State v. Place ( 2014 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. MICHAEL
ROBERT PLACE
(AC 34113)
DiPentima, C. J., and Alvord and Harper, Js.
Argued May 19—officially released September 30, 2014
(Appeal from Superior Court, judicial district of
Windham, geographical area number eleven, Swords, J.)
Allison M. Near, assigned counsel, for the appel-
lant (defendant).
Nancy L. Walker, special deputy assistant state’s
attorney, with whom, on the brief, were Patricia M.
Froehlich, state’s attorney, and Matthew A. Crockett,
assistant state’s attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Michael Robert
Place, appeals from two separate judgments of convic-
tion arising out of two robberies, one committed at an
Xtra Mart convenience store in Putnam on July 17, 2008,
and the other at a branch office of Putnam Bank on
May 10, 2008. In docket number CR-08-0135945 (Xtra
Mart case), the defendant appeals from the judgment
of conviction, rendered after a jury trial, of robbery in
the first degree in violation of General Statutes § 53a-
134 (a) (3) and larceny in the sixth degree in violation
of General Statutes § 53a-125b. He claims that the trial
court erred in refusing him the opportunity to display
his tattoos to the jury without being subject to cross-
examination by the state, in violation of his right to due
process and a fair trial.
The defendant also appeals from the judgment of
conviction in docket number CR-09-137439 (Putnam
Bank case), rendered after a jury trial, of larceny in the
second degree in violation of General Statutes § 53a-
123 and robbery in the second degree in violation of
General Statutes § 53a-135 (a) (2). With respect to that
judgment of conviction, the defendant claims that (1)
the court erred in failing to admit into evidence a photo-
graphic array depicting someone who resembled the
perpetrator, but who did not resemble the defendant,
(2) the court improperly denied his motion to strike
certain testimony from the state’s witness, Dr. Angela
Przech, a state forensic science examiner, who stated
that the defendant had a prior conviction in Massachu-
setts, and (3) the prosecutor engaged in impropriety by
eliciting testimony about the defendant’s prior convic-
tion in contravention of the court’s pretrial orders. We
affirm the judgments of the trial court.
The following procedural history is relevant to both
appeals. The cases were tried separately, with the court,
Swords, J., presiding over both jury trials. In the Xtra
Mart case, the jury found the defendant guilty of robbery
in the first degree and larceny in the sixth degree. A
different jury found the defendant guilty in the Putnam
Bank case of larceny in the second degree and robbery
in the second degree. It acquitted him of robbery in the
first degree. On June 10, 2011, the court sentenced the
defendant on both verdicts. In the Xtra Mart case, the
court sentenced the defendant to twenty years incarcer-
ation on robbery in the first degree, which the court
merged with the lesser included offense of larceny in
the sixth degree. In the Putnam Bank case, the court
sentenced the defendant to twenty years incarceration.
The defendant received a total effective term of thirty
years incarceration. This appeal followed.1
I
XTRA MART CASE
The jury reasonably could have found the following
facts. Daniel Hartman, the third shift night clerk at the
Xtra Mart convenience store in Putnam, was working
on July 17, 2008. At 1:20 a.m., he was in the bathroom
gathering materials to mop the floor. When he heard
someone enter the store, he left the bathroom and saw
a Caucasian ‘‘[s]ix foot male, [with] dark hair, roughly
a hundred and sixty to a hundred and seventy-five
pounds, wearing gym shorts, [and] a T-shirt . . . .
[T]he rest of his face was covered . . . [by] a T-shirt
kind of turbaned around . . . his head and his face.’’2
Almost immediately upon entering, however, the defen-
dant told Hartman that ‘‘this is a . . . robbery.’’ He
demanded money and when Hartman told the defendant
the money was in the cash register, he forced Hartman,
with a knife pressed against the back of his neck, to
retrieve the money. Within minutes, the defendant left
with approximately one hundred and twenty-five dol-
lars. Hartman then called the police, and the defendant
was later arrested in connection with the crime.
In his testimony, Hartman did not describe the perpe-
trator as having any tattoos.3 In addition, the lack of
clarity in the state’s surveillance video made it such
that any tattoos on the perpetrator were not readily
visible. It is undisputed that the defendant has two
tattoos, one on his upper right arm and one between
his thumb and forefinger on his left hand. The state
entered into evidence photographs of those tattoos
taken the day after the robbery.
At trial, the defendant wanted to emphasize the fact
that, although he had visible tattoos on the day of the
robbery, Hartman did not mention any tattoos in his
description of the perpetrator. Defense counsel there-
fore informed the court that the defendant intended to
display his tattoos to the jury, without testifying.4 He
argued that this was proper because the defendant
would be exhibiting a static bodily condition and there-
fore he need not be put under oath or be subject to
cross-examination by the state. The state objected,
arguing: ‘‘It has been approximately two and [a] half
years since this incident. The defendant has had the
opportunity to alter or change the tattoo that he wants
to display. . . . I would expect to ask him questions
about whether he has altered it, what opportunities he’s
had to alter it, whether it has changed at all naturally.’’
After hearing both arguments and considering the
nature of tattoos, their ability to be altered, and the
length of time that had elapsed since the robbery, the
court held: ‘‘[T]he state is legitimately entitled to ask
him about the tattoos and its appearance today, and
question him about any alterations between the time
of the robbery and today, which is approximately two
and [a] half years. . . . [T]he defendant would need to
be under oath, and those questions and the answers
to those questions call into question the defendant’s
credibility. So, if the defendant did get on the [witness]
stand, did display the tattoo, and the state chose to
cross-examine him, then the state would also be permit-
ted to use the robbery convictions5 to impeach his credi-
bility.’’ (Footnote added.) On the basis of this ruling, the
defendant chose not to display his tattoos and therefore
was not subject to cross-examination by the state. The
jury thereafter found the defendant guilty of robbery
in the first degree and larceny in the sixth degree. This
appeal followed.
The defendant claims that the court’s ruling, requiring
that he subject himself to cross-examination if he chose
to display his tattoo to the jury, deprived him of his
rights to due process and a fair trial.6 We conclude that
this constitutional claim must fail because the court
properly precluded the defendant from displaying the
tattoos to the jury in accordance with the rules of evi-
dence. State v. Annulli, 309 Conn. 482, 490, 71 A.3d 530
(2013); see also State v. Davis, 298 Conn. 1, 10, 1 A.3d
76 (2010); State v. Winot, 294 Conn. 753, 775–76, 988
A.2d 188 (2010).
‘‘In determining the relevancy and admissibility of
evidence, trial courts have broad discretion. . . . Our
standard of review of an evidentiary ruling is dependent
on whether the claim is of constitutional magnitude. If
the claim is of constitutional magnitude, the state has
the burden of proving the constitutional error was harm-
less beyond a reasonable doubt. . . . Otherwise, in
order to establish reversible error on an evidentiary
impropriety, the defendant must prove both an abuse
of discretion and a harm that resulted from such abuse.’’
(Citations omitted; internal quotation marks omitted.)
State v. Swinton, 268 Conn. 781, 797–98, 847 A.2d
921 (2004).
The defendant and the state disagree as to whether
this claim is one of constitutional magnitude. The defen-
dant states that ‘‘[s]ince the trial court would have only
permitted the defendant to testify at the cost of relin-
quishing his fifth amendment right not to testify, this
claim is of a constitutional magnitude.’’ He supports
his argument by citing State v. Asherman, 193 Conn.
695, 712–13, 478 A.2d 227 (1984), cert. denied, 470 U.S.
1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985), for the
proposition that the state may compel a defendant to
display a particular physical characteristic without vio-
lating the defendant’s right against self-incrimination.
He then compares that situation to the present, arguing
that the defendant has the same right to display a physi-
cal characteristic without being subject to cross-exami-
nation. He concludes that the court erred in denying
him such right, stating that the ‘‘court’s insistence that
[he] subject himself to cross-examination if he chose
to display his tattoos contravened well settled law and
deprived [him] of due process and a fair trial.’’
The state, however, argues that it ‘‘has found no Con-
necticut or United States Supreme Court decisions hold-
ing that a defendant is constitutionally entitled to
exhibit bodily conditions without following the rules
of evidence . . . . [E]ven the cases the defendant cites
hold that a defendant must lay a proper evidentiary
foundation before displaying tattoos or other physical
characteristics.’’7 We agree with the state. There is no
established constitutional right to display a bodily con-
dition without first laying a proper foundation. The
defendant, therefore, has the burden of proving that
the court abused its discretion in its evidentiary ruling
and that it resulted in harm.
In attempting to carry this burden, the defendant
claims that because the state put into evidence photo-
graphs of his tattoos, a proper evidentiary foundation
was laid to display them to the jury. To the contrary,
the state argues that the defendant failed to present
evidence from any source that the tattoos on his body
looked substantially the same as they did on the night
of the robbery, two and one-half years earlier. Thus,
according to the state, the court properly ruled that
the defendant could not display his tattoos to the jury
without laying a proper foundation. We agree with
the state.
‘‘An object connected with the commission of a crime
must be shown to be in substantially the same condition
as when the crime was committed before it can be
properly admitted into evidence. . . . The court has
broad discretion on this evidentiary issue, and its ruling
may not be overturned on appellate review except for
a clear abuse of discretion. . . . The [party offering
the evidence has the] burden . . . [of] showing that it
is reasonably probable that the substance has not been
changed in important respects . . . . The court must
consider the nature of the article, the circumstances
surrounding its preservation and custody and the likeli-
hood of intermeddlers tampering with it.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Green, 55 Conn. App. 706, 713, 740 A.2d 450 (1999),
cert. denied, 252 Conn. 920, 744 A.2d 438, cert. denied,
529 U.S. 1136, 120 S. Ct. 2019, 146 L. Ed. 2d 966 (2000).
The defendant claims that a proper foundation was
laid for him to make a display to the jury because
(1) the photographs the state entered into evidence
depicted his tattoos the day after the robbery, and (2)
Hartman did not testify that the perpetrator had any
tattoos despite the fact that he ‘‘raised his right hand
to bring the knife to . . . Hartman’s face, which would
have exposed the prominent tattoo on [his] right arm.’’
He is mistaken. The defendant is required to show that
it is reasonably probable that the substance of his tat-
toos had not been changed in important respects.8 He
failed to present any evidence that these tattoos had
not been altered in the two and one-half years since the
robbery, and therefore failed to meet the foundational
requirements necessary for admitting such evidence.9
Accordingly, the court did not err in holding that the
defendant could not take the witness stand to display
his tattoos without being subject to cross-examination
by the state.
II
PUTNAM BANK CASE
We now turn our attention to the defendant’s appeal
in the Putnam Bank case. The jury reasonably could
have found the following facts. At about 4 p.m. on May
10, 2008, the defendant entered a Price Chopper super-
market in Putnam. Upon entering, the defendant walked
past the checkout area and headed toward the Putnam
Bank that was within the supermarket. He handed the
bank teller, Beth Girard, a note demanding cash. Girard
gave the defendant $200 ‘‘bait money’’ she was trained
to do in the event of a robbery. The defendant, unsatis-
fied with the amount of money he received, stated, ‘‘this
is not a . . . joke,’’ and demanded more money, this
time visibly showing a box cutter, wrapped in a tissue,
that he held in his hand. Girard complied with the defen-
dant’s demand, and he left with approximately $2500
in cash. He left behind the demand note and the tissue,
however, and these items were later sent to the state
forensic laboratory.
After the state presented its evidence and the defense
rested, the jury found the defendant guilty of larceny
in the second degree and robbery in the second degree.
This appeal followed.
A
The defendant first argues that the court erred when
it failed to admit into evidence a photographic array
depicting someone who resembled the perpetrator, but
who the defendant argues did not resemble him. Assum-
ing that there was error, we conclude that it was harm-
less beyond a reasonable doubt.
The following additional facts are relevant to our
review of the defendant’s claim. At trial, Girard testified
to a description of the perpetrator, explaining that he
was a white male with an average build and brown hair,
wearing a red sweatshirt and a green Boston Red Sox
hat. She also testified on cross-examination that, a few
weeks after the robbery, the police showed her a photo-
graphic array. She could not identify any one person
as the perpetrator, but testified that she ‘‘was trying to
give [the police] a better idea of what . . . his face
looked like. [She] said one looked like the eyes of the
robber [and] one had the facial feature.’’ During Girard’s
testimony, the defendant asked the court to admit the
photographic array as a full exhibit. The state objected
to that admission, arguing that the photographic array
was not relevant because Girard did not identify a par-
ticular person as the robber but identified a man with
facial features similar to those of the perpetrator.
Defense counsel responded that the photographic array
was relevant ‘‘to who [Girard] picked out as potentially
being the robber, [the] type of face.’’ After arguments,
the court held that the photographic array was not
relevant because it was ‘‘not a positive [identification]
with respect to that individual as the perpetrator.’’
The standard with regard to evidentiary claims is
well settled. ‘‘The trial court has wide discretion to
determine the relevancy of evidence . . . . Thus, [w]e
will make every reasonable presumption in favor of
upholding the trial court’s ruling[s] [on these bases]
. . . . In determining whether there has been an abuse
of discretion, the ultimate issue is whether the court
. . . reasonably [could have] conclude[d] as it did.’’
(Citations omitted; internal quotation marks omitted.)
State v. Davis, 298 Conn. 1, 11, 1 A.3d 76 (2010).
In the present case, we need not discuss whether the
court abused its discretion in declining to admit the
photographic array into evidence because any such
error was harmless. The defendant claims that the
court’s failure to admit the photographic array resulted
in a deprivation of his constitutional right to a fair trial
because if the ‘‘jury had before it a photograph of an
individual who resembled the perpetrator, and that indi-
vidual bore no resemblance to the defendant, it could
have had a significant impact on its verdict.’’ Assuming,
without deciding, that his constitutional claim has
merit, we must determine whether that error was
harmless.
‘‘[T]he test for determining whether a constitutional
[error] is harmless . . . is whether it appears beyond
a reasonable doubt that the [error] complained of did
not contribute to the verdict obtained. . . . In addition,
[w]hen an [evidentiary] impropriety is of constitutional
proportions, the state bears the burden of proving that
the error was harmless beyond a reasonable doubt.
. . . [W]e must examine the impact of the evidence on
the trier of fact and the result of the trial. . . . If the
evidence may have had a tendency to influence the
judgment of the jury, it cannot be considered harmless.
. . . That determination must be made in light of the
entire record [including the strength of the state’s case
without the evidence admitted in error].’’ (Citations
omitted; internal quotation marks omitted.) State v. Wil-
son, 308 Conn. 412, 420–21, 64 A.3d 91 (2013).
After reviewing the record, we conclude beyond a
reasonable doubt that the error complained of did not
contribute to the verdict obtained and was therefore
harmless. Despite the exclusion of the photographic
array, the defendant elicited testimony to support his
misidentification defense from Girard and Kimberly
Bettencourt, the head teller who was working with
Girard and witnessed the robbery. Girard admitted that
she had given varying descriptions of the perpetrator,
and Bettencourt testified to a description of the perpe-
trator that conflicted with the defendant’s actual age
and some facial features. Excluding the photographic
array, therefore, did not bar the defendant from pre-
senting his defense theory. In fact, it was cumulative
of other evidence of misidentification.
Furthermore, the record contains overwhelming evi-
dence that it was the defendant who robbed Putnam
Bank on May 10, 2008. As set forth in more detail in
part II B of this opinion, the defendant could not be
excluded as a contributor to the DNA found on the
tissue that was left behind at the bank. Additionally,
still shots from the surveillance footage from the bank
were admitted into evidence, which gave the jury the
opportunity to compare the perpetrator’s features to
that of the defendant. Other evidence included the
demand note the perpetrator left behind at the bank,
which had his palm print on it. The demand note was
tested by John Pleckaitis, latent print examiner at the
Department of Public Safety’s division of scientific ser-
vices forensic science laboratory. The demand note had
more than thirty characteristics matching those of the
defendant, and Pleckaitis therefore concluded that ‘‘the
two impressions originated from the same source.’’
Last, Dan Simonelli, an acquaintance of the defendant’s,
testified that the defendant came to his apartment on
the day of the robbery in an attempt to buy drugs from
a neighbor, but he was unable to do so because he did
not have any money. He further testified that about
fifteen or twenty minutes later, the defendant came
back to his apartment with ‘‘a bunch of money,’’ claim-
ing that he ‘‘just cashed his tax return.’’
In reviewing this evidence, we conclude that if the
court erred in declining to admit the photographic array
into evidence, that error was harmless beyond a reason-
able doubt. The defendant’s constitutional claim thus
fails.
B
The defendant next argues that the court erred in
denying his motion to strike allegedly prejudicial testi-
mony from Przech, which he claims deprived him of a
fair trial. We disagree.
The following facts are relevant to the resolution of
this claim as well as the defendant’s subsequent claim of
prosecutorial impropriety. Prior to trial, the defendant
filed a motion in limine to preclude the state from men-
tioning that he was on probation. The court granted the
motion and instructed the state to inform its witnesses
‘‘that there shouldn’t be any gratuitous mention of the
defendant being on probation.’’
During trial, the state called Przech, a forensic sci-
ence examiner at the state forensic laboratory. Przech
testified during direct examination that her laboratory
was responsible for determining the DNA composition
on the tissue that the perpetrator held during the rob-
bery and that was left behind at the bank. From that
testing, a DNA profile was developed. Przech testified
that the DNA profile contained the DNA of two or more
people. She then compared the profile to the defen-
dant’s DNA, where she found that the defendant ‘‘could
not be eliminated as a contributor to the DNA profile,’’
meaning that ‘‘there’s not enough information to com-
pletely include . . . [his] DNA profile in that profile,
but there’s not enough information there . . . to elimi-
nate [him]. So, there’s genetic information that’s there,
but not all of it.’’ Specifically, she testified that ‘‘[t]he
expected frequency of individuals who could not be
eliminated as a contributor to that profile is less than
one in seven billion in the African-American population,
is approximately one in 900 million in the Caucasian
population, and approximately one in one billion in the
Hispanic population,’’ which means that there is an
extremely small number of individuals who could not
be eliminated from the profile.
On cross-examination, defense counsel probed
Przech on issues beyond the DNA profile. He asked
about her search in the state’s database of DNA profiles
of forensic samples and samples from convicted per-
sons, CODIS, and which alleles10 are used in that search.
Przech testified that not every allele that is observed
is entered into the database but, rather, she enters only
those she determines would have investigative informa-
tion. Defense counsel continued this line of questioning
in an attempt to show that the process was subjective.
Przech responded, however, that ‘‘our protocol and pro-
cedure is to put a profile into our database; a second
person looks at it and agrees with the entry, and if those
two people can’t come to an agreement, it would go to
the two CODIS . . . administrators . . . .’’ After
extensive questioning on different aspects of her analy-
sis, defense counsel focused his queries on the popula-
tion that is used in comparing the defendant’s DNA to
the DNA profile. Przech answered that the laboratory
generates a specific population from the world that is
tested and published.
On redirect, the state sought to rebut the idea that
the CODIS process was subjective and to clarify, for
the jury, the role of CODIS and its purpose. Przech
testified that ‘‘CODIS is a database of DNA profiles of
forensic samples and convicted offender samples from
. . . a Connecticut database and . . . a national data-
base. . . . The purpose of the database is so that once
you’ve generated a forensic profile, you can enter it
into CODIS to search against other forensic profiles in
the state or nationally . . . .’’ When the state asked the
witness for her results in the present case, she testified
that ‘‘[t]here was a database hit to a convicted offender
in Massachusetts,’’ and identified the defendant as
that offender.
Defense counsel did not object during this testimony
but, rather, conducted recross-examination of her. After
Przech and the jury were excused, defense counsel
stated that the state’s question elicited an improper
response. He requested that the court strike the testi-
mony that there ‘‘was a hit to a convicted offender in
Massachusetts and that . . . was [the defendant].’’ He
claimed that it was ‘‘in violation of the court’s earlier
rulings and an improper attempt to impeach [the defen-
dant] before his taking the [witness] stand.’’ He further
contended, ‘‘I believe the testimony was clear that they
said there was a hit to a convicted offender, [the defen-
dant], in Massachusetts. I don’t think that was appro-
priate, either question and answering, or answering. I’m
not sure [the state] anticipated that result. I’m sure [the
prosecutor] didn’t mean to elicit that testimony, but it
came out, and I don’t think it was proper under the
earlier rules of the court. . . . I would ask you to strike
that testimony.’’ The prosecutor responded: ‘‘[Defense]
[c]ounsel opened the door to this whole discussion. Not
a single time did [Przech] mention the CODIS word,
the database word, at all in her testimony. Counsel
brought it open, brought it up by talking about the
database and CODIS and testing and CODIS as to this
case. He opened the door. So, at this point the state
has no other choice other than to ask . . . her what
CODIS is and talk about the testing that was done in
the case because he brought it up in his cross-examina-
tion. . . . I had no intention of going into this . . .
area at all and I instructed . . . Przech not to mention
any sort of thing to do with CODIS.’’
The court ruled that it was ‘‘not going to strike the
testimony [be]cause . . . [defense counsel] did open
the door on anything to do with CODIS. I think that
[Przech’s] answer that it came back as a hit to a con-
victed offender was completely unanticipated by [the
prosecutor]. . . . I’m happy to instruct the jury that
they should ignore that testimony . . . of the state-
ment that he’s a convicted offender and that they can’t
use that as part of their consideration as to whether or
not he’s guilty in this case. But, I mean, you already
know . . . that it’s going to highlight . . . that testi-
mony . . . for the jury.’’ Defense counsel then
responded that he was ‘‘not [going to] ask for a jury
instruction . . . .’’11
‘‘Generally, a party who delves into a particular sub-
ject during the examination of a witness cannot object
if the opposing party later questions the witness on the
same subject. . . . The party who initiates discussion
on the issue is said to have opened the door to rebuttal
by the opposing party. Even though the rebuttal evi-
dence would ordinarily be inadmissible on other
grounds, the court may, in its discretion, allow it where
the party initiating inquiry has made unfair use of the
evidence. . . . This rule operates to prevent a defen-
dant from successfully excluding inadmissible prosecu-
tion evidence and then selectively introducing pieces
of this evidence for his own advantage, without allowing
the prosecution to place the evidence in its proper con-
text. . . . The doctrine of opening the door cannot, of
course, be subverted into a rule for injection of preju-
dice. . . . The trial court must carefully consider
whether the circumstances of the case warrant further
inquiry into the subject matter, and should permit it only
to the extent necessary to remove any unfair prejudice
which might otherwise have ensued from the original
evidence. . . . Thus, in making its determination, the
trial court should balance the harm to the state in
restricting the inquiry with the prejudice suffered by
the defendant in allowing the rebuttal. . . . We review
for abuse of discretion the trial court’s determination
that a party has opened the door to otherwise inadmissi-
ble rebuttal evidence.’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Brown, 309 Conn. 469,
479–80, 72 A.3d 48 (2013).
The defendant admitted in his brief that ‘‘[b]y his
questioning, defense counsel was attempting to suggest
that the [CODIS] process had a subjective element,’’
but argued that ‘‘[t]he state’s decision to use this as an
opportunity to expose how the defendant’s information
ended up in that database was unnecessary, irrelevant,
and elicited for the sole purpose of identifying the defen-
dant as a convicted offender.’’ We disagree. Defense
counsel extensively questioned Przech about the pro-
cess she employed in her preliminary search of CODIS,
which included questions about the selected population
that is used in comparing the defendant’s DNA to the
DNA profile. The defendant therefore opened the door
to the state’s follow-up questions about CODIS. The
prosecutor was then able to clarify for the jury its use
as an investigatory tool in identifying possible suspects
through its database; a database that contained the pro-
files of convicted offenders. It was only through this
questioning, and what the court found to be an unantici-
pated response by Przech, that the jury became aware
of the fact that the defendant was a convicted offender
in Massachusetts. Because defense counsel opened the
door to the prosecutor’s questions about CODIS, how-
ever, his line of questioning was permissible and
Przech’s response was not required to be stricken. ‘‘The
defendant cannot reap the benefits of inquiry into one
subject and expect the state’s questioning within the
same scope to be held impermissible.’’ State v. Brown,
131 Conn. App. 275, 287–88, 26 A.3d 674 (2011), aff’d,
309 Conn. 469, 72 A.3d 48 (2013). Accordingly, the court
did not abuse its discretion in denying the defendant’s
motion to strike.
C
Last, the defendant argues that the prosecutor
engaged in prosecutorial impropriety when he elicited
testimony from Przech that the defendant had been
convicted of a crime in Massachusetts.12 Specifically,
he claims that the state violated the court’s order to
exclude any reference to his being on probation. We
do not agree.
We begin our analysis by setting forth the applicable
law regarding claims of prosecutorial impropriety. ‘‘In
analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . The two
steps are separate and distinct. . . . We first examine
whether prosecutorial impropriety occurred. . . . Sec-
ond, if an impropriety exists, we then examine whether
it deprived the defendant of his due process right to
a fair trial. . . . In other words, an impropriety is an
impropriety, regardless of its ultimate effect on the fair-
ness of the trial. Whether that impropriety was harmful
and thus caused or contributed to a due process viola-
tion involves a separate and distinct inquiry. . . .
‘‘[T]he touchstone of due process analysis in cases
of alleged [harmful] prosecutorial [impropriety] is the
fairness of the trial, and not the culpability of the prose-
cutor. . . . The issue is whether the prosecutor’s
[actions at trial] so infected [it] with unfairness as to
make the resulting conviction a denial of due process.
. . . In determining whether the defendant was denied
a fair trial . . . we must view the prosecutor’s [actions]
in the context of the entire trial.’’ (Citations omitted;
internal quotation marks omitted.) State v. Fauci, 282
Conn. 23, 32, 917 A.2d 978 (2007).
‘‘To prove prosecutorial [impropriety], the defendant
must demonstrate substantial prejudice. . . . In order
to demonstrate this, the defendant must establish that
the trial as a whole was fundamentally unfair and that
the [impropriety] so infected the trial with unfairness
as to make the conviction a denial of due process. . . .
In weighing the significance of an instance of prosecu-
torial impropriety, a reviewing court must consider the
entire context of the trial, and [t]he question of whether
the defendant has been prejudiced by prosecutorial
[impropriety] . . . depends on whether there is a rea-
sonable likelihood that the jury’s verdict would have
been different absent the sum total of the improprie-
ties.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Long, 293 Conn. 31, 37, 975 A.2d 660 (2009).
Our previous conclusion that defense counsel opened
the door to the prosecutor’s questioning controls our
conclusion as to this claim as well. We take the time
to note, however, that the defendant’s motion in limine,
which the court granted, specifically and solely
addressed the probationary status of the defendant. It
did not foreclose the prosecutor from asking about the
CODIS process and the databases that are used within
that process. The prosecutor did not, therefore, violate
the court’s order by questioning Przech about CODIS
and receiving an unanticipated response that refer-
enced the defendant’s criminal history in Massachu-
setts.13 As a result, the prosecutor did not engage in
prosecutorial impropriety.
The judgments are affirmed.
In this opinion the other judges concurred.
1
The defendant filed one appeal from the judgments of conviction, listing
both docket numbers. Practice Book § 61-7.
2
Hartman also testified that, from the brief instance in which he saw the
‘‘scruff’’ on the perpetrator’s face, he believed the perpetrator was between
forty and forty-five years of age.
3
As the state notes, however, the defendant firmly placed his knife against
the back of Hartman’s neck and walked behind him. Moreover, the surveil-
lance video depicted the perpetrator wearing a gray short sleeve shirt with
white material extending below the sleeves of the gray shirt, obscuring the
perpetrator’s upper arms.
4
The defendant believed that, despite photographs of his tattoos in evi-
dence, the ‘‘actual publishing of his arm and his right arm and his left hand
to the jury would be the best evidence of the tattoos that he had on the
day this robbery allegedly occurred.’’
5
According to the state, these included an armed robbery conviction in
2003, two unarmed robbery convictions in June and December, 1995, and
two robbery convictions in July, 1985.
6
We note that the defendant did not argue to the trial court that its ruling
deprived him of the rights to due process and a fair trial. The defendant
raised his constitutional argument for the first time in his appellate brief.
It is a ‘‘bedrock principle of appellate jurisprudence that [reviewing courts]
generally will not review unpreserved claims made for the first time on
appeal.’’ (Internal quotation marks omitted.) State v. Elson, 311 Conn. 726,
743, 91 A.3d 862 (2014). In Elson, our Supreme Court further stated, ‘‘We
conclude, therefore, that to obtain review of an unpreserved claim pursuant
to State v. Golding, [213 Conn. 233, 239–40, 567 A.2d 823 (1989)], a defendant
need only raise that claim in his main brief, wherein he must present a
record that is [adequate] for review and affirmatively [demonstrate] that his
claim is indeed a violation of a fundamental constitutional right.’’ (Internal
quotation marks omitted.) State v. Elson, supra, 754–55. We conclude that
the defendant’s brief satisfies the test set forth in Elson and therefore we
will review his unpreserved constitutional claim.
7
The defendant cites Schmerber v. California, 384 U.S. 757, 86 S. Ct.
1826, 16 L. Ed. 2d 908 (1966), arguing that the fifth amendment protects a
defendant from being compelled to testify or provide the state with testimo-
nial evidence. The present case is in stark contrast, however, because it
was the defendant who wanted to display his tattoos, which was not asked
for or compelled by the state.
The other cases cited by the defendant are from other jurisdictions, and
are not the current state of the law in Connecticut. The only Connecticut
case cited by the defendant, State v. Sanchez, 128 Conn. App. 1, 10 n.6, 15
A.3d 1182 (2010), aff’d, 308 Conn. 64, 60 A.3d 271 (2013), did not analyze
whether the trial court erred in allowing the defendant to display his arm,
in a nontestimonial manner, to show that he did not have a tattoo. Rather,
the issue on appeal was whether the court erred in denying the defendant’s
motion to suppress evidence of a pretrial identification. Id., 6. This case
cannot, therefore, be used to support the defendant’s claim in the pre-
sent appeal.
8
Instead, defense counsel only stated that once the defendant was on the
witness stand, the jury could ‘‘make its own determination as to whether
or not the tattoos had been manipulated or changed in some manner.’’ In
his brief, the defendant also argues that ‘‘[e]ven if the tattoos had been
altered in the intervening time period, it did not change the fact that the
defendant had tattoos at the time of the robbery and the perpetrator, by
[Hartman’s] description, did not.’’ Because the defendant is required to lay
a proper foundation before such evidence can be admitted, these arguments
are invalid.
9
The defendant also argued before the trial court that the display of his
tattoos is similar to a voice exemplar, which he claims is permitted in similar
circumstances. However, in State v. Watson, 47 Conn. App. 794, 796, 707
A.2d 1278 (1998), aff’d, 251 Conn. 220, 740 A.2d 832 (1999), the defendant
was involved in a robbery, in which the victims testified that the perpetrator
was a Hispanic male who spoke broken English. During trial, the defendant
wanted to give a voice exemplar, without appearing as a witness, to show
that he did not have an accent. On appeal, this court held that the trial court
did not abuse its discretion when it ruled that the defendant could not
demonstrate his voice to the jury without appearing as a witness. Id., 808–809.
It stated that ‘‘the matter of whether an act is testimonial or not bears on
whether a person may be compelled, consistent with his [f]ifth [a]mendment
right to avoid self-incrimination, to perform that act; but the fact that exhibi-
tion of a physical characteristic is not testimonial in nature, and hence may
be compelled at some stage, does not require its admissibility into evidence.’’
(Internal quotation marks omitted.) Id., 809. This court therefore determined
that the trial court had properly focused on whether the exemplar was
reliable, not on whether it was testimonial. We similarly conclude that
the trial court in the present case properly focused on the reliability and
evidentiary basis for displaying the tattoo, rather than its nontestimonial
nature.
10
‘‘An allele is defined as one or two or more alternative forms of a gene.’’
(Internal quotation marks omitted.) State v. Pappas, 256 Conn. 854, 880 n.7,
776 A.2d 1091 (2001).
11
The state first argues that the trial court ‘‘functionally granted the motion
to strike when it offered to instruct the jury to ignore the testimony of a
‘hit to a convicted offender’ . . . and not rely on it in deliberations.’’ It
then states that when the defendant withdrew his request for a curative
instruction, he essentially withdrew his motion to strike as well. As a result,
the state claims that the defendant waived his right to pursue this issue on
appeal. We disagree.
We read the court’s ruling less broadly than the state does. After denying
the motion to strike on the ground that defense counsel had opened the
door as to the CODIS testimony, the court then offered to instruct the jury
that it was not to consider the defendant’s prior conviction in determining
whether he was guilty in this case. We conclude that by declining the offer
of curative instructions, the defendant did not waive his right to appeal
from the court’s denial of his motion to strike. Therefore, because the issue
was properly preserved and not waived, we determine whether the court
erred in denying the defendant’s motion.
12
The relevant facts are set forth in part II B of this opinion.
13
In fact, defense counsel even stated that ‘‘I’m sure [the prosecutor]
didn’t mean to elicit that testimony . . . .’’