State v. Miranda , 327 Conn. 451 ( 2018 )

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STATE OF CONNECTICUT v. PEDRO L. MIRANDA
(SC 19597)
Rogers, C. J., and Palmer, Eveleigh, McDonald,
Robinson, D’Auria and Vertefeuille, Js.
Syllabus
Convicted of the crime of murder in connection with the death of the victim,
the defendant appealed to this court. At trial, the victim’s mother was
asked, on direct examination by the state, whether she had heard infor-
mation relating the defendant to the victim’s disappearance. The defen-
dant objected on the basis of relevancy, and the trial court overruled
that objection. The victim’s mother responded in the affirmative, and
the defendant did not raise any additional objections. Subsequently,
another state’s witness, D, testified that he had seen the victim get into
a car on the day of her disappearance and that, although he did not see
the driver’s face, that person had a light complexion, a mustache, and
curly brown or black hair. D then testified that he had relied on guidance
from God in identifying the driver in a photographic array presented by
the police. The defendant objected, and the jury was excused. Thereafter,
the trial court ruled that the testimony regarding the photographic array
was inadmissible. The jury returned, and D’s testimony concluded with-
out further discussion of his identification. Subsequently, the trial court,
noting its concern that the defendant’s objection was not sustained in
the jury’s presence, indicated that D’s improper testimony could be
addressed in the jury charge and offered to address the matter prior to
the charge if requested. Defense counsel then indicated to the court
that he was working on language for an instruction. The trial court
subsequently received the defendant’s request to charge and reviewed
its proposed instructions with the parties. The trial court ultimately
instructed the jury that it had sustained the objection to D’s testimony
and that any answer given after that objection should be disregarded.
On appeal, the defendant claimed that the trial court incorrectly failed
to strike D’s improper testimony. The defendant further claimed that
the trial court improperly permitted the victim’s mother to testify that
she had heard information relating the defendant to the victim’s disap-
pearance because that testimony constituted inadmissible hearsay. Held:
1. The defendant expressly waived his claim that the trial court incorrectly
failed to strike D’s improper testimony; the defendant had approved
of the trial court’s proposed remedy for D’s improper testimony by
expressing satisfaction with the trial court’s plan to use an instruction,
by declining to request action by the trial court before it issued that
instruction, and by ultimately approving of the trial court’s proposed
instruction.
2. The defendant’s claim that the trial court improperly permitted the victim’s
mother to testify that she had heard information relating the defendant to
the victim’s disappearance on the ground that it constituted inadmissible
hearsay was unpreserved and, accordingly, unreviewable; the defendant
objected to that testimony on the basis of relevancy, and, thus, the trial
court had no notice or opportunity to consider the issue of hearsay.
(Two justices concurring separately in one opinion)
Argued September 13—officially released January 2, 2018
Procedural History
Information charging the defendant with the crime
of murder, brought to the Superior Court in the judicial
district of Hartford and tried to the jury before the
court, Hon. John F. Mulcahy, judge trial referee; verdict
and judgment of guilty, from which the defendant
appealed to this court. Affirmed.
Daniel J. Foster, assigned counsel, for the appel-
lant (defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and David Zagaja, senior assistant state’s
attorney, for the appellee (state).
Opinion
ROBINSON, J. The defendant, Pedro L. Miranda,
appeals1 from the judgment of conviction, rendered
after a jury trial, of one count of murder in violation
of General Statutes § 53a-54a. On appeal, the defendant
claims that the trial court improperly, (1) failed to strike
the testimony of a witness who claimed that guidance
from God, rather than his own recollection, had led
him to identify the perpetrator in a photographic array,
after the court ruled, in the jury’s absence, that this
testimony was inadmissible, and (2) permitted the vic-
tim’s mother to testify that she had heard that the defen-
dant was connected to the victim’s disappearance. We
conclude that the defendant waived his first claim and
failed to preserve his second claim. Accordingly, we
affirm the judgment of the trial court.
The record reveals the following facts, which the jury
reasonably could have found, and procedural history.
On October 8, 1987, the thirteen year old victim, Mayra
C., left her apartment in Hartford, where she lived with
her mother, Norma C., and siblings, and began walking
to school. Although the victim ordinarily walked to
school with friends, that morning she had left early to
work on a school project and was traveling alone. At
about the same time, Jose Diaz and his brother, who
were both employed as maintenance workers in a
nearby building, were walking on Sigourney Street in
Hartford. Diaz’ brother recognized the victim because
he had frequently seen her walking by on her way to
school. That morning, Diaz and his brother heard a car
horn sound and noticed a yellow Nissan Datsun stopped
at an intersection approximately twenty feet away. Diaz
and his brother saw the driver of the Datsun lower
the window and speak with the victim. Diaz’ brother
explained that, based on the expression on the victim’s
face, it appeared that she knew the driver. Diaz and his
brother saw only the driver’s profile, but were able to
describe him as a Hispanic male with light or medium
complexion, brown or black curly hair, and a mustache.
Diaz and his brother then saw the victim get into the
Datsun, which then drove away.
Later that day, when the victim did not return home,
the victim’s mother became concerned and went to the
victim’s school. After the school informed her that the
victim had never arrived at school that day, she called
the police. While the victim was still missing, the defen-
dant contacted the victim’s mother and informed her
that he had nothing to do with the victim’s death.
Although the victim’s mother had known the defendant
for several years, because the two lived in the same
apartment building, she did not know him well.
On November 8, 1987, two hikers found the victim’s
body in a wooded area adjacent to Gardner’s Nurseries
in the town of East Windsor, where the defendant had
once been employed. The victim’s body had suffered
from extensive decomposition. An autopsy of the victim
revealed several fractures to the left side of her skull
that resulted from two or more blows to her head with
a blunt object. Although the victim’s brain tissue was
too decomposed to develop a full understanding of what
had happened, bloody tissue found between her skull
and her brain indicated that the blunt force trauma to
her skull caused bleeding of the brain, which resulted
in her death.
Thereafter, the police interviewed employees of the
nursery. Employees of the nursery testified that the
defendant had been employed there and that he drove
a yellow Datsun to work. Moreover, the employees
reported seeing a yellow Datsun coming down a dirt
road in the nursery on a Saturday in October, 1987,
between 1 and 1:30 p.m. They were unable to see the
driver, but they assumed it was the defendant. The
Datsun disappeared over a hill near the wooded area
where the victim’s body was ultimately discovered. The
Datsun was out of sight for about ten minutes, and then
it reappeared on the dirt road and drove off the
property.
After the victim’s body was found, the police estab-
lished surveillance of her wake to look for a vehicle
matching the one described by Diaz and his brother.
The police observed a yellow Datsun parked on the
street near the funeral home with a Hispanic male
driver, who turned out to be the defendant. Officers
approached the vehicle and asked the defendant if he
would be willing to accompany them to the police sta-
tion for an interview. The defendant agreed. The defen-
dant was ultimately interviewed by the police three
times, on November 12, November 14, and December
3, 1987.
During those interviews, the defendant informed the
police that he lived in Springfield, Massachusetts, but,
at the time the victim had gone missing, he had been
staying at his girlfriend’s residence on Dexter Street in
Hartford. He also told the police that, on October 8,
1987, he had gone to work at an insurance company in
Simsbury at approximately 6 a.m. and had come home
around noon. The police later learned from his
employer, however, that he had not reported to work
that day. The defendant later stated that he had not
gone to work that day because he was feeling sick to
his stomach. The defendant explained that he had been
parked near the funeral home because he had given
two people a ride from Massachusetts to Hartford,
although he did not know their names. He further
explained to the police that he had been visiting a man
named Juan who lived in Hartford. Despite these inter-
views, the investigation into the victim’s death went
cold.
Twenty-one years later, the police reinitiated their
investigation and, on December 5, 2008, arrested the
defendant for the victim’s murder. The state charged
the defendant with one count of murder in violation of
§ 53a-54a. The case was tried to a jury, which subse-
quently returned a verdict of guilty. The trial court ren-
dered a judgment of conviction in accordance with the
jury’s verdict and sentenced the defendant to sixty years
of imprisonment to be served consecutively to a life
sentence that he was already serving in connection with
an unrelated case. This appeal followed. See footnote
1 of this opinion. Additional relevant facts will be set
forth as necessary.
I
We begin with the defendant’s claim that the trial
court improperly failed to strike certain testimony from
a witness who stated that guidance from God, rather
than his own recollection, had led him to identify the
perpetrator in a photographic array, after the court
ruled, in the jury’s absence, that this testimony was inad-
missible.
The following additional facts and procedural history
are relevant to our resolution of this claim. At the defen-
dant’s trial, Diaz testified about what he had seen on
the morning of October 8, 1987. Diaz testified that he
had not seen the face of the driver of the yellow Datsun
that morning because he had observed the driver from
the side only. He was, however, able to describe the
driver as having a light complexion, a mustache, and
curly brown or black hair. The state then showed Diaz
eight photographs, which were marked as an exhibit
for identification purposes, and Diaz confirmed that the
police had shown him those photographs in 2008 while
questioning him about what he had seen on October 8,
1987. The following colloquy then occurred:
‘‘[The Prosecutor]: Based on reviewing the pictures
. . . were you able to identify anyone in that set of
pictures?
‘‘[The Witness]: Look, it was the same that I told
them. I sat down, they brought the album, and I’m a
Christian, I asked God for direction. When I looked at
the pictures, my eyesight was brought to this one pic-
ture and I started crying and the officer asked me what
was going [on], and I told him I asked God for direction.
And I pointed to picture number [five].
‘‘[Defense Counsel]: Your Honor . . . I would object.
I don’t know that I have ever had an identification based
upon direction from God, and I’m going to object to
this entire line of inquiry or any identification that this
witness may have made based on divine intervention.
Your Honor, it’s clear that there are practices and proce-
dures that need to be followed, and this is not one
of them.
‘‘The Court: The question has been answered. Fair
to be cross-examined, I suppose. Yes. Do you wish to
be heard or do you want the jury excused?
‘‘[Defense Counsel]: I would ask that they be excused,
Your Honor.’’
The trial court then excused the jury, and the state
sought to rehabilitate Diaz’ identification as being based
in part on his recollection of seeing the driver, but Diaz
repeatedly stated that his identification was based on
a divine message, and not his own recollection. The
defendant did not ask Diaz any questions, but reiterated
his objection that the testimony was improper and prej-
udicial. After further argument and discussion, the court
ruled, in the jury’s absence, as follows: ‘‘[The witness]
says that [his] identification [was] not based on recollec-
tion of the appearance of the person. Under those cir-
cumstances, I don’t feel I can allow it.’’ The court then
took a brief recess during which it requested to see
both attorneys in chambers. After the recess, the jury
returned, and the state finished its examination of Diaz
without further discussion of the identification of the
driver. The court did not inform the jury that it had
sustained the defendant’s objection, and the defendant
did not ask the court to notify the jury or to instruct
the jury to disregard Diaz’ answer.
Two days later, on February 25, 2015, the trial court
noted the following outside the presence of the jury:
‘‘We did have a conversation this morning in chambers
regarding the identification or lack of identification by
[Diaz], and I did indicate that that could be addressed
in the charge to the jury, but if there was anything
you felt should be addressed preliminarily, just let me
know, that is, prior to the charging conference. My
concern was and I’m not sure that the objection was
sustained in the presence of the jury.’’ (Emphasis
added.) The defendant did not object to the procedure
proposed by the court or ask that the issue be remedied
prior to the jury charge. To the contrary, defense coun-
sel indicated that he was working on language for the
court to use in its jury instruction.
Thereafter, on March 2, 2015, the defendant filed a
written request to charge regarding Diaz’ testimony,
in which the defendant argued that, although he had
‘‘objected to [Diaz’] testimony and no specific identifica-
tion of the defendant was made by [Diaz] in front of
the jury, [the] defendant believes that some instruction
is needed so that the jury understands that the [c]ourt
sustained [the] objection to the proffered testimony.’’
The defendant’s proposed instruction provided in rele-
vant part: ‘‘Since the [c]ourt sustained this objection,
whatever you may have heard of [Diaz’] answer at that
time, you must disregard that testimony and it is not
to be considered by you at any time during your deliber-
ations on the evidence in this case.’’
On March 3, 2015, during a charging conference, the
parties indicated that they had an opportunity to review
the trial court’s proposed jury instructions. The court’s
instruction with respect to Diaz’ improper testimony
was substantially similar to the defendant’s proposed
instruction, providing in relevant part: ‘‘Accordingly
because the Court sustained this objection, whatever
you may have heard of [Diaz’] answers after [the defen-
dant] objected must be disregarded and not be consid-
ered by you at any time during your deliberations.’’
(Emphasis added.) The defendant indicated no objec-
tion to this instruction. Specifically, when the court
asked whether this instruction was ‘‘okay,’’ defense
counsel responded, ‘‘[r]ight.’’
On March 4, 2015, at a second charging conference,
the defendant raised issues with respect to some of the
trial court’s instructions regarding eyewitness identifi-
cation,2 but did not object to the proposed instruction
regarding Diaz’ testimony. As such, during its final
charge to the jury, the court gave the instruction regard-
ing Diaz’ testimony that the parties had previously
approved. Additionally, at the defendant’s request, the
court instructed the jury that ‘‘there was no direct evi-
dence identifying the defendant as the perpetrator of
the murder of [the victim].’’
On appeal, the defendant claims that the trial court
should have stricken Diaz’ testimony that God had
directed him to identify the perpetrator in the photo-
graphic array.3 Specifically, the defendant contends
that, because the court sustained the defendant’s objec-
tion outside the presence of the jury, Diaz’ improper
testimony remained in the case, and the jury could
therefore have drawn reasonable inferences from it.
Moreover, the defendant contends that the court’s
instruction to the jury regarding Diaz’ improper testi-
mony did not adequately remedy the issue. Specifically,
the defendant takes issue with the portion of the instruc-
tion that directed the jury to disregard testimony given
by Diaz after the objection. Given that the improper
testimony occurred prior to the objection, the defen-
dant contends that the instruction improperly directed
the jury to disregard testimony given after the objection,
not prior to it.
In response, the state argues, inter alia, that the defen-
dant’s claim is unreviewable because he waived this
claim before the trial court.4 Specifically, the state con-
tends that not only did the defendant fail to request
that the court notify the jury that it had sustained the
objection or strike Diaz’ improper testimony, but he
also explicitly approved of the court’s proposed remedy
through the issuance of instructions to the jury.
The defendant’s claim on appeal ultimately centers
on the adequacy of the remedy the trial court imple-
mented to address Diaz’ improper testimony. Specifi-
cally, the defendant argues that the trial court should
have directed the jury to disregard the improper testi-
mony and that the court’s subsequent instruction did
not remedy the issue because it directed the jury to
disregard only testimony given after the objection,
when the objectionable testimony occurred prior to
the objection. We conclude that the defendant waived
any argument with respect to the remedy fashioned to
address Diaz’ improper testimony because the defen-
dant expressly approved of the trial court’s proposed
course of action.
Waiver is the voluntary relinquishment of a known
right. See, e.g., State v. Kemah, 289 Conn. 427, 957 A.2d
852 (2008); State v. Fabricatore, 281 Conn. 469, 482
n.18, 915 A.2d 872 (2007). To determine whether a party
has waived an issue, the court will look to the conduct
of the parties. State v. Hampton, 293 Conn. 435, 449,
978 A.2d 1089 (2009). ‘‘[W]aiver may be effected by
action of counsel. . . . When a party consents to or
expresses satisfaction with an issue at trial, claims aris-
ing from that issue are deemed waived and may not be
reviewed on appeal.’’ (Internal quotation marks omit-
ted.) State v. Foster, 293 Conn. 327, 337, 977 A.2d 199
(2009). Likewise, a defendant is not permitted to induce
a potentially harmful error at trial and then ambush the
trial court with that claim on appeal. State v. Fabrica-
tore, supra, 482.
In the present case, the defendant approved of the
court’s proposed course of action on at least two occa-
sions. First, on February 25, 2015, when the court asked
whether either party believed that the issue should be
addressed prior to the jury instructions, defense coun-
sel expressed satisfaction with the court’s proposed
remedy by replying that he had been working on lan-
guage for the instruction. Specifically, the court offered
to intervene prior to the jury charge should a party
request it. The defendant made no such request. Second,
on March 3, 2015, the defendant affirmatively agreed
with the court’s proposed jury instruction during the
first charging conference. Accordingly, given that the
defendant never requested earlier action from the trial
court, affirmatively indicated that the court could rem-
edy the issue through the final charge to the jury, and
then ultimately approved of the court’s proposed
instructions, the defendant expressly waived any claim
that the court inadequately addressed Diaz’ improper
testimony.5
II
We next turn to the defendant’s claim that the trial
court improperly admitted testimony that the victim’s
mother had heard that the defendant was connected to
the victim’s disappearance. The following additional
facts and procedural history are relevant to our resolu-
tion of this claim. During direct examination by the
state, the victim’s mother testified that she knew the
defendant through her sister-in-law and that, although
she had known him for many years, she did not know
him well. The victim’s mother further testified that the
defendant was familiar with her children because he
had once lived in the same apartment building. Although
the defendant was not still living in that building in
October, 1987, the victim’s mother testified that she
would occasionally see the defendant driving his Datsun
in the neighborhood. The following exchange then
occurred:
‘‘[The Prosecutor]: Now, during that month, from
when [the victim] went missing until her body [was]
found, did you ever hear anything about [the defendant]
as it related to the disappearance of [the victim]?
‘‘[Defense Counsel]: Objection, Your Honor, as to the
relevance of what they heard about that.
‘‘[The Prosecutor]: I would claim its relevance, Your
Honor, and I’m asking just yes or no.
‘‘The Court: Yes or no, I allow that. Objection is
overruled.
‘‘[The Prosecutor]: During that month did you ever
hear any information about [the defendant] as it related
to [the victim’s] disappearing?
‘‘[The Witness]: Yes, sir.
‘‘[The Prosecutor]: With that information, did you
ever tell the police about that information?
‘‘[The Witness]: Yes.’’
The defendant did not raise any additional objections
and did not cross-examine the victim’s mother.
On appeal, the defendant claims that the testimony
indicating that the victim’s mother had heard that the
defendant was connected to the victim’s disappearance
constituted hearsay. In particular, the defendant con-
tends that, because the victim’s mother testified as to
the content of a statement made by a third party that
was offered to establish the truth of the matter asserted,
it constituted hearsay. Finally, the defendant claims that
by ruling that the victim’s mother could testify with a
yes or no answer, the court treated the objection as
being based on hearsay. In response, the state argues,
inter alia, that the defendant’s hearsay claim is unpre-
served. Specifically, the state argues that the claim is
not reviewable because the defendant objected on the
basis of relevancy and not hearsay. We agree with the
state and conclude that, because the defendant did not
object on the basis of hearsay before the trial court, he
is foreclosed from doing so on appeal.6
‘‘[T]he standard for the preservation of a claim alleg-
ing an improper evidentiary ruling at trial is well settled.
This court is not bound to consider claims of law not
made at the trial. . . . In order to preserve an eviden-
tiary ruling for review, trial counsel must object prop-
erly. . . . In objecting to evidence, counsel must
properly articulate the basis of the objection so as to
apprise the trial court of the precise nature of the objec-
tion and its real purpose, in order to form an adequate
basis for a reviewable ruling. . . . Once counsel states
the authority and ground of [the] objection, any appeal
will be limited to the ground asserted.’’ (Emphasis
added; internal quotation marks omitted.) State v. Jorge
P., 308 Conn. 740, 753, 66 A.3d 869 (2013); see also
Practice Book § 67-4 (3). We have explained that these
requirements are not simply formalities. ‘‘[A] party can-
not present a case to the trial court on one theory and
then seek appellate relief on a different one . . . . For
this court to . . . consider [a] claim on the basis of a
specific legal ground not raised during trial would
amount to trial by ambuscade, unfair both to the [court]
and to the opposing party.’’ (Internal quotation marks
omitted.) Council v. Commissioner of Correction, 286
Conn. 477, 498, 944 A.2d 340 (2008). Thus, because the
essence of preservation is fair notice to the trial court,
‘‘the determination of whether a claim has been prop-
erly preserved will depend on a careful review of the
record to ascertain whether the claim on appeal was
articulated below with sufficient clarity to place the
trial court on reasonable notice of that very same
claim.’’ State v. Jorge P., supra, 754.
At trial, defense counsel objected to the prosecution’s
question to the victim’s mother, stating ‘‘[o]bjection,
Your Honor, as to the relevance of what they heard
about that.’’ (Emphasis added.) The prosecutor
responded: ‘‘I would claim its relevance . . . .’’ (Empha-
sis added.) The court then overruled the defendant’s
relevancy objection. The defendant never expounded
upon this objection and never raised another objection,
based on hearsay or otherwise. The defendant’s
attempt, on appeal, to characterize the relevancy objec-
tion at trial as one based on hearsay finds no support
in the record. Pursuant to Practice Book § 5-2, ‘‘[a]ny
party intending to raise any question of law which may
be the subject of an appeal must . . . state the question
distinctly to the judicial authority on the record . . . .’’
(Emphasis added.) Not only did the defendant fail to
raise the issue of hearsay ‘‘distinctly,’’ he failed to raise
it entirely. Given that the defendant objected only to
the relevance of the prosecution’s question, the trial
court had no notice or opportunity to consider the issue
of hearsay. Accordingly, we conclude that the defen-
dant’s hearsay claim is unpreserved.
The judgment is affirmed.
In this opinion ROGERS, C. J., and EVELEIGH,
McDONALD and VERTEFEUILLE, Js., concurred.
1
The defendant appeals directly to this court pursuant to General Statutes
§ 51-199 (b) (3).
2
Specifically, the defendant objected to the jury instruction regarding an
identification made by another witness, Frederick Quinones. The defendant
claimed that, because Quinones’ identification was based on familiarity with
the defendant, the word ‘‘suspect’’ in the instruction should be changed to
‘‘subject.’’ The court agreed to the change. The defendant also objected to
the use of the phrase ‘‘eye witness,’’ because he believed that it conveyed
to the jury that the witness had seen the defendant at the crime scene. The
court agreed to omit the word ‘‘eye.’’ The defendant made no other objections
to the jury instructions.
3
The defendant also argues that it is not necessary to move to strike
evidence after a party has objected to it in order to preserve a claim of
error. The defendant is correct that, ordinarily, when an objection to a
question is sustained in the presence of the jury, the objecting party is not
required to move to strike an answer given by the witness prior to that
objection. Hackenson v. Waterbury, 124 Conn. 679, 684, 2 A.2d 215 (1938);
see also State v. Lewis, 303 Conn. 760, 779, 36 A.3d 670 (2012). Specifically,
in Hackenson, this court explained that ‘‘[t]here is authority that where the
court in sustaining an objection to the question has not directed the jury
not to consider the reply given, a motion to strike it out is essential to its
proper elimination. . . . We adopt, however, a rule . . . which is less tech-
nical, yet sufficient for the ample protection of the parties’ rights. . . . The
only basis upon which [a party] can claim error in the ruling of the trial
court in setting aside the verdict is that the jury could, in the absence of a
motion to strike out, properly consider the testimony. That is not the law
in this jurisdiction.’’ (Citations omitted.) Hackenson v. Waterbury, supra,
684. Recently, we observed that, under Hackenson, once a court sustains
an objection to a question in the presence of the jury, the witness’ response
may not be considered even in the absence of a motion to strike. State v.
Lewis, supra, 779. This case presents an unusual situation in which the jury
was excused at the defendant’s request prior to the court’s ruling on the
objection. Outside the presence of the jury, the court sustained the defen-
dant’s objection and did not notify the jury until giving the jury instructions.
We need not reach the defendant’s claim that he was not required to move
to strike the improper testimony because we conclude that, by agreeing
with the trial court’s proposed course of action, he waived any argument
with respect to the trial court’s remedy for Diaz’ improper testimony.
4
The state also argues that the defendant is not aggrieved by the trial
court’s ruling because he prevailed on his objection and, additionally,
received the jury instruction that he sought. The state contends that, because
the defendant is not aggrieved, his claim is not justiciable. This contention
can be disposed of quickly. Questions of justiciability implicate this court’s
subject matter jurisdiction. Statewide Grievance Committee v. Burton, 282
Conn. 1, 6, 917 A.2d 966 (2007). In the present case, the defendant was
found guilty, and, although the trial court sustained his objection, it did so
outside the presence of the jury. The defendant argues on appeal that he
did not obtain an adequate remedy for Diaz’ improper testimony. As such,
we conclude that the defendant is aggrieved for purposes of appeal. Cf. In
re Allison G., 276 Conn. 146, 158, 883 A.2d 1226 (2005) (noting, in different
context, that prevailing party can be aggrieved ‘‘if the relief awarded to that
party falls short of the relief sought’’ [internal quotation marks omitted]).
5
Although the defendant has conceded that, by accepting the court’s
proposed instruction he ‘‘may [be] prevent[ed] . . . from pursuing a claim
that the jury instruction was improper,’’ he nevertheless argues that the jury
instruction did not cure the evidentiary problem. To the extent that the
defendant challenges the jury instruction itself, we conclude that he
impliedly waived any such argument under State v. Kitchens, 299 Conn.
447, 10 A.3d 942 (2011). Where, as here, ‘‘the trial court provides counsel with
a copy of the proposed jury instructions, allows a meaningful opportunity
for their review, solicits comments from counsel regarding changes or modi-
fications and counsel affirmatively accepts the instructions proposed or
given, the defendant may be deemed to have knowledge of any potential
flaws therein and to have waived implicitly the constitutional right to chal-
lenge the instructions on direct appeal.’’ Id., 482–83. Here, all of the foregoing
criteria were satisfied. During the first charging conference, defense counsel
informed the court that he had reviewed the court’s proposed jury instruction
on the matter and that the defendant had no objection to it. Thus, the
defendant waived any claim of instructional error. See State v. Bellamy,
323 Conn. 400, 404–410, 147 A.3d 655 (2016) (holding that defendant impliedly
waived claim that trial court’s jury instruction on witness identification
was deficient when the defendant was provided copy of proposed jury
instructions and indicated that he understood and accepted trial court’s
proposed identification instruction).
6
We note that defendant’s brief also asserts that the challenged testimony
lacked probative value. Although the defendant’s relevancy objection argua-
bly includes such an argument, we conclude that this claim is inadequately
briefed. We have explained that ‘‘[w]e are not required to review issues that
have been improperly presented to this court through an inadequate brief.
. . . Analysis, rather than mere abstract assertion, is required in order to
avoid abandoning an issue by failure to brief the issue properly.’’ (Internal
quotation marks omitted.) State v. Buhl, 321 Conn. 688, 724, 138 A.3d 868
(2016). Here, the defendant devotes only one paragraph to a general argu-
ment that rumors are inadmissible because they lack probative value. The
defendant offers no analysis on this point beyond a string citation to prece-
dent from other states. Consequently, we decline to reach the defendant’s
claim regarding the probative value of the challenged testimony, to the
extent that it is subsumed in the relevancy objection at trial, because that
claim is inadequately briefed on appeal.