State v. Baltas ( 2014 )

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STATE OF CONNECTICUT v. JOE BALTAS
(SC 18633)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Vertefeuille, Js.
Argued September 18, 2013—officially released June 3, 2014
Pamela S. Nagy, assigned counsel, for the appel-
lant (defendant).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Michael Pepper, senior assistant
state’s attorney, for the appellee (state).
Opinion
EVELEIGH, J. The defendant, Joe Baltas, was con-
victed, after a trial by jury, of one count of murder in
violation of General Statutes § 53a-54a (a),1 two counts
of assault in the first degree in violation of General
Statutes § 53a-59 (a) (1), one count of burglary in the
first degree in violation of General Statutes § 53a-101
(a) (1), one count of burglary in the first degree in
violation of § 53a-101 (a) (2),2 and one count of kidnap-
ping in the second degree in violation of General Stat-
utes § 53a-94 (a). The defendant has appealed from his
conviction directly to this court,3 claiming that the trial
court improperly: (1) excluded evidence that the defen-
dant claims was highly relevant to his defense, thus
violating the defendant’s constitutional right to present
a defense and also preventing the defendant from engag-
ing in cross-examination regarding that evidence, thus
violating the defendant’s constitutional right to confron-
tation; (2) failed to give a hybrid third party culpability
jury instruction or, in the alternative, failed to instruct
the jury on the defendant’s theory of his defense; (3)
refused to instruct the jury regarding the motive of one
of the complaining witnesses to testify falsely; and (4)
refused to reverse the defendant’s convictions, which
the defendant claims were tainted by improper com-
ments made by the prosecutor in this matter. Because
we conclude that certain evidence relating to the poten-
tial impeachment of Misty Rock, a prosecution witness,
should have been admitted and that the state has not
proven that the failure to admit that evidence was harm-
less beyond a reasonable doubt to the defendant as it
relates to his conviction for the crimes of kidnapping
in the second degree and burglary in the first degree,
we reverse the judgment of the trial court as to those
counts only and order a new trial. We affirm the judg-
ment of the trial court in all other respects.
The jury reasonably could have found the following
facts. The defendant was involved in a relationship with
Rock, one of the complaining witnesses in this case,
from December, 2005 until October, 2006. At some point
during the month of October, the two discussed leaving
Meriden, the town in which both of them lived, to start
a new life in South Carolina.
On October 25, 2006, Rock was living with her
brother, Christopher Laverty (Christopher), her mother,
Linda Laverty (Linda), and her stepfather, Michael
Laverty (Michael). At approximately 10 p.m., Linda and
Michael were sitting in the living room of their apart-
ment watching a movie, while Christopher and Rock
were on the second floor of the home. Christopher
came downstairs and opened the door to the basement,
intending to check on the status of a load of laundry.
As he opened the basement door, he encountered a
masked person who was dressed all in black, wearing
a ski mask, and holding at least one knife. The masked
person stabbed Christopher in the stomach, and then
moved out of the basement and into the living room,
where he proceeded to fatally stab Michael.4 The
masked person then turned to Linda, stated ‘‘die, bitch,’’
and stabbed her in the neck. Linda later testified that
she recognized the masked person as the defendant
because of his eyes, the sound of his voice, and his
body mannerisms. The masked person walked to the
staircase leading to the upper floor of the home, and
while on the staircase, he ran into Rock, who had heard
the commotion from upstairs. In the collision, the
masked person’s knife went through Rock’s sweatshirt
and t-shirt and inflicted a scratch on her stomach. The
masked person then forced Rock in front of him,
grabbed her by the hair, and forced her out of the
apartment.5 While this was happening, Christopher
grabbed a knife from the kitchen and a telephone and
exited the home, running next door to ask a neighbor
to call the police. Rock and the masked person then
exited the apartment and were walking down the street,
away from the apartment. Christopher attempted to
stop them, and Rock told him to stop and not come
any closer. Christopher then sat down on a bench and
called the police himself, identifying the defendant as
the masked person who had just assaulted his family.
The defendant and Rock then walked to an aban-
doned car and sat in it. Rock testified that, at this point,
the defendant told her that he had killed Michael and
stabbed Linda and, although Rock could not remember
if the defendant was still wearing a mask, Rock recog-
nized his voice. The defendant and Rock waited in the
car until Rock informed the defendant that she needed
to use the bathroom. The defendant led Rock to the
Pulaski School, at which point the defendant—who at
that time was not wearing a ski mask or a dark shirt—
and Rock were confronted by police officers. The police
observed the defendant holding a butter knife in his
hand and told him to drop it. When the defendant did
not comply with their command, the police tasered him
and he fell to the ground; as he did so, a folding knife
later found to be stained with Michael’s blood fell out
of the defendant’s pocket.
A K-9 officer was also dispatched as a result of Chris-
topher’s 911 call, and the officer’s dog tracked the path
that the defendant and Rock took away from the apart-
ment. The K-9 officer also had his dog perform an ‘‘arti-
cle recovery . . . .’’ Between the K-9 officer’s search
and the actions of other police officers in the area, the
following items along the path taken by the defendant
and Rock were recovered that evening: (1) a ski mask,
the interior of which later tested positive for the defen-
dant’s DNA, and the exterior of which tested positive
for Michael’s blood; (2) a dark, bloody shirt which tested
positive for the blood of Linda and Michael; (3) a latex
glove stained with the blood of Linda and also possibly
of Michael; and (4) a long knife stained with the blood
of Michael, which the state medical examiner later con-
cluded was the weapon that caused his fatal wounds.
Tests also indicated that Michael and Linda were the
sources of various bloodstains found on the defendant’s
pants, sneaker, and arms when he was arrested. Finally,
the police matched a shoe print that was formed in
blood at the crime scene to the shoe of the defendant.
In addition to the crimes of which he was convicted,
the defendant was also charged with two counts of
attempt to commit murder in violation of General Stat-
utes §§ 53a-49 (a) (2) and 53a-54a (a), one count of
assault in the second degree in violation of General
Statutes § 53a-60 (a) (2), one count of kidnapping in
the first degree in violation of General Statutes § 53a-
92 (a) (2) (A), and one count of kidnapping in the first
degree in violation of § 53a-92 (a) (2) (C). The court
granted the defendant’s motion for judgment of acquit-
tal with regard to the second degree assault charge,
and the defendant was acquitted of both attempted
murder charges and both first degree kidnapping
charges. This appeal followed. Additional facts and pro-
cedural history will be set forth as necessary.
I
RIGHT TO PRESENT A DEFENSE AND RIGHT
TO CONFRONTATION
The first issue raised by the defendant on appeal
involves evidence excluded by the trial court that, the
defendant claims, tended to show that Rock was a par-
ticipant, not a victim, in the crimes committed by the
defendant. The defendant argues that by excluding this
evidence and preventing the defendant from cross-
examining Rock about it, the trial court violated his
constitutional rights to present a defense and to con-
frontation. We agree. Further, we hold that the state
has failed to prove that the proffered impeachment
evidence of Rock, as it related to the kidnapping and
burglary charges, was not harmless beyond a reason-
able doubt. Therefore, we reverse the trial court’s judg-
ment of conviction on the charges of kidnapping in the
second degree and burglary in the first degree and order
a new trial on those counts alone.
The following additional facts and procedural history
are relevant to this issue. In early October, 2006, Rock
and the defendant had discussed leaving Meriden for
South Carolina. At that time, Rock was a drug addict,
and the defendant wanted to help her and get away
from drugs. On October 6, 2006, the defendant and
Rock got into an argument that devolved into a physical
altercation, and after the defendant left to get some
cigarettes, Rock attempted to commit suicide by over-
dosing on prescription medication. Rock testified that
after the incident, she went back to the defendant’s
apartment to retrieve her personal effects and moved
out.
At trial, the defense sought to portray Rock not as a
victim, but as a participant in the crime. When police
encountered Rock and the defendant at the Pulaski
School, Rock told the officers that she had her father’s
blood on her hands. The defense also noted that, in her
original statement to police, Linda placed Rock in the
living room during the assault, and that the clothing
that Rock was wearing that evening was consistent with
the description that Linda gave of her attacker.6 The
defense also offered forensic evidence, showing that
Rock had bloodstained hands, that a ring that she wore
on her hand had Michael’s blood embedded in it, and
that she also had bloodstains on her clothing. Finally,
the defense provided the testimony of a neighbor who
did not think the defendant was using any force to get
Rock to accompany him away from the apartment and
also pointed to the description provided in the report
of a police officer who observed the defendant and
Rock walking ‘‘[h]olding hands.’’
The defense also sought to demonstrate that Rock
had a motive to participate in these crimes. During an
offer of proof outside the presence of the jury, Rock
testified that, in the past, she and her stepfather,
Michael, did not get along, but she maintained that
their relationship had improved in the weeks before his
murder. The defense claims that this testimony
impeached Rock on her claim that she had been kid-
napped by the defendant, because it suggested that
Rock had a motive to participate in the attack and an
incentive to leave with the defendant. The trial court
excluded this evidence, finding that the prejudicial
impact of Rock’s testimony regarding her relationship
with Michael outweighed its limited probative value.
The court also found that, regarding the defendant’s
third party culpability argument, the evidence of Rock’s
poor relationship with Michael was insufficient to cre-
ate a direct connection between Rock and the crimes
for which the defendant was being prosecuted.
The defense later attempted to introduce evidence
through the testimony of Sheila Pappas, a former friend
of Rock. Pappas testified that she and another friend
of Rock’s, Aleta Marerro, went to Midstate Hospital in
Meriden to visit Rock in the early morning hours of
October 26, 2006. Pappas testified that Rock’s hair, face,
neck, and arms were stained with dried blood. Out of
concern for Rock’s health, Pappas took Rock into a
hospital bathroom and used a washcloth to remove
the blood from Rock’s body. Pappas testified that she
observed a scratch on one of Rock’s hands, but could
not identify a wound that could account for the amount
of blood on Rock. Pappas testified that Rock was anx-
ious to leave the hospital as soon as possible, and Rock,
Marerro, and Pappas departed from Midstate Hospital
at approximately 6 a.m. Later that day, Pappas accom-
panied Rock to the defendant’s home, where Rock
retrieved four bags of clothing from a truck that Pappas
believed was owned by the defendant. Pappas testified
that Rock, along with Marerro and another friend, Gail
Woodtke, then transported the clothing to Woodtke’s
home, where Marerro did some laundry. Rock showered
and put on makeup, and then Pappas, Marerro, and
Rock attempted to gain access to the Laverty home,
where they were turned away by a police officer
because the home was still an active crime scene. At
no point on October 26, 2006, could Pappas recall Rock
expressing concern for either Linda or Christopher.
Finally, outside the presence of the jury, Pappas testi-
fied in an offer of proof for the defense that she had
not spoken to Rock for approximately six months prior
to the night of October 25, but that she knew that Rock
and Michael had a terrible relationship, to the point
that Michael would sleep in his car to avoid Rock. Pap-
pas also testified in the offer of proof that Rock had told
her that Michael had come into a sum of approximately
$35,000, and that Rock and Linda wanted to obtain
those funds. Pappas admitted that she had no firsthand
knowledge of the status of Rock and Michael’s relation-
ship for the six months leading up to the murder, but
she did maintain that within that time period Rock had
expressed similar sentiments to another friend, Mar-
rero, who then told Pappas. The trial court excluded
Pappas’ testimony on this subject, again concluding
that, because Pappas had no firsthand knowledge of
the status of Rock’s relationship with Michael for the
six months leading up to the murder, her testimony on
the relationship was neither relevant nor credible.
The defendant claims that the trial court should not
have prevented the defendant from cross-examining
Rock in front of the jury about her relationship with
Michael, and, further, the defendant claims that the
trial court should not have excluded Pappas’ testimony
regarding both the poor relationship Rock had with
Michael and Rock’s purported desire to acquire the
$35,000 that Michael had apparently recently obtained.
Specifically, the defendant claims that the exclusion of
this testimony violated his right to present a defense
because his theory of the case was that Rock partici-
pated in the crimes for which he was convicted. The
defendant also claims that the exclusion of Rock’s testi-
mony about her poor relationship with Michael violated
his right to confrontation guaranteed by the sixth
amendment to the United States constitution because
her testimony impeached Rock’s claim that the defen-
dant kidnapped her and also suggested that Rock had
an incentive to testify falsely in order to cover up her
own alleged involvement in the events of October 25,
2006. We review the underlying evidentiary rulings of
the trial court only for abuse of discretion; see, e.g.,
State v. Devalda, 306 Conn. 494, 516, 50 A.3d 882 (2012);
and ‘‘[i]f . . . we conclude that the trial court properly
excluded the proffered evidence, then the defendant’s
constitutional claims necessarily fail.’’ (Internal quota-
tion marks omitted.) Id. We address each of the defen-
dant’s claimed constitutional violations in turn.
The defendant claims that the exclusion of the testi-
mony from Rock and Pappas addressing Rock’s rela-
tionship with Michael and of Rock’s potential financial
motive to kill him violated the defendant’s constitu-
tional rights to present a defense and to confrontation.7
Specifically, the defendant claims that these rights were
violated by the exclusion of Rock’s and Pappas’ testi-
mony regarding the unhappy relationship between Rock
and Michael, and also regarding Rock’s statement to
Pappas about Rock’s desire to obtain the $35,000 that
Michael had recently received.
‘‘It is well established that [t]he federal constitution
require[s] that criminal defendants be afforded a mean-
ingful opportunity to present a complete defense. . . .
The sixth amendment . . . [guarantees] the right to
offer the testimony of witnesses, and to compel their
attendance, if necessary, [and] is in plain terms the right
to present a defense, the right to present the defendant’s
version of the facts as well as the prosecution’s to the
jury so that it may decide where the truth lies. . . .
When defense evidence is excluded, such exclusion
may give rise to a claim of denial of the right to present
a defense.’’ (Internal quotation marks omitted.) State
v. Hedge, 297 Conn. 621, 634, 1 A.3d 1051 (2010).
‘‘The sixth amendment to the [United States] constitu-
tion guarantees the right of an accused in a criminal
prosecution to confront the witnesses against him. . . .
The primary interest secured by confrontation is the
right to cross-examination . . . and an important func-
tion of cross-examination is the exposure of a witness’
motivation in testifying. . . . Cross-examination to
elicit facts tending to show motive, interest, bias and
prejudice is a matter of right and may not be unduly
restricted. . . .
‘‘Impeachment of a witness for motive, bias and inter-
est may also be accomplished by the introduction of
extrinsic evidence. . . . The same rule that applies to
the right to cross-examine applies with respect to
extrinsic evidence to show motive, bias and interest;
proof of the main facts is a matter of right, but the extent
of the proof of details lies in the court’s discretion. . . .
The right of confrontation is preserved if defense coun-
sel is permitted to expose to the jury the facts from
which jurors, as the sole triers of fact and credibility,
could appropriately draw inferences relating to the
reliability of the witness. . . .
‘‘Although it is within the trial court’s discretion to
determine the extent of cross-examination and the
admissibility of evidence, the preclusion of sufficient
inquiry into a particular matter tending to show motive,
bias and interest may result in a violation of the constitu-
tional requirements [of the confrontation clause] of the
sixth amendment. . . . Further, the exclusion of
defense evidence may deprive the defendant of his con-
stitutional right to present a defense. . . .
‘‘[T]he confrontation clause does not [however] sus-
pend the rules of evidence to give the defendant the
right to engage in unrestricted cross-examination. . . .
Rather, [a] defendant is . . . bound by the rules of
evidence in presenting a defense. . . . Although exclu-
sionary rules of evidence cannot be applied mechanisti-
cally to deprive a defendant of his rights, the [federal]
constitution does not require that a defendant be per-
mitted to present every piece of evidence he wishes.
. . . To the contrary, [t]he [c]onfrontation [c]lause
guarantees only an opportunity for effective cross-
examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense
might wish. . . . Thus, [i]f the proffered evidence is
not relevant [or constitutes inadmissible hearsay], the
defendant’s right to confrontation is not affected, and
the evidence was properly excluded.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Davis,
298 Conn. 1, 8–10, 1 A.3d 76 (2010).
In analyzing the defendant’s claims, we first examine
the trial court’s challenged evidentiary rulings. The
defendant points to the exclusion of two pieces of testi-
mony by two different witnesses regarding the same
subject matter, namely, a potential motive for Rock to
have participated in the violence against the rest of
her family. The first challenged ruling involved Rock’s
testimony regarding her relationship with Michael dur-
ing voir dire outside the presence of the jury.8 The
defendant argued that this testimony was relevant
because it impeached Rock regarding her claim that the
defendant kidnapped her and also suggested a potential
motive for engaging in the crimes for which the defen-
dant was charged. The court determined that this testi-
mony was inadmissible, finding that the probative value
of this statement did not outweigh its prejudicial
impact. The trial court noted that ‘‘I am not saying
that you are not allowed to attempt in the future to
reintroduce that area, but . . . some of the things that
you claimed on third party require the testimony of
additional witnesses that I haven’t heard from yet.
You’ve represented what these things say, but they
haven’t been introduced in court. . . . I will permit you
at a later time, if you want to recall the witness to
discuss this, to do so . . . .’’ The other evidentiary rul-
ing challenged by the defendant was the trial court’s
exclusion of that portion of Pappas’ testimony dealing
with Rock’s relationship with Michael and a potential
financial incentive for Rock to participate in the crimes
of which the defendant was convicted.9 The defendant
argued that Pappas’ testimony on this point was rele-
vant to the defendant’s third party culpability defense,
as well as relevant to establishing that Rock had a
motive to harm Michael and suggesting that she was
biased against him. The trial court refused to admit this
testimony, stating that the defendant had not made a
sufficient showing of third party culpability, that the
probative value of Pappas’ statements was limited
because she admitted that she had not been friends
with Rock for the six months prior to October 26, 2006,
and that Pappas’ testimony about Rock’s potential
financial motive to kill Michael was too vague.
The defendant relies primarily on our decision in
State v. Colton, 227 Conn. 231, 630 A.2d 577 (1993), in
support of his contention that it was reversible error
to deny the defendant the opportunity to impeach Rock
by attempting to show that Rock had a motive to murder
Michael. In Colton, this court reversed the defendant’s
conviction because the defendant was prevented from
cross-examining the only eyewitness or otherwise intro-
ducing evidence about (1) the eyewitness’ history of
drug use and prostitution, and (2) the fact that the
eyewitness was receiving ‘‘reward money’’ from the
state. Id., 249–52. Under the circumstances of that case,
the eyewitness’ credibility was extremely important.
Id., 250. In Colton, no physical evidence tied the defen-
dant to the crime and, as the only claimed eyewitness
to the crime, this court determined that ‘‘[t]he motiva-
tion of [the eyewitness] in testifying was of paramount
importance.’’ Id. We concluded that ‘‘[i]n assessing [the
eyewitness’] credibility, the jury had to inquire into the
circumstances that led to her becoming a state’s wit-
ness, the reasons for her long delay before coming for-
ward and, most importantly, what role, if any, the
reward money played in prompting her statements to
the police a short while after the reward had been
offered.’’ Id. We later examined the effect that some of
the excluded evidence might have had on the jury’s
evaluation of the eyewitness’ credibility: ‘‘Had this evi-
dence [of the eyewitness’ continued drug abuse and
prostitution to support her drug habit] been admitted,
the jury might well have inferred that [the eyewitness’]
testimony was motivated by an expensive drug habit,
for which she prostituted herself to support, and that
the existence of the reward presented her with a means
of supporting that habit, thereby alleviating temporarily
the necessity to engage in prostitution. Without this
additional evidence, [the eyewitness’] insistent testi-
mony that her old lifestyle had been left behind, after
what appeared to be an exhaustive cross-examination,
not only deprived the jury of exposure to facts from
which it could assess the motivation of the witness in
testifying, but also led to the appearance that defense
counsel was engaged in a speculative and baseless line
of attack on the motivation of an otherwise blameless
witness.’’ Id., 251.
In the present case, the defendant was given wide
latitude by the trial court to cross-examine Rock. During
her cross-examination, Rock admitted that she had
been in love with the defendant, and that they had
spoken about leaving Meriden for South Carolina to get
a fresh start. Rock admitted that during the relevant
time period, she had been addicted to drugs and, as a
result, her memory of everything that happened in that
time period was unreliable. Rock also admitted that she
was a compulsive liar. Although Rock was a key state’s
witness for the charges of kidnapping in the first degree,
the defendant was acquitted on both of those counts,
suggesting that the jury did not credit at least some of
Rock’s testimony.10 However, because the defendant
was convicted of kidnapping in the second degree, the
testimony of Rock was an important factor regarding
that charged offense. The fact that Rock had a stormy
relationship with Michael and may have had a financial
incentive to assist in the crimes should have been con-
sidered by the jury.11
We conclude that the trial court abused its discretion
in excluding Rock’s description of her relationship with
Michael. Rock’s testimony—that her relationship with
Michael had been poor but was improving in the months
leading up to his death—should have been presented to
the jury because this testimony was relevant to establish
Rock’s potential motive for participating in these crimes
along with the defendant.
With regard to Pappas’ testimony, we conclude that
the trial court abused its discretion in excluding her
testimony regarding Rock’s relationship with Michael
and Rock’s purported financial incentive to murder
Michael. With regard to Pappas’ testimony about Rock’s
relationship with Michael, Pappas admitted that she
had not socialized with Rock in the six months leading
up to the night of Michael’s murder, and thus had no
personal knowledge of the state of the relationship
between Rock and Michael at the time the assault took
place. This time gap, however, went to the weight rather
than the admissibility of this impeachment evidence.
With regard to the claimed financial incentive, Pappas
could not provide a definitive amount that Rock
believed she would receive if Michael died, nor could
Pappas identify the source of the funds that Michael
apparently obtained. However, the fact that Rock had
discussed this potential financial incentive should have
been presented to the jury.
The motivation of Rock in testifying was of para-
mount importance regarding both the kidnapping and
burglary charges. In assessing her credibility, the jury
was entitled to know about her past relationship with
Michael and her potential financial incentive for plan-
ning his death. We have previously concluded that
inquiry into the possible financial stake of a witness in
the outcome of a case in which the witness is testifying
is a proper subject of impeachment. Id., 250. Had the
proffered testimony been admitted, the jury may have
concluded that Rock was a participant in the crimes
and, therefore, it would have been impossible, pursuant
to statute, for the defendant to have kidnapped her.
Further, if Rock provided the defendant access to the
Laverty’s home, the jury may not have convicted him
on the burglary charges.
We conclude, therefore, that the matters that the
defendant sought to prove through the evidence he
proffered at trial were clearly relevant to Rock’s bias,
interest and motive for testifying. The trial court’s rul-
ings precluded the defendant from offering a constitu-
tionally sufficient minimum of evidence to impeach
Rock’s testimony.
We next consider whether the trial court’s improper
exclusion of evidence pertaining to Rock requires a
new trial on the kidnapping and burglary charges.
Although the outright denial of a defendant’s opportu-
nity to impeach a witness for motive, bias and interest
implicates the constitutional protection of the confron-
tation clause, such a denial is subject to harmless error
analysis. Id., 253. ‘‘A new trial is therefore required
only if the exclusion of the proffered evidence is not
harmless beyond a reasonable doubt.’’ Id.
‘‘Whether such error is harmless in a particular case
depends upon a number of factors, such as the impor-
tance of the witness’ testimony in the prosecution’s
case, whether the testimony was cumulative, the pres-
ence or absence of evidence corroborating or contra-
dicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted,
and, of course, the overall strength of the prosecution’s
case.’’ (Internal quotation marks omitted.) Id., 254.
If Rock’s testimony had been impeached to the point
that the jury believed that she was a participant, the
kidnapping charge would have failed. Indeed, the jury
acquitted the defendant on first degree kidnapping.
Obviously, it did not entirely credit Rock’s testimony.
If the additional testimony had been admitted, the evi-
dence may have had a tendency to influence the jury.
Rock was a key witness regarding the kidnapping
charge. The proffered testimony was not cumulative.
Without her testimony the state had a weak case on
the kidnapping charge. The exclusion of evidence bear-
ing on the motivation of a chief witness is an important
factor in any analysis of harmless error, particularly in
the present case where no physical evidence corrobo-
rated the material aspects of Rock’s testimony. The
state has not demonstrated beyond a reasonable doubt
that the exclusion of the proffered testimony consti-
tuted harmless error. Therefore, we reverse the defen-
dant’s conviction on the charge of kidnapping in the
second degree and remand the case for a new trial on
that count.
For a similar reason, we conclude that the inability
of the jury to consider evidence of Rock’s motive to
participate was harmful to the defendant’s defense to
the charges of burglary in the first degree. A person
commits the crime of burglary, as that crime is defined
pursuant to § 53a-101 (a) (2), when ‘‘such person enters
or remains unlawfully in a building with intent to com-
mit a crime therein and, in the course of committing
the offense, intentionally, knowingly or recklessly
inflicts or attempts to inflict bodily injury on anyone
. . .’’ See also General Statutes § 53a-101 (a) (1) (indi-
cating that person commits crime of burglary in first
degree when ‘‘such person enters or remains unlawfully
in a building with intent to commit a crime therein
and is armed with . . . a deadly weapon or dangerous
instrument’’). ‘‘A person ‘enters or remains unlawfully’
. . . when the premises, at the time of such entry or
remaining, are not open to the public and when the
actor is not otherwise licensed or privileged to do so.’’
General Statutes § 53a-100 (b). Had the jury heard the
excluded portions of Rock’s and Pappas’ testimony
dealing with Rock’s poor relationship with Michael and
considered the rest of her described behavior that night
in light of that testimony, it might have inferred that
Rock had consented to the defendant’s entry into the
Laverty’s home.12 Consequently, we also reverse the
defendant’s convictions on the charges of burglary in
the first degree and remand the case for a new trial on
those counts.
With respect to the murder and assault charges,
assuming, arguendo, without deciding that the exclu-
sion of the evidence rose to the level of a constitutional
violation, we conclude that the state has proven that
the exclusion of the proffered evidence was harmless
beyond a reasonable doubt.13 As set forth previously in
this opinion, Rock was not the key witness on the other
charges. Linda and Christopher identified the defendant
as the person who killed Michael and assaulted their
family. One of the two knives that tested positive for
Michael’s blood fell out of the defendant’s pocket. The
other knife was dropped along the path that the defen-
dant traveled after leaving the house. The defendant’s
DNA was discovered on the ski mask worn by the assail-
ant. Further, the defendant conceded he was at the
home on the night in question. Rock’s testimony as
to these offenses was cumulative to that of the other
witnesses and there was also substantial corroborative
physical evidence. Thus, the state’s case was extremely
strong regarding the other counts. We conclude, there-
fore, that the state has demonstrated beyond a reason-
able doubt that the denial of the proffered impeachment
evidence was harmless beyond a reasonable doubt as
it related to the murder and assault charges.
II
JURY INSTRUCTION ISSUES
We turn to the defendant’s claims related to the trial
court’s jury instructions, namely, that the trial court
should have: (1) instructed the jury on the defendant’s
defense of third party culpability; or (2) in the alterna-
tive, instructed the jury on the defendant’s theory of the
defense that Rock was at the very least a participant—if
not the sole participant—in the crimes of which the
defendant was convicted; and (3) instructed the jury
on Rock’s motive to testify falsely.
‘‘We begin with the well established standard of
review governing the defendant’s challenge[s] to the
trial court’s jury instruction. Our review of the defen-
dant’s claim requires that we examine the [trial] court’s
entire charge to determine whether it is reasonably
possible that the jury could have been misled by the
omission of the requested instruction. . . . While a
request to charge that is relevant to the issues in a case
and that accurately states the applicable law must be
honored, a [trial] court need not tailor its charge to the
precise letter of such a request. . . . If a requested
charge is in substance given, the [trial] court’s failure
to give a charge in exact conformance with the words
of the request will not constitute a ground for reversal.
. . . As long as [the instructions] are correct in law,
adapted to the issues and sufficient for the guidance
of the jury . . . we will not view the instructions as
improper. . . . Additionally, we have noted that [a]n
[impropriety] in instructions in a criminal case is revers-
ible . . . when it is shown that it is reasonably possible
for [improprieties] of constitutional dimension or rea-
sonably probable for nonconstitutional [improprieties]
that the jury [was] misled.’’ (Internal quotation marks
omitted.) State v. Kitchens, 299 Conn. 447, 454–55, 10
A.3d 942 (2011).
A
Third Party Culpability Charge
The defendant claimed that he was entitled to a third
party culpability instruction in light of (1) the forensic
evidence, which demonstrated that Rock was present
at the scene, and (2) the excluded testimony of Rock
and Pappas. The defendant claims that a direct connec-
tion between Rock and the commission of the crimes
of which he was convicted was established on the basis
of this evidence.14
‘‘In determining whether the trial court improperly
refused a request to charge, [w]e . . . review the evi-
dence presented at trial in the light most favorable to
supporting the . . . proposed charge. . . . A request
to charge which is relevant to the issues of [a] case and
which is an accurate statement of the law must be given.
. . . If, however, the evidence would not reasonably
support a finding of the particular issue, the trial court
has a duty not to submit it to the jury. . . . Thus, a
trial court should instruct the jury in accordance with
a party’s request to charge [only] if the proposed instruc-
tions are reasonably supported by the evidence.’’ (Inter-
nal quotation marks omitted.) State v. Arroyo, 284 Conn.
597, 607–608, 935 A.2d 975 (2007). ‘‘[T]he very standards
governing the admissibility of third party culpability
evidence also should serve as the standards governing
a trial court’s decision of whether to submit a requested
third party culpability charge to the jury.’’ Id., 608–609.
‘‘The admissibility of evidence of third party culpabil-
ity is governed by the rules relating to relevancy. . . .
Relevant evidence is evidence having any tendency to
make the existence of any fact that is material to the
determination of the proceeding more probable or less
probable than it would be without the evidence. . . .
Accordingly, in explaining the requirement that the
proffered evidence establish a direct connection to a
third party, rather than raise merely a bare suspicion
regarding a third party, we have stated [that] [s]uch
evidence is relevant, exculpatory evidence, rather than
merely tenuous evidence of third party culpability
[introduced by a defendant] in an attempt to divert
from himself the evidence of guilt. . . . In other words,
evidence that establishes a direct connection between
a third party and the charged offense is relevant to the
central question before the jury, namely, whether a
reasonable doubt exists as to whether the defendant
committed the offense. Evidence that would raise only
a bare suspicion that a third party, rather than the defen-
dant, committed the charged offense would not be rele-
vant to the jury’s determination. A trial court’s decision,
therefore, that third party culpability evidence prof-
fered by the defendant is admissible, necessarily entails
a determination that the proffered evidence is relevant
to the jury’s determination of whether a reasonable
doubt exists as to the defendant’s guilt. . . . Finally,
[t]he trial court’s ruling on the relevancy of third party
inculpatory evidence will be reversed on appeal only
if the court has abused its discretion or an injustice
appears to have been done.’’ (Citation omitted; internal
quotation marks omitted.) State v. Hedge, supra, 297
Conn. 635–36.
Whether a defendant has sufficiently established a
direct connection between a third party and the crime
with which the defendant has been charged is necessar-
ily a fact intensive inquiry. In other cases, this court
has found that proof of a third party’s physical presence
at a crime scene, combined with evidence indicating
that the third party would have had the opportunity to
commit the crime with which the defendant has been
charged, can be a sufficiently direct connection for pur-
poses of third party culpability. See, e.g., Id, 636–37.
Similarly, this court has found the direct connection
threshold satisfied for purposes of third party culpabil-
ity when physical evidence links a third party to a crime
scene and there is a lack of similar physical evidence
linking the charged defendant to the scene. See, e.g.,
State v. Cerreta, 260 Conn. 251, 262–66, 796 A.2d 1176
(2002). Finally, this court has found that statements
by a victim that implicate the purported third party,
combined with a lack of physical evidence linking the
defendant to the crime with which he or she has been
charged, can sufficiently establish a direct connection
for third party culpability purposes. See, e.g., State v.
Arroyo, supra, 284 Conn. 607–15.
In the present case, it is undisputed that Rock was
physically present at the Laverty’s home on the night
that Michael was murdered and Christopher and Linda
were assaulted, and it is also undisputed that Rock’s
clothing and one of her rings were stained with the
blood of some of the other victims. There exists, how-
ever, a fatal flaw in the defendant’s attempt to success-
fully raise the defense of third party culpability: the
lack of a showing of sufficient evidence to provide
a credible, alternative explanation for the substantial
forensic evidence arrayed against the defendant.
Although it remains true that, to be relevant to a defense
of third party culpability, evidence need not exonerate
the defendant, we have previously held that, in order
for such evidence to be submitted to the jury for consid-
eration, it must ‘‘provid[e] a credible, alternative theory
as to who committed the crime . . . .’’ State v. Hedge,
supra, 297 Conn. 647. The problem with the defendant’s
theory of his third party culpability defense—specifi-
cally, that Rock may not have been a victim, but a
willing participant in the crimes—is that it does nothing
to refute the defendant’s own involvement.
The following facts reveal the defendant’s involve-
ment in the events of the night of October 25, 2006: (1)
one of the two knives that tested positive for Michael’s
blood fell out of the defendant’s pocket when he was
subdued by police officers outside the Pulaski School;
(2) the interior of the ski mask worn by the assailant
tested positive for the defendant’s DNA; (3) a shoe print
in Michael’s blood at the crime scene matched the shoe
worn by the defendant; (4) two of the victims, Linda
and Christopher, identified the defendant as their assail-
ant and testified that they saw the defendant grasp Rock
by her hair and force her out of the apartment; (5)
various articles of clothing worn by the defendant,
including his pants, shoes, and outer shirt, were stained
with the blood of Michael, Linda, and Christopher; and
(6) the defendant conceded that he was present at the
Laverty’s home during these events.
The evidence presented by both parties established
that Rock was also in the home and that, at some point,
she traveled through the living room and hallway where
the assaults took place. Rock’s hands were covered in
blood, and a ring worn on one of her hands tested
positive for Michael’s blood. There was a slit in Rock’s
sweatshirt and tank top, and a small scratch on her
stomach that had not existed prior to the night in ques-
tion. Rock also stated that she was wearing sunglasses
on top of her head during the assault. Once outside the
home, witnesses reported that the defendant did not
appear to force Rock to accompany him, Rock told
Christopher not to follow her, and Rock appeared fear-
ful at the time the defendant was arrested. Rock also
had bags of clothes stored in a truck at the defen-
dant’s house.
At trial, the defendant pointed to the bloodstains on
Rock’s hands and tried to suggest that Rock, and not
the defendant, stabbed Michael, Linda, and Christopher.
The defendant also points to the fact that Linda’s origi-
nal description of the attacker was consistent with the
clothing worn by Rock on the night in question. Neither
side presented any evidence, however, explaining how
Rock’s hands came to be bloody, and neither side pre-
sented any evidence indicating that Rock had access to
the murder weapon that was discarded along the route.
Taking into consideration the excluded evidence of
Rock’s poor relationship with Michael and potential
financial motive in having him killed, we must conclude
that the defendant failed to present sufficient evidence
to provide a credible, alternative explanation for the
substantial forensic evidence arrayed against him. In
addition, the defendant failed to establish a nexus
between Rock and the weapons used to murder Michael
and assault Christopher and Linda. For example, the
defendant did not offer any evidence suggesting that
Rock had access to or possession of the weapons used
in this case, nor did he offer an explanation for the
presence of his DNA on the inside of the ski mask
or the presence of the blood of Michael, Linda, and
Christopher on his various articles of clothing. As a
result, we conclude that the trial court properly con-
cluded that the defendant was not entitled to a jury
instruction on third party culpability in the present case.
B
Theory of Defense Charge
The defendant claims, in the alternative, that this
court should exercise its supervisory authority to create
a rule requiring trial courts in Connecticut to give a
‘‘theory of defense’’ instruction to juries for any theory
of defense with a foundation in the evidence presented
at trial. A theory of defense instruction consists of an
explanation of the defendant’s theory of defense, and
other courts have found that a defendant is entitled to
such an instruction in a given case so long as ‘‘there is
a foundation in the evidence . . . even if the trial court
determines that the evidentiary foundation of the
defense theory is only tenuous . . . .’’ (Citations omit-
ted.) United States v. Paul, 110 F.3d 869, 871 (2d Cir.
1997). The defendant claims that, because his requested
charge was not given as a theory of defense instruction,
his defense was rendered meaningless as jurors were
unable to consider the effect of Rock’s possible partici-
pation on the charges against the defendant.
Courts in Connecticut generally do not provide a
theory of defense instruction at the defendant’s request,
nor is there any requirement that such an instruction
be provided. Instead, pursuant to State v. Rosado, 178
Conn. 704, 707, 425 A.2d 108 (1979), ‘‘[w]hen a defendant
admits the commission of the crime charged but seeks
to excuse or justify its commission so that legal respon-
sibility for the act is avoided, a theory of defense charge
is appropriate. A defendant must, however, assert a
recognized legal defense before such a charge will
become obligatory. A claim of innocence or a denial
of participation in the crime charged is not a legally
recognized defense and does not entitle a defendant to
a theory of defense charge.’’ In Rosado, this court was
presented with the issue of whether it was improper
for a trial court to refuse to instruct the jury ‘‘on any
theory of defense for which there is any foundation in
the evidence, no matter how weak or incredible . . . .’’
Id. We concluded that it was not, noting that such a
conclusion was appropriate in Connecticut due to the
fact that ‘‘[o]ur statutes expressly set out a number of
affirmative defenses available to a criminal defendant
. . . only when evidence indicating the availability of
. . . [a] legally recognized [defense] is placed before a
jury is a defendant entitled as a matter of law to a theory
of defense instruction.’’ (Citations omitted; emphasis
omitted.) Id., 708. We have faithfully continued to follow
Rosado even as other jurisdictions have adopted the
broader approach suggested by the defendant—that the
defendant be entitled to an instruction on his or her
theory of defense, whatever it might be, so long as it
has a foundation in the evidence. See, e.g., State v.
Golodner, 305 Conn. 330, 352, 46 A.3d 71 (2012) (‘‘When
a defendant admits the commission of the crime
charged but seeks to excuse or justify its commission
so that legal responsibility for the act is avoided, a
theory of defense charge is appropriate. . . . A claim
of innocence or a denial of participation in the crime
charged is not a legally recognized defense and does
not entitle a defendant to a theory of defense charge.’’
[Internal quotation marks omitted.]), quoting State v.
Rosado, supra, 707; State v. Rasmussen, 225 Conn. 55,
88–89, 621 A.2d 728 (1993) (‘‘When a defendant admits
the commission of the crime charged but seeks to
excuse or justify its commission so that legal responsi-
bility for the act is avoided, a theory of defense charge
is appropriate. A defendant must, however, assert a
recognized legal defense before such a charge will
become obligatory. A claim of innocence or a denial
of participation in the crime charged is not a legally
recognized defense and does not entitle a defendant to
a theory of defense charge.’’ [Internal quotation marks
omitted.]), quoting State v. Rosado, supra, 707.
The defendant in this case acknowledges that, under
our law developed pursuant to Rosado, his claimed
theory of defense is not a ‘‘legally recognized’’ defense
on which a court would be required to instruct a jury.
Instead, he invites us to overrule or modify Rosado in
order to adopt the approach, taken by other jurisdic-
tions, which would entitle a defendant to an instruction
on his or her theory of defense regardless of whether
it is legally recognized. To do otherwise, the defendant
claims, would be to deprive the defendant of the oppor-
tunity to present a defense.
In the present case, the defendant’s chosen theory
of defense was that, although he conceded he was pres-
ent at the scene of the crime, and although the physical
evidence collected by law enforcement officials tied
him to the stabbings of each of the victims, Rock may
also have been a participant in these crimes and, thus,
might have been responsible for all or some of the
crimes for which the defendant was convicted. The trial
court in this case included in its jury instructions a
lucid and clear charge on the issue of identity: ‘‘The
issue of identity is an issue in every criminal case. The
state must prove beyond a reasonable doubt as to any
charge that this defendant was the individual who com-
mitted each of the crimes that the jury considers. You
must be satisfied beyond a reasonable doubt of the
accuracy of the identification of the defendant before
you convict him. It is your duty to recall, and weigh,
and consider all of the evidence relating to the identifi-
cation of the defendant. You should consider the oppor-
tunity the witnesses had to observe the defendant, the
degree of certainty of the identifications made by the
witnesses, whether the witnesses knew the defendant
before the identification, and any other circumstances
that you think are relevant to the issue of identification.’’
Later on, in describing the elements of each of the
violent crimes for which the defendant was prosecuted,
the court explained that, to find him guilty, the jury
must have found that the defendant was the person
who engaged in the behavior causing harm to each of
the victims. For example, in explaining the elements of
murder, the trial court explained that ‘‘[t]he second
element the state must prove beyond a reasonable
doubt in murder is, acting with [the intent to cause the
death of Michael], [the defendant] did, in fact, cause
the death of Michael . . . .’’ Thus, although the defen-
dant did not succeed in having his proposed jury charge
on his theory of defense included into the jury instruc-
tions,15 the jury was instructed on the relevant legal
concepts that the defendant sought to have included
in the charge.
Courts in this state are already obligated to ade-
quately instruct the jury on each essential element in
a criminal offense. See, e.g., State v. Anderson, 212
Conn. 31, 37, 561 A.2d 897 (1989) (‘‘the failure to instruct
a jury on an essential element of a crime charged is
error because it deprives the defendant of the right to
have the jury told what crimes he is actually being tried
for and what the essential elements of those crimes
are’’ [internal quotation marks omitted]). We are satis-
fied that our law under Rosado, when combined with
the requirement that trial courts must adequately
instruct juries on each essential element of each crime
for which the defendant is being prosecuted, adequately
protects the defendant’s right to present a defense. We
therefore decline the defendant’s invitation to use our
supervisory powers to modify or overrule our holding
in Rosado.
C
Motive to Testify Falsely
The defendant next claims that the trial court should
have instructed the jury specifically regarding Rock’s
motive to testify falsely.16 The defendant claims that the
jury could infer from the evidence presented that Rock’s
potential participation in the crimes charged gave rise
to a motive to testify in a way that would not expose
her to criminal prosecution. The state argues that,
because the trial court properly refused to give a third
party culpability charge, a charge on Rock’s motive
to testify truthfully was inappropriate. The state also
claims that the trial court’s general charge on the credi-
bility of witnesses sufficiently apprised the jury of the
various factors it was to consider when evaluating
Rock’s testimony, particularly when combined with the
defendant’s extensive cross-examination of Rock. Rely-
ing primarily on State v. Cooper, 182 Conn. 207, 438
A.2d 418 (1980), and State v. Ferrara, 176 Conn. 508,
408 A.2d 265 (1979), the defendant argues that a specific
instruction on Rock’s motive to testify falsely should
have been given to the jury because Rock was a com-
plaining witness who could have been subjected to
criminal prosecution based on evidence presented at
trial if her claimed status as a victim of these crimes
was disbelieved by law enforcement officials. We agree,
and find this error harmful as to the defendant’s convic-
tions for burglary and kidnapping.
The trial court denied the defendant’s request to give
a specific instruction on Rock’s credibility, but did pro-
vide a general instruction to the jury on the credibility
of witnesses.17
‘‘Generally, a [criminal] defendant is not entitled to
an instruction singling out any of the state’s witnesses
and highlighting his or her possible motive for testifying
falsely.’’ State v. Ortiz, 252 Conn. 533, 561, 747 A.2d
487 (2000); accord State v. Colon, 272 Conn. 106, 227,
864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S.
Ct. 102, 163 L. Ed. 2d 116 (2005). We have recognized
two exceptions to this general rule, however: the com-
plaining witness exception; and the accomplice excep-
tion. See, e.g., State v. Ortiz, supra, 561. Under the
complaining witness exception, when ‘‘the complaining
witness [himself] could . . . have been subject to pros-
ecution depending only upon the veracity of his account
of [the] particular criminal transaction, the court should
. . . [instruct] the jury in substantial compliance with
the defendant’s request to charge to determine the cred-
ibility of that witness in the light of any motive for
testifying falsely and inculpating the accused.’’ State v.
Cooper, supra, 182 Conn. 211–12. ‘‘In order for [such
a] request to be applicable to the issues in the case,
there must be evidence . . . to support the defendant’s
assertion that the complaining witness was the culpable
party. Id., 212.’’ (Internal quotation marks omitted.)
State v. Patterson, 276 Conn. 452, 467–68, 886 A.2d
777 (2005).
The defendant relies primarily on our decision in
Cooper, a case in which this court held that the trial
court committed harmless error when it refused to
instruct the jury on the motive of the complaining wit-
ness in that case to testify falsely. State v. Cooper, supra,
182 Conn. 212–13. In Cooper, the defendant claimed
that the trial court erred in refusing to instruct the jury
that the complaining witness had a motive to testify
falsely because, depending on whether his testimony
was truthful or not, the complaining witness could have
been subject to criminal prosecution himself. Id., 211–
12. In that case, the defendant and two other men
attempted to rob the complaining witness while he was
sitting in his bedroom. Id., 208. In response, the com-
plaining witness grabbed a shotgun that was within
reach and wounded one of the other robbers. Id. In
addition, years earlier, the complaining witness had
been convicted of aggravated assault for shooting a
man, which the complaining witness claimed had been
out of self-defense. Id., 209. This court determined that
the trial court erred in failing to give the requested
instruction, because the complaining witness could
have been subjected to criminal prosecution
‘‘depending only upon the veracity of his account of
this particular criminal transaction.’’ Id., 211–12. This
court ultimately concluded, however, that the failure
of the trial court to give the instruction was harmless
because: (1) the trial court gave a general witness credi-
bility instruction; id., 213–14; (2) the defendant was
permitted wide latitude to cross-examine the complain-
ing witness, and was permitted to ‘‘repeatedly [make
the jury] aware of [the complaining witness’] motive for
fabricating his account of the events at his apartment,’’
including during closing argument; id.; and (3) the
defendant’s chosen defense was that of an alibi: he did
not claim that he was present, ‘‘but that the complaining
witness . . . was the person responsible for the alter-
cation by his assault of the intruders.’’ Id., 214–15.
In the present case, Rock’s behavior could potentially
have constituted a crime if her testimony were not
believed. If the jury concluded that, contrary to her
testimony, Rock assisted the defendant or otherwise
participated in the events on the night in question, she
could be subject to criminal prosecution. Importantly,
although the testimony of Christopher and Linda cor-
roborated some of Rock’s testimony, much of what the
jury heard from Rock regarding her specific interactions
with the defendant, both before the night of October
25, 2006, and after Rock and the defendant left the
house, was not confirmed by any other testimony. If
Rock’s testimony were disbelieved, a reasonable infer-
ence might be drawn that she had been privy to the
defendant’s plan or assisted in its execution. For exam-
ple, the defendant argued that there had been no unlaw-
ful entry into the Laverty’s home, which would have
negated one of the essential elements of the crime of
burglary in the first degree and would also suggest that
Rock was a participant in the crimes committed on the
night of October 25, 2006.18 As a result, we conclude
that the trial court improperly refused to instruct the
jury on Rock’s motive to testify falsely.
We next examine whether this error was harmful.
This requires us to determine ‘‘whether it is likely that
the error involved affected the result and, as a conse-
quence, rose to the level of depriving the defendant of
a fair trial.’’ Id., 212. As in Cooper, the defendant in the
present case has not claimed that the trial court’s failure
to instruct the jury on Rock’s motive to testify falsely
violated any of his constitutional rights, so the defen-
dant bears the burden of demonstrating that the court’s
error was harmful. See id. As we have previously
explained in part I of this opinion, Rock’s testimony
and her credibility were critical to the defendant’s con-
victions of kidnapping in the second degree and bur-
glary in the first degree. We, conclude, therefore, that
the trial court’s failure to instruct the jury as to Rock’s
motive to testify falsely was harmful as to those spe-
cific counts.
The state argues that the trial court’s general charge
on the credibility of witnesses negated any error that the
trial court may have committed in failing to specifically
instruct the jury on Rock’s motive to testify falsely and
also claims that, to the extent that any error occurred,
the error was harmless due to the defendant’s extensive
cross-examination of Rock. As we have already noted
in part I of this opinion, although the court generally
gave the defendant wide latitude to cross-examine
Rock, it improperly failed to allow the defendant to
impeach Rock with evidence suggesting motive or bias
on the part of Rock against Michael. This error also
distinguishes the present case from Cooper because, in
the present case, the defendant was precluded from
making the jury aware of Rock’s potential motive to
participate in or otherwise assist the defendant with
the commission of these crimes, either through the pre-
sentation of evidence or during his closing argument.
Regarding the remaining offenses of which the defen-
dant was convicted, we conclude, for the same reasons
described previously in part I of this opinion, that, with
respect to these offenses, any error that may have
occurred was harmless.
III
PROSECUTORIAL IMPROPRIETY
The defendant next argues that this court should
use its supervisory powers to overturn the defendant’s
conviction because of the actions of one of the prosecu-
tors throughout the trial, which the defendant charac-
terizes as deliberate misuse of uncharged misconduct
evidence, the purposeful misrepresentation by the pros-
ecutor of facts not in evidence, and improper vouching
by the prosecutor for Rock’s credibility during his clos-
ing argument. The state argues that none of the prosecu-
tor’s actions was improper and, in the alternative, that
none of the claimed improprieties denied the defendant
his right to a fair trial. We conclude that a reversal of the
defendant’s conviction is not the appropriate remedy in
the present case.
‘‘Although prosecutorial [impropriety] is often exam-
ined under the rubric of a defendant’s due process pro-
tections . . . our review in the present case is limited
to whether reversal is required under our supervisory
authority. As an appellate court, we possess an inherent
supervisory authority over the administration of justice.
. . . The standards that we set under this supervisory
authority are not satisfied [merely] by observance of
those minimal historic safeguards for securing trial by
reason which are summarized as due process of law
. . . . Rather, the standards are flexible and are to be
determined in the interests of justice. . . . Of course,
our supervisory authority is not a form of free-floating
justice, untethered to legal principle. . . . Thus, [e]ven
a sensible and efficient use of the supervisory power
. . . is invalid if it conflicts with constitutional or statu-
tory provisions. . . .
‘‘[W]hen prosecutorial [impropriety] is not so egre-
gious as to implicate the defendant’s right to a fair trial,
an appellate court may invoke its supervisory authority
to reverse a criminal conviction when the prosecutor
deliberately engages in conduct that he or she knows,
or ought to know, is improper.’’ (Citations omitted;
internal quotation marks omitted.) State v. Payne, 260
Conn. 446, 450–51, 797 A.2d 1088 (2002).
The defendant claims that the following actions by
the prosecutor during the trial qualify as deliberate mis-
conduct that warrants the use of our supervisory pow-
ers to reverse the defendant’s conviction and order a
new trial. The trial court permitted the state to intro-
duce evidence of an episode of domestic violence
between the defendant and Rock, but only for the lim-
ited purpose of proving the defendant’s motive or intent
to commit the crimes with which he was charged. On
cross-examination, Rock was asked by defense counsel
if ‘‘back-and-forth’’ physical altercations occurred fre-
quently between the defendant and Rock, and Rock
answered affirmatively. On redirect, the prosecutor
asked Rock if the defendant hit her frequently, whether
she hit him frequently, and whether her physical vio-
lence against him would ‘‘have the same effect on him
as it would you physically?’’ The prosecutor also asked
Rock if the defendant had a temper, and whether she
saw evidence of it. In addition, the prosecutor asked
whether Rock varied her Oxycodone use depending on
how bad her bruises were, and Rock answered in the
affirmative, as she had on cross-examination. The pros-
ecutor then pressed further, asking, ‘‘[w]hat did you
mean by how bad the bruises were?’’ Defense counsel
objected, noting that ‘‘[i]t’s the same conversation we
had at sidebar.’’ The trial court sustained the objection.
On recross, Rock answered affirmatively when defense
counsel asked whether the defendant would obtain
Rock’s prescription medication for her and make sure
that Rock took it, and generally that the defendant had
been trying to help Rock. On further redirect, over
defense counsel’s objection, the prosecutor displayed
to the jury a photograph of Rock following the domestic
incident with the defendant that depicted her with a
black eye and asked Rock: ‘‘Was he taking care of you
when he did this to you . . . ?’’ During his closing argu-
ment, the prosecutor again referenced the defendant’s
domestic violence against Rock in discussing her credi-
bility and whether she was kidnapped by the defendant,
even though at least one witness testified that she
resisted leaving the apartment with him: ‘‘Didn’t she do
the smart thing? She knew what he was capable of
doing. You know what he was capable of doing, you
have seen the pictures from the prior occasion.’’ The
defendant claims that the prosecutor also vouched for
Rock’s credibility during his closing argument by mak-
ing the following statement: ‘‘You may not approve of
[Rock’s] lifestyle, the decisions she has made, her
admissions of drug use in the past. And I submit that
makes her an easy target. It doesn’t mean that she is
not telling the truth here two weeks ago.’’
Finally, the prosecutor told the jury that Linda had
made two mistakes in her initial statement to police
when, in fact, she had made a substantial number of
changes to her statement and the prosecutor was aware
of this.19 Specifically, during closing, the prosecutor
stated: ‘‘[T]he defense came up with and introduced
two portions of [Linda’s] statement that were inconsis-
tent with what she had said at the time. . . . She admit-
ted she made these mistakes, she corrected it. And
given the fact that . . . she had just been released from
the hospital, she was concerned about burying her hus-
band, considering what she had gone through, she made
two mistakes, which, actually, when you sit down and
think about it, separate yourself for a minute, take those
two mistakes and look at them, and say, did they really
amount to a hill of beans? Did they change the facts
here? Does it [now make Rock] the stabber? I don’t see
it. I don’t get it. Two mistakes out of that [twenty-
five] page statement.’’ Defense counsel then objected,
claiming that the prosecutor had mischaracterized the
evidence. The court instructed the jury that its recollec-
tion of the facts was to control, and the prosecutor
again repeated: ‘‘Two mistakes out of that [twenty-five]
page statement, is that a bad track record? Does that
mean that there is reasonable doubt here?’’
We disagree with the defendant’s assertion that the
prosecutor impermissibly vouched for Rock’s credibil-
ity during closing argument. A prosecutor may not
impermissibly vouch for a witness’ credibility by
expressing his or her own personal opinion as to the
credibility of a particular witness. See, e.g., State v.
Payne, supra, 260 Conn. 454. In the present case, how-
ever, the prosecutor merely urged the jury not to disbe-
lieve Rock’s testimony solely because of her lifestyle.
Such a comment did not suggest that the prosecutor
‘‘may have access to matters not in evidence . . .
which the jury may infer to have precipitated the per-
sonal opinions’’; (internal quotation marks omitted) id.;
which is the evil this rule is designed at preventing. A
prosecutor is always free ‘‘to comment upon the evi-
dence presented at trial and to argue the inferences that
the jurors might draw therefrom’’; (internal quotation
marks omitted) id.; which is what the prosecutor did
here. Rock’s lifestyle had been explored in great detail
during both the state’s direct and the defendant’s cross-
examination, and the prosecutor’s statement merely
suggested to the jury that her lifestyle choices did not
necessitate an inference that she was not telling the
truth about the events of the night of October 25, 2006.
Such an argument, stemming from the evidence pre-
sented at trial, was not improper.
Finally, if we were to assume, arguendo, without
deciding, that the prosecutor’s remaining challanged
statements constituted improprieties, however, we
would need to consider additional factors in determin-
ing whether reversal of the defendant’s conviction is
an appropriate remedy, including the degree of preju-
dice to the defendant, the potential emotional trauma
to the victims, and the availability of other sanctions
for such misconduct. See Id., 463–65.
Weighing these factors, we conclude that even if we
were to assume that the prosecutor engaged in impro-
priety in this case, such impropriety would not have
significantly prejudiced the defendant. The state’s case
against the defendant was overwhelming. The defen-
dant’s clothing was covered in Michael and Linda’s
blood, the defendant was found carrying a knife stained
with Michael’s blood, the defendant’s DNA was found
on the interior of a ski mask, the exterior of which was
stained with Michael’s blood, and the statements and
testimony of Christopher and Linda also linked the
defendant to each of the crimes of which he was con-
victed. Moreover, regarding the use of the evidence of
domestic violence between the defendant and Rock, it
is clear from the jury’s verdict that it did not entirely
believe Rock’s testimony, as the defendant was acquit-
ted of both counts of kidnapping in the first degree,
and a guilty verdict for either of those counts would
have required the jury to credit Rock’s version of events.
The circumstances in the present case thus differ
greatly from the facts of Payne, in which we concluded
that prosecutorial impropriety greatly prejudiced the
defendant. See State v. Payne, supra, 260 Conn. 464
(‘‘[T]he misconduct in the present case significantly
prejudiced the defendant. Because of a lack of physical
evidence, the state and the defense both depended heav-
ily on eyewitness testimony, necessarily making the
credibility of witnesses the crux of the jury’s analysis.’’).
Therefore, we cannot conclude that the alleged impro-
prieties resulted in significant prejudice to the defen-
dant. This consideration weighs against reversing the
defendant’s conviction. We need not consider the addi-
tional factors under Payne since they tend to weigh in
favor of the state.
We conclude that the prosecutor’s comments, even
if we were to find them improper, which we do not,
failed to result in significant prejudice to the defendant.
Therefore, we affirm the defendant’s convictions on the
charges of murder and assault in the first degree.
The judgment is reversed only with respect to the
charges of kidnapping in the second degree and bur-
glary in the first degree, and the case is remanded for
a new trial on those counts; the judgment is affirmed
in all other respects.
In this opinion the other justices concurred.
1
We note that although § 53a-54a was amended in 2012; see Public Acts
2012, No. 12-5, § 7; that amendment has no bearing on the merits of this
appeal. In the interest of simplicity, we refer to the current revision of
the statute.
2
We note that the two counts of burglary in the first degree were merged
into a single count at sentencing. We also note that § 53a-101 (a) was
amended during a special session in January, 2008. See Public Acts, Spec.
Sess., January, 2008, No. 08-1, § 2. That amendment, however, is not relevant
to the present appeal. For the sake of simplicity, we refer to the current
revision of the statute.
3
The defendant brought his appeal to this court pursuant to General
Statutes § 51-199 (b) (3).
4
In her statement to police, Linda stated that the assailant wore a black,
hooded sweatshirt with a face mask.
5
At some point, either before the masked person walked up the stairs or
as Rock and the masked person exited the apartment, Linda was also stabbed
in the leg.
6
Specifically, Linda testified that Rock was wearing a black, hooded
sweatshirt, and Rock testified that during the evening she had been wearing
sunglasses on top of her head to keep her hair off of her face.
7
We note that the state claims that the statements of Rock and Pappas
are relevant only to the defendant’s claimed third party culpability defense.
To the extent that the defendant sought to use this evidence to suggest that
Rock, and not the defendant, was responsible for the crimes committed on
the night in question, we agree with the state that such a use is properly
evaluated pursuant to a framework of a defense of third party culpability.
We address this issue in part II A of this opinion. We also note, however,
that the defendant’s claimed relevance of this evidence for his defense was
that ‘‘[h]ad the jurors learned about the evidence pertaining to [Rock’s]
motive, they could have determined that she was not a victim but rather
someone who participated with [the] defendant and who planned to leave
the state with him after the stabbing as she had testified about at trial.’’
The defendant claims, and we agree, that he also sought to use this evidence
to impeach Rock, an issue we explore in this part of the opinion. To fully
address the arguments of both parties, we will examine whether the excluded
testimony from Pappas and Rock was relevant to the defendant’s defense
and whether the excluded testimony was relevant for any other eviden-
tiary purpose.
8
The excluded portion of Rock’s testimony is as follows: ‘‘We didn’t get
along very well. And it’s weird because the last few weeks before he had
died, we were actually starting to get along. He was going to therapy and
he was taking medication for his moods, but before then, we didn’t get
along very well.’’
9
The relevant portion of Pappas’ excluded testimony regarding Rock’s
relationship with Michael is as follows: ‘‘[Rock] did not get along with
[Michael]. . . . I have seen [Michael] sleeping in his car because he didn’t
want to be around her. . . . [The relationship between Rock and Michael]
was on and off for as long as I have known [Rock]. . . . [Marrero] mentioned
. . . [that Michael] wasn’t happy that [Rock] was back in the house and
they didn’t get along. . . . I don’t think that anything has changed since I
was hanging around with her, as far as I heard.’’
The relevant portion of Pappas’ excluded testimony regarding Rock’s
financial motive to participate in the crimes of which the defendant was
convicted is as follows: ‘‘I’m not sure exactly what [the money which Michael
came into] was, and I’m not sure of the amount. I just know that [Rock]
talked about it a lot. . . . That he came into money. . . . [Rock] had stated
to me a number of times, that she . . . and [Linda] would love it if he was
out of the picture to get her hands on that money.’’
10
Section 53a-92 (a) (2) (A) defines kidnapping in the first degree as when
a person ‘‘abducts another person and . . . restrains the person abducted
with intent to . . . inflict physical injury upon him [or her] or violate or
abuse him [or her] sexually . . . .’’ Section 53a-92 (a) (2) (C) defines kidnap-
ping in the first degree as when a person ‘‘abducts another person and . . .
restrains the person abducted with intent to . . . terrorize him or a third
person . . . .’’ Rock testified that while she and the defendant were seated
in the abandoned car, the defendant told her that he had slit Michael’s
throat, stabbed Linda and Christopher, and that the defendant ‘‘told me that
I had a lot of questions that were going to be answered and that he was
going to inflict a lot of pain onto me.’’ Apparently, the jury did not believe
Rock’s testimony because it acquitted the defendant of both counts of
kidnapping in the first degree.
11
Rock’s credibility was critical to the charge of kidnapping in the second
degree because she had testified that she left the house with the defendant
because he had a knife and she believed that the defendant would have
killed her if she resisted. The crime of kidnapping in the second degree is
defined as when a person ‘‘abducts another person.’’ General Statutes § 53a-
94 (a). ‘‘ ‘Abduct’ ’’ is defined to mean ‘‘restrain a person with intent to
prevent his liberation by either (A) secreting or holding him in a place where
he is not likely to be found, or (B) using or threatening to use physical force
or intimidation.’’ General Statutes § 53a-91 (2). ‘‘ ‘Restrain’ means to restrict
a person’s movements intentionally and unlawfully in such a manner as to
interfere substantially with his liberty by moving him from one place to
another, or by confining him either in the place where the restriction com-
mences or in a place to which he has been moved, without consent. As
used herein ‘without consent’ means, but is not limited to, (A) deception
and (B) any means whatever, including acquiescence of the victim, if he is
a child less than sixteen years old or an incompetent person and the parent,
guardian or other person or institution having lawful control or custody of
him has not acquiesced in the movement or confinement.’’ General Statutes
§ 53a-91 (1). If the jury concluded that Rock had a motive to harm Michael
or otherwise assist the defendant in the commission of the crimes of which
he was convicted, the jury might have disbelieved Rock’s testimony and
instead inferred that she had consented to leave the premises with the
defendant. If the jury were to make such an inference, the defendant could
not have been found guilty of kidnapping in the second degree.
12
The defendant was found in possession of a set of keys when he was
arrested. Rock claimed that she had left a set of keys in the defendant’s
apartment and, after the altercation on October 8, 2006, when Rock returned
to the apartment to retrieve her belongings, the keys were no longer there.
Rock claimed that she had barricaded the basement door with a bureau to
prevent the defendant from using her keys to break in through the basement
door, and police observed that the basement door was locked and barricaded
the following day. The defendant argued that there was no unlawful entry
into the basement, noting that the contents of it had not been disturbed. If
the jury disbelieved Rock on this point, and concluded that the defendant
had her permission to enter the Laverty home, even if they accepted that
the door was barricaded, the jury could have inferred that Rock had notified
the defendant of the fact that, as Christopher testified, the Lavertys placed
the dryer venting system in the open and unlocked basement window when
doing laundry. Police at the crime scene the next day found the window
closed but unlocked. Thus, the jury was free to conclude that the defendant
had entered the basement through the window that Christopher testified
had been unlocked on the evening in question. Similarly, although we have
noted that a burglary may be committed even after a lawful entry—such as
when a defendant remains in a building after his license to enter is revoked;
see, e.g., State v. Belton, 190 Conn. 496, 500, 461 A.2d 973 (1983); we cannot
say beyond a reasonable doubt that the jury would have found that such
consent, if given, was ever revoked if the jury inferred that Rock had assisted
the defendant in his crimes.
13
The defendant’s specific theory of harm regarding these charges was
that ‘‘because the state’s theory was that [Rock] was a victim, it did not
charge the defendant as an accessory . . . . Based on the [trial court’s]
instructions, the jurors were required to acquit [the] defendant of all of the
charges if they believed that [Rock] was the stabber instead of the
defendant.’’
14
The charge requested by the defendant was as follows: ‘‘The defense
offered evidence during this case to support its claim that [Rock] may have
had some involvement in the commission of these crimes. If you credit that
evidence, you may then use it to assess what role she may have played, if
any, in the commission of some or all of the counts as charged. This type
of evidence is sometimes referred to as ‘third party guilt evidence.’
‘‘When considering this evidence as offered by the defense, you must not
consider whether the defense has established or proven that, in fact, [Rock]
committed these offenses; rather, your only focus when considering this
evidence is to determine whether it raises any reasonable doubt as to
whether [the defendant] committed some or all of these offenses, and/or
to what extent was his involvement.
‘‘Again, it is the state’s burden to prove the defendant’s guilt beyond a
reasonable doubt. The state must prove all of the elements of each count
beyond any reasonable doubt, including the fact that it was the defendant
who committed these crimes. This burden rests with the state at all times,
and the defendant has absolutely no burden to establish who may have
committed this offense.’’
15
See footnote 14 of this opinion to review the defendant’s requested
‘‘theory of defense’’ charge in full.
16
The defendant’s requested charge is as follows: ‘‘Further, when you
consider the testimony of [Rock], if you believe that she may have played
a role in this incident, you may then consider what motive, if any, she may
have had to testify falsely in this case. If you find that [Rock] may have
been subject to criminal prosecution, and that her initial version to the
police and subsequent testimony here in court could have motivated her to
inculpate the defendant, then you may consider that interest when you
weigh her credibility. If, however, you believe that [Rock] was not involved
as a participant in this incident, then you would not consider that factor.’’
17
The charge read as follows: ‘‘In deciding what the facts are, you must
consider all of the evidence. In doing this, you must decide what testimony
to believe, what testimony not to believe; you can believe all of it, part of
it, or none of it. In making that decision, you take into account a number
of factors which include the following: Was the witness able to see, hear,
or know about the things which the witness testified [to]? How well was
the witness able to recall and describe those things? What was the [witness’]
manner or demeanor while testifying? Did the witness have an interest in
the outcome of the case or any bias or prejudice concerning any party or
any matter involved in the case? How reasonable was the witness’ testimony
considered in light of all of the evidence in the case? Was the witness’
testimony contradicted by what the witness had said or done at another
time or by the testimony of other witnesses or other evidence?
‘‘Evidence of a witness’ substance abuse at or around the time of an
incident can be used by jurors also to assess the credibility of the witness,
particularly the person’s ability to perceive, recall, and relate accurate infor-
mation.
‘‘Also, evidence of a witness’ long-standing, serious, and persistent drug
use is relevant, again, to gauge what that witness’ general credibility and
ability to perceive is.
‘‘If you conclude a witness has deliberately testified falsely in some
respect, you should carefully consider whether you should rely on any of
that person’s testimony.
‘‘In deciding whether or not to believe a witness, keep in mind that
people sometimes forget things. You need to consider, therefore, whether
a contradiction is an innocent lapse of memory or an intentional falsehood,
and that may depend on whether it has to do with an important fact or with
only a small detail.
‘‘If you find that a witness has been inaccurate in one respect, remember
it in judging that person’s testimony and give it the weight you think it ought
to have. You should size up the witness and make your own judgments as
to their credibility and decide what portion, all, some, or none, of any
particular witness’ testimony you will believe. You should use all of your
experiences, your knowledge of human nature, and of the emotions which
influence and control human conduct, and you should test the evidence
against that knowledge.’’
18
See footnote 12 of this opinion. If the jury believed, contrary to Rock’s
testimony, that Rock had given the defendant consent to enter the home
she could potentially be subject to criminal prosecution.
19
Two portions of Linda’s revised statement were admitted into evidence;
the statement was never admitted in its entirety.