State v. Rivera , 169 Conn. App. 343 ( 2016 )

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STATE OF CONNECTICUT v. JOSUE RIVERA
(AC 36979)
Beach, Prescott and Bishop, Js.
Argued September 8—officially released November 15, 2016
(Appeal from Superior Court, judicial district of New
Haven, B. Fischer, J.)
Susan M. Hankins, assigned counsel, for the appel-
lant (defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom were Brian K. Sibley, Sr., senior assistant state’s
attorney, and, on the brief, Michael Dearington, state’s
attorney, and Adrienne Maciulewski, deputy assistant
state’s attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Josue Rivera, appeals
from the judgment of conviction, rendered after a jury
trial, of manslaughter in the first degree in violation of
General Statutes § 53a-55 (a) (1) and tampering with
physical evidence in violation of General Statutes § 53a-
155 (a). On appeal, the defendant claims that (1) the
prosecutor violated his constitutional and statutory
right to remain silent, and his constitutional due process
right to a fair trial as the result of improper comments
made during closing arguments, (2) the trial court
improperly permitted a police officer to testify as an
expert witness about body language and other indica-
tors of untruthfulness, (3) the trial court abused its
discretion by admitting into evidence postmortem pho-
tographs of the victim, and (4) the trial court violated
the defendant’s statutory right to present a defense by
excluding evidence relevant to the defendant’s theory of
self-defense.1 We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. Sometime in April or May, 2012, the victim,
Anthony Pesapane, began living with the defendant and
the defendant’s family in a first floor unit of a multifam-
ily house in New Haven, an arrangement designed to
help the defendant pay rent. The victim regularly
attended a local clinic to receive daily methadone treat-
ments, and would often drive the defendant and his
wife, Marta Matejkowska, to the clinic for their treat-
ments as well. The last time the victim ever attended
the clinic, however, was on June 4, 2012.
Later that day, while in the victim’s bedroom, the
defendant fatally stabbed the victim twenty-one times.
One wound was 3.5 inches deep in the victim’s chest and
punctured his heart. After the victim died, the defendant
cleaned the room with bleach, discarded the knife into
the Quinnipiac River, and rolled the victim’s body up
into a rug. The defendant then obtained a U-Haul truck
and placed the body and other bloodstained items in
the rear compartment of the truck.
On June 11, 2012, the police conducted a motor vehi-
cle stop of the U-Haul in Woodbridge, and found Matej-
kowska in the driver seat and the defendant in the
passenger seat. The police then opened the back of the
truck, where they found the victim’s body. After the
body was discovered, the defendant gave two state-
ments to the police, one written and one videotaped.2
On February 20, 2014, in a long form information,
the defendant was charged with murder in violation of
§ 53a-54a (a) and tampering with physical evidence in
violation of § 53a-155 (a). During his jury trial, the defen-
dant claimed he acted in self-defense, but he did not
testify. Ultimately, the defendant was acquitted of mur-
der but convicted of the lesser included offense of man-
slaughter in the first degree in violation of § 53a-55
(a) (1) and of tampering with physical evidence. The
defendant received a total effective sentence of twenty-
three years of incarceration. This appeal followed. Addi-
tional facts will be set forth as necessary.
I
PROSECUTORIAL IMPROPRIETY
The defendant first claims that the prosecutor
deprived him of his constitutional and statutory right
to remain silent as well as his due process right to a fair
trial by committing various acts of impropriety during
closing argument to the jury. In particular, the defen-
dant argues that the prosecutor improperly (1) com-
mented on the defendant’s failure to testify, (2) shifted
and misstated the burden of proof with respect to self-
defense, and (3) argued facts not in evidence. The state
argues that the prosecutor’s comments were not
improper. Alternatively, the state contends that even if
one or more of the prosecutor’s comments were
improper, none of them deprived the defendant of a
fair trial. We disagree with the defendant that the prose-
cutor’s comments were improper.
Before addressing the merits of the defendant’s claim,
we set forth the applicable standard of review and the
law governing prosecutorial impropriety. Although the
defendant did not preserve his claim of prosecutorial
impropriety by objecting to the alleged improprieties
at trial, ‘‘[o]nce prosecutorial impropriety has been
alleged . . . it is unnecessary for a defendant to seek
to prevail under State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989), and it is unnecessary for an appel-
late court to review the defendant’s claim under Gold-
ing.’’ (Footnote omitted.) State v. Fauci, 282 Conn.
23, 33, 917 A.2d 978 (2007). ‘‘In analyzing claims of
prosecutorial impropriety, we engage in a two step ana-
lytical process. . . . The two steps are separate and
distinct. . . . We first examine whether prosecutorial
impropriety occurred. . . . Second, if an impropriety
exists, we then examine whether it deprived the defen-
dant of his due process right to a fair trial. . . . In other
words, an impropriety is an impropriety, regardless of
its ultimate effect on the fairness of the trial.’’3 (Citations
omitted.) Id., 32.
‘‘[P]rosecutorial [impropriety] of a constitutional
magnitude can occur in the course of closing argu-
ments. . . . When making closing arguments to the
jury, [however, counsel] must be allowed a generous
latitude in argument, as the limits of legitimate argu-
ment and fair comment cannot be determined precisely
by rule and line, and something must be allowed for
the zeal of counsel in the heat of argument. . . . Thus,
as the state’s advocate, a prosecutor may argue the
state’s case forcefully, [provided the argument is] fair
and based upon the facts in evidence and the reasonable
inferences to be drawn therefrom. . . . Moreover, [i]t
does not follow . . . that every use of rhetorical lan-
guage or device [by the prosecutor] is improper.’’ (Inter-
nal quotation marks omitted.) State v. Ciullo, 314 Conn.
28, 37, 100 A.3d 779 (2014).
A
Alleged Comment on Defendant’s Failure to Testify
We turn first to the defendant’s argument that the
prosecutor improperly commented during closing argu-
ment on the defendant’s failure to testify, thereby vio-
lating the defendant’s fifth amendment rights4 and
General Statutes § 54-84 (a).5 In response, the state
argues that the prosecutor’s remarks referred to the
two statements that the defendant made to police and
that were admitted at trial, not to his failure to give in-
court witness testimony. We conclude that the com-
ments in question were not of such a character that the
jury naturally and necessarily would construe them to
be comments on the defendant’s election not to testify.
During closing argument, the prosecutor directed the
jury’s attention to what he argued were the material
pieces of evidence that the jury should consider when
determining the defendant’s guilt. The prosecutor
stated: ‘‘What are some things you should look at? The
two statements are probably the two most important
things that give light to what happened here. In this
courtroom there is one person [who] can tell you
exactly what happened, to be truthful, and sit and ask
questions, and that’s [the defendant]. The only other
person that we know is [the victim] and, unfortunately,
he’s not here, or we wouldn’t be here. So, who has
something to lose when they start telling the story about
why they got caught with a body in the back of a truck?
You have to come up with some explanation when the
police are banging on that door, saying, tell me what’s
going on back here.’’
Shortly thereafter, the prosecutor again returned to
the subject of the defendant’s statements to the police,
imploring the jury to ‘‘[t]ake a look at the statements;
those are the two closest things that we’re going to get
to in terms of what happened. The physical evidence
speaks for itself. Does it line up with what we know?
And what do we know? We know the story one person
told. And the judge talks to you about credibility in
terms of what you use to determine. Does somebody
have a stake in what they’re telling the police? Does
somebody have a stake when they sit in that chair and
testify for you? Who has the most to lose here? So,
what does he say? Does his story in the statements
make sense? When you’re trying to recall a story about
what actually happened, most of the time, you’re going
to get the facts straight because that’s the truth you’re
testifying—you’re recalling an event based on memory.
But when you start trying to deceive somebody, those
little details start falling away from what actually hap-
pened.’’ The defendant did not object to these
comments.
‘‘It is well settled that comment by the prosecuting
attorney . . . on the defendant’s failure to testify is
prohibited by the fifth amendment to the United States
constitution. . . . Our legislature has given statutory
recognition to this right by virtue of its enactment of
. . . § 54-84. In determining whether a prosecutor’s
comments have encroached upon a defendant’s right to
remain silent, we ask: Was the language used manifestly
intended to be, or was it of such character that the jury
would naturally and necessarily take it to be a comment
on the failure of the accused to testify? . . . Further,
in applying this test, we must look to the context in
which the statement was made in order to determine
the manifest intention which prompted it and its natural
and necessary impact upon the jury. . . . Finally, [w]e
also recognize that the limits of legitimate argument
and fair comment cannot be determined precisely by
rule and line, and something must be allowed for the
zeal of counsel in the heat of argument.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Parrott,
262 Conn. 276, 292–93, 811 A.2d 705 (2003).
‘‘When reviewing the propriety of a prosecutor’s
statements, we do not scrutinize each individual com-
ment in a vacuum but, rather, review the comments
complained of in the context of the entire trial. . . .
[W]hen a prosecutor’s potentially improper remarks are
ambiguous, a court should not lightly infer that a prose-
cutor intends an ambiguous remark to have its most
damaging meaning or that a jury, sitting through a
lengthy exhortation, will draw that meaning from the
plethora of less damaging interpretations.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Felix R., 319 Conn. 1, 9, 124 A.3d 871 (2015).
Here, the defendant argues that the prosecutor’s
remarks were explicitly directed toward the defendant’s
failure to testify because the plain language, ‘‘that’s
[the defendant],’’ ‘‘[i]n this courtroom,’’ and ‘‘sit in that
chair,’’ leaves no room for any other possible interpreta-
tion. He asserts that the improper remarks attempted
to inextricably link the defendant’s credibility and via-
bility of his self-defense claim to his failure to take
the witness stand, as most clearly illustrated by his
comment that the defendant was the ‘‘one person’’ who
‘‘can tell [the jury] exactly what happened’’ because
‘‘[t]he only other person’’ was the victim. The state
argues that, if the comments are viewed in their full
context, the prosecutor was stating to the jury that it
needed to assess carefully the credibility of the two
statements that the defendant provided to police
because the only two people who had firsthand knowl-
edge of what occurred on the day the victim was killed
were the defendant and the victim.
In this case, we conclude that although, in isolation,
the statements relied on by the defendant could be
construed as referring to the defendant’s decision not
to testify, if the statements are put into the context of
the entire trial and closing argument, the prosecutor’s
remarks refer to the evidence of the defendant’s two
statements to the police. Two of the challenged state-
ments made by the prosecutor—‘‘[i]n this courtroom
there is one person [who] can tell you exactly what
happened, to be truthful, and sit and ask questions, and
that’s [the defendant], and ‘‘[t]he only other person that
we know is [the victim] and, unfortunately, he’s not
here, or we wouldn’t be here’’—are immediately pre-
ceded and followed by language referring to the defen-
dant’s out-of-court statements, i.e., his statements to
the police. Moreover, ‘‘[i]n this courtroom’’ arguably
describes the current location of the ‘‘one person,’’ that
is, the defendant, who is able to ‘‘tell [the jury],’’ that
is, via his statements to the police, which were admitted
at trial, what had happened on the day of the victim’s
death. To parse the sentence even further by examining
what the prosecutor intended when he said, ‘‘can tell
you exactly what happened,’’ instead of, more accu-
rately, ‘‘did tell you exactly what happened,’’ would be
to scrutinize each of the prosecutor’s individual words
in a vacuum, precisely what this court should not do.
(Emphasis added.) See State v. Felix R., supra, 319
Conn. 9. We necessarily allow the prosecutor generous
latitude in closing argument, lest every inaccurate verb
tense be deemed impropriety.
The challenged comment that is most equivocal in its
meaning is the prosecutor’s question, ‘‘Does somebody
have a stake when they sit in that chair and testify for
you?’’ It is unclear whether the prosecutor was referring
to the stake that any witness has when he or she sits
in the witness chair and testifies at trial, the stake that
the defendant specifically has when he sits in the wit-
ness chair and testifies at trial, or the stake that the
defendant specifically has when he sits in a chair at
the police station and gives his version of events, as
presented to the jurors at trial. We conclude that this
segment of the closing argument was, at worst, suffi-
ciently ambiguous that it clearly was not ‘‘manifestly
intended to be, [nor] was it of such character that the
jury would naturally and necessarily take it to be a
comment on the failure of the accused to testify . . . .’’
(Internal quotation marks omitted.) State v. Parrott,
supra, 262 Conn. 293. Because ‘‘a court should not
lightly infer that a prosecutor intends an ambiguous
remark to have its most damaging meaning’’; State v.
Felix R., supra, 319 Conn. 9; we decline to accept the
defendant’s interpretation of the prosecutor’s com-
ments. Accordingly, we conclude that the challenged
statements do not constitute improper comments by
the prosecutor on the defendant’s failure to testify.6
B
Alleged Misstatement of Burden of Proof
The defendant next contends that the prosecutor mis-
led the jury by misstating the burden of proof regarding
self-defense. More specifically, the defendant argues
that the prosecutor improperly used the language ‘‘prob-
able’’ and ‘‘possible’’ instead of ‘‘beyond a reasonable
doubt.’’ The state responds by arguing that the prosecu-
tor’s language was not improper because it was made
in reference to a subsidiary finding by the jury, not a
finding on one or more elements of self-defense. We
agree with the state.
During the state’s direct examination of James R.
Gill, the state’s chief medical examiner, the prosecutor
asked if the victim’s wounds were consistent with the
victim having been lying down at the time he was
stabbed, to which Gill replied: ‘‘Certainly, if he’s [lying]
down prone . . . on his back, it would be a matter of
having that surface of the body where the stab wound
was to be able to be reachable or exposed to the knife.’’
Subsequently, during cross-examination, the defen-
dant’s counsel engaged Gill in the following exchange:
‘‘Q. Dr. Gill, from your examination of the body of
[the victim], who started the fight?
‘‘A. I have no idea if there even was a fight. . . .
‘‘Q. And you don’t know where [the victim] was stand-
ing in relation to the person who stabbed him, correct?
‘‘A. Yeah, I don’t know if he was standing, sitting,
lying down; that’s correct.
‘‘Q. Actually, it could be—as long as the—the arm
could reach to the spot where the stab wound went in,
it could be in any position, correct?
‘‘A. It could be from behind, reaching around, yeah,
a variety of positions, yeah.’’
After this line of questioning, the defendant and his
counsel performed demonstrations in the courtroom in
which they modeled several positions that the defen-
dant and the victim may have been in when the alterca-
tion began and the victim sustained various injuries.
The defendant’s counsel then followed up the presenta-
tions by asking Gill if each demonstration was consis-
tent with the wounds of the victim as contained in the
autopsy findings.7 Subsequently, during closing argu-
ment, the prosecutor referenced these enactments and
stated: ‘‘You saw the defendant and his attorney provide
demonstrations here in the courtroom; seemed pretty
creative. Is it possible? Yes, it’s possible. But what is
more probable in light of the injuries?’’ (Emphasis
added.)
We turn then to the authorities relevant to this claim.
The defense of self-defense is codified in General Stat-
utes § 53a-19, which provides in relevant part: ‘‘(a)
Except as provided in subsections (b) and (c) of this
section, a person is justified in using reasonable physi-
cal force upon another person to defend himself or a
third person from what he reasonably believes to be
the use or imminent use of physical force, and he may
use such degree of force which he reasonably believes
to be necessary for such purpose; except that deadly
physical force may not be used unless the actor reason-
ably believes that such other person is (1) using or
about to use deadly physical force, or (2) inflicting or
about to inflict great bodily harm.’’
‘‘Under our Penal Code, self-defense . . . is a
defense . . . rather than an affirmative defense. . . .
Consequently, a defendant has no burden of persuasion
for a claim of self-defense; he has only a burden of
production. That is, he merely is required to introduce
sufficient evidence to warrant presenting his claim of
self-defense to the jury. . . . Once the defendant has
done so, it becomes the state’s burden to disprove the
defense beyond a reasonable doubt. . . . The state
may defeat a defendant’s claim of self-defense involving
deadly physical force by proving, beyond a reasonable
doubt, any of the following: (1) the defendant did not
reasonably believe that the victim was using or about
to use deadly physical force or inflicting or about to
inflict great bodily harm; or (2) the defendant knew
that he could avoid the necessity of using deadly physi-
cal force with complete safety by retreating . . . .’’
(Citations omitted; internal quotation marks omitted.)
State v. Singleton, 292 Conn. 734, 747, 974 A.2d 679
(2009).
Although, in a criminal prosecution, a material fact
must be proven beyond a reasonable doubt, ‘‘[t]his does
not require that each subordinate conclusion estab-
lished by or inferred from the evidence, or even from
other inferences, be proved beyond a reasonable doubt
. . . because this court has held that a jury’s factual
inferences that support a guilty verdict need only be
reasonable. . . . [I]t is a function of the jury to draw
whatever inferences from the evidence or facts estab-
lished by the evidence it deems to be reasonable and
logical. . . . Because [t]he only kind of inference rec-
ognized by the law is a reasonable one . . . any such
inference cannot be based on possibilities, surmise or
conjecture. . . . It is axiomatic, therefore, that [a]ny
[inference] drawn must be rational and founded upon
the evidence.’’ (Citation omitted; internal quotation
marks omitted.) State v. Niemeyer, 258 Conn. 510, 518,
782 A.2d 658 (2001).
Here, the defendant argues that the prosecutor’s use
of the language ‘‘probable’’ and ‘‘possible’’ misled the
jury by suggesting a probability standard for self-
defense rather than the state’s burden of disproof
beyond a reasonable doubt. We do not agree.
The prosecutor’s remark—‘‘Yes, it’s possible. But
what is more probable’’—explicitly refers to the court-
room demonstrations that the defendant and his coun-
sel engaged in during the trial. Those demonstrations
attempted to show the different positions that the victim
may have been in in relation to the defendant at the
time the altercation began and escalated, in an effort
to cast doubt on the state’s theory that the victim was
lying down when the dispute started. The only two
elements of self-defense that the state must disprove
‘‘beyond a reasonable doubt’’ are (1) that the defendant
reasonably believed that the victim was using or about
to use deadly physical force or inflicting or about to
inflict great bodily harm, and (2) that the defendant did
not know that he could avoid the necessity of using
deadly physical force with complete safety by
retreating. Therefore, although evidence offered to
prove how the victim was positioned when the dispute
began is certainly useful information for the jury to
consider, it is not an element of self-defense pursuant
to § 53a-19. Accordingly, as a subordinate conclusion
of the jury, the conclusion need only be reasonable,
but cannot be based on ‘‘ ‘possibilities, surmise or con-
jecture.’ ’’ State v. Niemeyer, supra, 258 Conn. 518.
Because the prosecutor characterized the defen-
dant’s demonstrations to the jury as providing only a
possible version of the events in question, he referenced
the proper ‘‘reasonable’’ versus merely ‘‘possible’’ stan-
dard assigned to subsidiary findings. We conclude,
therefore, that the prosecutor did not commit impropri-
ety by using the ‘‘possible’’ versus ‘‘probable’’ language
during closing argument.
Relatedly, the defendant also claims in this section
of his brief that the prosecutor improperly communi-
cated to the jury during closing argument the state’s
theory that the defendant initially stabbed the victim
while the victim was sleeping. More specifically, the
defendant argues that this theory was unsupported by
the evidence. The state responds that this theory consti-
tuted a reasonable inference drawn from both the testi-
mony of Gill and the physical evidence of the
victim’s injuries.
‘‘[T]he line between permissible inference and imper-
missible speculation is not always easy to discern. When
we infer, we derive a conclusion from proven facts
because such considerations as experience, or history,
or science have demonstrated that there is a likely cor-
relation between those facts and the conclusion. . . .
But if the correlation between the facts and the conclu-
sion is slight, or if a different conclusion is more closely
correlated with the facts than the chosen conclusion,
the inference is less reasonable. At some point, the
link between the facts and the conclusion becomes so
tenuous that we call it speculation. When that point is
reached is, frankly, a matter of judgment.’’ (Internal
quotation marks omitted.) State v. Niemeyer, supra,
258 Conn. 518.
As previously discussed, Gill testified during direct
examination that the victim’s wounds were consistent
with having been in a prone position at the time he was
stabbed. On redirect, the state again followed up on
this theory, asking Gill ‘‘if a person was prone, face
down, and a right-handed person approached the per-
son that’s prone up toward the head area, and the per-
son would be lower, wouldn’t that also be consistent
with the type of wounds that were received on the—
the left side of the neck and shoulder,’’ and whether
‘‘[i]t would be easier for a shorter person to reach a
taller person at that—at that level,’’ to both of which
Gill answered in the affirmative. Given this testimony
and the one-sided nature of the victim’s injuries, and
especially in light of the generous latitude we afford
prosecutors during closing arguments, it was reason-
able for the prosecutor to ask the jury to infer that
the victim was first attacked when he was asleep. We
conclude that this did not constitute impropriety.
C
Alleged Interjection of Facts not in Evidence
Finally, the defendant contends that the prosecutor
committed an impropriety during closing argument
when he interjected facts that were not in evidence.
Specifically, the defendant argues that the prosecutor
improperly brought in ‘‘facts’’ that were based on
assumptions about professional fighters in general,
drug addicts in general, and the defendant and the vic-
tim in particular. The state responds that these com-
ments constituted an appropriate use of a rhetorical
device designed to appeal to the jury’s common sense.
We agree with the state.
In his rebuttal argument, the prosecutor, in an effort
to cast doubt on the defendant’s self-defense claim and,
more specifically, on the statements that the defendant
made to the police regarding the nature and length of
the struggle he had with the victim, stated the following:
‘‘Professional fighters don’t even fight all out for an
hour, and they’re trained. It’s not like either one of these
people was trained in anything; drug addicts, they don’t
eat right, they’re using drugs. Are they going to be physi-
cally capable of fighting all out for an hour? That’s—
that’s for you to decide. But it’s really, kind of, making
a huge stretch.’’
Our law is well settled that ‘‘[the prosecutor’s] con-
duct and language in the trial of cases in which human
life or liberty [is] at stake should be forceful, but fair,
because he [or she] represents the public interest,
which demands no victim and asks no conviction
through the aid of passion, prejudice or resentment.
. . . That is not to say, however, that every use of
rhetorical language or device [by the prosecutor] is
improper. . . . The occasional use of rhetorical
devices is simply fair argument. . . . The state’s attor-
ney should not be put in [a] rhetorical straitjacket
. . . .’’ (Citations omitted; internal quotation marks
omitted.) State v. Wilson, 308 Conn. 412, 435, 64 A.3d
91 (2013). Moreover, ‘‘jurors, in deciding cases, are not
expected to lay aside matters of common knowledge
or their own observations and experiences, but rather,
to apply them to the facts as presented to arrive at an
intelligent and correct conclusion. . . . Therefore, it is
entirely proper for counsel to appeal to a jury’s common
sense in closing remarks.’’ (Internal quotation marks
omitted.) State v. Maner, 147 Conn. App. 761, 790–91,
83 A.3d 1182, cert. denied, 311 Conn. 935, 88 A.3d
550 (2014).
In the present case, the defendant argues that the
prosecutor’s remark was improper because no evidence
was presented at trial about the abilities of professional
fighters or the physical abilities, stamina, and nutrition
of drug addicts.8 We are not convinced that there needed
to be. The use of juxtaposition, wherein one places a
person, concept, or idea parallel to another to highlight
the contrast between the two and compare them, as a
rhetorical device to make a point in closing argument,
is not prohibited. In this case, the prosecutor used the
device in appealing to the jury’s common sense that,
because even professional fighters lack the stamina to
fight continuously for an hour, the defendant’s version
of events simply was incredible. We agree with the state
that the prosecutor ‘‘naturally presented [his argument]
to the jury with the warmth and color of advocacy.’’
State v. Chapman, 103 Conn. 453, 476, 130 A. 899 (1925).
To hold otherwise would be to put the prosecutor in the
prohibited ‘‘rhetorical straitjacket,’’ which we decline to
do.
In sum, we conclude that none of the challenged
comments by the prosecutor was improper. Accord-
ingly, the defendant was not deprived of his right to a
fair trial.
II
ADMISSION OF EXPERT TESTIMONY
BY DETECTIVE WUCHEK
We next turn to the defendant’s claim that ‘‘[t]he trial
court erred in permitting [Michael Wuchek, a detective
with the New Haven Police Department] to testify as
an expert witness to body language and other indicators
of untruthfulness during police interviews, thereby
invading the credibility determinations and fact-finding
province of the jury.’’ In response, the state argues that
(1) the defendant’s claim is unpreserved, (2) the trial
court did not abuse its discretion in permitting this
testimony because Wuchek did not opine on the defen-
dant’s credibility, and (3) the defendant’s failure to
object to other similar evidence rendered Wuchek’s
testimony cumulative, thus rendering any error in per-
mitting his testimony harmless. We conclude that to the
extent the defendant claims on appeal that Wuchek’s
testimony is not a proper topic for expert testimony
because it is inherently unreliable, this claim was not
properly preserved at trial, and to the extent that the
defendant claims that the testimony invaded the jury’s
exclusive function as trier of fact to assess the defen-
dant’s credibility, the trial court’s ruling was not an
abuse of discretion.
During its case-in-chief, the state presented the testi-
mony of Joseph Pettola, a detective with the New Haven
Police Department. Pettola, who participated in the vid-
eotaped interview of the defendant along with Wuchek,
described the defendant’s demeanor during that meet-
ing as ‘‘kind of on the nervous side.’’ He further testified,
without objection, that the defendant ‘‘wouldn’t look
Detective Wuchek in our eye—in the eye, in our eyes,
which is an indicator of, you know, if you’re telling
the truth or not, and doing many, many—hundreds of
interviews in my career.’’ The prosecutor then engaged
in the following exchange with Pettola:
‘‘Q. All right. Were you also sort of paying attention
to things like body language and things of that nature
as [the defendant’s] answering questions?
‘‘A. Of course.
‘‘Q. All right. What are you looking for when you’re
doing interviews and you’re in that role, you’re just
observing somebody? What are some of the cues that
you’re looking for, sir?
‘‘A. About—like I said before about looking you in
the eye and not keeping your head down and looking
up forward. . . .
‘‘Q. All right. So, now, you—what—you said—you
were looking for what, sir?
‘‘A. Like, if the person you’re interviewing [is] actually
looking, you know, one-on-one, looking—look you right
in the eye and wouldn’t keep their head down or being
fidgety, you know, all the time saying something and
moving—moving certain body parts, as being very ner-
vous or irritable when they’re—when they’re giving
their version of what happened.’’
The state later presented the testimony of Wuchek,
during which the defendant’s videotaped statement was
admitted into evidence. After the videotape concluded,
the state asked Wuchek if he ‘‘[pays] any particular
attention to such things like body language’’ during his
police interviews, to which Wuchek answered in the
affirmative. When the state asked him to elaborate on
why he does that, the defendant objected on the ground
of relevance, without further elucidation, which the
trial court overruled. Wuchek then replied that ‘‘[b]ody
language helps [him] gauge the truthfulness of people’s
answers,’’ to which the defendant again objected, stat-
ing: ‘‘The jury has seen a videotape of the entire inter-
view. The witness’ interpretation of my client’s
credibility is—is taking on the jury’s job.’’ The trial court
disagreed and again overruled the objection. Wuchek
continued: ‘‘Through interview and interrogation
courses, we’ve learned that—I learned that people who
are interviewed, sometimes, when they are untruthful
they’ll cover their mouth, they’ll—they’ll hunch down.
Other indicators just help us get a feel for that person.’’
The prosecutor went on to ask for other indicators of
untruthfulness, to which Wuchek cited various behav-
iors such as repeating interview questions, taking long
pauses, and looking down or away from the interviewer.
In a final exchange relevant to this claim, the prosecu-
tor asked Wuchek if, during the course of his interview
with the defendant, he had at his disposal bank records,
phone records, evidence from the U-Haul scene, and/
or evidence from the rental unit scene. Wuchek stated,
‘‘No, I don’t think so.’’ The following colloquy then took
place between the prosecutor, Wuchek, the defendant’s
counsel, and the trial court:
‘‘[The Prosecutor]: All right. So, how does . . . a lack
of information such as being able to do those things
affect your interview in this case?
‘‘[The Witness]: Well, I want to have as many facts
as I—as I can to the case, both background and facts of
the physical evidence so that I can gauge that person—
gauge that person’s truthfulness. A lot of times that’s
why I’ll repeat the—
‘‘[The Defendant’s Counsel]: Objection, Your Honor.
He’s testifying as to evaluating a person’s truthfulness.
This is the sole province of the jury.
‘‘The Court: No, it’s an interview technique that he
is discussing that he’s been trained for, so I’m going to
allow it.
‘‘[The Defendant’s Counsel]: Well, I—I didn’t hear a
foundation of how—what training and experience—
well, the training that he’s received in determining peo-
ple’s truthfulness. I didn’t hear anything about his
courses at the police academy or anything that he did
in order to prepare himself to determine somebody’s
truthfulness.
‘‘The Court: All right. Do you want to get into more
of a foundation on that?
‘‘[The Prosecutor]: Judge, I believe the officer’s testi-
fied he’s conducted over thousands of interviews, and
he just testified that through courses in interrogations
and interviews, he’s had training.
‘‘The Court: All right. I will allow it. Go ahead.’’
As a threshold matter, we first address the state’s
initial argument that the defendant’s evidentiary claim
was not preserved at trial and, thus, is unreviewable
by this court on appeal. ‘‘[T]he standard for the preser-
vation of a claim alleging an improper evidentiary ruling
at trial is well settled. This court is not bound to consider
claims of law not made at the trial. . . . In order to
preserve an evidentiary ruling for review, trial counsel
must object properly. . . . In objecting to evidence,
counsel must properly articulate the basis of the objec-
tion so as to apprise the trial court of the precise nature
of the objection and its real purpose, in order to form
an adequate basis for a reviewable ruling. . . . Once
counsel states the authority and ground of [the] objec-
tion, any appeal will be limited to the ground asserted.’’
(Internal quotation marks omitted.) State v. Jorge P.,
308 Conn. 740, 753, 66 A.3d 869 (2013).
Although the defendant’s brief on appeal is somewhat
unclear regarding the precise ground upon which he
challenges Wuchek’s testimony, a careful reading of the
defendant’s appellate brief, as well as remarks made at
oral argument, lead us to conclude that he primarily
argues that physical indicators of a person’s untruthful-
ness is not an appropriate topic for expert testimony
because it is inherently unreliable.9 As support for this
argument, the defendant asserts that ‘‘[n]umerous stud-
ies refute the police human lie detector theory,’’ and
cites to a lengthy footnote in the majority opinion of
Lapointe v. Commissioner of Correction, 316 Conn.
225, 332 n.83, 112 A.3d 1 (2015), in which our Supreme
Court noted that ‘‘at the petitioner’s first habeas trial,
Richard Leo, a leading authority on police interrogation
methods and false confessions, testified that the com-
monly held belief among police officers that deception
can be determined merely by observing someone’s body
language is totally pseudoscientific . . . . [I]f some-
body is slumped over, if somebody is passive, if some-
body utters quiet denials, if somebody is in a runner’s
position, somebody is sweating, evasive or nervous,
that is not necessarily indicative of guilt . . . .’’ (Inter-
nal quotation marks omitted.) Our Supreme Court in
Lapointe continued: ‘‘We acknowledge Leo’s testimony
. . . to point out that any testimony by [the police inter-
rogation witness] at a new trial concerning the petition-
er’s purportedly incriminating body language may well
be subject to substantial impeachment, thereby min-
imizing or even eliminating whatever adverse effect that
testimony might have had on the petitioner at his crimi-
nal trial.’’10 Id., 333 n.83.
With regard to expert testimony in general, ‘‘the trial
court has wide discretion in ruling on the admissibility
of expert testimony and, unless that discretion has been
abused or the ruling involves a clear misconception of
the law, the trial court’s decision will not be disturbed.
. . . Expert testimony should be admitted when: (1)
the witness has a special skill or knowledge directly
applicable to a matter in issue, (2) that skill or knowl-
edge is not common to the average person, and (3)
the testimony would be helpful to the court or jury
in considering the issues.’’ (Internal quotation marks
omitted.) Prentice v. Dalco Electric, Inc., 280 Conn.
336, 342, 907 A.2d 1204 (2006), cert. denied, 549 U.S.
1266, 127 S. Ct. 1494, 167 L. Ed. 2d 230 (2007). ‘‘In
other words, [i]n order to render an expert opinion the
witness must be qualified to do so and there must be
a factual basis for the opinion. . . . It is well settled
that [t]he true test of the admissibility of [expert] testi-
mony is not whether the subject matter is common or
uncommon, or whether many persons or few have some
knowledge of the matter; but it is whether the witnesses
offered as experts have any peculiar knowledge or expe-
rience, not common to the world, which renders their
opinions founded on such knowledge or experience any
aid to the court or the jury in determining the questions
at issue.’’ (Internal quotation marks omitted.) State v.
Guilbert, 306 Conn. 218, 230, 49 A.3d 705 (2012).
We agree with the defendant that a significant ques-
tion exists regarding whether the type of testimony in
the present case is inherently reliable and, thus, ‘‘helpful
to the . . . jury in considering the issues.’’ (Internal
quotation marks omitted.) Prentice v. Dalco Electric,
Inc., supra, 280 Conn. 342. As previously mentioned,
our Supreme Court recently suggested in a lengthy foot-
note in Lapointe that, at a minimum, this method of
behavior analysis by police would be subject to substan-
tial impeachment, without necessarily opining on its
admissibility. We need not decide this issue in the pre-
sent case, however, because the three objections made
by the defendant in response to Wuchek’s testimony
did not apprise the trial court that the basis of the
objection was a challenge to the reliability of this type
of testimony. Instead, the objections included a generic
reference to its relevance,11 a claim that the testimony
invaded the exclusive province of the jury to assess the
defendant’s credibility, and a claim that there was a lack
of foundation for the expert opinion.12 The objections
raised to the trial court contained no reference to any
studies that would suggest that this type of testimony
is inherently unreliable. Moreover, the defendant never
asked for a Porter13 hearing on the reliability of the
expert testimony, or argued that although the expert
testimony is nonscientific in nature and thus not subject
to Porter review, the court should still exclude it as
inherently unreliable as an exercise of its gatekeeping
function. See Kumho Tire Co., Ltd. v. Carmichael, 526
U.S. 137, 141, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999)
(‘‘[w]e conclude that [the] general holding [of Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S. Ct. 2786, 125 L. Ed. 2d 469 (1993)]—setting forth the
trial judge’s general ‘gatekeeping’ obligation—applies
not only to testimony based on ‘scientific’ knowledge,
but also to testimony based on ‘technical’ and ‘other
specialized’ knowledge’’). Finally, in light of the fact
that the defendant failed to object in any way to the
similar testimony given by Pettola, we are further con-
vinced that the defendant did not make the same objec-
tion at trial that he now advances on appeal. As ‘‘the
sine qua non of preservation is fair notice to the trial
court’’; (internal quotation marks omitted) State v.
Dixon, 318 Conn. 495, 500, 122 A.3d 542 (2015); we
conclude that this claim was not preserved and, thus,
is unreviewable by this court on appeal.
To the extent that the defendant challenges on appeal
Wuchek’s testimony on the ground that it invaded the
jury’s exclusive function as trier of fact to assess the
defendant’s credibility, we conclude that this claim was
properly preserved at trial.14 At the same time, however,
because ‘‘[t]he trial court has wide discretion in its
rulings on evidence and its rulings will be reversed only
if the court has abused its discretion or an injustice
appears to have been done’’; (internal quotation marks
omitted) State v. Polynice, 164 Conn. App. 390, 405, 133
A.3d 952, cert. denied, 321 Conn. 914, 136 A.3d 1274
(2016); we conclude that the trial court did not abuse
its discretion in allowing Wuchek’s testimony on this
ground.
‘‘[I]t is a jury’s duty to determine the credibility of
witnesses and to do so by observing firsthand their
conduct, demeanor and attitude.’’ State v. Johnson, 288
Conn. 236, 265, 951 A.2d 1257 (2008). ‘‘Expert witnesses
cannot be permitted to invade the province of the jury
by testifying as to the credibility of a particular witness
or the truthfulness of a particular witness’ claims.’’ State
v. Iban C., 275 Conn. 624, 634, 881 A.2d 1005 (2005).
Moreover, our Supreme Court held in State v. Favoccia,
306 Conn. 770, 51 A.3d 1002 (2012), that an expert
should not be permitted to testify as to whether a partic-
ular complainant exhibited specific behaviors that the
expert also identified as those characteristic of sexual
assault victims because (1) such testimony amounts to
an implicit opinion on whether the complainant’s claims
are truthful, and (2) the subject of such testimony is
not beyond the knowledge of an average juror.
We previously have emphasized, however, that ‘‘a
critical distinction must be recognized between admis-
sible expert testimony limited to general or typical
behavior patterns and inadmissible testimony directly
related to a particular witness’ credibility.’’ State v. Len-
iart, 166 Conn. App. 142, 223, 140 A.3d 1026, cert.
granted on other grounds, 323 Conn. 918, A.3d
(2016), citing State v. Spigarolo, 210 Conn. 359, 378–79,
556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322,
107 L. Ed. 2d 312 (1989). Thus, in Leniart, we held that
the trial court abused its discretion by excluding expert
testimony that was ‘‘narrowly tailored to provide only
general information related to [jailhouse] informant tes-
timony and its unreliability’’; State v. Leniart, supra,
224; because the expert ‘‘offered no testimony regarding
any of the particular informants in this case, either with
respect to their status as informants, how they had
obtained their information, or their potential reliability
as witnesses.’’ Id., 223.
Similarly, in the present case, the trial court record
reveals that Wuchek was never asked for, nor did he
offer, his opinion as to either the credibility of this
particular defendant, the truthfulness of this particular
defendant’s statements, or whether the defendant
exhibited any behaviors characteristic of untruthful
behavior. Although Wuchek did testify generally as to
various behaviors concerning eye contact, posture, and
speaking patterns that, on the basis of his training and
experience, he opined are characteristic of people who
are being untruthful, Wuchek, unlike the expert in
Favoccia, did not directly comment on whether this
particular witness exhibited any of those discussed
behaviors. The jury remained free to assess indepen-
dently, untainted by expert testimony, whether the
defendant actually engaged in such behaviors.15 Accord-
ingly, we conclude that the trial court did not abuse its
discretion by overruling the defendant’s objection to
Wuchek’s testimony on the ground that it invaded the
province of the jury.
In sum, we conclude that to the extent the defendant
is now claiming that body language and other behavioral
indicators of untruthfulness are not proper subjects for
expert testimony because they are inherently unrelia-
ble, this claim was not properly preserved at trial. To
the extent that the defendant is claiming that Wuchek’s
testimony invaded the jury’s exclusive function as trier
of fact to assess the defendant’s credibility, we conclude
that the trial court did not abuse its discretion in making
this evidentiary ruling.
III
ADMISSION OF POSTMORTEM
PHOTOGRAPHS OF VICTIM
We next turn to the defendant’s claim that the trial
court improperly admitted postmortem photographs of
the victim’s corpse in advanced decomposition. The
defendant argues that the limited evidentiary value of
the photographs was outweighed by their prejudicial
effect because the photographs improperly inflamed
the emotions of the jury. In response, the state argues
that the defendant has failed to establish that the trial
court abused its discretion in admitting the subject pho-
tographs. We agree with the state.
During the state’s case-in-chief, Matthew Greenstein,
a state police trooper responsible for collecting evi-
dence at the scene where the victim’s body was found,
identified five photographs that depicted various items
as they appeared in the back of the U-Haul truck. The
defendant objected to the admission of one of the photo-
graphs that depicted the victim’s body partially rolled
in the rug amid other items in the back of the truck,
and the trial court excused the jurors. The defendant
conceded that the photograph was relevant, but argued
that its probative value was outweighed by its prejudi-
cial effect because it portrayed a decaying head that
would be shocking to the jury. Moreover, he contended
that the state had already established that there was a
body found in the back of the U-Haul and that the
body was that of the victim. The state argued that the
photograph was relevant to the case, as the manner in
which the victim’s body was discovered was relevant
both to the charge of tampering with physical evidence
as well as to the defendant’s state of mind.
The trial court examined the photograph and over-
ruled the defendant’s objection, noting that the photo-
graph was part of the history of the case and relevant to
both counts, and that it was not inflammatory because it
merely depicted the left arm of a person, presumably
the victim, with the top of the body being ‘‘dark; this
court cannot even make out what that entails.’’ Ulti-
mately, the trial court concluded that the photograph
was ‘‘not so prejudicial that it cannot be seen [by]
the jury.’’
The defendant next objected to autopsy photographs
of the victim that the state sought to admit during its
direct examination of Gill, the chief medical examiner.
After the jury was excused from the courtroom, the
defendant again asserted that the probative value of the
photographs was very small compared to the prejudicial
effect they would have on the jury, as the photographs
contained shocking depictions of ‘‘a body that’s been
decaying and skin has slipped off and the skin is discol-
ored.’’16 He also argued that although the photographs
may better show the jury the specific locations of stab
wounds on the victim’s body, the same information
was already presented to the jury through other means,
specifically, the medical examiner’s report, a diagram
with markings representing the locations of the stab
wounds on the body, and the testimony of Gill. In con-
trast, the state argued that it had selected the fewest
number of photographs from the autopsy that it
believed would sufficiently convey the full examination,
and that the photographs were necessary to aid the
jurors in ‘‘[listen]ing to the testimony of [Gill], putting
together the written version along with a visual aspect
in order for them to gasp the totality of what the exami-
nation included.’’
The trial court, which had previously examined the
photographs in chambers, overruled the defendant’s
objection, citing the state’s heavy burden to prove every
element of the two count information beyond a reason-
able doubt, and the defendant’s self-defense theory of
the case on which the jury was to be instructed in the
future. More specifically, the trial court stated that ‘‘it’s
very relevant for this jury to see . . . the number of
stab wounds, the location of the stab wounds because
that gets into the subjective, objective thoughts of the
defendant and his claim of self-defense. So, that’s rele-
vant. . . . I understand that the photos are not the
easiest to see. The record will reflect that I have seen
the photos in chambers. So, I am going to allow them
in. I find that they would be an aid to this jury and
they are relevant evidence, so I will allow them in.’’
Accordingly, the trial court engaged in a weighing of
the probative value of these photographs against their
prejudicial effect.
As previously mentioned, our standard of review for
evidentiary rulings is well established. ‘‘The trial court
has wide discretion in its rulings on evidence and its
rulings will be reversed only if the court has abused its
discretion or an injustice appears to have been done.
. . . The exercise of such discretion is not to be dis-
turbed unless it has been abused or the error is clear
and involves a misconception of the law.’’ (Internal
quotation marks omitted.) Bunting v. Bunting, 60
Conn. App. 665, 670, 760 A.2d 989 (2000). ‘‘[S]ound
discretion has long meant a discretion that is not exer-
cised arbitrarily or wilfully, but with regard to what is
right and equitable under the circumstances and the
law, and directed by the reason and conscience of the
judge to a just result.’’ (Internal quotation marks omit-
ted.) State v. Williams, 195 Conn. 1, 8, 485 A.2d 570
(1985). Furthermore, ‘‘[e]very 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.’’ (Internal quotation marks omitted.) State
v. Rolon, 257 Conn. 156, 173, 777 A.2d 604 (2001).
Section 4-3 of the Connecticut Code of Evidence pro-
vides: ‘‘Relevant evidence may be excluded if its proba-
tive value is outweighed by the danger of unfair
prejudice or surprise, confusion of the issues, or mis-
leading the jury, or by considerations of undue delay,
waste of time or needless presentation of cumulative
evidence.’’ ‘‘A potentially inflammatory photograph may
be admitted if the court, in its discretion, determines
that the probative value of the photograph outweighs
the prejudicial effect it might have on the jury.’’ State
v. Williams, 227 Conn. 101, 111, 629 A.2d 402 (1993).
‘‘The principles governing the admission of potentially
inflammatory photographic evidence are clear. . . .
[W]e adhere to the general rule that photographs which
have a reasonable tendency to prove or disprove a mate-
rial fact in issue or shed some light upon some material
inquiry are not rendered inadmissible simply because
they may be characterized as gruesome. . . . When,
however, an initial determination is made by the trial
court that such photographs may have the tendency to
prejudice or inflame the jury, the admissibility of such
evidence is dependent upon the trial court’s determina-
tion as to whether their value as evidence outweighs
their possible prejudicial effect. . . . Since the trial
court exercises its broad discretion in such circum-
stances, its determination will not be disturbed on
appeal unless a clear abuse of that discretion is shown.’’
(Internal quotation marks omitted.) State v. Walker, 206
Conn. 300, 314–15, 537 A.2d 1021 (1988).
In the present case, the comprehensive trial court
record reveals that we need not engage in a lengthy
analysis of the court’s ruling. As previously recounted,
the trial court heard a lengthy offer of proof and argu-
ments from the parties before balancing the probative
value of the photographs against the risk of unfair preju-
dice. With respect to the photograph showing what
appeared to be the victim’s body in a rug in the back
of the U-Haul truck, the trial court had difficulty even
finding anything inflammatory about the image because
it was difficult for the viewer to make out any details
concerning the appearance of the victim’s body. With
respect to the autopsy examination photographs, we
have previously held that ‘‘[a]utopsy photographs
depicting the wounds of victims are independently rele-
vant because they may show the character, location
and course of the [weapon],’’ and that it is not an abuse
of discretion to admit them when they are presented ‘‘to
prove intent and causation, to help explain the autopsy
procedure, [and] to assist the medical examiner in
describing his observations . . . .’’ State v. Howard, 88
Conn. App. 404, 428, 870 A.2d 8, cert. denied, 275 Conn.
917, 883 A.2d 1250 (2005). On the basis of our review
of the record, including the photographs in question,
therefore, we conclude that the trial court did not abuse
its discretion by admitting the photographs into
evidence.
IV
EXCLUSION OF PROFFERED
SELF-DEFENSE EVIDENCE
The defendant finally claims that the trial court
improperly excluded evidence relevant to his state of
mind and self-defense claim, thereby violating his right
to present a defense. Specifically, the defendant argues
that the trial court should have allowed the jury to hear
evidence of his prior experience as a witness to a fatal
knife fight many years earlier because it was relevant
to support his subjective belief that he needed to use
deadly physical force against the victim pursuant to
§ 53a-19. In response, the state argues that the trial
court acted well within its discretion in concluding that
the proffered evidence lacked a sufficient nexus to the
defendant’s altercation with the victim in this case. We
agree with the state that the trial court did not abuse
its discretion in excluding the evidence.
During his case-in-chief, the defendant, as support
for his self-defense claim, sought to admit evidence of
a fatal knife fight that he had witnessed fourteen years
earlier. Outside the presence of the jury, the defendant
offered the testimony of private investigator Deborah
Curtis, who did not witness the altercation but had
investigated the fatal stabbing back in 2000. Curtis testi-
fied that the defendant, who was fourteen years old at
the time of the incident, was at home with his mother
and stepfather when his mother’s former boyfriend
arrived at the home with a knife and began fighting
with his stepfather. After a struggle in which his stepfa-
ther was repeatedly stabbed, his stepfather ultimately
wrestled the knife away and fatally stabbed the for-
mer boyfriend.
Before the defendant could finish his questioning of
Curtis, however, both the state and the trial court inter-
jected. The state proceeded to object to the admission
of the evidence on relevance grounds, citing its remote-
ness in time from the events of the present case, and
the lack of correlation between the proffered evidence
and the alleged events of the present case. In response,
the defendant argued that ‘‘the fact that he witnessed
two of his stepfathers in a knife fight and one of them
died is a subjective aspect of this—of his psyche and
what he was anticipating the threat to be when [the
victim] came at him with a knife.’’ The defendant also
informed the trial court that he intended to call to the
witness stand Sergio Estrada, the defendant’s stepfa-
ther and one of the two individuals involved in the knife
fight in 2000, as part of his offer of proof. Specifically,
the defendant’s counsel stated that he intended ‘‘to have
[the defendant’s] stepfather, who survived, testify; he’s
going to show scars on his hand where the knife severed
almost all of his fingers off, scars on his back where
he was stabbed on the back, and we’re going to hear
about how bloody this confrontation was, how the fam-
ily was at risk, and how the individual who came into
the house with a knife was intoxicated.’’ This proffer
did not include any indication that Estrada could testify
to what precisely the defendant saw during the alter-
cation.
The trial court ultimately sustained the state’s rele-
vancy objection to the offer of proof, without hearing
Estrada testify. It ruled that the offer of proof was not
relevant to what the jury had to decide, stating that it
‘‘thought [the trial court] was going to hear an offer
of proof concerning that [the victim] was somehow
involved in a prior altercation or this defendant heard
about [the victim] being involved in a stabbing incident
and was fearful,’’ and that the defendant was ‘‘basically
saying then that if somebody’s charged with a violent
assault, like we are here, which ended up in a murder,
and they’re pleading self-defense . . . that every epi-
sode that he or she was exposed to that has no bearing
whatsoever on the deceased in the case on trial . . .
the jury should hear . . . .’’
We first set forth our standard of review. ‘‘As we
recently observed, [a] defendant’s right to present a
defense does not include a right to present evidence
that properly is excluded under the rules of evidence.
. . . The sixth amendment to the United States consti-
tution require[s] that criminal defendants be afforded
a meaningful opportunity to present a complete
defense. . . . The defendant’s sixth amendment right,
however, does not require the trial court to forgo com-
pletely restraints on the admissibility of evidence. . . .
Generally, [a defendant] must comply with established
rules of procedure and evidence in exercising his right
to present a defense. . . . A defendant, therefore, may
introduce only relevant evidence, and, if the proffered
evidence is not relevant, its exclusion is proper and the
defendant’s right is not violated.’’ (Internal quotation
marks omitted.) State v. Abreu, 106 Conn. App. 278,
282, 941 A.2d 974, cert. denied, 286 Conn. 919, 946 A.2d
1249 (2008).
‘‘Relevant evidence is evidence that has a logical ten-
dency to aid the trier in the determination of an issue.
. . . One fact is relevant to another if in the common
course of events the existence of one, alone or with
other facts, renders the existence of the other either
more certain or more probable. . . . Evidence is irrele-
vant or too remote if there is such a want of open and
visible connection between the evidentiary and princi-
pal facts that, all things considered, the former is not
worthy or safe to be admitted in the proof of the latter.
. . . The trial court has wide discretion to determine
the relevancy of evidence and [e]very reasonable pre-
sumption should be made in favor of the correctness
of the court’s ruling in determining whether there has
been an abuse of discretion.’’ (Citation omitted; internal
quotation marks omitted.) State v. Davis, 298 Conn. 1,
23, 1 A.3d 76 (2010). ‘‘[A]buse of discretion exists when
a court could have chosen different alternatives but has
decided the matter so arbitrarily as to vitiate logic, or
has decided it based on improper or irrelevant factors.’’
State v. Peeler, 271 Conn. 338, 416, 857 A.2d 808 (2004),
cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d
110 (2005).
‘‘When a defendant charged with murder asserts that
he killed in self-defense, his state of mind—the exis-
tence and reasonableness of apprehension of such vio-
lence by the deceased as to justify the defensive
measures adopted—becomes material.’’ (Internal quo-
tation marks omitted.) State v. Collins, 68 Conn. App.
828, 832, 793 A.2d 1160, cert. denied, 260 Conn. 941, 835
A.2d 58 (2002). ‘‘We have articulated the requirements of
self-defense as follows. A person may justifiably use
deadly physical force in self-defense pursuant to [Gen-
eral Statutes] § 53a-19 (a) only if he reasonably believes
both that (1) his attacker is using or about to use deadly
physical force against him, or is inflicting or about to
inflict great bodily harm, and (2) that deadly physical
force is necessary to repel such attack. . . . We repeat-
edly have indicated that the test a jury must apply in
analyzing the second requirement, i.e., that the defen-
dant reasonably believed that deadly force, as opposed
to some lesser degree of force, was necessary to repel
the victim’s alleged attack, is a subjective-objective
one.’’ (Internal quotation marks omitted.) Id., 833–34.
In this case, we do not conclude that the trial court
ruled on the relevancy of the defendant’s proffered evi-
dence so arbitrarily as to vitiate logic, or decided it on
the basis of improper or irrelevant factors. The two
proffered witnesses could not testify to exactly what
the defendant saw in the fatal knife fight, or the nature
or degree to which the experience subjectively affected
him. Moreover, the testimony of Curtis, a private investi-
gator who was not even present at the scene of the
altercation when it occurred, would presumably be rid-
dled with hearsay problems had she been permitted to
testify at trial. We also note that we need not decide
whether evidence regarding this dispute would have
been admissible had it been offered through the defen-
dant’s testimony because this was not the manner in
which the defense offered it.
Ultimately, the knife fight incident occurred more
than one decade before the events of the present case
took place. Thus, it was remote in time from the present
case. Further, in addition to the fact that the prior inci-
dent did not involve the victim in this case in any capac-
ity, the prior incident did not feature the defendant as
an actual participant in the knife fight. Moreover, as
noted previously, a substantial question regarding the
admissibility of this evidence could have arisen, thereby
interfering with the orderly administration of the trial.
Finally, the trial court made clear its concern that
accepting the defendant’s theory of relevance would
mean that whenever a person charged with a violent
assault alleges that he or she acted in self-defense, then
every violent episode that he or she was exposed to
throughout his or her life would be admissible evidence.
In light of the fact that we are guided in abuse of discre-
tion review not by ‘‘whether we would reach the same
conclusion in the exercise of our own judgment, but
only [by] whether the trial court acted reasonably’’;
(internal quotation marks omitted) State v. Riddick, 61
Conn. App. 275, 282, 763 A.2d 1062, cert. denied, 255
Conn. 946, 769 A.2d 61 (2001); we conclude that the
trial court acted reasonably in excluding this particu-
lar evidence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant’s brief to this court includes two additional claims: (1)
the trial court improperly denied his motion to suppress the fruits of a
warrantless search and seizure; and (2) the trial court improperly charged
the jury when, pursuant to the Judicial Branch’s pattern jury instructions
on self-defense, it engrafted the language, ‘‘honestly and sincerely,’’ to define
the defendant’s ‘‘actual belief’’ as to both the necessity to use force and the
necessary degree of force.
With regard to the former claim, the defendant withdrew it at oral argu-
ment before this court. With regard to the latter claim, the defendant con-
ceded at oral argument that the recent decision in State v. O’Bryan, 318
Conn. 621, 123 A.3d 398 (2015), in which our Supreme Court held that the
‘‘honestly and sincerely’’ language constituted ‘‘an accurate statement of the
law’’ and was thus not error, is controlling. Id., 634. ‘‘[I]t is manifest to our
hierarchical judicial system that this court has the final say on matters of
Connecticut law and that the Appellate Court . . . [is] bound by our prece-
dent.’’ Stuart v. Stuart, 297 Conn. 26, 45–46, 996 A.2d 259 (2010). The
defendant noted to this court, however, that he preserves this claim for
further appeal. Because we believe Stuart is controlling, further review of
this claim is not warranted.
2
In the defendant’s written statement regarding the events leading up to
the victim’s death, the victim, who appeared to the defendant to be under
the influence of crack cocaine, attacked the defendant with a kitchen knife,
resulting in a struggle on the victim’s bedroom floor until the defendant
wrestled the knife away from him. The defendant stated that he then stabbed
the victim three times in the arm because the victim would not get off of
him, at which point the victim walked over to a night stand, retrieved a
second knife, and proceeded to move toward the defendant again. The
defendant stated that he responded by stabbing the victim ‘‘a few times in
the stomach area of his body’’ and ultimately left him in the bedroom, where
the victim died.
3
A reviewing court must apply the factors set forth in State v. Williams,
204 Conn. 523, 540, 529 A.2d 653 (1987), to decide whether an impropriety
denied the defendant his due process right to a fair trial. These factors
include a consideration of the extent to which the impropriety was invited
by defense counsel’s conduct or argument, the severity of the impropriety,
the frequency of the impropriety, the centrality of the impropriety to the
critical issues in the case, the strength of any curative measures taken, and
the strength of the state’s case. Id. Because we determine that no impropriety
occurred, we do not engage in this analysis.
4
The fifth amendment to the United States constitution provides in rele-
vant part: ‘‘No person . . . shall be compelled in any criminal case to be
a witness against himself, nor be deprived of life, liberty, or property, without
due process of law . . . .’’
5
General Statutes § 54-84 (a) provides in relevant part: ‘‘Any person on
trial for crime . . . may testify or refuse to testify upon such trial. The
neglect or refusal of an accused party to testify shall not be commented
upon by the court or prosecuting official . . . .’’
6
We note that although the defendant also asserts in his brief to this court
that the prosecutor improperly commented on the defendant’s interest in
the outcome of the case, the defendant frames this assertion not as a separate
claim of prosecutorial impropriety, but as additional support for his con-
tention that the prosecutor impermissibly commented on the defendant’s
failure to testify. In his brief, the defendant states: ‘‘Improperly arguing the
nontestifying defendant’s interest in the outcome, in view of State v.
Medrano, [308 Conn. 604, 65 A.3d 503 (2013), which was decided] less than
ten months before, made the impropriety far more severe.’’ Because, as
previously discussed, we do not find that the prosecutor’s challenged
remarks constituted impropriety, we need not address this assertion by
the defendant.
7
For example, in one instance, the following exchange took place between
the defendant’s counsel and Gill:
‘‘Q. Now, with regard to—there were several stab wounds on the right
elbow of [the victim]; is that correct?
‘‘A. Correct.
‘‘Q. And they were clustered right around here?
‘‘A. Yes, around the elbow.
‘‘Q. Okay. Is that consistent with somebody—well, let me have the defen-
dant stand up and—and model with me to see if it’s consistent with his
findings. . . .
‘‘Q. If I—if [the victim], who’s about this height, had the defendant in a
headlock like this, and the defendant had a knife in his right hand, and—
[the defendant]—and would stab him here, would that be consistent with
your findings?
‘‘A. Yes.’’
8
To the extent that the defendant claims that there was no evidence in
the record for the prosecutor to properly allude to the defendant and the
victim being drug addicts, we disagree. For example, there was testimony
that the victim regularly attended a local clinic to receive daily methadone
treatments, and would often drive the defendant and his wife to the clinic
for their treatments as well. As further testimony conveyed, methadone is
used to treat opioid dependence. Accordingly, it was not improper for the
prosecutor to ask the jury to infer that the defendant and the victim were
both drug addicts.
9
Additionally, the defendant’s brief to this court states: ‘‘The [trial] court
permitted Detective Wuchek . . . to testify over repeated defense objec-
tion, regarding interview techniques, verbal and physical indicators of
untruthfulness, and the reasons that suspects would employ deceptive strate-
gies and make inconsistent statements. Body language and suspect motiva-
tions are not a proper subject for expert testimony. . . . In the present
case, admission of Detective Wuchek’s expert testimony was unreasonable,
untenable, and in clear contravention of Connecticut precedent. It is black
letter law that juries are the sole arbiters of credibility, unaided by experts
to help them decide truthfulness. Such expert testimony is not only unhelpful
and unnecessary . . . but it may actually be counterproductive.’’
10
The entirety of the footnote in Lapointe is as follows: ‘‘[Detective Paul]
Lombardo [the police interrogation witness] testified at length regarding
the petitioner’s body language during the interrogation. Lombardo told the
jury that, in his experience, the petitioner’s passivity and failure to object
loudly, as well as the way he sat in ‘a runner’s position’ and wrung his
hands, was indicative of ‘someone who [was] being deceptive or trying to
hide something.’ It bears mention, however, that, at the petitioner’s first
habeas trial, Richard Leo, a leading authority on police interrogation methods
and false confessions, testified that the commonly held belief among police
officers that deception can be determined merely by observing someone’s
body language is ‘totally pseudoscientific . . . . [I]f somebody is slumped
over, if somebody is passive, if somebody utters quiet denials, if somebody
is in a runner’s position, somebody is sweating, evasive or nervous, that is
not necessarily indicative of guilt . . . .’ Leo’s observation that the police
officers make poor lie detectors has been confirmed in a number of recent
studies. See, e.g., G. Gudjonsson, ‘False Confessions and Correcting Injus-
tices,’ 46 New Eng. L. Rev. 689, 696 (2012) (‘[c]oncerns have been raised
that the [Reid behavioral analysis interview] indicators represent little more
than common-sense beliefs about deception that are contradicted by scien-
tific studies and place innocent . . . suspects at risk of being misclassified
and giving a false confession’); R. Leo, ‘False Confessions: Causes, Conse-
quences, and Implications,’ 37 J. Am. Acad. Psychiatry L. 332, 334 (2009)
(‘[S]ocial scientific studies have repeatedly demonstrated across a variety
of contexts that people are poor human lie detectors and thus are highly
prone to error in their judgment about whether an individual is lying or
telling the truth. Most people get it right at rates that are no better than
chance [that is, 50 percent] or the flip of a coin. Moreover, specific studies
of police interrogators have found that they cannot reliably distinguish
between truthful and false denials of guilt at levels greater than chance;
indeed, they routinely make erroneous judgments. The method of behavior
analysis taught by [one well established] police training firm . . . has been
found empirically to lower judgment accuracy, leading [two researchers]
to conclude that the [foregoing method of behavior analysis] may not be
effective—and, indeed, may be counterproductive—as a method of distin-
guishing truth and deception . . . .’ [Citation omitted; footnotes omitted;
internal quotation marks omitted.]); J. Masip et al., ‘Is the Behaviour Analysis
Interview Just Common Sense?,’ 25 Applied Cognitive Psychol. 593, 595
(2011) (‘[T]he behavioural indicators of deception [established by earlier
research] do not coincide with the scientific evidence accumulated over
several decades of [more recent] empirical research. . . . [More recent
research reveals] that observers’ accuracy in judging the veracity of truthful
and deceptive [video-recorded] statements was lower if the observers had
previously been trained to detect deception using . . . cues [established
by that earlier research] than if they had not been trained.’ [Emphasis
in original.]). We acknowledge Leo’s testimony and the foregoing related
scholarly articles merely to point out that any testimony by Lombardo at a
new trial concerning the petitioner’s purportedly incriminating body lan-
guage may well be subject to substantial impeachment, thereby minimizing
or even eliminating whatever adverse effect that testimony might have had on
the petitioner at his criminal trial.’’ Lapointe v. Commissioner of Correction,
supra, 316 Conn. 332–33 n.83.
11
An objection on the ground of relevance without further elucidation
could have been construed by the trial court in a number of ways. For
instance, the defendant could have meant that police interrogation tactics
in general are irrelevant to the issues in the case, or that the witness’ reasons
for studying interviewees’ body language to determine truthfulness is irrele-
vant because such a determination is a core jury function. In any event, the
trial court should not have been expected to construe the vague objection
as an attack on the inherent reliability of Wuchek’s testimony.
12
We note that the defendant’s objection was tied explicitly to the officer’s
training and experience, and was not a reference to the lack of foundation
regarding the reliability of such evidence. It is unclear from his brief to this
court whether the defendant is now asserting a claim that is based on this
last objection. If so, this specific claim is confined to half of a single sentence,
wherein the defendant argues that ‘‘[t]he court abused its discretion in
determining . . . that the state had laid an adequate foundation for admis-
sion.’’ As ‘‘[i]t is well settled that [w]e are not required to review claims
that are inadequately briefed’’ and that ‘‘[a]nalysis, rather than mere abstract
assertion, is required in order to avoid abandoning an issue by failure to
brief the issue properly’’; (internal quotation marks omitted) Lucarelli v.
Freedom of Information Commission, 136 Conn. App. 405, 407 n.1, 46 A.3d
937, cert. denied, 307 Conn. 907, 53 A.3d 222 (2012); to the extent that the
defendant attempts to raise this claim, we deem it inadequately briefed and,
thus, abandoned.
13
See State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert.
denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998). ‘‘In [Porter],
we adopted the test for determining the admissibility of scientific evidence
set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., [509 U.S. 579,
589–92, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)]. We noted therein two
requirements established under Daubert. First, [we noted] that the subject
of the testimony must be scientifically valid, meaning that it is scientific
knowledge rooted in the methods and procedures of science . . . and is
more than subjective belief or unsupported speculation. . . . This require-
ment establishes a standard of evidentiary reliability . . . as, [i]n a case
involving scientific evidence, evidentiary reliability will be based upon scien-
tific validity. . . . Second, [we noted that] the . . . scientific testimony
must be demonstrably relevant to the facts of the particular case in which
it is offered, and not simply be valid in the abstract.’’ (Internal quotation
marks omitted.) State v. Sorabella, 277 Conn. 155, 215, 891 A.2d 897, cert.
denied, 549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006). We note that
in Lapointe, our Supreme Court suggested, without deciding, that this type
of evidence is scientific in nature. See footnote 10 of this opinion.
14
As previously noted, after Wuchek testified that ‘‘[b]ody language helps
me gauge the truthfulness of people’s answers,’’ the defendant’s counsel
objected, stating: ‘‘The jury has seen a videotape of the entire interview.
The witness’ interpretation of my client’s credibility is—is taking on the
jury’s job.’’
15
In so concluding, we do not mean to suggest an opinion as to whether
we believe this is a proper topic for expert testimony because, as previously
discussed, an objection to this type of testimony on the ground that it is
inherently unreliable was not properly preserved at trial.
16
The defendant’s first ground for his objection to the autopsy photographs
was hearsay. The ruling on that ground is not being challenged in this appeal.