State v. Ruiz-Pacheco ( 2018 )

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STATE OF CONNECTICUT v. JOESENIER
RUIZ-PACHECO
(AC 39605)
Prescott, Elgo and Harper, Js.
Syllabus
Convicted of the crimes of assault in the first degree, attempt to commit
murder and conspiracy to commit assault in the first degree in connec-
tion with the stabbing of the victims, T and R, the defendant appealed.
He claimed, inter alia, that his conviction of two counts of assault in
the first degree as an accessory violated the double jeopardy clause and
that certain of the trial court’s jury instructions were improper. The
defendant and his brother, E, had left a nightclub and gone to an adjacent
parking lot, where the defendant punched his former girlfriend, M, in
the face and put her in a headlock. Thereafter, T punched the defendant,
who then released M from the headlock, and the defendant, E, T and
R began to fight. The defendant and E stabbed T multiple times, and
the defendant stabbed R two or three times. The defendant and E then
ran after R, and E stabbed R, who tumbled down a portion of grass.
The defendant then approached R and stabbed him. The state charged
the defendant with, inter alia, one count each of assault in the first
degree as a principal and an accessory as to the stabbings of T, and
one count each of assault in the first degree as a principal and an
accessory as to the stabbings of R. Held:
1. The defendant could not prevail on his unpreserved claim that his convic-
tion of two counts each of assault in the first degree as a principal and
as an accessory violated his right against double jeopardy, and, thus,
that his conviction of the accessory counts should be vacated:
a. The acts of stabbing as to R were susceptible of separation into
distinct criminal acts for which the defendant could be punished without
offending principles of double jeopardy, as the jury reasonably could
have predicated its finding that the defendant committed assault as a
principal on the basis of the first or third of the stabbing incidents
involving R, each of which was completed by the defendant, there was
no doubt that the defendant’s stabbing of R after R left the initial brawl
was a criminal act that was distinct and separate from the stabbings
that the defendant and E initially inflicted on R, and the jury’s finding
that the defendant engaged in an assault as an accessory could have
been predicated on his having aided E in the second act of stabbing R;
moreover, the information contained four separate and distinct counts
for each assault charge, the state did not suggest to the jury that the
assault charges were alternative theories of liability, but presented evi-
dence that the defendant and E stabbed each victim, and the state argued
that the evidence supported a finding that the defendant acted as an
accessory by being there with a knife.
b. The jury reasonably could have determined that the defendant was
guilty as a principal actor for the stab or stabs that he personally inflicted
on T and as an accessorial actor for intentionally aiding in the nearly
simultaneous stab or stabs that E inflicted on T; the jury was free to
resolve conflicting evidence by concluding that the defendant and E
stabbed T, and that the defendant was liable for assault in the first
degree on the basis of his stabbing of T and as an accessory for E’s
stabbing of T, which was a contemporaneous yet separate assault with
independent legal significance because the defendant had engaged in
conduct with the intent to aid E’s assault, and because the defendant’s
multiple punishments for assault as to each victim were not premised
on a single criminal act, but were based on distinct repetitions of the
same crime, the trial court was not constitutionally required to vacate
the defendant’s conviction of two counts of assault in the first degree
as an accessory.
2. The defendant could not prevail on his unpreserved claim that he was
deprived of a fair trial as a result of the trial court’s jury instructions
on attempted murder, which was based on his assertion that the court
misled the jury when it utilized the phrase, ‘‘engaged in anything,’’ in
three instances, read the full statutory definition of general and specific
intent, and failed to adequately define the substantial step element for
attempt: it was not reasonably possible that the instructions, when
viewed as a whole, misled the jury, as they adequately conveyed to the
jury that to find the defendant guilty, it must find that he had the specific
intent to cause death, the words, ‘‘engaged in anything,’’ as used by the
court did not affect the specific intent requirement in the applicable
statute (§ 53a-3 [11]) but, rather, referred to conduct that constituted a
substantial step toward the commission of the crime, and the court
explained that the jury did not need to concern itself with what general
intent meant; moreover, the court instructed the jury that a person acts
intentionally with respect to a result when his conscious objective is
to cause such a result, and, to the extent that the defendant claimed
that separate claims of error taken together deprived him of a fair
trial, our Supreme Court previously has rejected the cumulative error
approach regarding claims of instructional error.
3. The defendant could not prevail on his unpreserved claim that the trial
court improperly instructed the jury on the defenses of self-defense and
defense of others, and on the lesser included offenses of assault in the
second degree and assault in the third degree, which was based on his
assertion that the court’s instructions on self-defense permitted the jury
to consider the lesser included offenses if the state failed to disprove
self-defense beyond a reasonable doubt: the defendant waived his right
to challenge the instructions, as he had a meaningful opportunity at
trial to review them, and he assented to them and expressed no concerns
regarding revisions to the charge or to the charge as given to the jury;
moreover, even if the instructions constituted obvious and undebatable
error, the defendant could not establish manifest injustice or fundamen-
tal unfairness pursuant to the plain error doctrine because the jury
returned a verdict of guilty on the charged offenses and not on any of
the lesser included offenses.
4. The defendant’s claim that multiple instances of prosecutorial impropriety
during closing arguments deprived him of a fair trial because they nega-
tively impacted his claims of self-defense and third-party culpability
was unavailing:
a. The prosecutor’s argument that the defendant was the initial aggressor
due to his assault of S was based on the facts in evidence and, thus,
was not improper; the court instructed the jury regarding the state’s
burden to prove that the defendant was the initial aggressor in the
encounter with R and T, and the defendant failed to cite any law to
support his claim that he could be the initial aggressor only if he was
the first person to threaten or use force against T or R.
b. The prosecutor did not directly urge the jury to draw an adverse
inference by virtue of E’s absence or suggest that the defendant had the
burden to produce evidence in support of his defense; the prosecutor’s
reference to the lack of evidence for the defendant’s theory of the case,
which was that E was the initial aggressor, was not improper.
c. The prosecutor did not improperly appeal to the emotions of the
jurors when he referred to R and T as good Samaritans; the prosecutor’s
comments were based on reasonable inferences from the facts in evi-
dence, and he utilized his closing arguments to explain the motivations
of R and T for approaching the defendant, and argued that the defendant
was the initial aggressor.
d. The prosecutor did not improperly make arguments based on facts
that were not in evidence when he argued that two witnesses saw the
defendant stab T, when he stated that the defendant was the brother
of a certain person who was referred to by a nickname, or when he
discussed the testimony of two police officers who had witnessed the
fight; the prosecutor’s statements were supported by testimony and
evidence, or were proper inferences drawn from the evidence, and even
if the prosecutor’s argument about the testimony of two police officers
who witnessed the fight was improper, the court’s cautionary instruc-
tions to the jury were sufficient to cure any harm to the defendant.
Argued November 28, 2017—officially released September 25, 2018
Procedural History
Substitute information charging the defendant with
four counts of the crime of assault in the first degree,
and two counts each of the crimes of attempt to commit
murder and conspiracy to commit assault in the first
degree, brought to the Superior Court in the judicial
district of Danbury and tried to the jury before Eschuk,
J.; verdict of guilty of four counts of assault in the first
degree, two counts of conspiracy to commit assault in
the first degree and one count of attempt to commit
murder; thereafter, the court vacated the verdict as to
one count of conspiracy to commit assault in the first
degree and rendered judgment in accordance with the
verdict, from which the defendant appealed. Affirmed.
Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
Marjorie Allen Dauster, senior assistant state’s attor-
ney, with whom, on the brief, were Stephen J. Sedensky
III, state’s attorney, Warren C. Murray, supervisory
assistant state’s attorney, and Laurie N. Feldman, spe-
cial deputy assistant state’s attorney, for the appellee
(state).
Opinion
ELGO, J. The defendant, Joesenier Ruiz-Pacheco,
appeals from the judgment of conviction, rendered after
a jury trial, of two counts of assault in the first degree
as a principal in violation of General Statutes § 53a-59
(a) (1), two counts of assault in the first degree as an
accessory in violation of General Statutes §§ 53a-59 (a)
(1) and 53a-8, one count of attempt to commit murder
in violation of General Statutes § 53a-54, and one count
of conspiracy to commit assault in the first degree in
violation of General Statutes §§ 53a-59 (a) (1) and 53a-
48.1 On appeal, the defendant claims that (1) his convic-
tion of the assault counts violates the double jeopardy
clause; (2) the jury instructions on attempted murder
were improper; (3) the court’s repeated instruction that
the jury should consider the lesser included offenses
even if the state failed to disprove self-defense on the
greater offenses misled the jury; and (4) he was
deprived of a fair trial due to prosecutorial improprie-
ties that affected the critical issues of self-defense and
third-party culpability. We affirm the judgment of the
trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to the
defendant’s appeal. On November 30, 2012, the defen-
dant went to El Milenio, a nightclub in Danbury, with
his brother, Eliezer, and his friends, Raymond Martinez
and Eiliana Martinez. A group of women, Dumilka
Adames, Samantha Medina, Petra Mendez, Carina
Amaro, and Rita Santos, also attended the nightclub.
At approximately 2 a.m. on December 1, 2012, the night-
club closed and the group of women walked to their
cars, which were parked in the adjacent C-Town gro-
cery store parking lot. Kenneth Tucker, who had
attended a different nightclub, was waiting in the park-
ing lot to meet up with the group of women. The defen-
dant and his associates also walked to the C-Town
grocery store parking lot. Adames got into Santos’ car
with Tucker. Medina and Mendez got into Amaro’s car.
At some point, the defendant and Eliezer approached
Amaro’s car. Eliezer and Mendez exchanged words.
Medina, the defendant’s former girlfriend, got out of the
car and argued with him. The defendant then punched
Medina in the face and put her in a headlock. Other
people in the parking lot, including Tucker and Luis
Rodriguez, another bystander, saw the defendant put
Medina in a headlock. Medina yelled at the defendant
to let her go. Tucker punched the defendant, and the
defendant released Medina from the headlock. Tucker,
the defendant and Eliezer then immediately began to
fight with their fists. Rodriguez also entered the fray
after he saw the defendant hit Medina. At some point
during the fight, the defendant and Eliezer went to their
car to arm themselves; Eliezer obtained a knife for
himself from the car and handed a knife to the defen-
dant. Tucker and Rodriguez were unarmed. Throughout
the course of the fight in the parking lot, the defendant
and Eliezer stabbed Tucker multiple times. The defen-
dant also stabbed Rodriguez two or three times. When
the defendant and Eliezer walked away, Rodriguez said
something to the brothers. In response, the defendant
and Eliezer ran after Rodriguez, and Eliezer stabbed
Rodriguez in the back. After Eliezer stabbed him, Rodri-
guez tumbled down a portion of grass between the
parking lot and the sidewalk. The defendant then
approached Rodriguez, who was in the street unable
to move as a result of his injuries, stabbed him in the
left side of the chest and said: ‘‘This is for hitting my
brother.’’ The defendant and Eliezer thereafter fled the
scene together in a vehicle. Two off-duty police officers
witnessed a portion of the fight and rendered medical
assistance to Rodriguez after he was stabbed. Rodriguez
sustained five stab wounds and Tucker sustained three
stab wounds.
The defendant was arrested later that night. The
police took the defendant’s statement in which the
defendant admitted that he ‘‘stabbed a person in self-
defense . . . .’’ The state charged the defendant with
two counts of assault in the first degree as a principal
in violation of § 53a-59 (a) (1), two counts of assault
in the first degree as an accessory in violation of §§ 53a-
59 (a) (1) and 53a-8, two counts of attempted murder
in violation of § 53a-54, and two counts of conspiracy
to commit first degree assault in violation of §§ 53a-59
(a) (1) and 53a-48. At trial, the state presented eyewit-
ness testimony, including that of Mendez, Adames,
Tucker, Rodriguez, Liybin Fernandez, Officer Kristin
Lindstrom, and Officer David Dubord. Following a jury
trial, the defendant was found guilty on all counts
except for one count of attempted murder (count five),
and the jury’s guilty verdict on one count of conspiracy
to commit assault in the first degree (count eight) was
vacated at sentencing.2 This appeal followed.
I
The defendant first claims that his conviction of
assault in the first degree as a principal pursuant to
counts two and six of the information, and assault in
the first degree as an accessory pursuant to counts
three and seven of the information, violates his fifth and
fourteenth amendment right against double jeopardy.
Accordingly, he contends that his conviction of the two
counts of assault as an accessory should be vacated.
The state argues that because the defendant’s convic-
tion of the four counts was based on different acts, his
double jeopardy rights were not violated. We agree with
the state.
The following additional facts are relevant to our
resolution of the defendant’s claim. The information
in the present case charged the defendant with four
separate counts of first degree assault. In relevant part,
the information contained one count each of assault in
the first degree as a principal and assault in the first
degree as an accessory with respect to the stabbing
injuries suffered by Rodriguez,3 and separate counts of
assault in the first degree as a principal and assault in
the first degree as an accessory with respect to the
stabbing injuries sustained by Tucker.4 The defendant
never sought a bill of particulars.
In discussing the nature of the charges in its closing
argument, the state argued that there were many possi-
ble combinations whenever there are at least two per-
sons stabbing two victims and that multiple counts were
appropriate in this case ‘‘to accommodate all those situ-
ations.’’ The state argued that there was evidence that
both the defendant and his brother, Eliezer, armed
themselves with knives during the conflict and that both
victims were stabbed multiple times. According to the
prosecutor, the jury had the obligation of sorting out
the conflicting evidence presented and to determine
whether the defendant himself had stabbed both victims
or had helped his brother stab the victims ‘‘just by being
there with the knife himself.’’ The state did not expressly
rule out that some combination was also possible. In
fact, at no time did the state suggest to the jury that it
was proceeding on a theory of alternative liability or
that the jury was limited to finding the defendant guilty
either solely as a principal or solely as an accessory
with respect to the two victims.
In her closing argument, defense counsel also noted
the conflicting evidence that existed with respect to
who had stabbed each of the victims and argued that
it was the jury’s duty to reach a determination on the
basis of the evidence before it. The defense theory was
that it was Eliezer who stabbed the victims, not the
defendant, but that if the jury found otherwise, it should
still find the defendant not guilty because he had acted
in self-defense or in defense of others. At no point did
the defense argue to the jury that if it found the defen-
dant guilty of assaulting the victims as a principal, it
could not also find him guilty of acting as an accessory.
In its instructions to the jury regarding the charges
against the defendant, the court told the jury that the
defendant was ‘‘entitled to and must be given by you
a separate and independent determination of whether
he’s guilty or not guilty as to each of the counts’’
charged, and that ‘‘[e]ach of the counts charged is a
separate crime.’’ The defendant did not object to the
instruction given by the court or ask for clarification
about whether he potentially could be found guilty on
all counts or whether certain counts were pleaded only
in the alternative.
With that background in mind, we address the review-
ability of the defendant’s claim. The defendant acknowl-
edges that he failed to raise any double jeopardy claim
before the trial court and, thus, seeks review of his
claim pursuant to State v. Golding, 213 Conn. 233, 567
A.2d 823 (1989). Golding provides that ‘‘[a] defendant
can prevail on a claim of constitutional error not pre-
served at trial only if all of the following conditions are
met: (1) the record is adequate to review the alleged
claim of error; (2) the claim is of constitutional magni-
tude alleging the violation of a fundamental right; (3)
the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial; and (4) if
subject to harmless error analysis, the state has failed to
demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of
any one of these conditions, the defendant’s claim will
fail.’’ (Emphasis omitted; footnote omitted.) Id., 239–40;
see In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188
(2015) (modifying third prong of Golding). We conclude
that the first two prongs of the Golding test have been
met because the record before us is adequate to review
the defendant’s claim and a double jeopardy claim
raises an issue of constitutional magnitude. See State
v. Estrada, 71 Conn. App. 344, 357, 802 A.2d 873, cert.
denied, 261 Conn. 934, 806 A.2d 1068 (2002). We, thus,
direct our attention to the third prong and whether the
defendant’s claimed double jeopardy violation exists.
Before turning to our discussion of the law relative
to the defendant’s double jeopardy claim, it is important
to emphasize what the defendant is not claiming. He is
not claiming that there was insufficient evidence from
which the jury could find him guilty, either as a principal
or as an accessory, of assaulting the two victims with
the intent to cause serious bodily injury. In other words,
he has not argued that there was insufficient evidence
from which the jury could conclude that he stabbed
the two victims and that he engaged in conduct with
the intent to aid Eliezer in Eliezer’s assault of each of
the victims. The claim he makes on appeal is simply
that it is constitutionally impermissible under the facts
of this case to allow his conviction of multiple counts
of assault as to each victim to stand because, in his
view, doing so would result in his being punished twice
for the same act.
‘‘A defendant’s double jeopardy claim presents a
question of law, over which our review is plenary. . . .
The double jeopardy clause of the fifth amendment to
the United States constitution provides: [N]or shall any
person be subject for the same offense to be twice put
in jeopardy of life or limb. The double jeopardy clause
[applies] to the states through the due process clause
of the fourteenth amendment. . . . This constitutional
guarantee prohibits not only multiple trials for the same
offense, but also multiple punishments for the same
offense in a single trial.’’ (Internal quotation marks omit-
ted.) State v. Porter, 328 Conn. 648, 654–55, 182 A.3d
625 (2018).5
In analyzing a double jeopardy claim arising in the
context of a single trial, we apply a well established
two step process. ‘‘First, the charges must arise out of
the same act or transaction. Second, it must be deter-
mined whether the charged crimes are the same
offense. Multiple punishments are forbidden only if
both conditions are met.’’ (Internal quotation marks
omitted.) State v. Bernacki, 307 Conn. 1, 9, 52 A.3d 605
(2012), cert. denied, 569 U.S. 918, 133 S. Ct. 1804, 185
L. Ed. 2d 811 (2013).
In State v. Porter, supra, 328 Conn. 648, our Supreme
Court clarified the type of evidence an appellate court
should consider in applying this two step process. In
evaluating the first step, i.e., whether the charges arise
out of the same act or transaction, ‘‘we look to the
evidence at trial and to the state’s theory of the case
. . . in addition to the information against the defen-
dant, as amplified by the bill of particulars. . . . If it
is determined that the charges arise out of the same
act or transaction, then the court proceeds to step two,
where it must be determined whether the charged
crimes are the same offense. . . . [In considering the]
second step . . . we look only to the information and
bill of particulars—as opposed to the evidence pre-
sented at trial . . . . Because double jeopardy attaches
only if both steps are satisfied . . . a determination
that the offenses did not stem from the same act or
transaction renders analysis under the second step
unnecessary. (Citations omitted; emphasis added;
internal quotation marks omitted.) Id., 662. Because we
conclude in the present case that the defendant’s double
jeopardy claim founders on the first step of the analysis,
it is unnecessary to consider whether the charged
crimes are the same offense under the rubric set forth
in Blockburger v. United States, 284 U.S. 299, 52 S. Ct.
180, 76 L. Ed. 306 (1932).
‘‘[D]istinct repetitions of a prohibited act, however
closely they may follow each other . . . may be pun-
ished as separate crimes without offending the double
jeopardy clause. . . . The same transaction, in other
words, may constitute separate and distinct crimes
where it is susceptible of separation into parts, each
of which in itself constitutes a completed offense. . . .
[T]he test is not whether the criminal intent is one
and the same and inspiring the whole transaction, but
whether separate acts have been committed with the
requisite criminal intent and are such as are made
punishable by the [statute].’’ (Emphasis altered; inter-
nal quotation marks omitted.) State v. Brown, 299 Conn.
640, 652, 11 A.3d 663 (2011). Accordingly, although the
counts in an information may rely on factual allegations
arising from one overarching criminal event, if it is
possible to isolate distinct acts that occurred during that
event that constitute separate and severable criminal
offenses, prosecution of those offenses will not impli-
cate double jeopardy. ‘‘[A]n appellate court reviewing
an unpreserved claim of double jeopardy must examine
the evidence to determine whether the alleged transac-
tion logically can encompass separate acts, which in
turn form the basis of separate convictions.’’ State v.
Porter, 167 Conn. App. 281, 290–91, 142 A.3d 1216
(2016), aff’d, 328 Conn. 648, 182 A.3d 625 (2018).
By way of example, in Brown, the defendant and
several coconspirators participated in a scheme to rob
a suspected drug dealer that ended with that dealer
being killed by the defendant. State v. Brown, supra, 299
Conn. 644–46. The defendant was convicted of felony
murder and murder, which were merged prior to sen-
tencing, and robbery in the first degree, attempt to
commit robbery in the first degree, conspiracy to com-
mit robbery in the first degree, and other crimes related
to the use of a firearm. Id., 646. On appeal, the defendant
raised an unpreserved double jeopardy claim, arguing
that his conviction of both robbery and attempted rob-
bery arose out of the same transaction, and, therefore,
his sentence for attempted robbery should be vacated.
Id., 650. The court disagreed because the evidence pre-
sented at trial showed that acts constituting an
attempted robbery reasonably could be isolated from
other acts constituting a separate robbery and, there-
fore, punishing the defendant for both crimes did not
violate the constitution. Id., 654.
Specifically, the court concluded that the jury reason-
ably could have found, on the basis of the evidence
presented, that the attempted robbery had occurred
when the victim was first confronted in his car by the
defendant’s three coconspirators, one of whom pointed
a gun at his head. Id., 653. Following a struggle for
control of the gun, the victim escaped and began to run
down the street. Id. The court found that the actions
up to that point constituted a completed attempted
robbery. Id. The defendant, who had run after the victim
when he escaped from the car, was able to catch him
when the victim tripped and fell. The defendant then
shot the victim in the head and went through the victim’s
pockets, which the court viewed as constituting a sepa-
rate and distinct act of robbery. Thus, the court con-
cluded that in the course of the single criminal
conspiracy, the defendant had participated in two sepa-
rate and severable crimes that happened close together
in both time and physical proximity—an attempted rob-
bery as an accessory and a robbery acting as the princi-
pal. Id., 653–54.
The double jeopardy analysis in the present case is,
at least at first blush, complicated by the fact that all
the stabbing injuries to the victims occurred within a
very short duration of each other, and that the defen-
dant was charged with having committed an assault of
each of the victims and as an accessory to an assault
of each of the victims by Eliezer. It is true that ‘‘[t]his
state . . . long ago adopted the rule that there is no
practical significance in being labeled an accessory or
a principal for the purpose of determining criminal
responsibility. . . . Under the modern approach, a per-
son is legally accountable for the conduct of another
when he is an accomplice of the other person in the
commission of the crime. . . . [T]here is no such crime
as being an accessory . . . . The accessory statute
merely provides alternate means by which a substantive
crime may be committed.’’ (Citations omitted; internal
quotation marks omitted.) State v. Correa, 241 Conn.
322, 340–41, 696 A.2d 944 (1997).
Section 53a-8 (a) provides in relevant part that ‘‘[a]
person, acting with the mental state required for com-
mission of an offense, who solicits, requests, com-
mands, importunes or intentionally aids another person
to engage in conduct which constitutes an offense shall
be criminally liable for such conduct . . . .’’ To inten-
tionally aid someone means to be ‘‘more than a mere
inactive companion’’; (internal quotation marks omit-
ted) State v. Harris, 32 Conn. App. 831, 841, 632 A.2d
50 (1993), appeal dismissed, 230 Conn. 347, 644 A.2d
911 (1994); but ‘‘to do something purposely’’ in order
to ‘‘support, help, assist or strengthen’’ them. (Internal
quotation marks omitted.) Id., 841 n.10. Although acces-
sorial liability for an assault cannot be based solely on
a person’s presence at the scene, if there is evidence
that the person was not merely a witness but also partic-
ipated in the assault, a reasonable inference may be
drawn that the participation aided the principal assail-
ant by, for example, preventing the victim from more
easily escaping the fight or by making the victim more
vulnerable to the principal assailant’s assault. See State
v. Raynor, 175 Conn. App. 409, 431, 167 A.3d 1076 (in
challenge by defendant to sufficiency of evidence sup-
porting conviction of first degree assault as accessory,
court concluded jury reasonably could have inferred
from evidence of defendant’s presence at brawl with
gun and participation in physical beating of victim prior
to his shooting that defendant aided principal by pre-
venting victim from leaving area and helping immobile
victim before he was shot), cert. granted on other
grounds, 327 Conn. 969, 173 A.3d 952 (2017).
Although it is indisputable that a defendant could not
be punished for acting as both a principal and accessory
in the commission of a single criminal act, the prohibi-
tion against double jeopardy is not always automatically
violated simply because of contemporaneous convic-
tions of the same offense as both a principal and as an
accessory. If, for example, a jury reasonably could find
on the basis of the evidence presented that each charged
offense was the result of a distinct act of independent
legal significance—one committed as a principal and
another as an accessory—double jeopardy is not impli-
cated. Because the defendant in the present case was
convicted on separate counts of assaulting each of the
victims both as a principal and as an accessory, we
look to the evidence and the state’s theory of the case
to determine whether the jury could have reasonably
concluded that separate acts underlie each conviction
or whether the defendant is being twice punished for
the same act.
A
We first consider whether, with respect to the convic-
tions arising out of the stabbing injuries to Rodriguez,
the defendant has demonstrated that the jury could not
reasonably have concluded that two distinct acts of
criminal conduct were committed that would support
its findings of guilt on separate counts alleging first
degree assault as a principal and first degree assault
as an accessory. We conclude that the defendant has
failed to meet this burden.
The evidence at trial reasonably can be construed as
establishing at least three separate stabbing incidents
involving Rodriguez. First, during the fracas that ensued
after Rodriguez intervened to stop the altercation
between the defendant and Medina, the defendant
stabbed Rodriguez. Second, Eliezer, who also was
armed with a knife, then stabbed Rodriguez in the back.
Third, after Rodriguez tried to leave the initial skirmish,
the defendant pursued Rodriguez into the street and
stabbed him again.
The jury, thus, reasonably could have predicated its
finding that the defendant committed assault in the first
degree as a principal either on the basis of the first or
third of these stabbing incidents, each of which was
completed by the defendant himself. Even if the defen-
dant were able to convince us that the relatively simulta-
neous stabbings of Rodriguez by the defendant and
Eliezer during the initial outbreak of violence should
be treated a single act for purposes of double jeopardy,
an argument that we reject for reasons we discuss in
addressing the injuries to Tucker, there is no doubt that
the subsequent stabbing of Rodriguez by the defendant
that occurred after Rodriguez left the initial brawl was
a criminal act distinct and separate from the stabbings
initially inflicted on Rodriguez by the defendant and
his brother.
Furthermore, the jury’s finding that the defendant
engaged in an assault in the first degree as an accessory
could have been predicated on his having aided Eliezer
in the second act of stabbing Rodriguez. The jury rea-
sonably could have concluded that the defendant aided
and encouraged Eliezer’s assault of Rodriguez in any
number of ways, including by helping Eliezer to arm
himself with a knife and through his own participation
in the fight, making it easier for Eliezer to wound Rodri-
guez.6 See id. (defendant’s participation in fight evinces
intent to aid perpetrator in assault and supports jury’s
finding of accessorial liability).
Moreover, as we previously stated, we consider the
state’s theory of the case in our analysis of whether the
alleged transaction logically can encompass separate
acts. See State v. Porter, supra, 328 Conn. 661. To the
extent that the defendant contends that the state pre-
sented the two charges of assault in the first degree as
a principal and an accessory as alternative theories of
liability, we reject that claim. The state argued that
both victims were stabbed multiple times and presented
evidence of both assailants stabbing each victim. The
state also argued that the evidence supported a finding
that the defendant acted as an accessory ‘‘just by being
there with the knife himself.’’ From the very beginning
of trial, the information contained four separate and
distinct counts for each charge. At no time did the state
suggest to the jury that the charges were alternative
theories of liability. Furthermore, the court’s jury
instruction regarding the four charges reiterated that
each charge was separate and distinct, rather than
charges in the alternative. Although the trial court did
not specifically articulate that the jury could deliver a
guilty verdict as to each of the charges, it did not pre-
clude the jury from making such a finding. See State
v. King, 321 Conn. 135, 154, 136 A.3d 1210 (2016)
(‘‘[a]lthough . . . the trial court never explicitly
informed the jury that it could deliver a guilty verdict
on both charges, it also never instructed the jury that
it could find the defendant guilty only on one charge
but not the other’’).
In sum, we conclude with respect to the injuries
inflicted on Rodriguez that the acts of stabbing were
susceptible of separation into distinct criminal acts for
which the defendant could be punished without
offending principles of double jeopardy. See State v.
Brown, supra, 299 Conn. 654. Furthermore, such theory
comports with the state’s theory presented at trial. The
defendant has presented no legal precedent that would
compel an opposite conclusion. Accordingly, we reject
the defendant’s claim that his conviction of assault in
the first degree as an accessory, as charged in count
three of the information, should have been vacated by
the trial court because it violated double jeopardy prin-
ciples.
B
We turn next to the evidence pertaining to the stab-
bing injuries inflicted on Tucker, which we acknowl-
edge presents a closer case from a double jeopardy
perspective than the assault on Rodriguez because,
unlike Rodriguez, all three stabs inflicted on Tucker
occurred closer in both proximity and time. Neverthe-
less, on the basis of our review of the available evidence,
we conclude that the jury reasonably could have deter-
mined that the defendant was guilty both as a principal
actor for the stab or stabs that he personally inflicted
on Tucker and as an accessorial actor for intentionally
aiding the nearly simultaneous stab or stabs that Eliezer
directly inflicted on Tucker.
The defendant argues that if he had acted alone, he
could not have been convicted of separate counts of
assault on Tucker on the basis of each individual stab
that he inflicted during the short duration of the fight,
and that the same rationale should bar his conviction
for multiple stabs that were inflicted by himself and by
an accomplice. In making this argument, the defendant
relies on this court’s decision in State v. Nixon, 92 Conn.
App. 586, 597, 886 A.2d 475 (2005), in which we held
that the conviction of two counts of assault in the sec-
ond degree arising out of multiple stab wounds inflicted
on a single victim during a continuous and uninter-
rupted attack violated the prohibition against double
jeopardy. Nixon did not address, however, the scenario
at issue here, in which more than one perpetrator each
assaulted a victim within close proximity in time and
space. We conclude that Nixon is not applicable to the
scenario presented in the present case.
The defendant argues that Nixon is still controlling
despite the fact that it involved only one criminal perpe-
trator. He does so by relying on the notion that courts
generally make no legal distinction between accessorial
liability and liability as a principal. See State v. Gamble,
119 Conn. App. 287, 297, 987 A.2d 1049, cert. denied,
295 Conn. 915, 950 A.2d 867 (2010). From that doctrinal
basis, he asserts that the presence of multiple assailants
should have no effect on the application of Nixon. This
argument, however, fails to recognize that multiple con-
victions for the same crime are permitted if they are
based on distinct acts that may be performed by more
than one person rather than the type of rapid succession
of multiple blows by a single perpetrator, on which
Nixon was decided.
It is particularly noteworthy that the defendant does
not argue that double jeopardy bars his conviction as
a principal for the stabbing of Tucker and as an acces-
sory to the stabbing of Rodriguez, despite those stab-
bings also having quickly occurred within the context
of the same melee. The defendant thus seems tacitly
to acknowledge that he properly may be held criminally
liable for the actions of his accomplice against a sepa-
rate victim. It would be illogical to conclude that he
would not be liable to the same degree simply on the
happenstance that his accomplice targets the same vic-
tim that he himself has just assaulted or is simultane-
ously assaulting. In short, we find the defendant’s
argument, which is based on his interpretation and con-
flation of Nixon and Gamble, unpersuasive.
This court having resolved that argument, the evi-
dence before the jury was that Tucker was stabbed
multiple times during the initial fray. There was evi-
dence that both the defendant and Eliezer were armed
with knives. The jury was free to resolve conflicting
evidence by concluding that Tucker’s injuries were not
inflicted by a single assailant, and that both the defen-
dant and Eliezer stabbed Tucker. Under such a scenario,
the jury reasonably could have found the defendant
liable for assault in the first degree on the basis of
his own stabbing of Tucker. Moreover, as it did with
Rodriguez, the jury also could have found the defendant
liable as an accessory for Eliezer’s stabbing of Tucker,
a contemporaneous yet separate assault with indepen-
dent legal significance because the defendant engaged
in conduct with the intent to aid Eliezer’s assault.7 In
sum, because the defendant’s multiple punishments for
assault as to each victim were premised not on a single
criminal act but distinct repetitions of the same crime,
the court was not constitutionally required to vacate
his conviction of two counts of assault in the first degree
as an accessory. Because the defendant has not demon-
strated that a double jeopardy violation exists, he can-
not prevail under the third prong of Golding.
II
The defendant next claims that the court improperly
instructed the jury on attempted murder and conse-
quently deprived him of a fair trial. The defendant con-
tends that the court’s instructions on attempted murder
improperly permitted the jury to find him guilty if it
found that he had the general intent to fight with a knife
without also finding that he had the specific intent to
cause death. Specifically, the defendant argues that the
court misled the jury by utilizing the phrase ‘‘engaged
in anything’’ in three instances, reading the full statutory
definition of general and specific intent, and failing to
adequately define the substantial step element.
The defendant acknowledges that he did not file a
request to charge on attempted murder. Furthermore,
the defendant did not take exception to the trial court’s
instructions as given. Nevertheless, the defendant
argues that the unpreserved claim of instructional error
is reviewable under Golding because it implicates his
constitutional right to have the jury properly instructed
on all elements of an offense and the record is adequate
for review. See part I of this opinion. The state does
not dispute that the first two prongs of Golding have
been satisfied with respect to this claim, and the state
did not assert a waiver pursuant to State v. Kitchens,
299 Conn. 447, 482–83, 10 A.3d 942 (2011). We agree
because the record is adequate for review, and, when
intent is an element of a crime, a trial court’s failure
to instruct the jury properly with respect to intent impli-
cates the due process rights of the accused. See, e.g.,
State v. DeJesus, 260 Conn. 466, 472–73, 797 A.2d 1101
(2002). We conclude, however, that the defendant can-
not prevail under Golding’s third prong.
‘‘Our standard of review for claims of instructional
impropriety is well established. The principal function
of a jury charge is to assist the jury in applying the
law correctly to the facts which they 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 . . . . In this inquiry we focus on the substance
of the charge rather than the form of what was said
not only in light of the entire charge, but also within
the context of the entire trial. . . . Moreover, as to
unpreserved claims of constitutional error in jury
instructions, we have stated that under the third prong
of Golding, [a] defendant may prevail . . . only if . . .
it is reasonably possible that the jury was misled . . . .’’
(Internal quotation marks omitted.) State v. Lawrence,
282 Conn. 141, 179, 920 A.2d 236 (2007). ‘‘[I]ndividual
jury instructions should not be judged in artificial isola-
tion, but must be viewed in the context of the overall
charge. . . . Thus, [t]he whole charge must be consid-
ered from the standpoint of its effect on the [jurors] in
guiding them to the proper verdict . . . and not criti-
cally dissected in a microscopic search for possible
error. . . . Accordingly, [i]n reviewing a constitutional
challenge to the trial court’s instruction, we must con-
sider the jury charge as a whole to determine whether
it is reasonably possible that the instruction misled the
jury. . . . In other words, we must consider whether
the instructions [in totality] are sufficiently correct in
law, adapted to the issues and ample for the guidance
of the jury.’’ (Internal quotation marks omitted.) State
v. Hampton, 293 Conn. 435, 452–53, 988 A.2d 167 (2009).
It is well established that the charge of attempted
murder requires the state to prove beyond a reasonable
doubt that the defendant had the specific intent to cause
the death of another person.8 State v. Griggs, 288 Conn.
116, 130–31, 951 A.2d 531 (2008). We turn to a review
of the challenged jury instruction to determine whether
it is reasonably possible that the jury was misled.
The trial court instructed the jury on intent as follows:
‘‘The question of intent: Intent relates to the condition
of the mind of the person who commits the act, his or
her purpose in doing it. The law recognizes two types
of intent; general intent and specific intent, but each
of the crimes charged here are crimes of specific intent,
so you do not need to concern yourself with what gen-
eral intent means.
‘‘Specific intent is the intent to achieve a specific
result. A person acts intentionally, with respect to a
result, when his or her conscious objective is to cause
such result. What the defendant intended is a question
of fact for you to determine.
‘‘A person acts intentionally with respect to a result
or to conduct described by a statute defining an offense,
when his conscious objective is to cause such a result
or . . . engage in such conduct.
‘‘In this case, you will note that there is in each count
an element which requires you to find that the state
has proven beyond a reasonable doubt that . . . the
defendant had the specific intent to do the thing
charged. . . .
‘‘The evidence of intent: What a person’s intention
was is usually a matter to be determined by inference.
No person is able to testify that he or she looked into
another’s mind and saw therein certain knowledge or
a certain purpose or intention to do harm to another.
‘‘Because direct evidence of the . . . defendant’s
state of mind is rarely available, intent is generally
proved by circumstantial evidence. The only way a jury
can ordinarily determine what a person’s intention was,
at any give[n] time, is by determining what the person’s
conduct was and what the circumstances were sur-
rounding that conduct and from that infer what his or
her intention was.’’ (Emphasis added.)
The defendant claims that the court erred in using the
phrase ‘‘engage in anything’’ when it read the attempt
statute to the jury. The court instructed the jury as
follows: ‘‘The defendant is charged with two counts of
attempt to commit murder.
‘‘The mental state required for the commission of
the crime of murder is that the defendant specifically
intended to cause the death of another person.
‘‘The statute defining attempt reads in pertinent part
as follows: A person is guilty of an attempt to commit
a crime if, acting with the mental state required for the
commission of the crime, he intentionally engaged in
anything, which, under the circumstances, as he
believed them to be, was an act constituting a substan-
tial step in a course of conduct planned to culminate
in his commission of the crime.
‘‘For you to find the defendant guilty of this charge,
the state must prove the following elements beyond a
reasonable doubt: Element number one, intent . . .
the first element is that the defendant had the kind of
mental intent required for the commission of the crime
of murder. The mental state required for the commis-
sion of murder is that the defendant specifically
intended to cause the death of another person. There
is no particular length of time necessary for the defen-
dant to have formed the specific intent to kill. And, a
person acts intentionally with respect to a result, when
his conscious objective is to cause such a result.’’
(Emphasis added.)
In defining the second element of attempt, the court
instructed the jury using the contested language as fol-
lows: ‘‘Element number two . . . the second element
is that the defendant intentionally engaged in anything,
which, under the circumstances, as he believed them
to be, was an act constituting a substantial step in a
course of conduct planned to culminate in his commis-
sion of the crime. In other words, the state must prove
both intent and conduct beyond a reasonable doubt to
obtain a conviction.’’ (Emphasis added.) Finally, the
court summarized the elements utilizing the ‘‘engaged
in’’ phrase as follows: ‘‘So, to sum up, the charge of
attempt to commit murder, the state has to prove
beyond a reasonable doubt that the defendant had the
necessary . . . intent to commit the crime and that he
intentionally engaged in anything which constituted a
substantial step in the course of conduct planned to
culminate in his commission of the crime under the
circumstances, as he believed them to be.’’ (Empha-
sis added.)
On appeal, the defendant claims that the court
improperly comingled the language from both sections
of the attempt statute by utilizing the phrase ‘‘engaged
in’’ and not the phrase ‘‘did or omitted doing’’ from the
other subsection of the attempt statute. In the chal-
lenged jury instruction, the court utilized the ‘‘engaged
in anything’’ language, which the defendant claims is
related to the impermissible definition of general intent
found in § 53a-3 (11). In addition, the defendant claims
that the trial court’s recitation of the full definition of
intent in § 53a-3 (11) misled the jury. We disagree.
‘‘It is axiomatic that the definition of intent as pro-
vided in § 53a-3 (11)9 embraces both the specific intent
to cause a result and the general intent to engage in
proscribed conduct. It has become axiomatic, through
decisional law, that it is improper for a court to refer
in its instruction to the entire definitional language of
§ 53a-3 (11), including the intent to engage in conduct,
when the charge relates to a crime requiring only the
intent to cause a specific result.’’ (Footnote added.)
State v. Sivak, 84 Conn. App. 105, 110–11, 852 A.2d 812,
cert. denied, 271 Conn. 916, 859 A.2d 573 (2004). In
State v. Rivet, 99 Conn. App. 230, 232–33, 912 A.2d 1103,
cert. denied, 281 Conn. 923, 918 A.2d 274 (2007), this
court stated: ‘‘[I]n cases in which the entire definition
of intent was improperly read to the jury, the conviction
of the crime requiring specific intent almost always has
been upheld because a proper intent instruction was
also given. The erroneous instruction, therefore, was
not harmful beyond a reasonable doubt [in those
cases].’’ (Internal quotation marks omitted.) Compare
State v. Austin, 244 Conn. 226, 236, 710 A.2d 732 (1998)
(no reversible error when improper intent instruction
followed by numerous proper instructions on elements
of murder), and Moody v. Commissioner of Correction,
127 Conn. App. 293, 306, 14 A.3d 408 (no reversible
error when improper intent instruction followed by rep-
etition of specific intent element of murder and assault),
cert. denied, 300 Conn. 943, 17 A.3d 478 (2011), with
State v. Lopes, 78 Conn. App. 264, 271–72, 826 A.2d
1238 (reversible error when improper intent instruction
given directly in regard to elements of attempt to com-
mit murder and not followed by numerous proper
instructions), cert. denied, 266 Conn. 902, 832 A.2d 66
(2003), and State v. DeBarros, 58 Conn. App. 673, 683,
755 A.2d 303 (reversible error when improper intent
instruction not only given in initial and two supplemen-
tal charges but also referred to seven additional times),
cert. denied, 254 Conn. 931, 761 A.2d 756 (2000).
The defendant contends that the attempt instruction
failed to guide the jury on what constituted a substantial
step, and the omission of the language found in the
model jury instruction on the Judicial Branch website,10
coupled with the other improper instructions, seriously
misled the jurors because it allowed them to find the
defendant guilty of attempted murder on the basis of
his act of fighting with a knife, without determining
his true purpose. The state argues that the model jury
instruction language was not necessary in guiding the
jury, and that the instructions that the court gave prop-
erly required it to find that the defendant intended to
cause death and whether he intentionally engaged in
conduct that constituted a substantial step planned to
culminate in his commission of murder. We agree with
the state.
After reviewing the instructions in their entirety, we
are persuaded that the instructions adequately con-
veyed to the jury that to find the defendant guilty of
attempted murder, the jury must find that he had the
specific intent to cause death. Although the court gave
the full definition of intent as provided in § 53a-3 (11)
and used the phrase, ‘‘engage in anything,’’ at three
points in the charge, our review of the entire instruction
reveals that it is not reasonably possible that the instruc-
tions misled the jury. The words, ‘‘engaged in anything,’’
as used by the trial court in the charge on attempt
to commit murder did not affect the specific intent
requirement; rather, the language referred to conduct
constituting a substantial step toward the commission
of the crime. See State v. Pires, 122 Conn. App. 729,
745, 2 A.3d 914 (2010) (‘‘the words ‘engage in conduct’
refer not to the required intent but rather explain that
the person being aided by the accessory must be doing
the action that constitutes the crime, as opposed to
simply thinking about the criminal act or perhaps engag-
ing in conduct other than the criminal act’’), aff’d, 310
Conn. 222, 77 A.3d 87 (2013).
Indeed, the trial court repeatedly told the jury that,
in order to find the defendant guilty, it must find that
he had the specific intent to cause death11 and explained
that the jury ‘‘[did] not need to concern [itself] with
what general intent means.’’ The court instructed the
jury twice that ‘‘[t]he mental state required for the com-
mission of murder is that the defendant specifically
intended to cause the death of another person.’’ More-
over, the court instructed that ‘‘a person acts intention-
ally with respect to a result when his conscious
objective is to cause such result.’’ Additionally, to the
extent that the defendant claims that the separate
claims of error taken together deprived him of a fair
trial, we note that our Supreme Court has rejected the
cumulative error approach regarding claims of instruc-
tional error. State v. Tillman, 220 Conn. 487, 505, 600
A.2d 738 (1991) (‘‘[w]e decline to create a new constitu-
tional claim in which the totality of alleged constitu-
tional error is greater than the sum of its parts’’), cert.
denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d
876 (1992).
Viewing the instructions as a whole, we conclude
that the defendant cannot prevail on his claim of instruc-
tional impropriety with regard to his conviction of
attempted murder. Accordingly, the defendant’s claim
fails to satisfy the third prong of Golding, as he has not
established the existence of a constitutional violation
that deprived him of a fair trial.
III
The defendant also claims that the court misled the
jury by instructing the jurors on the defenses of self-
defense and defense of others, as well as on the lesser
included offenses of assault in the second degree and
assault in the third degree. More specifically, the defen-
dant claims that the court committed reversible error
because its instructions on self-defense permitted the
jury to consider lesser included offenses if the state
failed to disprove self-defense beyond a reasonable
doubt. We disagree.
The defendant failed to preserve this claim at trial
and now seeks Golding review. See part I of this opin-
ion. Unlike the prior claim of instructional error, how-
ever, the state argues that the defendant waived this
claim, pursuant to State v. Kitchens, supra, 299 Conn.
482–83, and, thus, is not entitled to review under Gold-
ing. We agree.
The following facts are necessary for the resolution
of this claim. The trial court provided a thirty-one page
draft of the proposed jury instructions to the defendant
and the state prior to the charging conference on July
29, 2015. Although the record does not identify the exact
date that the parties received the draft, the record is
clear that the parties had the draft overnight from July
29 to July 30, 2015. During the charging conference the
court discussed with counsel how to guide the jury
regarding the consideration of the numerous charges
and the lesser included offenses. The court’s proposed
instructions included explaining to the jury that it is
the jury’s choice as to what order it deliberates the
charges, except for the lesser included offenses, and
the court, during the charging conference, specifically
stated to the parties, ‘‘I am going to ask you to review
that, particularly.’’ The court also discussed with coun-
sel the instructions on defense of others and self-
defense. The court stated that ‘‘[t]he self-defense and
defense of others, the draft . . . proposed by [the
state] . . . is tracked by the recommendation of the
proposed charges filed by the defense.’’ The discussion
included a suggestion about whether the court should
utilize ‘‘and/or,’’ or, ‘‘or,’’ or, ‘‘and,’’ in its instruction.
The defense suggested ‘‘and/or’’ and did not raise any
exceptions to the charge as proposed. At the end of
the charging conference, the court specifically
addressed the self-defense charge and inquired as to
whether the evidence indicated that the defendant
attacked in defense of another person.
The record indicates that the following morning, the
trial court gave a revised copy of the charge to counsel
and stated that ‘‘counsel and I had a charging confer-
ence here in this courtroom, and I had promised that
I would give to each attorney a copy of a revised charge,
following our discussions . . . . While the charges
remain very much the same in . . . substance, as the
ones that I previously presented to defense counsel
and the state, there have been some amendments and
alterations, and, obviously I will give you, each of you,
more time to consider the charges that I’ve proposed
to the jury, if you wish to do that. I anticipate that you
will take most of the morning to do the arguments;
however, you will have the luncheon recess and as
much time thereafter as you wish to review the
charges.’’ The court then reviewed the proposed
changes with counsel on the record. The court reviewed
how to guide the jury to consider the numerous charges
and the lesser included offenses. stating: ‘‘I’ve suggested
effectively that they should start on . . . count five, go
through that, consider whether the elements are . . .
proven; if they find that is the case, consider whether
the defense [of] self-defense applies and then continue.
In relation to the . . . other charges, I’ve added that
they must consider or can consider lesser included
offenses. So, I would appreciate it if . . . you let me
know if you need any time on that.’’ The jury was subse-
quently brought into the court, and the parties con-
ducted closing arguments.
After the jury was dismissed for the luncheon recess,
the defense expressed an issue with one of the state’s
comments in the closing argument and requested a cura-
tive instruction. After the luncheon recess, the parties
confirmed that they had no other concerns regarding
the revised instructions, and the court discussed the
curative instruction requested by defense counsel. The
jury was summoned into the courtroom, and the court
read the instructions to the jury. The court specifically
asked if the parties had any exceptions to the charge,
and defense counsel specifically stated, ‘‘I don’t have
any exceptions.’’
‘‘It is well established in Connecticut that unpre-
served claims of improper jury instructions are review-
able under Golding unless they have been induced or
implicitly waived. . . . The mechanism by which a
right may be waived . . . varies according to the right
at stake. . . . For certain fundamental rights, the
defendant must personally make an informed waiver.
. . . For other rights, however, waiver may be affected
by action of counsel . . . [including] the right of a
defendant to proper jury instructions. . . . Connecti-
cut courts have consistently held that when a party
fails to raise in the trial court the constitutional claim
presented on appeal and affirmatively acquiesces to the
trial court’s order, that party waives any such claim
[under Golding]. . . . [W]hen the trial court provides
counsel with a copy of the proposed jury instructions,
allows a meaningful opportunity for their review, solic-
its comments from counsel regarding changes or modi-
fications and counsel affirmatively accepts the
instructions proposed or given, the defendant may be
deemed to have knowledge of any potential flaws
therein and to have waived implicitly the constitutional
right to challenge the instructions on direct appeal. . . .
[C]ounsel’s discussion of unrelated parts of the jury
charge at an on-the-record charge conference . . .
demonstrate[s] that counsel was sufficiently familiar
with the instructions to identify those portions of the
instructions with which [she] disagreed. [T]o the extent
that [she] selectively discussed certain portions of the
instructions but not others, one may presume that [she]
had knowledge of the portions that [she] did not discuss
and found them to be proper, thus waiving the defen-
dant’s right to challenge them on direct appeal. . . .
Our Supreme Court has stated that it is sufficient to
show that defense counsel had a meaningful opportu-
nity to review the proposed instructions if she was given
the opportunity to review them overnight.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Hall-Davis, 177 Conn. App. 211, 240–41, 172 A.3d 222,
cert. denied, 327 Conn. 987, 175 A.3d 43 (2017); see also
State v. Kitchens, supra, 299 Conn. 482–83.
Here, the defendant had a meaningful opportunity
to review the proposed jury instructions at issue and
assented to the instructions. The defendant had the
proposed instructions overnight on July 29, 2015, and
discussed the challenged instructions at length with the
court at the charging conference and in the morning
after the charging conference on July 30, 2015. The court
reviewed the revisions with counsel and specifically
requested that the parties review the revisions related
to the instructions challenged on appeal. The defendant
expressed no concerns regarding the revisions or the
charge as given to the jury.
Accordingly, we conclude that, under the present
circumstances, the defendant had a meaningful oppor-
tunity to review the jury instruction challenged on
appeal and waived his right to challenge the instruction
on appeal.
Alternatively, the defendant argues that this court
should review his waived claim under the plain error
doctrine. In State v. McClain, 324 Conn. 802, 812–15,
155 A.3d 209 (2017), our Supreme Court held that a
Kitchens waiver does not preclude appellate relief
under the plain error doctrine. See State v. Torres, 325
Conn. 919, 163 A.3d 618 (2017). Accordingly, we review
whether the defendant’s claim of instructional impropri-
ety constitutes plain error requiring reversal of the
judgment.
A review of the record reveals the following addi-
tional relevant facts. The trial court instructed the jury
on the defense of self-defense and defense of others as
follows: ‘‘The evidence in this case raises the issues of
self-defense . . . and/or the defense of others. Self-
defense and/or the defense of others, applies to all of
the charges before you, as well as to lesser included
offenses of assault in the second degree, assault in the
third degree. . . . After you’ve considered all of the
evidence in this case, if you find that the state has
proven beyond a reasonable doubt each element of the
crime, you must go on to consider whether or not the
defendant acted in self-defense or defense of others. In
this case, you must consider self-defense or defense
of others in connection with—with each count of the
information and the lesser included offenses you may
consider.’’ Later in the charge, the court repeated the
instructions as to self-defense and suggested a way for
the jury to consider the charges.
Following the repetition of the self-defense and
defense of others instruction, the court instructed: ‘‘If
. . . you . . . find that the state has not . . . dis-
proved beyond a reasonable doubt at least one of the
elements of the defense or has not proven one of the
statutory disqualifications, then on the strength of that
defense alone, you must find the defendant not guilty,
despite the fact that you have found the elements of the
crime proved beyond a reasonable doubt.’’ The court
continued to summarize an example for how to consider
the lesser charges: ‘‘In other words, you consider, for
example, assault in the first degree, only if you acquit
the defendant of that charge, either because you do not
find the state has proven the elements of that charge
beyond a reasonable doubt or you find the state has
failed to . . . disprove . . . the defenses of self-
defense and/or defense of others, and so that you acquit
the defendant on that charge, then you may consider
assault in the second degree; you’re going to go through
the same analysis for that lesser included offense, if
you acquit the defendant of that charge . . . you then
shall consider the charge of assault in the third degree.’’
The next day, the court reinstructed the jury about
how to deliberate and stated that ‘‘while I anticipate
that [your] findings in relation to self-defense and/or
the defense of others, will probably be the same in both
the substantive and the lesser included offenses, you
must include . . . that issue in your consideration of
each charge, if appropriate.’’
‘‘An appellate court addressing a claim of plain error
first must determine if the error is indeed plain in the
sense that it is patent [or] readily [discernible] on the
face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable. . . . This deter-
mination clearly requires a review of the plain error
claim presented in light of the record. Although a com-
plete record and an obvious error are prerequisites for
plain error review, they are not, of themselves, suffi-
cient for its application. . . . [T]he plain error doctrine
is reserved for truly extraordinary situations [in which]
the existence of the error is so obvious that it affects
the fairness and integrity of and public confidence in
the judicial proceedings. . . . [I]n addition to examin-
ing the patent nature of the error, the reviewing court
must examine that error for the grievousness of its
consequences in order to determine whether reversal
under the plain error doctrine is appropriate. A party
cannot prevail under plain error unless it has demon-
strated that the failure to grant relief will result in mani-
fest injustice. . . . [Previously], we described the two-
pronged nature of the plain error doctrine: [An appel-
lant] cannot prevail under [the plain error doctrine]
. . . unless he demonstrates that the claimed error is
both so clear and so harmful that a failure to reverse
the judgment would result in manifest injustice. . . .
‘‘It is axiomatic that, [t]he plain error doctrine . . .
is not . . . a rule of reviewability. It is a rule of revers-
ibility. That is, it is a doctrine that this court invokes
in order to rectify a trial court ruling that, although
either not properly preserved or never raised at all in
the trial court, nonetheless requires reversal of the trial
court’s judgment . . . for reasons of policy. . . . Put
another way, plain error review is reserved for only
the most egregious errors. When an error of such a
magnitude exists, it necessitates reversal.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) State v. McClain, supra, 324 Conn. 812–14.
The defendant claims that by its instructions, the
court expressly precluded the jury from considering
the defenses of defense of others and self-defense. The
defendant cites State v. Hinckley, 198 Conn. 77, 87–88,
502 A.2d 388 (1985), and argues that the trial court’s
error was ‘‘an example of an extraordinary [situation]
where the existence of the error is so obvious that it
affects the fairness and integrity of and public confi-
dence in the judicial proceedings.’’12 The defendant also
argues that it was plain error for the trial court to
misstate the effect of the governing statute by telling
the jurors that acquittal on the basis of self-defense was
not a true acquittal.13 The state argues that it is not
reasonably possible that the instruction misled the jury,
and that any error did not result in manifest injustice
and is harmless beyond a reasonable doubt because
the defendant was convicted of the charged offenses.
We agree with the state.
Even if we assume arguendo that the instruction con-
stituted obvious and undebatable error, the record does
not demonstrate manifest injustice and therefore does
not satisfy the second prong required for reversal of
the judgment pursuant to the plain error doctrine. See
State v. Blaine, 179 Conn. App. 499, 510, 180 A.3d 622,
cert. granted on other grounds, 328 Conn. 917, 181 A.3d
566 (2018). ‘‘Because [a] party cannot prevail under
plain error unless it has demonstrated that the failure
to grant relief will result in manifest injustice . . .
under the second prong of the analysis we must deter-
mine whether the consequences of the error are so
grievous as to be fundamentally unfair or manifestly
unjust.’’ (Citation omitted; internal quotation marks
omitted.) State v. Coward, 292 Conn. 296, 307, 972 A.2d
691 (2009).
Because the jury returned a verdict of guilty on the
charged offenses and not on any of the lesser included
offenses, the defendant cannot establish manifest injus-
tice or fundamental unfairness.14
IV
The defendant’s final claim is that prosecutorial
impropriety deprived him of a fair trial because it nega-
tively impacted his self-defense claim, as well as his
claim of third-party culpability. Specifically, the defen-
dant alleges that the prosecutor improperly (1) mis-
stated the law to the jurors; (2) distorted the burden
of proof; (3) appealed to the jurors’ emotions; and (4)
commented on facts not in evidence. With one minor
exception, we conclude that the prosecutor’s remarks
were not improper, and, thus, the defendant was not
deprived of a fair trial.
As a preliminary matter, we set forth the general
principles under which we review claims of prosecu-
torial impropriety. ‘‘In cases of unpreserved claims of
prosecutorial [impropriety] . . . it is unnecessary for
the defendant to seek to prevail under the specific
requirements of . . . Golding and, similarly, it is
unnecessary for a reviewing court to apply the four-
pronged Golding test.’’ (Internal quotation marks omit-
ted.) State v. Bermudez, 274 Conn. 581, 586–87, 876
A.2d 1162 (2005). Our Supreme Court has articulated
that ‘‘following a determination that prosecutorial
[impropriety] has occurred, regardless of whether it
was objected to, an appellate court must apply the
[State v. Williams, 204 Conn. 523, 540, 529 A.2d 653
(1987)] factors to the entire trial.’’ State v. Bermudez,
supra, 587. ‘‘[W]hen a defendant raises on appeal a claim
that improper remarks by the prosecutor deprived the
defendant of his constitutional right to a fair trial, the
burden is on the defendant to show, not only that the
remarks were improper, but also that, considered in
light of the whole trial, the improprieties were so egre-
gious that they amounted to a denial of due process.
. . . In analyzing whether the prosecutor’s comments
deprived the defendant of a fair trial, we generally deter-
mine, first, whether the [prosecutor] committed any
impropriety and, second, whether the impropriety or
improprieties deprived the defendant of a fair trial.’’
(Citation omitted; internal quotation marks omitted.)
State v. Felix R., 319 Conn. 1, 8–9, 124 A.3d 871 (2015).
When reviewing the propriety of a prosecutor’s state-
ments, ‘‘we do not scrutinize each individual comment
in a vacuum but, rather, review the comments com-
plained of in the context of the entire trial.’’ (Internal
quotation marks omitted.) Id., 9. ‘‘[Impropriety] is
[impropriety], regardless of its ultimate effect on the
fairness of the trial; whether that [impropriety] [was
harmful and thus] caused or contributed to a due pro-
cess violation is a separate and distinct question . . . .’’
(Internal quotation marks omitted.) State v. James E.,
154 Conn. App. 795, 816, 112 A.3d 791 (2015).
‘‘[P]rosecutorial [impropriety] of a constitutional
magnitude can occur in the course of closing argu-
ments. . . . In determining whether such [impropriety]
has occurred, the reviewing court must give due defer-
ence to the fact that [c]ounsel must be allowed a gener-
ous latitude in argument, as the limits of legitimate
argument and fair comment cannot be determined pre-
cisely by rule and line, and something must be allowed
for the zeal of counsel in the heat of argument. . . .
[A]s 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. . . . Nevertheless,
the prosecutor has a heightened duty to avoid argument
that strays from the evidence or diverts the jury’s atten-
tion from the facts of the case. . . . While the privilege
of counsel in addressing the jury should not be too
closely narrowed or unduly hampered, it must never
be used as a license to state, or to comment upon, or
to suggest an inference from, facts not in evidence, or
to present matters which the jury ha[s] no right to
consider.’’ (Internal quotation marks omitted.) State v.
Otto, 305 Conn. 51, 76–77, 43 A.3d 629 (2012).
We address each of the defendant’s claims of prosecu-
torial impropriety in turn.
A
The defendant first asserts that the prosecutor
improperly stated that the defendant was the initial
aggressor due to his assault of Medina. We are not per-
suaded.
During closing argument the prosecutor made the
following statement: ‘‘The first aggressive act was his.
When he first thrust his face into [Medina’s]—his hand
into [Medina’s] face, he started [the] brawl. Many wit-
nesses described it as pushing her face, some of them
described it as punching her. Now, he was the catalyst
of the whole event, once he was the first to take physical
action against her. . . . The state’s point of view is that
[the] original act of aggression, by the defendant, caused
a chain of events, which resulted in these stabbings.
And, now he comes before you and he’s, sort of, just
making the argument that he has the right to use deadly
force, in a situation that he caused to occur; it doesn’t
seem to be reasonable, and I’m arguing that he was the
initial aggressor.’’
Although ‘‘prosecutors are not permitted to misstate
the law . . . because such statements are likely to
improperly mislead the jury’’; (citations omitted) State
v. Otto, supra, 305 Conn. 77; the prosecutor, however,
may argue the state’s case forcefully, provided that the
argument is fair, and based on the facts in evidence
and reasonable inferences drawn from that evidence.
State v. Bardliving, 109 Conn. App. 238, 253, 951 A.2d
615, cert. denied, 289 Conn. 924, 958 A.2d 153 (2008).
The defendant fails to cite any law that supports his
claim that the prosecutor’s argument was improper.15
The defendant claims that he could be the initial aggres-
sor only if he was the first person to threaten or use
force against Tucker or Rodriguez and thus the prosecu-
tor’s argument that he could be an initial aggressor
from his actions toward Medina was a misstatement of
the law.
At trial, the court instructed the jury regarding the
state’s burden to prove that the defendant was the initial
aggressor in the encounter with Rodriguez and Tucker.16
The state claims that the arguments at trial centered
around when the encounter began and that the defen-
dant’s argument in closing arguments to the jury was
that Eliezer was the initial aggressor when he con-
fronted Mendez. The state claims that its argument was
proper because ‘‘if a jury reasonably can find that a
defendant began a brawl by attacking one person, he
cannot claim that he was not the initial aggressor with
respect to other people swept into the brawl in defense
of that person.’’ We agree with the state.
In the absence of any law to the contrary, the prosecu-
tor’s argument that the defendant was the initial aggres-
sor was based on the facts in evidence and thus, was
not improper. The defendant has failed to establish
that the prosecutor’s remarks were improper, let alone
establish that such statements were so egregious that
they amounted to a denial of due process.
B
The defendant’s next claim of prosecutorial impropri-
ety is that the prosecutor distorted the burden of proof
in his closing argument by suggesting to the jury that
a defendant has the burden to produce evidence in
support of his defense. In addition, the defendant claims
that the prosecutor’s argument violated our Supreme
Court’s holding in State v. Malave, 250 Conn. 722, 737
A.2d 442 (1999), cert. denied, 528 U.S. 1170, 120 S. Ct.
1195, 145 L. Ed. 2d 1099 (2000). We disagree.
‘‘In Malave, our Supreme Court abandoned the rule
enunciated in Secondino v. New Haven Gas Co., 147
Conn. 672, 165 A.2d 598 (1960), which had permitted
trial courts to instruct the jury that [t]he failure of a
party to produce a witness who is within his power to
produce and who would naturally have been produced
by him, permits the inference that the evidence of the
witness would be unfavorable to the party’s cause. . . .
Although the [c]ourt in Malave abandoned the Sec-
ondino rule, it did not prohibit counsel from making
appropriate comment, in closing arguments, about the
absence of a particular witness, insofar as that witness’
absence may reflect on the weakness of the opposing
party’s case. . . . The court did, however, prohibit
counsel from directly urging the jury to draw an adverse
inference by virtue of the witness’ absence. . . . Addi-
tionally, the court stated that [f]airness, however, dic-
tates that a party who intends to comment on the
opposing party’s failure to call a certain witness must
so notify the court and the opposing party in advance
of closing arguments. Advance notice of such comment
is necessary because comment on the opposing party’s
failure to call a particular witness would be improper
if that witness were unavailable due to death, disappear-
ance or otherwise. That notice will ensure that an
opposing party is afforded a fair opportunity to chal-
lenge the propriety of the missing witness comment in
light of the particular circumstances and factual record
of the case.’’ (Internal quotation marks omitted.) State
v. Grant, 154 Conn. App. 293, 325–26, 112 A.3d 175
(2014), cert. denied, 315 Conn. 928, 109 A.3d 923 (2015).
Defense counsel argued during her closing argument
that Eliezer was the initial aggressor when he con-
fronted Mendez: ‘‘That’s the initial aggressor, not [the
defendant]; the initial aggressor in this case was Eliezer,
Eliezer coming over and confronting, leaving his car
and coming over to where the girls were and confront-
ing either all the girls or [Mendez]. He’s the initial
aggressor.’’ During his rebuttal, the prosecutor stated:
‘‘You know, there was some talk about the initial aggres-
sor, that Eliezer was the initial aggressor; there is no
testimony in this case that Eliezer ever struck [Mendez],
from no witness, anywhere. And, you remember [the
defendant’s] own expert testified yesterday, that words
are okay, words don’t require defense or force. So, that
altercation between Eliezer and [Mendez] was not a
physical altercation, so he couldn’t be the initial aggres-
sor. The first one to be the initial aggressor is the one
to use force . . . . A lot of stuff or testimony or evi-
dence was attributed to Eliezer in this case and what
he may have been doing or thinking. He never testified
in this case. I don’t know that all the evidence attrib-
uted to Eliezer during the rebuttal actually has a basis
in the facts.’’ (Emphasis added.)
The state argues that Malave does not apply because
the prosecutor did not make a missing witness argu-
ment and the prosecutor properly focused the jury on
a weakness in the defendant’s theory of the case. The
state contends that the prosecutor properly responded
to the defendant’s argument that Eliezer had been the
initial aggressor by pointing out the absence of evidence
that Eliezer had engaged in anything other than a verbal
altercation with Mendez.
Under the present circumstances, we conclude that
the prosecutor did not directly urge the jury to draw
an adverse inference by virtue of Eliezer’s absence,
thereby distorting the burden of proof, but argued
instead that there was no evidence to support defense
counsel’s claim that Eliezer was the initial aggressor.
See State v. Andrews, 313 Conn. 266, 307, 96 A.3d 1199
(2014) (holding that prosecutor’s comment, ‘‘[t]hey
have access to the state forensic lab, they can put on
witnesses if they want to from the lab,’’ was not
improper missing witness argument because prosecu-
tor argued no evidence supported defendant’s claim
[emphasis omitted]). In Malave, our Supreme Court
held that ‘‘we do not prohibit counsel from making
appropriate comment, in closing arguments, about the
absence of a particular witness, insofar as that witness’
absence may reflect on the weakness of the opposing
party’s case. . . . [Such comment is allowed as] long
as counsel does not directly exhort the jury to draw an
adverse inference by virtue of the witness’ absence
. . . .’’ State v. Malave, supra, 250 Conn. 739. Accord-
ingly, the prosecutor’s reference during rebuttal argu-
ment to the lack of evidence for the defendant’s theory
of the case, i.e., that Eliezer was the initial aggressor,
was not improper.
C
The defendant also claims that the prosecutor
improperly appealed to the emotions of the jurors by
referring to Tucker and Rodriguez as ‘‘good Samari-
tans.’’ We disagree. In closing arguments, the prosecu-
tor stated that Tucker and Rodriguez ‘‘had the right to
come to [Medina’s] aid, they were merely defending a
third person, they merely used physical force, not
deadly force, they were acting as good Samaritans.’’
The prosecutor then stated that Rodriguez ‘‘was a good
Samaritan’’ and then asked the jury: ‘‘Isn’t that what
you want to see in a young man?’’
‘‘It has long been held that [a] prosecutor may not
appeal to the emotions, passions and prejudices of the
jurors. . . . When the prosecutor appeals to emotions,
he invites the jury to decide the case, not according to
a rational appraisal of the evidence, but on the basis
of powerful and irrelevant factors which are likely to
skew that appraisal. . . . Therefore, a prosecutor may
argue the state’s case forcefully, [but] such argument
must be fair and based upon the facts in evidence and
the reasonable inferences to be drawn therefrom. . . .
Nonetheless, closing arguments often have a rough and
tumble quality about them, [and] some leeway must be
afforded to the advocates in offering arguments to the
jury in final argument. [I]n addressing the jury, [c]ounsel
must be allowed a generous latitude in argument, as
the limits of legitimate argument and fair comment can-
not be determined precisely by rule and line, and some-
thing must be allowed for the zeal of counsel in the
heat of argument.’’ (Internal quotation marks omitted.)
State v. Patterson, 170 Conn. App. 768, 794, 156 A.3d
66, cert. denied, 325 Conn. 910, 158 A.3d 320 (2017).
Here, the prosecutor’s comments were based on rea-
sonable inferences from facts in evidence and did not
invite the jury to decide the case on the basis of sympa-
thy for Rodriguez and Tucker. The prosecutor utilized
his opportunity in closing arguments to explain the
motivations of Rodriguez and Tucker for approaching
the defendant and further argued that the defendant
was the initial aggressor. Accordingly, we conclude that
the prosecutor’s comments referring to the victims as
‘‘good Samaritans’’ were not improper.
D
The defendant’s final claim is that on three occasions
the prosecutor made arguments that were based on
facts not in evidence to suggest that the defendant
stabbed Tucker. We do not agree.
Before turning to a discussion of each of the alleged
improprieties, we first set forth the applicable law.
‘‘[T]he prosecutor has a heightened duty to avoid argu-
ment that strays from the evidence or diverts the jury’s
attention from the facts of the case. [The prosecutor]
is not only an officer of the court, like every attorney,
but is also a high public officer, representing the people
of the [s]tate, who seek[s] impartial justice for the guilty
as much as for the innocent. . . . By reason of his
office, he usually exercises great influence [over] jurors.
His conduct and language in the trial of cases in which
human life or liberty [is] at stake should be forceful, but
fair, because he represents the public interest, which
demands no victim and asks no conviction through the
aid of passion, prejudice, or resentment. If the accused
[is] guilty, he should [nonetheless] be convicted only
after a fair trial, conducted strictly according to the
sound and well-established rules [that] the laws pre-
scribe. While the privilege of counsel in addressing the
jury should not be too closely narrowed or unduly ham-
pered, it must never be used as a license to state, or
to comment [on], or to suggest an inference from, facts
not in evidence, or to present matters [that] the jury
ha[s] no right to consider.’’ (Internal quotation marks
omitted.) State v. James E., supra, 154 Conn. App. 817.
‘‘In fulfilling his duties, a prosecutor must confine
the arguments to the evidence in the record. . . . State-
ments as to facts that have not been proven amount to
unsworn testimony that is not the subject of proper
closing argument. . . . Moreover, when a prosecutor
suggests a fact not in evidence, there is a risk that
the jury may conclude that he or she has independent
knowledge of facts that could not be presented to the
jury.’’ (Internal quotation marks omitted.) State v. Pat-
terson, supra, 170 Conn. App. 789.
1
The defendant first contends that, during closing
argument, the prosecutor improperly argued that two
witnesses, Mendez and Adames, saw the defendant stab
Tucker, but the facts in evidence did not support that
statement. Specifically, the prosecutor argued: ‘‘[Men-
dez]: Eliezer started giving her a hard time. A lot of the
women that were in that group say it was Eliezer that
started first to be aggressive, verbally. [The defendant]
mushed her in the face and had her in a headlock. [The
defendant] struck [Medina] and she was two feet away.
She signed three statements that night, indicating that
[the defendant] stabbed [Tucker]. She can confirm that
[the defendant] stabbed [Tucker]. You can listen to the
testimony of witnesses; her testimony was short, give
a listen to her testimony if you so desire. It was very
crisp and, sort of, very confidently stated about what
she knows.
‘‘[Adames]: It started with Eliezer and [Mendez]. She
was present at the scene. She knows [Tucker] and [the
defendant], signed three statements that very night
identifying [the defendant] as the person who . . .
stabbed [Tucker], that very night. . . .
‘‘In court, she said she did not see the stabbing; how-
ever, she’s right there. She would know what occurred.
These girls know what occurred here.’’
Additionally, on rebuttal, the prosecutor read from
Adames’ testimony and stated: ‘‘So, there is some evi-
dence, in which you can infer that [the defendant]
stabbed [Tucker].’’
The defendant argues that this argument was
improper because there was no evidence in the record
about the content of Mendez’ three signed statements
and no evidence that Mendez saw the defendant stab
Tucker. Further, the defendant argues that the prosecu-
tor improperly argued that Adames knew what hap-
pened, when she explicitly denied seeing anything. In
response, the state argues that the prosecutor properly
summarized the testimony of each witness. The state
further argues that the prosecutor presented fair infer-
ences that could be drawn from Adames and Men-
dez’ testimony.
We look to the testimony to determine whether the
prosecutor properly referred to facts in evidence. At
trial, Mendez testified that she provided three signed
statements to the police in which she described what
she observed on the night of the altercation.17 Mendez
also provided the following testimony about what she
saw when the defendant and Tucker interacted during
the fight: ‘‘I saw quick contact, I’m not able to say that
I saw the knife in [the defendant’s] hand, but I did see,
like, because we were, like, two feet away from each
other, and then [Tucker] picked up his pants to, like,
square up to fight, and [the defendant] came quick (dem-
onstrating), boom, but I didn’t see anything in his hand
because it was so fast. . . . I don’t think he really felt
it, until afterward and that’s when he said, sis, I think,
he’s stabbing me, and then I picked up his sweater and
then I saw the blood . . . .’’ When asked if she saw
the defendant with a knife, Mendez responded, ‘‘I didn’t
see him with it in his hand, but I can confirm that it
was for sure him that stabbed [Tucker] because I was
two feet away from him and when I saw this fast move-
ment, that’s approximately two minutes later, [Tucker]
told me that he got stabbed.’’
Adames also testified that she had given three state-
ments to the police. Adames acknowledged that in all
three of her statements she indicated that the defendant
stabbed Tucker. On cross-examination, Adames testi-
fied that she did not see the defendant stab Tucker.18
When the prosecutor inquired on redirect if it was still
her position that the defendant stabbed Tucker, she
replied, ‘‘[y]eah.’’
A review of the record plainly shows that the prosecu-
tor did not comment on, or suggest an inference from,
facts not in evidence, or present matters that the jury
had no right to consider. Accordingly, the defendant
has failed to establish that the prosecutor’s comments
were improper.
2
The defendant contends that the prosecutor argued
facts not in evidence when he stated: ‘‘Junito’s brother
is Joesenier.’’ The state argues that the comment was
made in the context of making an inference drawn from
other evidence. We agree with the state.
The prosecutor argued in closing argument: ‘‘Liybin
Fernandez, Liybin’s a tricky witness . . . . Both broth-
ers had knives. Knives were retrieved from the motor
vehicle. There’s the Junito issue. Listen to the testimony
again from Liybin, if you so desire, and ask yourself:
did he just get the name inverted? . . . Eliezer, Junito,
remember, three of the girls say Eliezer was arguing,
they all say Eliezer started the verbal argument. Well,
if Eliezer is Junito, it would be accurate for Liybin to
say, well, yeah, Eliezer was arguing with the girls. Who
stabbed the black individual, he was asked that ques-
tion, he said, Junito’s brother. Junito’s brother stabbed
the black individual, Junito’s brother is Joesenier. . . .
So, you may want to relisten to his testimony again.’’
On the basis of our review of the record, there is
evidence that could give rise to a reasonable inference
that Junito’s brother is Joesenier. During Fernandez’
testimony, he was asked if Junito was in the courtroom.
In response, Fernandez stated, ‘‘[t]hat guy looks like
him,’’ and identified the defendant. Fernandez also testi-
fied, after refreshing his recollection with his prior
statement, that ‘‘Junito’s brother’’ stabbed Tucker.
Although there is conflicting evidence that Eliezer
was also nicknamed Junito,19 because there is sufficient
evidence in the record that could give rise to a reason-
able inference that Junito is Eliezer and that, therefore,
Junito’s brother is the defendant, the prosecutor’s state-
ment in his closing argument was proper.
3
The defendant last argues that the prosecutor
referred to facts not in evidence when discussing the
testimony of two police officers who witnessed the fight
and called 911. During rebuttal, the prosecutor stated,
‘‘[y]ou know, the indication was that we can rely on
the testimony of the trained police officers that saw it.
I would argue to you that those trained police officers
did not believe that this was a self-defense situation.’’
The defense objected to this portion of the state’s clos-
ing argument, and the court issued a curative instruc-
tion. The state does not contest that the statement was
improper, but argues that there is no prejudice from
this comment because the defense objected to this por-
tion of the state’s closing argument and, after consulting
with both parties, the trial court issued a curative
instruction.
Even if we assume arguendo that the prosecutor’s
argument was improper, it is the defendant’s burden to
establish that the impropriety violated his due process
right to a fair trial.20 See State v. Jones, 320 Conn. 22,
37, 128 A.3d 431 (2015) (‘‘when a defendant raises on
appeal a claim that improper remarks by the prosecutor
deprived [him] of his constitutional right to a fair trial,
the burden is on the defendant to show, not only that
the remarks were improper, but also that, considered
in light of the whole trial, the improprieties were so
egregious that they amounted to a denial of due pro-
cess’’ [internal quotation marks omitted]). As our
Supreme Court has articulated, the ‘‘determination of
whether any improper conduct by the state’s attorney
violated the defendant’s fair trial rights is predicated
on the factors set forth in State v. Williams, [supra,
204 Conn. 540], with due consideration of whether that
[impropriety] was objected to at trial. . . . These fac-
tors include the extent to which the [impropriety] was
invited by defense 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 the curative measures adopted,
and the strength of the state’s case.’’ (Citation omitted;
internal quotation marks omitted.) State v. Grant, 286
Conn. 499, 536–37, 944 A.2d 947, cert. denied, 555 U.S.
916, 129 S. Ct. 271, 172 L. Ed. 2d 200 (2008).
In applying the Williams factors, we determine
whether the claimed impropriety, the prosecutor’s
statement that the trained police officers ‘‘did not
believe that this was a self-defense situation,’’ violated
the defendant’s right to a fair trial. On the one hand,
there is no indication in the record that the claimed
impropriety was invited by either defense counsel or
his argument, and the statement directly implicates the
issue of self-defense. On the other hand, in light of the
remaining Williams factors, the defendant’s claim must
fail. The alleged impropriety occurred during only one
portion of the prosecutor’s rebuttal and cannot be char-
acterized as frequent. Upon objection by defense coun-
sel, most notably, the court promptly issued a
cautionary instruction, which specifically identified the
prosecutor’s remarks about the police officers’ beliefs
and stated that there was no evidence to that effect.21
It is well established that ‘‘a prompt cautionary instruc-
tion to the jury regarding improper prosecutorial
remarks obviates any possible harm to the defendant.’’
State v. Ubaldi, 190 Conn. 559, 563, 462 A.2d 1001, cert.
denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259
(1983). ‘‘In the absence of a showing that the jury failed
or declined to follow the court’s instructions, we pre-
sume that it heeded them.’’ (Internal quotation marks
omitted.) State v. Santiago, 269 Conn. 726, 762, 850
A.2d 199 (2004). The curative instructions make it
unlikely that the prosecutor’s comments were so preju-
dicial as to affect the outcome of the trial. Furthermore,
pursuant to the final Williams factor, the state’s case
against the defendant was strong, including the testi-
mony of several eyewitnesses describing the assault,
and the defendant’s statement to the police admitting
that he stabbed someone and that he was present at the
time of the stabbing. In addition, the evidence included
a video of the fight in the parking lot in which several
eyewitnesses identified the defendant.
Upon consideration of the Williams factors, we con-
clude that the court’s instructions were sufficient to
cure any harm to the defendant and, accordingly, that
the defendant has failed to establish that the improper
comment deprived him of a fair trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant was also charged with and found not guilty of an additional
count of attempted murder in violation of § 53a-54, and he was convicted
of an additional count of conspiracy to commit first degree assault in viola-
tion of §§ 53a-59 (a) (1) and 53a-48 that was vacated by the trial court.
2
The defendant was sentenced to a term of sixteen years of imprisonment
on count one to be served concurrently with counts two through four. As
to count six, the defendant was sentenced to six years to serve and five
years of special parole, concurrent with count seven and consecutive to
counts one through four. The total effective sentence is twenty-two years
to serve, followed by five years of special parole.
3
Count two alleged that the defendant, ‘‘with the intent to cause serious
physical injury to another person or to a third person by means of a danger-
ous instrument, to wit: a knife, caused such injury to Luis Rodriguez. This
crime occurred on December 1, 2012 at approximately 2:17 a.m. in the
vicinity of 45 North Street, Danbury, CT in violation of [§] 53a-59 (a) (1).’’
Count three alleged that the defendant, ‘‘acting with the mental state
required for the offense charged, did solicit or request or command or
intentionally aid another person or persons in the assault upon Luis Rodri-
guez and that during the commission of said assault, Luis Rodriguez suffered
serious physical injury with a dangerous instrument, to wit: a knife. This
crime occurred on December 1, 2012 at approximately 2:17 a.m. in the
vicinity of 45 North Street, Danbury, CT in violation of [§] 53a-8 and § 53a-
59 (a) (1).’’
4
Count six alleged that the defendant, ‘‘with the intent to cause serious
physical injury to another person or to a third person by means of a danger-
ous instrument, to wit: a knife, caused such injury to Kenneth Tucker. This
crime occurred on December 1, 2012 at approximately 2:17 a.m. in the
vicinity of 45 North Street, Danbury, CT in violation of [§] 53a-59 (a) (1).’’
Count seven alleged that the defendant, ‘‘acting with the mental state
required for the offense charged, did solicit or request or command or
intentionally aid another person or persons in the assault upon Kenneth
Tucker and that during the commission of said assault, Kenneth Tucker
suffered serious physical injury with a dangerous instrument, to wit: a knife.
This crime occurred on December 1, 2012 at approximately 2:17 a.m. in the
vicinity of 45 North Street, Danbury, CT in violation of [§] 53a-8 and § 53a-
59 (a) (1).’’
5
Although our state constitution does not include a similar double jeop-
ardy provision, our Supreme Court has held that the due process guarantees
found in article first, § 8, of the Connecticut constitution embody the protec-
tion afforded under the federal constitution. See State v. Michael J., 274
Conn. 321, 350–51, 875 A.2d 510 (2005).
6
We reiterate that the defendant has not argued that there was insufficient
evidence to conclude that he acted as an accessory, and, therefore, it is
unnecessary for us to marshal all of the evidence that would support the
jury’s finding of accessorial liability in this case. Furthermore, our resolution
of this matter should not be interpreted as holding that the defendant’s own
act of stabbing Rodriguez would, without more, be sufficient to demonstrate
an intention to aid, thereby warranting accessorial liability. Rather, it was
the totality of the defendant’s actions, including helping to arm Eliezer and
his active participation in the brawl, that demonstrate his intent to aid.
7
As we noted in part I A of this opinion, the state’s theory of the case
comports with a finding of two separate and distinct charges of assault in
the first degree.
8
General Statutes § 53a-54a (a), defining murder, provides in relevant
part: ‘‘A person is guilty of murder when, with intent to cause the death of
another person, he causes the death of such person . . . .’’
General Statutes § 53a-49 (a), defining criminal attempt, provides: ‘‘A
person is guilty of an attempt to commit a crime if, acting with the kind of
mental state required for commission of the crime, he: (1) Intentionally
engages in conduct which would constitute the crime if attendant circum-
stances were as he believes them to be; or (2) intentionally does or omits
to do anything which, under the circumstances as he believes them to be,
is an act or omission constituting a substantial step in a course of conduct
planned to culminate in his commission of the crime.’’
9
General Statutes § 53a-3 (11) provides: ‘‘A person acts ‘intentionally’ with
respect to a result or to conduct described by a statute defining an offense
when his conscious objective is to cause such result or to engage in such
conduct . . . .’’
10
The defendant claims that the trial court erred by failing to include the
following language from the Connecticut Criminal Jury Instructions: ‘‘To
be a substantial step, the conduct must be strongly corroborative of the
defendant’s criminal purpose. The act or acts must constitute more than
mere preparation. The defendant’s conduct must be at least the start of a
line of conduct that will lead naturally to the commission of a crime. In
other words, it must appear to the defendant that it was at least possible
that the crime could be committed if (he/she) continued on (his/her) course
of conduct.’’ (Footnote omitted.) Connecticut Judicial Branch Criminal Jury
Instructions 3.2-2, Attempt—§ 53a-49 (a) (2) (element 2) (revised to Decem-
ber 1, 2007), available at https://www.jud.ct.gov/ji/Criminal/Criminal.pdf
(last visited September 20, 2018).
11
As previously stated, the court instructed the jury that ‘‘there is in each
count an element which requires you to find that the state has proven beyond
a reasonable doubt that the . . . defendant had the specific intent to do
the thing charged.’’
12
The defendant also claims that the court’s instructions in response to
a jury question about third-party culpability also contributed to the court’s
error. On the second day of deliberations, the jury had a question on the
third-party culpability instructions, and the court discussed with counsel a
proposed instruction in response to the question. The court, the state, and
defense counsel collaborated and agreed on an appropriate instruction to
answer the jury’s question. After discussing the instruction off the record,
the court went back on the record to state the complete proposed instruction.
The defendant and the state assented to the proposed instruction. We reject
the defendant’s argument, as it has no merit.
13
As we stated in part II of this opinion, to the extent that the defendant
claims the cumulative effect of the instructional improprieties constituted
plain error, we reject such an argument. See State v. Tillman supra, 220
Conn. 505.
14
Our Supreme Court in State v. Hall, 213 Conn. 579, 589, 569 A.2d 534
(1990), determined that a defendant was entitled to a jury instruction on
self-defense for the lesser included offense of manslaughter in the second
degree. There, the trial court had instructed the jury that the defense of
self-defense was applicable to only murder and intentional manslaughter in
the first degree. Id., 583–84. Our Supreme Court held, however, that even
though the trial court failed to give the self-defense instruction for man-
slaughter in the second degree, it was not reasonably possible that the jury
was misled and stated that ‘‘the jury’s verdict of guilty on the offense of
manslaughter in the first degree was necessarily a rejection of the defense
of self-defense. Since the elements of self-defense as applied to manslaughter
in the second degree would have been the same as those applied to man-
slaughter in the first degree, the defendant would not have benefited by an
instruction that the defense was applicable to manslaughter in the second
degree.’’ Id., 589.
15
The defendant cites State v. Singleton, 292 Conn. 734, 763, 974 A.2d 679
(2009), for the proposition that he could not be the initial aggressor by his
act of hitting Medina. In Singleton, our Supreme Court concluded that ‘‘the
trial court’s instructions that ‘[t]he initial aggressor is the person who first
acts in such a manner that creates a reasonable belief in another person’s
mind that physical force is about to be used upon that other person’ and
that ‘[t]he first person to use physical force is not necessarily the initial
aggressor’ were entirely consistent with the law and thus were proper.’’ Id.
Our Supreme Court’s holding in Singleton did not restrict the prosecutor
in the present case from arguing that the defendant was the initial aggressor.
16
The court instructed the jury with respect to initial aggressor as follows:
‘‘Another circumstance in which a person is not justified in using any degree
of physical force in . . . self-defense against another is when he is the
initial aggressor in the encounter with the other person and does not both
withdraw from the encounter and effectively communicate his intent to do
so, before using the physical force at issue in this case.’’
17
The following colloquy occurred between Mendez and the prosecutor:
‘‘[Mendez]: . . . Um, so we, like, everybody was, like, trying to separate
the fight and then, I guess, that’s when [Tucker], like, he was preparing
himself to fight, because he was going to defend [Medina]. And at that
moment, I saw a quick movement, between [Tucker] and [the defendant],
I wasn’t too sure and then [Tucker] told me that he got stabbed. . . .
‘‘[The Prosecutor]: Okay. How far away were you from [Tucker] when
that happened?
‘‘[Mendez]: Maybe, like, two feet away.
‘‘[The Prosecutor]: And, did you indicate that in all of your statements,
that you saw that?
‘‘[Mendez]: Yes, sir.’’
18
The following colloquy occurred between Adames and defense counsel:
‘‘[Defense Counsel]: Okay. But you didn’t actually see [Tucker] get stabbed,
did you?
‘‘[Adames]: No, I didn’t see him get stabbed.’’
19
Contrary to Fernandez’ testimony, the defendant’s father, Eliezer Ruiz,
Sr., testified that his son, Eliezer, had a nickname of Junito.
20
Absent this final claim of the prosecutor’s improper reference to facts
not in evidence, namely, the fact that the police officers did not believe this
was a self-defense situation, all of the prosecutor’s comments were proper.
The due process analysis need not consider the comments which we have
already determined were proper. See State v. Luster, 279 Conn. 414, 442,
902 A.2d 636 (2006).
21
The court issued the following cautionary instruction: ‘‘Before I start,
however, you heard the final arguments of counsel, and I had advised you
earlier on that that’s not evidence and that insofar as any inferences counsel
requests you to draw, they must be based on the evidence that you’ve heard.
. . . So, for example, [the prosecutor] indicated [his] opinion that he could
argue to you that the police officers didn’t believe this was a self-defense
issue. There was no evidence as to what the officers believed, as far as that
particular issue is concerned. It may be that if you were to hear the whole
of the evidence, you could draw the inference, but it is not for counsel to
draw that for you.
‘‘So, with that having been said, please, understand the limitations on
final argument; it’s not evidence, it should not include the opinions of the
attorneys, and it should . . . only be based on evidence, and you are the
finders of fact and the only finders of fact, in this case.’’