Opinion · Supreme Court of Connecticut
State v. Colon
State v. Colon, 272 Conn. 106 (Conn. 2004)
- Type
- Opinion
- Court
- Supreme Court of Connecticut
- Jurisdiction
- Connecticut
- Date
- 2004-12-28
- Topic
- litigation
holding that court did not abuse discretion in concluding that anonymous letter to newspaper editor did not establish good faith basis for cross-examining witness regarding his alleged prior misconduct | noting that the rule allowing allocution and the death penalty sentencing statutes were both silent regarding a defendant's right to allocution before the death penalty jury and relying on the legislature's specificity for the procedures in the capital sentencing scheme | noting that the rule allowing allocution and the death penalty sentencing statutes were both silent regarding a defendant’s right to allocution before the death penalty jury and relying on the legislature’s specificity for the procedures in the capital sentencing scheme | rejecting a capital defendant’s claim that the denial of allocution before a death penalty jury violated equal protection | examining common-law right of allocution to determine extent of right of allocution provided by Practice Book provision | examining common-law right of allocution to determine extent of right of allocution provided by Practice Book § 43-10 [3] | rejecting invitation to reconsider decisions holding death penalty constitutional because court was not convinced that previous decisions were wrong | rejecting claim that state constitution provides for right of allocution at capital sentencing hearing | rejecting claim that state constitution provides for right of allocution at capital sentencing hearing | declining to review defen- dant’s state constitutional claims because, inter alia, he had failed to analyze Geisler factors ‘‘separately and distinctly’’ | upholding exclusion of expert opinion when “[expert’s] answer would have been nothing more than speculation in that there was no foundation laid for the basis of his answer” | affirming exclusion of hearsay statement where similar statement already was before jury | rejecting constitutional challenge to instruction that reasonable doubt is “areal doubt, an honest doubt,” and a kind of doubt “that in the serious affairs that concern you, you would heed” [internal quotation marks omitted] | declining review because appellant failed to analyze Geisler factors "separately and distinctly" | examining "right to be heard" in sentencing phase as right to counsel | examining ‘‘right to be heard’’ in sentencing phase as right to counsel | when trial court reaches correct decision but on mistaken grounds, this court will sustain trial court’s action if proper grounds exist to support it | use of phrases such as “ ‘I would think’ ” does not always signify improper expression of personal opinion | “[Mjere departure from the courtroom does not, in and of itself, discharge a jury from its obligation to render continued service in a particular case.” | "[M]ere departure from the courtroom does not, in and of itself, discharge a jury from its obligation to render continued service in a particular case." | because proposed instruction was not accurate statement of law, trial court properly declined to give it | not improper for pros ecutor to characterize defendant’s testimony as he if based on evidence that would support inference that defendant was lying | “[o]nly in the most exceptional circumstances . . . will this court consider a claim that was not raised [in the trial court]” [internal quotation marks omitted] | “the authority of the trial court to reassemble the jury and the determination of whether the jury was discharged present questions of law over which our review is plenary” | failure to give requested accomplice charge not improper where evidence was insufficient that witness was accessory and court gave general instruction highlighting witnesses’ potential biases and motives | defendant is required to prove that death penalty statute violates eighth amendment beyond reason- able doubt | "the police had probable cause to arrest the defendant as a result of the statement of the victim's sister" who witnessed the crime | defen
Citator
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- 69 opinions
Opinion
TABLE OF CONTENTS
I. THE FACTS................. 131
II. GUILT PHASE ISSUES........... 135
A. Motion to Suppress Statements and Other Tangible Evidence....... 135
1. Entry into the Apartment at 418 Mill Street.............. 141
2. Illegal Seizure............ 148
B. Voir Dire of Prospective Jurors . . . 152
1. Granting of State’s Challenges for Cause................. 152
a. Venireperson J.B........... 158
b. Venireperson K.L........... 161
2. Restrictions on the Scope of Voir Dire.................. 165
a. Venireperson A.M.......... 167
b. Venirepersons J.C. and C.H..... 168
c. Venireperson R.L........... 171
d. Venirepersons J.J. and N.A..... 173
e. Venireperson S.P........... 177
C. Evidentiary Rulings.......... 179
1. Expert Testimony Regarding the Severity of the Victim’s Injuries. . 181
2. Admissibility of the Defendant’s Written Confession to the Police 188
3. Sustaining of Objection During Defense Counsel’s Closing Argument ................. 192
4. Admission of Lieutenant O’Leary’s Testimony.............. 194
5. Admission of Neighbor’s Testimony ................. 196
D. Additional Evidentiary Claims Implicating the Defendant’s Right to Present a Defense............. 197
1. Testimony Regarding the Defendant’s Escape from Police Custody 199
2. Evidence Relating to the Defendant’s Mother’s Felony Conviction 202
3. Exclusion of Evidence of Character for Untruthfulness....... 205
4. Exclusion of Opinion Testimony Concerning Lieutenant O’Leary’s Character for Untruthfulness . . . 209
5. Exclusion of the Statement that Virginia Quintero’s Aunt Had Given to the Police............. 211
6. Exclusion of the Testimony of the Defendant’s Expert Witness .... 213
8. Exclusion of Certain Testimony of Virginia Quintero’s Attorney. . . . 216
9. Cumulative Error.......... 218
E. Jury Instructions............ 218
1. Manslaughter by Omission Instruction .................. 219
2. Accessory Liability Instruction . . 226
3. Instruction Regarding the Defendant’s Attempt to Provide Medical Assistance to the Victim...... 229
4. Instructions Regarding Reasonable Doubt................. 232
F. Prosecutorial Misconduct..... 234
1. The Assertion of Contradictory Theories with Respect to the Victim’s Death.............. 240
2. Questioning Regarding Privileged Attorney-Client Communications 244
3. Prosecutorial Misconduct During Closing and Rebuttal Arguments 247
G. Subpoenas Duces Tecum and the State’s Motion to Quash...... 252
1. Order Compelling Defense Counsel to Turn Over State Police Reports................ 253
2. The Trial Court’s Granting of the State’s Motion to Quash and Its Refusal to Conduct an In Camera Inspection of Certain Documents 260
3. Invitation to Overrule Stale v. Harris................... 266
4. Review of the Privileged Records for Brady Material......... 266
H. Sufficiency of the Evidence .... 269
A. Jury Instructions Regarding the Weighing of the Aggravating and Mitigating Factors............. 274
B. The Trial Court’s Acceptance of the Jury’s Second, Corrected Verdict . . 277
1. Authority of the Trial Court to Recall the Jury Prior to Discharge 281
2. Scrivener’s Error.......... 291
3. Double Jeopardy.......... 293
4. Cruel and Unusual Punishment. . 300
C. Right of Allocution........... 302
1. Right of Allocution under the Common Law, General Statutes and Rules of Practice.......... 305
2. Federal Constitutional Right of Allocution.............. 313
3. State Constitutional Right of Allocution................. 319
D. Evidence of Prior Misconduct .... 327
E. Sufficiency of the Evidence of the Existence of the Aggravating Factor 335
F. Mitigation Evidence.......... 338
1. Evidence of the Defendant’s Childhood and His Demeanor Toward a Friend................ 338
2. Shackles and Handcuffs...... 341
G. Other Jury Instructions During the Penalty Phase............. 342
1. Instructions Regarding Juror Participation in the Weighing Process 343
2. Instructions Regarding § 53a-46a (h) (2)................ 348
3. Instructions Regarding the Requirement of Unanimity with Respect to the Finding of the Existence of Mitigating Factors .... 349
5. Incomprehensibility of the Trial Court’s Instructions......... 354
6. Instructions on the Standard of Reasonable Doubt.......... 354
7. Instructions on the Need for Unanimity Regarding the Defendant’s Sentence............... 355
H. The Special Verdict Form....... 358
IV. JUDICIAL MISCONDUCT CLAIMS .... 362
A. Expression of Impatience During the Penalty Phase............. 363
B. Alleged Improprieties During the Guilt Phase............... 365
V. MISCELLANEOUS CONSTITUTIONAL CLAIMS.................... 370
A. Constitutionality of the “Facts and Circumstances” Language of § 53a-46a (d).................. 370
B. Vagueness Challenge to § 53a-46a (i) (4).................... 376
C. The Trial Court’s Denial of the Defendant’s Request for a Hearing to Consider Racial Disparities in the Administration of the Death Penalty 377
D. Constitutionality of General Statutes (Rev. to 1997) § 53a-54b (9)..... 379
E. Constitutionality of Connecticut’s Death Penalty Statutes........ 382
The defendant, Ivo Colon, appeals from the judgment imposing a sentence of death rendered
I
THE FACTS
The jury reasonably could have found the following facts. In July, 1998, the defendant was residing with his girlfriend, Virginia Quintero, and two of her three children, namely, the victim and her sister, Crystal Tellado, in Quintero’s apartment located on the second floor of 633 South Main Street in Waterbury. On July 17,1998, the defendant left the apartment and returned several hours later with food for Quintero and the two children. After Quintero tried unsuccessfully to get the victim to eat, the defendant attempted to feed the victim by stuffing food in her mouth, which apparently caused the victim to vomit. Quintero then removed the victim’s clothing and proceeded to take her to the bathroom. Before Quintero and the victim made it to the bathroom, however, the defendant grabbed the victim and pulled her into the bathroom. Although Quintero attempted to accompany the defendant and the victim, the defendant prevented Quintero from entering the bathroom by closing the door and blocking it with a chair. Thereafter, the defendant, while standing immediately outside the shower, grabbed the victim by her hair and began hitting the victim’s head against the shower wall. After the victim fell to the shower floor as a result of having her head hit the shower wall, the defendant pulled the victim up by her hair and hit her head against the shower wall again. After the defendant hit the victim’s head against the shower wall several times, the victim began bleeding and became unresponsive. Once the defendant realized that the victim was unresponsive, he allowed Quintero into the bathroom and splashed cold water on the victim. The defendant then brought the victim
Shortly thereafter, the defendant’s mother arrived at Quintero’s apartment. Upon observing the victim, the defendant’s mother drove the victim and Quintero to the emergency room at Saint Mary’s Hospital (hospital) in Waterbury. Before leaving, the defendant told Quintero and his mother to tell hospital personnel that the victim was injured when she fell while playing with her sister. The defendant then took the victim’s sister, who, at that time, was three years old, and went to his mother’s apartment at 418 Mill Street in Waterbury.
At the hospital, the victim was treated by Peter Jacoby, an emergency room physician, who pronounced the victim dead shortly after she arrived at the hospital. In addition to the victim’s injuries to her head, Jacoby noticed the existence of several bruises, scrapes, gouge marks, swelling and discoloration on various parts of the victim’s body, as well as evidence that the victim’s arm had been broken. When Quintero was asked what had happened to the victim, Quintero told hospital personnel that the injuries were a result of a fall. A subsequent autopsy revealed, however, that the cause of death was a subdural hematoma7 that resulted from blunt force trauma to the head.
On the basis of the circumstances surrounding the victim’s death, Jacoby directed hospital personnel to
The defendant was apprehended at his mother’s apartment and went to the police station for questioning. After several hours, the defendant gave both oral and written statements to the police in which he admitted to killing the victim. The defendant subsequently was charged with one count of capital felony and one count of murder. The trial court, Damiani, J., held aprobable cause hearing in accordance with article first, § 8, of the Connecticut constitution, as amended by article seventeen of the amendments,8 and General Statutes § 54-46a.9 The trial court, Damiani, J., found
Prior to trial, the defendant filed a motion to suppress certain statements that he had made to the police during the investigation of the victim’s death and tangible evidence that the police had seized without a warrant. After an evidentiary hearing, the trial court, D’Addabbo, J., denied the motion to suppress. The case then was tried to a jury, which found the defendant guilty of both capital felony and murder. Thereafter, at the conclusion of the penalty phase hearing, the jury found that the state had satisfied its burden of proving the existence of an aggravating factor, namely, that the crime had been committed in an especially heinous, cruel or depraved manner. See General Statutes (Rev. to 1997) § 53a-46a (i) (4). The jury also found that the defendant had satisfied his burden of proving the existence of one or more mitigating factors. The jury determined, however, that the aggravating factor outweighed the mitigating factor or factors and returned a special verdict reflecting that determination. The trial court merged the capital felony conviction and the murder conviction, the latter offense being a lesser included offense of the former offense, and rendered judgment in accordance with the jury’s special verdict, sentencing the defendant to death. This appeal followed. Additional facts will be set forth as necessary.
GUILT PHASE ISSUES A
Motion to Suppress Statements and Other Tangible Evidence
The defendant claims that the trial court improperly denied his motion to suppress (1) oral and written statements that he had given to the police, in which he admitted to killing the victim, and (2) other tangible property that the police had seized from his person, including two rings, a belt and a pair of shoes. Specifically, the defendant claims that the trial court improperly concluded that the entry by police into the apartment of the defendant’s mother at 418 Mill Street was justified under the emergency exception to the warrant requirement of the fourth amendment to the United States constitution. E.g., State v. Magnano, 204 Conn. 259, 266, 528 A.2d 760 (1987); see Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); see also State v. Geisler, 222 Conn. 672, 691, 610 A.2d 1225 (1992) (recognizing exception under state constitution). The defendant further claims that even if the emergency exception to the warrant requirement justified the entry into the apartment, the trial court improperly concluded that the defendant voluntarily had agreed to accompany the officers to the police station and contends, instead, that the police illegally seized him without a warrant or probable cause. We reject the defendant’s claim that the court improperly denied his motion to suppress.
The memorandum of decision of the trial court, D ’Adtdabbo, J., concerning the defendant’s motion to suppress contains the following relevant facts. “On July 17, 1998, [the victim] . . . was presented at [the hospital], At or about 7 p.m., members of the Waterbury
“With this information, [O’Leary] went to 418 Mill Street with other police personnel to locate [the defendant] and the other child, who was later learned to be [the victim’s sister]. A plan was established which sent [Detective Balnis] and . . . Wilson [to] the back door and . . . O’Leary, Officer Tony Olivera, [and] Officer Randolph Velez [to] the front door of the apartment. . . . Velez was and is Spanish speaking. . . . O’Leary’s testimony indicated that upon getting to the top floor of the apartment, he [had] heard a child crying and [had] heard someone running in the apartment. . . . O’Leary knocked on the door . . . [and received] no
“[Ricci] testified that the defendant’s demeanor was quiet and calm, and during the course of the time that the defendant was there he had eaten . . . and drank a soda. The police denied that the defendant [had been] abused or threatened while at the police station. . . . O’Leary was moving between the interviews of . . . Quintero and the defendant. At approximately 11 p.m., on July 17, 1998, [O’Leary] relayed to . . . Ricci that . . . Quintero had implicated the defendant in the homicide of [the victim], and [told Ricci] to convey that to the defendant. . . . Ricci testified that when pre
“The defendant then through . . . Velez orally stated how he had hurt the child .... Ricci and . . . Velez did not view the [victim’s] body at the hospital. The defendant was then handcuffed to the chair. . . .
“After the defendant gave the oral statement, [Ricci] reduced that statement to writing. The process utilized was that the defendant was advised of his rights pursuant to Miranda; these advisements were on the top of the statement. They were translated to the defendant in Spanish by . . . Velez. After each sentence of rights [was] read and translated to [the defendant], he initialed them ‘IC.’ Then . . . Ricci would ask questions, [Velez] would translate in Spanish to [the defendant], [the defendant] responded to Velez in Spanish and Velez translated in English to Ricci who typed it into the computer. . . . Velez viewed the statement as typed on the [computer] screen. When completed, [Velez] read the written statement in Spanish to [the defendant]. [The defendant] was asked if any changes should be made . . . [and] he responded no. [The defendant] was also asked if it was the truth [and] he responded yes. The original statement was signed by the defendant and [was] notarized by . . . O’Leary.”
The trial court’s memorandum of decision also notes that the defendant gave the police a second written statement in the early morning hours of July 18, 1998. The same process that the police utilized in taking the first statement was utilized in taking the second statement, namely, that: (1) Velez advised the defendant of his constitutional rights in Spanish and English; (2) the defendant waived those rights; (3) the defendant was presented with the statement form with the Miranda rights printed on top and they were read to him in Spanish; (4) Ricci then would ask the questions in
In rejecting the defendant’s claims, the trial court specifically credited O’Leary’s testimony that, before the police entered the apartment at 418 Mill Street, O’Leary had viewed the victim’s body at the hospital and noted the severe nature of the injuries that the victim had sustained, and that medical personnel had opined that Quintero’s explanation of the cause of the victim’s injuries was not plausible. The trial court also credited O’Leary’s testimony that he had received information that the victim’s sister was with the defendant at an unknown location after abruptly being taken from Quintero’s apartment, and that O’Leary had received inconsistent information about the defendant’s whereabouts. Moreover, the trial court credited O’Leary’s testimony that when he arrived at 418 Mill Street, he heard a child crying and an adult running around the apartment, and that there was no response to his knock and a verbal declaration that the police were at the door.
On the basis of its findings, the trial court concluded that, in light of the information known to O’Leary at the time of entry, it was reasonable for him to believe that an emergency existed, namely, that a child’s health or welfare was subject to imminent potential harm. Thus, the trial court found that the entry into the home was justified under the emergency exception to the warrant requirement.
The trial court also found that the defendant voluntarily agreed to accompany the police to the station for
1
Entry into the Apartment at 418 Mill Street
Our review of the defendant’s claim is governed by well established principles. “Under the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality. Wong Sun v. United States, [371 U.S. 471, 485, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)].” (Internal quotation marks omitted.) State v. Blackmun, 246 Conn. 547, 553, 716 A.2d 101 (1998). Thus, on appeal, we must determine whether the trial court properly concluded that the defendant’s statements and other evidence from the defendant’s person were not the product of any police illegality. In addition, “in reviewing a trial court’s ruling on the emergency doctrine, subordinate factual findings will not be disturbed unless clearly erroneous and the trial court’s legal conclusion regarding the applicability of the emergency doctrine in light of these facts will be reviewed de novo.” State v. Geisler, supra, 222 Conn. 694. “Conclusions drawn from [the] underlying facts must be legal
“[A] search conducted without a warrant issued upon probable cause is per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions. . . . Searches conducted pursuant to emergency circumstances are one of the recognized exceptions to the warrant requirement under both the federal and state constitutions. . . . [T]he fourth amendment does not bar police officers, when responding to emergencies, from making warrantless entries into premises and warrantless searches when they reasonably believe that a person within is in need of immediate aid. . . . The extent of the search is limited . . . [to] a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. . . . The police may seize any evidence that is in plain view during the course of the search pursuant to the legitimate emergency activities. . . . Such a search is strictly circumscribed by the emergency which serves to justify it . . . and cannot be used to support a general exploratory search.” (Citations omitted; internal quotation marks omitted.) State v. Blades, 225 Conn. 609, 617-18, 626 A.2d 273 (1993).
“The state bears the burden of demonstrating that a warrantless entry falls within the emergency exception. Mincey v. Arizona, [supra, 437 U.S. 390-91]. An objective test is employed to determine the reasonableness of a police officer’s belief that an emergency situation necessitates a warrantless intrusion into the home. . . . [The police] must have valid reasons for the belief that an emergency exception exists, a belief that must be
Moreover, as we have explained, “the emergency doctrine is rooted in the community caretaking function of the police rather than its criminal investigatory function. We acknowledge that the community caretaking function of the police is a necessary one in our society. [I]t must be recognized that the emergency doctrine serves an exceedingly useful purpose. Without it, the police would be helpless to save life and property, and could lose valuable time especially during the initial phase of a criminal investigation. . . . Constitutional guarantees of privacy and sanctions against their transgression do not exist in a vacuum but must yield to paramount concerns for human life and the legitimate need of society to protect and preserve life .... People v. Mitchell, supra, [39 N.Y.2d] 180.” (Citation omitted; internal quotation marks omitted.) State v. Blades, supra, 225 Conn. 619.
In Blades, we rejected the claim of the defendant, Ivan J. Blades, that the trial court improperly had denied his motion to suppress. See id., 624. In that case, the police had received several telephone calls from relatives of the victim who expressed concern about the victim’s whereabouts. Id., 620. The police also learned that the victim and Blades had been involved in a troubled marriage and that the victim’s mother believed
On appeal, Blades claimed that the trial court improperly had concluded that the emergency exception to the warrant requirement justified entry into the apartment. Id., 617. We concluded that, on the basis of “the empirical facts upon which the police acted at the time of the entry”; id., 621; it was reasonable for police to believe that the victim was in immediate need of aid, and, thus, they were justified in making the warrantless entry. See id. In so concluding, we explained that, “[i]n the cool morning of appellate review we will not ignore the heated passion of immediacy that was the essence of the anxious concerns about the victim’s safety and well-being during those nighttime hours.” Id.
In the present case, the trial court specifically credited the testimony of O’Leary that at or before the time of the entry, he had: (1) viewed the victim’s body and observed the nature and type of injuries that she had sustained; (2) discussed with Quintero the purported cause of those injuries; (3) discussed with hospital personnel their opinion that Quintero’s explanation of the victim’s injuries was not plausible; (4) received inconsistent information about the defendant’s whereabouts; and (5) received information that the defendant abruptly had taken the victim’s three year old sister. Moreover, once the police had arrived at 418 Mill Street, O’Leary heard a child crying and an adult running through the apartment. Furthermore, there was no response to the declaration that the police were present.
The defendant relies on our decision in State v. Geisler, supra, 222 Conn. 672, however, in claiming that the emergency exception applies only when the police have direct evidence that a person is in need of immedi
On appeal, the state claimed that the Appellate Court improperly concluded that the entry was not justified under the emergency exception to the warrant requirement. Id., 681. This court determined, however, that the facts known to the officers at the time of the entry reasonably could not have lead to the “conclusion that the driver might have suffered the type of injury that would require emergency aid.” Id., 695. This determination was based on the fact that the police had observed only minor damage to the car and on the fact that the only other evidence that an emergency existed was that the occupant of the house did not respond when the officers rang the doorbell and declared their presence. Id.
Second, we do not read Geisler to require direct evidence of an emergency situation, as the defendant claims. In Geisler, we merely explained that the officers reasonably could not conclude, on the basis of the facts known to them at the time of entry, that an emergency existed to such an extent that the officers could dispense with the necessity of obtaining a warrant supported by probable cause in accordance with the dictates of the fourth amendment. See id., 695-96. We therefore conclude that the trial court properly determined that the entry into the apartment at 418 Mill Street was justified by the emergency exception to the warrant requirement.12
Illegal Seizure
The defendant further claims that, upon entering the apartment, the police illegally seized him without a warrant or probable cause. Specifically, the defendant claims that, once inside the apartment, Velez immediately grabbed the defendant’s arm, and that such action constituted an illegal seizure. In response, the state contends that the seizure of the defendant was proper under the doctrine of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).13 We agree with the state.
“[I]n justifying [a] particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant that intrusion. Terry v. Ohio, supra, 392 U.S. 21 .... In determining whether a detention is justified in a given case, a court must consider if, relying on the whole picture, the detaining officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity. When reviewing the legality of a stop, a court must examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom.
. . . A recognized function of a constitutionally permissible stop is to maintain the status quo for a brief period of time to enable the police to investigate a suspected crime.’'' (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Lipscomb, 258 Conn. 68, 75-76, 779 A.2d 88 (2001); see also Adams
In addition, “[effective crime prevention and detection . . . [underlie] the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. Terry v. Ohio, supra, 392 U.S. 22. Therefore, [a]n investigative stop can be appropriate even where the police have not observed a violation because a reasonable and articulable suspicion can arise from conduct that alone is not criminal. ... In evaluating the validity of such a stop, courts must consider whether, in light of the totality of the circumstances, the police officer had a particularized and objective basis for suspecting the particular person stopped of criminal activity.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Lipscomb, supra, 258 Conn. 76.
We conclude that the seizure of the defendant, after the justified entry into the apartment, was permissible under Terry v. Ohio, supra, 392 U.S. 1. Velez grabbed the defendant’s arm to prevent the defendant from entering the bedroom in order to detain the defendant briefly and to maintain the status quo of the situation. In addition, in light of the nature of the emergency that justified the entry into the apartment, it is clear that the police officers were entitled to detain the defendant briefly to prevent him from entering another room in order to assess the extent of the emergency.14 Specifi
B
Voir Dire of Prospective Jurors 1
Granting of State’s Challenges for Cause
The defendant next claims that the trial court improperly granted the state’s challenges for cause with respect to three prospective jurors, J.B., K.L. and K.S.,17 on the basis of their views about the death penalty. The
We begin our analysis of the defendant’s claims with a brief review of the governing law. The sixth amend
Furthermore, “[o]ur constitutional and statutory law permit each party, typically through his or her attorney, to question each prospective juror individually, outside the presence of other prospective jurors, to determine the venireperson’s fitness to serve on the jury. Conn. Const., art. I, § 19; General Statutes § 54-82f;28 Practice
“In Wainwright v. Witt, [supra, 469 U.S. 412] . . . the United States Supreme Court . . . considered the effect [of] a prospective juror’s beliefs concerning the death penalty ... on that individual’s eligibility to serve as a juror in a capital case . . . [and] clarified the standard for determining whether a venireperson properly may be challenged for cause on the basis of his beliefs regarding the death penalty. Specifically, the court concluded that the federal constitution permits the excusal for cause of venirepersons whose opposition to capital punishment would prevent or substan
“Furthermore, a trial judge’s finding that a particular venire [person] was not biased and therefore was properly seated [is] a finding of fact .... [T]he question whether a [venireperson] is biased has traditionally been determined through voir dire culminating in a
a
Venireperson J.B.
Relying on Wainwright v. Witt, supra, 469 U.S. 424, the defendant contends that the trial court improperly granted the state’s challenge to venireperson J.B.31 Spe
In response to questioning by defense counsel, venireperson J.B., while conveying his ability to follow the law, specifically expressed doubts that the defendant actually would be executed if he, in fact, were sentenced to death.32 Thereafter, the state’s attorney moved to excuse J.B. for cause, claiming that J.B.’s response that he did not believe that the defendant would be executed upon the imposition of a death sentence warranted his removal from the panel.33 Defense counsel responded that J.B.’s testimony, in which J.B. indicated that he would follow the law as given by the judge, rendered him fit to serve on the jury. Thereafter, the trial court excused J.B. for cause.34
Finally, we note that the trial court occupied a unique position to observe and to evaluate J.B.’s demeanor when he answered questions during voir dire, and the court specifically relied upon “the way [J.B.] responded” in making its ruling. “We are mindful . . . that appellate review of a cold record is no substitute for the ability of the trial court to witness firsthand a venireperson’s responses and demeanor.” State v. Hodge, 248 Conn. 207,253-54,726 A.2d 531, cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999).
b
Venireperson K.L.
The defendant next claims that the trial court improperly granted the state’s challenge to venireperson K.L. because K.L.’s responses to questions regarding the death penalty indicated that he could follow Connecticut’s capital sentencing scheme. We do not agree.
During voir dire, the state’s attorney asked K.L. about his views on the death penalty and whether any moral or religious beliefs would prevent or impair his ability to serve on the juiy. K.L. stated that a decision regarding the death penalty would require “a lot of soul searching” and that he had been “brought up [as] a Christian and for the most part . . . believe[d] [that] that’s God’s job, you know, who lives and who dies . . . .” In addition, K.L. stated, in response to questions by the state’s attorney regarding his ability to follow the law even if it conflicted with his personal or religious views, that he “would probably have to go with [his] own personal beliefs.” Subsequently, however, K.L. explained that he “would probably follow the law” and that, despite his
The trial court thereafter excused K.L. for cause, noting the inconsistencies in KL.’s testimony: on the one hand, K.L. testified that he would have “to do a lot of soul searching . . . and for the most part . . . [it’s] God’s job,” but, on the other hand, K.L. stated that “he would follow the law, [and] then change[d] his mind or change[d] his words and [said], but, if my personal beliefs affected it, I would have to follow my personal beliefs. Then he [said], but, I am not sure I would follow the judge’s law.” The trial court concluded that “with the terms and the usage of the words that [K.L.] used and the way he gave answers, especially his personal beliefs he would have to follow, I think that it would affect his ability to be a juror on this case.”
KL.’s reservations about imposing the death penalty on the basis of his personal and religious beliefs, his assertion that he would “rather do things right by [God] than by the law,” and his statement that he would follow his personal beliefs if they conflicted with the law, lead us to conclude that the trial court properly excused K.L. for cause. The trial court deduced from KL.’s testimony that KL.’s religious background would have served to “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath”; (internal quotation marks omitted) Wainwright v. Witt, supra, 469 U.S. 424; and we conclude that the trial court did not abuse its discretion in excluding K.L. for cause.
Venireperson K.S.
The defendant next claims that the trial court improperly excused venireperson K.S. for cause on the basis of her views concerning the death penalty. We disagree.
During voir dire, K.S. first acknowledged that, although it would be difficult for her to participate in the process of deciding whether the defendant would receive the death penalty, she indicated that she probably could do so.37 Thereafter, in response to a question by the state’s attorney regarding the possibility that the law would conflict with her religious beliefs, K.S. stated: “I would think that would be difficult for me to do to, to go along with the law that was different” from her religious beliefs, and that she could not sit as an impartial juror in the present case.38 In addition, K.S. candidly acknowledged that, “if it got to the point where I had a belief that was different than, you know, what the judge [was] telling me the law is ... I would end up going with my moral beliefs . . . .” K.S. further explained that she would have some hesitation in agreeing with a verdict that would result in the death of the defendant.39
We conclude that the trial court properly excused K.S. for cause on the basis of her equivocation about imposing the death sentence, as well as her admission that she “would end up going with [her] moral beliefs” if her beliefs conflicted with the law as given by the court. K.S. consistently hesitated in stating her ability to overcome her personal beliefs if they conflicted with the law and expressed a likely inability to overcome
2
Restrictions on the Scope of Voir Dire
The defendant further contends that the trial court improperly restricted the scope of defense counsel’s voir dire questioning of seven venirepersons, thereby depriving the defendant of the opportunity fully to explore these potential jurors’ biases or prejudices. Specifically, the defendant claims that the trial court improperly restricted defense counsel’s questioning of venirepersons about: (1) whether they would give more credibility to the testimony of police officers; (2) their philosophical views concerning the function of capital punishment in society and whether such a penalty is a “good thing”; (3) their ability to presume the defendant “completely” innocent of any wrongdoing; and (4) whether they wanted to serve on a capital jury. Additionally, the defendant challenges the trial court’s alleged refusal to allow defense counsel to rehabilitate S.P. and claims that the trial court improperly restricted defense counsel from exploring S.P.’s “ability ... to consider [the defendant’s] mitigation evidence [which] was critical in this case. ” The defendant urges that these purported restrictions violated his rights under the sixth, eighth and fourteenth amendments to the United States constitution, article first, § § 8 and 9, of the constitution of Connecticut, article first, § 19, of the constitu
We have observed that “the purpose of examining members of the venire is twofold: first, to provide information upon which the trial court may decide which prospective jurors, if any, should be excused for cause; and second, to provide information to counsel which may aid them in the exercise of their right to peremptory challenge.” (Internal quotation marks omitted.) State v. Ross, 269 Conn. 213, 252, 849 A.2d 648 (2004). We also have noted that “[t]he court should grant such latitude as is reasonably necessary to fairly accomplish the purposes of the voir dire. Clearly, therefore, if there is any likelihood that some prejudice is in the [prospective] juror’s mind which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted [to ask] questions designed to uncover that prejudice. This is particularly true with reference to the defendant in a criminal case.” (Internal quotation- marks omitted.) Id.
In addition, we have noted that, “[b]ecause of the wide range of cases submitted to juries and the impossibility of establishing a set pattern of questions appropriate for the voir dire examination of prospective jurors, the trial court is vested with broad discretion in determining the scope of counsel’s inquiry. . . . The court has a duty to analyze the examination of venire members and to act to prevent abuses in the voir dire process .... [Accordingly], the court’s actions ordinarily will not be disturbed unless the court has clearly abused its discretion or it appears that prejudice to one of the parties has resulted.” (Citations omitted; internal quotation marks omitted.) Id., 251-52.
Venireperson A.M.
The defendant claims that the trial court abused its discretion in restricting defense counsel’s questioning of A.M. about the credibility afforded to the testimony of police officers. We disagree.
While questioning A.M., defense counsel improperly characterized as the law, rather than as an instruction, the trial court’s charge that the jurors are to treat the testimony of all the witnesses, even police officers, the same.42 After the trial court clarified that it was an instruction, A.M. asserted that she indeed could follow the trial court’s instruction to treat all witnesses the same. Thereafter, defense counsel moved on from this
Although we have recognized that “[w]hen important testimony is anticipated from certain witnesses whose official or semi-official status is such that a juror might reasonably be more, or less, inclined to credit their testimony, a query as to whether a juror would have such an inclination should be permitted”; (internal quotation marks omitted) State v. Lugo, 266 Conn. 674, 688, 835 A.2d 451 (2003); our review of the record reveals that the trial court did not restrict defense counsel's questioning of A.M. about the credibility she might give to the testimony of police officers. The trial court merely corrected defense counsel’s mischaracterization—a fact to which defense counsel himself conceded—of the court’s instructions as the law, and the court invited defense counsel to correct and to clarify his question to A.M., which he did. Defense counsel thereafter voluntarily ceased this line of questioning, concluding his examination of A.M. by questioning her about her views on different matters in the case. Because the trial court did not restrict the scope of defense counsel's voir dire examination of A.M. with respect to the credibility that she would give to the testimony of police officers, we reject the defendant’s claim.
b
Venirepersons J.C. and C.H.
The defendant claims that the trial court improperly restricted defense counsel’s questioning of J.C. and
During voir dire, defense counsel attempted to ask both J.C. and C.H. about their opinions regarding the purposes that the death penalty serves.43 In response to the objection of the state’s attorney to these questions, defense counsel claimed that the answers to his questions would assist him in making “intelligent peremptory challenges” and in finding out the potential juror’s attitude toward the death penalty. The trial court sustained the objections of the state’s attorney with regard to both J.C. and C.H., concluding that the question of what purposes the death penalty serves was not relevant and was too philosophical.44 Thereafter, defense
Even though the trial court limited the scope of defense counsel’s voir dire of J.C. and C.H. by precluding questions pertaining to their philosophical views on capital punishment, we conclude that the trial court
c
Venireperson R.L.
The defendant next claims that the trial court improperly sustained the state’s attorney’s objections to defense counsel’s statements to R.L., during voir dire, that “the presumption of innocence says you have to presume [the defendant] innocent, perfectly clean slate as he sits here”; (emphasis added); and that “the jurors have to presume an accused person completely innocent of any wrongdoing.” (Emphasis added.) The defendant maintains that the trial court should have permitted defense counsel to explore R.L.’s “ability to presume [the defendant] completely innocent unless
We conclude that the trial court acted within its broad discretion when it precluded defense counsel from modifying the phrase “presumption of innocence” with the word “completely.” See State v. Ross, supra, 269 Conn. 251 (“[b]ecause of the wide range of cases submitted to juries and the impossibility of establishing a set pattern of questions appropriate for the voir dire examination of prospective jurors, the trial court is vested with broad discretion in determining the scope of counsel’s inquiry” [internal quotation marks omitted]). Additionally, the record reveals that defense counsel, in fact, did explore R.L.’s ability to presume the defendant innocent. After the court had sustained the objections of the state’s attorney, defense counsel asked R.L. if
d
Venirepersons J.J. and N.A.
The defendant contends that the trial court improperly precluded defense counsel from asking venireperson J.J. whether he wanted to serve on a capital jury and, if so, why he wanted to do so.49 The defendant also challenges the trial court’s ruling sustaining the objections of the state’s attorney to the following two questions that defense counsel had posed to venirepersons J.J. and N.A., respectively: “Is that the type of case that you feel an eye for an eye is appropriate?” “Is this the kind of case that you think the death penalty could be appropriate in?” We do not agree with the defendant’s claims.
The defendant further claims that the trial court improperly declined to permit defense counsel to ask J.J. whether, in the present case, he felt that “an eye for an eye is appropriate.”50 After the trial court sustained the objection of the assistant state’s attorney to that question, defense counsel was allowed to ask hypothetical questions regarding the appropriateness
We previously have cautioned that “[questions addressed to prospective jurors involving assumptions or hypotheses concerning the evidence which may be offered at the trial . . . should be discouraged .... [A]ll too frequently such inquiries represent a calculated effort on the part of counsel to ascertain before the trial starts what the reaction of the venire [person] will be to certain issues of fact or law or, at least, to implant in [the venireperson’s] mind a prejudice or prejudgment on those issues.” (Internal quotation marks omitted.) State v. Lugo, supra, 266 Conn. 684; accord Green v. Johnson, 160 F.3d 1029, 1034 (5th Cir. 1998); Hobbs v. Lockhart, 791 F.2d 125, 129-30 (8th Cir. 1986); Commonwealth v. McGrew, 375 Pa. 518, 525, 100 A.2d 467 (1953); see also 47 Am. Jur. 2d, Jury § 206 (1995), pp. 887-89. Moreover, we have declared that “[s]uch an effort transcends the proper limits of the voir dire and represents an abuse of the statutory right of examination.” (Internal quotation marks omitted.) State v. Lugo, supra, 684.
In the present case, the trial court acted within its discretion and properly limited the scope of defense counsel’s questioning of J.J. insofar as defense counsel improperly sought predictions based on the facts of the case. Moreover, the trial court subsequently permitted defense counsel to ask hypothetical questions of J.J., in response to which J.J. provided informative answers. Accordingly, there was no abuse of discretion.
We conclude that the trial court properly restricted the scope of defense counsel’s question because it
Moreover, as the record reveals, defense counsel nevertheless was able to elicit responses from N.A. that sufficed to apprise defense counsel of N.A.’s ability to keep an open mind with respect to the penalties of death or life imprisonment. Accordingly, we reject the defendant’s claim.
e
Venireperson S.P.
The defendant’s final claim regarding voir dire is that the trial court improperly restricted defense counsel’s scope of examination with respect to S.P. by prohibiting defense counsel from rehabilitating her. Additionally, the defendant claims that the trial court improperly restricted the scope of defense counsel’s examination of S.P. with respect to her consideration of mitigating factors. We do not agree.
A review of the record reveals that the trial court, in fact, did allow defense counsel to attempt to rehabilitate S.P. after both parties had finished questioning her. Upon defense counsel’s request to ask follow-up ques
The record discloses that the trial court permitted defense counsel to rehabilitate S.P., albeit through the trial court. After the trial court questioned S.P., defense counsel stated that the trial court’s inquiry was “[acceptable” to him. Thus, because defense counsel was able to rehabilitate S.P. through the trial court’s follow-up inquiry, we reject the defendant’s claim.
The state’s attorney had objected to what he deemed to be a “confusing question” through which defense counsel asked S.P. whether she would be able to return a verdict indicating that the jury had found an aggravating factor to have existed, “[e]ven though [she is] opposed to the death penalty . . . .” After the trial court had sustained the objection because “it was not an accurate representation of what the process is and ... I don’t want jurors to think of the process one way and then the court instructs them as to another way,” defense counsel resumed his questioning of S.P. Specifically, defense counsel asked S.P. whether she would “openly listen to mitigating factors,” to which S.P. responded, “Absolutely.”
The trial court’s ruling sustaining the state’s attorney’s objection notwithstanding, the record reveals that defense counsel asked S.P. whether she would consider mitigating factors and received an unequivocal and affirmative answer to that question. Accordingly, because S.P. clearly indicated that she could consider the existence of mitigating factors, we reject the defendant’s claim.
C
Evidentiary Rulings
The defendant next claims that certain evidentiary rulings of the trial court were improper. Specifically, the defendant claims that the trial court improperly: (1) permitted the physician who conducted the autopsy
Our analysis of the defendant’s evidentiary claims is based on well established principles of law. “The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Dehaney, 261 Conn. 336, 354—55, 803 A.2d 267 (2002), cert. denied, 537 U.S. 1217, 123 S. Ct. 1318, 154 L. Ed. 2d 1070 (2003); accord State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998).
Expert Testimony Regarding the Severity of the Victim’s Injuries
The following facts are relevant to the defendant’s claim. Prior to trial, the defendant filed a motion in limine to exclude, inter alia, testimony from any medical examiners or treating physicians that drew a comparison between the victim’s injuries and any injuries that they had observed in other cases or testimony regarding their personal opinions about their feelings upon observing the victim. Subsequently, the trial court ruled on the defendant’s motion before Ira Kanfer, the physician who performed the autopsy of the victim, testified. The trial court concluded that treating physicians or medical examiners who testified would not be permitted to express their opinions that this case was the worst case of numerous cases involving children who had died as a result of blunt force trauma that they had seen during their careers. The trial court permitted such experts to testify, however, regarding the nature of the injuries that the victim had sustained. The state complied with the trial court’s order during direct examination of Kanfer and refrained from asking Kanfer to compare the victim’s injuries to any injuries that he had observed in other cases in which he had been involved. Thereafter, during cross-examination, defense counsel asked Kanfer how many of the 2500 autopsies he previously had performed involved children who had died of blunt force trauma. In response, Kanfer testified that “[d]ozens and dozens” had involved children who died as a result of blunt force trauma. In addition, during cross-examination, defense counsel inquired as to Kan-fer’s pretrial hearing testimony that, prior to her death, the victim had been in a coma for two days. Kanfer admitted on cross-examination that his prior testimony regarding the victim being in a coma was mistaken.
Thereafter, Kanfer testified that, during his sixteen years of experience and approximately fifty cases of homicidal blunt force trauma to a child, the present case was “the most severe case” that he ever had seen. In addition, on redirect examination, Kanfer testified
On appeal, the defendant claims that the trial court improperly allowed Kanfer to testify that the present case was the most severe that he had observed during his career and that the autopsy was a “stressful event . . . .” Specifically, the defendant claims that the testimony was irrelevant and that its probative value was outweighed by the risk of unfair prejudice. The defendant also claims that the trial court improperly concluded that defense counsel, during cross-examination of Kanfer, had opened the door to the testimony about the severity of the victim’s injuries. The state, in response, claims that the evidence that the victim’s injuries were the most severe was relevant to the defendant’s intent. The state further claims that Kanfer’s testimony that the autopsy was stressful was relevant to explain the reason for his prior mistaken testimony. We conclude that the trial court did not abuse its discretion in allowing Kanfer’s testimony on redirect examination.
“Relevant evidence is evidence that has a logical tendency 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 irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not
Applying these principles, we conclude that the trial court did not abuse its discretion when it allowed Kanfer to testify that, out of approximately fifty cases that involved a child dying as a result of a blunt force trauma, the present case was the most severe. As the state notes, the fact that the victim’s injuries were the most severe that Kanfer had observed was relevant to the issue of whether the defendant had intended to kill the victim. In other words, the severity of the victim’s injuries had a tendency to make the existence of a fact, namely, the defendant’s intent to kill the victim, more probable than it would have been without the evidence. Thus, the trial court properly determined that Kanfer’s testimony about the severity of the victim’s injuries was relevant. In addition, Kanfer’s explanation of the reason for the error in his prior testimony, namely, because the autopsy of the victim was a stressful event, was relevant evidence as it served to rehabilitate his credibility. See, e.g., State v. Walker, 214 Conn. 122, 130, 571 A.2d 686 (1990) (“[i]n order to avoid the effect of cross-examination a witness may be asked for reasons for acts or conduct on his part, or for inconsistent statements that have been brought out on cross-examination” [internal quotation marks omitted]).
The defendant next claims that the probative value of Kanfer’s testimony regarding the severity of the victim’s injuries was outweighed by the danger of unfair prejudice. “Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial
We conclude that the trial court properly determined that the probative value of Kanfer’s testimony regarding the severity of the victim’s injuries was not outweighed by the risk of unfair prejudice. To the contrary, the trial court made it clear to the state that it would not allow Kanfer to use terms or phrases that could be considered highly prejudicial and inflammatory, such as “the worst” case or “most horrific” beating. In our view, the trial court properly weighed the probative value of Kanfer’s testimony against the danger of unfair prejudice, and the admission of Kanfer’s testimony as to the severity of the victim’s injuries was not unduly prejudicial to the defendant. Moreover, it is unlikely that the brief and passing testimony “arouse[d] the emotions of the jur[ors]”; State v. Sandoval, supra, 263 Conn. 544; especially in light of the numerous autopsy photographs, which illustrated the severity of the victim’s injuries, to which the jury was exposed during trial.
The defendant finally claims that the trial court improperly concluded that defense counsel opened the door to inquiry about the severity of the victim’s injuries when he asked Kanfer on cross-examination how many of his cases involved children who had died as a result of blunt force trauma. “Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. . . . The party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party. Even
“The doctrine of opening the door cannot, of course, be subverted into a rule for injection of prejudice. . . . The trial court must carefully consider whether the circumstances of the case warrant further inquiry into the subject matter, and should permit it only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence. . . . Thus, in making its determination, the trial court should balance the harm to the state in restricting the inquiry with the prejudice suffered by the defendant in allowing the rebuttal.” (Citations omitted; internal quotation marks omitted.) State v. Graham, 200 Conn. 9, 13-14, 509 A.2d 493 (1986).
Even if we assume that the defendant is correct in claiming that defense counsel did not open the door to Kanfer’s testimony, we conclude that the evidence regarding the severity of the victim’s injuries in comparison to the injuries of other victims of blunt force trauma would have been admissible to establish the intent of the defendant when he killed the victim. We note that “[t]he specific intent to kill is an essential element of the crime of murder. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994). In addition, we note that when “the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s
2
Admissibility of the Defendant’s Written Confession to the Police
The defendant next claims that the trial court improperly allowed the state to introduce into evidence the defendant’s written confession to the police. The defendant contends that the evidence was not authenticated properly. The state claims in response that the evidence properly was authenticated by the police officer who translated it and observed the transcription. We agree with the state.
“Authentication is ... a necessary preliminary to the introduction of most writings in evidence .... In general, a writing may be authenticated by a number of methods, including direct testimony or circumstantial evidence. . . .
“Both courts and commentators have noted that the showing of authenticity is not on a par with the more technical evidentiary rules that govern admissibility, such as hearsay exceptions, competency and privilege.
. . . Rather, there need only be a prima facie showing of authenticity to the court. . . . Once a prima facie showing of authorship is made to the court, the evi
Prior to trial, the defendant filed a motion in limine to exclude his written statement to police, claiming that it could not be authenticated properly. The trial court denied the motion, concluding that the document properly was authenticated. Thereafter, the state’s attorney offered the document through Officer Velez, the bilingual police officer who had translated from English to Spanish, and then from Spanish to English, for the defendant and Lieutenant Ricci. Velez testified regarding the process through which the police had taken the defendant’s statement. Specifically, Velez testified that Ricci would ask him the question in English, and Velez would, in turn, translate the question into Spanish and ask the defendant. The defendant then would answer the question in Spanish, and Velez would translate the defendant’s answer into English for Ricci, who then would type the answer into the computer. In addition, the answers would appear on the computer screen, and Velez would read what Ricci had typed. After the defendant finished giving his statement, Velez read it to him in Spanish, and the defendant signed it. In addition, Velez identified the statement that the state’s attorney sought to introduce as the statement that the defendant had given to the police on the night of his arrest.
With this background in mind, we conclude that the trial court did not abuse its discretion in determining that the state’s attorney properly authenticated the written statement that the defendant had given to the police on the night of his arrest. There was sufficient evidence
The defendant relies, however, on our decision in State v. Rosa, 170 Conn. 417, 426, 365 A.2d 1135, cert. denied, 429 U.S. 845, 97 S. Ct. 126, 50 L. Ed. 2d 116 (1976), to support his claim that the statement was not authenticated properly. In Rosa, the defendant, Jose Miguel Rosa, challenged the trial court’s denial of his motion to suppress an oral confession that he had given to a police officer after his arrest for his involvement in a murder. Id., 424. Rosa gave his oral confession to police after giving a written confession that was deemed inadmissible by this court because the written confession was not authenticated. Id., 426-27. Specifically, a few hours after Rosa had been arrested, he told the police that he was prepared to make a formal statement. Id., 421. A Spanish speaking officer thereafter read Rosa bis Miranda warnings, in Spanish and in English, from a printed form, which Rosa signed. See id. The defendant then gave his statement in Spanish, and the Spanish speaking officer translated the statement to English for another officer, who typed the statement in English. Id. When the other officer finished typing the statement, the Spanish speaking officer read it back to Rosa in Spanish, and Rosa signed the document. See id., 421-22.
In discussing Rosa’s challenge to the admission of his subsequent oral statement, we concluded that the trial court properly suppressed the written statement because the state had not established that the statement was authenticated properly. Id., 426-27. Specifically, we stated: “The written confession was an extrajudicial statement offered by the state for the truth of its contents. As such, it required proper authentication, which the state failed to establish, thus justifying [its] exclusion .... Evidence concerning the circumstances at the police station revealed that [Rosa] spoke Spanish
Although, at first blush, our decision in Rosa may seem to be applicable, we are convinced that it does not control the present case. Although the procedure through which the defendant’s statement was obtained is similar to the procedure that the police had employed in Rosa, the procedure employed in the present case included additional steps that did not exist in Rosa. First, Velez testified that he read what Ricci was typing on the computer screen and confirmed that it was, in fact, what he just had translated. Thus, although Ricci spoke only English, Velez verified that the statement that Ricci was transcribing was an accurate representation of what the defendant had stated in Spanish. Second, Velez actually testified at the defendant’s trial, thereby subjecting himself to cross-examination regarding both his translation and his identification of the document as the statement that the defendant had given on the night of his arrest. In addition, the defendant never had challenged—and does not do so on appeal— Velez’ ability as a translator. Accordingly, the facts of the present case are distinguishable from the facts of Rosa, and the trial court did not abuse its discretion in concluding that the defendant’s written statement properly was authenticated. See Commonwealth v. Colon, 408 Mass. 419, 427-28, 558 N.E.2d 974 (1990) (concluding that statement that had been translated from Spanish to English properly was authenticated after translating officer testified as to fairness and accu
3
Sustaining of Objection During Defense Counsel’s Closing Argument
The defendant next claims that the trial court improperly sustained the objection of the state’s attorney during defense counsel's closing argument. Dining closing arguments, defense counsel suggested that the jury should credit the testimony of the defendant’s medical expert, Louis Roh, a forensic pathologist, rather than the testimony of Ira Kanfer, the state’s medical expert, because the state had failed to call additional experts to rebut Roh’s testimony. The state’s attorney objected to this line of argument, claiming that the state was not required to call rebuttal witnesses. The trial court sustained the objection.
Upon review of the record, there is nothing to persuade us that the trial court abused its broad discretion in sustaining the state’s attorney’s objection. As the state notes, the state is not required to call rebuttal witnesses; the state may choose to rely on the testimony adduced during its case-in-chief. Thus, the trial court did not abuse its discretion in sustaining the objection of the state’s attorney.
In support of his claim, however, the defendant relies on State v. Malave, 250 Conn. 722, 737 A.2d 442 (1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000). In Malave, we abandoned the missing witness rule in criminal cases; id., 730, 738; which previously had allowed the trial court to instruct the jury that it could draw an adverse inference from the failure of a party to produce an available witness whom the party naturally would have called to testify. Id., 728-29. In abandoning the missing witness rule, however, we
The defendant also relies on Ruiz v. Hamburg-American Line, 478 F.2d 29, 32 (9th Cir. 1973). In Ruiz, the third party plaintiff, Hamburg-American Line (Hamburg), sought indemnification from Jones Stevedoring Company (Jones), the third party defendant. Id., 30. During trial, the district court denied Hamburg’s motion for a continuance in order to seek rebuttal witnesses to address what Hamburg characterized as surprise witnesses produced by Jones. Id., 31. Thereafter, during closing arguments, counsel for Jones repeatedly referred to the fact that Hamburg had failed to call rebuttal witnesses. Id., 33. In addressing Hamburg’s claim on appeal that counsel’s remarks were inappropriate in view of the trial court’s denial of Hamburg’s motion for a continuance, the Ninth Circuit Court of Appeals stated: “Although generally comment on the failure to call available rebuttal witnesses is proper, under these circumstances ... we are convinced that the judgment cannot stand.” (Emphasis added.) Id., 34. The defendant relies on this brief passage to support his claim that defense counsel’s comment regarding the state’s failure to call rebuttal witnesses was proper.
4
Admission of Lieutenant O’Leary’s Testimony
The defendant next claims that the trial court improperly allowed O’Leary to testify that, after speaking with Crystal Tellado, the victim’s three year old sister, at the apartment located at 418 Mill Street, he asked the defendant to come to the police station in order to investigate the victim’s death further.59 Specifically, the defendant claims that, because O’Leary was allowed to
“An out-of-court statement is hearsay when it is offered to establish the truth of the matters contained therein. ... A statement offered solely to show its effect upon the hearer, [however], is not hearsay.” (Citations omitted; internal quotation marks omitted.) State v. Cruz, 212 Conn. 351, 356-57, 562 A.2d 1071 (1989). In Cruz, this court rejected the claim of the defendant, Jose L. Cruz, that certain testimony of a police officer contained inadmissible hearsay. See id., 357. In Cruz, the police officer testified at trial that, after he interviewed several unidentified parties at the scene of a shooting, he sought a Hispanic male whose street name was “Cheo.” Id., 356. Cruz claimed that the trial court improperly had allowed the police officer to testify concerning the information that the officer had received from several unidentified parties because such testimony contained inadmissible hearsay. See id.
In Cruz, we noted that no testimony actually was elicited as to anything Cruz did or was accused of doing. Id., 357. Specifically, we explained that, had the police officer “been permitted to testify as to the specific contents of [the out-of-court] conversations, that testimony would have been inadmissible.” Id. We observed, however, that the state “offered [the officer’s] testimony
We find the reasoning of Cruz persuasive. As in Cruz, the officer in the present case, namely, O’Leary, did not testify as to anything the victim’s sister actually had said to him. Indeed, the trial court precluded O’Leary from testifying as to the victim’s sister’s statement, which she made in response to questioning about the bruises on her leg, that “[the defendant] did it.” In addition, the state offered the testimony of O’Leary not for the purpose of identifying the defendant as the perpetrator of the victim’s death or the injuries of the victim’s sister, but for the limited purpose of explaining why the police had asked the defendant to accompany them to the police station. O’Leary’s testimony, therefore, was not barred by the hearsay rule, and, consequently, the admission of that testimony did not violate the defendant’s right to confront the witnesses against him. See Tennessee v. Street, 471 U.S. 409, 418, 105 S. Ct. 2078, 85 L. Ed. 2d 425 (1985) (admission of out-of-court statement for “nonhearsay” purposes “raises no Confrontation Clause problems”).
5
Admission of Neighbor’s Testimony
The defendant’s final evidentiary claim is that the trial court improperly allowed Juana Rivera, a neighbor of the victim, to testify that she had seen bruises on the victim’s sister on the day of the victim’s death.
Rivera testified that, on the day of the victim’s death, she saw Virginia Quintero carry the victim’s sister out of Quintero’s apartment. When asked to describe the victim’s sister when she saw her, Rivera testified that she had bruises on her.60 Defense counsel objected to the testimony, claiming that it was irrelevant. The trial court overruled the objection, concluding that Rivera’s testimony related to her observations.
We conclude, upon review of the record, that the trial court did not abuse its wide discretion in allowing Rivera’s testimony. In particular, it was highly unlikely that the testimony had the effect of leading the jury to conclude that it was the defendant who had caused the bruises on the victim’s sister in light of the fact that Rivera was the first witness; the jury had no other information that would have led it to conclude that it was the defendant who had inflicted the bruises on the victim’s sister. Accordingly, the trial court’s decision to allow Rivera to testify as to her observations on the day of the victim’s murder was not an abuse of discretion.
D
Additional Evidentiary Claims Implicating the Defendant’s Right to Present a Defense
The defendant next claims that certain of the trial court’s evidentiary rulings deprived him of his right to present a defense. Specifically, the defendant claims that the trial court improperly precluded: (1) him from testifying regarding his escape from police custody; (2)
We begin our analysis of the defendant’s claims with a review of the governing legal principles. “The federal constitution require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The sixth amendment ... includes the right to offer the testimony of witnesses, and to compel their attendance, 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. . . .
“A defendant is, however, bound by the rules of evidence in presenting a defense. . . . Although exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights, the constitution does not require that a defendant be permitted to present every piece of evidence he wishes. . . . Thus, our law is clear that a defendant may introduce
In addition, we review the defendant’s claims under the abuse of discretion standard that we previously explained in this opinion. See, e.g., id., 543. “Accordingly, the trial court’s ruling is entitled to every reasonable presumption in its favor . . . and we will disturb the ruling only if the defendant can demonstrate a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) Id.
1
Testimony Regarding the Defendant’s Escape from Police Custody
The defendant claims that the trial court improperly precluded him from testifying regarding his escape from police custody. Specifically, the defendant claims that the testimony was relevant to show his state of mind at the time he signed his statement in which he admitted to killing the victim and that the testimony tended to corroborate his testimony that he signed the statement out of ignorance because he was willing to do anything to leave the police station. The state claims, in response, that no evidence was offered to establish a connection between the defendant’s signing of the confession and the subsequent escape, and, therefore, the evidence was not relevant. In addition, the state contends that, even if the exclusion of such evidence was improper, it nevertheless was harmless.
The following facts are relevant to the defendant’s claim. After being questioned by the police and giving statements, the defendant escaped from the Waterbury police department the day after the victim’s death. The
At trial, the defendant testified before the jury that, while at the police station on the night of the victim’s death, he was nervous and wanted to leave; he also testified that when he asked to leave, the officers gave him some papers and said he could leave when he signed them. The defendant testified that he signed the papers because he wanted to leave. Thus, the defendant’s claim was that the only reason he signed the statements in which he confessed to killing the victim was because he was desperate to leave the police station. After giving this testimony, the defendant sought to testify regarding his escape. The state’s attorney objected to any testimony regarding the escape, however, claiming that it was irrelevant and that it involved a collateral issue. Defense counsel claimed that the evidence was relevant to show that the defendant was desperate to leave the police station in order to obtain drugs and that he would have signed anything, including a confession, just to be able to leave. The trial court sustained the objection and precluded any evidence as to the escape, concluding that it was irrelevant and lacked a proper foundation.
As we discussed previously, “[Relevant evidence is evidence that has a logical tendency 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 irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worth or safe to be admitted in the proof of the latter. . . . Evidence is not rendered
We conclude that evidence of the defendant’s escape from police custody was at least minimally relevant to the defendant’s claimed state of mind at the time he signed his confession. Thus, the fact that the defendant escaped from police custody tends to support the relevant claimed fact that the only reason that he signed the confession was that he was desperate to leave the police station in order to find drugs. Because evidence of the defendant’s escape was relevant to his state of mind at the time he signed his confession admitting to killing the victim, the trial court improperly precluded the defendant from testifying regarding his escape.
We conclude that, although the exclusion of the evidence of escape was improper, such impropriety constituted harmless error. We first note that the evidence of escape enjoyed little probative value. The state’s attorney represented, and defense counsel did not dispute, that the escape occurred nearly twelve hours after the defendant had signed the confession. Thus, the connection between the defendant’s state of mind at the time that he signed the confession and his state of mind twelve hours later when he escaped is, at best, tenuous. Moreover, the defendant never testified that he was suffering from the effects of withdrawal or that he was under the influence of drugs when he signed the confession. Instead, the defendant merely testified that he was desperate to leave the police station.
Second, if the trial court had permitted the defendant to testify regarding his escape, the state would have been allowed to seek an instruction to the jury that
2
Evidence Relating to the Defendant’s Mother’s Felony Conviction
The defendant next claims that the trial court improperly precluded Maria Ocasio, the defendant’s mother, from testifying about the details of her felony conviction. Specifically, the defendant claims that the state opened the door to defense counsel’s questions regarding the details of Ocasio’s conviction, which resulted from her actions during the defendant’s escape. The defendant also contends that the trial court improperly precluded defense counsel from introducing certain department of correction records establishing the date of Ocasio’s release from prison. The state claims that the trial court properly excluded this evidence.
On appeal, the defendant claims that the trial court improperly precluded Ocasio from testifying about the details of her conviction because the state had opened the door63 to that subject during cross-examination. The
The defendant further claims that the trial court improperly precluded defense counsel from introducing into evidence department of correction records corroborating Ocasio’s date of release from prison. During trial, Quintero admitted to sending letters to the defendant from prison, but claimed that she wrote the letters only because Ocasio, her cellmate, had asked her to do so. Defense counsel sought to attack Quintero’s credibility by eliciting testimony from Ocasio that, after she had been released from prison, she received letters from Quintero and that Quintero instructed Ocasio to send those letters to the defendant in jail. Specifically, Ocasio testified that she was released from prison on January 8, 1999, and that she received letters from Quintero in February, March and April of that same year with direction to send them to the defendant. Subsequently, defense counsel offered department of correction records that corroborated Ocasio’s testimony that she had been released from prison in January, 1999. The
We conclude that the trial court did not abuse its discretion in precluding defense counsel from introducing the department of correction records into evidence. In the present case, Ocasio testified that she was released from prison in January, 1999, and that she continued to receive letters from Quintero subsequent to that time. The state never challenged that testimony, and there was no other evidence to indicate that Ocasio was released from prison at a different time than that to which she testified. Therefore, the trial court properly excluded the department of correction records as cumulative of Ocasio’s testimony. See, e.g., State v. Ramos, 261 Conn. 156, 180, 801 A.2d 788 (2002).
3
Exclusion of Evidence of Character for Untruthfulness
The defendant next claims that the trial court improperly precluded defense counsel from asking Detective Jones, Lieutenant O’Leary and Officer Velez certain questions concerning specific instances of conduct that, according to the defendant, were probative of their character for untruthfulness. The defendant further claims that, by precluding these questions, the trial court unduly restricted his ability to cross-examine the witnesses against him, in violation of his confrontation rights. We are not persuaded.
“ [C]ross-examination is the principal means by which the credibility of witnesses and the truth of their testimony is tested.” (Internal quotation marks omitted.) State v. Chance, 236 Conn. 31, 58, 671 A.2d 323 (1996). “The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination.” (Internal
In the present case, defense counsel attempted to cross-examine three state’s witnesses, namely, Jones, O’Leary and Velez, concerning specific acts of misconduct. First, defense counsel sought to ask the witnesses about the contents of an anonymous letter to the editor that had been published in The Waterbury Observer as the basis of certain acts of misconduct by all three witnesses. Second, with respect to O’Leary, defense counsel attempted to ask O’Leary about certain information contained in an internal affairs report.64 Third,
We are persuaded that the trial court did not abuse its discretion in limiting defense counsel's cross-examination of Jones, O’Leary and Velez. First, we agree with the trial court’s conclusion that an anonymous letter to a newspaper editor, without more, does not serve to establish a good faith basis for the cross-examination of a witness regarding alleged prior misconduct; such an examination would constitute nothing more than a fishing expedition. See, e.g., State v. Barnes, supra, 232 Conn. 749-50 (“[i]t is entirely proper for a court to deny
4
Exclusion of Opinion Testimony Concerning Lieutenant O’Leary’s Character for Untruthfulness
The defendant’s next claim is that the trial court improperly precluded Richard Lyding from offering his opinion as to O’Leary’s character for untruthfulness. We conclude that the trial court did not abuse its discretion.
Defense counsel sought to elicit the opinion testimony of Lyding, a former captain of the Connecticut state police, that O’Leary was untruthful. During
“The veracity of a witness may be attacked by evidence of the witness’ general reputation in the community for veracity. ... A witness’ character for veracity may also be proved by opinion evidence of those who have formed an opinion as to the character of the witness with respect to truth and veracity. . . . Whether a witness has had sufficient contact with a person to be qualified to testify as to a particular character trait is a matter peculiarly within the discretion of the trial court and its ruling will be disturbed only in a clear case of abuse or of some error in law. . . . The witness
The trial court found that Lyding’s only contact with O’Leary had occurred more than four years prior to trial and more than two years prior to O’Leary’s participation in the investigation of the victim’s death. Moreover, Lyding’s opinion primarily was based on a two to three hour interview that was conducted in connection with an investigation of O’Leary’s alleged misconduct and at which O’Leary’s attorney was present. Under these circumstances, we conclude that the trial court did not abuse its discretion in concluding that defense counsel had not laid an adequate foundation for the admissibility of Lyding’s opinion regarding O’Leary’s character for untruthfulness. See State v. Gould, supra, 241 Conn. 20 (opinion regarding witness’ veracity properly excluded when one and one-half years had passed between time opinion was formed and time of trial).
5
Exclusion of the Statement that Virginia Quintero’s Aunt Had Given to the Police
The defendant claims that the trial court improperly excluded a statement that Maria Hernandez, Quintero’s aunt, had given to the police on the night that the victim had died. Specifically, the defendant claims that Hernandez’ statement fell within the residual exception to the hearsay rule.
Defense counsel attempted to introduce the statement of Hernandez, who was deceased at the time of trial, through the testimony of Detective Balnis. Defense counsel claimed that the statement that Hernandez had given to the police revealed that Quintero had spoken
Because Hernandez’ statement contained an additional level of hearsay, namely, what Quintero had told Hernandez, both Quintero’s statement to Hernandez and Hernandez’ statement to the police about what Quintero had told her must be independently admissible under a hearsay exception in order for Hernandez’ statement to be substantively admissible. See Conn. Code Evid. § 8-7 (“[h]earsay within hearsay is admissible only if each part of the combined statements is independently admissible under a hearsay exception” [emphasis added]).
“The residual, or catch-all, exception to the hearsay rule allows a trial court to admit hearsay evidence not admissible under any of the established exceptions if: (1) there is a reasonable necessity for the admission of the statement, and (2) the statement is supported by the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the tradi
We conclude that the trial court did not abuse its discretion in excluding Hernandez’ statement. Quintero’s first written statement to the police, in which she claimed that the victim had died when she fell in the shower and that the victim had thrown up water already was before the jury. Because the fact that Quintero first claimed that the victim’s death had been an accident already was before the jury, it was unnecessary to introduce Quintero’s similar statement to Hernandez through the admission of Hernandez’ statement. See Conn. Code Evid. § 8-9 (hearsay statement admissible under residual exception to hearsay rule only “if the court determines that . . . there is a reasonable necessity for the admission of the statement”). Furthermore, the trial court properly excluded Hernandez’ statement because it contained another level of hearsay, namely, Quintero’s statement to Hernandez, that was not independently admissible under an exception to the hearsay rule.
6
Exclusion of the Testimony of the Defendant’s Expert Witness
The defendant next claims that the trial court improperly precluded the defendant’s expert, Louis Roh, a
During direct examination, defense counsel asked Roh the following question: “The injury that you’ve described as the cause of death, the blow to the right forehead which caused the left side subdural hematoma, would it take a man to inflict that injury or could a woman inflict that injury?” Before Roh could answer, the state’s attorney objected to the question, and the trial court sustained the objection without further explanation. Defense counsel made no further offer of proof and did not ask Roh any further questions with respect to that subject.
The record in the present case does not reveal how Roh would have answered the question or what details he would have provided in answering the question. “It is therefore impossible to determine whether those details were so important to the defendant’s case that their preclusion . . . impaired his constitutional rights.” State v. Smith, 219 Conn. 160,164, 592 A.2d 382 (1991). Moreover, even if the trial court had allowed Roh to answer and his answer would have been that a woman could have caused the victim’s fatal injury, his answer would have been nothing more than speculation in that there was no foundation laid for the basis of his answer. Accordingly, the trial court did not abuse its discretion in precluding Roh from giving his opinion regarding whether a woman could have caused the victim’s fatal injury.
7
Exclusion of the Testimony of Officer Michael Dimaria
The defendant’s next claim is that the trial court improperly excluded the testimony of Officer Dimaria
On appeal, the defendant claims that Dimaria should have been allowed to testify regarding the statement that the defendant had made to him during the arrest because the statement concerned the defendant’s then-existing physical condition or, alternatively, constituted a spontaneous utterance. See Conn. Code Evid. § 8-3 (2) and (3). Our review of the record indicates, however, that the defendant did not raise these claims before the trial court. “Only in the most exceptional circumstances . . . will this court consider a claim that was not raised [below]. . . . Such exceptional circumstances may occur [when] anew and unforeseen constitutional right has arisen between the time of trial and appeal or [when] the record supports a claim that a litigant has been deprived of a fundamental constitutional right and a fair trial. ... An exception may also be made [when] consideration of the question is in the interest of public welfare or of justice between the parties.” (Citations omitted; internal quotation marks omitted.) Skrzypiec v. Noonan, 228 Conn. 1, 14-15, 633 A.2d 716 (1993). In the present case, the defendant has not established the existence of any exceptional circumstances warranting
8
Exclusion of Certain Testimony of Virginia Quintero’s Attorney
The defendant claims that the trial court improperly sustained an objection to a question posed by defense counsel to Anthony Wallace, Quintero’s attorney at the proceeding to terminate her parental rights. We are not persuaded.
During trial, defense counsel offered the testimony of Wallace as proof that Quintero expected consideration from the state in her own criminal case71 in return for her testimony against the defendant. After an offer of proof, the trial court allowed Wallace to testify, but limited his testimony to what he had told Quintero as it related to any consideration that she may have received as a result of her testimony.72 Thereafter,
We conclude that the trial court did not abuse its discretion in precluding Wallace from testifying regarding whether anyone had discussed with him the possibility that Quintero would receive any consideration in return for her testimony against the defendant. The purpose of Wallace’s testimony was to illustrate Quintero’s bias or motive for testifying against the defendant. Thus, the trial court allowed Wallace to testify that he had communicated to Quintero the possibility that she could receive some consideration for her testimony. Whether anyone else had told Wallace that Quintero could receive consideration simply was irrelevant to Quintero’s bias or motive for testifying. In addition, the trial court properly allowed the state, on cross-examination, to rebut the implication that the source of Wallace’s statement to Quintero that she could receive some consideration for her testimony against the defendant, was the office of the state’s attorney. Accordingly,
9
Cumulative Error
The defendant’s final evidentiary claim is that, when viewed cumulatively, the trial court’s alleged evidentiary improprieties constitute a violation of his constitutional rights, including the right to testify in his own behalf, the right to confront the witnesses against him, the right to present a defense and the right to be free from cruel and unusual punishments. After a thorough review of the record and consideration of all of the defendant’s claims, we disagree.
In the present case, none of the defendant’s claims of impropriety constituted a violation of any constitutional right. The defendant contends, however, that these claims should be aggregated to form a separate constitutional claim that provides an alternative basis for relief. We rejected a similar argument in State v. Robinson, 227 Conn. 711, 746-47, 631 A.2d 288 (1993), and, therefore, reject the defendant’s claim in the present case. As we explained in Robinson, “[w]e decline to create a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts.” (Internal quotation marks omitted.) Id., 747. Thus, because we have found no evidentiary improprieties, the combined claims cannot give rise to a constitutional violation.
E
Jury Instructions
The defendant claims that the trial court, in instructing the jury at the conclusion of the guilt phase,
In reviewing all the defendant’s claims regarding the trial court’s jury instructions, we utilize a well established standard of review. “[Individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rule of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.” (Citations omitted; internal quotation marks omitted.) State v. Floyd, 253 Conn. 700, 714, 756 A.2d 799 (2000).
1
Manslaughter by Omission Instruction
The defendant claims that the trial court inadequately charged the jury with respect to its manslaughter instruction. Specifically, the defendant claims that the trial court improperly declined to instruct the jury regarding manslaughter by omission. See General Stat
“This court repeatedly has recognized that [t]here is no fundamental constitutional right to a jury instruction on every lesser included offense .... State v. Whistnant, 179 Conn. 576, 583, 427 A.2d 414 (1980). Rather, the right to such an instruction is purely a matter of our common law. A defendant is entitled to an instruction on a lesser [included] offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant;
(2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser;
(3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, whichjustifi.es conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant [not guilty] of the greater offense but guilty of the lesser. Id., 588.” (Internal quotation marks omitted.) State v. Corbin, 260 Conn. 730, 744-45, 799 A.2d 1056 (2002).
“In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra, 179 Conn. 588, we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense. ... On appeal, an appellate court must reverse a trial court’s failure to give the
In the present case, the defendant submitted to the trial court a request to charge, which contained proposed instructions for several lesser included offenses, including manslaughter in the first degree under § 53a-55 (a) (1) and (3). With respect to manslaughter in the first degree under § 53a-55 (a) (3), the defendant requested, in addition to an instruction regarding conduct evincing extreme indifference to human life, an alternative instruction, in accordance with this court’s decision in State v. Miranda, 245 Conn. 209, 226, 715 A.2d 680 (1998),74 that the defendant could be found guilty of manslaughter in the first degree for failing to protect the victim from abuse inflicted by another person.75 At the charging conference, the trial court heard arguments from both the state’s attorney and defense counsel regarding the propriety of instructing the juiy on manslaughter by omission in accordance with this court’s decision in Miranda. Thereafter, the trial court concluded that, although it would charge the
“The second prong of Whistnant derives from our earlier decision in State v. Brown, 163 Conn. 52, 301 A.2d 547 (1972). In Brown, we stated that ‘[c]ourts have taken three approaches in determining whether a crime is a “lesser included crime” when the evidence would support a conclusion that the lesser crime was committed: (1) The included crime may be one consisting solely of elements which must always be present for the greater crime to have been committed; (2) it may be
“That second course comprises the second prong in Whistnant, which encompasses the cognate pleadings approach. ‘The cognate-pleadings approach . . . does not insist that the elements of the lesser offense be a subset of the higher offense. It is sufficient that the lesser offense have certain elements in common with the higher offense, which thereby makes it a “cognate” or “allied” offense even though it also has other elements not essential to the greater crime. [In addition], the relationship between the offenses is determined not by a comparison of statutory elements in the abstract, but by reference to the pleadings in the case. The key ordinarily is whether the allegations in the pleading charging the higher offense . . . include all of the elements of the lesser offense.’ ” (Citation omitted.) State v. Tomlin, 266 Conn. 608, 617-18, 835 A.2d 12 (2003).
In the present case, we conclude that the defendant has not satisfied the second prong of Whistnant. Specifically, it was possible to commit murder, in the manner described in the information and bill of particulars, without first having committed the lesser included offense of manslaughter by omission. The state asserted in the information that the defendant “caused the death of [the victim] by means of blunt force trauma.” Thus, the state alleged in the information that the defendant had committed a physical act against the victim that caused the victim to suffer blunt force trauma and that he had done so with the intention of killing the victim. With respect to manslaughter by omission, our decision in Miranda presumably would have required the state
2
Accessory Liability Instruction
The defendant next claims that the trial court improperly declined to instruct the jury with respect to the credibility of Virginia Quintero’s testimony. Specifically, the defendant contends that the trial court improperly declined to give an instruction characterizing Quintero as an accessory to the crimes for which the defendant was tried. The state contends that the trial court properly declined to give such an instruction.
The defendant’s written request to charge included a proposed instruction that Quintero’s testimony should be scrutinized inasmuch as Quintero also was charged with certain crimes in connection with the victim’s death.79 At the charging conference, the trial court con-
“Generally, a defendant is not entitled to an instruction singling out any of the state’s witnesses and highlighting his or her possible motive for testifying falsely.” State v. Ortiz, 252 Conn. 533, 561, 747 A.2d 487 (2000). An exception to this rule, however, involves the credibility of accomplice witnesses. Id. “[W]here it is warranted by the evidence, it is the court’s duty to caution the jury to scrutinize carefully the testimony if the jury finds that the witness intentionally assisted in the commission, or if [she] assisted or aided or abetted in the commission, of the offense with which the defendant is charged.” (Emphasis in original; internal quotation marks omitted.) Id., 562. In addition, “[i]n order for one to be an accomplice there must be mutuality of intent and community of unlawful purpose.” State v. Boles, 223 Conn. 535, 552, 613 A.2d 770 (1992).
In State v. Ortiz, supra, 252 Conn. 533, the defendants, Angel Luis Ortiz and Julio Diaz-Marrero, claimed that the trial court improperly had declined to instruct the jury regarding the credibility of a witness who had been present during the commission of the crimes with which the defendants were charged. Id., 542, 562. We concluded, however, that the trial court properly had determined that there was insufficient evidence to infer that the witness was an accomplice. See id., 562-63. First, we noted that the witness was not charged with the crimes for which the defendants were tried and that there was no evidence presented at trial that directly linked the witness to the crimes as an accomplice. Id., 562. Second, we explained that the juiy was privy to
In the present case, the trial court determined that there was insufficient evidence from which to conclude that Quintero was an accomplice. Specifically, Quintero was not charged with the crimes for which the defendant was tried and there was no evidence that directly linked Quintero to the crimes as an accomplice. Although Quintero testified that she had been charged with certain crimes in connection with the victim’s death, she was charged with those crimes on the basis of her failure to protect the victim from the defendant. Specifically, Quintero was charged with manslaughter, assault and risk of injury to a child, all stemming from her failure to protect the victim. In addition, there was no evidence that Quintero shared the mental state required for the crime with which the defendant was charged, namely, intentional murder, and there was no evidence that Quintero committed any of the accessorial acts outlined in General Statutes § 53a-8 (a),80 such as solicitation or intentionally providing aid to the principal offender, namely, the defendant. Moreover, the trial court instructed the jury to consider whether a witness had “any interest in the outcome of the case or any bias or prejudice concerning any part of any matter involved in [the] case” and also to consider “[a] witness’ interest, motive, bias or sympathy or prejudice
3
Instruction Regarding the Defendant’s Attempt to Provide Medical Assistance to the Victim
The defendant next claims that the trial court improperly declined to instruct the jury regarding his attempt to provide medical assistance to the victim. Specifically, the defendant contends that the trial court improperly declined to instruct the jury that it could infer from the evidence that, because the defendant attempted to provide medical assistance to the victim, he did not have the intent to kill her. In response, the state contends that the trial court properly declined to instruct the jury that a finding that the defendant attempted to provide medical assistance to the victim supported an inference that he lacked the intent to kill her.
The defendant’s written request to charge included a proposed instruction that, if the jury found that the defendant had attempted to provide medical assistance to the victim, it was permitted to infer that such conduct evinced a lack of intent on the part of the defendant to kill the victim.81 The trial court denied the defendant’s
On appeal to this court, the defendant relies on our decision in State v. Sivri, supra, 231 Conn. 115, in support of his claim that the trial court improperly declined to instruct the jury that it could infer from the evidence that the fact that the defendant attempted to resuscitate the victim supported an inference that he did not intend to kill the victim. In Sivri, we concluded that the failure of the defendant, Tevfik Sivri, to summon medical assistance for the victim, who had lost a substantial amount of blood, permitted an inference that Sivri intended to kill the victim. Id., 128, 129. Specifically, we explained that, “if [Sivri] has caused a grievous wound that could cause the victim’s death if not treated promptly, the failure to summon that treatment is consistent with an antecedent intent to cause death.” Id., 129. Thus, the defendant’s claim essentially is that, because our decision in Sivri allows a jury to draw an inference that, as a result of failing to summon medical assistance the defendant had an intent to kill, the inverse of that situation also must be true, namely, that evidence indicating that the defendant attempted to resuscitate the victim permits an inference that the defendant lacked the intent to kill. We disagree.
We first note that, although several states permit a fact finder to infer intent to kill from the failure to summon medical assistance for a victim, the defendant has not referred us to, and ora research has not revealed, any case in which the fact finder was instructed that it could draw an inference that the defen
Similarly, the defendant’s proposed instruction was not a statement of the law applicable to the case but, rather, was argumentative in nature. This court never has concluded that a defendant is entitled to an instruction that the fact finder may draw an inference that the defendant lacked the intent to kill from evidence establishing that the defendant summoned medical assistance for or provided medical assistance to the victim. The determination of whether to give such an instruction is, therefore, a matter within the trial court’s discretion. The defendant’s proposed instruction, therefore, was not an accurate statement of the law but, rather, a matter more appropriately addressed during closing arguments. Accordingly, we conclude that the trial court properly declined to instruct the jury in accordance with the defendant’s proposed instruction.82 Cf.
4
Instructions Regarding Reasonable Doubt
The defendant’s final instructional claim is that the trial court improperly instructed the jury regarding the standard of reasonable doubt.83 Specifically, the defen
“It is fundamental that proof of guilt in a criminal case must be beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) .... The [reasonable doubt concept] provides concrete substance for the presumption of innocence— that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law. . . . [Id.], 363. At the same time, by impressing upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused, the [reasonable doubt] standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself. Jackson v. Virginia, [443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)]. [Consequently, the] defendants in a criminal case are entitled to a clear and unequivocal charge by the court that the guilt of the defendants must be proved beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Ferguson, 260 Conn. 339, 370-71, 796 A.2d 1118 (2002).
As the defendant acknowledges, we consistently have rejected constitutional challenges to instructional language substantially similar in all material respects to the instructional language that the defendant challenges on appeal. E.g., State v. Betances, 265 Conn. 493, 510,
F
Prosecutorial Misconduct
The defendant next claims that the state’s attorney and the assistant state’s attorney committed misconduct during the guilt phase of the proceedings, thereby depriving the defendant of his right to a fair trial in violation of the due process clause of the fourteenth amendment to the United States constitution. Specifically, the defendant claims that: (1) the state’s attorney improperly pursued contradictory theories with respect to Virginia Quintero’s role in the victim’s death; (2) the state’s attorney improperly questioned the defendant about certain privileged attorney-client communications during cross-examination; and (3) the state’s attorney and the assistant state’s attorney improperly
“Before addressing the merits of the defendant’s claim, we first review the principles that govern our resolution of claims of prosecutorial misconduct. [T]he touchstone of due process analysis in cases of alleged
“As we previously have recognized, prosecutorial misconduct of a constitutional magnitude can occur in the course of closing arguments. . . . When making closing arguments to the jury, [however] [c]ounselmust be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rale and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Moreover, [i]t does not follow . . . that eveiy use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument. . . .
“Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury’s attention from the facts of the case. [The prosecutor] is not only an officer of the court, like every attorney, but is also a high public officer, representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent. ... By reason of his office, he usually exercises great
Furthermore, “the prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses. . . . Nor should a prosecutor express his opinion, directly or indirectly, as to the guilt of the defendant. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor’s special position. . . . Moreover, because the jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence ... it is likely to infer that such matters precipitated the personal opinions. . . .
“Prosecutorial misconduct [also] may occur in the course of cross-examination of witnesses . . . and
“In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. . . . Included among those factors are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case. . . .
“Furthermore, whether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any of the prosecutor’s improper remarks. When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendant’s right to a fair trial. . . .
“[E]ven when prosecutorial misconduct is not so egregious as to implicate the defendant’s [due process] right to a fair trial, an appellate court may invoke its supervisory authority [over the administration of justice] to reverse a criminal conviction when the prosecutor deliberately engages in conduct that he or she knows, or ought to know, is improper. . . . Such a sanction generally is appropriate, however, only when the [prosecutor’s] conduct is so offensive to the sound administration of justice that only a new trial can effec
1
The Assertion of Contradictory Theories with Respect to the Victim’s Death
The defendant first claims that the state’s attorney engaged in prosecutorial misconduct by asserting contradictory claims regarding Virginia Quintero’s role in the victim’s death. Specifically, the defendant claims that his due process rights were violated when the state’s attorney claimed at trial that Quintero was held captive by the defendant during the period prior to the victim’s death while charging Quintero with manslaughter, assault and risk of injury to a child in connection with the victim’s death. In response, the state claims that the state’s attorney did not pursue contradictory theories with respect to the role of Quintero in the
In the present case, Lieutenant O’Leary testified that Quintero had been charged with manslaughter, assault in the first degree and risk of injury to a child. O’Leary also testified that these charges were based on Quintero’s failure to protect the victim from the defendant. Thereafter, Quintero testified that the defendant had forced her to stay in the apartment and did not let her leave during the weeks leading up to the victim’s death. The defendant’s claim essentially is that, if the defendant, as the state’s attorney asserted, held Quintero captive during the period leading up to the victim’s death, Quintero could not have been guilty of manslaughter, assault or risk of injury and, therefore, the state’s attorney pursued inherently contradictory theories regarding Quintero’s role in the victim’s death, in violation of the defendant’s constitutional rights.
In support of his claim, the defendant relies on Smith v. Groose, 205 F.3d 1045 (8th Cir.), cert. denied sub nom. Gammon v. Smith, 531 U.S. 985, 121 S. Ct. 441, 148 L. Ed. 2d 446 (2000), in which the Eighth Circuit Court of Appeals concluded that a prosecutor’s use of “inherently factually contradictory theories violates the principles of due process.” Id., 1052. In Smith, a group of juveniles set out to burglarize a house. Id., 1047. When the group reached their intended target, they encountered another group of individuals who already were in the process of burglarizing the same house. Id. After a brief discussion, the two groups both took property from the house. Id. Sometime during the
Subsequently, one of the juveniles, Anthony Lytle, gave a statement (first statement) to the police claiming that the first group of burglars already had killed one of the occupants before the juvenile group entered the house. Id. Two days later, however, Lytle gave a second statement to police in which he claimed that the occupant was killed while the juveniles were inside the house. Id. Specifically, Lytle told the police that he saw James Bowman, one of the juveniles with whom he had planned on burglarizing the house, kneeling over the victim and stabbing him. Id., 1047-48. Lytle subsequently recanted this second statement and testified consistently with his first statement at the trial of one of the juveniles, Jon Keith Smith. Id., 1047. At Smith’s trial, the prosecutor used Lytle’s second statement to prove that the murder occurred while the juveniles were in the house. Id., 1048. The prosecutor’s theory was that Bowman was the murderer and that Smith was guilty of, inter alia, felony murder because the murder had occurred while Smith was in the house committing the burglary. Id. Smith ultimately was found guilty of first degree felony murder. Id.
Subsequently, during the trial of Michael Cunningham, one of the individuals who was in the house before the group of juveniles had arrived, the prosecutor relied on Lytle’s first statement to police and his testimony at Smith’s trial to claim that the victim already was dead when the juveniles entered the home. Id. Thus, the prosecutor’s theory in Cunningham’s trial was that, because Lytle had testified that the victim already was dead when the juveniles had entered the home, Cunningham was the murderer. Id. Cunningham subsequently was found guilty of, inter alia, first degree murder. Id.
2
Questioning Regarding Privileged Attorney-Client Communications
The defendant next claims that the state’s attorney improperly questioned the defendant during cross-examination regarding privileged communications with his attorneys, thereby violating the defendant’s attorney-client privilege. The state claims that the state’s attorney’s cross-examination of the defendant properly was confined to permissible subjects of impeachment, namely, whether the defendant had been “coached” in
The United States Supreme Court has determined that cross-examination constitutes a proper method to address the issue of an attorney’s possible improper influence on a witness’ testimony or the possibility that an attorney coached a witness. See Geders v. United States, 425 U.S. 80, 89, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976). “The opposing counsel in the adversary system is not without weapons to cope with ‘coached’ witnesses. A prosecutor may cross-examine a defendant as to the extent of any ‘coaching’ during a recess, subject, of course, to the control of the court. Skillful cross-examination could develop a record which the prosecutor in closing argument might well exploit by raising questions as to the defendant’s credibility, if it developed that defense counsel had in fact coached the witness as to how to respond on the remaining direct examination and on cross-examination.” Id., 89-90.
As the defendant acknowledges, defense counsel did not object to this line of questioning at trial on the basis of the attorney-client privilege, suggesting that he did not view the line of questioning to be seriously prejudicial at the time.89 As we noted previously, “whether a
As we explained in Reynolds, “[i]nasmuch as defense counsel had heard the comments of the state’s attorney when they were made, defense counsel was in a position to assess what impact, if any, the comments may have had on the jury and to determine what remedy to seek.” State v. Reynolds, supra, 264 Conn. 207. “Our rules of procedure do not allow a defendant to pursue one course of action at trial and later, on appeal, argue that a path he rejected should now be open to him. . . . To rule otherwise would permit trial by ambuscade. ... An appellant cannot create a reviewable claim because his appellate counsel disagrees with the strategy of his trial counsel.” (Internal quotation marks omitted.) Id. The defendant in the present case was represented by two attorneys who “presumably [did] not view the alleged impropriety as prejudicial enough
3
Prosecutorial Misconduct During Closing and Rebuttal Arguments
The defendant next claims that the state’s attorney and assistant state’s attorney engaged in misconduct during closing and rebuttal arguments. Specifically, the defendant claims that: (1) the assistant state’s attorney improperly injected her personal opinion by stating that “there can be no real question here about intent”; (2) the assistant state’s attorney improperly commented on the credibility of the defendant by stating that the defendant’s testimony was “a lie”; and (3) the state’s attorney improperly declared, during rebuttal argument, that his interest was “the same as [the jury’s], to see that justice is done . . . .” The state responds by claiming that: (1) defense counsel failed to object to the first two claimed instances of misconduct, suggesting that defense counsel did not deem the arguments as prejudicial; and (2) neither of the remarks made during closing argument was improper. In response to the defendant’s claim regarding the state’s attorney’s rebuttal argument, the state claims, inter alia, that the remark regarding the state’s attorney’s interest in the case was: (1) invited by defense counsel’s closing argument; (2) not improper because it merely “identified] the unique role [that] prosecutors have in our judicial system” (internal quotation marks omitted); (3) not as prejudicial as other statements previously found by this court to be improper; and (4) fleeting and thus had no bearing on the jury’s verdict.
During closing argument, the assistant state’s attorney outlined the evidence establishing the state’s claim
In addition, during closing arguments, the assistant state’s attorney remarked: “[The defendant] tells you that he signed [his] statement [that he gave to the police] because he thought he could go home. Well, ladies and gentlemen, you can’t have it both ways. [The defendant] cannot get on this witness stand and tell you that he didn’t know what was going on, that the police were yelling and screaming at him and pointing ... at him and accusing him and taking him out of Mill Street in handcuffs and police had their guns drawn and yet, he’s going to sign this statement. It’s a lie, ladies and gentlemen. Anybody knew. Anybody knew it was serious. He saw that child. This is what he did to that child. Everybody knew it was serious. He can’t have it both ways.” (Emphasis added.) Defense counsel did not object to this statement.
During rebuttal argument, the state’s attorney remarked: “You know, [defense counsel] says, ‘Well, the police have an interest in this case; the state has an interest in this case.’ You know and we do and I do have an interest in this case and [the assistant state’s attorney] has an interest in this case and the state’s
The defendant first claims that the assistant state’s attorney, in stating that “there can be no real question here about intent,” improperly injected her personal opinion and, therefore, committed prosecutorial misconduct. We reject the defendant’s claim.
“It is not improper for the prosecutor to comment upon the evidence presented at trial and to argue the inferences that the jurors might draw therefrom .... We must give the jury the credit of being able to differentiate between argument on the evidence and attempts to persuade them to draw inferences in the state’s favor, on [the] one hand, and improper unsworn testimony, with the suggestion of secret knowledge, on the other hand. The [prosecutor] should not be put in the rhetorical straitjacket of always using the passive voice, or continually emphasizing that he is simply saying I submit to you that this is what the evidence shows, or the like.” (Citation omitted; internal quotation marks omitted.) State v. Thompson, 266 Conn. 440, 465-66, 832 A.2d 626 (2003).
A review of the transcript reveals that the assistant state’s attorney’s remark that, “I think there can be no real question here about intent,” followed several
The defendant next claims that the assistant state’s attorney, in stating that the defendant’s testimony was “a lie,” improperly commented on the credibility of a witness’ testimony. As we noted previously, “the prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses.” (Internal quotation marks omitted.) State v. Reynolds, supra, 264 Conn. 163. Nevertheless, “[i]t is not improper for the prosecutor to comment upon the evidence presented at trial and to argue the inferences that the jurors might draw therefrom . . . .” (Internal quotation marks omitted.) State v. Thompson, supra, 266 Conn. 465. In addition, “[u]se of the words ‘liar’ and ‘lie’ to characterize disputed testimony when the [witness’] credibility is clearly in issue is ordinarily not improper unless such use is excessive or is likely to be inflammatory.” United States v. Peterson, 808 F.2d 969, 977 (2d Cir. 1987).
The remark that the defendant lied when he testified that he had signed his statement to the police only because the police had told him that he could leave if he did so occurred in the context of the assistant state’s attorney’s discussion of the evidence that would support an inference that the defendant had lied. In particular, the assistant state’s attorney remarked that the defendant had prior experience with the police, that he
Finally, the defendant claims that the state’s attorney, in stating during rebuttal argument that his interest in the case was to see that justice was done, improperly injected his personal opinion into the trial. We acknowledge that it would have been preferable for the state’s attorney to have refrained from using the first person to emphasize that his interest in the case was to see that justice was done. Thus, we turn to the question of whether the impropriety “so infected the trial with unfairness as to make the conviction a denial of due process.” (Internal quotation marks omitted.) State v. Stevenson, 269 Conn. 563, 589, 849 A.2d 626 (2004). We conclude that the misconduct did not so infect the trial with unfairness as to make the defendant’s conviction a denial of due process.
In State v. Williams, 204 Conn. 523, 529 A.2d 653 (1987), we stated that, “[i]n determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument
G
Subpoenas Duces Tecum and the State’s Motion to Quash
The defendant claims that the trial court improperly compelled defense counsel to turn over to the trial court redacted copies of certain state police reports. The defendant further claims that the trial court improperly granted the state’s motion to quash the defendant’s subpoena of certain records from the office of the chief state’s attorney and failed to conduct an in camera
1
Order Compelling Defense Counsel to Turn Over State Police Reports
The defendant first claims that the trial court improperly compelled defense counsel to turn over redacted copies of certain state police internal affairs investigation reports that defense counsel had received from Lieutenant Wayne Rioux of the Connecticut state police force. In response, the state contends that the trial court properly exercised its discretion in requiring defense counsel to turn over the reports so that the trial court could review them. In addition, the state claims that any impropriety was harmless.
The following facts are necessary to our resolution of the defendant’s claim. On August 30, 2000, a subpoena duces tecum was served on Rioux seeking copies of certain state police internal affairs reports. Additional subpoenas were served on the state police and another state office seeking material relating to the alleged misconduct of certain Waterbury police officers. The state thereafter filed a motion to quash the subpoenas.
During argument before the trial court on the state’s motion to quash, defense counsel admitted that he possessed redacted versions of the internal affairs reports. The state claimed that defense counsel improperly possessed the reports because the subpoena duces tecum required Rioux to bring the reports to court instead of sending them directly to defense counsel in redacted form. The trial court also clarified that the subpoena required Rioux to bring the reports to court. During
Later that day, defense counsel sought to use the information in the redacted reports in support of his request for an in camera review of other records, namely, an investigatory file of the office of the chief state’s attorney. At that point, the trial court asked defense counsel to turn over the redacted internal affairs reports, stating that it was “not making any accusations . . . but [that it] need[ed] to know ... if that was something that should not have been given to you, and, if it was, that you’re in possession of something that you may not or should not have had until the court has ruled on it.” Defense counsel thereafter turned over the redacted reports to the court. After reviewing both the redacted and unredacted versions of the internal affairs reports in camera, the trial court released to defense counsel the information that it believed to be
On appeal, the defendant challenges the trial court’s decision to compel defense counsel to turn over the redacted reports. Specifically, the defendant claims that the trial court: (1) lacked the authority to compel defense counsel to turn over the redacted reports; (2) violated the defendant’s right to present a defense; and (3) violated the defendant’s right of free speech.
We first address the standard of review under which we address the defendant’s first claim. The defendant claims that the trial court lacked authority to compel defense counsel to turn over the reports and that our review, therefore, is plenary. The state maintains, however, that the trial court merely was exercising its inherent authority to manage the case before it and to rule on evidentiary matters, and, therefore, its decision to
In Krevis v. Bridgeport, 262 Conn. 813, 818-19, 817 A.2d 628 (2003), we concluded that the determination of whether the trial court had authority to decide a dispositive question of law that the parties had submitted to the court orally and not in compliance with certain rules of practice was subject to an abuse of discretion standard. In so concluding, we noted that trial courts have “the authority to manage cases before it as necessary. . . . Deference is afforded to the trial court in making case management decisions because it is in a much better position to determine the effect that a particular procedure will have on both parties.
. . . The case management authority is an inherent power necessarily vested in trial courts to manage their own affairs in order to achieve the expeditious disposition of cases. . . . The ability of trial judges to manage cases is essential to judicial economy and justice.” (Citations omitted; internal quotation marks omitted.) Id., 819.
In the present case, after the state raised questions about the propriety of defense counsel’s possession of the reports, the trial court compelled defense counsel to turn over the reports and reviewed them in camera. We conclude that, in doing so, the trial court was exercising its inherent case management authority. Accordingly, we review this claim under an abuse of discretion standard.
“We will not disturb a trial court’s decision regarding case management unless after carefully examining the factual circumstances of the case, we determine that there was an abuse of discretion. . . . Abuse is not present if discretion is not exercised arbitrarily or wilfully, but with regard to what is right and equitable
Our review of the record reveals that the trial court did not abuse its discretion in ordering defense counsel to turn over the redacted reports that he had received from Rioux. The subpoena issued to Rioux clear ly indicated that Rioux was to bring copies of the requested reports to the court. For reasons unclear to us from the record, Rioux sent redacted versions of these reports directly to defense counsel. Defense counsel also represented to the trial court that Rioux had told him that he had received the records in accordance with a freedom of information request. As we noted previously, the state acknowledged that the reports were not exempt from disclosure under the act, but asserted that the reports contained confidential information, and, inasmuch as the state did not know what parts were redacted in the copies that defense counsel had received from Rioux, the state asked the court to review the entire reports in camera. The reports also were the subject of the state’s motion to quash. Thus, the propriety of defense counsel’s possession of the reports was in dispute. Accordingly, we conclude that the trial court, acting pursuant to its inherent authority over the management of trials, did not abuse its discretion in ordering defense counsel to turn over the redacted reports.
Even if we assume that the trial court improperly ordered defense counsel to turn over the reports, we conclude that it was harmless error. During voir dire, the trial court permitted defense counsel to ask questions of O’Leary from the material that the trial court had given to defense counsel after its in camera review
Thus, because defense counsel chose not to pursue this avenue of impeachment of O’Leary, and because O’Leary denied all wrongdoing alleged in the internal affairs reports, the reports, in either the redacted or unredacted versions, were irrelevant for purposes of defense counsel’s impeachment of O’Leary. Cf. Conn. Code Evid. § 6-6 (b) (2) (specific instances of conduct probative of witness’ character for untrathfulness may not be proved by extrinsic evidence). Accordingly, even if we assume that the trial court improperly ordered defense counsel to turn over the reports that he had received from Rioux, such action on the part of the trial court constituted harmless error.
We also conclude that the trial court’s decision to compel defense counsel to turn over the redacted copies of the internal affairs reports did not unduly interfere with defense counsel’s representation of the defendant and, thus, did not violate the defendant’s constitutional
Our review of the record, including the reports and the document that defense counsel had received from the trial court after its in camera review of the reports, reveals that defense counsel was given adequate information with which to impeach O’Leary, and that it was O’Leaiy’s denial, during voir dire, of the allegations in the internal affairs reports that led to a less than favorable impeachment of O’Leary by defense counsel. In addition, defense counsel acknowledged at trial that, prior to turning over the redacted reports to the trial court, he thoroughly had reviewed them and understood the nature of the allegations made therein. Specifically, defense counsel stated that “we had the redacted file and we have had it for some time and we’ve been through it in detail . . . .” Thus, in light of the foregoing, it is unclear to us how defense counsel’s representation of the defendant was compromised by the trial court’s order compelling defense counsel to turn over the redacted versions of the internal affairs reports.
Finally, the defendant claims that the trial court’s order compelling him to turn over the reports violated his rights under the first amendment to the United
In support of his contention, the defendant relies on Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S. Ct. 2720,115 L. Ed. 2d 888 (1991). That case is inapposite to the defendant’s claim, however. In particular, Gentile determined the constitutionality of a Nevada court rule that authorized the discipline of attorneys who make certain extrajudicial statements to the press that are likely to prejudice materially an adjudicatory proceeding. See id., 1034. It did not involve, as in the present case, the propriety of an order compelling an attorney to turn over certain documents during a trial. Accordingly, we reject the defendant’s claim.
2
The Trial Court’s Granting of the State’s Motion to Quash and Its Refusal to Conduct an In Camera Inspection of Certain Documents
The defendant next claims that the trial court improperly granted the state’s motion to quash a subpoena seeking from the office of the chief state’s attorney any investigatory materials concerning five Waterbury police officers.92 In addition, the defendant contends
The following facts are necessary to our resolution of the defendant’s claims. On September 5, 2000, a subpoena duces tecum was served on the office of the chief state’s attorney seeking documents related to an investigation into alleged corruption at the Waterbury police department. Specifically, defense counsel sought information regarding certain Waterbury police officers who were listed as potential state witnesses for the defendant’s trial. See footnote 92 of this opinion. The state filed a motion to quash the subpoena on the ground that it sought materials relating to an ongoing investigation that were subject to a qualified law enforcement privilege. The state also claimed that the defendant had not met a threshold showing of cause to overcome that privilege.
In opposition to the motion to quash, defense counsel asserted several instances of alleged misconduct and corruption in the Waterbury police department. The source of these allegations was a published anonymous letter to the editor of a local Waterbury newspaper. Defense counsel asserted that he received a copy of the anonymous letter from the newspaper and that it also had documents attached to it that supported the allegations in the published anonymous letter. Defense counsel also relied on the existence of an ongoing inves
Thereafter, the trial court determined that the defendant had not met his burden of overcoming the law enforcement privilege. Specifically, the trial court found that the sources of the information supporting the defendant’s claim were an anonymous letter to a newspaper and “rumor.”94 In addition, the trial court determined that the defendant had not established that the source possessed a “sufficient . . . nexus to truth, veracity of a witness, or exculpatory information. To use the basis of the information would be allowing a . . . fishing expedition into all accusations without
On appeal, the defendant claims that the trial court improperly granted the motion to quash and committed error in failing to review the entire investigatory file of the office of the chief state’s attorney in camera. We review a court’s conclusion that a defendant has failed to make a threshold showing of entitlement to an in camera review of purportedly privileged records under the abuse of discretion standard. E.g., State v. Betances, supra, 265 Conn. 506. Accordingly, “[w]e must make every reasonable presumption in favor of the trial court’s action. . . . The trial court’s exercise of its discretion will be reversed only where the abuse of discretion is manifest or where injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.) Id.
As the state notes, the materials sought by the defendant, namely, documents, letters, and reports regarding any ongoing investigation by the office of the chief state’s attorney, were shielded from disclosure under a law enforcement privilege. We noted in Seebeck v. State, 246 Conn. 514, 717 A.2d 1161 (1998), that “the reason for this privilege is to aid the state’s attorney and the police in conducting investigations by encouraging people to disclose information without fear of embarrassment through subsequent, needless public disclosure.” Id., 546. Because the materials that defense counsel sought were privileged, and were sought for
In State v. Kulmac, 230 Conn. 43, 56, 644 A.2d 887 (1994), the defendant, Steven B. Kulmac, claimed that his right to confrontation had been violated when the trial court declined to conduct an in camera inspection of certain records of the department of children and youth services concerning the victims. After the victims had testified at trial, Kulmac subpoenaed the records in question. Id. Kulmac claimed that he “assumed” the privileged records would contain accounts of the abuse alleged at trial and that they potentially could be inconsistent with the testimony of the victims, thereby providing a basis for impeachment of the victims’ credibility. Id., 57. An agent of the department of children and youth services indicated, however, that nothing in the records was exculpatory or inconsistent with the victims’ testimony. Id. Because of the absence of any preliminary showing of cause by Kulmac other than his assumption that the records would contain something useful, we concluded that the trial court properly declined to review the records in camera. Id., 59.
3
Invitation to Overrule State v. Harris
The defendant also invites us to overrule our decision in State v. Harris, supra, 227 Conn. 751, in which we concluded that the defendant’s confrontational rights had not been violated by the decision of the trial court not to allow the defendant, Silas Harris, access to confidential records of a testifying witness. Id., 763-64. In so doing, we concluded that Harris did not have a constitutional right to view the confidential records, but that an in camera review of the records by the trial court, after a sufficient showing of cause, adequately protected the defendant’s rights. See id., 764. The defendant in the present case invites us to reconsider this approach and allow the defendant to review sealed or privileged records “[as] long as strict protective orders axe issued.” Because the defendant has not offered any compelling reasons for us to reconsider our decision in Harris, we decline his invitation to overrule prior case law.
4
Review of the Privileged Records for Brady Material
The defendant next requests that he be permitted to review the privileged records from the office of the chief state’s attorney to determine if they contain exculpatory material. The defendant also seeks to review the five page document that the state’s attorney had turned over to the trial court, which determined that it did not contain any exculpatory material. Alternatively, the defendant asks this court to review all the foregoing materials for potentially exculpatory information. We conclude that the defendant is not entitled to review
It is axiomatic that the state has an obligation to turn over evidence in its possession that is favorable to the defendant and that is material to guilt or punishment. Brady v. Maryland, supra, 373 U.S. 87. It also is well settled that, “if the trial court discovers material exculpatory evidence in the course of an in camera inspection, it has a duty to disclose it to the defense and the defendant has a due process right to its disclosure.” State v. Harris, supra, 227 Conn. 762. “A defendant’s right to discover exculpatory evidence [however] does not include the unsupervised authority to search through the [state’s] files. . . . Settled practice is to the contrary. In the typical case [in which] a defendant makes only a general request for exculpatory material under Brady ... it is the [s]tate that decides which information must be disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court’s attention, the prosecutor’s decision on disclosure is final. Defense counsel has no constitutional right to conduct his own search of the [s]tate’s files to argue relevance.” (Citations omitted; emphasis added.) Pennsylvania v. Ritchie, 480 U.S. 39,59,107 S. Ct. 989,94 L. Ed. 2d 40 (1987).
It is clear to us that the same reasoning applies to the defendant’s request on appeal. We note that the defendant’s claim is not that the state violated Brady by withholding certain exculpatory or material information. Rather, the defendant is seeking an opportunity to sift through the records of the office of the chief state’s attorney in search of a potential Brady violation.
We also reject the defendant’s request that this court review the entire file of the office of the chief state’s attorney. Again, we note that the defendant has not referred us to any authority that would allow this court to review records that the trial court has determined were not subject to discovery by the defendant. In other words, the trial court determined that the defendant had not met his burden of establishing sufficient cause to overcome the law enforcement privilege, which served to exempt the sought-after materials from discovery by the defendant. We know of no authority, nor has the defendant directed us to any, that allows this court, on appeal, to review those records that the trial court never viewed.95 The review of the sealed documents, which were not even viewed in camera by the trial court, clearly would constitute an improper appellate function.
Finally, our review of the five page document that the trial court reviewed in camera reveals that the trial court properly determined that it did not contain material, exculpatory information.96 “The test for materiality
H
Sufficiency of the Evidence
The defendant’s final guilt phase claim is that there was insufficient evidence presented at trial to convince a reasonable trier of fact to conclude, beyond a reasonable doubt, that the defendant had intended to kill the victim. In response, the state contends that the evidence was sufficient to establish that the defendant intentionally had killed the victim. We agree with the state.
“Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . Indeed, direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable.” (Citation omitted; internal quotation marks omitted.) State v. Niemeyer, 258 Conn. 510, 517-18, 782 A.2d 658 (2001).
Moreover, “[t]he specific intent to kill is an essential element of the crime of murder. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim.” (Internal quotation marks omitted.) State v. Sivri, supra, 231 Conn. 126. With this background in mind, we turn to the defendant’s sufficiency claim.
The defendant relies, however, on our decision in State v. Carpenter, 214 Conn. 77, 570 A.2d 203 (1990), in support of his claim that there was insufficient evidence for a jury reasonably to conclude that he intentionally had killed the victim. In Carpenter, we concluded that the evidence adduced by the state, specifically, that the defendant, Richard T. Carpenter, Jr., had killed the victim, an eighteen month old child, by throwing her into a bathtub, was insufficient to support an inference that Carpenter had the requisite intent to cause the victim’s death. Id., 83. We determined that the evidence was “insufficient to preclude the reasonable hypothesis that [Carpenter], out of frustration, engaged in reckless conduct that caused the death of the victim.”
We first note that, under our established scope of review of sufficiency of evidence claims, “we give deference not to the hypothesis of innocence posed by the defendant, but to the evidence and the reasonable inferences drawable therefrom that support the jury’s determination of guilt. On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” State v. Sivri, supra, 231 Conn. 134.97
Ill
PENALTY PHASE ISSUES A
Jury Instructions Regarding the Weighing of the Aggravating and Mitigating Factors
The defendant first claims that the trial court improperly declined to instruct the jury that the aggravating factor found by the jury must outweigh the mitigating factor or factors beyond a reasonable doubt in order to sentence the defendant to death.98 The state claims, in response, that the trial court properly instructed the jury. We conclude, on the basis of our decision in State v. Rizzo, supra, 266 Conn. 171,99 that the trial court improperly declined to instruct the jury that it must be
In Rizzo, we clarified the differences between the pre-1995, “nonweighing” capital sentencing statute and the current weighing scheme. See generally id., 181-82, 228-31. In contrast to the pre-1995 statute, we explained that the current statute includes an additional step: in addition to a finding of the existence of aggravating and mitigating factors, the jury must weigh the aggravating factors against the mitigating factors. Id., 230. We noted that “[t]his change in our capital sentencing scheme ha[d] effectively expanded the selection phase to include, in addition to the determination of whether the defendant has established mitigation, the weighing of the aggravating factors against the mitigating factors.” Id., 230-31. We further noted that this change had “resulted in a significant gap in the sentencing scheme—namely, unlike our former, nonweighing statute, the current sentencing statute does not require the jury to make its ultimate determination—that the aggravating factors outweigh the mitigating factors, and that, therefore, death is the appropriate sentence—by a level of certitude beyond a reasonable doubt. Indeed, because the legislature was silent as to the required level of certitude imposed on the jury’s weighing determination, there is a statutory lacuna, which . . . should be filled.” Id., 231. This statutory lacuna, we concluded, potentially raised a significant state constitutional question regarding the burden of persuasion and the level of certitude required of a jury in determining whether death is the appropriate punishment in any particular case.100 See id., 232-33. In order to avoid the
In the present case, the trial court properly instructed the jury that “[t]here is no special meaning to be accorded to the word ‘weighing’; it’s given its common, everyday meaning.”101 The remainder of the trial court’s instructions, however, did not conform to the
B
The Trial Court’s Acceptance of the Jury’s Second, Corrected Verdict
The defendant next claims that the trial court improperly accepted a corrected verdict from the jury after
The essential facts relevant to the defendant’s claim are set forth in the trial court’s memorandum of decision regarding the reassembly of the jury and the acceptance of the jury’s second, corrected verdict as the sole verdict in the present case. “On October 16,2000, after approximately two and one-half . . . days of deliberation during the penalty phase of the trial, the court received a communication from the jury. The communication indicated that the jury had reached a verdict .... The court reconvened and the clerk inquired of the jur[ors] their findings from the special verdict form. The jur[ors] initially reported that they unanimously agreed: (1) that the state had proved the aggravating factor beyond a reasonable doubt ... (2) that the defendant had not proved, by a preponderance of the evidence, the existence of one or a combination of statutory [mitigating] factors ... (3) that [one or more jurors] had found the existence of a mitigating factor as defined . . . and
“Immediately upon exiting the courtroom, the jury, through a juror, informed the sheriff that there was a problem. The jury was in its deliberation room at this time, together as a group, and not with any outside parties. The sheriff informed the court that the jury had a problem, and the court proceeded to the jury room to inquire of the problem. The court was immediately informed that the problem was with the verdict. The court briefly responded to the inquiry and instructed the clerk, who was present, to inform the jurors to write a note indicating the specific problem. The jurors produced a note for the court .... The court alerted the parties [as] to the jury’s problem and conducted discussions with the attorneys in chambers on how to appropriately address the issue. The court determined that a complete record with the jury had to be established for appellate review.
“The court reconvened, the jury’s note was marked as [an exhibit], and each party was allowed to argue its position regarding the additional proceedings.
“Subsequently, a jury poll was taken and each individual juror indicated that [his or her] intent was to announce that the aggravating factor outweighed the mitigating factor(s). Each individual juror also indicated that the decision concerning [the jury’s] corrected verdict was not a result of any force, threat or outside influence. At the conclusion of these questions, the court instructed the jurors to complete another special verdict form which indicated their intended findings. The court recessed for this purpose. The court reconvened after the jury had completed the [second] special
“The jury was excused. During subsequent hearings [on] the matter, [defense counsel] filed [an] affidavit containing an allegation of judicial contact with the jury. Because of this allegation, the court referred the matter for review by the presiding criminal judge, Damiani, J. (presiding judge). The presiding judge conducted an evidentiary hearing on December 1, 2000, and questioned each of the twelve jurors concerning [his or her] contact with the court. After the hearing, the presiding judge ruled that any contact between the court and the jurors was proven harmless beyond a reasonable doubt.”
Thereafter, the trial court concluded, in its memorandum of decision, that the jury had not been discharged prior to the individual polling of the jury and the correction of its verdict. Consequently, the trial court accepted the second verdict as the jury’s true verdict. In so concluding, the trial court found that, prior to the jury’s reassembly in the courtroom, “the jury [had] remained as an intact unit under the control and supervision of the court.” The trial court also explained that the only individuals with whom the jury had contact after exiting
1
Authority of the Trial Court to Recall the Jury Prior to Discharge
The defendant claims that the trial court improperly concluded that the jury had not been discharged prior to its reassembly and submission of its second verdict. Specifically, the defendant contends that, pursuant to this court’s decision in State v. Pare, supra, 253 Conn. 611, the jury in the present case had separated and dispersed, and had the opportunity to mingle with others before it was reassembled and allowed to submit its second verdict. The defendant also claims that Pare does not sanction the reassembly of a jury for the purpose of allowing it to correct or to change its verdict. The state contends that the jury had not been discharged prior to being reassembled; specifically, the state claims the jury remained a single, undispersed unit that was not subject to any external influence. The state also contends that, because the jury had not been discharged, the trial court properly allowed the jury to reassemble and to correct its verdict.
As a threshold matter, we set forth the standard of review. “The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous.” (Inter
Turning to the merits of the defendant’s claim, we note that, “[w]hen a jury remains as an undispersed unit within the control of the court and with no opportunity to mingle with or discuss the case with others, it is undischarged and may be recalled.” (Internal quotation marks omitted.) State v. Pare, supra, 253 Conn. 630, quoting United States v. Marinari, 32 F.3d 1209, 1214 (7th Cir. 1994); see also Summers v. United States, 11 F.2d 583, 586 (4th Cir.) (“After a verdict has been rendered, and the jur[ors], after being discharged, have separated, thejurfors] cannot be recalled to amend their
In State v. Pare, supra, 253 Conn. 611, the defendant, Joseph Pare, was charged with murder. At trial, following two days of deliberations, the juiy informed the court that it had reached a verdict. Id., 617. Following a sidebar conference between defense counsel and the trial court, the jury was escorted into the courtroom and, thereafter, announced its verdict finding Pare guilty of murder. Id. After the juiy verdict was announced, the clerk asked the members of the jury collectively whether they unanimously had agreed that Pare was guilty of murder. Id. The jurors collectively responded in the affirmative. Id. After reviewing the process through which the jury arrived at its verdict, the trial court instructed the jurors to retire to the deliberation room and to wait for the trial court to speak with them. Id., 617-19. Immediately after the jurors exited the courtroom, defense counsel requested that the trial court individually poll the jurors regarding the verdict. Id., 619. The trial court denied defense counsel’s request. Id.
On appeal, Pare claimed that the trial court had violated his right, under Practice Book § 42-31,102 to poll
In construing the meaning of “discharged,” as used in Practice Book § 42-31, we first concluded that jurors are not necessarily relieved of their official obligations once they leave the courtroom and, therefore, under certain circumstances, jurors may be recalled for the purpose of submitting to a jury poll. Id., 628-29. Thus, “mere departure from the courtroom does not, in and of itself, discharge a jury from its obligation to render continued service in a particular case.” State v. Murray, 254 Conn. 472, 495, 757 A.2d 578 (2000). In Pare, we went on to discuss when a juror’s obligations are deemed complete such that the jury is no longer within the control of the court. See generally State v. Pare, supra, 253 Conn. 629-34. We concluded that a jury completes its task and relinquishes its status as a judicial body—and, therefore, is discharged—when “its members actually separate or disperse.” (Emphasis added.) Id., 634. In so concluding, we explained that, “[w]hen a jury remains as an undispersed unit within the control of the court and with no opportunity to mingle with or discuss the case with others, it is undischarged and may be recalled.” Id., 630, quoting United States v. Marinari, supra, 32 F.3d 1214. Until the members of the jury actually separate and disperse, “it can be assumed, in the absence of any indication to the contrary, that the delib
In Pare, we concluded that the jury had not been discharged when the trial court denied defense counsel’s request to poll the jurors. State v. Pare, supra, 253 Conn. 634. In support of this conclusion, we explained that the trial judge expressly had “instructed the members of the jury to retire to the jury room and await his arrival.” Id. Moreover, “[t]he jurors had not dispersed and they remained untainted by any outside contact.” (Internal quotation marks omitted.) Id. Therefore, “the jury continued to exist as a judicial body under the control of the court.” (Internal quotation marks omitted.) Id. Accordingly, we concluded that the trial court improperly had denied defense counsel’s request to poll the jury.103 See id., 634-35.
Applying the foregoing principles to the present case, we conclude that the jury had not been discharged when the trial court learned of the error in the jury’s first verdict and that, consequently, the trial court properly reassembled the jury to allow it to correct its verdict.
The defendant contends, however, that the jury was discharged because: (1) the trial court never expressly instructed the members of the jury to retire to the jury room and to await his arrival; (2) the jurors in the present case had an opportunity to mingle and to discuss the case with others; and (3) the parties waived their right to have the jurors polled and, thus, the jurors had no outstanding obligations to fulfill.104 First, we
We also reject the defendant’s claim that the jurors had the opportunity to mingle and to discuss the case with outsiders. In support of this claim, the defendant relies on the fact that the jurors actually discussed their verdict with the sheriff and the judge. As the trial court noted in its memorandum of decision, however, “any contact that took place was initiated by the jury . . . for the sole purpose of alerting the court to [the jury’s] error.” We do not think that contact with court personnel for the sole purpose of alerting the court of a potential error in the verdict constitutes contact with outsiders sufficient to render the jury discharged. The policy supporting a finding of discharge after jurors have had contact with outsiders, namely, the avoidance
On appeal, the defendants claimed that the trial court improperly accepted the jury’s corrected verdicts. Id., 27. The Supreme Judicial Court of Massachusetts began its analysis of the defendants’ claim by explaining that, “once the jury ha[s] been discharged, [it has] no further power to deliberate or to agree to a verdict.” Id., 28. The court went on to state, however, that it has “allowed juries to correct formal and clerical errors in the recording of verdicts to which they had properly agreed. . . . [T]hat principle applies to deny finality to the original verdicts here, since the jury, by [its] own action and without any suggestion from the judge or any one else, immediately indicated that the verdicts reported did not state what [the jurors] had agreed to.” (Citations omitted.) Id., 28-29. Thus, the court concluded that there was “no impropriety in the correction of the verdicts on the murder indictments.” Id., 29. Other courts similarly have permitted juries to correct their verdicts prior to being discharged. E.g., State v. Myers, 318 S.C. 549, 552,459 S.E.2d 304 (1995) (because jury “remained an essentially undispersed unit, and was subjected to no outside influence” between release and reassembly, court properly reassembled jury to allow it to report “the actual verdict reached”); State v. Edwards, 15 Wash. App. 848, 851, 552 P.2d 1095 (1976) (Jury’s corrected verdict properly was received when “[t]he jury did not pass from the control of the court but merely exited the courtroom to the adjacent jury room where it would have to remain until the bailiff entered and unlocked the outside door. No member of the jury had either the time or opportunity to separate from his fellows and commingle with nonmembers of the jury, nor did the jurors renew their deliberations or discuss the merits of the cause.”), review denied, 88 Wash. 2d
2
Scrivener’s Error
The defendant next claims that the trial court incorrectly characterized the jury’s mistake in its initial verdict as a scrivener’s error. In response, the state contends that the trial court correctly characterized the jury’s mistake as a scrivener’s error.
In its memorandum of decision, the trial court concluded “that fairness and justice would not allow a scrivener’s error to thwart a true and accurate jury verdict.” As we noted previously, “[t]o the extent that the trial court has made findings of fact, our review is
Our review of the record in the present case reveals that the trial court’s finding that the initial verdict contained a scrivener’s error was not clearly erroneous. After learning that the jury had made an apparent mistake in returning its initial verdict, the trial court recalled the jury into the courtroom and directed the clerk to poll the jurors as to their intended verdict. Specifically, the trial court stated: “I received your communication . . . which indicates, ‘It must be noted that the jury found the aggravating factors outweigh the mitigating factors.’ And . . . the clerk is going to ask the foreperson ... to basically go through that jury verdict form to find out what you intended if it’s not what’s on that form to be.” In response, the foreperson responded: “We intended to sign . . . ‘yes’ to the aggravating factors overweighing the mitigating factors.” Subsequently, the court clerk asked every juror: “As to the weighing, do you unanimously agree that the aggravating factor proven beyond a reasonable doubt by the state of Connecticut outweighs the mitigating factor or factors found to exist, yes or no?” Every juror responded “yes,” signifying that the jury had intended to mark “yes,” on the initial verdict form in responding to the question of whether the jury unanimously had
3
Double Jeopardy
The defendant next claims that the trial court’s “enforcement” of the jury’s corrected verdict violated his rights against double jeopardy. In response, the state contends that the defendant’s rights against double jeopardy were not violated because “the defendant was not ‘acquitted’ of the death penalty by virtue of the jury’s clerical mistake . . . .”
The fifth amendment to the United States constitution provides in relevant part: “No person shall ... be subject for the same offense to be twice put in jeopardy
“We have recognized that the Double Jeopardy Clause consists of several protections: It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. . . . These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense. . . . The Clause operates as a bar against repeated attempts to convict, with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found guilty even though innocent.” (Citations omitted; internal quotation marks omitted.) State v. Miranda, 260 Conn. 93, 119, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002).
In the present case, the defendant claims that the “enforcement” of the jury’s second verdict violated his rights under the double jeopardy clause because the jury’s first verdict constituted “a complete and final judgment” to which jeopardy attached. The issue of whether a correction to a jury’s verdict after the verdict has been recorded, but before the jury has been discharged, violates double jeopardy principles is an issue of first impression for this court. Other courts have addressed the issue, however, and concluded that the acceptance of a jury’s corrected verdict does not violate double jeopardy principles.
In their appeal from the denial of their habeas petitions, the petitioners claimed that their due process rights were violated when the trial court allowed the jurors to correct their verdicts. Brown v. Gunter, supra, 562 F.2d 124. The First Circuit Court of Appeals noted that “two Bill of Rights provisions [were] relevant . . . [namely] the Double Jeopardy Clause of the Fifth Amendment and the right to a jury trial guaranteed by the Sixth Amendment”; id.; both of which are applicable to the states through the fourteenth amendment due process clause. See id. and nn. 3-4, citing Benton v. Maryland, supra, 395 U.S. 784, and Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). The court first noted that “[n] either provision ha[d] been violated on its face. [The petitioners] did receive a jury trial. [Furthermore] [t]he state did not reprosecute them [after] winning the original conviction[s], nor did [the state] impose a second punishment for the same criminal activity.” Brown v. Gunter, supra, 124. The court went on to explain, however, that “[t]he provisions of the Bill of Rights . . . are not empty, meaning
The court then explained that the primary danger against which the double jeopardy clause protects, namely, repeated attempts to prosecute an individual for the same offense, was not implicated when the trial court allowed the jurors to correct the verdicts. See id., 125. Specifically, the court noted that that danger is “far greater than the mere disappointment that will follow from a defendant having thought for a few moments that he had been found not guilty. Moreover, the defendant’s interest is not the only one at stake. We must also consider the societal interest in punishing one whose guilt is clear after he has obtained [a fair] trial. . . . Given that the harm to the [petitioners] is minor and that a jury has found them guilty, we conclude that the purposes of the Double Jeopardy Clause have not been undercut.” (Citation omitted; internal quotation marks omitted.) Id.
Similarly, in United States v. Stauffer, 922 F.2d 508 (9th Cir. 1990), the Ninth Circuit Court of Appeals concluded that the trial court in that case “did not alter the jury’s verdict itself; it simply corrected the verdict form to reflect the jury’s true intent. Clearly, decreasing the impact of a judgment is less problematic to a defendant than expanding its impact. Still ... no possible unfairness can be found in a judgment that reflects the jury’s true intent. Despite [the defendant’s] admirable effort to persuade this [c]ourt that his right to be free from double jeopardy has been violated, the facts do not support a conclusion that the double jeopardy clause has been compromised . . . .” Id., 514.
The defendant nevertheless relies on State v. Green, 995 S.W.2d 591 (Tenn. Crim. App. 1998), in support of his claim that the trial court’s acceptance of the jury’s second verdict violated the double jeopardy clause. In Green, the defendant, Rachel Marie Green, was charged with facilitation of first degree murder and facilitation of attempted first degree murder. Id., 598. The trial court charged the jury with respect to those crimes and the lesser included crimes of facilitation of second degree murder and facilitation of attempted second degree murder. Id., 607. After between one and two days of deliberations, the jury informed the trial court that it had reached a verdict. Id. When the jury entered the courtroom, the trial court asked the jury foreperson what the jury’s verdict was regarding both counts of facilitation, to which the foreperson responded, “Not guilty.” (Internal quotation marks omitted.) Id. The trial court then verbally discharged the jury. Id. Thereafter,
On appeal, Green claimed, inter alia, that the reassembly of the jury violated her rights under the double jeopardy clause. See id., 614. The Tennessee Court of Criminal Appeals first concluded that the jury had been discharged before it had been reassembled to correct its verdict. Id., 613, 614. The court reasoned that most, if not all, of the jury members had exited the courtroom and entered into an area that was occupied by members of the public who were reacting to the outcome of the trial. Id., 613. Thus, the court concluded that there existed a possibility that the jurors had had contact with outsiders, and, therefore, the jury was “discharged” prior to being polled about its intended verdict. Id. The Tennessee Court of Criminal Appeals concluded that, because the jury had been discharged, the trial court improperly permitted the jury to correct its verdict. Id., 614. Accordingly, “[t]he not guilty verdicts reported by the jury, coupled with the discharge
The defendant’s reliance on Green is misplaced. We previously concluded that the trial court properly determined that the jury had not been discharged before being reassembled for the purpose of correcting its verdict. Accordingly, contrary to Green, in which the jury already had been discharged, the trial court’s acceptance of the jury’s corrected verdict in the present case did not violate the double jeopardy clause.
4
Cruel and Unusual Punishment
The defendant finally claims that the trial court’s acceptance of the jury’s corrected verdict violated his right to be free from cruel and unusual punishments under the eighth109 and fourteenth110 amendments to the United States constitution. We disagree.
It is axiomatic that a capital defendant has an eighth amendment right to “a capital sentencing jury [that] recognizes the gravity of its task and [that] proceeds with the appropriate awareness of its truly awesome responsibility.” (Internal quotation marks omitted.) Caldwell v. Mississippi, 472 U.S. 320, 341, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985). Additionally, in capital cases, the eighth amendment requires a “heightened need for reliability in the determination that death is the appropriate punishment in a specific case.” (Internal quotation marks omitted.) Id., 340; accord State v. Reynolds, supra, 264 Conn. 177. We conclude, however, that the procedures employed by the trial court in the
After the trial court properly reassembled the jury upon discovering its apparent mistake, the trial court polled each juror to determine whether the jurors “unanimously agree[d] that the aggravating factor proven beyond a reasonable doubt by the state of Connecticut outweigh [ed] the mitigating factor or factors found to exist . . . .” Each juror responded affirmatively. The trial court also asked each juror to respond to the following question: “Has anyone forced you or threatened you or influenced any of you in any way in coming back here and saying that [you had found that the aggravating factor outweighed the mitigating factor or factors]?” Each juror responded, “No.” Additionally, when the jurors returned a second time, after completing the second verdict form, the court clerk asked each juror to respond to the following question: “Does the aggravating factor proved beyond a reasonable doubt [by] the state of Connecticut outweigh any mitigating factor or factors known to exist?” Each juror responded affirmatively. The trial court also asked the jurors, as a group, whether they understood what sentence the court would impose as a result of their corrected verdict form. The jury foreperson responded, “[y]es,” and indicated that the jury understood that “[t]he death penalty” would be imposed.
Furthermore, after the corrected verdict had been accepted, the trial court, Damiani, J., held an evidentiary hearing to determine the propriety of the jury’s contact with court personnel before the court had reassembled the jury. At that hearing, each juror testified that his or her intended verdict when initially entering the courtroom was that the defendant receive the death penalty. With this factual background in mind, we conclude that the procedures utilized by the trial court
C
Right of Allocution
The defendant next claims that the trial court improperly denied him his right of allocution. The defendant claims that the trial court’s denial of the right of allocution violated: (1) Practice Book § 43-10 (3)111 and the common law; (2) § 53a-46a; (3) the sixth, eighth and fourteenth amendments to the federal constitution; and (4) article first, § 8, of the Connecticut constitution.112
The following additional facts guide our resolution of the defendant’s claims. At the conclusion of the presentation of evidence at the defendant’s penalty phase hearing, but prior to closing arguments, the defendant filed a motion to schedule an allocution. The defendant asserted that the rules of practice, the sixth, eighth and fourteenth amendments to the federal constitution, and this court’s decision in State v. Strickland, 243 Conn. 339, 354, 703 A.2d 109 (1997), afforded him the right to make a statement to the jury. Thereafter, the trial court
We begin our review of the defendant’s claims by setting forth the applicable standard of review. The issue of whether the right of allocution applies in capital sentencing hearings is a question of law. Accordingly, our review is plenary. See State v. Valendon, 261 Conn. 381, 385, 802 A.2d 836 (2002).
“At common law, [a] defendant in a felony case had a right called ‘allocution’ to be asked formally whether he had any reason to offer why judgment should not be awarded against him. ... To place this right in its correct historical perspective, it must be considered that under the ancient English common law a person on trial for a felony was not allowed counsel and was not a competent witness in his own behalf. . . . The presiding judge theoretically was his counsel but did not represent the accused in the sense of a modem day advocate. If the judge omitted anything which was the right or privilege of the accused, it was considered the act of the court, which could not prejudice the prisoner.
1
Right of Allocution under the Common Law, General Statutes and Rules of Practice
The defendant first claims that both Practice Book § 43-10 (3) and the common law afford capital defendants a right of allocution during the penalty phase.115
Our review of those authorities reveals that several courts have concluded that there is no statutory or common-law right of allocution in a capital sentencing hearing. State v. Perkins, 345 N.C. 254, 289, 481 S.E.2d 25 (“a defendant does not have a . . . statutory . . . or common law right to make unsworn statements of fact to the jury at the conclusion of a capital sentencing proceeding”), cert. denied, 522 U.S. 837, 118 S. Ct. 111, 139 L. Ed. 2d 64 (1997); Duckett v. State, 919 P.2d 7, 22 (Okla. Crim. App. 1995) (in capital case, court concluded that “there is no statutory . . . [or] common-law . . . right of a defendant to make a plea for mercy or otherwise address his sentencing jury, in addition to closing argument by counsel”), cert. denied, 519 U.S. 1131, 117 S. Ct. 991, 136 L. Ed. 2d 872 (1997); State v.
In contrast to this approach, some courts have concluded that the common-law right of allocution applies to capital sentencing hearings. The majority of these jurisdictions, however, limit the right of allocution to pleas of mercy or leniency and expressions of future hope. Harris v. State, 306 Md. 344, 359, 509 A.2d 120 (1986) (“under the common law applicable to capital sentencing proceedings at the time [the defendant] was sentenced, a defendant who timely asserts his right to allocute, and provides an acceptable proffer, must be afforded a fair opportunity to exercise this right”); Homick v. State, 108 Nev. 127, 133-34, 825 P.2d 600
Having reviewed the foregoing authorities, we are persuaded that the better course is to conclude that there is no right of allocution within the structured setting of a capital sentencing hearing. In so concluding, we are particularly persuaded by the reasoning of the Pennsylvania Supreme Court in Commonwealth v. Abu-Jamal, supra, 521 Pa. 188. lax Abu-Jamal, a capital case, the defendant, Mumia Abu-Jamal, claimed that the trial court improperly had permitted the state to cross-examine him during his capital sentencing hearing. Id., 211. Abu-Jamal’s claim was premised on his contention that he was exercising his common-law right of allocution and, therefore, should not have been subject to cross-examination. Id., 211-12. In rejecting Abu-Jamal’s claim, the court noted that certain rules of criminal procedure applied specifically to capital cases and that AbuJamal’s reliance on rules that applied to noncapital cases was misplaced. See id., 212. More importantly, however, the court rejected the notion that the com
“It is apparent from the structure provided that this evidentiary hearing is intended to serve as part of the ‘truth-determining process’ to enable the sentencer to discern and apply the facts bearing on the determination of the appropriate sentence. Implicit in the fact that the statute assigns to the defendant the burden of proving mitigating circumstances by a preponderance of evidence is the understanding that the jury is to asses [s] the evidence for credibility. It must be left open for the [commonwealth to challenge the veracity of facts asserted and the credibility of the person asserting those facts, whether that person is a witness or the defendant. We find no reason in law or logic why the defendant’s presentation of evidence in support of his claim that life imprisonment is the appropriate sentence should be shielded from the testing for truthfulness and reliability that is accomplished by cross-examination.” Id.; see also United States v. Hall, supra, 152 F.3d 392-93 (“[federal death penalty statute] counsels against construing [federal rule of criminal procedure permitting allocution] as establishing an unconditional right for the defendant to make an unsworn statement of remorse to the jury . . . [because the death penalty statute] sets
In devising this state’s capital sentencing scheme, the legislature clearly set forth, in detail, the procedures to be followed by the courts in capital sentencing hearings, including the procedure governing the type of evidence that may be admitted. Specifically, General Statutes (Rev. to 1997) § 53a-46a (c) provides in relevant part: “Any information relevant to any mitigating factor may be presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but the admissibility of information relevant to any of the aggravating factors set forth in subsection (i) shall be governed by the rules governing the admission of evidence in such trials. The state and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any mitigating or aggravating factor. ...” (Emphasis added.) In addition, mitigating factors are those that, “in fairness and mercy, may be considered as tending either to extenuate or reduce the
This point is a particularly apt response to the assertion of Justice Katz in her concurrence and dissent that the defendant has a right to make an unsworn plea for mercy to the jury that is free from cross-examination, albeit subject to extensive oversight and editing by the trial court. We agree with Justice Katz’ suggestion that the principal goal of allocution is the dispensation of mercy. Indeed, we suggested as much in Strickland. See State v. Strickland, supra, 243 Conn. 344-45. In our view, however, that consideration counsels strongly in favor of the conclusion that the defendant has no right of allocution in a penalty phase hearing. The statutory scheme, which permits cross-examination and rebuttal by the state, specifically contemplates mercy as one of the factors for the jury to consider in making its life- or-death decision. See General Statutes (Rev. to 1997) § 53a-46a (c) and (d). It would be fundamentally inconsistent with that scheme, therefore, to afford the defendant the right to make a plea for mercy to the jury through an unsworn statement that is free from cross-examination.
The statute also places the burden of establishing the existence of mitigating factors on the defendant. In doing so, the legislature established a specific structure within which the state is permitted “to challenge the veracity of facts asserted and the credibility of the person asserting those facts.” Commonwealth v. Abu-Jamal, supra, 521 Pa. 213. Moreover, the procedures
2
Federal Constitutional Right of Allocution
The defendant also claims that he possesses a federal constitutional right to ailocute before his capital sentencing jury. Specifically, the defendant claims that the trial court’s denial of his opportunity to make an allocution before the jury deprived him of his right to due process under the fourteenth amendment to the United States constitution and his right to present a defense under the sixth amendment to the United States constitution, which is made applicable to the states through the due process clause of the fourteenth amendment.121
We initially note that the United States Supreme Court never has addressed the issue of whether a defendant has a constitutional right of allocution in a capital sentencing hearing. See State v. Carr, supra, 172 Conn. 475. The United States Supreme Court has determined, however, that a trial court’s violation of the Federal Rules of Criminal Procedure by virtue of its failure to ask a defendant whether he wished to make a statement prior to sentencing did not result in a constitutional violation. Hill v. United States, supra, 368 U.S. 428. Specifically, the court determined that the failure of the trial court to ask the petitioner, who was represented by counsel, whether he wanted to exercise his rights under the rule was “an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure.” (Emphasis added.) Id. The court specifically noted, however, that it was not deciding whether a constitutional violation would have existed if the court affirmatively had denied the petitioner’s request to speak during the hearing at which his sentence had been imposed. Id., 429.
Although the United States Supreme Court never has addressed the precise issue of whether a defendant
After determining that a defendant does not have a right of allocution in a capital case under the Federal Rules of Criminal Procedure; see id., 393; the Fifth Circuit then determined that there is no “constitutional right to make an unsworn statement of remorse before the jury that is not subject to cross examination.” Id., 396. The court first noted that, “[n] either the government nor Hall [the defendant] contended] that [he] would not have been permitted to testify at the sentencing hearing and thereby in his own words introduce any information relevant to a mitigating factor.” (Internal quotation marks omitted.) Id. The court further explained: “We simply cannot conclude that fundamental fairness required that Hall be allowed to make such a statement without being sworn or subject to cross-examination.” Id. This point, in addition to the numerous state court decisions rejecting a constitutional right of allocution, led the Fifth Circuit to conclude that a defendant does not possess a constitutional right of allocution. The Fourth Circuit Court of Appeals has adopted the Fifth Circuit’s decision in Hall, also concluding that a defendant does not have a constitutional
In addition, several state courts have concluded that a defendant does not possess a constitutional right to make an allocution before a capital sentencing jury. See, e.g., People v. Robbins, 45 Cal. 3d 867, 889, 755 P.2d 355, 248 Cal. Rptr. 172 (1988) (in light of defendant’s opportunity to present evidence and to take stand to address jury during sentencing phase of capital trial, “we fail to see the need, much less a constitutional requirement, for a corresponding right to address the sentencer without being subject to cross-examination” [internal quotation marks omitted]), cert. denied, 488 U.S. 1034,109 S. Ct. 849,102 L. Ed. 2d 981 (1989); People v. Kokoraleis, 132 Ill. 2d 235, 281, 547 N.E.2d 202 (1989) (in capital case, court concluded that “[t]he failure to provide a defendant the opportunity to make a statement before being sentenced is not a constitutional deprivation”), cert. denied, 497 U.S. 1032, 110 S. Ct. 3296, 111 L. Ed. 2d 804 (1990); State v. Perkins, supra, 345 N.C. 289 (“a defendant does not have a constitutional . . . right to make unsworn statements of fact to the juiy at the conclusion of a capital sentencing proceeding”); Duckett v. State, supra, 919 P.2d 22 (“there is no . . . constitutional right ... to make a plea for mercy or otherwise address [the] sentencing jury”); State v. Stephenson, supra, 878 S.W.2d 551 (“our review of the case law convinces us that a capital defendant does not have a . . . constitutional right to make an unsworn statement to a jury in the sentencing phase of a capital trial”).
We are persuaded by these authorities and conclude that a defendant does not possess a federal constitutional right of allocution in a capital sentencing hearing. It is clear to us that the purpose of allowing allocution, namely, to permit the defendant to introduce to the jury information relevant to the defendant’s plea for mercy,
State Constitutional Right of Allocution
The defendant next claims that, even if we conclude that there is no federal constitutional right of allocution in a capital sentencing hearing, such a right is guaranteed under article first, § 8, of the Connecticut constitution. Specifically, the defendant claims that the command that “the accused shall have a right to be heard by himself and by counsel” provides a state constitutional basis for the right of allocution in a capital sentencing hearing. We disagree.
“The analytical framework by which we determine whether, in any given instance, our state constitution affords broader protection to our citizens than the federal constitutional minimum is well settled. In State v. Geisler, supra, 222 Conn. 684-86, we enumerated the following six factors to be considered in determining that issue: (1) persuasive relevant federal precedents;
(2) the text of the operative constitutional provisions;
(3) historical insights into the intent of our constitutional forebears; (4) related Connecticut precedents; (5) persuasive precedents of other state courts; and (6) contemporary understandings of applicable economic and sociological norms, or as otherwise described, relevant public policies.” (Internal quotation marks omitted.) State v. Rizzo, supra, 266 Conn. 207-208.
The first Geisler factor we consider is persuasive relevant federal precedents. This factor favors a determination that our state constitution does not afford greater protection than the federal constitution because, as we discussed previously, at least two federal circuit courts have concluded that a capital defendant does not have a constitutional right to make an
The next Geisler factor is “the text of the operative constitutional provisions . . . .” (Internal quotation marks omitted.) State v. Rizzo, supra, 266 Conn. 208. The text of article first, § 8, which affords a criminal defendant the “right to be heard by himself and by counsel,” appears neutral. Although the text does provide that the defendant has a right to be heard by himself, there is nothing to suggest that the framers intended that this clause specifically would afford a defendant the right of allocution in a capital sentencing proceeding.
We also consider related Connecticut precedents and any historical insight into the intent of our constitutional forebears. See State v. Rizzo, supra, 266 Conn. 208. We are persuaded that both these factors weigh in favor of a determination that article first, § 8, does not afford greater protection than the federal constitution.
In State v. Gethers, 197 Conn. 369, 370, 497 A.2d 408 (1985), the defendant, David Gethers, was charged with, and subsequently convicted of, tampering with a witness in violation of General Statutes § 53a-151.123 On appeal to this court, Gethers claimed, inter alia, that the trial court had violated his state constitutional right
In examining the historical background of article first, § 8, we explained that “there [were] two related yet separate legal developments that may have culminated in the original adoption of this provision of the first Connecticut constitution in 1818.
“First, the independent right of an individual accused of the commission of a crime to self-representation had evolved.” Id., 388. Under the common law, “[t]he right to counsel . . . emerged as guaranteeing a choice between representation by counsel and the traditional practice of self-representation. . . .
“Historically, [i]n the American Colonies the insistence upon a right of self-representation was, if anything, more fervent than in England. . . . Because lawyers in colonial America were identified with the Crown, distrust of lawyers was institutionalized as several colonies, including Connecticut, initially prohibited pleading for hire in the [seventeenth] century. ... By the end of that century, however, the right to counsel had been established in Connecticut. . . .
“Thus, by the time of the adoption of our first state constitution in 1818, a defendant in a criminal case had the right to present a defense, including one by counsel,
The second legal development was the evolution of the criminal defendant’s competency to testify at trial. Id. “By 1818 . . . one accused of a crime in our state had no right to testify in his own behalf. He could however, be ‘heard’ in his role as defendant by making an unsworn statement himself. The provision in article first, § 8, that guarantees the accused ‘a right to be heard by himself and by counsel’ may have been intended by the framers ‘to insure that every accused citizen enjoyed the benefit of counsel and a correlative right to be heard in person.’ ” Id., 392. We concluded, however, that we did not need to decide which one of these historical backgrounds was more persuasive because “there [was] scant evidence that the framers ever intended, much less imagined, any such result. [Article first, § 8] has not previously been so construed by this court.” Id., 393.
We are persuaded that the right encompassed by article first, § 8, as we explained in Gethers, is that of self-representation and not a right to make an allocution
In addition, construing article first, § 8, as affording a criminal defendant a right to make an allocution to a capital sentencing jury would be inconsistent with other Connecticut precedent. In State v. Carr, supra, 172 Conn. 459, the defendant, Benjamin Carr, Jr., who had been convicted of bribing public servants, claimed that the trial court improperly had denied him a right of allocution. Id., 459-60, 473. After examining the origins of the common-law right of allocution, we noted that a trial court’s failure to ask a defendant if he has something to say is “not an error of constitutional dimensions.” Id., 475, citing Hill v. United States, supra, 368 U.S. 428. We also noted that, “[although our state constitution, article first, § 8, provides that an ‘accused shall have a right to be heard by himself and by counsel,’ we have never precisely construed this provision. Similar provisions in other states have not been construed to entitle an accused as a matter of right to be heard by both himself and by counsel.” State v. Carr, supra, 475. We went on to conclude that the trial court did not improperly deny the defendant the right to make an allocution prior to being sentenced. Id., 477. Thus, in Carr, we impliedly rejected the notion that the right
The next Geisler factor is “persuasive precedents of other state courts . . . .” State v. Rizzo, supra, 266 Conn. 208. Our research reveals that at least two states have concluded that similar state constitutional provisions do not afford a criminal defendant the right to make an allocution to a capital sentencing jury. In State v. Stephenson, supra, 878 S.W.2d 530, the Supreme Court of Tennessee rejected a claim that article first, § 9, of the constitution of Tennessee129 permits a capital defendant to make an unsworn statement to the capital sentencing jury. See id., 552. The court explained “that the framers intended to insure that every accused citizen enjoyed the benefit of counsel and a correlative right to be heard in person.” (Internal quotation marks omitted.) Id. Inasmuch as the common-law rule permitting a defendant to make an unsworn statement to the jury was rooted in the defendant’s incompetency to testify, a rule eliminated by modem criminal procedure, the court concluded that “[t]he practice is no longer necessary or desirable in light of the abolition of those harsh rales and the development of rules protecting the rights of criminal defendants. Moreover, allocution is not necessary to protect the right of a capital defendant to present mitigating evidence in person to the sentencing jury.” Id.
Similarly, in Duckett v. State, supra, 919 P.2d 7, the defendant, Robert Don Duckett, claimed that his due
The final Geisler factor is that of relevant public policies. State v. Rizzo, supra, 266 Conn. 208. We conclude that this factor also militates against the defendant’s claim that the right of allocution in capital sentencing hearings is guaranteed by our state constitution. In our view, § 53a-46a, which affords the capital defendant an opportunity to present any information relevant to mitigation, adequately protects the defendant’s rights during a capital sentencing hearing. Accordingly, because none of the Geisler factors favors the defendant’s claim that article first, § 8, guarantees him the right of allocution in a capital sentencing hearing, we conclude that the trial court’s denial of the defendant’s request to make an allocution during the penalty phase did not violate article first, § 8, of the Connecticut constitution.
D
Evidence of Prior Misconduct
The defendant next claims that the trial court improperly permitted the state to introduce evidence of the defendant’s misconduct toward the victim during the week prior to the victim’s death. Specifically, the defen
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