State v. Ramon A. G. ( 2019 )

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STATE OF CONNECTICUT v. RAMON A. G.*
(AC 39704)
Keller, Elgo and Moll, Js.
Syllabus
Convicted of the crimes of assault in the third degree and criminal violation of
a protective order in connection with an incident in which the defendant
assaulted the victim, the defendant appealed to this court. Held:
1. The defendant could not prevail on his claim that the trial court violated
his constitutional rights to due process and to present a defense by
improperly declining to give a jury instruction on the defense of personal
property with respect to the assault charge against him: the claim of
instructional error was not properly preserved for appellate review, as
neither the defendant’s written request to charge nor anything else in
the record indicated that the defendant ever alerted the trial court to
the distinct instructional deficiency claimed on appeal; moreover, the
doctrine of implied waiver precluded substantive consideration of the
defendant’s claim of instructional impropriety, as the record revealed
that the defendant was provided with a meaningful opportunity to review
the trial court’s initial draft charge that the court provided during an
in-chambers conference, the revised draft charge that the court sent to
the parties later that night and the final draft charge that the court
provided prior to the parties’ closing arguments, that the court solicited
and received comments from the parties over the course of multiple
charge conferences, that the defendant thereafter expressed satisfaction
with both the draft charge and the ultimate charge that the court deliv-
ered to the jury and that at no time at trial did the defendant voice any
objection regarding the instructional deficiency he alleged on appeal.
2. The prosecutor’s improper comment that certain cell phone records that
were not in evidence probably would have helped the state’s case did
not deprive the defendant of a fair trial, as it did not so infect the trial
with unfairness that the defendant’s resulting conviction amounted to
a denial of due process; the prosecutorial impropriety consisted of a
single, isolated, inadvertent comment during rebuttal argument that was
not particularly severe, the comment was not central to the critical
issues in the case, as the existence of the cell phone records had little
bearing on the question of whether the defendant perpetrated the
charged offenses, the comment was invited by the defendant’s testimony
that suggested that the cell phone records would have corroborated his
trial testimony, the state’s case against the defendant was strong with
respect to the crimes of which he was convicted, and the trial court
gave the jury a curative instruction that it should not consider the
prosecutor’s improper comment because it was not supported by evi-
dence in the record.
Argued January 10—officially released June 11, 2019
Procedural History
Substitute information charging the defendant with
the crimes of robbery in the first degree, assault in the
second degree and criminal violation of a protective
order, brought to the Superior Court in the judicial
district of New Britain and tried to the jury before
Keegan, J.; verdict and judgment of guilty of the lesser
included offense of assault in the third degree and of
criminal violation of a protective order, from which the
defendant appealed to this court. Affirmed.
Jennifer B. Smith, for the appellant (defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Brian Preleski, state’s attor-
ney, and Elizabeth Moseley, senior assistant state’s
attorney, for the appellee (state).
Opinion
ELGO, J. The defendant, Ramon A. G., appeals from
the judgment of conviction, rendered after a jury trial,
of assault in the third degree in violation of General
Statutes § 53a-61 and criminal violation of a protective
order in violation of General Statutes § 53a-223 (a). On
appeal, the defendant claims that (1) the trial court
improperly declined to furnish a jury instruction on the
defense of personal property with respect to the assault
charge and (2) prosecutorial impropriety during closing
argument deprived him of his due process right to a
fair trial. We affirm the judgment of the trial court.
On the basis of the evidence adduced at trial, the
jury reasonably could have found the following facts.
In August, 2012, the victim began what she described
at trial as a ‘‘toxic relationship’’ with the defendant,
which lasted seven months and concluded in March,
2013. On March 18, 2013, a protective order was issued
that prohibited the defendant from having any contact
with the victim.
At approximately nine o’clock on the evening of
March 22, 2013, the victim received a text message from
the defendant indicating that he wanted to meet with
her.1 Although initially hesitant, she ultimately agreed
to do so and began walking toward the apartment where
the defendant resided with his mother, who at that time
was hospitalized. The defendant then picked the victim
up in a motor vehicle and continued to the apartment,
where they socialized with other individuals. When
some attendees became rowdy, the victim decided to
leave. As she exited the apartment, the victim took the
keys to a vehicle belonging to the defendant’s mother
and began to walk home.
Halfway to her home, the victim ‘‘felt like something
bad was going to happen,’’ so she tossed the keys into
a bush alongside the road, which she described at trial
as ‘‘[s]omewhere safe where I could go back for them
later.’’ At that time, she was wearing a backpack that
contained, among other things, her cell phone, a money
order, and cash. Soon thereafter, a vehicle driven by
an unidentified person stopped in the middle of the
street. The defendant exited the vehicle and started
yelling ‘‘[w]here’s the keys’’ in an angry manner. The
defendant then grabbed the victim’s backpack and
swung her around. With her backpack still on, the victim
fell to the ground, and the defendant began kicking her
in the head, back, and stomach. After one particular
blow to her temple area, the victim saw ‘‘stars’’ and let
go of the backpack. The defendant rummaged through
its contents, returned to the vehicle with the backpack
in hand, and departed.
Martin Martinez was inside his nearby residence at
the time of the altercation. When he looked outside, he
saw a man kicking a woman on the ground. As he
testified: ‘‘I . . . remember seeing a male beating up a
female . . . . I saw some kicking. I saw her on the
ground, and I saw someone—the male, you know, really
giving it to her, stomping on her.’’ Martinez immediately
called 911 to report the incident.2
Officer Marcus Burrus of the New Britain Police
Department arrived at the scene to find the victim cry-
ing, shaking, and hunched on the ground. The victim
‘‘was bleeding from areas of her face. She had blood
on her ears, her face, [and] her hands.’’ While awaiting
medical assistance for the victim, Burrus answered an
incoming call to her cell phone from a contact labeled
‘‘Maria.’’ On the basis of prior experience and conversa-
tions with the defendant,3 Burrus recognized the caller
as the defendant. During that conversation, Burrus testi-
fied that the defendant ‘‘told [him] that he came to the
area [where the altercation transpired] and that he had
confronted [the victim] because he believed that she
was in possession of his mother’s keys. And [the defen-
dant] stated that he didn’t touch her, but that he was
there and that he just was going to find and borrow his
mother’s keys.’’
The victim was transported by ambulance to a nearby
hospital, where she received medical treatment. Photo-
graphs of injuries to her face, neck, hands, and back
were taken while she was hospitalized and were admit-
ted into evidence at trial.
The victim was released from the hospital on the
morning of March 23, 2013. Although a protective order
remained in place, the victim received multiple text
messages from the defendant later that morning. In
those messages, the defendant indicated that he wanted
to exchange the victim’s backpack for the keys to his
mother’s vehicle. The victim, however, did not want to
meet with the defendant. The defendant’s cousin later
returned the backpack to her with its contents secure.
Burrus met with the victim at her home the following
day. At that time, the victim informed him that she
had received text messages from the defendant, which
Burrus reviewed on her phone.4 At trial, Burrus testified
that one such message contained ‘‘something along the
lines of I ain’t done with you yet.’’
The defendant testified at trial on his own behalf and
provided a different account of the altercation. In his
testimony, the defendant admitted that he had con-
fronted the victim on the sidewalk as she was walking
home that night. He testified that he ‘‘said please give
me my mother’s keys’’ and that the victim then ‘‘began
to swing at [him].’’ The defendant testified that, as he
grabbed her hands and ‘‘told her, please, just give me
the keys,’’ he slipped and fell to the ground, which he
attributed to wintry weather conditions. The defendant
further testified that, as he attempted to ‘‘get up to
leave,’’ the victim ‘‘grabbed a hold of [his] foot,’’ causing
him to again fall to the ground. The defendant testified
that ‘‘I just shook my foot loose and I crossed the street
and I got in the car and we left.’’
Following that altercation, the defendant was
arrested and charged with robbery in the first degree
in violation of General Statutes § 53a-134 (a) (3), assault
in the second degree in violation of General Statutes
§ 53a-60 (a) (2), and criminal violation of a protective
order in violation of § 53a-223 (a). Pursuant to General
Statutes § 53a-40b, the state also charged, in a part B
information, that the defendant committed those
offenses while on release ‘‘pursuant to [General Stat-
utes] §§ 54-63a to 54-63g and/or [General Statutes]
§§ 54-64a to 54-64c . . . .’’ A trial followed, at the con-
clusion of which the jury found the defendant not guilty
of robbery in the first degree and assault in the second
degree. The jury found the defendant guilty of criminal
violation of a protective order and the lesser included
offense of assault in the third degree. The defendant
thereafter pleaded guilty to the charge set forth in the
part B information. The court rendered judgment
accordingly and sentenced the defendant to a total
effective sentence of seven years incarceration, fol-
lowed by three years of special parole. From that judg-
ment, the defendant now appeals.
I
The defendant first claims that the court improperly
declined to furnish a jury instruction on the defense of
personal property with respect to the assault count. In
response, the state submits that the defendant both
failed to preserve and impliedly waived that claim at
trial. We agree with the state.
The following additional facts are relevant to the
defendant’s claim. On the first day of trial, the defendant
filed a one page request to charge with the court.5 On
the second day of trial, the court noted for the record
that it had received the defendant’s request to charge.
The court then stated: ‘‘[W]hat I would like to do is try
to have a discussion about this. I think it would be
easiest to start it in chambers so that I can give you
copies [of the court’s draft charge], and then come out
here and summarize on the record what we have done
and what we discussed in chambers. Because if it gets
to a point where we could do closing arguments tomor-
row, I very much would like to do closing arguments
tomorrow.’’ The court indicated that it would ‘‘take
about forty-five minutes to preliminarily discuss the
jury charge with the attorneys’’ in chambers during an
afternoon recess.
When that recess concluded, the court explained to
the jury: ‘‘[W]e’ve had the opportunity to have a prelimi-
nary discussion on the jury charge. And I have given
to each attorney a very rough draft of what I call my
overinclusive jury charge. I intend to take out the areas
that do not apply in this case, and then to also work
further on the charges with respect to the crimes that
are alleged in this case. And I intend to send this out
via e-mail tonight to the two attorneys so that you will
have that for review tonight. I am going to grant the
defendant’s request to charge the jury on defense of
personal property. I will put that in there. And [if the
prosecutor has] any objections to it, you can do that
formally tomorrow on the record.’’ (Emphasis added.)
The record before us contains a copy of the draft
charge that the court provided to the parties later that
night.6 That charge states in relevant part: ‘‘The evidence
in this case raises the issue of the use of force against
another to defend personal property. This defense
applies to the charge of [r]obbery in the [f]irst [d]egree.’’
The draft charge did not indicate that the defense
applied to either the assault or the criminal violation
of a protective order counts.
The next day, the court held a charge conference
with the parties following the close of evidence. At the
outset, the court indicated that it had sent a copy of
its revised draft charge to the parties the previous night
and inquired whether they had reviewed it; defense
counsel answered affirmatively. The court also noted
that ‘‘the defense did ask yesterday in chambers . . .
for a lesser included [offense] of assault in the third
degree on the assault second, so I have included that.
. . . And the defense also asked for the self-defense
under the defense of [personal] property, which is
included as well.’’ (Emphasis added.) The court then
asked if the parties had sufficient time to review the
court’s proposed charge to the jury and solicited feed-
back thereon, at which time defense counsel asked the
court to change the word ‘‘statement’’ to ‘‘statements’’
in a section on impeachment evidence because the
defendant was claiming that multiple inconsistent state-
ments had been made. After agreeing to that change, the
court asked: ‘‘Anything else?’’ Defense counsel replied,
‘‘No, Your Honor. . . . I’m all set, Your Honor. Thank
you.’’ The court then stated: ‘‘All right. And you both
have had enough time with the charge that you feel
comfortable with the court charging [the jury] today?’’
Both parties answered, ‘‘Yes, Your Honor.’’ The court
then adjourned the proceeding for a midday recess.
When that recess concluded, the court stated for the
record that it had ‘‘sent both parties a copy of the
final jury instruction in electronic form.’’ The court then
permitted the parties to make closing arguments. In his
closing argument, defense counsel stated in relevant
part that the defense of personal property ‘‘is a complete
defense to robbery in the first degree.’’ Counsel did not
reference that defense in his discussion of either the
assault or the criminal violation of a protective order
offenses.
Following closing arguments, the court provided its
charge to the jury. With respect to the defense of per-
sonal property, the court instructed the jury that this
defense applied to the robbery charge.7 When it con-
cluded, the court asked the parties if they had any
objections. At that time, defense counsel stated, ‘‘No
objections, Your Honor, at all.’’
On appeal, the defendant claims that the court
‘‘improperly instructed the jury that the defense of [per-
sonal] property only applied to the robbery charge.’’ He
argues that, on the basis of his request to charge, the
court should have instructed the jury that the defense
applied to the robbery and assault charges set forth in
counts one and two of the information, but not to the
criminal violation of a protective order charge con-
tained in count three. The court’s failure to do so, he
contends, violated his constitutional rights to due pro-
cess and to present a defense.
Before we can consider the merits of that claim, we
must resolve two threshold issues. Specifically, we must
determine whether the defendant properly preserved
that claim with the trial court. If that claim was not
properly preserved, we also must determine whether
the doctrine of implied waiver precludes further review.
A
We begin by noting the fundamental precept, deeply
ingrained in our decisional law and our rules of practice,
that the appellate courts of this state ‘‘shall not be bound
to consider a claim unless it was distinctly raised at
the trial . . . .’’8 (Internal quotation marks omitted.)
Ulbrich v. Groth, 310 Conn. 375, 427, 78 A.3d 76 (2013);
see also Practice Book § 42-16 (party taking exception
to court’s instruction ‘‘shall state distinctly the matter
objected to and the ground of exception’’); Practice
Book § 60-5 (party obligated to distinctly raise claim
before trial court to be entitled to appellate review);
State v. King, 289 Conn. 496, 505–506, 958 A.2d 731
(2008) (preservation requirement applies to challenges
to jury instructions); Lee v. Stanziale, 161 Conn. App.
525, 538, 128 A.3d 579 (requirement that party distinctly
raise claim of error before trial court ‘‘a prerequisite to
appellate review’’), cert. denied, 320 Conn. 915, 131 A.3d
750 (2015); State v. Nieves, 106 Conn. App. 40, 55, 941
A.2d 358 (requirement that party distinctly raise claim
applies to jury instruction challenge), cert. denied, 286
Conn. 922, 949 A.2d 482 (2008). ‘‘The requirement that
the claim be raised distinctly means that it must be so
stated as to bring to the attention of the court the precise
matter on which its decision is being asked. . . . [It
must] alert the trial court to the specific deficiency
now claimed on appeal.’’ (Citation omitted; emphasis
in original; internal quotation marks omitted.) State v.
Carter, 198 Conn. 386, 396, 503 A.2d 576 (1986).
Requiring a party to distinctly raise a claim of error
before the trial court is no mere formality; rather, it
ensures that the trial court is specifically apprised of the
alleged error and, thus, has an opportunity to respond
accordingly. ‘‘As [our Supreme Court] repeatedly has
observed, the essence of the preservation requirement
is that fair notice be given to the trial court of the party’s
view of the governing law . . . . A secondary purpose
of the preservation requirement is to prevent the possi-
bility that an appellee would be lured into a course of
conduct at the trial which it might have altered if it had
any inkling that the [appellant] would . . . claim that
such a course of conduct involved rulings which were
erroneous and prejudicial to him. . . . Assigning error
to a court’s . . . rulings on the basis of objections
never raised at trial unfairly subjects the court and the
opposing party to trial by ambush.’’ (Citations omitted;
internal quotation marks omitted.) State v. Benedict,
313 Conn. 494, 505–506, 98 A.3d 42 (2014); accord State
v. Jorge P., 308 Conn. 740, 753, 66 A.3d 869 (2013) (‘‘the
sina qua non of preservation is fair notice to the trial
court’’). Through that lens must an appellate body view
claims of error on the part of the trial court.
In the context of jury instructions, a party ‘‘may pre-
serve for appeal a claim that an instruction . . . was
. . . defective either by: (1) submitting a written
request to charge covering the matter; or (2) taking an
exception to the charge as given.’’ (Internal quotation
marks omitted.) State v. King, supra, 289 Conn. 505;
see also Practice Book § 42-16. The defendant in the
present case filed a written request to charge. See foot-
note 5 of this opinion. The question, then, is whether
that request sufficiently covered the matter so as to
preserve the issue for appellate review. Put differently,
the relevant inquiry is whether the defendant’s request
to charge alerted the trial court to the specific defi-
ciency now claimed on appeal. See State v. Carter,
supra, 198 Conn. 396.
We conclude that it did not. The distinct claim pre-
sented on appeal concerns the failure of the trial court
to provide a defense of personal property instruction
to the jury with respect to two of the three counts
alleged in the operative information—namely, the rob-
bery and assault counts, but not the criminal violation
of a protective order count. On its face, the defendant’s
written request to charge is patently deficient in this
regard, as it does not alert the trial court to such a
request. The substance of that one page request merely
communicated (1) the defendant’s desire to have the
court provide a defense of personal property instruction
to the jury and (2) the defendant’s belief that ‘‘[t]he
evidence supports this request.’’ As a result, the defen-
dant’s request is inherently ambiguous, in that it is
unclear whether the defendant sought such an instruc-
tion as to only one of the charged offenses, all of the
charged offenses, or some combination thereof.
As our Supreme Court has explained, ‘‘the submission
of a request to charge covering the matter at issue
preserves a claim that the trial court improperly failed
to give an instruction on that matter. . . . In [such]
instances, the trial court has been put on notice and
afforded a timely opportunity to remedy the error. . . .
It does not follow, however, that a request to charge
addressed to the subject matter generally, but which
omits an instruction on a specific component, preserves
a claim that the trial court’s instruction regarding that
component was defective.’’ (Citations omitted; empha-
sis in original.) State v. Ramos, 261 Conn. 156, 170–71,
801 A.2d 788 (2002), overruled in part on other grounds
by State v. Elson, 311 Conn. 726, 754–55, 91 A.3d 862
(2014). A defendant’s failure to distinctly raise an
instructional claim in its written request to charge or
to otherwise take an exception to the court’s instruction
renders that particular claim unpreserved for appellate
review. See id., 171; see also State v. Tozier, 136 Conn.
App. 731, 743, 46 A.3d 960 (‘‘[t]he defendant did not
preserve this claim for appellate review as he did not
. . . distinctly raise these arguments [regarding
instructional error] before the trial court’’), cert. denied,
307 Conn. 925, 55 A.3d 567 (2012); State v. Joseph,
110 Conn. App. 454, 459–60, 955 A.2d 124 (because
defendant’s written request to charge contained general
credibility instruction but did not distinctly raise issue
of accomplice credibility, trial court ‘‘was not put on
notice’’ of that issue, rendering it unpreserved), cert.
denied, 289 Conn. 945, 959 A.2d 1010 (2008); Abdelsayed
v. Narumanchi, 39 Conn. App. 778, 785, 668 A.2d 378
(1995) (‘‘[W]hile the defendant did prepare a written
request to charge, that proposed charge did not dis-
tinctly address the issue the defendant now raises. We,
therefore, do not address his claim on appeal. [Footnote
omitted.]’’), cert. denied, 237 Conn. 915, 676 A.2d 397,
cert. denied, 519 U.S. 868, 117 S. Ct. 180, 136 L. Ed. 2d
120 (1996); id., 785 n.1 (concluding that ‘‘these words
[contained in the defendant’s request to charge] did not
sufficiently afford notice to the trial court as to the
claimed error the defendant now raises’’); contra
Benanti v. Delaware Ins. Co., 86 Conn. 15, 21, 84 A.
109 (1912) (‘‘[t]he issue of misrepresentation of title
. . . was distinctly presented in the defendant’s
requests to charge’’); cf. State v. Jones, 289 Conn. 742,
760, 961 A.2d 322 (2008) (‘‘when the trial court failed
to instruct the jury as the defendant had requested,
defense counsel objected two different times, thus
effectively preserving the issue for appellate review
even if his written request to charge was ambiguous’’).
The defendant claims that State v. Ramos, 271 Conn.
785, 860 A.2d 249 (2004), is ‘‘controlling’’ on the question
of preservation. We do not agree. In that case, only
two counts remained following the close of evidence:
assault in the second degree in violation of § 53a-60 (a)
(2) and carrying a weapon in a motor vehicle in violation
of General Statutes (Rev. to 1997) § 29-38. Id., 790. At
trial, the defendant ‘‘requested that the trial court
instruct the jury on the affirmative defense of self-
defense but did not specify the count or counts of the
information to which the defense applied. The trial
court gave a self-defense instruction with respect to
the assault charge, but . . . instructed the jury that
self-defense was not a defense to the charge under § 29-
38.’’ Id., 800. On appeal, the defendant claimed that
‘‘the trial court improperly instructed the jury that the
defense of self-defense did not apply to a charge under
§ 29-38.’’ Id., 799. Our Supreme Court concluded that the
defendant’s claim was preserved for appellate review,
stating: ‘‘Although we agree with the state that the
record leaves some doubt as to whether the defendant’s
general request to charge was adequate to place the
trial court on notice that he believed that the claim of
self-defense applied to both charges, we read the failure
to specify as an indication that it applied to both charges
and that the claim was, therefore, preserved for review.’’
Id., 801.
For two reasons, Ramos is readily distinguishable
from the present case. First, as a factual matter, the
defendant here is not arguing that his general request
to charge on the defense of personal property should
have been applied to all pending counts, as was the
case in Ramos.9 Rather, the defendant maintains that
the court should have provided that instruction with
respect to two of the three counts levied against him
by the state and improperly furnished such an instruc-
tion as to only one of those counts.
Second, as a procedural matter, the defendant over-
looks the critical fact that, in Ramos, the state had filed
‘‘a supplemental request to charge’’ in response to the
defendant’s request to charge, in which the state main-
tained that ‘‘self-defense was not a defense to the charge
under § 29-38.’’ Id., 800. By so doing, the state alerted
the court to the distinct issue of whether that defense
so applied, rendering that issue properly preserved for
appellate review. It nonetheless remains that the state
in the present case neither filed a request to charge
regarding the applicability of the defense of personal
property to an assault charge nor otherwise raised that
issue in any manner before the trial court. Ramos, there-
fore, is both factually and procedurally inapposite to
the present case.
Similarly misplaced is the defendant’s reliance on
State v. Paige, 304 Conn. 426, 40 A.3d 279 (2012). In
Paige, both the defendant and the state submitted
requests to charge on the disputed instruction. Id., 439.
Moreover, the trial court held a charging conference,
at which it heard argument from the parties on that
instructional issue. Id. With ‘‘the specific circumstances
of the present case in mind,’’ our Supreme Court ulti-
mately concluded that the issue was preserved for
appellate review, noting that ‘‘[w]e never have required
. . . a defendant who has submitted a request to charge
also to take an exception to a contrary charge . . . .’’
(Emphasis added.) Id., 442–43. Significantly, the state,
in both Paige and Ramos, requested an alternative
instruction that was contrary to the one requested by
the defendant. As a result, the trial court in those cases
plainly was apprised of the distinct instructional issue,
obviating the need for the defendant to further memori-
alize his objection to the court’s charge. No such con-
trary request was made by the state in the present case.
The defendant’s reliance on State v. Johnson, 316
Conn. 45, 111 A.3d 436 (2015), also is unavailing. In that
case, the defendant filed a written request to charge
that proposed specific language on the issues of con-
structive and nonexclusive possession. Id., 52. In both
its draft charge and the final charge that it provided to
the jury, the trial court declined to include all of the
language requested by the defendant; instead, the court
‘‘selectively omitted certain paragraphs [specifically
requested by the defendant] altogether.’’ Id., 55–56. Fur-
thermore, ‘‘[t]here was never any discussion relating to
this charge or this element of the offenses.’’ Id., 56. In
such circumstances, our Supreme Court held that the
defendant was not obligated to raise a further objection
to the court’s charge to preserve the issue for appeal
because ‘‘[t]he defendant reasonably could have inter-
preted the trial court’s selective adoption of parts of
her possession instruction as a purposeful rejection of
the omitted language. . . . [T]he defendant was not
required to object to the truncated instruction to pre-
serve her request for the more comprehensive instruc-
tion.’’ Id. As in Paige and Ramos, the trial court in
Johnson was specifically alerted to the distinct instruc-
tional deficiency later pursued on appeal.
The facts of the present case are markedly different.
Neither the defendant’s written request to charge nor
anything else in the record before us indicates that
the defendant ever alerted the court to the distinct
instructional deficiency he now alleges on appeal. At
no time did the defendant apprise the court of his desire
to have the court furnish a defense of personal property
instruction with respect to counts one and two, but
not count three, of the information. Rather, the record
before us indicates that (1) the defendant generally
requested a defense of personal property instruction
without specifying its alleged applicability to any partic-
ular counts; (2) the court discussed that request with
both parties during an in-chambers conference on May
17, 2016, and then agreed on the record to provide a
defense of personal property instruction to the jury;10
(3) at that time, the court stated that it would entertain
any objections to that instruction at the charge confer-
ence the next day; (4) the court then included an instruc-
tion on the defense of personal property with respect
to the robbery count in the draft charge that it provided
to the parties; and (5) the court also included that
instruction in both the revised charge that it ‘‘sent [to
the] parties . . . in electronic form’’ and the final
charge that it ultimately delivered to the jury. At no
time did the defendant notify the court of any issue
or disagreement with the court’s instruction despite
several opportunities to do so. Rather, defense counsel
affirmatively indicated that he was ‘‘all set.’’
Accordingly, we cannot conclude on the particular
facts of this case that the instruction provided by the
court was ‘‘contrary’’ to that submitted by the defendant
in his written request to charge. See State v. Paige,
supra, 304 Conn. 443 (defendant who has submitted
request to charge not required ‘‘to take an exception
to a contrary charge’’). The record indicates that the
defendant asked for an instruction on the defense of
personal property and that the court, after discussing
the matter with the parties, granted the defendant’s
request and provided such an instruction. At the same
time, the record does not reflect that the trial court
ever was ‘‘on notice of the purported defect’’ that the
defendant now advances on appeal. State v. Thomas
W., 301 Conn. 724, 736, 22 A.3d 1242 (2011).
Our law requires a party pursuing a claim of instruc-
tional error ‘‘to bring to the attention of the [trial] court
the precise matter on which its decision is being asked’’
so as to ‘‘alert the trial court to the specific deficiency
now claimed on appeal.’’ (Citation omitted; emphasis
in original; internal quotation marks omitted.) State v.
Carter, supra, 198 Conn. 396. The defendant failed to
do so in his written request to charge. Furthermore,
despite ample opportunity, the defendant raised no
such objection to the court’s instruction at any time.
Accordingly, we conclude that his claim of instructional
error was not properly preserved for appellate review.
B
Having determined that the defendant failed to alert
the trial court to the distinct claim of instructional error
presented in this appeal, we next consider whether
the doctrine of implied waiver precludes substantive
review. Whether a defendant has waived the right to
challenge the court’s jury instructions involves a ques-
tion of law, over which our review is plenary. State v.
Davis, 311 Conn. 468, 477, 88 A.3d 445 (2014).
Our analysis begins with the seminal decision of State
v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), in which
our Supreme Court ‘‘established a framework under
which we review claims of waiver of instructional error
. . . .’’ State v. McClain, 324 Conn. 802, 810, 155 A.3d
209 (2017). In Kitchens, the court emphasized that
waiver involves the idea of assent; State v. Kitchens,
supra, 469; and explained that implied waiver occurs
when a defendant ‘‘had sufficient notice of, and
accepted, the instruction’’ proposed or given by the
trial court. (Emphasis in original.) Id., 487 n.25. More
specifically, the court held that ‘‘when the trial court
provides counsel with a copy of the proposed jury
instructions, allows a meaningful opportunity for their
review, solicits comments from counsel regarding
changes or modifications and counsel affirmatively
accepts the instructions proposed or given, the defen-
dant may be deemed to have knowledge of any potential
flaws therein and to have waived implicitly the constitu-
tional right to challenge the instructions on direct
appeal.’’ Id., 482–83. The court further explained that
‘‘[s]uch a determination by the reviewing court must
be based on a close examination of the record and the
particular facts and circumstances of each case.’’11 Id.,
483; see also State v. Bellamy, 323 Conn. 400, 426, 147
A.3d 655 (2016) (‘‘reviewing courts are required to deter-
mine whether the unique facts and circumstances in
any given case support a finding of waiver’’).
In the present case, the trial court conducted a prelim-
inary charge conference with the parties in chambers
following the filing of the defendant’s request to charge.
When that conference concluded, the court indicated
that it had provided the parties with ‘‘a very rough draft’’
of its jury charge, which it further refined later that
day. The court also stated that it was ‘‘going to grant
the defendant’s request to charge the jury on defense
of personal property. I will put that in there.’’ The court
then sent the parties a revised version of its draft charge
that night, which included an instruction that the
defense of personal property was a defense to the
charge of robbery in the first degree.
The next day, the court held another charge confer-
ence, at which defense counsel confirmed that he had
received the court’s revised draft charge. The court at
that time solicited comments from the parties regarding
changes or modifications, and defense counsel asked
the court to make a linguistic change to a section of
the charge regarding impeachment evidence, which the
court agreed to do. The court then asked: ‘‘Anything
else?’’ Defense counsel replied, ‘‘No, Your Honor. . . .
I’m all set, Your Honor. Thank you.’’ The court then
stated: ‘‘All right. And you both have had enough time
with the charge that you feel comfortable with the court
charging [the jury] today?’’ Defense counsel answered,
‘‘Yes, Your Honor.’’
Later that day, the court noted for the record that it
had ‘‘sent both parties a copy of the final jury instruction
in electronic form.’’ The court then permitted the parties
to make closing arguments. In his closing argument,
defense counsel stated in relevant part that defense of
personal property ‘‘is a complete defense to robbery in
the first degree.’’ Counsel did not reference that defense
in his discussion of either the assault or the criminal
violation of a protective order offenses. Furthermore,
in its subsequent charge, the court instructed the jury
that the defense of personal property applied to the
robbery charge. When it concluded, the court asked
the parties if they had any objections; defense counsel
responded, ‘‘No objections, Your Honor, at all.’’
The facts and circumstances of this case largely
resemble those chronicled in State v. Thomas W., supra,
301 Conn. 724. As our Supreme Court stated: ‘‘[T]he
following undisputed facts . . . establish an implied
waiver under the Kitchens standard. The trial court
conducted a charging conference, provided copies of
the proposed charge to the defendant and elicited input
from him. The defendant asked for an addition to the
charge, and the court complied with that request. . . .
[T]he defendant . . . conceded . . . that he had been
given sufficient time to review [the court’s draft charge].
. . . The defendant twice expressed satisfaction with
the charge when asked by the court—before and after
the charge was given.’’ (Citations omitted.) Id., 734–35.
Here, a close examination of record reveals that the
defendant was provided with a meaningful opportunity
to review the court’s initial draft charge that the court
provided during the in-chambers conference, the
revised draft charge that the court sent to the parties
later that night, and the final draft charge that the court
provided prior to closing arguments. The court solicited
and received comments from the parties over the course
of multiple charge conferences. The defendant there-
after expressed satisfaction with both the draft charge
that the court provided to the parties and the ultimate
charge that the court delivered to the jury. Moreover,
at no time at trial did the defendant voice any objection
regarding the instructional deficiency he now alleges on
appeal.12 In light of those undisputed facts, we conclude
that the doctrine of implied waiver precludes substan-
tive consideration of the defendant’s claim of instruc-
tional impropriety.13 See State v. Kitchens, supra, 299
Conn. 482–83.
II
The defendant also claims that prosecutorial impro-
priety during closing argument deprived him of a fair
trial. We disagree.
The following facts are relevant to this claim. At trial,
the victim testified that the defendant placed phone
calls and sent her text messages from a phone belonging
to his mother. See footnote 1 of this opinion. In his
testimony, Burrus stated that he had reviewed certain
text messages sent to the victim from that phone. On
cross-examination, defense counsel asked Burrus if he
would ‘‘agree that if we had the cell phone records here,
or the text phone messages here, that would be a much
more reliable source of information’’; Burris answered
affirmatively. When the defendant testified the next day,
the prosecutor asked him whether he spoke with Burrus
on the night of the altercation, to which the defendant
replied: ‘‘I never spoke with him. You should have got
the phone records. I was asking for them. I never spoke
with him.’’
Prior to closing arguments, the court advised the jury
that the arguments of counsel ‘‘are not evidence’’ but,
rather, were an ‘‘opportunity to go over the evidence
that’s been presented [to] you . . . .’’ The prosecutor
then began her initial closing argument by urging the
jurors as follows: ‘‘[I]f there’s anything that I say during
my oral argument to you and your recollection of the
testimony or the evidence differs from my recollection,
you follow your recollection, not mine, okay? So, I just
want to make that very clear right from the get go.’’
The prosecutor then discussed various aspects of the
evidence presented at trial.
In his closing argument, defense counsel repeatedly
reminded the jurors that the state had not presented
evidence of the cell phone records. With respect to
certain discrepancies between the respective testimony
of the victim and the defendant, counsel stated: ‘‘This
issue could have been simply solved by giving you the
cell phone records, subpoena the Verizon records or
whoever the carrier is, bring those in, show you guys
those, show them to me, show them to the judge, those
are indisputable. Remember that it is always the state’s
burden of proof.’’ Defense counsel later remarked: ‘‘As
I’ve said over and over again, I said this several times
during the course of the case, there’s no info from
that cell phone. It could have been downloaded and
presented to you on a big screen, shown to me and
shown to you. That would be solid evidence. We don’t
have it. I don’t have it. You don’t have it.’’ After acknowl-
edging that the victim sustained physical injuries on
the night in question, defense counsel again noted the
lack of evidence presented by the state, arguing: ‘‘I’m
going to say it again, no cell phone records, there’s no
text messages to show you, there’s no forensic evidence
in this case . . . .’’
During her rebuttal argument, the prosecutor
responded to that line of argument by defense counsel,
stating in relevant part: ‘‘Counsel also stated the fact
that there were no cell phone records. Well, cell phone
records, is he referring to the cell phone records of
[the defendant’s mother] or [the victim’s] cell phone
records? What would those records have said, had told
us? I submit those records probably would have helped
me. Counsel points that out to you about the cell phone
records.’’ Defense counsel did not object at the time
that the prosecutor made that statement.
The next morning, defense counsel alerted the court
to a concern about the prosecutor’s statement, and the
following colloquy ensued:
‘‘[Defense Counsel]: I’m thinking more about the clos-
ing that the [prosecutor] did. She made a comment
which was, I submit that the cell phone records would
have . . . probably helped her. I don’t think that that’s
a proper statement. . . . So, I would ask that the jury
be instructed that the comment was not a proper one.
‘‘The Court: All right. Any objection to that?
‘‘[The Prosecutor]: Judge, it was inadvertent.
‘‘The Court: Okay. . . .
‘‘[The Prosecutor]: —and if the court feels at all that
it was improper, I have no objection to any curative
instruction the court wishes to give.
‘‘The Court: All right. I mean, inadvertence happens,
but I think it is important to reiterate to the jury that
evidence is only what was before them, and I will specif-
ically address this. Now—
‘‘[Defense Counsel]: Thank you, and I agree with the
state, it was completely an inadvertent thing.
‘‘The Court: Okay. That’s fine.
‘‘[The Prosecutor]: Thank you, counsel.’’
The jury then reentered the courtroom, at which time
the court provided a curative instruction advising it to
disregard the prosecutor’s statement from the previ-
ous day.14
On appeal, the defendant maintains that the prosecu-
tor’s statement that ‘‘those [cell phone] records proba-
bly would have helped me’’ was improper commentary
on facts not in evidence, which deprived him of a fair
trial. The state concedes, and we agree, that the prose-
cutor’s statement was improper. The state nonetheless
contends that it did not amount to a denial of the defen-
dant’s right to a fair trial.
‘‘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.’’ (Internal
quotation marks omitted.) State v. Campbell, 328 Conn.
444, 541–42, 180 A.3d 882 (2018). Only the second step
of that analysis is at issue in the present case.
To determine whether the prosecutor’s improper
argument deprived the defendant of his due process
right to a fair trial, ‘‘we are guided by the factors enumer-
ated . . . in State v. Williams, 204 Conn. 523, 540, 529
A.2d 653 (1987). These factors include the extent to
which the [impropriety] was invited by defense conduct
or argument, the severity of the [impropriety], the fre-
quency of the [impropriety], the centrality of the [impro-
priety] to the critical issues in the case, the strength of
the curative measures adopted, and the strength of the
state’s case.’’ (Internal quotation marks omitted.) State
v. Martinez, 319 Conn. 712, 736, 127 A.3d 164 (2015).
We first consider the frequency and the severity of
the challenged remarks. As defense counsel conceded
at trial, the prosecutorial impropriety at issue consisted
of a single, inadvertent statement. The prosecutor made
no mention of cell phone records in her initial closing
argument and made only one isolated reference in her
rebuttal argument. The comment also was not particu-
larly severe, as it consisted of a brief suggestion that
any cell phone records ‘‘probably would have helped’’
the state’s case. In this regard, we note that defense
counsel did not object to the prosecutor’s statement at
the time that it was made. See State v. Grant, 154 Conn.
App. 293, 328, 112 A.3d 175 (2014) (‘‘defense counsel’s
failure to make a contemporaneous objection . . . per-
mits an inference that counsel did not think the impro-
priety was severe’’), cert. denied, 315 Conn. 928, 109
A.3d 923 (2015). Furthermore, ‘‘the severity of the
impropriety is often counterbalanced in part’’ by the
infrequency of the impropriety. (Internal quotation
marks omitted.) State v. Daniel W., 180 Conn. App. 76,
113, 182 A.3d 665, cert. denied, 328 Conn. 929, 182 A.3d
638 (2018). The infrequency of the prosecutorial impro-
priety in the present case is undisputed.
In addition, the prosecutor’s improper comment was
not central to the critical issues in the case, as the
existence of cell phone records had little bearing on
the question of whether the defendant perpetrated the
charged offenses. Although the defendant argues in his
reply brief that ‘‘[t]he impropriety went directly to’’ his
conviction for violating a protective order, the basis of
that charge stemmed not from the defendant’s phone
calls or text messages to the victim but, rather, his
confrontation with her as she walked home. In the long
form information, the state specifically alleged that ‘‘on
or about March 23, 2013, at approximately 2:45 [a.m.] in
the area of 50 Kensington Avenue . . . [the defendant]
violated a protective order when he made contact with
[the victim] and assaulted her by repeatedly kicking her
. . . .’’ At trial, the defendant admitted in his testimony
that he confronted the victim as she was walking home.
Moreover, Burrus testified that he spoke with the defen-
dant soon after the altercation transpired, at which time
the defendant acknowledged that ‘‘he came to the area
[of the altercation] and that he had confronted’’ the
victim. On the basis of that testimony, the jury reason-
ably could have concluded that the defendant violated
the terms of the protective order. We therefore disagree
with the defendant that the prosecutor’s improper com-
ment about cell phone records was central to the critical
issues in the case.
The prosecutor’s improper comment also appears to
have been invited by the defendant’s testimony at trial.
On cross-examination, the defendant denied speaking
with Burrus shortly after the altercation, stating: ‘‘I
never spoke with him. You should have got the phone
records. I was asking for them. I never spoke with
him.’’ To the extent that the defendant in his testimony
suggested that the cell phone records would have cor-
roborated his trial testimony, he invited the prosecu-
tor’s improper comment to the contrary.
With respect to his conviction of criminal violation
of a protective order and assault in the third degree, the
state’s case was strong. In his testimony, the defendant
admitted that he made contact with the victim as she
walked home on the night in question. Although the
victim and the defendant provided differing accounts
of the altercation, the jury also heard testimony from
Martinez, who witnessed the incident and corroborated
the victim’s account. Contrary to the defendant’s testi-
mony at trial that he ‘‘didn’t touch her,’’ Martinez told
the jury that he saw ‘‘a male beating up a female . . . .
I saw some kicking. I saw her on the ground, and I saw
someone—the male, you know, really giving it to her,
stomping on her.’’ The state’s case also included testi-
mony from Burrus, who responded to the scene and
observed the victim’s physical and emotional state, as
well as photographs later taken at the hospital, which
depict in graphic fashion the injuries to the victim’s
face, neck, hands, and back.
Lastly, the trial court provided a curative instruction
in response to a concern raised by defense counsel the
day after closing arguments concluded. In that directive,
the court instructed jurors that ‘‘you should not con-
sider’’ the prosecutor’s improper statement, as it was
not supported by evidence in the record. See footnote
14 of this opinion. In the absence of an indication to
the contrary, we presume that the jury followed that
curative instruction. See State v. Camacho, 282 Conn.
328, 385, 924 A.2d 99, cert. denied, 552 U.S. 956, 128 S.
Ct. 388, 169 L. Ed. 2d 273 (2007).
Having considered the foregoing factors in light of
the record before us, we conclude that the prosecutor’s
improper comment did not so infect ‘‘the trial with
unfairness as to make the resulting conviction a denial
of due process.’’ (Internal quotation marks omitted.)
State v. Williams, supra, 204 Conn. 539. The defendant’s
prosecutorial impropriety claim, therefore, fails.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interest of the
victim of a criminal violation of a protective order, we decline to identify
the victim or others through whom the victim’s identity may be ascertained.
1
At trial, the victim testified that because the defendant’s cell phone was
broken, he often called or texted her from a phone belonging to his mother,
Maria. For that reason, she would receive incoming calls or text messages
from him under a contact labeled ‘‘Maria.’’ In her testimony, the victim
indicated that all relevant phone calls or text messages received from the
defendant were from that contact.
2
An audio recording of that 911 call was admitted into evidence.
3
At trial, Burrus confirmed that he knew the defendant and had spoken
with him prior to the night in question. Burrus testified that he knew the
defendant by the nickname ‘‘Cito’’ and also knew the defendant’s mother
and brother. Burrus explained that he had ‘‘dealt with [the defendant] on
other calls [in the course of his] duties as a police officer, and prior to that
[knew him] as a teenager,’’ as the defendant was a friend of Burrus’ brother-
in-law.
4
Burrus testified that the text messages were from a contact labeled
‘‘Maria.’’ See footnote 1 of this opinion.
5
The defendant’s written request to charge states in full: ‘‘Defendant
moves this court, pursuant to [Practice Book] § 42-16 et seq. and the [s]ixth
and [f]ourteenth [a]mendments to the United States [c]onstitution, to give
Jury Instruction 2.8-5, Defense of Personal Property ([General Statutes]
§ 53a-21). The evidence supports this request. Wherefore, for the reasons
set forth above, together with such other reasons as may be advanced in
any memorandum of law submitted and/or hearing conducted in connection
herewith, [the defendant] respectfully prays that the [c]ourt adopt this pro-
posed instruction.’’ The defendant did not submit a memorandum of law
on that request.
6
Following the commencement of this appeal, the state filed a motion
for rectification, in which it asked the trial court to supplement the record
with a copy of the draft charge. The court granted that request on January
29, 2018.
7
The court instructed the jury in relevant part: ‘‘The evidence in this case
raises the issue of the use of force against another to defend personal
property. This defense applies to the charge of robbery in the first degree.
After you have considered all the evidence in this case on the charge of
robbery in the first degree, if you find that the state has proved each element
beyond a reasonable doubt, then you must go on to consider whether or
not the defendant acted justifiably in the defense of personal property. In
this case you must consider this defense in connection with count one of
the information.’’
8
As our Supreme Court explained nearly two centuries ago: ‘‘It has been
repeatedly decided, by us, that . . . we will not allow points of law to be
discussed, which were not made, or which were waived, in the court below.
We adhere to these decisions. The rule which they establish, is a salutary
one, essential to the preservation of the rights of parties, and to the due
administration of justice.’’ Torry v. Holmes, 10 Conn. 499, 507 (1835).
9
As the defendant acknowledges in his reply brief, his ‘‘trial counsel’s
theory of defense of property did not pertain to the protective order charge.’’
10
Following the in-chambers conference with the parties, the court stated:
‘‘I am going to grant the defendant’s request to charge the jury on defense
of personal property. I will put that in there.’’
11
Our Supreme Court has since reaffirmed the vitality of the waiver rule
enunciated in Kitchens and expressly rejected the claim that it ‘‘should be
overturned because it is confusing, unworkable, interferes with an appellate
court’s discretion to review unpreserved claims and does not serve the
interests of justice.’’ State v. Bellamy, 323 Conn. 400, 403, 147 A.3d 655 (2016).
12
In his principal appellate brief, the defendant also suggests that he
preserved his objection by moving for a judgment of acquittal at his sentenc-
ing hearing months after his trial concluded. He has provided no legal
authority in support of that contention. To the contrary, our Supreme Court
has held that posttrial motions do not properly preserve a claim that the
court’s charge to the jury improperly omitted an appropriate instruction.
See Oakes v. New England Dairies, Inc., 219 Conn. 1, 8, 591 A.2d 1261
(1991); see also State v. Santiago, 142 Conn. App. 582, 602 n.17, 64 A.3d
832 (declining to address claim raised ‘‘for the first time at [the defendant’s]
posttrial sentencing hearing’’), cert. denied, 309 Conn. 911, 69 A.3d 307
(2013).
13
In his reply brief, the defendant also requests review pursuant to State
v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989). In Kitchens, our
Supreme Court explained that the doctrine of implied waiver, when applica-
ble, bars recourse under Golding, as ‘‘[a] constitutional claim that has been
waived does not satisfy [its] third prong . . . because, in such circum-
stances, we simply cannot conclude that injustice [has been] done to either
party . . . or that the alleged constitutional violation . . . exists and . . .
deprived the defendant of a fair trial . . . .’’ (Internal quotation marks omit-
ted.) State v. Kitchens, supra, 299 Conn. 467; see also State v. McClain,
supra, 324 Conn. 808–809. Our determination that the defendant impliedly
waived his instructional claim thus forecloses relief under Golding.
14
The court instructed the jury as follows: ‘‘[Y]esterday during closing
argument, [the prosecutor], in addressing the cell phone records, made a
comment where she said, I submit to you that if the cell phone records had
been here they would have been favorable to the state. Now remember that
I told you that the only evidence that you can decide the case upon is
evidence that has been presented to you in court and there was no evidence
presented to that so that was an argument of counsel that there is no
evidence to support that so you should not consider that statement. During
the course of argument, people make inadvertent statements, and so I bring
it to your attention just to let you know you did not receive evidence on
that so I just want to tell you that.’’ The defendant thereafter did not object
to the curative instruction provided by the court.