defense. . . . The
defendant’s sixth amendment right, however, does not
require the trial court to forgo completely restraints on
the admissibility of evidence. . . . Generally, [a defen-
dant] must comply with established rules of procedure
and evidence in exercising his right to present a defense.
. . . A defendant, therefore, may introduce only rele-
vant evidence, and, if the proffered evidence is not
relevant, its exclusion is proper and the defendant’s
right is not violated. . . .
‘‘Relevant evidence is evidence that has a logical ten-
dency to aid the trier in the determination of an issue.
. . . One fact is relevant to another if in the common
course of events the existence of one, alone or with
other facts, renders the existence of the other either
more certain or more probable. . . . Evidence is irrele-
vant or too remote if there is such a want of open and
visible connection between the evidentiary and princi-
pal facts that, all things considered, the former is not
worthy or safe to be admitted in the proof of the latter.
. . . The trial court has wide discretion to determine
the relevancy of evidence and [e]very reasonable pre-
sumption should be made in favor of the correctness
of the court’s ruling in determining whether there has
been an abuse of discretion. . . . [A]buse of discretion
exists when a court could have chosen different alterna-
tives but has decided the matter so arbitrarily as to
vitiate logic, or has decided it based on improper or
irrelevant factors.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Rivera, 169 Conn. App.
343, 379–80, 150 A.3d 244 (2016), cert. denied, 324 Conn.
905, A.3d (2017).
In general terms, the events that transpired during the
prior incident involving the defendant, Vasquez, Mark,
Garcia, and a third party, were not material to an under-
standing of the events surrounding the victim’s death.
In light of certain evidence presented by the state, how-
ever, the prior incident was relevant to the jury’s assess-
ment of the state’s case. When the issue was raised
initially, defense counsel stressed that he wished to
introduce evidence concerning the prior incident in
order to explain the source of the blood that was
observed on the defendant’s sneaker following the vic-
tim’s death. The court’s ruling afforded the defendant
a full opportunity to attribute the source of the blood
to the prior incident, but it did not permit the defendant
to introduce evidence that the third party was known
to be a ‘‘crackhead.’’ The defendant availed himself of
this opportunity by presenting evidence with respect
to many details of the prior incident, including when it
occurred, what transpired, who was involved, and why
the defendant acted in the violent manner that he did.
The defendant presented ample evidence that he kicked
the third party in the head and that this conduct, moti-
vated by his desire to help Vasquez, was the source of
the blood on his sneaker.
Throughout the trial, however, defense counsel also
made clear that the defense had a right to present evi-
dence to provide necessary context for the defendant’s
statement that he had kicked a ‘‘crackhead.’’ It hardly
can be disputed that the state presented evidence of
the defendant’s highly incriminatory statement in this
regard as evidence that he had kicked the victim and,
thus, was criminally liable for his death. Although the
defendant, through his testimony, provided context for
the statement that he made to Ruiz and made clear that
he had not referred to the victim, additional evidence
with respect to whether the defendant and his associ-
ates referred to the third party as a ‘‘crackhead,’’ if
believed by the jury, would have made it less likely that
the defendant’s statement was an admission that he
had kicked the victim.
‘‘ ‘Relevant evidence,’ ’’ which is generally admissible,
‘‘means evidence having any tendency to make the exis-
tence of any fact that is material to the determination
of the proceeding more probable or less probable than
it would be without the evidence.’’ Conn. Code Evid.
§§ 4-1, 4-2. The proffered testimony from Garcia, Vas-
quez, and the defendant, that the third party was a
‘‘crackhead’’ and that the prior incident occurred inci-
dent to a botched drug sale by Vasquez to the third
party, tended to make it more likely than it would be
without that evidence that the defendant’s reference to
having kicked a ‘‘crackhead’’ referred to the third party.
It is clear from a review of the court’s many rulings
with respect to the matter that it determined that pre-
senting the proffered evidence would have risked con-
fusing the issues properly before the jury and creating
a factual dispute with regard to a collateral matter. We
recognize that ‘‘[r]elevant evidence may be excluded if
its probative value is outweighed by the danger of unfair
prejudice or surprise, confusion of the issues, or mis-
leading the jury, or by considerations of undue delay,
waste of time or needless presentation of cumulative
evidence.’’ Conn. Code Evid. § 4-3. In light of the proba-
tive value of the evidence in terms of providing context
for the defendant’s incriminatory statement, we are not
persuaded that its probative value would have been
outweighed by a risk of confusing the jury with respect
to a collateral matter or that the presentation of the
evidence would have amounted to a waste of time.
The court’s ruling already had opened the door for the
defense to elicit a great deal of testimony concerning
the prior incident. In light of the other evidence, it is
difficult to see how permitting evidence with respect
to a few additional details concerning the alleged drug
deal involving the third party and Vasquez would have
unduly burdened or confused the jury in its proper
evaluation of the evidence and the issues before it.
Thus, we are persuaded that the court’s ruling reflected
an abuse of discretion. The ruling, which precluded the
defendant from presenting admissible evidence to rebut
an important aspect of the state’s case, infringed upon
his right to present a defense.
‘‘As with all improper evidentiary rulings of constitu-
tional proportion, we now must consider whether the
exclusion of the evidence was harmless beyond a rea-
sonable doubt. . . . Whether such error is harmless in
a particular case depends [on] a number of factors,
such as the importance of the witness’ testimony in the
prosecution’s case, whether the testimony was cumula-
tive, the presence or absence of evidence corroborating
or contradicting the testimony of the witness on mate-
rial points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the
prosecution’s case. . . . Most importantly, we must
examine the impact of the evidence on the trier of fact
and the result of the trial. . . . If the evidence may
have had a tendency to influence the judgment of the
jury, it cannot be considered harmless.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Wright,
320 Conn. 781, 823–26, 135 A.3d 1 (2016). ‘‘An improper
evidentiary ruling is subject to harmless error analysis,
and if the impropriety is constitutional in nature the
state has the burden of proving that the error was harm-
less beyond a reasonable doubt.’’ State v. Ruocco, 151
Conn. App. 732, 751, 95 A.3d 573 (2014), aff’d, 322 Conn.
796, 144 A.3d 354 (2016).
As our foregoing discussion reflects, there were many
other facts admitted into evidence concerning the prior
incident and assault on the third party. Even in the
absence of the proffered evidence that the defendant
and his associates had referred to the third party as a
‘‘crackhead,’’ it is highly likely that the jury would have
inferred from the facts in evidence that the third party
was engaged in illicit drug related activity with Vasquez.
Addressing the issue directly, the defendant testified
that in his statement to Ruiz, in which he referred to
having kicked a crackhead, he was referring to the third
party and not the victim. He went on to testify that he,
in fact, had kicked the third party and not the victim.
The defendant drew the very inference that he wanted
the jury to draw. This testimony was bolstered by the
evidence that Vasquez was in possession of crack
cocaine at the time of the prior incident and that the
third party had ‘‘done something to’’ Vasquez. Moreover,
there was no evidence that the victim in the present
case was a crack addict or that he owed money to
anyone. In fact, the evidence suggested that the defen-
dant and his cohorts did not know the victim, but that
his murder was a tragic crime of opportunity. Against
this evidentiary backdrop, we are not persuaded that
the added details concerning the prior incident that the
court excluded from the evidence would have affected
the jury’s assessment of the defendant’s statement that
he had kicked a ‘‘crackhead,’’ let alone provided a ten-
dency to influence the judgment of the jury.
In evaluating harm, we are mindful that the defendant
was afforded great latitude in exploring the prior inci-
dent and that, even absent the evidence at issue, he
was able to provide a great deal of context for his
statement to Ruiz. Also, we are persuaded by the
strength of the state’s case. The state presented ample
evidence that the defendant was present at the scene
of the crime and that he had an opportunity to commit
the crimes at issue. The state presented evidence that
the defendant confessed to his role in the crime, having
admitted that he, in fact, kicked the victim in the head
during Mark’s assault. His incriminatory statements
were bolstered by evidence from the crime scene, as
well as the defendant’s admission that he had blood on
his sneaker following the victim’s murder. Also, there
was evidence that the defendant was conscious of his
guilt by means of his expressions of regret for his role
in the crime, cleaning his sneaker, and secreting the
victim’s belongings. There was evidence that his state-
ment to the police was motivated, in part, by a desire
on his part to ‘‘come clean’’ for his role in the victim’s
murder. In light of the foregoing evidence, we conclude
that the court’s evidentiary error was harmless beyond
a reasonable doubt.
II
Next, the defendant claims that the court violated
his right to cross-examination by limiting the scope of
his cross-examination of a state’s witness. We disagree.
By way of factual background, we observe that the
testimony of George Tirado, who was a detective with
the Waterbury Police Department at the time of the
events at issue, was a central part of the state’s case.
The state presented testimony that, on November 28,
2010, the defendant voluntarily spoke with Tirado and
provided a signed written statement to him in which
the defendant implicated himself in the crimes of which
he was convicted. As discussed previously in this opin-
ion, at trial, the defendant disputed the accuracy of his
statement, asserting that several matters in the state-
ment were untrue and that the statement did not com-
pletely reflect what he stated to Tirado. Also, Tirado
testified about what transpired during the interview and
what the defendant stated.
At the time of trial, the defense indicated that, pursu-
ant to § 6-7 of the Connecticut Code of Evidence, it
intended to impeach Tirado, who was no longer a mem-
ber of the Waterbury Police Department, by means of
his felony conviction on April 19, 2013, of one count of
conspiracy to make false statements to the Federal
Elections Commission and to defraud the United States.
Also, defense counsel stated that, under § 6-6 (b) of the
Connecticut Code of Evidence, the defense intended
to impeach Tirado by means of two ‘‘nonconviction
matters’’ that related to an assessment of his credibility.
With respect to the first matter, defense counsel stated
that it related to a scheme employed by Tirado, in his
business, by which he inflated an employee’s paycheck
by $500 per week and, subsequently, ‘‘received those
funds in cash or nonmonies that were not disclosed on
his tax return . . . .’’ When the court asked if this was
a fact or an allegation, defense counsel stated that he
had a good faith belief that it was a fact. Defense counsel
stated: ‘‘The basis for my belief is that the federal gov-
ernment, in the investigation of Mr. Tirado, in that inves-
tigation they discerned and disclosed that Mr. Tirado
had conducted himself in this activity. As an attorney,
I was . . . one of the counsel for the codefendants, I
have personal knowledge of the information contained
therein.’’ Defense counsel went on to state that the
information was contained in a sentencing memo-
randum.
Defense counsel stated: ‘‘The other specific act of
misconduct is contained in the same document filed by
the government after the federal government did an
extensive investigation.’’ With respect to this miscon-
duct, defense counsel stated that Tirado, who had an
ownership interest in a store that sold tobacco prod-
ucts, had instructed an employee to dilute the tobacco
product sold to customers, without notifying them, in
order to reap additional profits.
The prosecutor responded that Tirado had challenged
the facts set forth in the sentencing memorandum on
which the defense relied. Defense counsel replied that
he had reviewed that filing by Tirado, but stood by the
government’s allegations. Defense counsel stated that,
although he had personal knowledge of certain facts,
he was bound by a court order not to disclose the
documents on which such knowledge was based.
Defense counsel argued that the two instances of mis-
conduct were admissible to show a lack of veracity on
the part of Tirado. The court expressed its reservations
about permitting inquiry on the basis of allegations and
good faith beliefs, not adjudicated facts.
The court ruled that inquiry into Tirado’s conviction
was permitted by § 6-7 of the Connecticut Code of Evi-
dence. With respect to the other misconduct, the court
stated: ‘‘[T]he basis for [counsel’s] good faith belief
comes from documents and/or information that cannot
be disclosed, so the court has no way of making an
assessment in terms of the basis for the good faith
belief. No one else is apprised of that information. . . .
It seems to be analogous to the presentence investiga-
tion report that’s in the state [practice], but there’s a
memorandum of sentencing . . . I believe the term you
used was memorandum of sentencing, and contained
in the memorandum of sentencing is the information
concerning the pay . . . and the instructions concern-
ing how to dilute the tobacco came from recordings or
other information that cannot be disclosed.’’ The court
went on to observe that defense counsel recognized
that Tirado disputed what was in the sentencing report,
but did not have a copy of Tirado’s filing in this regard.
The court stated that, under these circumstances, it
would not permit the inquiry into the two acts of mis-
conduct that did not result in a conviction.
During Tirado’s subsequent trial testimony, defense
counsel elicited that he was no longer a police officer
and that he had been convicted of conspiracy to make
a false statement to the Federal Elections Commission
and to defraud the United States. At length, defense
counsel cross-examined Tirado with respect to the
events that transpired when the defendant met with
him and provided a statement, as well as inquiring into
whether the statement contained Tirado’s version of
the facts and whether it was complete. During its
charge, the court drew the jury’s attention to the evi-
dence that Tirado had been convicted of a crime. The
court instructed the jury that the ‘‘criminal record . . .
bears only on the witness’s credibility.’’
‘‘The legal standards governing the review of alleged
violations of a criminal defendant’s sixth amendment
right to cross-examine witnesses are well established.
The sixth amendment to the [United States] constitution
guarantees the right of an accused in a criminal prosecu-
tion to confront the witnesses against him. . . . The
primary interest secured by confrontation is the right
to cross-examination . . . . Indeed, if testimony of a
witness is to remain in the case as a basis for conviction,
the defendant must be afforded a reasonable opportu-
nity to reveal any infirmities that cast doubt on the
reliability of that testimony. . . .
‘‘However, [a] defendant is . . . bound by the rules
of evidence in presenting a defense. . . . Although
exclusionary rules of evidence cannot be applied mech-
anistically to deprive a defendant of his rights, the [fed-
eral] constitution does not require that a defendant be
permitted to present every piece of evidence he wishes.
. . . In analyzing the defendant’s claims, we first review
the trial court’s evidentiary rulings. Our standard of
review for evidentiary claims is well settled. To the
extent [that] a trial court’s admission of evidence is
based on an interpretation of the Code of Evidence,
our standard of review is plenary. . . . We review the
trial court’s decision to admit [or exclude] evidence, if
premised on a correct view of the law, however, for an
abuse of discretion.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. D’Amato, 163 Conn. App.
536, 553, 137 A.3d 38, cert. denied, 321 Conn. 909, 136
A.3d 643 (2016).
‘‘If, after reviewing the trial court’s evidentiary rul-
ings, we conclude that the trial court properly excluded
the proffered evidence, then the defendant’s constitu-
tional claims necessarily fail. . . . If, however, we con-
clude that the trial court improperly excluded certain
evidence, we will proceed to analyze [w]hether [the]
limitations on impeachment, including cross-examina-
tion, [were] so severe as to violate [the defendant’s
rights under] the confrontation clause of the sixth
amendment . . . .’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Davis, 298 Conn. 1, 11, 1
A.3d 76 (2010).
‘‘A witness may be asked, in good faith, about specific
instances of conduct of the witness, if probative of
the witness’ character for untruthfulness.’’ Conn. Code
Evid. § 6-6 (b) (1). ‘‘The right to cross-examine a witness
concerning specific acts of misconduct is limited in
three distinct ways. First, cross-examination may only
extend to specific acts of misconduct other than a fel-
ony conviction if those acts bear a special significance
upon the [issue] of veracity . . . . Second, [w]hether
to permit cross-examination as to particular acts of
misconduct . . . lies largely within the discretion of
the trial court. . . . Third, extrinsic evidence of such
acts is inadmissible. . . .
‘‘In order to comport with the constitutional stan-
dards embodied in the confrontation clause, the trial
court must allow a defendant to expose to the jury facts
from which [the] jurors, as the sole triers of fact and
credibility, could appropriately draw inferences relating
to the reliability of the witness. . . . We have empha-
sized in numerous decisions, however, that the confron-
tation clause does not give the defendant the right to
engage in unrestricted cross-examination. . . . A
defendant may elicit only relevant evidence through
cross-examination. . . . The court determines
whether the evidence sought on cross-examination is
relevant by determining whether that evidence renders
the existence of [other facts] either certain or more
probable.’’ (Citations omitted; internal quotation marks
omitted.) State v. Vere C., 152 Conn. App. 486, 504–505,
98 A.3d 884, cert. denied, 314 Conn. 944, 102 A.3d
1116 (2014).
Here, the court’s ruling to exclude the proffered
inquiry was based on its determination that the defense
had not made a sufficient showing to demonstrate that
the prior acts of misconduct were, in fact, material in
that they tended to demonstrate Tirado’s character for
untruthfulness. Defense counsel set forth the basis of
his good faith belief; the representations made by
defense counsel were based upon an unsubstantiated
sentencing memorandum in an unrelated proceeding.
Counsel’s representations reflected that the govern-
ment’s allegations against Tirado had not been adjudi-
cated to any extent, and, in fact, that they had been
challenged by Tirado and, thus, were unproven. The
court observed that counsel stated that, at that time,
he was unable to provide the court with a complete
basis for his good faith belief.10 Thus, beyond expressing
his personal belief in the accuracy of what appeared
in the memorandum, defense counsel set forth indeter-
minate proof with respect to his belief that Tirado had
been untruthful. Such indeterminate proof was a sound
basis upon which to exclude the inquiry. See State v.
Annulli, 309 Conn. 482, 496, 71 A.3d 530 (2013). The
defendant is unable to demonstrate that the court’s
evidentiary ruling reflected an abuse of discretion and,
thus, his constitutional claim fails.11
III
Next, the defendant claims that the court improperly
instructed the jury with respect to accessorial liability
in the course of its instructions concerning the murder
count. The state urges us to conclude that the claim is
not justiciable. We agree with the state.
‘‘Mootness raises the issue of a court’s subject matter
jurisdiction and is therefore appropriately considered
even when not raised by one of the parties. . . . Moot-
ness is a question of justiciability that must be deter-
mined as a threshold matter because it implicates [a]
court’s subject matter jurisdiction. . . . We begin with
the four part test for justiciability established in State
v. Nardini, 187 Conn. 109, 445 A.2d 304 (1982). . . .
Because courts are established to resolve actual contro-
versies, before a claimed controversy is entitled to a
resolution on the merits it must be justiciable. Justicia-
bility requires (1) that there be an actual controversy
between or among the parties to the dispute . . . (2)
that the interests of the parties be adverse . . . (3) that
the matter in controversy be capable of being adjudi-
cated by judicial power . . . and (4) that the determi-
nation of the controversy will result in practical relief
to the complainant. . . . [I]t is not the province of
appellate courts to decide moot questions, discon-
nected from the granting of actual relief or from the
determination of which no practical relief can follow.
. . . In determining mootness, the dispositive question
is whether a successful appeal would benefit the plain-
tiff or defendant in any way.’’ (Internal quotation marks
omitted.) Heisinger v. Dillon, 168 Conn. App. 467,
475–76 n.12, 147 A.3d 1123, cert. denied, 323 Conn.
940–41, 151 A.3d 387 (2016). ‘‘[J]usticiability comprises
several related doctrines, namely, standing, ripeness,
mootness and the political question doctrine, that impli-
cates a court’s subject matter jurisdiction and its com-
petency to adjudicate a particular matter. . . . A case
that is nonjusticiable must be dismissed for lack of
subject matter jurisdiction.’’ (Internal quotation marks
omitted.) Janulawicz v. Commissioner of Correction,
310 Conn. 265, 270, 77 A.3d 113 (2013).
The defendant’s claim of instructional error involves
the crime of murder. Although he was charged with
murder and found guilty of that crime by the jury, he
does not stand convicted of that crime because the
court vacated that conviction. See footnote 1 of this
opinion. Accordingly, there is no actual controversy
with respect to the claim, the matter is not capable of
being adjudicated by this court, and a determination of
the claim will not result in any practical relief to the
defendant. Accordingly, the claim is not justiciable and
we must dismiss this portion of the appeal.
IV
Next, the defendant claims that the court improperly
failed to comply with the jury’s request to have certain
testimony played back. We disagree.
The following additional facts underlie this claim.12
During jury deliberation, the jury sent a note to the
court with several questions. In responding to the jury’s
inquiries, the court stated: ‘‘[I]f you end up requesting
testimony, indicate if it’s the entire testimony, some-
thing on direct, something on cross. Just be specific.
The other thing, though, would be during the playback,
if whatever it is that you’re discussing, you hear the
answer and there isn’t any need for the rest of it, I’ll
ask the foreperson to raise his hand . . . so that we
know we’ve reached a point where whatever it is you
needed to resolve among yourselves has been
resolved.’’ Defense counsel affirmatively stated that it
did not have any objection to the court’s instruction.
Later that day, the jury sent a note to the court
requesting, as relevant to the present claim, playback
with respect to certain subjects testified to by Garcia,
Ruiz, and Vanessa Olivencia, a friend of Hernandez.13
The jury was summoned to the courtroom. While it was
listening to the playback of Ruiz’ testimony, the jury
indicated that it had heard enough, and the jurors sig-
naled affirmatively when asked if ‘‘everyone [was] in
agreement that you’ve reached a point where whatever
the question you had has been answered.’’ While it was
listening to the playback of Olivencia’s testimony, the
jury indicated that it had heard enough. Again, when
the court asked the jury if its dispute had been resolved,
all jurors responded affirmatively. The record reflects
that the jury heard playback of Garcia’s testimony,14
but it does not reflect that the jury stopped playback
or that the court inquired with respect to that playback.
Outside of the presence of the jury, defense counsel
objected that, with respect to the playback of Garcia’s
testimony, the jury had heard only portions of his direct
examination by the state and not the defense’s cross-
examination. Then, the courtroom clerk indicated on
the record: ‘‘As I brought the jurors back, they explained
to me that they misunderstood your question, did you
get what you needed. They got what they wanted from
the direct portion on that issue, but they did want to
hear the cross-examination.’’ The clerk stated that he
instructed the jurors to convey their concerns to the
court in a written note. Later that day, the jury sent a
note to the court stating: ‘‘Can we make sure we hear
direct and cross for each item.’’ The court had the court-
room clerk seek clarification from the jury, and the
court stated that the jurors had expressed their desire
to continue deliberations, that they did not wish to hear
further playback, and that they would send out a note
if anything was required. Before the court dismissed
the jury at the end of the day, the court, referring to
the earlier playback request, informed the jury that it
would be ready to play back the ‘‘remaining areas that
we didn’t reach,’’ and that the jury should ‘‘just let us
know’’ if and when it wanted to hear the playback the
next day.
The following morning, the jury resumed its delibera-
tions. The jury sent a note to the court unrelated to its
earlier playback request. The court asked the parties if
they had resolved any issues with respect to locating
the playback requested the day prior, and the parties
agreed that this was now ready to be played for the
jury, as the court stated, ‘‘in the event they request it
again.’’ Later, defense counsel objected to the way that
the court addressed the jury’s request for playback the
prior day. Defense counsel stated that the court had
played only the direct examination testimonies of Gar-
cia and Ruiz. Defense counsel argued that ‘‘no matter
what,’’ the jury should be required to hear the remainder
of their testimony.
The court responded: ‘‘When the jurors came out, I
indicated to them that you two had agreed on identifying
what you believed were the portions in the transcript
that applied. I also indicated that if whatever it is that
they [wanted] hadn’t been resolved, if when they hear
the playback, if they got the answer they could indicate
such. There were certain points at which the foreperson
raised his hand, indicated they got what they were look-
ing for. I inquired of all the jurors and they indicated
they agreed.
‘‘At the end of all of that, you did put on the record
that what was read . . . was the direct and redirect and
not the cross, that was then agreed to. And I indicated to
you that if they do request that they still need to have
the information from that note, then we will address
it. We were here after I discharged them yesterday, I
went through the listing of the areas where that may
be the issue. There was an agreement as to those places,
because whether or not you’re aware of it, there are
times when jurors have sent out a note and request
something, and before we could even get it set up, they
have said never mind.
‘‘So I would not assume what you have assumed,
because they said they’ve resumed. When I had the
clerk inquire, given the note indicating that they misun-
derstood my question, and that they were asking for
direct and cross. But I also had the clerk inquire and
they said they want to continue working. So as it stands
now, I will not treat it any differently than any note
where there’s been a request, and then the jurors have
continued deliberating, and they make a decision as to
whether or not they still need that information. We’ve
identified it in the event that they do, and then we’ll
take it from there, if they indicate that they actually do
need to revisit it.’’ After defense counsel disagreed with
the court’s statement that the parties had reached an
agreement with respect to matters that were played
back for the jury a day earlier, the court reiterated that
the jurors ‘‘will be the ones to determine whether or
not they’re confused and whether or not they have any
request concerning the initial request [for playback].’’
The record reflects that the jury did not request fur-
ther playback. The jury sent the court a note that stated:
‘‘Based on the judge’s question, at this time we do not
need to hear the additional testimony that we
requested yesterday.’’
The defendant raised the issue once more among
several grounds raised in his motion for a new trial.
Defense counsel’s argument focused on what it per-
ceived to be both unfairness in presenting only examina-
tion by the state as well as unreasonable delay in
locating requested playback. Defense counsel stated
that the jury had been ‘‘tainted’’ because it had not
heard the cross-examination testimony. In rejecting the
claim, the court stated: ‘‘So if I understand your argu-
ment then, what was improper was [that the jury] made
a request and during the time that it took to identify
where the information was to accommodate the
request, that somehow [the jury] shouldn’t have been
allowed to continue deliberating or somebody should
have said something to [the jury] about the time that
it was taking to locate [the requested playback]. And
then I did indicate to [the jurors] to alert the court
when they had the information they needed, and my
recollection is that during the initial playbacks they did
. . . when we had reached what they needed. They did
do so. And then the next day I indicated, given the
second request, that we had then located the remainder,
and they could then let the court know if they still
needed it, and they said they didn’t.’’15 Defense counsel
argued that the jury appeared to be ‘‘bewilder[ed]’’ by
what had transpired, but the court stated that it interpre-
ted the jury’s conduct as an indication that it no longer
needed to hear additional playback.
As he did before the trial court, the defendant argues
that the court ‘‘abused its discretion in the manner it
allowed the evidentiary read backs to occur’’ in that it
failed to provide the jury with the playback it requested,
presented the jury with a ‘‘skewed’’ playback of testi-
mony, and ‘‘did nothing to act in a more expeditious
manner to try and rectify the problem that it had
created.’’
Practice Book § 42-26 provides: ‘‘If the jury after retir-
ing for deliberations requests a review of certain testi-
mony, the jury shall be conducted to the courtroom.
Whenever the jury’s request is reasonable, the judicial
authority, after notice to and consultation with the pros-
ecuting authority and counsel for the defense, shall
have the requested parts of the testimony read to the
jury.’’16 ‘‘[T]he trial court has discretion to grant a jury’s
request to review testimony. . . . What portions of the
record, if any, will be submitted to the jury for [its]
consideration is a matter of sound judicial discretion.
. . . In determining whether the trial court has abused
its discretion, the unquestioned rule is that great weight
is due to the action of the trial court and every reason-
able presumption should be given in favor of its correct-
ness . . . . [T]he exercise of [the trial court’s]
discretion will not constitute reversible error unless it
has clearly been abused or harmful prejudice appears
to have resulted.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) State v. Cancel, 275
Conn. 1, 11–12, 878 A.2d 1103 (2005).
A somewhat similar claim was raised and rejected
by our Supreme Court in State v. Rivera, 223 Conn. 41,
612 A.2d 749 (1992).17 In Rivera, the defendant claimed
‘‘that it was unreasonable as a matter of law for the
jury to request, and the court to order, a replay of [a
witness’] direct examination but not her cross-examina-
tion. He further argues that once the jury requested to
rehear [another witness’] testimony, the trial court was
obligated to replay her cross-examination, despite the
jury’s withdrawal of its request prior to rehearing any
of her testimony.’’ Id., 48. In rejecting the claim, the
Supreme Court concluded ‘‘that the trial court acted
within its discretion when it allowed the jury to rehear
only that testimony that the jury indicated that it wished
to rehear. We cannot conclude, as the defendant seems
to advocate, that the trial court was required as a matter
of law to replay more of the witnesses’ testimony than
the jury believed it needed to rehear in order to reach
a verdict.’’ Id.; see also State v. Harris, 227 Conn. 751,
771, 631 A.2d 309 (1993) (‘‘[u]nless the court was con-
vinced that an injustice would result, it was not, despite
any agreement, required to force the jury to listen to
what it did not want to hear’’).
Here, the judge explained the reason for any delay
in responding to the jury’s requests for playback. We
observe that the jury’s initial request related to several
subject matters and the testimony of several witnesses.
It appears that any delay was incident to the court
complying with the dictate of Practice Book § 42-26 to
respond to the playback request ‘‘after notice to and
consultation with the prosecuting authority and counsel
for the defense . . . .’’
In its initial instructions concerning playback, the
court instructed the jury to be specific in its request
for playback. It appears from the record that, at least
with respect to the playback of the testimony of Ruiz
and Olivencia, the court stopped the playback when,
on the basis of the jury’s communications, it believed
that the jury did not want additional playback. The
record does not reflect that such communication
occurred with respect to the playback of Garcia’s tes-
timony.
When the court learned that the jury wished to hear
cross-examination testimony for these witnesses, it
immediately asked counsel to locate the portions of the
testimony at issue. Once these portions were identified,
the court communicated to the jury that it would con-
tinue the playback at the jury’s request. Thereafter, the
court learned that the jury wished to continue in its
deliberations. The court learned this through the jury’s
communications with the courtroom clerk as well as
the jury’s note indicating that it had determined that
the additional playback was not necessary.
There may have been a miscommunication between
the jury and the court with respect to the jury’s initial
request for playback. This appears to have been com-
pounded by the jury’s conduct in stopping playback, as
it had been instructed to do when it believed that further
playback was no longer necessary. There is no indica-
tion, however, that the court attempted to disregard
the jury’s request or that it did not take immediate steps
to present the jury with what had been requested. Such
circumstances do not give rise to a claim of unfairness.
Moreover, before the jury reached its verdict, the court
communicated to the jury that it was ready to provide
additional playback. When the jury stated that it was
not necessary, the court, in its discretion, properly
viewed the matter as an abandoned request for play-
back. We are not persuaded that the court acted in
abuse of its discretion by failing to compel the jury to
listen to the additional playback in light of the jury’s
unambiguous communication that it did not need to
consider such playback, nor do the circumstances lead
us to conclude that an injustice resulted. Although the
defendant urges us to conclude that the court acted
unfairly, the record does not remotely suggest that the
court attempted to thwart the jury’s initial request. It
appears that the court complied with our rules of prac-
tice with respect to playback. Accordingly, we reject
the defendant’s claim.
V
Finally, the defendant claims that the court improp-
erly denied his request to suppress a written statement
that he provided to the police.18 We disagree.
Prior to the commencement of the trial, the defendant
moved to suppress all oral and written statements con-
cerning the present case that he had provided to the
Waterbury Police Department. The defendant argued,
inter alia, that his statements were provided without
the assistance of counsel during a custodial interroga-
tion by the police, and that he was not advised of,
did not understand, and did not waive his rights under
Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966). He argued that any Miranda
advisement or claimed waiver occurred after his inter-
rogation. Moreover, the defendant argued that his state-
ments were not knowingly and voluntarily made, but
that any statements were the result of violent threats
made by Tirado. In opposition to the motion, the state
argued that the defendant was not in police custody at
the time that he provided his statements and that he
knowingly and voluntarily waived his Miranda rights
before making them.
The court held a hearing on the motion to suppress
during which it heard testimony from Tirado, Christo-
pher Corbett, and David McKnight, all of whom were
officers with the Waterbury Police Department. The
court also heard testimony from the defendant and Ber-
nard Barile, a psychologist who had examined the
defendant.
In its memorandum of decision denying the motion
to suppress, the court found the following facts: ‘‘[The
victim] was killed on November 2, 2010. The defendant’s
name came up during the investigation and Detective
Tirado went to a residence on Thanksgiving as he
wanted to talk to him. The defendant was not there
so Detective Tirado left his card with his name and
phone number.
‘‘The defendant called Detective Tirado on Friday,
the day after Thanksgiving, and again on Saturday
because he wanted to meet with Detective Tirado and
explain his version of events. On Sunday, November
28, 2010, the defendant went to the police department
at approximately 9 a.m., accompanied by his aunt and
uncle. He called Detective Tirado, who was at home,
to let him know he was at the police department.
‘‘Shortly before 11 a.m., Detective Tirado called Cap-
tain Corbett to come to the police department, since
Captain Corbett was supervising the investigation.
Detective Tirado also called Detective [Steve] Jeanetty
and asked him to take the defendant to an interview
room. Detective Tirado arrived at the police department
close to 11 a.m., and Captain Corbett arrived at approxi-
mately 12 noon.
‘‘Detective Tirado entered the interview room, intro-
duced himself, and informed the defendant that he
would be talking to him about the night [the victim]
was killed. Detective Tirado then left the room and
retrieved the [Miranda] rights cards. He asked the
defendant if he wanted anything and the defendant said
he was all set. Detective Tirado advised the defendant
of his Miranda rights at 11:10 a.m.
‘‘The defendant was eager to talk to Detective Tirado
because he wanted to help solve the case. He believed
his version of the events of November 2, 2010, would
show his involvement and identify [Mark] as the person
who killed [the victim].
‘‘During the time at the police station, the defendant
was not handcuffed or placed in any restraints. Detec-
tive Tirado left the room three times and each time the
door was left open and no one else entered the room.
Detective McKnight, Detective Jeanetty, Captain Cor-
bett, and Lieutenant [Frank Capozzi] were also present
in the detective bureau. Detective McKnight and Cap-
tain Corbett were in their offices and did not hear any
yelling or arguing from the interview room. Further-
more, Detective Tirado was not armed.
‘‘Prior to giving his version of events, the defendant
disclosed that he had completed the 11th grade, he
could read and write, and he communicated in English.
Detective Tirado had him read the rights form out loud
and he said he understood them.
‘‘Detective Tirado then asked what happened and the
defendant gave his version of what he did and what
Mark did on November 2, 2010. Detective Tirado had
the defendant explain and offer details. After approxi-
mately one hour, the defendant agreed to give a writ-
ten statement.
‘‘At 12:01 p.m., prior to typing the statement, Detec-
tive Tirado again advised the defendant and he again
waived his rights. Detective Tirado then proceeded with
the typed statement. Detective Tirado stated that he had
the defendant read the statement and he had nothing to
add or to change so he got Captain Corbett and Detec-
tive McKnight to notarize and witness the defen-
dant’s signature.
‘‘Captain Corbett had the defendant read a portion
of the statement. He stopped him when he was comfort-
able [that] the defendant could read, and had him initial
and sign it. Detective McKnight then signed as a witness.
Detective McKnight said he heard the defendant read
[aloud] without any problems. He did not stumble.
‘‘At the time of the interrogation, Detective Tirado
did not know the details of the killing until the defendant
provided them. The codefendant [Mark] had not yet
been interviewed. The defendant provided the informa-
tion that implicated him in the death of [the victim].
The officers secured an arrest warrant and the defen-
dant was placed under arrest.
‘‘Captain Corbett and Detective Tirado described the
defendant as well groomed, appropriately dressed, and
calm. No one detected any odor of alcohol and the
defendant said he had not taken any drugs.
‘‘While at the police department, the defendant did
not ask for a lawyer and he didn’t refuse to answer any
questions. To the contrary, he wanted to tell his version
of events because he believed he was identifying the
killer and he would not be held responsible for the
death [of the victim].
‘‘The defendant’s version of what happened at the
police department differs significantly from that of the
three officers who testified. He agrees he went there
voluntarily with his aunt and uncle to tell his version
of events, and he waited two hours for Detective Tirado.
He stated Detective Tirado took him to the interview
room, not Detective Jeanetty. He agreed Detective Tir-
ado did leave the room and left the door open. He also
stated Detective Tirado was calm at first, then became
frustrated, threatened to slap him, called him a liar, and
moved his chair so close to him [that] their knees
touched.
‘‘The defendant also said [that] while Tirado was in
the room he tried to leave, and Tirado told him to sit
and threatened to get Detective McKnight to keep him
in the room. However, there was no attempt to leave
when Tirado left the room with the door open. The
defendant said he was a pretty big guy at the time and
he was much bigger than Detective Tirado. He also
stated [that] Detective Tirado took him out of the room
to a larger computer room and had him look at Google
Maps and photos of the deceased. Detective Tirado
testified [that] there is no need to take anyone out of
the room to look at Google Maps, as he can do so on
the computer in the room.
‘‘Detective McKnight, who was working at his desk
in the hallway outside the interview room, never saw
the defendant leave the room, but he did see Detective
Tirado come out a couple of times. The defendant
described the room and the location of a TV set he
saw. However, Detective McKnight stated the defendant
could not have seen a TV set because the view is blocked
by a pillar/columns in the center of the room.
‘‘Additionally, the defendant denied reading both
rights forms, initialing the forms and the statement, but
he did acknowledge his signature on each. Furthermore,
he stated [that] he signed all three at the same time at
the end of the statement. First he said he didn’t read
it, then he said Detective Tirado read it to him, and he
also said he never saw Detective McKnight or Captain
Corbett in the interview room.
‘‘To credit the defendant’s version of events would
require the court to discredit the testimony of Detective
Tirado, Detective McKnight, and Captain Corbett.’’
(Footnotes omitted.) The court went on to make find-
ings with respect to Barile, who examined the defen-
dant. Ultimately, the court found in relevant part: ‘‘The
testimony of Dr. Barile shows that any limitations the
defendant may have had [in terms of his intellectual
capacity] did not prevent him from knowingly, intelli-
gently, and voluntarily waiving his Miranda rights.’’
After setting forth applicable law, the court con-
cluded that the defendant was not in police custody.
In relevant part, the court stated: ‘‘In this case, on
Thanksgiving day, the defendant was informed by fam-
ily members that Detective Tirado wanted to talk to
him. The next day, Friday, and again on Saturday, the
defendant contacted Detective Tirado to try to meet
with him. On Sunday, he went to the police department,
accompanied by his aunt and uncle. He again called
Detective Tirado and waited two hours for his arrival
at the station. Detective Jeanetty took the defendant to
an interview room to wait for Detective Tirado.
‘‘When Detective Tirado arrived in the interview
room, he introduced himself and explained [that] offi-
cers had talked to several other people and [that] they
were looking for his side of the story, his version of
events the night [the victim] was killed. Detective Tir-
ado then left the room and got the rights card and
waiver form.
‘‘The defendant was not placed in handcuffs or any
other restraints. Detective Tirado was unarmed and
. . . McKnight and Corbett were engrossed in their
work outside [of] the interview room. They did not enter
until needed to notarize and witness the defendant’s
signature, and there is no evidence either was armed.
The defendant’s aunt and uncle were in the police
department and the defendant was free to leave if he
wanted to do so. Furthermore, he had been advised he
could stop answering questions at any time.
‘‘The defendant gave an oral statement and then con-
sented to give a written statement. He was again advised
prior to the written statement. The defendant was eager
to talk as he believed his version of events would iden-
tify [that] the codefendant [Mark] was the person who
killed [the victim].
‘‘Under the totality of these circumstances, the defen-
dant was not in custody.’’
The court went on to conclude that, even if the defen-
dant made his statement to the police while in police
custody, the police had administered Miranda warn-
ings and the defendant had waived his rights prior to
the time that he was questioned. In relevant part, the
court found: ‘‘At the time the defendant gave the state-
ment, he was twenty-five years old and had completed
the 11th grade. He said in the statement that he had
four children and at the hearing he stated [that] he
had six. He said he read the statement, didn’t read
the statement, and Detective Tirado read the statement
to him.
‘‘Detective Tirado gave the Miranda warnings shortly
after meeting the defendant as they both knew why he
was there. The defendant acknowledged [that] he has
a larceny conviction and had been arrested and booked
a number of times in New York. Tirado had no difficulty
communicating with the defendant and the defendant
knew what was going on. He could read and understand
English and his fifth grade teacher taught him to read
and gave him tricks to help with reading and compre-
hension. He expressed [that] he wanted to help find
the person who killed [the victim]. Detective Tirado
was unarmed and no one threatened the defendant or
made any promises to him. Furthermore, he was not
under the influence of alcohol or other drugs, or on
any medication. What the defendant described as
threats was not credible.
‘‘Dr. Barile’s testimony established [that] the defen-
dant’s IQ was in the 80’s and the normal range is 90-
100. However, Dr. Barile also stated [that] he read the
[Miranda] warnings to the defendant, and he seemed
to understand them and the waiver of rights form. The
defendant did not have problems with reading or writing
English. Dr. Barile acknowledged this was his first eval-
uation of this type, but also concluded [that] the defen-
dant was not susceptible or open to influence, had a
defensively narcissistic personality, and an attitude of
entitlement. Although the defendant said he had a head
injury, there was no evidence to support that claim.
‘‘The state has proved by a preponderance of the
evidence [that] the defendant voluntarily, knowingly,
and intelligently waived his right to remain silent.’’
On appeal, the defendant challenges the court’s con-
clusion that he was not in police custody at the time
that he made his statement to the police.19 Also, the
defendant challenges the court’s conclusion that his
statement was knowingly and voluntarily made. ‘‘Our
standard of review of a trial court’s findings and conclu-
sions in connection with a motion to suppress is well
defined. A finding of fact will not be disturbed unless
it is clearly erroneous in view of the evidence and plead-
ings in the whole record . . . . [W]here the legal con-
clusions of the court are challenged, we must determine
whether they are legally and logically correct and
whether they find support in the facts set out in the
memorandum of decision . . . .’’ (Internal quotation
marks omitted.) State v. Clark, 255 Conn. 268, 279, 764
A.2d 1251 (2001).
‘‘Normally, [w]hen a suspect is taken into custody,
the Miranda warnings must be given before any interro-
gation takes place. . . . The primary purpose of the
Miranda warnings is to ensure that an accused is aware
of the constitutional right to remain silent before mak-
ing statements to the police. . . . Two threshold condi-
tions must be satisfied in order to invoke the warnings
constitutionally required by Miranda: (1) the defendant
must have been in custody; and (2) the defendant must
have been subjected to police interrogation. . . . The
defendant bears the burden of proving custodial interro-
gation.’’ (Internal quotation marks omitted.) State v.
Smith, 321 Conn. 278, 288, 138 A.3d 223 (2016). The
record reflects, and the state acknowledges, that the
defendant was subjected to police interrogation.
‘‘In order to establish that he was entitled to Miranda
warnings, a defendant must show that he was in custody
when he made the statements and that he made the
statements in response to police questioning. . . . In
assessing whether a person is in custody for purposes of
Miranda, the ultimate inquiry is whether a reasonable
person in the defendant’s position would believe that
there was a restraint on [his] freedom of movement of
the degree associated with a formal arrest. . . . Any
lesser restriction on a person’s freedom of action is not
significant enough to implicate the core fifth amend-
ment concerns that Miranda sought to address. . . .
‘‘[We have] set forth the following nonexclusive list
of factors to be considered in determining whether a
suspect was in custody for purposes of Miranda: (1)
the nature, extent and duration of the questioning; (2)
whether the suspect was handcuffed or otherwise phys-
ically restrained; (3) whether officers explained that
the suspect was free to leave or not under arrest; (4)
who initiated the encounter; (5) the location of the
interview; (6) the length of the detention; (7) the number
of officers in the immediate vicinity of the questioning;
(8) whether the officers were armed; (9) whether the
officers displayed their weapons or used force of any
other kind before or during questioning; and (10) the
degree to which the suspect was isolated from friends,
family and the public.’’ (Citations omitted; internal quo-
tation marks omitted.) State v. Arias, 322 Conn. 170,
177, 140 A.3d 200 (2016).
In his challenge to the court’s conclusion with respect
to custody, the defendant appears to rely merely on
his own version of what transpired during the police
interrogation. The defendant maintains that Tirado not
only threatened him but prevented him from leaving
the interrogation room. The court, however, found the
defendant’s version of events not to be credible. The
defendant ‘‘encourages [this] court to review the tran-
script to make its own determination of the reliability
of the witnesses, [and] in doing so, bear in mind that
Tirado was the only person convicted of a felony at the
time of their testimony.’’
The defendant has not demonstrated that the court’s
findings of fact are clearly erroneous on the basis of
the evidence and pleadings in the whole record. The
court’s findings with respect to what transpired during
the interrogation are supported by the testimony of the
police officers. To the extent that the defendant invites
us to reevaluate the credibility determination that was
central to the court’s decision, we decline to do so. ‘‘On
a motion to suppress, [i]t is the function of the trier to
determine the credibility of witnesses and the weight
to be given their testimony.’’ (Internal quotation marks
omitted.) State v. Douros, 90 Conn. App. 548, 554, 878
A.2d 399, cert. denied, 276 Conn. 914, 888 A.2d 85 (2005).
To the extent that the defendant also challenges the
court’s denial of his motion to suppress on the ground
that his statement was not voluntary, as he did at trial,
we observe that the court did not expressly address
this claim in its decision. Instead, the court concluded
that the defendant was not in custody and that he had
voluntarily waived his Miranda rights. Nonetheless, we
may dispose of the voluntariness claim on the ground
that the arguments in support of it reflect that it merely
is an invitation for this court to reevaluate the credibility
determinations made by the trial court with respect to
his testimony as well as that of the police officers who
testified at the suppression hearing. Among other argu-
ments, the defendant refers to portions of the officers’
testimony, which he deems to be contradictory, in an
attempt to demonstrate that the officers did not testify
truthfully. Additionally, the defendant urges us to inter-
pret Barile’s testimony to require a finding that he had
‘‘significant intellectual limitations’’ that left him unable
to voluntarily make a statement after being ‘‘interro-
gated for nearly four hours by a hostile Tirado, who
was willing to threaten [him] to stop him from leaving.’’
‘‘The standard for voluntariness of a Miranda waiver
is the same as the standard for voluntariness of a confes-
sion. . . . Irrespective of Miranda . . . any use in a
criminal trial of an involuntary confession is a denial
of due process of law. . . . In order to be voluntary a
confession must be the product of an essentially free
and unconstrained choice by the maker. . . . [T]he test
of voluntariness is whether an examination of all the
circumstances discloses that the conduct of law
enforcement officials was such as to overbear [the
defendant’s] will to resist and bring about confessions
not freely self-determined . . . . Furthermore, the
scope of review is plenary on the ultimate question of
voluntariness, but the trial court’s findings regarding the
circumstances surrounding the defendant’s questioning
and confession are findings of fact that will not be
overturned unless they are clearly erroneous.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Azukas, 278 Conn. 267, 289–90, 897 A.2d 554 (2006).
The court’s findings with respect to the defendant’s
Miranda waiver, therefore, are relevant to the present
claim with respect to the voluntariness of the confes-
sion. The court made clear findings that the police inter-
view was not coercive. The defendant’s will was not
overborne. Instead, motivated by a desire to implicate
Mark in the victim’s murder, he knowingly and volunta-
rily sought Tirado for the purpose of making the state-
ment that he did. The court found that the defendant
traveled to Connecticut to meet with Tirado, having
called him multiple times. The court found that the
defendant was calm and responsive to questioning, and
did not make any attempt to stop the interview. The
court found that the defendant, who read, spoke, and
understood English, was compliant in reviewing the
written statement and in signing it before a witness and
a notary. Put otherwise, the court plainly rejected the
defendant’s testimony that coercion or threats had
played a role in his confession. Moreover, the record
reflects that the court carefully considered Barile’s testi-
mony and reasonably found that the defendant did not
have an intellectual disability that impaired his ability
to voluntarily make a statement to the police. The defen-
dant has not undermined our confidence in the correct-
ness of the court’s findings, which are amply supported
by the testimony of the police officers. On the basis of
those findings, we conclude that the defendant’s confes-
sion was freely and voluntarily made.20
The appeal is dismissed with respect to the defen-
dant’s claim that the jury was improperly instructed as
to the murder count; the judgment is affirmed in all
other respects.
In this opinion the other judges concurred.
1
Additionally, the jury found the defendant guilty of murder in violation
of General Statutes (Rev. to 2010) § 53a-54a (a). At the time of sentencing,
the court, pursuant to State v. Miranda, 145 Conn. App. 494, 508, 75 A.3d
742 (2013) (vacatur is proper remedy for double jeopardy violation caused
by cumulative homicide convictions arising from killing of single victim),
aff’d, 317 Conn. 741, 753–54, 120 A.3d 490 (2015), reasoned that it could not
properly impose a sentence with respect to the murder and felony murder
counts under which the defendant was found guilty. Accordingly, the court
vacated the defendant’s conviction of murder. With respect to the remaining
counts, the court imposed a total effective sentence of fifty years imprison-
ment, with a mandatory sentence of twenty-five years.
2
In addition to other evidence of the defendant’s criminal liability, the state
presented evidence that, on November 28, 2010, the defendant voluntarily
provided an incriminatory statement to the Waterbury Police Department.
Therein, the defendant admitted that he and an accomplice, Michael Mark,
pursued the victim for the purpose of robbing him, Mark struck the victim
in the head with a rock, the defendant ‘‘stomped on the [victim’s] head,’’
and Mark left the scene in possession of items taken from the victim, who
remained motionless on the ground following the attack.
3
In a separate trial, Mark was found guilty of murder, felony murder, two
counts of robbery in the first degree, conspiracy to commit robbery in the
first degree, and tampering with evidence. See State v. Mark, 170 Conn.
App. 241, 245, 247, A.3d , cert. denied, Conn. , A.3d
(2017).
4
With respect to his comments concerning the victim, there was evidence
that Mark stated, ‘‘I’m gonna rob that nigga,’’ and that he ‘‘was going to rob
his ass.’’ (Internal quotation marks omitted.)
5
Later, Vasquez drove Mark, Vanessa Vasquez and Sonia Hernandez to
the crime scene because Mark, believing that ‘‘it would be evidence,’’ wanted
to locate and hide the hard object that he used to kill the victim. At the
scene, Mark exited the automobile for the purpose of locating and hiding
the object at issue. Hernandez, upon observing the victim, became upset
and started screaming and crying.
6
Earlier, at a suppression hearing in this case related to the admissibility
of the defendant’s statement to the police, the defendant testified in relevant
part that, prior to the incident involving the victim on Baldwin Street, he
was involved in a physical altercation with a third party who had taken
drugs from Vasquez without paying for them. The defendant referred to the
third party as a ‘‘crackhead’’ and stated that, during the altercation that
also involved Vasquez, Mark, and Garcia, he had kicked this third party in
the head.
7
The state presented a signed, written statement that the defendant pro-
vided to the Waterbury Police Department several weeks following the
events at issue. The events described in the statement differed in several
respects from the defendant’s trial testimony. The defendant explained these
differences by denying that he made certain statements that appeared in
the written statement or by stating that other statements that he did make
did not appear in the statement. In particular, the defendant testified that,
contrary to what appeared in the statement, he told the police that the blood
on his sneaker resulted from the prior incident on Second Avenue. Moreover,
contrary to what appeared in the statement, the defendant denied that he
ever stated that he had kicked the victim.
The statement reflects that the defendant told the police that he voluntarily
followed Mark’s invitation to rob the victim because he had robbed people
in the past and did not ‘‘think much of it.’’ The statement reflects that Mark
struck the victim with a rock before ransacking him. The defendant stated
that he observed the victim lying motionless on the ground while Mark was
striking him in the head. The defendant stated that he ‘‘stomped on the
dude’s head. I only did that one time. I know he was down already, but it
was just a normal reaction.’’ He thought that Mark ‘‘was an asshole for
hitting [the victim] like that with the rock.’’ The statement reflected that,
after the four men left the scene, they went to the residence on Second
Avenue. At that time, the defendant was asked about blood on his white
Nike sneakers. He stated that he cleaned his sneakers in the bathroom.
8
The evidence concerning the alleged prior incident was a subject of the
parties’ closing arguments. As relevant to our discussion of this claim, we
note that during the state’s principal closing argument, the prosecutor
referred to the defendant’s written statement to the police, in which he
stated that he had kicked the victim in the head and later had cleaned blood
from his sneaker. Additionally, the prosecutor referred to the evidence that,
following the victim’s murder, the defendant stated to Ruiz that ‘‘he kicked
the crackhead in the head.’’
During the defense’s closing argument, defense counsel drew the jury’s
attention to the testimony concerning the alleged prior incident. Defense
counsel referred to the defendant’s testimony that, after he kicked the third
party, he saw blood and then left the scene. In relevant part, defense counsel
stated: ‘‘[Vasquez], when he mentions kicking . . . testified [that] it’s possi-
ble that [the blood on the defendant’s sneaker] came from that incident.
[Garcia] testified, it’s possible [that] the blood on that sneaker came from
that incident. [The defendant] told you unequivocally that’s exactly where
the blood came from in that incident.’’ Defense counsel directly addressed
the state’s argument that any references made by the defendant to having
kicked ‘‘a crackhead’’ referred to the prior incident and not the victim.
Defense counsel referred to the fact that there was evidence that the victim
did not have ‘‘crack in his system.’’ Defense counsel stated: ‘‘That we do
know is that the prior incident involved something that [Vasquez] did wrong.
It involved something that [Vasquez] had a problem with that guy. It involved
a guy who had crack cocaine on him, Manuel Vasquez. [The defendant] told
you, when I said I kicked a crackhead, it was the first guy. He came and
he showed you how he kicked the guy, the first guy, the one he said was
a crackhead. That’s the statement from Joan Ruiz. That’s the only statement
that anybody talks about at Second Avenue that [the defendant] makes.’’
Apparently suggesting that it was inconsistent with a finding that the defen-
dant had kicked the victim, defense counsel went on to draw the jury’s
attention to Ruiz’ testimony that there was blood on only the side of the
defendant’s sneaker.
During the state’s rebuttal argument, the prosecutor referred to Garcia’s
testimony that the defendant told Ruiz ‘‘that he had kicked a crackhead in
the head.’’ Additionally, the prosecutor referred to Ruiz’ testimony that,
following the murder, Mark told her ‘‘that they had killed a crackhead and
took his backpack.’’
9
The state argues that this court should decline to review the defendant’s
claim because it is inadequately briefed. In support of this argument, the
state asserts that the defendant has violated Practice Book § 67-4 (d) (3)
by failing to include in his brief the complete factual and procedural history
underlying the claim, which included numerous discussions between the
court and counsel, as well as rulings made by the court. We agree with
the state that the defendant failed to provide this court with a complete
explication of the relevant arguments and rulings that were made at trial,
a failure that certainly was highlighted by the completeness of the state’s
brief. Despite this deficiency with respect to the presentation of the appeal,
the defendant’s brief included enough of a recitation and discussion of the
underlying facts and references to the record that we are able adequately
to ascertain the nature of the defendant’s claim and the rulings on which
it is based. Accordingly, we will review the claim.
10
It does not appear that counsel, at a later time, attempted to provide
additional support for his belief.
11
The defendant argues that the court’s error in restricting his cross-
examination of Tirado ‘‘was further compounded when the court allowed
the [state] to solicit improper information regarding the defendant without
a good faith basis or without a proper legal basis.’’ Beyond observing that
the defendant has not provided any analysis for his claim of ‘‘compounded’’
error, we observe that, because the defendant has not adequately presented
to this court any claim of error with respect to a ruling permitting the state
to inquire with respect to specific instances of misconduct involving the
defendant, such a claim is not before us. See Practice Book § 67-4.
12
The state urges us to decline to review this claim on the ground that
the defendant has not adequately briefed the claim. The state argues that
the defendant’s recitation of facts in support of the claim does not satisfy
Practice Book § 67-4 (d) (5), that the defendant did not separately identify
and analyze the claim in compliance with Practice Book § 67-4 (d), but
incorporated his discussion and analysis of this claim with the claim we
addressed in part III of this opinion, and that the claim is inadequately
analyzed because the analysis does not surpass abstract assertion.
The defendant’s recitation of necessary facts and citations to the record
is not as complete as that provided by the state, and, inexplicably, the
defendant has intertwined this claim with the unrelated claim of instructional
error that we addressed in part III of this opinion. Making matters even
more confusing, the ‘‘Statement of the Issues’’ set forth in the defendant’s
brief does not refer either to his third claim or the present claim, but to a
prosecutorial impropriety claim that is not part of this appeal. Nonetheless,
from the defendant’s statement of the joint claim set forth in the table of
contents and in the body of the defendant’s brief, we are sufficiently able
to identify that the claim has been made. From the factual basis recited,
which, we observe for the second time in this opinion, is not as complete
as that provided by the state, we are able to discern the factual basis of
the claim. Also, guided by section headings in the brief, we are able to
identify those portions of the brief in which this claim is analyzed. Although
the analysis of the claim is conclusory in nature, it nevertheless includes
the defendant’s view of the relevant events that transpired at trial, and it
includes a standard of review and a discussion of case law that the defendant
believes is persuasive. Although the analysis of this claim does not exemplify
the spirit of our rules of practice, in light of the foregoing, we will reach
the merits of the claim.
13
The jury’s note in the present case is not entirely clear, an observation
which helps to explain any miscommunication between the jury and the
court with respect to playback. With respect to the witnesses at issue, the
note describes topics concerning which the jury wished to hear playback.
It appears that, with respect to the playback of the testimonies of Garcia
and Olivencia, the jury did not specify whether it desired playback of direct
examination, cross-examination, or both. With respect to Ruiz’ testimony,
the jury set forth the topics concerning which it wished to hear playback
and, nearby, wrote ‘‘entire testimony.’’
14
The jury note requested playback with respect to ‘‘what [Garcia] saw
from the time they parked until they get back to 2nd Ave[nue] [and] the
kitchen,’’ testimony from Garcia about the ‘‘Time Frame’’ of the ‘‘First Fight,’’
and testimony from Garcia about ‘‘going through the bag.’’
15
With respect to defense counsel’s argument that the court’s response
to the jury’s request for playback was not sufficiently prompt, the court
recognized that there had been a delay in responding to the various requests
by the jury because it ‘‘got each [of the attorneys] involved’’ in identifying
what had been requested and there was a disagreement concerning what
was necessary. The court stated that ‘‘it took a little time to reach an
agreement as to where in the testimony you agreed that that’s what the
jurors happened to be requesting.’’
16
In State v. Gould, 241 Conn. 1, 12, 695 A.2d 1022 (1997), our Supreme
Court stated that Practice Book § 42-26 ‘‘generally provides for the rereading
of testimony in open court under circumstances . . . in which the court
reporter must read back trial testimony from stenographic notes or locate
and play back a recorded voice tape of such testimony on a tape player.’’
17
We recognize that, in contrast with the jury’s request for playback in
the present case, in Rivera the jury explicitly requested playback of only
the witness’ direct examination. State v. Rivera, supra, 223 Conn. 48; see
also footnote 13 of this opinion.
18
The state argues, and we agree, that the defendant’s appellate claim
appears to pertain solely to the admissibility of his written confession.
Beyond discussing the circumstances surrounding the making of his written
statement, the defendant does not analyze any statements that he made
orally to Tirado, or Tirado’s testimony with respect to such oral statements.
Nonetheless, we observe that our analysis with respect to the issues of
custody and the voluntariness of the defendant’s confession apply with equal
force to the admissibility of the written confession and any related oral
statements made by the defendant during his police interview.
19
We will resolve the defendant’s challenge to the court’s conclusion with
respect to custody mindful that, even if the defendant could prevail with
respect to this conclusion, he would not necessarily be entitled to relief. In
this appeal, the defendant has not adequately raised a claim with respect
to the court’s conclusion that he waived his Miranda rights before he gave
his written statement to the police.
20
Having resolved the merits of the defendant’s claim, we observe that,
even if we were we to conclude that the court was required to suppress
the defendant’s written statement to the police, we would not overturn the
judgment from which he appeals. This is because, to a large extent, the
written statement was cumulative of other evidence that is not challenged
in this appeal, specifically, Tirado’s testimony that the defendant made many
incriminatory verbal statements to him during his interrogation, including
that he ‘‘stomp[ed] on the victim’s head’’ when he came upon Mark striking
the victim with a rock. See footnote 17 of this opinion.