State v. Culbreath ( 2021 )

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STATE OF CONNECTICUT v. JESSE CULBREATH
(SC 20276)
McDonald, D’Auria, Mullins, Kahn, Ecker and Keller, Js.
Syllabus
In State v. Purcell (331 Conn. 318), this court determined, as a matter of
state constitutional law, that, if a suspect makes an equivocal statement
that arguably could be construed as a request for counsel, interrogation
must cease except for narrow questions designed to clarify the equivocal
statement and the suspect’s desire for counsel, or, alternatively, the
officers conducting the interrogation may inform the suspect that they
understand the suspect’s statement to mean that he does not wish
to speak with them without counsel and that they will terminate the
interrogation, and, in either case, if the suspect thereafter clearly and
unequivocally expresses a desire to continue without counsel present,
the interrogation may resume.
Convicted of manslaughter in the first degree with a firearm, criminal posses-
sion of a firearm, and carrying a pistol without a permit, among other
crimes, the defendant appealed, claiming, inter alia, that certain state-
ments he made during a custodial interrogation were improperly admit-
ted into evidence because they were elicited by a detective, R, after
he invoked his right to counsel, in violation of his state and federal
constitutional rights. In response to a tip that that defendant was in
possession of a firearm that had been used in a homicide earlier in the
evening, the police stopped a vehicle in which the defendant and his
girlfriend, T, were passengers. The driver consented to a search of the
vehicle, and the police found a revolver in a box underneath the seat
of the defendant, who was prohibited from possessing firearms or con-
tacting T pursuant to a protective order. The police arrested the defen-
dant and transported him to the police station, where R advised him of
his rights under Miranda v. Arizona (384 U.S. 436). Before signing a
written waiver form, the defendant asked R why the form stated ‘‘that
I’m wavering . . . how I don’t want the presence of an attorney or
anything . . . .’’ R explained that signing the form meant that the defen-
dant agreed to speak to R but that he could stop answering questions
whenever he wanted, and the defendant signed the form. Approximately
three hours into the interview, during which the defendant denied pos-
sessing the revolver or being involved in the shooting, the defendant
asked R whether ‘‘there [was] anybody I can talk to . . . [l]ike an attor-
ney or something . . . .’’ R responded that, if the defendant wanted an
attorney, they would have to stop the interview. R also stated that,
because attorneys ‘‘have to make their money,’’ an attorney would proba-
bly prevent the defendant from speaking to R and giving his side of the
story. R left the interview room for approximately twenty minutes to
give the defendant time to consider. When R returned, the defendant
inquired about T, who was being interviewed in another room, and
R then resumed questioning the defendant. The defendant thereafter
confessed to shooting the victim but claimed that he had acted in self-
defense, and he signed a statement to that effect. At trial, the state
sought to have the video recording of the interrogation and the defen-
dant’s written statement admitted into evidence, to which defense coun-
sel replied he had no objection. The defendant subsequently testified
that he had shot the victim but continued to maintain that he acted in self-
defense. From the judgment of conviction, the defendant appealed. Held:
1. Defense counsel waived the defendant’s unpreserved claim that his federal
constitutional rights safeguarded by Miranda were violated by virtue
of the admission of his written statement and the video recording of
the interrogation, but did not waive the defendant’s unpreserved claim
under the state constitution: because the defendant’s federal constitu-
tional rights under Miranda and its progeny were well established at
the time of his trial, defense counsel was presumed to have made a
strategic decision when he waived the defendant’s claim under the
federal constitution by stating that he had no objection to the admission
of the defendant’s written statement and the video recording, and,
accordingly, the defendant’s claim under the federal constitution failed
under the third prong of State v. Golding (213 Conn. 233), as this court
was unable to conclude that the alleged constitutional violation existed
and deprived the defendant of a fair trial; nevertheless, because the
binding precedent in effect at the time of the defendant’s trial required
his invocation of the right to counsel to be clear and unequivocal, and
because this court’s decision in Purcell, which held for the first time
that the Connecticut constitution (art. I, § 8) provides greater protection
with respect to a criminal defendant’s Miranda rights than the federal
constitution, was not released until nearly six months after the jury
returned its verdict in the defendant’s case, this court could not presume
that defense counsel knew that the state constitution would subse-
quently be interpreted to provide an additional layer of prophylaxis,
and defense counsel, therefore, did not make a knowing and intelligent
waiver of the defendant’s claim involving the state constitutional rule
announced in Purcell.
2. The defendant’s written statement and the latter portion of the video-
recorded interview, after the defendant asked if there was ‘‘an attorney
or something’’ he could speak to, should have been suppressed under
article first, § 8, but the initial portion of the video recording, in which
the defendant denied any involvement in the shooting, properly was
admitted into evidence:
a. With respect to the defendant’s initial inquiry about why the waiver
form stated that he was ‘‘wavering,’’ R sought clarification from the
defendant, consistent with Purcell, and explained the meaning of the
contents of the form before beginning the interview; accordingly, regard-
less of whether that inquiry could arguably be construed as a request
for counsel, the defendant’s express waiver of his Miranda rights follow-
ing R’s explanation of the form’s contents manifested the defendant’s
clear and unequivocal desire to proceed with the interview without
counsel present.
b. The defendant’s question regarding whether ‘‘there [was] anybody [he
could] talk to . . . [l]ike an attorney’’ was a conditional and equivocal
inquiry that reasonably could be construed as a request for counsel, and
R failed to stop the interview and to clarify whether the defendant desired
the presence of counsel, in violation of the defendant’s rights under
article first, § 8: although R asked some questions to clarify the defen-
dant’s intent with respect to invoking his right to counsel, R went beyond
the limited inquiry permissible after an equivocal request for counsel is
made, as he plainly attempted to convince the defendant that it was
against his interests not to continue the interview by stating that an
attorney probably would not let him talk to R or tell his side of the story
and by suggesting that an attorney’s financial interest would induce the
attorney to advise the defendant, contrary to the defendant’s interests,
to stop answering questions; moreover, after the twenty minute break,
R did not limit his questions to narrow inquiries designed to clarify the
defendant’s desire for counsel but, rather, proceeded as if the equivocal
request had never been made and simply resumed his questioning of the
defendant, even though the defendant never clearly and unequivocally
expressed a desire to continue without counsel present.
3. The state failed to satisfy its burden of establishing that the improper
admission of the written statement and the inadmissible portion of
the video-recorded interview, in which the defendant confessed to the
shooting, was harmless beyond a reasonable doubt with respect to the
defendant’s conviction of manslaughter in the first degree with a firearm,
and, accordingly, this court reversed the defendant’s manslaughter con-
viction and remanded for a new trial on that charge: although the defen-
dant testified at trial that he shot the victim, and that testimony was
untainted by the state constitutional violation, the scope and content
of the defendant’s in-court testimony were not coextensive with his out-
of-court statements, and the prosecutor relied substantially on the out-
of-court statements, and discrepancies between them and the in-court
testimony, to discredit the defendant’s claim of self-defense, pointing
to certain statements the defendant made to R to establish that he did
not reasonably believe that the victim was using or about to use deadly
physical force, or inflicting or about to inflict great bodily harm, and
that he knew that he could avoid the use of deadly physical force
with complete safety by retreating; moreover, the defendant’s interview
contained a significant amount of new material not heard from any
other witness, and the prosecutor used that information in her closing
and rebuttal arguments to urge the jury to find that the defendant had
fabricated his self-defense claim in response to certain suggestions made
by R and to highlight an instance in which the defendant berated himself
and called himself a ‘‘killer’’ while alone in the interrogation room,
which, according to the the prosecutor, reflected the defendant’s con-
sciousness of guilt and undermined his claim of self-defense; further-
more, the prosecutor relied on the inadmissible out-of-court statements
to undermine the defendant’s credibility, emphasizing inconsistencies
between those statements and his in-court testimony and urging the
jury to find the defendant’s testimony regarding justification unworthy
of belief, and, because the defendant’s credibility was critical to his self-
defense claim in light of the absence of any eyewitness testimony or
physical evidence to corroborate or contradict the defendant’s account
of the shooting, this court could not conclude that the defendant’s in-
court testimony obviated the harm caused by the improper admission
of the inadmissible out-of-court statements; nevertheless, this court
upheld the defendant’s conviction of criminal possession of a firearm
and carrying a pistol without a permit because the jury’s verdict, as it
related to those offenses, was not affected by the violation of the defen-
dant’s state constitutional rights, insofar as the inadmissible out-of-court
statements were cumulative of the defendant’s in-court testimony, in
which he admitted to the essential elements of those offenses.
Argued December 8, 2020—officially released August 18, 2021*
Procedural History
Substitute information charging the defendant with
the crimes of murder, criminal violation of a protective
order, criminal possession of a firearm, carrying a pistol
without a permit, and illegal possession of a firearm in
a motor vehicle, brought to the Superior Court in the
judicial district of Hartford and tried to the jury before
Gold, J.; verdict and judgment of guilty of the lesser
included offense of manslaughter in the first degree
with a firearm, criminal violation of a protective order,
criminal possession of a firearm, carrying a pistol with-
out a permit, and illegal possession of a firearm in a
motor vehicle, from which the defendant appealed to
this court. Reversed in part; new trial.
Julia K. Conlin, assigned counsel, with whom was
Emily Graner Sexton, assigned counsel, for the appel-
lant (defendant).
Samantha L. Oden, deputy assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, former
state’s attorney, and Debra Collins, senior assistant
state’s attorney, for the appellee (state).
Opinion
ECKER, J. A jury found the defendant, Jesse Cul-
breath, guilty of manslaughter in the first degree with
a firearm in violation of General Statutes § 53a-55a,
criminal violation of a protective order in violation of
General Statutes § 53a-223 (a), criminal possession of
a firearm in violation of General Statutes (Rev. to 2015)
§ 53a-217 (a) (4) (A), carrying a pistol without a permit
in violation of General Statutes § 29-35 (a), and illegal
possession of a firearm in a motor vehicle in violation
of General Statutes § 29-38 (a). The defendant appeals
from the judgment of conviction on the ground that his
federal and state constitutional rights were violated
when the police continued to question him after he
invoked his right to counsel pursuant to Miranda v.
Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966), and, therefore, claims that his statements
to the police improperly were admitted into evidence.
The defendant further claims that the prosecutor com-
mitted improprieties during closing argument that
deprived him of his due process right to a fair trial. We
reverse in part the judgment of the trial court.
The record reflects the following facts and procedural
history. On the evening of December 7, 2015, the defen-
dant was selling marijuana on Judson Street in Hartford,
when he encountered the victim, Richard Holloway, Jr.
The defendant recognized the victim because they had
been in an altercation when they were children. The
victim began walking toward the defendant and ‘‘talking
trash . . . .’’ A physical fight between the two men
ensued, but nearby bystanders intervened and broke it
up. Someone told the defendant ‘‘not to . . . pay too
much’’ attention to the victim because he was drunk.1
The victim quickly renewed the confrontation. He put
on his jacket and ‘‘started coming back towards [the
defendant] . . . .’’ The victim told the defendant ‘‘not to
run’’ and that ‘‘he was going to get [him].’’ The defendant
noticed ‘‘some fast hand movement’’ between the victim
and ‘‘some other gentleman.’’ Although the defendant
did not see the victim with a weapon, he became wor-
ried that the victim might be armed. The defendant
backed up, withdrew a revolver from his pocket, and
shot the victim twice, once in the chest and once in
the shoulder. The defendant fled the scene immediately
after the shooting. The victim was transported to the
hospital, where he died from the gunshot wounds
inflicted by the defendant.
Later that night, a confidential informant, D,2 called
in a tip that someone named Pops, who subsequently
was identified as the defendant, was in possession of
a firearm that may have been used in a homicide earlier
that evening. D reported that Pops could be found in
a particular motor vehicle in the north end of Hartford.
Around midnight, Hartford police officers spotted the
vehicle near Weston Street. The police stopped the vehi-
cle and found D in the driver’s seat, the defendant in
the passenger seat, and the defendant’s girlfriend, T, in
the backseat. D consented to a search of the vehicle,
during which the police found a revolver hidden in an
ice cream box underneath the defendant’s seat. The
revolver contained four live rounds of ammunition and
two empty shell casings. Upon further investigation, the
police discovered that the defendant was in violation
of a protective order, which prohibited him from con-
tacting T and possessing firearms. The police arrested
the defendant and transported him to the police station
for further investigation.
At the police station, Detective Anthony Rykowski
informed the defendant of his Miranda rights and asked
him to sign a written waiver form.3 Prior to signing the
form, the defendant asked, ‘‘but why does it say that
I’m wavering . . . um . . . saying how I don’t want
the presence of an attorney or anything?’’ Rykowski
responded: ‘‘What this means is, right now, if you sign
this, it just means you are agreeing to talk to us. Okay?
Right now. Um, you know, again, what each one of
these is is what your rights are, okay? This is the
important one here: number five, you can stop answer-
ing questions or you don’t have to answer questions if
you don’t want to. It’s just, you know, there’s a lot of
things we need to get through about what happened
tonight, but we can’t talk unless you agree to talk to
us right now.’’ The defendant asked if he had to sign
the waiver form ‘‘if [he] was agreeing to talk to [Rykow-
ski] right now . . . .’’ Rykowski responded: ‘‘Right,
right. But you have to understand that, if you sign it,
you can stop answering questions whenever you want.
That’s what number five means. You know what I mean?
. . . If you sign this, it doesn’t mean you have to talk to
me, you know? But it means we can talk.’’ The defendant
replied ‘‘[a]lright’’ and signed the waiver form. Rykow-
ski began the interview, which lasted approximately
eight hours.
At the beginning of the interview, the defendant
denied possessing the revolver or being involved in the
shooting on Judson Street. Instead, the defendant told
Rykowski that, earlier in the evening, he had been shop-
ping with T, who was pregnant with their child. The
defendant continued to deny any involvement in the
shooting incident over the next three hours.
Approximately three hours into the interview, the
following exchange took place between the defendant
and Rykowski:
‘‘[The Defendant]: Is there anybody I can talk to?
‘‘[Rykowski]: What do you mean?
‘‘[The Defendant]: Like an attorney or something?
Whatever the case may be. I know you guys gotta do
your jobs.
‘‘[Rykowski]: We do, yeah. Is that what you want?
‘‘[The Defendant]: You know, I am not trying to add
on more or anything.
‘‘[Rykowski]: It doesn’t add anything on, man. If that’s
what you want, that’s fine, but we gotta shut this thing
down if that’s the case, you know. . . . If you want an
attorney, then we can’t talk right now anymore.
‘‘[The Defendant]: Then what?
‘‘[Rykowski]: Then we let the cards fall the way they
will, you know. Like I said, the evidence is gonna tell
a story. It’s gonna tell what happened . . . . It’s not
gonna tell me the why or the who or the what rea-
son. . . .
‘‘[The Defendant]: [Indiscernible] know why you guys
can’t talk to me no more about what happened.
‘‘[Rykowski]: I mean, I can ask your attorney to talk
to you. He probably won’t let me talk to you, you know.
‘‘[The Defendant]: Why is that?
‘‘[Rykowski]: It’s that they have to make their money,
do their thing. You know what I mean?
‘‘[The Defendant]: I’m just trying to get this
straight . . . .
‘‘[Rykowski]: I understand, I understand. Do you want
me to give you a few minutes?
‘‘[The Defendant]: I guess.
‘‘[Rykowski]: Well it’s up to you man. If you want to
keep talking, we’ll keep talking. If you want an attorney,
that’s fine, we’ll stop now.
‘‘[The Defendant]: I’ll take a few minutes.’’
Rykowski offered the defendant a drink and a cigarette,
and then left the room. Approximately two minutes
later, Rykowski’s partner returned with a cigarette for
the defendant. The defendant asked about T, who was
being questioned in another interview room, and
Rykowski’s partner left to check on her. About twenty
minutes later, Rykowski returned. The defendant again
asked about T and what the police were ‘‘going to do
with her . . . .’’ Rykowski stated: ‘‘[I]f she decides I
wanna lie for you, then things can go one way . . . .
If she does the right thing, they can go another way.
. . . It’s what I’ve been trying to explain to you this
whole time, you know. Only one thing’s going to work,
and it’s the truth . . . .’’ Rykowski left the interview
room again, and, when he returned, the interview
resumed. Rykowski told the defendant that ‘‘the clean
get cleaner, and the dirty get dirtier,’’ and that they
were at a point where the defendant had to ‘‘decide
. . . how [he] want[s] to move forward here . . . .’’
The defendant soon thereafter confessed to shooting
the victim, but he explained that he had acted in self-
defense because he was afraid the victim was going
to pull a gun on him. The defendant’s confession was
memorialized in a written statement, which the defen-
dant signed.
The defendant was charged in an amended, five count
information with murder, criminal violation of a protec-
tive order, criminal possession of a firearm, carrying a
pistol without a permit, and illegal possession of a
weapon in a motor vehicle. At the defendant’s jury trial,
the state offered into evidence the video recording of
the defendant’s interview and his written statement.
Defense counsel stated that he had ‘‘[n]o objection’’ to
the offer, and the video recording and written statement
were admitted into evidence as full exhibits. The state
also adduced ballistics evidence matching the revolver
found underneath the defendant’s seat with one of the
bullets recovered from the victim’s body, as well as
forensic evidence matching the defendant’s DNA profile
to the DNA found on the handle grip of the revolver.
Following the state’s case-in-chief, the defendant
took the stand and testified in his own defense. His
testimony, which we review in greater detail subse-
quently in this opinion, was largely consistent with what
he told the police when he confessed to shooting the
victim. The jury found the defendant not guilty of the
crime of murder but guilty of the lesser included offense
of manslaughter in the first degree with a firearm in
violation of § 53a-55a. Additionally, the jury found the
defendant guilty of criminal violation of a protective
order, criminal possession of a firearm, carrying a pistol
without a permit, and illegal possession of a weapon
in a motor vehicle. The trial court rendered judgment
in accordance with the jury’s verdict and sentenced the
defendant to a total effective sentence of thirty years’
incarceration.4 This appeal followed.5
On appeal, the defendant claims that his statements
to Rykowski should have been suppressed because they
were obtained in violation of his Miranda rights, which
are guaranteed by the fifth amendment to the United
States constitution and article first, § 8, of the Connecti-
cut constitution. The defendant contends that he
invoked his right to counsel at two separate points in
the interview: first, when he questioned Rykowski about
the waiver form at the outset and, second, when he
asked if there was ‘‘an attorney or something’’ he could
speak with approximately three hours later. Addition-
ally, the defendant claims that the prosecutor made
improper statements during closing argument in viola-
tion of his due process right to a fair trial.
The state responds that the defendant waived his
federal and state constitutional claims when defense
counsel explicitly stated that he had no objection to
the admission of the video recording of the defendant’s
interview or his written statement. Alternatively, the
state claims that no fifth amendment violation occurred
because the defendant did not clearly and unequivocally
request counsel under Miranda and its federal progeny.
With respect to the defendant’s state constitutional
claim, the state acknowledges that, pursuant to our
recent decision in State v. Purcell, 331 Conn. 318, 203
A.3d 542 (2019), article first, § 8, of the Connecticut
constitution ‘‘requires that, if a suspect makes an equiv-
ocal statement that arguably can be construed as a
request for counsel, interrogation must cease except
for narrow questions designed to clarify the earlier
statement and the suspect’s desire for counsel.’’ (Inter-
nal quotation marks omitted.) Id., 362. Nonetheless, the
state contends that the defendant’s state constitutional
rights were not violated because the defendant’s first
statement regarding the waiver form was not an equivo-
cal invocation of the right to counsel, and, to the extent
that his second statement asking about an attorney was
equivocal, Rykowski complied with Purcell by stopping
the interview and seeking clarification. In any event,
the state contends that any constitutional violation was
harmless beyond a reasonable doubt because there was
overwhelming independent evidence of the defendant’s
guilt. Lastly, the state claims that the prosecutor’s state-
ments during closing argument were not improper and
did not deprive the defendant of a fair trial.
I
The threshold question is whether the defendant
waived his federal and state constitutional claims
regarding the alleged violation of his Miranda rights.
It is undisputed that the defendant failed to preserve
these claims, and, therefore, he seeks review under
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823(1989). The state maintains that the defendant cannot
prevail under Golding because defense counsel affirma-
tively waived the defendant’s constitutional claims by
stating that he had ‘‘[n]o objection’’ to the admission
of the video recording of the defendant’s interview and
his written statement. We conclude that the defendant
waived his federal constitutional claim but that the
waiver of his state constitutional claim was not knowing
and intelligent due to the recency of our decision in
State v. Purcell, supra, 331 Conn. 318, which adopted
a more protective prophylactic standard for Miranda
rights under the Connecticut constitution.
In State v. Golding, supra, 213 Conn. 233, we held
that ‘‘a defendant can prevail on a claim of constitu-
tional error not preserved at trial only if all of the
following conditions are met: (1) the record is adequate
to review the alleged claim of error; (2) the claim is
of constitutional magnitude alleging the violation of a
fundamental right; (3) the alleged constitutional viola-
tion . . . exists and . . . deprived the defendant of a
fair trial; and (4) if subject to harmless error analysis,
the state has failed to demonstrate harmlessness of the
alleged constitutional violation beyond a reasonable
doubt.’’ (Emphasis in original; footnote omitted.) Id.,239–40; see In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015) (modifying third prong of Golding).
We conclude that the defendant has satisfied the first
two prongs of Golding because the record is adequate
for our review and the defendant’s claims are of consti-
tutional magnitude alleging the violation of a fundamen-
tal right.
A waived claim, as opposed to an unpreserved claim,
‘‘does not satisfy the third prong of the Golding test
because, in such circumstances, we simply cannot con-
clude that injustice [has been] done to either party . . .
or that the alleged constitutional violation . . . exists
and . . . deprived the defendant of a fair trial . . . .’’
(Internal quotation marks omitted.) State v. Holness,
289 Conn. 535, 543, 958 A.2d 754 (2008). It is well estab-
lished that ‘‘[a] defendant in a criminal prosecution may
waive one or more of his or her fundamental rights.’’
(Internal quotation marks omitted.) State v. Fabrica-
tore, 281 Conn. 469, 478, 915 A.2d 872 (2007). ‘‘The
mechanism by which a right may be waived . . . varies
according to the right at stake. . . . For certain funda-
mental rights, the defendant must personally make an
informed waiver. . . . For other rights, however,
waiver may be effected by action of counsel.’’ (Internal
quotation marks omitted.) State v. Kitchens, 299 Conn.
447, 467, 10 A.3d 942 (2011). ‘‘The fundamental rights
that a defendant personally must waive typically are
identified as the rights to plead guilty, waive a jury,
testify [on] his or her own behalf, and take an appeal.’’
State v. Gore, 288 Conn. 770, 779 n.9, 955 A.2d 1 (2008).
In contrast, defense counsel may waive certain ‘‘tactical
trial rights that are not personal to the defendant . . .
as part of trial strategy’’; id., 778–79; such as ‘‘the statu-
tory protection of a probable cause hearing . . . the
right to call witnesses . . . and the composition of a
jury charge.’’ (Citations omitted.) Id., 779 n.9; see also
State v. Kitchens, supra, 467 (defense counsel may
waive on defendant’s behalf ‘‘the right . . . to proper
jury instructions’’).
The decision to admit or exclude evidence on consti-
tutional, statutory, or evidentiary grounds is the type
of tactical trial decision that ‘‘appropriately may be
waived by counsel acting alone . . . .’’ State v. Gore,
supra, 288 Conn. 779 n.10; see McCoy v. Louisiana,
U.S. , 138 S. Ct. 1500, 1508, 200 L. Ed. 2d 821 (2018)
(‘‘[t]rial management is the lawyer’s province: [c]ounsel
provides his or her assistance by making decisions such
as ‘what arguments to pursue, what evidentiary objec-
tions to raise, and what agreements to conclude regard-
ing the admission of evidence’ ’’), quoting Gonzalez v.
United States, 553 U.S. 242, 248, 128 S. Ct. 1765, 170 L.
Ed. 2d 616 (2008); United States v. Small, 988 F.3d 241,
256 (6th Cir. 2021) (suppression of evidence for alleged
constitutional violations is ‘‘the type of trial manage-
ment [decision] that can be determined and thus . . .
waived by the lawyer’’), petition for cert. filed (6th Cir.
June 15, 2021) (No. 20-8361); State v. Castro, 200 Conn.
App. 450, 458, 462, 238 A.3d 813 (‘‘defense counsel
knowingly and intentionally abandoned the defendant’s
sixth amendment right [of confrontation]’’ by expressly
stating he had no objection to admission of ballistics
report under Crawford v. Washington, 541 U.S. 36, 124
S. Ct. 1354, 158 L. Ed. 2d 177 (2004)), cert. denied, 335
Conn. 983, 242 A.3d 105 (2020). As the United States
Supreme Court explained in Gonzalez, ‘‘[g]iving the
attorney control of trial management matters is a practi-
cal necessity. The adversary process could not function
effectively if every tactical decision required client
approval. . . . The presentation of a criminal defense
can be a mystifying process even for well-informed
laypersons. This is one of the reasons for the right to
counsel. . . . Numerous choices affecting conduct of
the trial, including the objections to make, the witnesses
to call, and the arguments to advance, depend not only
upon what is permissible under the rules of evidence
and procedure but also upon tactical considerations of
the moment and the larger strategic plan for the trial.
These matters can be difficult to explain to a layperson;
and to require in all instances that they be approved
by the client could risk compromising the efficiencies
and fairness that the trial process is designed to pro-
mote. In exercising professional judgment, moreover,
the attorney draws upon the expertise and experience
that members of the bar should bring to the trial pro-
cess. In most instances the attorney will have a better
understanding of the procedural choices than the client;
or at least the law should so assume.’’ (Citations omit-
ted; internal quotation marks omitted.) Gonzalez v.
United States, supra, 249–50.
To be effective, of course, defense counsel’s waiver
must be knowing and intelligent. See State v. Bellamy,
323 Conn. 400, 443, 147 A.3d 655 (2016) (observing
that ‘‘waiver involves the intentional relinquishment or
abandonment of a known right or privilege’’ in context
of waiver by actions of counsel (internal quotation
marks omitted)). This requirement ordinarily is met
easily because it is presumed ‘‘that, in our adversary
system, counsel was familiar with the relevant constitu-
tional principles and had acted competently in determin-
ing that . . . the defendant’s [constitutional] rights’’
were protected. Id., 418. Consequently, to demonstrate
knowing and intelligent waiver, the state ordinarily is
‘‘not required to establish that defense counsel was
aware of a possible constitutional claim in the factual
scenario presented . . . .’’ Id. To demand more
‘‘ ‘would require the trial court to canvass defense coun-
sel with respect to counsel’s understanding of the rele-
vant constitutional principles before accepting coun-
sel’s agreement on how to proceed . . . [and] there
is nothing in our criminal law that supports such a
requirement.’ ’’6 Id., 419, quoting State v. Holness, supra,289 Conn. 544.
In the present case, the defendant’s federal constitu-
tional rights under Miranda and its progeny were well
established at the time of trial, and we must presume
that defense counsel was aware of the defendant’s fed-
eral constitutional claim and made a strategic decision
to waive it. Defense counsel affirmatively waived the
defendant’s federal constitutional claim when he explic-
itly informed the trial court and the state that he had
‘‘[n]o objection’’ to the admission of the video recording
of the defendant’s interview and his written statement.
See Mozell v. Commissioner of Correction, 291 Conn.
62, 71, 967 A.2d 41 (2009) (‘‘[w]hen a party consents to
or expresses satisfaction with an issue at trial, claims
arising from that issue are deemed waived and may
not be reviewed on appeal’’ (internal quotation marks
omitted)); State v. Fabricatore, supra, 281 Conn. 481(defense counsel waived constitutional challenge to
jury instruction by ‘‘clearly express[ing] his satisfaction
with that instruction, and in fact subsequently argu[ing]
that the instruction as given was proper’’). We therefore
conclude that the defendant’s federal constitutional
claim fails under the third prong of Golding.
We arrive at a different conclusion, however, with
respect to the defendant’s state constitutional claim
because the law governing that claim changed after the
defendant’s trial. The defendant’s trial took place in
mid-2018; the jury returned its verdict on September
14, 2018. It was not until March 29, 2019, that we
released our decision in State v. Purcell, supra, 331
Conn. 318, in which we held for the first time that article
first, § 8, of the Connecticut constitution provides
greater protection for a criminal defendant’s Miranda
rights than the federal constitution. See id., 359. Purcell
explains the federal rule that governed prior to its issu-
ance: ‘‘In Davis v. United States, 512 U.S. 452, 459–60,
114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994), the United
States Supreme Court determined that, after a defen-
dant has been informed of his Miranda rights, the police
officers conducting a custodial interrogation have no
obligation to stop and clarify an ambiguous invocation
by the defendant of his right to have counsel present.
Instead, they must cease interrogation only upon an
objectively unambiguous, unequivocal invocation of
that right. See id.’’ (Footnote omitted.) State v. Purcell,
supra, 320–21. In Purcell, we held that Davis’ clear and
unequivocal standard fails to satisfy the state constitu-
tion and that, ‘‘to adequately safeguard the right against
compelled self-incrimination under article first, § 8, of
the Connecticut constitution, police officers are
required to clarify an ambiguous request for counsel
before they can continue the interrogation.’’ (Footnote
omitted.) Id., 321. Thus, ‘‘our state constitution requires
that, if a suspect makes an equivocal statement that
arguably can be construed as a request for counsel,
interrogation must cease except for narrow questions
designed to clarify the earlier statement and the sus-
pect’s desire for counsel. . . . Interrogators con-
fronted with such a situation alternatively may inform
the defendant that they understand his statement(s) to
mean that he does not wish to speak with them without
counsel present and that they will terminate the interro-
gation. In either case, if the defendant thereafter clearly
and unequivocally expresses a desire to continue with-
out counsel present, the interrogation may resume.’’
(Citation omitted; internal quotation marks omitted.)
Id., 362.
Because Purcell was released after the defendant’s
trial, we cannot presume that defense counsel knew
that the state constitution would subsequently be inter-
preted to provide ‘‘an additional layer of prophylaxis
to prevent a significant risk of deprivation of those vital
constitutional rights protected under Miranda.’’ Id.,
342. Indeed, at the time defense counsel stated that he
had no objection to the admission of the video recording
of the interview and the defendant’s written statement,
the Appellate Court affirmatively had held that ‘‘our
state constitution does not provide greater protection
than the federal constitution in this context,’’ and, ‘‘[a]s
a matter of state constitutional law, interrogating offi-
cers are not required to clarify ambiguous or equivocal
references to an attorney.’’ State v. Purcell, 174 Conn.
App. 401, 428, 166 A.3d 883 (2017), rev’d, 331 Conn.
318, 203 A.3d 542 (2019); see also id., 431 (The Appellate
Court observed that this court ‘‘has consistently held
that our self-incrimination and due process clauses do
not afford greater protection than the federal due pro-
cess and self-incrimination clauses. . . . As a result,
our courts have previously declined to utilize our state
constitution to afford suspects greater protections dur-
ing custodial interrogations than the federal constitu-
tion affords.’’ (Citation omitted.)). Given that the bind-
ing precedent in effect at the time of the defendant’s
trial required the invocation of the right to counsel to
be clear and unequivocal, we conclude that defense
counsel did not make a knowing and intelligent waiver
of the ‘‘more protective prophylactic rule . . . required
under the Connecticut constitution.’’7 State v. Purcell,
supra, 331 Conn. 321. Accordingly, the defendant’s state
constitutional claim was not waived.
II
We next address whether the defendant’s rights under
article first, § 8, of the state constitution were violated
when Rykowski continued to question the defendant
after he allegedly invoked his right to counsel. As we
explained in part I of this opinion, in Purcell, we deter-
mined that the federal constitutional standard set forth
in Davis v. United States, supra, 512 U.S. 459–60, requir-
ing a suspect’s invocation of the right to counsel to be
clear and unequivocal, ‘‘does not adequately safeguard
Miranda’s right to the advice of counsel during a custo-
dial interrogation.’’ State v. Purcell, supra, 331 Conn.
361–62. We therefore adopted a more protective stan-
dard under article first, § 8, of the Connecticut constitu-
tion, which requires questioning to cease after the advise-
ment of Miranda rights ‘‘if a suspect makes an equivocal
statement that arguably can be construed as a request
for counsel . . . .’’ (Internal quotation marks omitted.)
Id., 362. Purcell states that questioning may not resume
once a defendant expresses such a request, ‘‘except for
narrow questions designed to clarify the earlier state-
ment and the suspect’s desire for counsel.’’ (Internal
quotation marks omitted.) Id. Alternatively, ‘‘[i]nterro-
gators confronted with such a situation . . . may
inform the defendant that they understand his state-
ment(s) to mean that he does not wish to speak with
them without counsel present and that they will termi-
nate the interrogation.’’ Id. In either scenario, ques-
tioning may not resume until ‘‘the defendant thereafter
clearly and unequivocally expresses a desire to continue
without counsel present . . . .’’ Id.
Purcell identified three categories of statements that
are equivocal and arguably can be construed as an invo-
cation of a suspect’s right to counsel: (1) ‘‘statements
regarding the assistance or presence of counsel [that]
include one or more conditional or hedging terms, such
as if, should, probably, or maybe’’; id., 335; (2) ‘‘[s]tate-
ments referring to counsel’s advice that the defendant
not speak to the police, if made after the defendant has
agreed to waive his right to counsel’’; id., 337; and (3)
‘‘[s]tatements that could be interpreted as an expression
of the defendant’s reservation about whether speaking
to the police without counsel is in his best interest
. . . .’’ Id., 338–39.
With these principles in mind, we address whether
the defendant invoked his right to counsel under the
state constitution during his custodial interview. See
State v. Anonymous, 240 Conn. 708, 723, 694 A.2d 766(1997) (whether defendant invoked right to counsel is
question of law, reviewed de novo). First, the defendant
contends that, prior to the commencement of the inter-
view, he invoked his right to counsel when he asked
Rykowski why the Miranda rights waiver form pro-
vided ‘‘that I’m wavering . . . um . . . saying how I
don’t want the presence of an attorney or anything
. . . .’’ The state responds that the defendant’s question
was not an equivocal inquiry that arguably could be
construed as a request for counsel but, instead, was a
request for clarification of the Miranda rights waiver
form.
We need not decide whether the defendant’s first
inquiry arguably could be construed as a request for
counsel because the record reflects that Rykowski com-
plied with the dictates of Purcell by seeking clarification
from the defendant before beginning the interview. In
response to the defendant’s question regarding ‘‘waver-
ing,’’ Rykowski explained that, ‘‘[w]hat this means is,
right now, if you sign this, it just means you are agreeing
to talk to us,’’ and ‘‘you can stop answering questions
or you don’t have to answer questions if you don’t want
to . . . but we can’t talk unless you agree to talk to
us right now.’’ When the defendant asked whether he
had to sign the waiver form to talk to Rykowski, Rykow-
ski responded in the affirmative but explained that the
defendant could ‘‘stop answering questions whenever
[he] want[ed]’’ and that ‘‘it doesn’t mean [that he had]
to talk,’’ it just ‘‘means [that they could] talk.’’ The
defendant replied ‘‘[a]lright’’ and signed the waiver
form. The defendant’s express waiver of his Miranda
rights following Rykowski’s explanation manifested the
defendant’s clear and unequivocal desire to proceed
with the interview without the presence of counsel.
Importantly, the defendant does not claim that his
waiver of his Miranda rights was not knowing, intelli-
gent, and voluntary under the totality of the circum-
stances. On the present record, we conclude that the
defendant’s state constitutional rights were not violated
and that the initial portion of the video recording of
the interview, in which the defendant denied any
involvement in the shooting, properly was admitted into
evidence.
The defendant next claims that he invoked his right
to counsel approximately three hours later in the inter-
view, when he asked, ‘‘[i]s there anybody I can talk to
. . . [l]ike an attorney or something?’’ The defendant’s
question about the availability of ‘‘an attorney’’ or some-
one else to ‘‘talk to’’ is precisely the type of conditional
and equivocal inquiry that reasonably can be construed
as a request for counsel. See State v. Purcell, supra, 331
Conn. 335–37; see also People v. Sauceda-Contreras,
55 Cal. 4th 203, 219, 282 P.3d 279, 145 Cal. Rptr. 3d 271(2012) (defendant’s statement ‘‘ ‘[i]f you can bring me
a lawyer’ ’’ was conditional and equivocal invocation of
right of counsel, among other reasons, because ‘‘it
began with an inquiry as to whether a lawyer could be
brought to [the] defendant’’ (emphasis omitted)); People
v. Kutlak, 364 P.3d 199, 206 (Colo. 2016) (defendant’s
inquiry whether he could ‘‘ ‘get [his lawyer] down here
now’ ’’ was equivocal invocation of right to counsel
because it was ‘‘unclear . . . whether he was actually
requesting his lawyer or whether he was simply explor-
ing the logistics and timing of possibly securing coun-
sel’s presence during the interrogation’’ (emphasis omit-
ted)); State v. Sanelle, 287 Or. App. 611, 627, 404 P.3d 992(2017) (defendant’s question ‘‘ ‘[w]here’s the lawyer’ ’’
after he had been advised of his Miranda rights was
equivocal because ‘‘a reasonable officer would have
understood that [the] defendant may have been invok-
ing his right to counsel’’), review denied, 362 Or. 482,
412 P.3d 199 (2018). Accordingly, Rykowski had an obli-
gation under article first, § 8, of the Connecticut consti-
tution to stop the interview and to clarify whether the
defendant desired the presence of counsel or, alterna-
tively, to terminate the interview altogether.
The state contends that Rykowski complied with Pur-
cell’s ‘‘stop and clarify’’ rule by asking clarifying ques-
tions, such as ‘‘[i]s that what you want,’’ and stopping
the interview for approximately twenty minutes. We
disagree for two reasons. First, although some of
Rykowski’s responses sought clarification of the defen-
dant’s intent to invoke his right to counsel, other
responses plainly ‘‘attempted to convince the defendant
that it was against his interests not to continue the
interview.’’ State v. Purcell, supra, 331 Conn. 362.
Rykowski informed the defendant that, if he had an
attorney present, the attorney ‘‘probably won’t let me
talk to you,’’ and ‘‘the cards [will] fall the way they will’’
without the defendant telling the ‘‘story’’ of ‘‘the why
or the who or the what reason.’’8 See id., 327, 362 (The
police officers attempted to convince the defendant
that it was against his interests not to continue the
interview by stating, among other things, ‘‘ ‘after today,
you’re never gonna be able to, to give me or any other
cop your story. You’re gonna let, a judge is gonna look
at ya and say, some serious charges against you. You
could go to jail for the rest of your life.’ ’’). Furthermore,
Rykowski’s suggestion that an attorney’s financial inter-
est would induce the attorney to advise the defendant,
contrary to the defendant’s interests, to stop answering
questions was entirely inappropriate.9 We conclude that
these statements exceeded the ‘‘limited inquiry permis-
sible after an equivocal request for legal counsel . . . .’’
(Internal quotation marks omitted.) Id., 363.
Second, after pausing the interview to give the defen-
dant some time to decide how he wished to proceed,
Rykowski resumed questioning the defendant without
clarifying the ambiguity in the defendant’s prior inquiry
regarding the availability of an attorney. We reject the
state’s contention that the defendant clarified his equiv-
ocal request for counsel by continuing with the inter-
view after a twenty minute break. Rykowski stopped
the interview to provide the defendant with time to
decide whether he wished to have counsel present.
When Rykowski returned, he did not limit his questions
to ‘‘narrow’’ inquiries ‘‘designed to clarify’’ the defen-
dant’s ‘‘desire for counsel.’’ (Internal quotation marks
omitted.) Id., 362. Instead, after discussing the defen-
dant’s pregnant girlfriend, T, Rykowski proceeded as
if the equivocal request had never been made and simply
resumed questioning the defendant.10 Because Rykow-
ski continued to question the defendant even though the
defendant never ‘‘clearly and unequivocally expresse[d]
a desire to continue without counsel present’’; id.; we
conclude that he failed to comply with Purcell’s ‘‘stop
and clarify’’ rule. Accordingly, the defendant’s rights
under article first, § 8, of the Connecticut constitution
were violated, and the defendant’s written statement
and the latter portion of the video recording of the
interview, in which the defendant admitted that he shot
and killed the victim, should have been suppressed.
III
The question remains whether the admission of the
defendant’s written statement and the latter portion of
the video recording of the interview was harmless. ‘‘If
statements taken in violation of Miranda are admitted
into evidence during a trial, their admission must be
reviewed in light of the harmless error doctrine. . . .
When an [evidentiary] impropriety is of constitutional
proportions, the state bears the burden of proving that
the error was harmless beyond a reasonable doubt.
. . . [W]e must examine the impact of the evidence on
the trier of fact and the result of the trial. . . . If the
evidence may have had a tendency to influence the
judgment of the jury, it cannot be considered harmless.
. . . That determination must be made in light of the
entire record [including the strength of the state’s case
without the evidence admitted in error].’’ (Citations
omitted; internal quotation marks omitted.) State v.
Mitchell, 296 Conn. 449, 459–60, 996 A.2d 251 (2010).
Whether the error was harmless depends on a number
of factors, such as the importance of the evidence to
the state’s case, whether the evidence was cumulative
of properly admitted evidence, the presence or absence
of corroborating evidence, and, of course, the overall
strength of the state’s case. See, e.g., State v. Tony M.,
332 Conn. 810, 822–23, 213 A.3d 1128 (2019).
The defendant’s written statement and the inadmissi-
ble portion of the video recording of the interview were
of critical importance to the state’s case. A confession
is powerful evidence, and, without the defendant’s
admission that he shot the victim, the state’s case was
weak.11 The question of harmless error in the present
case is not so simply resolved, however, because the
defendant’s inadmissible oral and written confessions
were followed by his testimony at trial, during which
he took the stand and told the jury that he shot the
victim. The defendant’s in-court testimony is untainted
by the prior constitutional violation.12 In light of the
defendant’s in-court testimony, it was undisputed at
trial that the defendant had shot and killed the victim;
the issue to be decided by the jury was whether the
defendant’s use of deadly physical force was justified
by the doctrine of self-defense.
We must decide whether the state has established,
beyond a reasonable doubt, that the defendant’s prop-
erly admitted, in-court testimony removed the harm caused
by the improper admission of the video recording of
the interview and his written statement. The question,
more precisely, is whether the state has met its burden
of proving that the jury’s verdict would have been the
same even if the defendant’s inadmissible, out-of-court
confessions had not been admitted into evidence. The
problem for the state is that the scope and content of
the defendant’s out-of-court confessions and in-court
testimony are not coextensive. Furthermore, at trial, the
state relied substantially on the additional information
contained in the defendant’s out-of-court confessions,
as well as the discrepancies between the defendant’s
out-of-court confessions and his in-court testimony, to
discredit the defendant’s claim of self-defense. For the
reasons that follow, we cannot conclude that the
improper admission of the video recording of the defen-
dant’s interview and his written statement was harmless
beyond a reasonable doubt.
The state may defeat a defendant’s claim of self-
defense involving deadly physical force, among other
ways, by proving, beyond a reasonable doubt, that ‘‘(1)
the defendant did not reasonably believe that the victim
was using or about to use deadly physical force or
inflicting or about to inflict great bodily harm; or (2)
the defendant knew that he could avoid the necessity
of using deadly physical force with complete safety by
retreating . . . .’’ (Footnote omitted; internal quotation
marks omitted.) State v. Singleton, 292 Conn. 734, 747,
974 A.2d 679 (2009). The state relied heavily on the
defendant’s inadmissible statements to Rykowski to ful-
fill its burden of disproving the defendant’s self-defense
claim at trial. For example, the state argued that the
defendant did not subjectively believe that the victim
was about to use deadly physical force or to inflict great
bodily harm because the defendant told Rykowski that
he ‘‘ ‘didn’t know what [the victim] was gonna do,’ ’’
‘‘ ‘wasn’t scared per se,’ ’’ and was ‘‘ ‘not sure what [the
victim] was reaching for or what his intentions were.’ ’’
The state further argued that the defendant knew he
could have avoided the use of deadly force by retreating
safely because the defendant told Rykowski that he
‘‘ ‘didn’t really move,’ ’’ ‘‘ ‘wasn’t trying really to get
away,’ ’’ and ‘‘ ‘wasn’t like fleeing from the fight, but
. . . wasn’t really trying to engage in it.’ ’’ Indeed, the
state argued that ‘‘[t]he number one reason [the defen-
dant] didn’t retreat’’ was because he knew he had a
‘‘ ‘gun . . . in [his] pocket’ ’’ and he knew he ‘‘wouldn’t
lose a possible fight with [the victim] . . . .’’ None of
these statements was elicited as part of the defendant’s
in-court testimony.
The prosecutor also urged the jury to find that the
defendant had fabricated his claim of self-defense in
response to a suggestion from Rykowski. Specifically,
in closing argument, the prosecutor remarked: ‘‘[T]he
defendant wants you to believe that he was justified in
using deadly force because he was defending himself.
But don’t forget this defense was adopted by [the defen-
dant] in his police interview when it was suggested by
. . . Rykowski after three and [one-half] hours of
denial. That’s why he didn’t swing for the fence. He’d
adopted this thing of self-defense. So he didn’t really
know where he was going with it. [At] 4:31 [a.m. during
the interview] . . . Rykowski suggests self-defense,
that the victim acted like he had a gun. [At] 4:38 [a.m.],
[the] defendant says, ‘Connecticut doesn’t recognize
self-defense’; he’s corrected by the officer. [At] 5:18
[a.m., he] admits to killing [the victim]. And at the end
of the interview, don’t forget, he asks at 9:25 [a.m.],
‘How does self-defense work?’ And [the defendant] con-
tinued to embellish on . . . Rykowski’s suggestion on
self-defense even [at trial] . . . which, again, was more
than two and [one-half] years after his initial eight hour
interview.’’
The state further contended that the defendant’s
statements during the interview were evidence of his
consciousness of guilt. Toward the end of the interview,
when the defendant was all alone in the room, he
berated himself, saying: ‘‘I’m the bad guy, I’m a killer.
. . . [The victim] didn’t deserve that . . . nobody do
nothing to me.’’ During its rebuttal argument, the state
drew the jury’s attention to these inadmissible remarks,
arguing that they reflected the defendant’s guilt and
undermined his claim of self-defense. The state’s fre-
quent and repeated emphasis on the defendant’s inad-
missible statements during its closing and rebuttal argu-
ments indicates that their admission was not harmless.
See, e.g., State v. Ayala, 333 Conn. 225, 235, 215 A.3d
116 (2019) (‘‘in evaluating harm [we] look to see how
the state used [the inadmissible] evidence in its closing
argument’’); State v. Sawyer, 279 Conn. 331, 360–61,
904 A.2d 101 (2006) (finding harm, among other reasons,
because state repeatedly emphasized improperly admit-
ted evidence in its closing argument), overruled in part
on other grounds by State v. DeJesus, 288 Conn. 418,
953 A.2d 45 (2008).
We recognize that the defendant’s written statement
and the inadmissible portion of his interview contained
a good deal of the same information as his in-court
testimony, but there were critical differences. Given
the brevity of the defendant’s in-court testimony and
the length of the inadmissible portion of the defendant’s
interview, which lasted approximately four hours, the
defendant’s statements to Rykowski contained a signifi-
cant amount of ‘‘new material, not heard from any other
witness . . . .’’ (Emphasis in original.) State v. Fer-
nando V., 331 Conn. 201, 219, 202 A.3d 350 (2019). As
we explained in the preceding paragraphs, this new
material included evidence central to the defendant’s
claim of self-defense, such as the defendant’s state of
mind at the time of the shooting, the availability of a
safe avenue of retreat, the defendant’s misunderstanding
regarding the validity of self-defense, and his personal
belief that he was a ‘‘bad guy’’ and a ‘‘killer.’’ ‘‘New
evidence is not cumulative evidence.’’ Id. The out-of-
court statements contained information that was not
included in the defendant’s in-court testimony, and the
state made use of that information in its closing and
rebuttal arguments.
The state not only relied on the defendant’s inadmissi-
ble statements as substantive evidence to disprove the
defendant’s claim of self-defense but also as impeach-
ment evidence to undermine the defendant’s credibility.
During closing and rebuttal arguments, the state empha-
sized various inconsistencies between the defendant’s
inadmissible statements to Rykowski and his in-court
testimony, and urged the jury to find the defendant’s
testimony regarding justification unworthy of belief.
For example, the state pointed out that the defendant
had provided conflicting explanations as to what he
was doing before the shooting,13 how he acquired the
revolver,14 what the victim said to him before the shoot-
ing,15 how the revolver ended up in the ice cream box
underneath his seat,16 and whether he confessed to T.17
Although the defendant’s initial statements to Rykowski
denying any involvement in the shooting were admissi-
ble, and may have affected the jury’s assessment of his
credibility, the state’s focus on these additional discrep-
ancies in the defendant’s ‘‘story’’ even after he con-
fessed to the shooting undoubtedly damaged his credi-
bility further, perhaps beyond repair.
The defendant’s credibility was critical to his self-
defense claim because there was no eyewitness testi-
mony or physical evidence to corroborate or contradict
the defendant’s account of the shooting. ‘‘[When] credi-
bility is an issue and, thus, the jury’s assessment of who
is telling the truth is critical, an error affecting the jury’s
ability to assess a [witness’] credibility is not harmless
error.’’ (Internal quotation marks omitted.) Id., 223–24.
We therefore cannot conclude that the improper admis-
sion of the defendant’s written statement and the inad-
missible portion of the interview was harmless beyond
a reasonable doubt with respect to his conviction of
manslaughter in the first degree with a firearm.
The state contends that the admission of the defen-
dant’s written statement and the latter portion of the
interview was harmless because ‘‘the jury could have
fully credited the defendant’s testimony and reasonably
still could have rejected his claim of self-defense’’ on
the ground that the defendant ‘‘(1) did not see the victim
with a weapon, and (2) was not even looking at the
victim to see what he was doing when he fired his gun
not just once, but twice.’’ We agree that the jury could
have fully credited the defendant’s testimony and none-
theless rejected his self-defense claim by finding his
use of deadly physical force to be unreasonable under
the circumstances. But it is equally possible that the
jury was persuaded by the state’s argument that the
defendant’s testimony was unworthy of belief and that
the defendant did not subjectively believe that the vic-
tim posed an imminent threat of great bodily harm or
death. We do not know the basis for the jury’s verdict,
and that is the problem. It is unclear whether the jury’s
verdict rested on a permissible or an impermissible
basis, and, under these circumstances, the state has
failed to fulfill its burden of establishing that the
improper admission of the defendant’s out-of-court con-
fession was harmless beyond a reasonable doubt. See
State v. Montgomery, 254 Conn. 694, 718, 759 A.2d 995(2000) (improper admission of evidence obtained in
violation of defendant’s Miranda rights is harmless only
if ‘‘it is clear beyond a reasonable doubt that the jury
would have returned a guilty verdict without the imper-
missible [evidence]’’ (internal quotation marks omit-
ted)); cf. Griffin v. United States, 502 U.S. 46, 53, 112
S. Ct. 466, 116 L. Ed. 2d 371 (1991) (‘‘[when] a provision
of the [c]onstitution forbids conviction on a particular
ground, the constitutional guarantee is violated by a
general verdict that may have rested on that ground’’);
State v. Cody M., 337 Conn. 92, 115–16, 259 A.3d 576(2020) (in ‘‘cases involving multiple theories of guilt,’’
constitutional error in jury instruction may be deemed
harmless only ‘‘if the jury necessarily found facts to
support the conviction on a valid theory’’). Accordingly,
we reverse the defendant’s manslaughter conviction
and remand the case for a new trial on that count. In
light of our holding, we need not address the defen-
dant’s prosecutorial impropriety claim.18
We conclude that the improper admission of the
defendant’s statements was harmless, however, with
respect to the defendant’s conviction of criminal pos-
session of a firearm and carrying a pistol without a
permit because the defendant testified that he carried
and possessed a firearm without a permit and with
knowledge that he was subject to a protective order.19
See General Statutes § 29-35 (a); General Statutes (Rev.
to 2015) § 53a-217 (a) (4) (A); see also footnote 14 of
this opinion. The defendant’s in-court testimony admit-
ting to the essential elements of these offenses was
cumulative of the statements he made to Rykowski,
and, therefore, the jury’s verdict as it relates to these
offenses was not affected by the violation of the defen-
dant’s state constitutional rights. Accordingly, we affirm
the judgment of conviction in all other respects.
The judgment is reversed only with respect to the
defendant’s conviction of manslaughter in the first
degree with a firearm and the case is remanded for a
new trial on that count; the judgment is affirmed in all
other respects.
In this opinion the other justices concurred.
* August 18, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
An autopsy revealed that the victim’s blood alcohol content was .252 at
the time of his death.
2
In accordance with federal law, we decline to identify any party protected
or sought to be protected under a protective order or a restraining order
that was issued or applied for, or others through whom that party’s identity
may be ascertained. See 18 U.S.C. § 2265 (d) (3) (2018).
3
Rykowski’s interview with the defendant was video-recorded.
4
The trial court sentenced the defendant to thirty years’ incarceration on
the manslaughter count, five years of which was a mandatory minimum,
and five years of incarceration for each of the remaining counts, all to run
concurrently. Additionally, the court imposed a fine of $5000 in connection
with the criminal possession of a firearm count, which was remitted.
5
The defendant appealed directly to this court pursuant to General Stat-
utes § 51-199 (b) (3).
6
‘‘ ‘[I]n circumstances in which defense counsel’s waiver of a constitu-
tional claim cannot be justified, that is, when the waiver constitutes a
violation of the defendant’s right to the effective assistance of counsel, the
defendant may seek recourse through habeas corpus proceedings. Such
proceedings are available to safeguard the constitutional rights of any defen-
dant who has been prejudiced by the ineffective assistance of his or her
attorney.’ ’’ State v. Bellamy, supra, 323 Conn. 419 n.14, quoting State v.
Holness, supra, 289 Conn. 544 n.8.
7
Although federal waiver law is in some respects ‘‘inconsistent with our
jurisprudence, thus making a comparison of federal and Connecticut law
extremely difficult, if not impossible’’; State v. Bellamy, supra, 323 Conn.
435; we note that the federal courts of appeals also review claims affirma-
tively waived in the trial court when defense counsel’s waiver was predicated
on ‘‘then-binding precedent’’ that changed between the time of trial and
direct appeal. United States v. Johnson, 981 F.3d 1171, 1178 (11th Cir. 2020);
see id. (reviewing defendant’s sufficiency of evidence claim for plain error
because his ‘‘acknowledgement that the evidence he stipulated to was suffi-
cient to satisfy the elements of the crime as laid out by then-binding prece-
dent does not preclude him from asserting that the stipulation is not suffi-
cient in light of the [United States] Supreme Court’s subsequent issuance
of Rehaif [v. United States, U.S. , 139 S. Ct. 2191, 204 L. Ed. 2d 594(2019)]’’); see also, e.g., United States v. Nasir, 982 F.3d 144, 173 n.35 (3d
Cir. 2020) (‘‘the [invited error] doctrine does not apply [when] the law
changes between trial and appeal’’); United States v. Titties, 852 F.3d 1257,
1264 n.5 (10th Cir. 2017) (agreeing with defendant that ‘‘the [invited error]
doctrine does not apply when a party relied on settled law that changed
while the case was on appeal’’); United States v. Coffelt, 529 Fed. Appx.
636, 639 (6th Cir. 2013) (‘‘[T]he [invited error] doctrine presupposes that
the defendant has knowledge of the right that he or she is giving up. . . .
Here, [the defendant] could not have known that he was relinquishing his
right to be sentenced without consideration of his need for rehabilitation.
It would be unreasonable, and perhaps unjust, to say this was an invited
error when this precise action became prohibited under Tapia [v. United
States, 564 U.S. 319, 131 S. Ct. 2382, 180 L. Ed. 2d 357 (2011)] two months after
[the defendant] was sentenced.’’ (Citation omitted; emphasis in original.)).
8
The state relies on Restrepo-Duque v. State, Docket No. 63, 2015, 2015
WL 9268145 (Del. December 17, 2015) (decision without published opinion,
130 A.3d 340), cert. denied, 578 U.S. 1023, 136 S. Ct. 2413, 195 L. Ed. 2d 781(2016), to support its contention that Rykowski’s questions did not exceed
the permissible bounds of clarification. We are not persuaded. In Purcell,
we held that an officer’s clarifying questions must be ‘‘narrow’’ and ‘‘designed
to clarify the earlier statement and the suspect’s desire for counsel.’’ (Internal
quotation marks omitted.) State v. Purcell, supra, 331 Conn. 362. We empha-
sized that questions that ‘‘[attempt] to convince the defendant that it was
against his interests not to continue the interview’’ are not clarifying. Id. In
contrast, in Crawford v. State, 580 A.2d 571 (Del. 1990), the Supreme Court
of Delaware held that clarifying questions are impermissible only if they
‘‘coerce or intimidate the suspect or otherwise discourage his effort to
secure counsel, if that is his intention. Nor may the police tender any legal
advice or attempt to dissuade the suspect from pursuing an intended course.’’
Id., 577. Pursuant to this standard, the court in Restrepo-Duque held that
an officer’s statement ‘‘importuning of [the defendant] to give his side of
the story rather than invoke his right to counsel [was] troublesome,’’ but
not impermissible, because it was ‘‘not intimidating or coercive.’’ Restrepo-
Duque v. State, supra, *5. Although Rykowski’s responses were not intimidat-
ing or coercive, they nonetheless attempted to convince the defendant that
it was against his interest to continue the interview and, therefore, violated
the more stringent standard that article first, § 8, of the Connecticut constitu-
tion imposes on the content of clarifying questions.
9
The relevant portion of the colloquy proceeded as follows:
‘‘[Rykowski]: I mean, I can ask your attorney to talk to you. He probably
won’t let me talk to you, you know.
‘‘[The Defendant]: Why is that?
‘‘[Rykowski]: It’s that they have to make their money, do their thing. You
know what I mean?’’
10
The state contends that the defendant reinitiated the interview by asking
about T and, therefore, clearly and unequivocally expressed a desire to
continue without the presence of counsel. See Edwards v. Arizona, 451
U.S. 477, 484–85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981) (after invocation
of counsel, interrogation must cease ‘‘until counsel has been made available’’
or ‘‘the accused himself initiates further communication, exchanges, or
conversations with the police’’); see also Oregon v. Bradshaw, 462 U.S.
1039, 1045, 103 S. Ct. 2830, 77 L. Ed. 2d 405 (1983) (suspect initiates further
communication under Edwards by making statements that ‘‘represent a
desire . . . to open up a more generalized discussion relating directly or
indirectly to the investigation’’). The state appears to claim that the defen-
dant’s questions about T ‘‘evinced a willingness and a desire for a generalized
discussion about the investigation . . . .’’ Oregon v. Bradshaw, supra, 1045–
46. We reject this claim.
Our review of the video recording reveals that the defendant did not
summon Rykowski or ask to continue the interview; instead, Rykowski
returned to the interview room and asked the defendant how he was doing.
The defendant responded by asking whether Rykowski had ‘‘hear[d] anything
about [T]’’ and what was ‘‘going to [happen] with her . . . .’’ The defendant
explained that ‘‘[T] didn’t do anything’’ and that he ‘‘want[ed] her to be able
to go home.’’ The defendant’s questions about T did not invite a generalized
discussion about the investigation; rather, they evinced his concern for the
health and welfare of his girlfriend, who was pregnant with their child. We
therefore conclude that the defendant did not reinitiate the interview.
Instead, Rykowski reinitiated the interview by asking the defendant ques-
tions about the crimes under investigation without first clarifying whether
the defendant desired the presence of counsel.
11
Aside from the evidence linking the defendant to the gun used in the
shooting, there was no evidence implicating the defendant in the victim’s
death other than the defendant’s admissions.
12
The defendant claims that we should disregard his in-court testimony
because ‘‘it seems unlikely’’ that he would have testified ‘‘but for [the]
improper evidence being presented to the jury . . . .’’ The defendant pro-
vides no analysis or authority in his initial brief to support this claim, and,
therefore, we are constrained to conclude that it is briefed inadequately to
permit meaningful appellate review. See, e.g., Estate of Rock v. University of
Connecticut, 323 Conn. 26, 33, 144 A.3d 420 (2016) (‘‘Claims are inadequately
briefed when they are merely mentioned and not briefed beyond a bare
assertion. . . . Claims are also inadequately briefed when they . . . consist
of conclusory assertions . . . with no mention of relevant authority and
minimal or no citations from the record . . . .’’ (Internal quotation marks
omitted.)). Although the defendant ‘‘amplified [his] discussion of the issue
considerably in [his] reply brief,’’ it is well established that ‘‘we consider
an argument inadequately briefed when it is delineated only in the reply
brief.’’ Hurley v. Heart Physicians, P.C., 298 Conn. 371, 378 n.6, 3 A.3d 892(2010). Because it is inadequately briefed, we cannot consider the defen-
dant’s claim that the trial court’s failure to suppress the video recording of
the interview adversely impacted the subsequent conduct of his defense
at trial.
13
At trial, the defendant testified that he was selling marijuana on Judson
Street prior to the shooting, but he did not mention this fact to Rykowski.
14
At trial, the defendant testified that he purchased the revolver approxi-
mately one week before the shooting, but he told Rykowski that the revolver
‘‘ ‘basically fell in [his] lap . . . .’ ’’
15
At trial, the defendant testified that the victim said ‘‘don’t run,’’ but he
told Rykowski that the victim ‘‘kept telling [the defendant] to come with
him around the corner . . . .’’
16
At trial, the defendant testified that D instructed him to put the revolver
in the ice cream box, which D then placed underneath the defendant’s seat.
The defendant never mentioned this fact to Rykowski.
17
At trial, the defendant denied telling T that he had killed the victim, but
the defendant told Rykowski that he had confessed his involvement in the
shooting to T.
18
The defendant claims that the prosecutor made improper remarks (1)
misrepresenting the evidence pertaining to the shooting and the defendant’s
claim of self-defense, (2) mischaracterizing the law of self-defense, and (3)
informing the jury that the defendant had a ‘‘motive to lie,’’ but Rykowski
‘‘had no motivation to lie.’’ The first two categories of alleged prosecutorial
improprieties apply only to the defendant’s conviction of manslaughter in the
first degree with a firearm. Because we reverse the defendant’s manslaughter
conviction and ‘‘do not view [these issues] as likely to arise on remand,’’
we do not address them. State v. Calabrese, 279 Conn. 393, 413, 902 A.2d
1044 (2006). The third category of alleged prosecutorial impropriety also
applies only to the defendant’s manslaughter conviction because the defen-
dant’s credibility was not at issue with respect to the other crimes of convic-
tion. Indeed, there were no discrepancies between the testimony of Rykow-
ski and the testimony of the defendant with respect to the essential elements
of these crimes; the defendant testified that he possessed an operable
revolver, without a permit, in a motor vehicle with T, and with knowledge
that he was subject to a protective order. It is unclear whether the defendant
will elect to testify at his new trial on the manslaughter count; see footnote
12 of this opinion; and, therefore, we cannot conclude that this issue is
likely to arise on remand. See, e.g., State v. Lebrick, 334 Conn. 492, 521
n.16, 223 A.3d 333 (2020) (‘‘[o]rdinarily, we do not decide constitutional
issues when resolving those issues is not necessary to dispose of the case
before us,’’ unless ‘‘an issue with constitutional implications that has been
presented and briefed by the parties is likely to arise on remand’’ (internal
quotation marks omitted)).
19
On appeal, the defendant does not challenge his convictions of criminal
violation of a protective order and illegal possession of a firearm in a
motor vehicle.