State v. Leandry ( 2015 )

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STATE OF CONNECTICUT v. ROBERT LEANDRY
(AC 36741)
DiPentima, C. J., and Lavine and Keller, Js.
Argued September 8—officially released November 17, 2015
(Appeal from Superior Court, judicial district of
Hartford, Suarez, J.)
Kirstin B. Coffin, assigned counsel, for the appel-
lant (defendant).
Matthew R. Kalthoff, special deputy assistant state’s
attorney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, and John F. Fahey, senior assistant
state’s attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Robert Leandry,
appeals from the judgment of conviction, rendered after
a jury trial, of robbery in the first degree in violation
of General Statutes § 53a-134 (a) (3) and assault in the
second degree in violation of General Statutes § 53a-60
(a) (2). On appeal, the defendant claims that (1) the
evidence was insufficient to support the judgment of
conviction for both counts, (2) the trial court improp-
erly charged the jury on robbery in the first degree, and
(3) the court abused its discretion in certain evidentiary
rulings. We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts that are relevant to this appeal. In September,
2012, Patrick Jalbert was employed by an independent
security company, which provided security services to
Save-A-Lot, a grocery store in Hartford. After Jalbert
observed the defendant behaving oddly in the grocery
store, he went to the management office to view the
store’s surveillance monitors. Jalbert then observed the
defendant walk to the freezer aisle section of the store,
select bags of frozen shrimp, and pack the bags into
his pants. Having confirmed that the defendant
bypassed the cashiers and exited the store with the
merchandise, Jalbert immediately left to intercept the
defendant.
Once outside, Jalbert confronted the defendant. After
Jalbert told him to stop, the defendant removed one
bag of frozen shrimp from his pants, placed it on top
of nearby shopping carts, and started to walk away.
Knowing that more merchandise was hidden inside the
defendant’s pants, Jalbert grabbed the defendant’s arm
to prevent him from leaving. When Jalbert attempted
to handcuff him, the defendant resisted and stated: ‘‘I
have a needle.’’1 After this statement, while trying to
separate himself from the defendant, Jalbert felt some-
thing stab him in his left forearm. Although Jalbert did
not see the hypodermic syringe at that moment, he saw
a blood mark on his arm.
The defendant then ran into the plaza parking lot. As
Jalbert pursued him, he was able to see a hypodermic
syringe in the defendant’s right hand. During the defen-
dant’s attempt to flee, an employee from the adjacent
furniture store joined in the pursuit. When both men
approached him, the defendant stated that he was
infected with AIDS, hepatitis, or ‘‘something to that
effect.’’ The employee from the furniture store was first
to reach the defendant, which prompted Jalbert to warn
him that the defendant had a hypodermic syringe. After
a brief struggle, both men managed to subdue the defen-
dant, and Jalbert handcuffed him.
Within minutes, officers from the Hartford Police
Department arrived on the scene. Officer Kenneth
Labbe spoke with Jalbert, who explained what had
occurred with the defendant, including having been
stabbed with a hypodermic syringe. Labbe noticed a
mark on Jalbert’s forearm that was consistent with
being stabbed with a hypodermic syringe. While Labbe
was speaking with Jalbert, the defendant was ‘‘sponta-
neously uttering . . . [that] he did not have HIV and
that he only had hepatitis.’’ Jalbert was transported to
Saint Francis Hospital and Medical Center in Hartford
via ambulance, where he was treated for superficial
scratches, what appeared to be puncture wounds, and
exposure to a blood-borne pathogen.
The defendant was charged with robbery in the first
degree and assault in the second degree. The jury found
the defendant guilty on both counts. The court sen-
tenced him to a total effective term of eight years of
incarceration and five years special parole. This appeal
followed. Additional facts will be set forth as necessary.
I
SUFFICIENCY OF EVIDENCE CLAIMS
The defendant first claims that there was insufficient
evidence to support his conviction on both counts. Spe-
cifically, he argues that the evidence presented by the
state does not support a conviction of robbery in the
first degree because it fails to show that he either used
or threatened to use a dangerous instrument. In addi-
tion, the defendant argues that the evidence does not
establish that he was guilty beyond a reasonable doubt
of assault in the second degree because the evidence
fails to show that he intended to or caused physical
injury to Jalbert.
We first begin by setting forth the law relevant to an
insufficiency of the evidence claim. As a preliminary
matter, ‘‘[a] defendant who asserts an insufficiency of
the evidence claim bears an arduous burden.’’ State v.
Hopkins, 62 Conn. App. 665, 669–70, 772 A.2d 657(2001). This court ‘‘[i]n reviewing [a] sufficiency [of
evidence] claim . . . [applies] a two part test. First, we
construe the evidence in the light most favorable to
sustaining the verdict. Second, we determine whether
upon the facts so construed and the inferences reason-
ably drawn therefrom, the jury reasonably could have
concluded that the cumulative force of the evidence
established guilt beyond a reasonable doubt. . . . In
this process of review, it does not diminish the proba-
tive force of the evidence that it consists, in whole or
in part, of evidence that is circumstantial rather than
direct. . . . It is not one fact, but the cumulative impact
of a multitude of facts which establishes guilt in a case
involving substantial circumstantial evidence. . . .
‘‘While . . . every element [must be] proven beyond
a reasonable doubt in order to find the defendant guilty
of the charged offense, each of the basic and inferred
facts underlying those conclusions need not be proved
beyond a reasonable doubt. . . . If it is reasonable and
logical for the jury to conclude that a basic fact or an
inferred fact is true, the jury is permitted to consider
the fact proven and may consider it in combination
with other proven facts in determining whether the
cumulative effect of all the evidence proves the defen-
dant guilty of all the elements of the crime charged
beyond a reasonable doubt. . . . We ask . . . whether
there is a reasonable view of the evidence that supports
the jury’s verdict of guilty. . . .
‘‘Furthermore, we are mindful that [w]e do not sit as
a [seventh] juror who may cast a vote against the verdict
based upon our feeling that some doubt of guilt is shown
by the cold printed record. We have not had the jury’s
opportunity to observe the conduct, demeanor, and atti-
tude of the witnesses and to gauge their credibility.
. . . The scope of our factual inquiry on appeal is lim-
ited. This court cannot substitute its own judgment for
that of the jury if there is sufficient evidence to support
the jury’s verdict.’’ (Citation omitted; internal quotation
marks omitted.) State v. Torres, 82 Conn. App. 823,
825–27, 847 A.2d 1022, cert. denied, 270 Conn. 909, 853
A.2d 525 (2004).
With these principles in mind, and construing the
evidence in the light most favorable to sustaining the
verdict, we determine that the jury reasonably could
have concluded that the cumulative force of the evi-
dence established the defendant’s guilt beyond a rea-
sonable doubt as to each count.
A
Count One—Robbery in the First Degree
The defendant first argues that there was insufficient
evidence to support his conviction of robbery in the first
degree in violation of § 53a-134 (a) (3).2 Specifically, the
defendant argues that the evidence did not sufficiently
establish that he used a hypodermic syringe to stab
Jalbert and that, under the circumstances, the hypoder-
mic syringe was not a dangerous instrument.3 We
disagree.
1
The following additional facts are relevant to the
defendant’s claim that there was insufficient evidence
to prove that he used a hypodermic syringe to injure
Jalbert. While at Saint Francis Hospital and Medical
Center, Karen Bigge, a physician assistant, treated Jalb-
ert. She testified to seeing ‘‘some superficial scratches
and what appeared to be some puncture wounds’’ to
Jalbert’s left arm, which were consistent with having
been stabbed with a hypodermic syringe. Jalbert’s medi-
cal records were admitted into evidence and corrobo-
rated Bigge’s testimony.
In addition to Bigge’s testimony, the court admitted
into evidence two video exhibits without objection from
the defendant. The first video exhibit showed footage
from the Save-A-Lot surveillance system. As the jury
viewed the video, Jalbert testified to the events taking
place. The video showed the defendant exiting the store
with Jalbert in pursuit. The jury could see that once
outside the store, Jalbert attempted to apprehend the
defendant. Jalbert identified for the jury the moment
when he was stabbed with the hypodermic syringe.
As to the second video exhibit, Jalbert testified that
the property management company, which owned the
plaza where Save-A-Lot was located, operated its own
security cameras. These cameras covered a sector of
the parking lot that the Save-A-Lot cameras did not.
Sometime after the incident, the plaza’s property man-
agement company allowed Jalbert to view its surveil-
lance monitors, and Jalbert testified to using his cell
phone to film the footage displayed on the computer
screen. This video showed the defendant running
through the parking lot, the furniture store employee
and Jalbert chasing and apprehending the defendant,
and the Hartford police officers arriving on the scene.
The jury also could see Jalbert pointing to his left fore-
arm on multiple occasions while speaking with the
police officers.
The evidence before the jury indicating that the defen-
dant used a hypodermic syringe to stab Jalbert con-
sisted of not only testimony from Jalbert, but also
testimony from Bigge and Labbe, as well as two video
exhibits and Jalbert’s medical reports. The defendant
characterizes Jalbert’s testimony about when he saw
the hypodermic syringe as inconsistent. The defendant
also points to the inconsistent testimony between Jalb-
ert, who testified to one puncture wound, and Bigge,
who testified that she saw ‘‘what appeared to be some
puncture wounds to [Jalbert’s] arm.’’ (Emphasis
added.) The defendant argues that Bigge’s use of the
plural form of ‘‘wound’’ when combined with Jalbert’s
testimonial inconsistencies is enough to establish that
there was insufficient evidence at trial to prove that the
defendant stabbed Jalbert in the arm with a hypodermic
syringe. However, ‘‘[i]t is axiomatic that evidentiary
inconsistencies are for the jury to resolve, and it is
within the province of the jury to believe all or only
part of a witness’ testimony.’’ State v. Meehan, 260 Conn.
372, 381, 796 A.2d 1191 (2002). We conclude the evi-
dence before the jury was sufficient to allow it to resolve
any evidentiary inconsistencies.
Construing the evidence in the light most favorable
to sustaining the verdict, the jury reasonably could have
concluded that the cumulative force of the testimony
of Jalbert, Bigge, and Labbe, as well as the video exhibits
and Jalbert’s medical records, established that the
defendant used a hypodermic syringe to stab Jalbert in
the arm.
2
The defendant also contends that the evidence was
insufficient to prove that the hypodermic syringe was
a dangerous instrument under the circumstances. We
disagree.
The following additional facts are relevant to this
claim. The hypodermic syringe was admitted into evi-
dence as a full exhibit at trial. Jalbert testified that
once the defendant was apprehended, he dropped the
hypodermic syringe, and it landed approximately four
feet away. To his recollection, the hypodermic syringe
was uncapped and the needle portion of the hypodermic
syringe was broken. Jalbert testified that he pointed
out the hypodermic syringe to the police officers.
At trial, however, Hartford police Officer Steven
Suchecki testified that Jalbert handed him the hypoder-
mic syringe. During cross-examination, Suchecki could
not ascertain from where Jalbert had gotten the hypo-
dermic syringe, but he did testify that Jalbert indicated
that the hypodermic syringe came from the defendant.
Suchecki also testified that when he secured the hypo-
dermic syringe at the scene, it was uncapped and the
needle portion of the hypodermic syringe was bent.
The jury heard additional testimony concerning the
hypodermic syringe from Gerald Kumnick, a police
inspector with nearly nineteen years of experience.
Kumnick testified that he and the prosecutor conducted
an experiment with the same hypodermic syringe that
was introduced at trial. As part of the experiment, Kum-
nick testified that he inflated a rubber glove, twisted
the end of the glove, and held it steady so the prosecutor
could stab the glove. On the first attempt, the hypoder-
mic syringe created a small hole in the glove but did
not cause it to deflate. When the prosecutor plunged
the hypodermic syringe into the inflated rubber glove
a second time, it ‘‘popped like a balloon would pop.’’
Kumnick concluded that ‘‘the glove popped from the
[hypodermic syringe] being poked into it.’’
In addition to Kumnick’s testimony, the jury heard
from Bigge, who testified that she examined the hypo-
dermic syringe. In her opinion, the hypodermic syringe
was capable of transmitting blood-borne pathogens.
This opinion was based on observing the presence of
a needle in the hypodermic syringe. Bigge also testified
that blood-borne pathogens, such as HIV, hepatitis B,
or hepatitis C, could be transmitted through metal or
plastic from a hypodermic syringe. In the case of a
person infected with hepatitis, the disease could cause
abdominal pain, yellowing of the skin, and damage to
organs.
The defendant argues that the hypodermic syringe
was not a dangerous instrument under the circum-
stances. On appeal, the defendant claims that it was
unclear whether the hypodermic syringe was ‘‘ever used
or [brandished]’’ to argue that there was insufficient
evidence for a jury to conclude that the hypodermic
syringe was a dangerous instrument. The defendant’s
argument is unavailing.
We now set forth the law that guides our analysis
disposing of the defendant’s claim that the hypodermic
syringe was not a dangerous instrument. At the time
of the defendant’s arrest, the Penal Code defined, in
relevant part, a dangerous instrument as ‘‘any instru-
ment, article or substance which, under the circum-
stances in which it is used or attempted or threatened to
be used, is capable of causing death or serious physical
injury . . . .’’ General Statutes § 53a-3 (7). ‘‘[A]n ordi-
nary object may be a dangerous instrument. Therefore,
[e]ach case must be individually examined to determine
whether, under the circumstances in which the object
is used or threatened to be used, it has the potential
for causing serious physical injury. . . . The question
of whether in the given circumstances a particular
object was used as a dangerous instrument is a question
of fact for the jury.’’ (Citation omitted; internal quota-
tion marks omitted.) State v. McColl, 74 Conn. App. 545,
554, 813 A.2d 107, cert. denied, 262 Conn. 953, 818 A.2d
782 (2003).
‘‘[T]he analysis focuses on the actual circumstances
in which the instrument is used in order to consider
the instrument’s potential to cause harm. . . . The stat-
ute neither restricts the inquiry to the exact manner in
which the object was actually used, nor requires any
resulting serious physical injury. . . . The facts and
circumstances need show only that the general way
in which the object was used could potentially have
resulted in serious physical injury. . . . The object’s
potential for injury, therefore, must be examined only
in conjunction with the circumstances in which it is
actually used or threatened to be used, and not merely
viewed in terms of its dangerous capabilities in the
abstract.’’ (Citation omitted; internal quotation marks
omitted.) State v. Schultz, 100 Conn. App. 709, 721,
921 A.2d 595, cert. denied, 282 Conn. 926, 926 A.2d
668 (2007).
Contrary to the defendant’s argument, there was evi-
dence to show that the hypodermic syringe was a dan-
gerous instrument. For instance, Jalbert testified to
hearing the defendant state that he had a hypodermic
syringe, to feeling a sharp pain on his left forearm and
seeing a blood mark, and to seeing the defendant run-
ning with a hypodermic syringe in his right hand. Addi-
tionally, Bigge and Labbe testified to seeing a wound
on Jalbert’s arm that was consistent with his having
been stabbed with a hypodermic syringe. As the final
arbiter of credibility of any witness, the jury was free
to disbelieve Jalbert, Bigge, or Labbe. Moreover, ‘‘[o]n
appeal, we cannot revisit the jury’s decision to believe
the witnesses.’’ State v. Robinson, 125 Conn. App. 484,
489, 8 A.3d 1120 (2010), cert. denied, 300 Conn. 911, 12
A.3d 1006 (2011).
In addition to this testimony, the jury had the hypo-
dermic syringe that was recovered at the scene for its
evaluation. The state also produced evidence that the
hypodermic syringe was able to puncture an inflated
glove. Through Bigge’s testimony, the jury learned that
the hypodermic syringe could transmit blood-borne
pathogens. Therefore, when evaluating all of the evi-
dence before it, the jury reasonably could have con-
cluded that being stabbed with a hypodermic syringe
potentially contaminated with a blood-borne pathogen
constituted a dangerous instrument.4
We conclude that when construing the evidence in
the light most favorable to sustaining the verdict and
the inferences reasonably drawn therefrom, the jury
reasonably could have concluded that the cumulative
force of the evidence established the defendant’s guilt
beyond a reasonable doubt as to robbery in the first
degree. Accordingly, the defendant’s claim must fail.
B
Count Two—Assault in the Second Degree
The defendant next claims that there was insufficient
evidence to support his conviction of assault in the
second degree. Specifically, the defendant contends
that because his statement, ‘‘I have a needle,’’ could
have been a warning or that Jalbert’s injury could have
been accidental, a reasonable jury could not have con-
cluded that he intended to cause injury. The defendant
also argues that because Jalbert did not see the defen-
dant stab him with a hypodermic syringe, as well as
inconsistencies between the testimony of Jalbert and
Bigge, a reasonable jury could not have concluded that
he caused Jalbert’s injury. We disagree.
We set forth the relevant law that disposes of the
defendant’s claim that the state did not provide suffi-
cient evidence to support his conviction of assault in the
second degree. At the time the defendant was arrested,
§ 53a-60 (a) provided, in relevant part, that ‘‘[a] person
is guilty of assault in the second degree when . . . (2)
with intent to cause physical injury to another person,
he causes such injury to such person . . . by means
of . . . a dangerous instrument other than by means
of the discharge of a firearm . . . .’’ At the time the
defendant was arrested, ‘‘physical injury’’ was defined
as ‘‘impairment of physical condition or pain . . . .’’
General Statutes § 53a-3 (3).
‘‘Intent is a question of fact, the determination of
which should stand unless the conclusion drawn by the
trier is an unreasonable one. . . . [T]he [jury is] not
bound to accept as true the defendant’s claim of lack
of intent or his explanation of why he lacked intent.
. . . Intent may be, and usually is, inferred from the
defendant’s verbal or physical conduct. . . . Intent
stances. . . . The use of inferences based on circum-
stantial evidence is necessary because direct evidence
of the accused’s state of mind is rarely available. . . .
Intent may be gleaned from circumstantial evidence
such as the type of weapon used, the manner in which
it was used, the type of wound inflicted and the events
leading up to and immediately following the incident.
. . . Furthermore, it is a permissible, albeit not a neces-
sary or mandatory, inference that a defendant intended
the natural consequences of his voluntary conduct.’’
(Citations omitted; internal quotation marks omitted.)
State v. Andrews, 114 Conn. App. 738, 744–45, 971 A.2d
63, cert. denied, 293 Conn. 901, 975 A.2d 1277 (2009).
The jury reasonably could have found that the defen-
dant intended to cause Jalbert physical injury through
the direct and circumstantial evidence presented at
trial. It is well established that ‘‘[t]here is no distinction
between direct and circumstantial evidence [so] far as
probative force is concerned . . . . In fact, circum-
stantial evidence may be more certain, satisfying and
persuasive than direct evidence.’’ (Citation omitted;
internal quotation marks omitted.) State v. Teti, 50
Conn. App. 34, 39, 716 A.2d 931, cert. denied, 247 Conn.
921, 722 A.2d 812 (1998). The jury was able to evaluate
Jalbert’s credibility as he recounted the struggle with
the defendant, and the jury had the opportunity to
observe the altercation on the video. Therefore, the
jury reasonably could have rejected the defendant’s
argument that his statement concerning the hypodermic
syringe was a warning or that Jalbert’s wound was acci-
dental.
Likewise, the jury also reasonably could have con-
cluded that the defendant caused Jalbert’s injury. The
jury heard testimonial evidence from Jalbert, Bigge, and
Labbe. Also, it viewed the second video exhibit and
reviewed Jalbert’s medical report. Jalbert testified to
hearing the defendant state that he had a hypodermic
syringe, which was followed by sharp pain. Both Bigge
and Labbe testified to seeing a wound consistent with
being stabbed with a hypodermic syringe. Although
there were inconsistencies between the testimony of
Jalbert and Bigge as to the wound, the jury was free
to resolve these inconsistencies in a manner consistent
with a finding of guilt. See State v. Meehan, supra, 260
Conn. 381. Therefore, the jury reasonably could have
credited Jalbert’s testimony and concluded that the
defendant caused Jalbert’s injury in light of the follow-
ing: (1) Bigge’s physical examination and testimony; (2)
testimony from two police officers attesting to having
seen a puncture wound; (3) video evidence of Jalbert
pointing to his arm; and (4) Jalbert’s medical records.
Because the jury, having considered the direct and cir-
cumstantial evidence, rejected the defendant’s theories,
‘‘[his argument] is inadequate to support his sufficiency
of the evidence claim.’’ State v. Johnson, 71 Conn. App.
272, 283, 801 A.2d 890, cert. denied, 261 Conn. 939, 808
A.2d 1133 (2002), cert. denied, 537 U.S. 1207, 123 S. Ct.
1286, 154 L. Ed. 2d 1052 (2003).
We conclude that when construing the evidence in
the light most favorable to sustaining the verdict and
the inferences reasonably drawn therefrom, the jury
reasonably could have concluded that the cumulative
force of the evidence established the defendant’s guilt
beyond a reasonable doubt as to assault in the second
degree. Accordingly, the defendant’s claim is without
merit.
II
IMPROPER JURY CHARGE CLAIM
The defendant next claims that the court improperly
charged the jury on robbery in the first degree. Specifi-
cally, the defendant argues that the court erroneously
denied his requested charge pursuant to State v. Nichol-
son, 71 Conn. App. 585, 591–92, 803 A.2d 391, cert.
denied, 261 Conn. 941, 808 A.2d 1134 (2002). We are
not persuaded.
The following additional facts are relevant to this
claim. In anticipation of the charge conference, the
defendant submitted a written request to charge. See
Practice Book § 42-16. The defendant requested that
the following language be incorporated into the court’s
charge to the jury: ‘‘The charge of robbery in the first
degree requires either the actual use of a dangerous
instrument, or its threatened use, demonstrated by an
actual display or words combined with an overt dis-
play of the threatened instrument.’’ (Emphasis added.)
The defendant cited Nicholson as authority for the pro-
posed instruction. The court declined to give the charge
requested by the defendant and instead charged the
jury, in relevant part, as follows: ‘‘A person is guilty of
robbery in the first degree when, in the course of the
commission of the crime of robbery or of immediate
flight therefrom, he used or threatened the use of a
dangerous instrument.’’
We set forth the relevant law governing the defen-
dant’s improper jury charge claim. The standard of
review for claims of instructional impropriety is well
established. ‘‘Our review of the defendant’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.’’ (Internal quotation marks omit-
ted.) State v. Kitchens, 299 Conn. 447, 454–55, 10 A.3d
942 (2011).
‘‘The principal function of a jury charge is to assist
the jury in applying the law correctly to the facts which
[it] might find to be established . . . . When reviewing
[a] challenged jury instruction . . . we must adhere to
the well settled rule that a charge to the jury is to be
considered in its entirety . . . and judged by its total
effect rather than by its individual component parts.
. . . [T]he test of a court’s charge is . . . whether it
fairly presents the case to the jury in such a way that
injustice is not done to either party . . . .’’ (Internal
quotation marks omitted.) State v. Perry, 108 Conn.
App. 788, 792, 949 A.2d 537, cert. denied, 289 Conn. 912,
957 A.2d 881 (2008).
‘‘The duty of the trial court [in a criminal case] is to
instruct the jury on the law applicable to the case [and]
. . . in charging the [members of the] jury in a criminal
case, to give to them such instructions as may be
required to enable them to understand the nature of
the offense charged and the questions which they are
to decide, to weigh the evidence applicable to such
questions, and to intelligently decide them.’’ (Citations
omitted; internal quotation marks omitted.) State v. St.
Pierre, 58 Conn. App. 284, 291, 752 A.2d 86, cert. denied,
254 Conn. 916, 759 A.2d 508 (2000). ‘‘The defendant is
entitled to a jury which is correctly and adequately
instructed.’’ (Internal quotation marks omitted.) State
v. Fletcher, 10 Conn. App. 697, 701, 525 A.2d 535 (1987),
aff’d, 207 Conn. 191, 540 A.2d 370 (1988). ‘‘It is of the
utmost importance that the instructions be clear and
comprehensible and provide guidance to the jury in
applying the law to the facts it finds established.’’ Id.,
704.
The court properly declined to give the defendant’s
proposed charge because the facts in this case were
distinguishable from the facts in Nicholson. In Nichol-
son, the defendant did not show or threaten the use of
a box cutter, but, by keeping his right hand in his pocket
as he verbally threatened the victim, gave the victim
‘‘the impression that [the defendant] may have pos-
sessed a knife, gun or other weapon in his pocket.’’
State v. Nicholson, supra, 71 Conn. App. 587. It was
only after the defendant was arrested that a box cutter
was found in his sweatshirt pocket. Id., 588. The court
in Nicholson concluded that ‘‘[a] conviction pursuant
to § 53a-134 (a) (3) cannot stand if the evidence merely
shows that the defendant was armed with a dangerous
instrument, or that he gave the impression by his words
or conduct that he was armed with a dangerous instru-
ment.’’ Id., 591.
In this case, as the defendant resisted Jalbert’s
attempt to apprehend him, the defendant specified the
type of dangerous instrument he had on his person.
This factual distinction between the present case and
Nicholson supports the court’s decision to reject the
defendant’s written request to charge the jury. The court
correctly reasoned that the jury reasonably could have
concluded that ‘‘the dangerous instrument may be the
syringe that the defendant indicated he had [on his
person] . . . .’’ Therefore, the court properly rejected
the defendant’s requested charge to the jury.
In reviewing the jury charge as a whole, we conclude
that the jury instructions correctly applied the law. The
court adopted jury instructions on the elements of rob-
bery in the first degree in accordance with the model
criminal jury instructions.5 This court has noted that
‘‘[w]hile not dispositive of the adequacy of the [jury]
instruction, an instruction’s uniformity with the model
instructions is a relevant and persuasive factor in our
analysis.’’ State v. Sanchez, 84 Conn. App. 583, 592 n.10,
854 A.2d 778, cert. denied, 271 Conn. 929, 859 A.2d
585 (2004).
Moreover, the jury charge provided ample guidance.
The jury was provided with the specific elements of
the charge, which tracked the statutory language, as
well as an explanation of each element. The court
defined key terms and legal concepts, namely, ‘‘rob-
bery,’’ ‘‘larceny,’’ ‘‘dangerous instrument,’’ ‘‘serious
physical injury,’’and ‘‘immediate flight.’’ The court fur-
ther explained the concepts of circumstantial and direct
evidence, while also pointing out that jurors may draw
logical and reasonable inferences from facts established
by the evidence. See State v. Lo Sacco, 11 Conn. App.
24, 29–30, 525 A.2d 977 (finding no error in jury charge
when judge read statute verbatim, explained each sub-
section, and defined key term for jury), cert. denied,
204 Conn. 812, 528 A.2d 1158 (1987). ‘‘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.’’ (Internal quota-
tion marks omitted.) State v. Kitchens, supra, 299 Conn.
455. We conclude that the jury charge, read in its totality,
provided proper guidance and did not mislead the jury.
Accordingly, the defendant’s claim fails.
III
EVIDENTIARY CLAIMS
Finally, the defendant claims that the court abused
its discretion by limiting his cross-examination of Jalb-
ert and that this evidentiary ruling was harmful error.6
Specifically, the defendant claims that the court (1)
improperly sustained the state’s objections to defense
counsel’s line of questioning as to who paid Jalbert’s
medical expenses and as to whether he had filed a
workers’ compensation claim, and (2) improperly lim-
ited cross-examination exploring Jalbert’s motivation
in recording the video of the incident and his laughter
during the recording. The defendant argues that these
topics were relevant because they tended to show that
Jalbert lacked credibility, that he was seeking compen-
sation for the incident, and that Jalbert harbored bias
against the defendant.7 The state counters that the
defendant failed to establish that the testimony was
relevant. We agree with the state and conclude that
the court did not abuse its discretion in sustaining the
state’s objections.
The following additional facts are necessary to
address this claim. At trial, the defendant attempted to
elicit testimony from Jalbert on cross-examination as
to who paid his medical expenses and whether he sub-
mitted a workers’ compensation claim. The state
objected to the questions, and the court sustained the
state’s objections on the ground that the information
sought was irrelevant.8 Afterward, defense counsel
cross-examined Jalbert on the video he had recorded
using his cell phone, which previously was admitted
into evidence as a full exhibit. When defense counsel
attempted to ask Jalbert about his intentions in making
the recording, the state objected to the question on
relevance grounds, and the court excused the jury.
In the colloquy that followed, defense counsel argued
that her line of questioning was meant to elicit relevant
testimony from Jalbert as to his motivation for taking
the video. Defense counsel stated that she ‘‘[believed]
that [Jalbert’s reason for recording the video] was to
[get] compensation for [the] incident,’’ which tended to
show that Jalbert had ‘‘interest in the outcome . . .
and [went] to his credibility.’’ Additionally, defense
counsel represented to the court that she wanted to
ask Jalbert whether he found any aspect of the video
amusing.
The original video recording contained audio. In it,
one can hear some commentary and laughter between
Jalbert and another individual. However, the jury did
not hear the audio portion of the video. Nevertheless,
defense counsel argued that any comment or laughter
from Jalbert was relevant to his credibility and tended
to show bias against the defendant.
In support of her argument, defense counsel cited
various cases, as well as § 6.5 of the Connecticut Code
of Evidence,9 for the proposition that ‘‘evidence
intending to show a witness’ bias, prejudice, or interest
[was] never a collateral impeachment of a witness . . .
[and] may be accomplished through the introduction
of [extrinsic] evidence in addition to examining the
witness correctly.’’ After reviewing the cited references,
the court sustained the state’s objection, reasoning that
even though cross-examination showing a motive, bias,
and interest of a particular witness is never collateral,
‘‘[i]n this particular case . . . any [w]orkers’ [c]ompen-
sation action or any action to recover payments of medi-
cal bills . . . [does not] go to show bias that this
witness has against this particular defendant.’’ As to
the video, the court sustained the state’s objection
because the recording was shown to the jury without
sound, and ‘‘[what is] relevant [was] actually what hap-
pened in the tape itself . . . .’’
We begin by setting forth the relevant law that guides
our analysis of the defendant’s claim that the court
abused its discretion in certain evidentiary rulings. ‘‘The
primary interest secured by confrontation is the right
to cross-examination . . . and an important function
of cross-examination is the exposure of a witness’ moti-
vation in testifying. . . . Cross-examination to elicit
facts tending to show motive, interest, bias and preju-
dice is a matter of right and may not be unduly
restricted.’’ (Internal quotation marks omitted.) State
v. Benedict, 313 Conn. 494, 510, 98 A.3d 42 (2014). ‘‘[A]s
a general rule cross-examination of the prosecuting wit-
ness should be allowed to show the pendency, existence
and status of civil action . . . arising out of the same
set of circumstances as those which served as the basis
for the criminal prosecution.’’ (Internal quotation marks
omitted.) State v. Reis, 33 Conn. App. 521, 524–25, 636
A.2d 872, cert. denied, 229 Conn. 901, 640 A.2d 118(1994). ‘‘However, [t]he [c]onfrontation [c]lause guaran-
tees only an opportunity for effective cross-examina-
tion, not cross-examination that is effective in whatever
way, and to whatever extent, the defense may wish.’’
(Internal quotation marks omitted.) State v. Badaracco,
156 Conn. App. 650, 674, 114 A.3d 507 (2015).
Our Supreme Court has ‘‘emphasized in numerous
decisions . . . that the confrontation clause does not
give the defendant the right to engage in unrestricted
cross-examination. . . . [For example, a] defendant
may elicit only relevant evidence through cross-exami-
nation. . . . The proffering party bears the burden of
establishing the relevance of the offered testimony.
Unless a proper foundation is established, the evidence
is irrelevant. . . . Relevance may be established in one
of three ways. First, the proffering party can make an
offer of proof. . . . Second, the record can itself be
adequate to establish the relevance of the proffered
testimony. . . . Third, the proffering party can estab-
lish a proper foundation for the testimony by stating a
good faith belief that there is an adequate factual basis
for his or her inquiry.’’ (Citations omitted; internal quo-
tation marks omitted.) State v. Benedict, supra, 313
Conn. 511. ‘‘The trial court has wide discretion to deter-
mine the relevancy of evidence and the scope of cross-
examination. Every reasonable presumption should be
made in favor of the correctness of the court’s ruling
in determining whether there has been an abuse of
discretion.’’ State v. Barnes, 232 Conn. 740, 746–47, 657
A.2d 611 (1995).
At trial, the defendant made no offer of proof, and,
on appeal, he relies on State v. Colton, 227 Conn. 231,
630 A.2d 577 (1993), to argue that the court abused its
discretion by ‘‘ignoring any possible financial interest
[Jalbert may have had] in the outcome.’’ (Emphasis
omitted.) Therefore, the defendant argues, ‘‘if the jury
had been permitted to know that Jalbert was seeking
financial compensation [through a workers’ compensa-
tion claim] for the injury, [it] would probably have
looked at his credibility differently . . . .’’
The defendant’s reliance on Colton fails for two rea-
sons. First, our Supreme Court in Colton found revers-
ible error when the trial court precluded extrinsic
evidence showing motive and bias of the state’s chief
witness after direct examination testimony provided
the foundation for the defendant to attempt to impeach
the witness through cross-examination. State v. Colton,
supra, 227 Conn. 238–39, 247. In this case, Jalbert, on
direct examination, did not testify to missing work, to
filing a workers’ compensation claim, or to needing
assistance paying any expenses in connection with this
incident. Therefore, the defendant on cross-examina-
tion did not have a foundation for the court to allow him
to inquire about Jalbert’s medical expenses or about a
speculative workers’ compensation claim. See State v.
Barnes, supra, 232 Conn. 749–50 (‘‘[i]t is entirely proper
for a court to deny a request to present certain testi-
mony that will further nothing more than a fishing expe-
dition . . . or result in a wild goose chase’’ [citation
omitted; internal quotation marks omitted]). Second, in
Colton, the defendant made several offers of proof to
establish that the proffered evidence, although extrin-
sic, impeached the witness’ testimony. State v. Colton,
supra, 242–45. The defendant in this case made no offer
of proof showing that Jalbert was attempting to benefit
financially. Upon the state’s objection to questions per-
taining to medical expenses and a workers’ compensa-
tion claim, the defendant made no offer of proof as to
what evidence he expected to elicit from Jalbert; rather,
in his effort to argue for the relevancy of the matter,
the defendant merely stated that he wanted to ‘‘show
whether they initially refused [a workers’ compensation
claim] because [Jalbert’s actions were] outside the
scope of his employment.’’ (Emphasis added.) The
defendant’s speculative inquiry into whether Jalbert
filed a workers’ compensation claim cannot be consid-
ered an offer of proof.10 See State v. Conrod, 198 Conn.
592, 597, 504 A.2d 494 (1986) (‘‘An offer of proof, prop-
erly presented, serves three purposes. First, it should
inform the court of the legal theory under which the
offered evidence is admissible. Second, it should inform
the trial judge of the specific nature of the offered
evidence so the court can judge its admissibility. Third,
it thereby creates a record adequate for appellate
review.’’ [Internal quotation marks omitted.]), quoting
Mad River Orchard Co. v. Krack Corp., 89 Wn. 2d 535,
537, 573 P.2d 796 (1978).
Moreover, the record is devoid of any concrete evi-
dence that would have allowed the court to conclude
that the proffered testimony concerning payment of
Jalbert’s medical expenses or a speculative workers’
compensation claim was relevant. The defendant relies
on State v. Chance, 236 Conn. 31, 671 A.2d 323 (1996),
for the proposition that ‘‘cross-examination to elicit
facts tending to show that a witness’ testimony was
motivated by bias may not be unduly restricted.’’ In
that case, the trial court properly allowed the state to
impeach a defense witness because the elicited direct
examination testimony provided the proper foundation
to cross-examine the witness on bias. Id., 57, 59. In
this case, however, Jalbert’s testimony during direct
examination did not provide a basis for the defendant
to cross-examine Jalbert on medical expenses or a spec-
ulative workers’ compensation claim. Jalbert did not
testify that he owed money for having received medical
care, did not mention that he missed work because of
the injury, and did not state that he was seeking to file
a workers’ compensation claim. Jalbert did testify to
having gone to the hospital via ambulance, but that
alone was insufficient to establish an independent basis
in the record demonstrating how the proffered testi-
mony would have shown witness bias or an interest in
the outcome of the case. See State v. Santiago, 224
Conn. 325, 332, 618 A.2d 32 (1992) (concluding that
there was specific evidence in record to adequately
establish relevance of proffered testimony concerning
relationship between state’s witness and police depart-
ment in attempt to prove witness bias).
For similar reasons, we conclude that the defendant
failed to provide a good faith belief that there was an
adequate factual predicate to cross-examine Jalbert on
whether someone had paid his medical bills or whether
he had filed a workers’ compensation claim. On appeal,
the defendant relies on State v. Arline, 223 Conn. 52,
612 A.2d 755 (1992), to argue that he should have been
‘‘permitted to elicit facts on cross-examination as to
whether Jalbert had a pending civil claim arising out of
the same incident giving rise to the criminal prosecution
. . . .’’ The defendant’s reliance on Arline is misplaced.
In that case, our Supreme Court held that ‘‘[o]nce testi-
mony regarding subsequent criminal charges against
the complainant and the existence of a civil claim had
been admitted into evidence . . . the defendant had a
right to argue in final argument any reasonable infer-
ences from the facts elicited.’’ (Emphasis added.) State
v. Arline, supra, 59. In this case, the issue concerns
limiting cross-examination and not a closing argument,
but more importantly, nothing regarding Jalbert’s medi-
cal expenses or a workers’ compensation claim had
been admitted into evidence. To be fair, the court in
Arline did state that it is ‘‘generally accepted that the
pendency of a civil claim arising out of the same set of
circumstances as those that served as the basis for
a criminal prosecution is probative of a prosecuting
witness’ motive to lie because the outcome of the prose-
cution may be beneficial to the prosecuting witness.’’
(Emphasis added.) Id., 61. Because there was no evi-
dence as to medical expenses or a workers’ compensa-
tion claim, and the defendant failed to articulate how
Jalbert could have benefited financially from the out-
come of the case, the court could not apply the general
rule as stated in Arline. Our review of the transcript
reveals that the defendant neither established a proper
foundation for the proffered testimony nor stated a
good faith belief that Jalbert had a financial interest in
the outcome of the case. See State v. Benedict, supra,
313 Conn. 511.
The defendant’s argument that the court improperly
prevented cross-examination of Jalbert on the audio
portion of the second video exhibit also fails. Although
the defendant ‘‘believed that [Jalbert recorded the video
to receive] . . . compensation for this incident,’’ he
offered no proof nor stated a good faith belief for this
assertion. See State v. Henry, 72 Conn. App. 640, 666–67,
805 A.2d 823 (concluding that court did not abuse dis-
cretion in disallowing proposed cross-examination
because defense counsel’s statement, ‘‘ ‘I know that he
was arrested on this witness’ statement,’ ’’ did not pro-
vide substantive information and lacked good faith
belief), cert. denied, 262 Conn. 917, 811 A.2d 1293(2002). A thorough review of the record does not reveal
how the proffered testimony would have been relevant
or supported the defendant’s stand-alone belief that
Jalbert recorded the video for his financial interest. In
addition, the defendant failed to articulate any logical
connection between Jalbert’s comments or laughter on
the video (not heard by the jury) and the fact that he
claims that such evidence tends to show that Jalbert
lacked credibility or was biased against the defendant.
The court reasonably could have concluded that the
jury’s attention to the vital issues of the case could have
been distracted by cross-examination seeking informa-
tion as to who, if anyone, paid Jalbert’s medical bill,
inquiring as to whether Jalbert filed a workers’ compen-
sation claim, and eliciting testimony into Jalbert’s
motives for recording the video and whether he found
it amusing. See State v. Isabelle, 107 Conn. App. 597,
607, 946 A.2d 266 (2008) (‘‘[i]t is a reasonable exercise
of judicial discretion to exclude . . . evidence the rele-
vancy of which appears to be so slight and inconsequen-
tial that to admit it would distract attention which
should be concentrated on vital issues of the case’’
[internal quotation marks omitted]).
The record in this case establishes that the court
did not abuse its discretion in sustaining the state’s
objection to the proposed cross-examination. More-
over, even if the court had erred as claimed by the
defendant, any error was harmless.11 Accordingly, the
defendant’s evidentiary claim must fail.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In the context of this case and for clarity, all subsequent ‘‘needle’’ refer-
ences are identified as ‘‘hypodermic syringe.’’ See Stedman’s Medical Diction-
ary (27th Ed. 2000) p. 1774 (defining ‘‘hypodermic syringe’’ as a ‘‘small
[syringe] with a barrel . . . perfectly matched plunger, and tip [that is] used
with a hollow needle for subcutaneous injections’’).
2
General Statutes § 53a-134 (a) provides in relevant part that ‘‘[a] person
is guilty of robbery in the first degree when, in the course of the commission
of the crime of robbery as defined in section 53a-133 or of immediate flight
therefrom, he . . . (3) uses or threatens the use of a dangerous instru-
ment . . . .’’
3
Because we conclude that the jury reasonably could have found that
the defendant used the hypodermic syringe and that it was a dangerous
instrument, we do not need to reach the defendant’s claim that the evidence
did not sufficiently establish that he threatened Jalbert with a dangerous
instrument.
4
Courts in other jurisdictions have concluded that a hypodermic syringe
can be a dangerous instrument. See State v. Ainis, 317 N.J. Super. 127,
131–34, 721 A.2d 329 (Law Div. 1998) (holding that hypodermic syringe
purportedly infected with AIDS virus was ‘‘deadly weapon’’ under N.J. Stat.
§ 2C:43-7.2); People v. Nelson, 215 App. Div. 2d 782, 783, 627 N.Y.S.2d 412(1995) (holding that hypodermic syringe purportedly infected with AIDS
virus constituted ‘‘dangerous instrument’’ within meaning of New York Penal
Law § 10.00 [13] even though prosecution did not prove needle portion of
hypodermic syringe was infected with virus).
5
The court followed § 6.4-1 of the Criminal Jury Instructions. See Connecti-
cut Criminal Jury Instructions (Rev. to May 10, 2012) § 6.4-1, available at
http://www.jud.ct.gov/JI/criminal/part6/6.4-1.htm (last visited November 3,
2015). We note that the jury instructions used by the court during the
defendant’s trial have not changed in relevant part from the current revision.
6
We note that the defendant does not claim that the court’s ruling violated
his constitutional right to cross-examine Jalbert.
7
For the first time on appeal, the defendant advances other theories
concerning Jalbert’s alleged bias and self-interest in the outcome of the case
that were not presented at trial. For example, the defendant contends that
Jalbert was biased against store customers in general and was ‘‘portraying
himself as a victim to get compensation from the state victim’s fund.’’ We
do not address these claims. See State v. Russell, 67 Conn. App. 822, 826–27,
789 A.2d 1088 (‘‘We have consistently refused to consider evidentiary rulings
not properly preserved. Where the issue raised for the first time on appeal
is a matter of state evidentiary law . . . this court will deny the defendant
appellate review.’’ [Internal quotation marks omitted.]), cert. denied, 260
Conn. 901, 793 A.2d 1090 (2002).
8
The line of questioning at trial was as follows:
‘‘[Defense Counsel]: Now, did Brownard Security pay your bills?
‘‘[Jalbert]: Pay my bills?
‘‘[Defense Counsel]: Yes.
‘‘[Jalbert]: As in my—
‘‘[Defense Counsel]: Well, you had an ambulance bill and you must have
incurred medical bills?
‘‘[The Prosecutor]: Objection, relevance.
‘‘The Court: How is this relevant?
‘‘[Defense Counsel]: Your Honor, I would claim it to show whether they
initially refused because it was outside the scope of his employment.
‘‘The Court: Sustain. . . .
‘‘[Defense Counsel]: Did you file a [workers’ compensation] claim?
‘‘[The Prosecutor]: Objection, relevance.
‘‘The Court: Sustain.
‘‘[Defense Counsel]: Exception on that ruling, Your Honor.
‘‘The Court: Well, you don’t have to, but you—okay. Thank you. Noted.
‘‘[Defense Counsel]: Has anybody paid for your hospital bill?
‘‘[The Prosecutor]: Objection, relevance.
‘‘The Court: Sustain.’’
9
Section 6.5 of the Connecticut Code of Evidence provides: ‘‘The credibil-
ity of a witness may be impeached by evidence showing bias for, prejudice
against, or interest in any person or matter that might cause the witness to
testify falsely.’’
10
We also reject the defendant’s claim made during oral argument before
this court that the trial court has a sua sponte responsibility to solicit an
offer of proof. ‘‘We never have held that a trial court has an independent
obligation to order, sua sponte, a hearing on an evidentiary matter, in the
absence of both a request for a hearing and an adequate offer of proof.’’
(Emphasis omitted; internal quotation marks omitted.) State v. LaVoie, 158
Conn. App. 256, 268, 118 A.3d 708 (quoting State v. Sullivan, 244 Conn.
640, 651 n.14, 712 A.2d 919 [1998]), cert. denied, 319 Conn. 929, A.3d
(2015).
11
‘‘We . . . note that the defendant [bears] the burden of establishing
harm from any evidentiary error. A defendant is not entitled to appellate
relief on the basis of an erroneous evidentiary ruling, however, without
demonstrating that the ruling was harmful to him in that it affected the
verdict. When an improper evidentiary ruling is not constitutional in nature,
the defendant bears the burden of demonstrating that the error was harmful.
. . . [A] nonconstitutional error is harmless when an appellate court has a
fair assurance that the error did not substantially affect the verdict. . . .
[O]ur determination that the defendant was harmed by the trial court’s
[evidentiary rulings] is guided by the various factors that we have articulated
as relevant [to] the inquiry of evidentiary harmlessness . . . such as the
importance of the [evidence] in the prosecution’s case, whether the [evi-
dence] was cumulative, the presence or absence of evidence corroborating
or contradicting the [evidence] on material points, the extent of cross-
examination otherwise permitted, and, of course, the overall strength of the
prosecution’s case. . . . Most importantly, we must examine the impact of
the evidence on the trier of fact and the result of the trial.’’ (Internal quotation
marks omitted.) State v. Badaracco, supra, 156 Conn. App. 674–75.
Even if we were to assume that the court improperly limited the defen-
dant’s cross-examination of Jalbert, we conclude that any error was harm-
less. Although Jalbert was the key witness, the state presented ample
corroborating testimonial, video, and physical evidence to support a finding
a guilt beyond a reasonable doubt. Therefore, the defendant failed to meet
his burden, and the record does not show that the court’s alleged nonconsti-
tutional evidentiary ruling substantially affected the verdict.