State v. Alexis ( 2019 )

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STATE OF CONNECTICUT v. GARYL ALEXIS
(AC 40528)
Keller, Moll and Bishop, Js.
Syllabus
Convicted of the crimes of robbery in the first degree and threatening in
the second degree, the defendant appealed to this court. The defendant’s
conviction stemmed from an incident in which he displayed a semiauto-
matic pistol to the victims and stole marijuana from them, dropping his
wallet as he fled. Upon receiving a text message from one of the victims,
the defendant replied with a text message demanding his wallet and
threatening to shoot the victims. On appeal, the defendant claimed, inter
alia, that the trial court erred by admitting into evidence a photograph
of guns that had been forensically extracted from his cell phone by the
police. Held:
1. Even if it was improper for the trial court to admit the photograph into
evidence and not give the jury a limiting instruction, the defendant failed
to demonstrate that he was harmed thereby, as the alleged error did
not substantially affect the verdict; the state’s case against the defendant
was supported by additional strong evidence, including identifications
of the defendant by victims who knew him, and the state presented
evidence of text messages that corroborated the victims’ version of
events, as well as evidence that the police had seized the defendant’s
wallet from the crime scene.
2. The defendant could not prevail, pursuant to State v. Golding (213 Conn.
233), on his unpreserved claim that the state violated his due process
right to a fair trial by eliciting testimony during a witness examination
and making a remark during closing arguments about his postarrest and
post-Miranda silence; even if a constitutional violation existed, the state
established that the alleged constitutional violation was harmless beyond
a reasonable doubt, as the prosecutor did not focus on the defendant’s
post-Miranda silence or engage in repetitive references to the defen-
dant’s silence, the challenged testimony related to the efforts made by
the police to locate the firearm, evidence introduced by the state that
was unrelated to the defendant’s silence, including the identification of
the defendant by two witnesses who knew him, which corroborated
text messages between the defendant and a victim, and the seizure of
the defendant’s wallet from the crime scene, proved his guilt beyond a
reasonable doubt, and defense counsel failed to object to the testimony
and prosecutor’s remark during closing arguments.
Argued January 9—officially released November 5, 2019
Procedural History
Substitute information charging the defendant with
the crimes of robbery in the first degree and threatening
in the second degree, brought to the Superior Court
in the judicial district of Fairfield, geographical area
number two, and tried to the jury before Kahn, J.;
verdict and judgment of guilty, from which the defen-
dant appealed to this court. Affirmed.
Robert L. O’Brien, assigned counsel, with whom, on
the brief, was William A. Adsit, for the appellant
(defendant).
Jennifer F. Miller, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and Joseph J. Harry, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
MOLL, J. The defendant, Garyl Alexis, appeals from
the judgment of conviction, rendered following a jury
trial, of robbery in the first degree in violation of General
Statutes § 53a-134 (a) (4)1 and threatening in the second
degree in violation of General Statutes § 53a-62 (a) (1).2
On appeal, the defendant claims that (1) the trial court
erred by admitting into evidence an unduly prejudicial
photograph of guns that had minimal, if any, probative
value, and (2) pursuant to Doyle v. Ohio, 426 U.S. 610,
96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), the state violated
his due process right to a fair trial by eliciting testimony
and making a remark during closing arguments about
the defendant’s silence following his arrest and the
advisement of his constitutional rights pursuant to
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966). We conclude that any error relating
to the court’s admission of the photograph was harm-
less and that any Doyle violation was harmless beyond
a reasonable doubt. Accordingly, we affirm the judg-
ment of the trial court.
The jury reasonably could have found the following
facts. In May, 2015, Jorge Perez and his girlfriend, Paige
Whitley, lived with Whitley’s parents in a first floor
apartment of a multifamily home in Stratford (Whitley
residence). The defendant lived several blocks away in
Stratford. On May 21, 2015, Perez and Whitley were
present at the Whitley residence. At 9:24 a.m., Perez
sent a text message to the defendant and invited him
to come over to purchase marijuana. The defendant
went to the Whitley residence, entered through the back
door, and joined Perez and Whitley in Whitley’s bed-
room. The defendant then began chatting with Perez
and Whitley. During their conversation, Perez removed
a bag of marijuana from the bedroom closet and handed
it to the defendant to allow the defendant to inspect
its contents. Shortly thereafter, the defendant displayed
a black, semiautomatic pistol and ordered Perez and
Whitley to get down on the floor, repeating the order
multiple times. Perez and Whitley remained motionless,
and the defendant grabbed the bag of marijuana, which
had been placed on a table, and ran out of the apartment
through the back door. At some point prior to fleeing
the Whitley residence, the defendant dropped his wallet
in Whitley’s bedroom. At 10:21 a.m., after the defendant
had left, Perez sent a text message to the defendant,
stating: ‘‘Dude cmon. For what? I thought we were
chill.’’ At 10:34 a.m., the defendant sent a text message
to Perez in reply, stating: ‘‘Everybody is food and I want
my wallet back boy unless you like shells I’m broke
starving hate it had to be you I WANT MY WALLET
BACK OR IMMA SEE U cuz.’’ Thereafter, Perez and
Whitley sought advice from Whitley’s father, who, at
the time, was outside in front of the apartment. After
speaking with Whitley’s father, Perez called the police
to report the incident.
Shortly thereafter, Officer Brian McCarthy and other
police officers of the Stratford Police Department
arrived at the Whitley residence, and Perez and Whitley
provided written statements regarding what had
occurred. The police began searching for the defendant,
and, approximately twenty minutes after receiving the
call from Perez, they were able to locate and detain the
defendant just a few blocks away from the Whitley
residence. Meanwhile, the police drove along the main
routes between the Whitley residence and the defen-
dant’s residence and conducted a general search of the
area where the defendant was located, but they were
not able to locate the gun or the bag of marijuana. The
police were able to recover the defendant’s wallet and
his cell phone, and Officer Paul Fressola performed
two forensic examinations of the cell phone. During
the second forensic examination, Officer Fressola dis-
covered, among other things, a deleted photograph in
which five firearms were displayed next to one
another (photograph).
On June 8, 2015, by long form information, the state
charged the defendant with one count of robbery in the
first degree in violation of § 53a-134 (a) (4) and one
count of threatening in the second degree in violation
of § 53a-62 (a) (1). On September 30, 2015, the state
filed a substitute long form information containing the
same charges. On January 30, 2017, following a jury
trial held on January 26, 27 and 30, 2017, the defendant
was found guilty as to both counts. On March 13, 2017,
the court imposed a total effective sentence of eight
years of incarceration, execution suspended after three
years, followed by five years of probation. This appeal
followed. Additional facts and procedural history will
be provided as necessary.
I
The defendant first claims that the trial court erred
by admitting into evidence state exhibits 3, 4, and 7,
which were three iterations of the photograph, in which
five firearms were displayed, that had been extracted
from the defendant’s cell phone. Specifically, the defen-
dant argues that the prejudicial effect of such evidence
outweighed its probative value, if any, and that the
unknown manner in which the photograph was created
or saved on the defendant’s cell phone further under-
mines the photograph’s reliability. The defendant also
makes the related claim that, having admitted the three
iterations of the photograph, the trial court erred by
failing to give, sua sponte, an appropriate limiting
instruction to the jury. The state contends, in response,
that the trial court properly admitted the photograph,
that no limiting instruction was necessary, and that the
defendant has failed to establish that any error was
harmful. For the reasons that follow, we conclude that
the defendant has failed to demonstrate that any error
in the court’s admission of the photograph and/or the
lack of a limiting instruction relating thereto resulted
in harm.
The following additional facts and procedural history
are relevant to the defendant’s claim. On January 26,
2017, just prior to the commencement of trial, the state
provided defense counsel with additional evidence that
had been recovered during the second forensic exami-
nation of the defendant’s cell phone. This additional
evidence included, but was not limited to, the photo-
graph and an accompanying extraction report, which
showed that the photograph was created and accessed
on May 16, 2015, five days before the robbery. Defense
counsel orally moved to preclude the introduction of
the photograph on the grounds that it lacked probative
value, was unduly prejudicial, and was of unknown
origin (i.e., an objection sounding in authentication).
In response, the state argued that the probative value
of the photograph outweighed its prejudicial impact
because Perez and Whitley identified a gun in the photo-
graph as being similar to the one the defendant dis-
played during the robbery. Thereafter, the court indi-
cated that it would admit the photograph subject to a
proper foundation being laid by the forensic examiner,
reasoning that the prejudicial impact did not outweigh
the photograph’s highly probative value.3 Trial com-
menced immediately thereafter.
The state first called Perez and then Whitley to testify.
Perez and Whitley made in-court identifications of the
defendant. Perez testified that he recalled the defen-
dant, on the date in question, displaying a black, semiau-
tomatic pistol; Whitley testified similarly that the defen-
dant had pulled out a gun. Using a pen to mark and
initial separate copies of the photograph, Perez and
Whitley identified the same gun in the photograph as
being similar to the gun that the defendant displayed
during the incident.4 When questioned about the text
message sent by the defendant to Perez shortly after
the incident, Perez and Whitley testified that they inter-
preted the defendant’s use of the term ‘‘shells’’ to mean
that the defendant would shoot Perez if Perez did not
return the defendant’s wallet. Given that Perez and
Whitley identified the same gun depicted in the photo-
graph and in light of the fact that the photograph was
found on the defendant’s cell phone, the court
explained, outside the presence of the jury, that ‘‘there’s
a direct connection between the photo[graph] and the
incident here which makes it highly probative as I said
earlier and it comes in because its probative value out-
weighs its prejudicial impact.’’
On January 27, 2017, the state called Officer Fressola
to testify. Officer Fressola testified that, a few days after
the defendant’s cell phone was seized by the police, he
performed an initial forensic examination of the cell
phone, which involved the retrieval of readily available
content, i.e., files that were not hidden or deleted. Offi-
cer Fressola also testified that, months later, he per-
formed a second, more in-depth, forensic examination,
which involved the recovery of deleted files, one of
which was the photograph. He testified that he did not
modify in any way the photograph or any other files
retrieved. During the examination of Officer Fressola,
the court admitted in full (1) an unmarked version of
the photograph in color appended to the extraction
report (state exhibit 3), (2) a black and white copy of
the photograph (and extraction report) marked up by
Perez during his testimony (state exhibit 4), and (3) a
color copy of the photograph marked up by Whitley
during her testimony (state exhibit 7). The court subse-
quently stated, outside the presence of the jury, that
state exhibits 3, 4, and 7 had been admitted into evi-
dence as full exhibits because the state established a
connection between the gun allegedly displayed by the
defendant during the incident and a gun depicted in the
photograph. The court further explained: ‘‘Given that
the image, which was found on the defendant’s phone
matches the description given by the alleged victims of
the gun that they claim was pulled on them and they
identified that as being the gun in this court’s view
made it highly probative and its probative value out-
weighed its prejudicial impact and that’s why I
allowed it.’’
Against this backdrop, we now turn to the defendant’s
contention that the court committed reversible error
when it admitted into evidence state exhibits 3, 4, and
7. ‘‘We review the trial court’s decision to admit [or
exclude] evidence, if premised on a correct view of the
law . . . for an abuse of discretion. . . . We will make
every reasonable presumption in favor of upholding the
trial court’s ruling, and only upset it for a manifest
abuse of discretion. . . . The trial court has wide dis-
cretion to determine the relevancy [and admissibility]
of evidence . . . . 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.’’ (Internal quotation marks
omitted.) State v. Badaracco, 156 Conn. App. 650, 665–
66, 114 A.3d 507 (2015).
‘‘When an improper evidentiary ruling is not constitu-
tional in nature, the defendant bears the burden of dem-
onstrating that the error was harmful. . . . [W]hether
[an improper ruling] is harmless in a particular case
depends upon a number of factors, such as the impor-
tance of the witness’ testimony in the prosecution’s
case, whether the testimony was cumulative, the pres-
ence or absence of evidence corroborating or contra-
dicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted,
and, of course, the overall strength of the prosecution’s
case. . . . Most importantly, we must examine the
impact of the . . . evidence on the trier of fact and
the result of the trial. . . . [T]he proper standard for
determining whether an erroneous evidentiary ruling
is harmless should be whether the jury’s verdict was
substantially swayed by the error. . . . Accordingly, a
nonconstitutional error is harmless when an appellate
court has a fair assurance that the error did not substan-
tially affect the verdict.’’ (Internal quotation marks omit-
ted.) State v. Bouknight, 323 Conn. 620, 626–27, 149
A.3d 975 (2016).
Even assuming arguendo that the court erred in
admitting the photograph and not giving a limiting
instruction relating thereto, and applying the principles
described previously in this opinion, we have a fair
assurance that any error did not substantially affect the
verdict. The state’s case against the defendant without
the photograph was remarkably strong. The witnesses,
Perez and Whitley, both identified the defendant, whom
they knew, as the perpetrator. Perez and Whitley testi-
fied consistently that, after chatting for a short while,
the defendant suddenly threatened them with a gun,
grabbed the bag of marijuana, and ran out of the apart-
ment, accidentally leaving his wallet behind. Their ver-
sion of events was consistent with the text messages
between Perez and the defendant, which placed the
defendant at the Whitley residence at the relevant time
and which included the defendant’s highly inculpatory
statement (i.e., ‘‘Everybody is food and I want my wallet
back boy unless you like shells I’m broke starving hate
it had to be you I WANT MY WALLET BACK OR IMMA
SEE U cuz’’). Moreover, the state presented evidence
that the defendant’s wallet was seized from the Whitley
residence, further corroborating Perez and Whitley’s
version of events. The strength of the foregoing evi-
dence leads us to a fair assurance that the admission of
the photograph did not substantially affect the verdict.
In light of the foregoing, we conclude that the defen-
dant has not satisfied his burden to demonstrate that
any error relating to the admission of the photograph
was harmful. Therefore, the defendant’s first claim fails.
II
The defendant next claims, relying on Doyle v. Ohio,
supra, 426 U.S. 617–18, that the state violated his due
process right to a fair trial by eliciting testimony during
a witness examination and making a remark during
closing arguments about his postarrest and post-
Miranda silence.5 The defendant argues that, although
this claim was not preserved before the trial court, the
claim is reviewable pursuant to (1) State v. Evans, 165
Conn. 61, 327 A.2d 576 (1973); see State v. Morrill, 197
Conn. 507, 536, 498 A.2d 76 (1985) (‘‘Doyle violations
. . . are properly reviewable under State v. Evans,
[supra, 70] despite the failure to raise them in the trial
court’’); or (2) in the alternative, State v. Golding, 213
Conn. 233, 567 A.2d 823 (1989), as modified by In re
Yasiel R., 317 Conn. 773, 120 A.3d 1188 (2015).6 The state
argues, in response, that any alleged Doyle violation was
harmless beyond a reasonable doubt and, therefore,
the defendant’s claim fails under the fourth prong of
Golding. We agree with the state.
The following additional facts are relevant to the
defendant’s claim. Officer McCarthy testified as a state’s
witness. During the direct examination, he testified with
respect to his observations upon arriving at the Whitley
residence, his conversations with Perez and Whitley,
the search for and the arrest of the defendant, the inabil-
ity of the police to locate the gun and the bag of mari-
juana, the seizure of the defendant’s wallet at the scene
and the defendant’s cell phone from his person, and
the times at which the two forensic examinations of
the cell phone were performed. On cross-examination,
defense counsel examined Officer McCarthy about the
inability of the police to recover the gun and the mari-
juana. On redirect examination, the state engaged in
relevant part in the following line of questioning, which
the defendant claims was improper:
‘‘Q. Did your office take any other action to try to
locate this weapon?
‘‘A. We had a detective that attempted to speak with
[the defendant] and tried to get him to tell us where
the weapon is, expressed concerns about child safety,
things of that nature, but we got nowhere.
‘‘Q. Okay. He didn’t answer you?
‘‘A. Excuse me?
‘‘Q. He didn’t answer you?
‘‘A. He would not answer any questions, no.’’
During recross-examination, defense counsel and
Officer McCarthy had the following exchange:
‘‘Q. [W]ould you agree that an accused has a right to
remain silent?
‘‘A. Absolutely, sir.’’
The defendant also challenges on appeal the follow-
ing statement made by the prosecutor during the state’s
closing argument: ‘‘[Officer McCarthy] stated that when
he asked the defendant about the gun, the defendant
didn’t say anything.’’ With respect to the foregoing testi-
mony and remark during closing argument, defense
counsel did not object, no curative instruction was
requested, and none was given.
We now turn to our analysis of the defendant’s claim.
‘‘Under Golding, a defendant can prevail on a claim of
constitutional error not preserved 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 magnitude alleging the viola-
tion of a fundamental right; (3) the alleged constitu-
tional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness 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
in original; internal quotation marks omitted.) State v.
Silva, 166 Conn. App. 255, 280, 141 A.3d 916, cert.
denied, 323 Conn. 913, 149 A.3d 495 (2016), cert. denied,
U.S. , 137 S. Ct. 2118, 198 L. Ed. 2d 197 (2017).
‘‘The first two [Golding] requirements involve a deter-
mination of whether the claim is reviewable; the second
two requirements involve a determination of whether
the defendant may prevail.’’ (Internal quotation marks
omitted.) State v. Mitchell, 170 Conn. App. 317, 322–23,
154 A.3d 528, cert. denied, 325 Conn. 902, 157 A.3d 1146
(2017). Whether Golding is satisfied presents a question
of law over which this court exercises plenary review.
See State v. Cruz, 269 Conn. 97, 104, 848 A.2d 445 (2004).
In the present case, the record is adequate to review
the defendant’s claim, and the defendant has asserted
a claim of constitutional magnitude. Therefore, the first
two prongs of Golding are satisfied, and the defendant
is entitled to Golding review. Nevertheless, the defen-
dant is unable to prevail on his claim of constitutional
error because, assuming without deciding that a Doyle
violation exists, the state has established that the
alleged constitutional violation was harmless beyond a
reasonable doubt. See State v. Smith, 180 Conn. App.
181, 196, 182 A.3d 1194 (2018) (concluding that defen-
dant’s claim failed under fourth prong of Golding
because, assuming without deciding that Doyle viola-
tion occurred, it was harmless beyond reasonable
doubt); see also id., 197–98 (collecting cases).
The following legal principles are relevant to our
analysis under the fourth prong of Golding. ‘‘Pursuant
to Doyle, evidence of a defendant’s postarrest and post-
Miranda silence is constitutionally impermissible
under the due process clause of the fourteenth amend-
ment. . . . The factual predicate of a claimed Doyle
violation is the use by the state of a defendant’s postar-
rest and post-Miranda silence either for impeachment
or as affirmative proof of his guilt. . . . The point of
the Doyle holding is that it is fundamentally unfair to
promise an arrested person that his silence will not be
used against him and thereafter to breach that promise
by using the silence to impeach his trial testimony.
. . . Silence following Miranda warnings is insolubly
ambiguous because it may be nothing more than a
defendant’s exercise of his or her Miranda rights. . . .
Once the government assures a defendant through the
issuance of Miranda warnings that his silence will not
be used against him, it is fundamentally unfair for the
state to break that promise by using his silence against
him at trial. . . . Comments by the state on a defen-
dant’s silence following Miranda warnings are not only
constitutionally impermissible, but also inadmissible
under the principles of evidence.’’ (Citation omitted;
internal quotation marks omitted.) State v. Pepper, 79
Conn. App. 1, 14–15, 828 A.2d 1268 (2003), aff’d, 272
Conn. 10, 860 A.2d 1221 (2004).
‘‘References to one’s invocation of the right to remain
silent [are] not always constitutionally impermissible,
however. . . . Thus, we have allowed the use of evi-
dence of a defendant’s invocation of his fifth amend-
ment right in certain limited and exceptional circum-
stances. . . . In particular, we have permitted the state
some leeway in adducing evidence of the defendant’s
assertion of that right for purposes of demonstrating
the investigative effort made by the police and the
sequence of events as they unfolded . . . as long as
the evidence is not offered to impeach the testimony of
the defendant in any way.’’ (Citations omitted; internal
quotation marks omitted.) State v. Cabral, 275 Conn.
514, 524–25, 881 A.2d 247, cert. denied, 546 U.S. 1048,
126 S. Ct. 773, 163 L. Ed. 2d 600 (2005); see also State
v. Pepper, supra, 79 Conn. App. 15 (concluding that
particular question that merely referenced investigative
efforts of police did not constitute Doyle violation).
‘‘Doyle violations are, however, subject to harmless
error analysis. . . . The harmless error doctrine is
rooted in the fundamental purpose of the criminal jus-
tice system, namely, to convict the guilty and acquit the
innocent. . . . Therefore, whether an error is harmful
depends on its impact on the trier of fact and the result
of the case. . . .
‘‘[B]efore a federal constitutional error can be held
harmless, the court must be able to declare a belief
that it was harmless beyond a reasonable doubt. . . .
The state bears the burden of demonstrating that the
constitutional error was harmless beyond a reasonable
doubt. . . . 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]. . . .
‘‘A Doyle violation may, in a particular case, be so
insignificant that it is clear beyond a reasonable doubt
that the jury would have returned a guilty verdict with-
out the impermissible question or comment upon a
defendant’s silence following a Miranda warning.
Under such circumstances, the state’s use of a defen-
dant’s [post-Miranda] silence does not constitute
reversible error. . . . The [error] has similarly been
[found to be harmless] where a prosecutor does not
focus upon or highlight the defendant’s silence in his
cross-examination and closing remarks and where the
prosecutor’s comments do not strike at the jugular of
the defendant’s story. . . . The cases wherein the error
has been found to be prejudicial disclose repetitive
references to the defendant’s silence, reemphasis of
the fact on closing argument, and extensive, strongly-
worded argument suggesting a connection between the
defendant’s silence and his guilt.’’ (Emphasis added;
internal quotation marks omitted.) State v. Montgom-
ery, 254 Conn. 694, 717–18, 759 A.2d 995 (2000).
In light of the entire record, we conclude that the
alleged Doyle violation in the present case was harmless
beyond a reasonable doubt. First, the prosecutor did
not focus on the defendant’s silence and did not engage
in repetitive references to the defendant’s silence. The
limited testimony, which occurred during the redirect
examination of Officer McCarthy, and the isolated
remark during the state’s closing argument that the
defendant challenges on appeal were not worded in
such a manner to suggest a connection between the
defendant’s silence and his guilt. State v. Smith, supra,
180 Conn. App. 200. Rather, the statements related to
the efforts made by the police to locate the gun.
Second, the evidence introduced by the state unre-
lated to the defendant’s post-Miranda silence estab-
lished the defendant’s guilt beyond a reasonable doubt.
By way of summary only, the two witnesses, Perez and
Whitley, identified the defendant, with whom they were
acquainted from high school, as the perpetrator. Their
testimony was consistent with the text messages
between Perez and the defendant, which placed the
defendant at the Whitley residence and included the
highly inculpatory response of the defendant (i.e.,
‘‘Everybody is food and I want my wallet back boy
unless you like shells I’m broke starving hate it had to
be you I WANT MY WALLET BACK OR IMMA SEE U
cuz’’). Moreover, the defendant’s wallet was seized from
the Whitley residence.
Finally, we note that defense counsel failed to object
to the now challenged testimony and remark during
closing arguments. See State v. Canty, 223 Conn. 703,
712, 613 A.2d 1287 (1992) (‘‘trial counsel’s failure to
object [in a timely manner] indicates that he did not
consider [the testimony] to have prejudiced the defen-
dant’’). In light of the foregoing, we are satisfied that
there is no reasonable possibility that the alleged Doyle
violation affected the outcome of the defendant’s trial.
Thus, we conclude that the defendant cannot prevail
under Golding and, consequently, is not entitled to a
new trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-134 (a) provides in relevant part: ‘‘A person is
guilty of robbery in the first degree when, in the course of the commission
of the crime of robbery as defined in section 53a-133 or of immediate flight
therefrom, he or another participant in the crime . . . (4) displays or threat-
ens the use of what he represents by his words or conduct to be a pistol,
revolver, rifle, shotgun, machine gun or other firearm, except that in any
prosecution under this subdivision, it is an affirmative defense that such
pistol, revolver, rifle, shotgun, machine gun or other firearm was not a
weapon from which a shot could be discharged. . . .’’
2
General Statutes § 53a-62 (a) provides in relevant part: ‘‘A person is
guilty of threatening in the second degree when: (1) By physical threat, such
person intentionally places or attempts to place another person in fear of
imminent serious physical injury . . . .’’
3
The court stated in relevant part: ‘‘The issue I need to address is whether
. . . the prejudicial impact of this evidence outweighs the probative value.
So, as far as the image of the guns on his phone given and what the state
has indicated that the, at least one of the victims will identify one of the
guns as being the one he believes the defendant pulled on him. I would
allow this evidence to come in with a proper foundation from the forensic
examiner because it is incredibly probative. The fact that . . . [there] was
a picture of five weapons [on the defendant’s phone], one of which was the
weapon the victims claimed was pulled on them is highly probative.
‘‘It is prejudicial, no question about it. Most probative evidence is prejudi-
cial. By definition, if it’s probative, it’s prejudicial. But that’s not the test.
The test is . . . whether the prejudicial impact of it outweighs the probative
value. And in the court’s view, it doesn’t because the fact that the defendant
had images of weapons on him and one of which was similar to the one
pulled, is incredibly probative. It is, for lack of a better word, a smoking
gun. But that is—that’s what makes it so probative. And it is prejudicial,
but not unduly prejudicial and it doesn’t outweigh, in the court’s view, the
prejudice doesn’t outweigh the highly probative nature of this evidence.’’
4
The following exchange occurred between the prosecutor and Perez:
‘‘Q. Okay. And can you tell us why you pointed to that weapon?
‘‘A. Because it’s the weapon that looks just like the one he pulled out
when he robbed me.
***
‘‘Q. Okay. So you’re telling us that the photo that you have in front of
you contains a weapon similar to one the defendant pulled on you and Paige
that day?
‘‘A. Yes.’’
The following exchange occurred between the prosecutor and Whitley:
‘‘Q. Do you recognize any of the weapons in that picture?
‘‘A. Yes.
‘‘Q. And can you point to and sign—circle the weapon you recognize as—
sign your name?
***
‘‘Q. Now this is your testimony; how do you recognize that weapon?
‘‘A. It was the one he had in his hand that day?
‘‘Q. Are you sure that’s the one he had?
‘‘A. It looks very much like it.
***
‘‘Q. So what you’re saying that in Identification 7, you signed a weapon,
you signed near the weapon that you believe the defendant had or similar to?
‘‘A. Yes.’’
5
The parties do not dispute that the defendant was taken into custody
and given a Miranda warning prior to the questioning that forms the basis
of the defendant’s claim of a Doyle violation, namely, the police questioning
him about the location of the gun.
6
We previously have recognized that ‘‘State v. Evans, supra, 165 Conn.
61, has since been superseded by State v. Golding, supra, 213 Conn. 239–40,
and stands, generally, for the same proposition regarding the availability
of appellate review of unpreserved claims.’’ Hinds v. Commissioner of
Correction, 151 Conn. App. 837, 857 n.4, 97 A.3d 986 (2014), aff’d, 321 Conn.
56, 136 A.3d 596 (2016). Accordingly, we consider the defendant’s claim
pursuant to Golding.