State v. Espinal ( 2021 )

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STATE OF CONNECTICUT v. TONY ESPINAL
(AC 41554)
Alvord, Cradle and Suarez, Js.
Syllabus
Convicted of the crime of manslaughter in the second degree as a result of
the stabbing death of the victim, the defendant appealed to this court,
claiming, inter alia, that he was deprived of his right to present a defense
when the trial court precluded certain evidence he claimed was vital
to his defense of self-defense. The defendant had stabbed the victim
during an altercation on a highway exit ramp after the automobiles they
were driving had collided. The defendant called 911 on his cell phone
during the altercation but did not explain his situation to the dispatcher
until he made a second 911 call after he was able to leave the victim
and drive to another location. The trial court precluded the defendant
from introducing evidence that, at the time of the altercation, a rearrest
warrant had been issued for the victim in connection with pending
motor vehicle violations against him. The defendant claimed that the
victim was the initial aggressor and was motivated to attack him because
he thought the defendant was talking on the cell phone to the police
during the altercation and wanted to avoid an encounter with the police.
The trial court also precluded the defendant from introducing into evi-
dence as spontaneous utterances under § 8-3 (2) of the Connecticut
Code of Evidence statements he made in his second 911 call and in a
videotaped interview with the police when they told him that the victim
had died. Held:
1. The defendant could not prevail on his claims that the trial court incor-
rectly determined that evidence of the victim’s rearrest warrant was
irrelevant and unduly prejudicial, and that his second 911 call and por-
tions of his interview with the police did not constitute spontaneous
utterances under § 8-3 (2):
a. The rearrest warrant and evidence of the victim’s prior motor vehicle
violations did not have a logical tendency to support a finding by the
jury, as the defendant claimed, that the victim had a motive to be the
initial aggressor, as it was not logical to infer that a person seeking to
avoid the police following his involvement in a minor automobile accident
would initiate a physical altercation in a public place with a person he
believed to be summoning the police on a cell phone; moreover, evidence
that the victim was an unlicensed driver who had an outstanding warrant
for operating a motor vehicle while his driving privileges were suspended
was unduly prejudicial in that it clearly portrayed him in a negative light
and was likely to arouse the emotions of the jurors, and the exclusion
of the proffered evidence did not deprive the defendant of his right to
present a defense, as he was adequately able to present his claim of self-
defense by way of his own testimony, by cross-examination of the state’s
witnesses, and through the opportunity to present other relevant and
admissible evidence; furthermore, the court’s ruling did not substantially
affect the jury’s verdict so as to constitute harmful evidentiary error,
the state having presented a strong case and disproved the defense of
self-defense beyond a reasonable doubt, and there was no dispute that
the defendant and the victim engaged in a physical altercation in which
the defendant used a knife and that the victim died of a stab wound.
b. The defendant’s claim that the recording of his second 911 call was
admissible under § 8-3 (2) was unavailing, the trial court having reason-
ably found that the call was not made in such close connection to the
altercation with the victim as to negate the opportunity for deliberation
and fabrication: despite the defendant’s belief that the second 911 call
was a spontaneous utterance because it was made minutes after his first
911 call ended, it was eminently reasonable to infer that, by the time
the defendant made the second call, he was aware of the seriousness
of his predicament and that his statements to the 911 dispatcher could
have serious consequences for him; moreover, the facts suggested that,
after the defendant drove away from the scene of the altercation, he
made the second call from a location of relative calm, where he no
longer expected to encounter the victim and made factual statements
concerning the altercation that were consistent with statements he made
during the first 911 call; furthermore, because the court’s evidentiary
ruling did not reflect an abuse of discretion, the defendant could not
prevail on the unpreserved constitutional aspect of his claim in which he
asserted that the court’s ruling infringed on his right to present a defense.
c. The undisputed circumstances surrounding the defendant’s interview
with the police amply supported the trial court’s finding that his reaction
to news of the victim’s death did not constitute a spontaneous utterance:
contrary to the defendant’s contention that the startling event at issue
was his learning from the police that the victim had died, the court
properly considered the startling event at issue to be the altercation on
the exit ramp many hours before the defendant’s interview with the
police, as the defendant had a lengthy opportunity to contemplate his
predicament and craft a response to avoid prosecution, and was well
aware that he was at police headquarters, was a suspect in a criminal
case and that any statements he made concerning the altercation would
likely affect his penal interest; moreover, the defendant’s response to
news of the victim’s death was a self-serving expression of disbelief,
which was analogous to a denial of culpability and consistent with his
assertions to the police that he did not stab the victim in the chest, and,
even if the defendant had been startled by news of the victim’s death,
his reaction was relevant to an assessment of his conduct during the
altercation, including whether he caused the victim’s death; furthermore,
because the court properly precluded the admission of the interview on
evidentiary grounds, the defendant could not prevail on the unpreserved
constitutional aspect of his claim, in which he asserted that the court’s
ruling infringed on his right to present a defense.
2. The defendant’s unpreserved claim that the trial court improperly
instructed the jury as to the order of its deliberations and misled it as
to the consequences of a finding that he acted in self-defense was
unavailing: despite the defendant’s contention that the jury could not
have considered the lesser included offenses at issue if it found him
not guilty of a greater offense on the basis of his defense of self-defense,
it was not reasonably possible that the jury was misled, as the court’s
instructions led the jury to a correct understanding that self-defense
was a complete defense to murder, the crime with which the defendant
had been charged, and the lesser included offenses at issue, the court
instructed the jury that it had to evaluate the defense of self-defense
before returning a verdict with respect to any of the offenses, and it
instructed the jury that it was required to return a verdict of not guilty
if it found that the state failed to disprove the defense of self-defense;
moreover, although the jury was not instructed that the state’s failure
to disprove the defense of self-defense beyond a reasonable doubt
required it to find the defendant not guilty of murder and all of the
lesser included offenses at issue, the defendant’s interpretation of the
jury charge was belied by the court’s repetitive and unambiguous instruc-
tions that conveyed the applicability of the defense of self-defense to
every offense at issue, as well as the legal significance of a finding that
the state failed to disprove the defense of self-defense; accordingly, the
defendant failed to demonstrate that a constitutional violation existed
that deprived him of a fair trial.
3. This court declined to exercise its supervisory authority over the adminis-
tration of justice to require trial courts to instruct juries to consider the
defense of self-defense prior to considering whether the defendant is
guilty of the charged offense and any lesser included offenses, the
defendant having failed to persuade this court that the procedure fol-
lowed by the trial court in instructing the jury infringed on the integrity
of the trial or the perceived fairness of the judicial system as a whole.
Argued January 5—officially released November 2, 2021
Procedural History
Substitute information charging the defendant with
the crime of murder, brought to the Superior Court in
the judicial district of Fairfield and tried to the jury
before Pavia, J.; verdict and judgment of guilty of the
lesser included offense of manslaughter in the second
degree, from which the defendant appealed. Affirmed.
Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, were Joseph T. Corradino,
state’s attorney, and C. Robert Satti, Jr., supervisory
assistant state’s attorney, for the appellee (state).
Opinion
SUAREZ, J. The defendant, Tony Espinal, appeals
from the judgment of conviction, rendered following
a jury trial, of manslaughter in the second degree in
violation of General Statutes § 53a-56 (a) (1).1 The
defendant claims that (1) the trial court deprived him
of his due process rights to present a defense and to a
fair trial by precluding him from introducing evidence
that was vital to his defense, (2) the court committed
error with respect to its jury instructions concerning
the defense of self-defense, and (3) this court, in the
exercise of its supervisory authority over the adminis-
tration of justice, should require trial courts, in cases
in which self-defense is asserted as a defense, to instruct
juries to consider the defense prior to considering
whether the defendant is guilty of the charged offense
and any lesser included offenses. We affirm the judg-
ment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
On December 18, 2014, the defendant was living in
Bridgeport with his parents and his girlfriend at that
time, Nefertiti Green. That day, the defendant worked
from 7 a.m. to 2 p.m. at a restaurant. The defendant
then worked at his second job, from 4 to 11 p.m., at
a different restaurant that was located in Trumbull.
Between approximately 10 and 11 p.m., the defendant,
while at the restaurant, consumed two beers with some
of his coworkers. By the time the defendant left the
restaurant at approximately 11 p.m., he felt as though
he had been through ‘‘a very tough day,’’ he was tired,
and he wanted to get home.
In the parking lot of the restaurant, the defendant
got into his automobile, which was registered to Green.
He called Green on his cell phone to let her know that
he was on his way home. The defendant continued his
conversation with Green as he drove away from the
restaurant and proceeded along Route 25, a multilane
state highway, toward Bridgeport.
As the defendant approached southbound exit 5 of
Route 25, he and the victim, Bryant Kelly, were involved
in a minor automobile collision. Thereafter, on exit 5,
both drivers stopped their automobiles within several
feet of each other. Before the defendant exited his auto-
mobile, he concealed a Swiss Army type knife in the
pocket of his pants. Once they had exited their automo-
biles, the defendant and the victim began cursing and
shouting at one another, and their encounter quickly
escalated into a physical altercation. At no point did
the victim display a weapon. The defendant reached
into his pocket, opened his knife with his thumb, and
used it to inflict multiple injuries to the victim. These
injuries included multiple superficial wounds on the
victim’s arm, as well as a fatal wound that resulted
from the defendant stabbing the victim in the left chest,
thereby piercing the victim’s left lung cavity, a major
coronary artery, and his heart. Then, the defendant got
back into his automobile and drove away from the
scene.
At some point during his encounter with the victim
on the exit ramp, the defendant ended his phone conver-
sation with Green and used his cell phone to call 911.
Although the defendant was connected to the 911 dis-
patcher for several minutes during his encounter with
the victim, he did not explain his situation to the dis-
patcher until after he had driven away from the exit
ramp. He informed the dispatcher that he would stop
and wait for the police at the intersection of Lindley
Street and Salem Street in Bridgeport. After the defen-
dant ended his initial conversation with the dispatcher
but before the police arrived, he concealed his knife
under a spare tire in the trunk of his automobile. For
approximately twenty minutes, the defendant waited
for the police to arrive. As the defendant did so, he
called 911 a second time and was speaking with a 911
dispatcher when the police arrived.
During the course of his two conversations with a
911 dispatcher, the defendant did not state that he had
been in fear for his life or that he had used a knife
during his encounter with the victim. When the police,
including Trooper Edmund Vayan of the state police,
arrived at the defendant’s location at the intersection
of Lindley Street and Salem Street, they spoke with
the defendant. Vayan noticed that the defendant was
outside of his automobile holding a cell phone in his
left hand. He also observed blood on the defendant’s
right hand. Despite the fact that the defendant saw the
police searching his automobile, he did not immediately
inform the police about the knife he had concealed in
the trunk. Later, when Vayan asked the defendant if
there was a knife in his automobile, he hesitated before
responding that there was a knife in his trunk. The
police later recovered the knife. The defendant volunta-
rily accompanied the police to the state police Troop
G barracks in Bridgeport, where he was advised of
his rights. Thereafter, the police interviewed him for
several hours and obtained a written statement from
him.
At trial, the defendant asserted that he had acted in
self-defense. The defendant testified that, while he and
the victim were operating separate automobiles in the
southbound lanes of Route 25, prior to reaching exit 5,
the victim passed him on his right side and ‘‘clipped’’
his front bumper. Once the victim’s automobile was
in front of the defendant’s automobile, the defendant
flashed his headlamps. Thereafter, the victim and the
defendant were driving side-by-side in the southbound
lanes. The victim began yelling and gesturing at the
defendant. Then, the victim drove his automobile such
that it was directly in front of the defendant’s automo-
bile, and the victim then slammed on his brakes, causing
another minor collision with the defendant. Both driv-
ers stopped their automobiles on exit 5. The victim,
who was larger than the defendant, exited his automo-
bile and approached the defendant. Because the victim
was angry, cursing, and yelling, the defendant put a
knife in his pocket. The defendant, while still talking
to Green on his cell phone, exited his automobile, and
he began to inspect the damage to the automobile when
the victim pushed him. The defendant told the victim
not to touch him, and he used his cell phone to take a
photograph of the victim’s license plate. The victim
pushed him onto the hood of the defendant’s automo-
bile. At this point, the defendant called 911.
The defendant testified that, after the victim pushed
him this second time, he got up and told the victim ‘‘not
to put your hands on me, not to touch me.’’ The victim
and the defendant exchanged insults, and the victim
told the defendant, ‘‘I’m in your face. Put your hands up
so I can knock you out.’’ The victim and the defendant
continued to yell at each other. The victim turned as
though he was going to leave but then surprised the
defendant by punching him in the jaw. The victim then
started pushing the defendant even more, grabbing his
sweatshirt and, in the defendant’s words, ‘‘throwing
[him] around.’’ The defendant testified that, as other
drivers were passing them on the exit ramp, he believed
that the victim was either trying to throw him on the
ground or into oncoming traffic. The defendant
screamed, ‘‘let me go,’’ several times, but the victim
would not comply. Fearing for his life, the defendant
reached into his pocket with his right hand and bran-
dished his knife.
According to the defendant, he swung the knife twice
‘‘on [the victim’s] shoulder’’ while intending to cause
the victim to let go of him. The defendant testified that
he did not know if he struck the victim with the knife,
but it was possible that it may have made contact with
the victim’s arm. The defendant also testified that,
although he made a ‘‘short swing’’ with the knife in the
direction of the victim’s shoulder, at no point did he
push the knife straight at the victim’s body. The defen-
dant testified that he ‘‘never stabbed [the victim] in
the chest.’’
The defendant testified that, after he used the knife,
the victim released him and stated, ‘‘you have a knife,
I’ll show you what I have in my car.’’ As the victim turned
and walked toward his automobile, the defendant got
into his automobile, drove around the victim’s automo-
bile, and proceeded to the intersection of Lindley Street
and Salem Street, where he waited for the police. The
defendant called 911 during his encounter with the vic-
tim on the exit ramp, and he had his cell phone in his
left hand during a portion of his encounter with the
victim. It was not until the defendant drove away from
the victim, however, that he was able to converse with
the 911 dispatcher. The defendant testified that, while
he was waiting for the police to arrive, he opened the
trunk, and ‘‘threw [the knife] in there [and] closed the
trunk.’’ Additional facts will be set forth as necessary.
I
First, the defendant claims that, in three instances,
the court deprived him of his due process rights to
present a defense and to a fair trial by precluding him
from introducing evidence that was vital to his defense.
He claims that the court improperly precluded him from
introducing evidence that was highly relevant to his
claim of self-defense, including (1) evidence that, at the
time of the encounter, the victim had an active rearrest
warrant for motor vehicle violations and was driving
while his right to operate a motor vehicle was sus-
pended, (2) a recording of a phone call that the defen-
dant made to 911 within minutes after his encounter
with the victim ended, and (3) a portion of his video-
taped interview by the police at Troop G following the
events at issue, which depicted his reaction upon being
informed by the police that the victim had died. We
disagree with these claims and will address them in turn.
We begin by setting forth legal principles common
to the issues raised in this claim. ‘‘The sixth amendment
right to compulsory process includes the right to offer
the testimony of witnesses, and to compel their atten-
dance, if necessary, [and] is in plain terms the right to
present a defense, the right to present the defendant’s
version of the facts as well as the prosecution’s to the
jury so that it may decide where the truth lies. . . .
Although we recognize that the right of a defendant to
present a defense is subject to appropriate supervision
by the trial court in accordance with established rules
of procedure and evidence . . . we are also mindful
that the fair opportunity to establish a defense is a
fundamental element of due process . . . and that our
rules should not be applied mechanistically so as to
restrict unreasonably that important right.’’ (Citation
omitted; internal quotation marks omitted.) State v.
DeCaro, 252 Conn. 229, 256, 745 A.2d 800 (2000). ‘‘A
[criminal] defendant has a constitutional right to pres-
ent a defense, but he is [nonetheless] bound by the
rules of evidence in presenting a defense. . . .
Although exclusionary rules of evidence cannot be
applied mechanistically to deprive a defendant of his
rights, the constitution does not require that a defendant
be permitted to present every piece of evidence he
wishes. . . . Accordingly, [i]f the proffered evidence is
not relevant [or is otherwise inadmissible], the defen-
dant’s right to [present a defense] is not affected, and
the evidence was properly excluded. . . . Thus, the
question of the admissibility of the proffered evidence
is one of evidentiary, but not constitutional, dimension.’’
(Citations omitted; internal quotation marks omitted.)
State v. Mark T., Conn. , , A.3d (2021).
‘‘We first review the trial court’s evidentiary rulings, if
premised on a correct view of the law . . . for an abuse
of discretion. . . . If, after reviewing the trial court’s
evidentiary rulings, we conclude that the trial court
properly excluded the proffered evidence, then the
defendant’s constitutional claims necessarily fail.’’
(Internal quotation marks omitted.) State v. David N.J.,
301 Conn. 122, 133, 19 A.3d 646 (2011).
A
The defendant claims that the court improperly
excluded evidence that, at the time of the encounter,
the victim had an active rearrest warrant for motor
vehicle violations and was driving while his right to
operate a motor vehicle was suspended. We disagree.
The following additional facts and procedural history
are relevant to this claim. On November 28, 2017, prior
to the beginning of the defendant’s case-in-chief and
outside the presence of the jury, defense counsel
informed the court as follows: ‘‘[W]e have evidence that
the [victim], as of the date of this incident, was not
only in under suspension status [with regard to his right
to operate a motor vehicle in Connecticut], he actually
was in a rearrest status having to do with . . .
operating under suspension. In fact, the evidence that
we would proffer is that he didn’t have a Connecticut
license, and his right to operate in Connecticut was
under suspension. I don’t know . . . if he ever had [a
license]. . . . [W]e have someone from [the Depart-
ment of Motor Vehicles (department)] who would be
offering that evidence. And I would submit that it is,
when combined with the evidence that . . . [the defen-
dant] has already committed to by way of his rather
lengthy [police] interview, namely, that the [victim]
. . . got more and more upset about [the defendant]
having . . . his phone and seemingly making a phone
call. And that’s, to a large extent, precipitated . . . the
further aggravation of hostilities by [the victim].
‘‘So, it would relate to motive . . . as in someone
who is . . . in a status of that they are not . . . not
only not supposed to be driving a car, but they have a
pending operating under suspension in rearrest status
. . . supporting the reasonable inference that [the vic-
tim] would be particularly not interested in having the
police involved in what was otherwise a very, very
minor fender bender.
‘‘[The defendant] described to the police that it was
his intention to get the police involved [after the acci-
dent occurred] . . . just, basically, settle it, file what-
ever reports are necessary and deal with it that way.
He did provide evidence to the police that he, in fact,
took a photograph of [the victim’s] license plate while
out there. . . . And part of the time line that . . . the
state provided to the defense . . . [was that the defen-
dant was] on the phone with one person, terminating
that call, taking the photograph, and initiating the call
with the Connecticut state police.
‘‘And so . . . the jurors, applying common sense,
should be permitted to consider whether or not an
individual in that status of a pending [operating] under
suspension, while in a suspended status, with an out-
standing warrant for not appearing under his suspen-
sion, whether that person, in fact, would be motivated
to not want the police involved. That would be the
relevance of it, and we’re prepared to proffer . . . a
recordkeeper from [the department who] will be pre-
pared to testify regarding status and [the victim’s] right
to operate as of the date of the . . . [altercation involv-
ing the defendant and the victim]. I think I would sepa-
rately need to either seek judicial notice at another
time . . . in relation to [the victim’s] rearrest status in
connection with what was . . . then pending, so the
rearrest warrant, operating under suspension.’’
The prosecutor responded that, even if it were
assumed that the defendant would testify in a manner
consistent with defense counsel’s representations, he
objected to the evidence on the ground that it was
inadmissible character evidence.
Defense counsel made an offer of proof by means of
the testimony of Brian Clarke, a program coordinator
employed by the department. Clarke testified that, as
of December 18, 2014, the victim’s driving privileges
were under suspension as a result of his having received
an infraction ticket in 2009 for driving without a license.
According to Clarke, the victim’s driving privileges were
suspended in approximately October, 2010. Clarke also
testified that the department’s records reflected that
the victim never had a valid driver’s license, but that
nondriver identification cards had been issued to him.
Clarke testified that the mailing address the department
had for the victim was in Bridgeport. The court deferred
ruling on the admissibility of the evidence.
The next day, November 29, 2017, the defendant sub-
mitted a request for judicial notice pursuant to § 2-1 of
the Connecticut Code of Evidence. The defendant asked
the court to instruct the jury that, ‘‘[o]n December 18,
2014, the [victim] . . . had an outstanding rearrest war-
rant stemming from a matter [in the Superior Court] in
New Haven, [geographical area number twenty-three],
that was issued on August 12, 2014. The underlying
charges were illegal operation motor vehicle under sus-
pension in violation of [General Statutes §] 14-215,
operating unregistered motor vehicle in violation of
[General Statutes §] 14-12 (a), and failure to use seat
belt in violation of [General Statutes §] 14-100a (c) (1).’’
The defendant attached to his request documents from
the Judicial Branch website, reflecting that, in August,
2014, a rearrest warrant had been issued for ‘‘failure to
appear,’’ and that, in December, 2014, there were pend-
ing charges against the victim for, inter alia, operating
a motor vehicle while under suspension.
Although the record does not reflect that the state
filed a motion in limine with respect to the evidence
at issue, on November 30, 2017, defense counsel filed
a memorandum of law in response to what he character-
ized as the state’s ‘‘motion in limine’’ to preclude the
defendant from introducing evidence concerning the
victim’s status, as a result of his motor vehicle offenses,
at the time of the incident. Defense counsel argued
therein that evidence that the victim ‘‘was facing the
potential consequence of incarceration as a result of
operating a motor vehicle at the time of the incident’’
was relevant to demonstrating why the victim attacked
the defendant, whom he believed to be in the process
of summoning the police to the accident scene.
Attached to this memorandum was the state’s informa-
tion in the 2014 case brought against the victim, a sum-
mons, a rearrest warrant application for the victim that
was granted on August 14, 2014, and a motion filed by
the victim on November 19, 2014, to vacate the rearrest
warrant, which was denied on November 20, 2014.2 The
court did not rule on the admissibility of the evidence
at that time.
During the defendant’s testimony on November 29,
2017, he testified in relevant part that, following two
minor automobile collisions caused by the victim, he
and the victim stopped their automobiles on exit 5 of
Route 25. Following the first minor collision, before
stopping on the exit ramp, the victim acted aggressively
toward the defendant by ‘‘yelling and gesturing’’ at him.
When the defendant exited his automobile on the exit
ramp, he was using his cell phone to converse with
Green. The victim commented on the fact that the defen-
dant was using his cell phone. Specifically, the victim
asked the defendant if he was speaking with the police.
The defendant testified that he simply replied, ‘‘not to
worry about that.’’ According to the defendant, the vic-
tim thereafter assaulted him several times, and he used
his knife to repel the victim because he feared for
his life.
On November 30, 2017, the court revisited the eviden-
tiary issue raised by the defendant. Initially, the court
identified what it believed to be defense counsel’s the-
ory of admissibility, namely, that the proffered evidence
about the victim’s outstanding arrest warrant made it
reasonable to infer that the victim was in a ‘‘state of
turmoil’’ and acted angrily toward the defendant
because he believed that the defendant either had or
would summon the police to the accident scene. The
court stated that there was no direct evidence that the
victim asked the defendant not to call the police
because he feared being arrested but understood the
defendant’s argument to rest on the inference to be
drawn from the proffered evidence that the victim knew
there was a rearrest warrant and that the existence of
such warrant would lead to his arrest if the police
arrived at the accident scene.
In its consideration of the proffered evidence, the
court observed that the victim had listed a West Haven
address on his motion to vacate the rearrest warrant.
It then expressed its concern that, because Clarke testi-
fied that the department only had the victim’s Bridge-
port address on file, and it was reasonable to presume
that any notices in the case would have been sent to
the address on file, ‘‘[w]e have no idea whether [the
victim] knew or was informed or received any notice
with regard to [his status after the court’s denial of his
motion to vacate the rearrest warrant].’’
Defense counsel downplayed the significance of the
fact that there was no evidence that the victim had
received notice of the court’s ruling on the motion to
vacate the rearrest warrant. Defense counsel responded
that the fact that the victim filed the motion to vacate
the rearrest warrant was itself sufficient evidence to
demonstrate that he knew that he had ‘‘a pending case,’’
he was ‘‘under suspension,’’ he should not be driving
an automobile, and he was subject to rearrest. Although
defense counsel argued that the jury reasonably could
infer that the victim did not want to encounter the
police following the accident because he did not have
an operator’s license, it was the goal of the defense to
present evidence ‘‘that [the victim had] an outstanding
arrest warrant.’’ Defense counsel argued that, in the
absence of any evidence that the victim had received
notice of the court’s denial of the motion to vacate the
rearrest warrant, the court should not presume that
the victim somehow believed that his motion had been
granted and that he was not subject to arrest.
The state responded that, in essence, the defendant
was attempting to introduce character evidence of the
victim to prove something that was not a material issue
in the case, namely, the victim’s motive for behaving
in an angry and agitated manner toward the defendant.
The state argued that there was no legal basis to admit
this character evidence under § 4-4 of the Connecticut
Code of Evidence. The state also asserted that the evi-
dence, which was prejudicial, did not have any proba-
tive value in light of the fact that there was no evidence
that the victim had notice that his motion to vacate had
been denied and his warrant was still outstanding. The
state also posited that, in light of the defendant’s testi-
mony that, before the victim had asked him if he had
called the police, the victim and the defendant were
engaged in a heated verbal exchange, the logical infer-
ence for which defense counsel sought to introduce the
evidence was weak, at best. Stated otherwise, the state
argued that the defendant’s own testimony showed that
the victim was agitated and angry prior to the time that
he may have believed that the defendant was using his
cell phone to summon the police.
Defense counsel responded by drawing an analogy
between the evidence he sought to introduce and evi-
dence that is admitted to prove consciousness of guilt
of an accused. He argued that the jury could infer that
someone who has an outstanding arrest warrant for
operating while under suspension would be concerned
if, at the scene of an accident, he observed the other
driver with a cell phone in his hand. He also asserted
that it was reasonable for the victim to infer that the
defendant was calling the police. Defense counsel also
stated his belief that the defendant’s testimony, which
was that the victim had asked him if he was on the
phone with the police, supported counsel’s theory of
admissibility.
The court once again deferred ruling on the issue
but, nonetheless, responded to defense counsel that, if
his theory of admissibility rested on the fact that the
victim was motivated to avoid the police at the scene
of the accident, the defendant’s testimony undermined
this theory. The court explained that the defendant’s
testimony showed that ‘‘[the victim is] not an individual
that’s trying to get in his car and get out of there. He’s
an individual who’s standing his ground and fighting,
which is almost the opposite of what you’re saying.
There’s no suggestion that he’s trying to get out of there
and get away from the police. So, I understand what
you’re trying to get in, but it also needs to be supported
by the facts of this particular case.’’
The following day, the court disallowed the proffered
evidence by means of an oral ruling. The court stated
that ‘‘the evidence that the defense is seeking, based
upon the record of this particular trial, would really
be, one, pure speculation; two, not supported by the
evidence; and, three, more prejudicial than probative.
So, in this court’s opinion, putting in evidence of the
decedent’s arrest record or warrants for arrest or under-
lying charges really do[es] not support anything that
the defendant indicated in terms of his version. . . . I
know the defense position, that [the victim] is referenc-
ing the fact that he has a phone out. Even by the defen-
dant’s own testimony, all he says is that he had this
phone out, that it’s out while he’s looking at damage
to his car, that, at some point, the . . . decedent says
to him something to the effect of, are you on the phone,
or, are you talking to the police, and the defendant
indicates not to worry about it, never says that the
decedent is angry or yelling at him or there’s any type
of . . . behavior that supports what the defendant’s
argument is in this particular instance, which is that
the decedent was so irate about the idea of the police
possibly finding him, that that propelled him into some
form of aggressive behavior toward the defendant.
‘‘The . . . court’s position is that, as I indicated yes-
terday, it’s almost the opposite would be true because
the evidence would be that the decedent would be trying
to get away from the situation, as opposed to continuing
to stay there knowing that the police were most likely
going to be coming. And so I think, one, it’s not sup-
ported by the case law; two, it’s not supported by the
facts of this particular case; three, it’s pure speculation;
and four, it’s . . . more prejudicial than it is probative.’’
At the conclusion of the court’s ruling, defense coun-
sel clarified that the proffered evidence was not merely
relevant with respect to the victim’s motive, but that it
impacted the defendant’s self-defense claim. Defense
counsel stated that the proffered evidence may have
had only slight probative value, but that it was for the
jury, not the court, to determine the strength of the
inferences to be drawn from it. The court responded:
‘‘[M]y ruling has, kind of, several layers to it. So, the
first is that it’s not supported by the case law, that, in
terms of the decedent and his background and criminal
record or behavioral patterns or character in a self-
defense case, as I think we can all agree, this is, at this
point, certainly there are times when that comes in.
But in this instance, I think, we . . . all agree that that’s
not what the defense is seeking to put it in for. You’re
not trying to put it in toward a showing of the decedent’s
aggressive behavior. . . .
‘‘[T]he other segment is, well, is it relevant to this
particular case and the facts of this particular case. And
. . . after reviewing again everything that the defen-
dant has said, the court’s position is that it is not. Now,
having said that, I did not prevent, and I am not pre-
venting . . . the defendant testifying to or any recita-
tion by the defendant of what he believes was occurring,
what he experienced and all of those things remain on
the record. And the defendant and the defense obvi-
ously has an opportunity to argue that point to the jury
and to ask the jury to draw any inference that they
would like to. I am simply ruling that the admission of
an outstanding arrest warrant that was pending against
the decedent is not admissible at this time.’’
Having discussed the court’s ruling, we turn to the
applicable legal principles. We observe that the court’s
ruling is based primarily on its conclusion that, in light
of the facts of this particular case, the proffered evi-
dence was not relevant. The Connecticut Code of Evi-
dence provides that ‘‘ ‘[r]elevant evidence’ means evi-
dence having any tendency to make the existence of
any fact that is material to the determination of the
proceeding more probable or less probable than it
would be without the evidence.’’ Conn. Code Evid. § 4-
1. Section 4-2 of the code provides that, unless there
is a legal basis for its exclusion, ‘‘[a]ll relevant evidence
is admissible . . . .’’ Conn. Code Evid. § 4-2. ‘‘Relevant
evidence is evidence that has a logical tendency to aid
the trier in the determination of an issue. . . . One fact
is relevant to another if in the common course of events
the existence of one, alone or with other facts, renders
the existence of the other either more certain or more
probable. . . . Evidence is not rendered inadmissible
because it is not conclusive. All that is required is that
the evidence tend to support a relevant fact even to a
slight degree, [as] long as it is not prejudicial . . . .’’
(Internal quotation marks omitted.) State v. Bonner,
290 Conn. 468, 497, 964 A.2d 73 (2009). ‘‘The [trial] court
has the discretion to exclude speculative evidence,
expert or otherwise.’’ Message Center Management,
Inc. v. Shell Oil Products Co., 85 Conn. App. 401, 421,
857 A.2d 936 (2004); see also State v. Isabelle, 107 Conn.
App. 597, 607, 946 A.2d 266 (2008) (‘‘[i]t is a reasonable
exercise of judicial discretion to exclude . . . evidence
the relevancy of which appears to be so slight and
inconsequential that to admit it would distract attention
which should be concentrated on vital issues of the
case’’ (internal quotation marks omitted)).
Preliminarily, the defendant argues that, when a
defendant claims to have acted in self-defense, ‘‘evi-
dence of the victim’s motive to attack the defendant is
relevant.’’ In support of this proposition, the defendant
relies heavily on this court’s analysis in State v. Thomas,
110 Conn. App. 708, 955 A.2d 1222, cert. denied, 289
Conn. 952, 961 A.2d 418 (2008). In Thomas, the defen-
dant, who was charged with assault, raised the defense
of self-defense. Id., 713. In furtherance of her claim of
self-defense, the defendant attempted to demonstrate
at her criminal trial that the alleged victim was the initial
aggressor and that the victim’s motive in assaulting the
defendant was that she wanted to prevent the defendant
from conveying certain information to the defendant’s
boyfriend about the victim’s ‘‘ ‘illegitimate child’ . . . .’’
Id., 714; see also id., 717. The trial court disallowed the
evidence on the ground of relevance. See id., 715.
The defendant in Thomas appealed to this court,
claiming in relevant part that the trial court violated
her constitutional right to present a defense by preclud-
ing her from presenting evidence that the victim had
a motive to act as the aggressor. Id., 713. This court
concluded ‘‘that the [trial] court improperly excluded
evidence relevant to [the victim’s] alleged motive to
attack the defendant. Because the defendant raised the
defense of self-defense at trial, the determination of
whether [the victim] or the defendant was the initial
aggressor was material. . . . Although the proffered
evidence may have strained credulity, it tended to cor-
roborate the defendant’s assertion that [the victim] ini-
tially attacked her because it tended to show that [the
victim] had a motive to attack the defendant to prevent
her from relaying information about [the victim’s] child
to [the alleged father of the child, the defendant’s boy-
friend]. To be relevant, the evidence need not exclude
all other possibilities; it is sufficient if it tends to support
the conclusion [for which it is offered], even to a slight
degree. . . . The odd nature of the offer does not
detract from its ability to support the conclusion for
which it was offered. Accordingly, we conclude that
the evidence was relevant and that its exclusion consti-
tuted an abuse of the court’s discretion.’’ (Citations
omitted; internal quotation marks omitted.) Id., 717.
This court, however, went on to conclude that the trial
court’s ruling did not rise to the level of a constitutional
violation because it did not foreclose an entire defense
theory. See id., 718. This court also concluded that the
ruling was not harmful because the exclusion of the
evidence did not substantially affect the verdict. See
id., 719.
In the present case, the defendant also argues that
the evidence at issue ‘‘was highly relevant to show that
[the victim] had a motive for attacking the defendant.
Just as in Thomas, the evidence corroborated the defen-
dant’s claims of self-defense and that [the victim]
became aggressive because he thought the defendant
was talking to the police. It certainly is reasonable to
infer that this belief triggered [the victim’s] aggression
because he knew there was a warrant for his arrest and
he had no driver’s license.’’ The defendant also argues
that, pursuant to § 4-5 (c) of the Connecticut Code of
Evidence, evidence of a person’s other crimes is admis-
sible to prove motive and that there was an evidentiary
basis to admit the evidence in light of the defendant’s
testimony about the victim’s statements to him at the
scene of the crime after the victim observed the defen-
dant using his cell phone.
We agree with the defendant that, because he raised
the defense of self-defense, the issue of whether he or
the victim was the aggressor was a material issue of
fact for the jury’s consideration in evaluating whether
his use of physical force was justified under the circum-
stances. General Statutes § 53a-19 (a), which delineates
the defense of self-defense, provides: ‘‘Except as pro-
vided in subsections (b) and (c) of this section, a person
is justified in using reasonable physical force upon
another person to defend himself or a third person from
what he reasonably believes to be the use or imminent
use of physical force, and he may use such degree of
force which he reasonably believes to be necessary for
such purpose; except that deadly physical force may
not be used unless the actor reasonably believes that
such other person is (1) using or about to use deadly
physical force, or (2) inflicting or about to inflict great
bodily harm.’’ See also State v. Thomas, supra, 110
Conn. App. 717. The issue in the present case may be
distilled to whether the proffered evidence had a logical
tendency, even to a slight degree, to support a finding
that the victim was the initial aggressor.
Even if we assume, in the absence of any evidence
that the victim knew that the court had denied his
motion to vacate the rearrest warrant, that the victim
was aware of an outstanding warrant for operating
under suspension at the time of the accident, the prof-
fered evidence does not logically tend to support the
proposition for which it was introduced. Consistent
with the defendant’s view of the evidence, there was
an evidentiary basis on which to conclude that the vic-
tim was under the belief that the defendant had sum-
moned the police. The defendant testified that, after
his automobile and the victim’s automobile collided,
the two men stopped their automobiles on the exit
ramp. The defendant exited his automobile while on
his cell phone. He used the cell phone to take a photo-
graph of the victim’s license plate. When the victim
observed this conduct, he inquired whether the defen-
dant had called the police, something that would be
reasonable to presume in the immediate aftermath of an
automobile accident that, as the defendant maintained,
was caused by the victim. The defendant responded
coyly, ‘‘not to worry about it.’’ This vague response
reasonably could have been interpreted by the victim
as an affirmation that the police were on their way.
We agree with the court, however, that the proffered
evidence tended to undermine the purpose for which it
was introduced. The defendant argued that the evidence
gave the victim a strong motive to be the initial aggres-
sor to prevent detection by the police. If the victim
wanted to avoid the police and evade arrest, it is reason-
able to infer that he either would have not stopped his
automobile on the exit ramp or that he would have fled
the scene once he observed the defendant on his cell
phone. The defendant testified unambiguously, how-
ever, that neither of these things occurred. It is not
logical to infer that a person seeking to avoid the police
following his involvement in a minor automobile acci-
dent would initiate a physical altercation, in a very
public place, with a person he believed to be actively
speaking with or summoning the police. Nothing in the
defendant’s testimony suggests that the victim acted in
such a manner as to distance himself from the police
when they arrived at the accident scene. Thus, we agree
with the trial court’s assessment that the evidence did
not have a logical tendency, even to a slight degree, to
support the proposition for which it was introduced.
As a result, it was not relevant for the purpose for which
it was introduced.
The court also concluded that the evidence was
unduly prejudicial. The defendant challenges this
aspect of the court’s ruling in a cursory manner, simply
arguing that there was ‘‘no merit to the court’s finding
that the evidence was prejudicial.’’ The Connecticut
Code of Evidence provides that ‘‘[r]elevant evidence
may be excluded if its probative value is outweighed
by the danger of unfair prejudice . . . .’’ Conn. Code
Evid. § 4-3. This court has described the familiar analy-
sis to determine undue prejudice as follows: ‘‘Of course,
[a]ll adverse evidence is damaging to one’s case, but it
is inadmissible only if it creates undue prejudice so that
it threatens an injustice were it to be admitted. . . .
The test for determining whether evidence is unduly
prejudicial is not whether it is damaging to the defen-
dant but whether it will improperly arouse the emotions
of the jur[ors]. . . . The trial court . . . must deter-
mine whether the adverse impact of the challenged
evidence outweighs its probative value. . . . Finally,
[t]he trial court’s discretionary determination that the
probative value of evidence is not outweighed by its
prejudicial effect will not be disturbed on appeal unless
a clear abuse of discretion is shown. . . . [B]ecause
of the difficulties inherent in this balancing process
. . . every reasonable presumption should be given in
favor of the trial court’s ruling. . . . Reversal is
required only [when] an abuse of discretion is manifest
or [when] injustice appears to have been done.’’ (Inter-
nal quotation marks omitted.) State v. Dillard, 132
Conn. App. 414, 425–26, 31 A.3d 880 (2011), cert. denied,
303 Conn. 932, 36 A.3d 694 (2012).
In the present case, it was the state, not the defendant,
that argued that the evidence was unduly prejudicial
to the state’s case. In light of our conclusion that the
proffered evidence did not have any probative value
with respect to the material issue for which it was
offered, namely, whether the victim was the initial
aggressor, we have little difficulty agreeing with the
court that evidence that the victim was an unlicensed
driver and that he had an outstanding warrant for
operating under suspension was unduly prejudicial.
Such evidence clearly portrayed the victim in a negative
light and was likely to arouse the emotions of the jurors.
Even if we were to conclude that the court abused
its discretion in concluding that the proffered evidence
was not relevant and that it was unduly prejudicial, we
nonetheless would conclude that the defendant is not
entitled to a new trial. As we stated previously in this
opinion, the defendant claims, in part, that the court’s
improper exclusion of the evidence was an impropriety
of constitutional dimension, depriving him of his right
to present a defense.3 Our careful review of the record
leads us to conclude that the exclusion of the evidence
in question did not deprive the defendant of an opportu-
nity to present a complete defense.
The defendant’s position is that, had the evidence
been admitted and credited by the jury, it could have
supported his claim that the victim was the initial
aggressor and, thus, that the defendant had acted in
self-defense. The defendant, however, had every oppor-
tunity, through his own testimony, to provide ample
evidence that the victim was the initial aggressor and
that the defendant used the knife under a belief that
his life was in jeopardy. Because the defendant was
adequately able to present his claim of self-defense by
way of his own testimony, by cross-examining the
state’s witnesses, and through the opportunity to pres-
ent any other relevant and admissible evidence with
respect to his theory of defense, he is unable to demon-
strate that the exclusion of this evidence deprived him
of his right to present a defense. See, e.g., State v.
Shabazz, 246 Conn. 746, 758 n.7, 719 A.2d 440 (1998)
(no deprivation of constitutional right to present
defense when ‘‘defendant was adequately permitted to
present his claim of self-defense by way of his own
testimony, by cross-examining the state’s witnesses,
and by the opportunity to present any other relevant
and admissible evidence bearing on that question’’),
cert. denied, 525 U.S. 1179, 119 S. Ct. 1116, 143 L. Ed.
2d 111 (1999); see also State v. Thomas, supra, 110
Conn. App. 718 (‘‘[b]ecause the theory in question pro-
vided at most merely one more motivation to attack,
its exclusion did not foreclose an entire defense theory
and, therefore, did not rise to the level of a constitu-
tional violation’’). In the present case, the exclusion of
the evidence did not foreclose an entire defense theory,
and its exclusion did not give rise to a constitutional
violation.
We are left to address the defendant’s alternative
argument that, even if the court’s ruling did not rise to
the level of constitutional impropriety, it still consti-
tuted harmful evidentiary error warranting a new trial.
‘‘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 [on] a number of factors, such as the impor-
tance of the . . . testimony in the prosecution’s case,
whether the testimony was cumulative, the presence
or absence of evidence corroborating or contradicting
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 nonconstitu-
tional error is harmless when an appellate court has a
fair assurance that the error did not substantially affect
the verdict.’’ (Internal quotation marks omitted.) State
v. Courtney G., Conn. , , A.3d (2021).
Even if we were to assume that the court’s ruling
was erroneous, the defendant has not persuaded us
that it substantially affected the verdict. As we stated
previously, although the court, on relevancy grounds,
excluded some of the evidence that the defendant
sought to introduce, the defendant presented ample
evidence in support of his defense of self-defense. The
state, however, presented a strong case and disproved
the defense of self-defense beyond a reasonable doubt.
The defendant testified that he consumed two beers
in less than one hour prior to driving home from the
restaurant where he was employed. There is no dispute
that the defendant and the victim were engaged in a
physical altercation and that, during the altercation, the
defendant used a knife that he had removed from his
automobile. The victim died of a stab wound. There
was evidence that, when the defendant called 911 from
the scene, but prior to speaking with a dispatcher, he
was shouting at and swearing at the victim. At one point,
he was shouting, ‘‘[h]it me. Hit me . . . .’’ Although the
defendant testified that he swung the knife two times
during the physical confrontation, there was evidence
that the victim had been stabbed four times, which
included the fatal thrust to his heart. There was evi-
dence that, when the defendant spoke to a police dis-
patcher immediately after leaving the scene, he did not
mention being in fear for his life, let alone state that
he had used a knife. Moreover, the state presented
evidence that, after the defendant left the scene, he
concealed the knife in the trunk of his automobile. The
state also presented evidence that, when the defendant
was asked by the police whether there was a knife
in his automobile, and after he observed the police
searching the inside of the automobile, he hesitated
before replying affirmatively. On the basis of the forego-
ing, we are not persuaded that the jury’s verdict would
have been different even if it had before it the precluded
evidence that was related to the victim’s rearrest status
at the time of the accident.
B
Next, the defendant claims that the court improperly
excluded a recording of the second 911 call he made
after his encounter with the victim. This recording was
purportedly made by the defendant after he left the
victim and while he was waiting for the police to arrive
at the intersection of Lindley Street and Salem Street
in Bridgeport. The defendant argues that the recording
was admissible under the spontaneous utterance excep-
tion to the rule against hearsay. We disagree.
The following additional facts are relevant to this
claim. On the first day of the trial, November 27, 2017,
the defendant filed a memorandum of law in support
of the admissibility of the evidence at issue. He argued
that it was admissible under the spontaneous utterance
exception to the rule against hearsay; see Conn. Code
Evid. § 8-3 (2); under the state of mind exception to
the rule against hearsay; see Conn. Code Evid. § 8-3 (4);
and as part of the res gestae. Because, in the present
claim, the defendant focuses on whether the court
improperly determined that the evidence was not
admissible under the spontaneous utterance exception,
we will focus our attention on the arguments made and
the court’s ruling only with respect to that theory of
admissibility.
In his memorandum of law, the defendant argued:
‘‘As the call demonstrates, the defendant’s comments,
tone and demeanor indisputably exhibit spontaneity,
excitement and panic. The time frame was contempora-
neous with, and part of, the event. The defendant placed
the call to 911, thereby subjecting, knowingly, himself
to identification on that recorded police line. The call
was made by the defendant, initiated as a victim of
the decedent’s conduct, with the purpose of obtaining
emergency assistance from [the] police. The reported
event was certainly startling. In these respects, the
defendant’s 911 call is indistinguishable from other vic-
tim related 911 conversations that are routinely admit-
ted in this state and others.’’
The following day, defense counsel indicated to the
court that the defense intended to introduce the second
911 recording. The state indicated that it objected to
the recording. The prosecutor stated that the state did
not object to the initial 911 recording, which was admit-
ted in evidence. The prosecutor argued that it was
undisputed that the second 911 call, in contrast with
the first 911 call, did not reflect spontaneous utterances
but ‘‘self-serving inadmissible hearsay. . . . It’s really
a discussion about who you are, what was going on.’’
The prosecutor relied on the undisputed facts sur-
rounding the proffered evidence, namely, that the defen-
dant made the second 911 call one to two minutes after
the first 911 call ended, after he had left the scene of
the stabbing and while he was waiting for the police
to arrive at the intersection of Lindley Street and
Salem Street.
Defense counsel argued that the recording was
admissible as a spontaneous utterance because it could
be interpreted as a continuation of the first 911 call,
which was made contemporaneously with the defen-
dant’s altercation with the victim on the exit ramp.
Defense counsel essentially argued that, when the
defendant made the second 911 call, he was still experi-
encing feelings of panic, nervousness, and upset. After
the court reviewed the recording of the second 911
call, it excluded the evidence. The court explained its
understanding of what constitutes a spontaneous utter-
ance4 and then turned to the specific evidence at issue
as follows: ‘‘[W]e all have discussed and gone through
the idea of what a spontaneous utterance is, and while
I don’t disagree, and counsel has reiterated the idea
of it being a startling event, it has to have personal
observation, but . . . the whole point of the idea of a
spontaneous utterance is that it is deemed to have some
level of trustworthiness because it’s in a scenario where
the individual who is uttering the statement has not
had an opportunity to reflect on it or try to elicit a
statement that is self-serving or motivated by any idea
of being self-serving. . . .
‘‘We’ve already heard . . . [the recording of the first
911 call]. The [recording of the] second . . . [call] is
largely the defendant wondering where the police are
and then kind of reiterating to the operator, you know,
what his account is. It is self-serving. It is the defen-
dant’s own statement. It does not come in as a spontane-
ous utterance for all of the reasons that I have pre-
viously indicated.’’
Having set forth the court’s ruling, we turn to the
applicable legal principles. Hearsay is ‘‘a statement,
other than one made by the declarant while testifying
at the proceeding, offered in evidence to establish the
truth of the matter asserted.’’ Conn. Code Evid. § 8-1
(3). Generally, hearsay is inadmissible. Conn. Code Evid.
§ 8-2 (a). Spontaneous utterances are not excluded by
the rule against hearsay, even though the declarant is
available as a witness. Conn. Code Evid. § 8-3. A sponta-
neous utterance is ‘‘[a] statement relating to a startling
event or condition made while the declarant was under
the stress or excitement caused by the event or condi-
tion.’’ Conn. Code Evid. § 8-3 (2). Our Supreme Court
has explained that ‘‘the spontaneous utterance excep-
tion . . . applies to an utterance or declaration that:
(1) follows some startling occurrence; (2) refers to the
occurrence; (3) is made by one having the opportunity
to observe the occurrence; and (4) is made in such
close connection to the occurrence and under such
circumstances as to negate the opportunity for delibera-
tion and fabrication by the declarant. . . . [T]he ulti-
mate question is whether the utterance was spontane-
ous and unreflective and made under such
circumstances as to indicate absence of opportunity
for contrivance and misrepresentation. . . . Whether
an utterance is spontaneous and made under circum-
stances that would preclude contrivance and misrepre-
sentation is a preliminary question of fact to be decided
by the trial judge. . . . The trial judge exercises broad
discretion in deciding this preliminary question, and
that decision will not be reversed on appeal absent an
unreasonable exercise of discretion.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Wargo,
255 Conn. 113, 127–28, 763 A.2d 1 (2000). To be admissi-
ble as a spontaneous utterance, ‘‘[t]he event or condi-
tion must be sufficiently startling so as to produce ner-
vous excitement in the declarant and render [the
declarant’s] utterances spontaneous and unreflective.’’
(Internal quotation marks omitted.) State v. Kirby, 280
Conn. 361, 374, 908 A.2d 506 (2006).
In the present case, there appears to be no dispute
that the second 911 call followed a startling occurrence,
it referred to the occurrence, and it was made by one
having the opportunity to observe the occurrence. The
point of disagreement between the parties was whether
the declaration was made in such close connection to
the occurrence as to negate the opportunity for deliber-
ation and fabrication. The court’s ruling was based on
its determination that the declaration was not made
under circumstances that would preclude contrivance
and misrepresentation. As we stated previously, the
parties do not dispute the facts relevant to this inquiry,
namely, that the defendant made the second 911 call
one to two minutes after the first 911 call ended, after
he had left the scene of the stabbing, and while he was
waiting for the police to arrive at the intersection of
Lindley Street and Salem Street.
The defendant’s appellate argument is based largely
on his belief that, because the second 911 call occurred
‘‘only a few minutes after the first [911] call ended,’’
‘‘there is no indication that the statements [in the second
call] were anything other than spontaneous’’ and that
the court erroneously excluded the recording. The
defendant also argues that the fact that the declaration
was a spontaneous utterance undermines the court’s
characterization of the declarations in the second call
as ‘‘self-serving.’’ The defendant asserts that relevant
statements should not be excluded from the evidence
as self-serving if, as here, they fall within an exception
to the rule against hearsay.
As this court has stated, ‘‘[t]he relation of the utter-
ance in point of time to the . . . occurrence, while
an important element to be considered in determining
whether there has been opportunity for reflection, is
not decisive. . . . Instead, [t]he overarching consider-
ation is whether the declarant made the statement
before he or she had the opportunity to undertake a
reasoned reflection of the event described therein. . . .
[W]e follow the rule embraced by the majority of juris-
dictions that have addressed the issue of the effect of
the time interval between the startling occurrence and
the making of the spontaneous utterance, and conclude
that there is no identifiable discrete time interval within
which an utterance becomes spontaneous; [e]ach case
must be decided on its particular circumstances.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Dubuisson, 183 Conn. App. 62, 76, 191 A.3d 229, cert.
denied, 330 Conn. 914, 193 A.3d 560 (2018).
Having reviewed the proffered evidence and the
undisputed circumstances concerning the making of the
second 911 call, we agree with the court’s determination
that the statements therein did not constitute a sponta-
neous utterance. The defendant made the call after he
had driven away from the scene of his altercation with
the victim. It was eminently reasonable to infer that,
by this time, the defendant was aware of the seriousness
of his predicament and that his statements to the 911
dispatcher could have serious consequences for him.
Despite the fact that the second call was made minutes
after the first 911 call ended, the facts suggest that the
defendant made the second 911 call from a location of
relative calm where he no longer expected to encounter
the victim, let alone have an opportunity to perceive
any material facts related to his altercation with the
victim. As the court observed, in the second 911 call,
the defendant, among other things, told the dispatcher
that he was still waiting for the police to arrive, asked
the dispatcher when the police would arrive, stated that
his automobile battery was malfunctioning, and made
factual statements concerning his altercation with the
victim that were consistent with the statements that
he made during his first 911 call. The defendant also
expressed his regret that the automobile accident had
escalated into a hostile event.5 On this record, the court
reasonably found that the second 911 call was not made
in such close connection to the occurrence as to negate
the opportunity for deliberation and fabrication and,
thus, properly went on to conclude that the statements
therein were self-serving and inadmissible hearsay.
Having concluded that the court’s evidentiary ruling
did not reflect an abuse of discretion, we likewise con-
clude that the ruling did not infringe on the defendant’s
right to present a defense. Although the defendant ade-
quately preserved for appellate review his claim of evi-
dentiary error, he did not claim at trial that the exclusion
of the evidence infringed on his right to present a
defense and seeks extraordinary review of this unpre-
served aspect of the claim. As requested by the defen-
dant, we will consider the constitutional aspect of the
present claim under the bypass doctrine set forth in
State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989),
as modified by In re Yasiel R., 317 Conn. 773, 781,
120 A.3d 1188 (2015). Under this familiar doctrine, ‘‘a
defendant can prevail on a claim of constitutional error
not preserved at trial only if all of the following condi-
tions are met: (1) the record is adequate to review the
alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial; and (4) if
subject to harmless error analysis, the state has failed to
demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt.’’ (Emphasis omit-
ted; footnote omitted.) Id., 239–40. ‘‘The first two [Gold-
ing] requirements involve a determination of whether
the claim is reviewable; the second two requirements
involve a determination of whether the defendant may
prevail.’’ State v. George B., 258 Conn. 779, 784, 785
A.2d 573 (2001). Here, the claim is of constitutional
magnitude, alleging the deprivation of a constitutional
right, and the record is adequate to review the claim
because it is based on the evidentiary ruling. The claim
fails under Golding’s third prong because, in light of
our conclusion that the court properly excluded the
evidence in applying the rules of evidence, the defen-
dant is unable to demonstrate that a constitutional viola-
tion exists and that it deprived him of a fair trial. See,
e.g., State v. David N.J., supra, 301 Conn. 133.
C
Next, the defendant claims that the court improperly
excluded a portion of his videotaped police interview
that depicts his reaction upon being informed by the
police that the victim had died. The defendant argues
that the evidence was admissible under the spontane-
ous utterance exception to the rule against hearsay. We
disagree.
The following additional facts are relevant to this
claim. On the third day of trial, November 29, 2017,
defense counsel informed the court that the defendant
intended to present in evidence a portion of his video-
taped statement to the police. Specifically, defense
counsel referred to a portion of the recorded interview
in which the police informed the defendant that the
victim had died. Defense counsel stated that the video-
tape reflected the defendant’s ‘‘strong emotional reac-
tion to the receipt of the startling news in relation to
the death of [the victim]. And I think that portion of
the tape would . . . qualify as excited utterances at
that point in time.’’ Defense counsel stated: ‘‘I’d simply
indicate to the court, in looking at the video, you will
hear things like [the defendant] indicating he can’t even
stand up, his knees are wobbly, he wants [the police]
to dial the telephone for him, his emotional reaction,
his crying, his indicating a ‘no-no-no,’ maybe [the police]
. . . have to be mistaken, the [victim] was walking back
to his car.’’ Defense counsel stated that the defendant’s
reaction was ‘‘unguarded, unprepared, [with] . . . no
opportunity to script what then happens . . . .’’ The
state objected on the ground that the defendant’s state-
ments constituted self-serving hearsay and did not fall
within the spontaneous utterance exception. The prose-
cutor argued, and it is not in dispute, that the utterances
at issue occurred more than six hours after the defen-
dant’s altercation with the victim, while the defendant
was being interviewed by the police.
After reviewing the portion of the videotape on which
the defendant relied, the court stated that a spontane-
ous utterance that follows a startling event refers to
the startling event and is made by one who personally
observed the event. The court then stated that a sponta-
neous utterance had to be made under circumstances
suggesting that the declarant lacked an opportunity to
reflect on what he stated or to craft a self-serving decla-
ration. The court also stated, ‘‘[s]o, in this particular
instance . . . it’s many hours after the incident
occurred. It’s a situation in which the defendant is reit-
erating, basically, what he feels happened. . . . [T]he
defense is arguing that the startling event is really [the
defendant] being told that the decedent had passed.
. . .
‘‘In this instance, it is reflecting back to something
that occurred many hours before. In addition, the defen-
dant clearly knows that he is being questioned and is
a suspect in a criminal case. He has been giving state-
ments to the police for many hours. He has been advised
of his rights, by his own testimony. So, all of that indicia
of trustworthiness that would normally apply to a spon-
taneous utterance are not applicable in this particular
scenario.’’ In its ruling, the court discussed and relied
on our Supreme Court’s analysis of a similar claim in
State v. Kelly, 256 Conn. 23, 59–62, 770 A.2d 908 (2001).
In our analysis of the defendant’s claim, we rely on
the legal principles set forth in part I B of this opinion,
which pertain to the spontaneous utterance exception
to the rule against hearsay. The defendant’s appellate
arguments mirror those that he raised at trial. In particu-
lar, he argues that the court improperly considered the
startling occurrence to be the defendant’s interaction
with the victim on the exit ramp. Instead, the defendant
argues, ‘‘the startling occurrence was [the defendant’s]
finding out that [the victim] had died when [the] defen-
dant had no idea about the extent of his injuries during
the entire interview. . . . [The] [d]efendant should
have been able to show that he was genuinely shocked
when he learned of it.’’
Like the trial court, we consider Kelly to be instruc-
tive and, thus, discuss that case here in some detail. In
Kelly, the defendant, following his conviction of sexual
assault in the first degree, claimed on appeal that the
trial court improperly had excluded as hearsay a state-
ment that he made to his father on the night of the
assault. State v. Kelly, supra, 256 Conn. 58–59. The
defendant argued that his statement was admissible
under the spontaneous utterance exception to the rule
against hearsay because he made this statement imme-
diately after being awakened from a sound sleep and
confronted with an accusation that he had sexually
assaulted the female victim. Id., 59. Our Supreme Court
set forth the relevant facts underlying the defendant’s
claim: ‘‘The state filed a motion in limine requesting
that the court exclude testimony by Joseph Kelly, the
defendant’s father, as to a statement made to him by
the defendant. The state argued, in its motion in limine,
that the defendant’s statement was inadmissible hear-
say. In response to the state’s motion in limine, the
defendant argued that this statement was admissible
under the excited utterance exception to the hearsay
rule, as it was made after the defendant was startled
awake from a sound sleep and confronted with the
victim’s sexual assault allegations.
‘‘The defendant proffered the following evidence. At
approximately 1:30 a.m. on February 11, 1986, the defen-
dant’s father received a telephone call from the victim’s
father. During this telephone conversation, the victim’s
father told . . . Kelly that [Kelly’s] son had just sexu-
ally assaulted the caller’s daughter. Immediately after
this telephone conversation . . . Kelly went into the
defendant’s bedroom and shook him awake. . . . Kelly
then told his son that the victim’s father had called,
claiming that the defendant had sexually assaulted his
daughter. The defendant then allegedly responded,
‘Dad, I didn’t rape his daughter . . . we had sex.’
‘‘The trial court granted the state’s motion in limine
to exclude the testimony of . . . Kelly regarding the
defendant’s statement to him on the night of the assault,
because it found that this statement constituted inad-
missible hearsay. Subsequently, the trial court also
denied the defendant’s motion for reconsideration. Spe-
cifically, the trial court found that the sexual assault was
the startling occurrence and the time that had passed
between the assault and the defendant’s statement to
his father was sufficient to give the defendant an oppor-
tunity to fabricate the statement. In addition, the trial
court held that even if the startling occurrence had been
the defendant’s father awakening the defendant from
a sound sleep and confronting him with the accusation,
the totality of the circumstances—especially that it was
a self-serving denial—strongly suggested that the defen-
dant’s statement was unreliable and inadmissible.’’
Id., 59–60.
After setting forth applicable legal principles, our
Supreme Court stated, ‘‘[i]n the present case, the trial
court properly determined that, under the totality of
the circumstances, the defendant’s statement was not
spontaneous, but was made with ample time for rea-
soned reflection . . . . More than one and one-half
hours had passed between the time of the sexual assault
and the defendant’s statement to his father. During this
time, the defendant had dropped the victim off at her
home, gone to his own home, and gone to bed. The
defendant argues that he did not have the opportunity
to fabricate a story because he went home and immedi-
ately went to sleep. The defendant presented, however,
no evidence to that effect. The defendant has not met his
burden of proving that he did not have an opportunity
to think about and fabricate a story that night after the
assault. . . .
‘‘The defendant also argues that the startling occur-
rence was not the sexual assault, but was the act of
being awakened by his father and confronted with an
accusation. The excited utterance exception requires,
however, that the statement not only immediately fol-
low a startling event, but that it must also relate to that
startling occurrence. . . . Even if being awakened by
his father was startling to the defendant, the defendant’s
statement did not relate to being awakened, but to the
sexual assault that had occurred more than one and
one-half hours earlier. Under the defendant’s reasoning,
any statements made by a defendant denying an accusa-
tion of criminal activity could qualify as an excited
utterance and be offered for the truth of the matter
asserted therein, namely, that the accused did not com-
mit the offense. This would contravene the excited
utterance exception, the purpose of which is to admit
inherently trustworthy statements made in response to
a shocking event. . . . In light of the totality of the
circumstances the trial court properly determined that
in the present case, the defendant’s self-serving excul-
patory statement was not an excited utterance and
therefore the trial court properly excluded the defen-
dant’s father’s testimony regarding that statement.’’
(Citations omitted; internal quotation marks omitted.)
Id., 61–62.
Applying the reasoning of Kelly to the present claim,
we conclude that the trial court properly determined
that the statements at issue were not excited utterances.
It is undisputed that the defendant made the statements
at issue to the police several hours after his violent
altercation with the victim. By this point in time, the
defendant was well aware that he was a suspect in a
criminal case, that he was at police headquarters, and
that he was being interviewed by the police in connec-
tion with his altercation with the victim. These circum-
stances reflect that the defendant was aware that any
statements concerning the encounter with the victim,
including any statements about the victim’s physical
condition, would likely affect his penal interest. The
defendant had a lengthy opportunity to contemplate
the seriousness of his predicament and to craft a
response that would tend to bolster his version of events
and thereby help him avoid prosecution. Thus, the
undisputed circumstances amply support a finding that
the statements were not spontaneous. Moreover, we
note that the defendant’s response was self-serving. It
was an expression of disbelief by the defendant that
the victim had died and, thus, was consistent with his
assertions to the police that he did not stab the victim
in the chest and that, when he left the exit ramp, the
victim was not merely alive but continuing to act in an
aggressive manner.
We also reject the defendant’s argument that the star-
tling event was his being provided news that the victim
had died and not, as the court reasoned, his altercation
with the victim. The defendant’s reaction to learning
of the victim’s death was relevant, if at all, to the extent
that it shed light on the defendant’s altercation with
the victim. Stated otherwise, even if the defendant was
startled by news of the victim’s death, his reaction to
this news was relevant to an assessment of his conduct
during his altercation with the victim and, specifically,
whether he had caused the victim’s death. The defen-
dant’s expression of disbelief that the victim had died,
therefore, is analogous to a denial of culpability in the
victim’s death. Thus, the court properly considered the
startling event to be the altercation that had occurred
many hours earlier on the exit ramp.
Considering the totality of the circumstances sur-
rounding the statements at issue, we conclude that the
defendant’s self-serving statements of disbelief that the
victim had died did not fall under the spontaneous utter-
ance exception to the rule against hearsay and, there-
fore, the court properly excluded these statements. Hav-
ing concluded that the court’s evidentiary ruling did
not reflect an abuse of discretion, we likewise conclude
that the ruling did not infringe on the defendant’s right
to present a defense. Although the defendant adequately
preserved for appellate review his claim of evidentiary
error, he did not claim at trial that the exclusion of the
evidence infringed on his right to present a defense and
seeks extraordinary review of the unpreserved claim.
As requested by the defendant, we will consider the
constitutional aspect of the present claim under the
bypass doctrine set forth in State v. Golding, supra, 213
Conn. 239–40.6 The record is adequate to review the
claim, which is based on the court’s evidentiary ruling,
and the claim is of constitutional magnitude, alleging
the deprivation of a constitutional right. The claim fails
under Golding’s third prong because, in light of our
conclusion that the court properly excluded the evi-
dence in applying the rules of evidence, the defendant
is unable to demonstrate that a constitutional violation
exists and that it deprived him of a fair trial. See, e.g.,
State v. David N.J., supra, 301 Conn. 133.
II
Next, the defendant claims that the court misled the
jury by instructing it to consider lesser included
offenses even if it found in its assessment of a greater
offense that the state had failed to disprove the defense
of self-defense. Arguing that the court did not properly
instruct the jury with respect to the order of its delibera-
tions, the defendant states, ‘‘[t]his was simply wrong.
Because self-defense is a complete defense, the jurors
could not have considered the lesser offenses if they
acquitted the defendant of a greater offense on the basis
of self-defense. By repeatedly giving this instruction,
the court misled the jury about the consequences of a
finding that the defendant acted in self-defense. In short,
the jury could not have understood the true nature of
self-defense and how it shielded the defendant from
any criminal liability. His defense was rendered useless,
and a new trial is warranted.’’ We disagree.
In its charge, the court instructed the jury in relevant
part: ‘‘The defendant has been specifically charged with
the offense of murder. The very nature of this offense
is such that it may include the elements of what are
called lesser included crimes. The lesser included
crimes that come under murder for purposes of this
particular case are as follows: manslaughter in the first
degree, manslaughter in the second degree, and crimi-
nally negligent homicide.
‘‘Now, under the lesser offense doctrine, if and only
if you unanimously find the defendant not guilty of this
specifically charged offense, remember, in this case it’s
murder, you then go on to consider . . . whether the
evidence is sufficient to establish beyond a reasonable
doubt that the defendant is guilty of the lesser included
offenses. And it begins in that order; the lesser included
offense of manslaughter in the first degree and then you
would move on to any further lesser included offenses,
manslaughter in the second degree, criminally negligent
homicide, in accordance with the lesser included
offense charge that I’m going to be giving you.
‘‘If you find that the elements of the crime of murder
have been proved beyond a reasonable doubt . . . you
shall then go on to consider the defense of self-defense
. . . . If you unanimously find that the state has dis-
proved beyond a reasonable doubt the defense of self-
defense, you must reject that defense and find the defen-
dant guilty. . . .
‘‘If, on the other hand, you unanimously find that the
state has not disproved beyond a reasonable doubt the
defense of self-defense . . . then, on the strength of
that defense alone, you must find the defendant not
guilty, despite the fact that you have found the elements
of the crime proved beyond a reasonable doubt. And
this same analysis will apply to each of the named lesser
included offenses should you reach deliberation on
those charges.’’
After providing these instructions with respect to the
offenses of murder and manslaughter in the first degree,
the court stated, ‘‘[s]o you can see that you do the same
analysis for each [offense]. You begin with the murder.
If you find that the elements have been proved beyond
a reasonable doubt, you move to consider self-defense.
If you find that they have not been proven and you
unanimously find the defendant not guilty of the crime
of murder, you move on to manslaughter in the first
degree. That’s the first lesser included offense, right?
If you find that the state has proved beyond a reasonable
doubt all of the elements of that lesser included offense
of manslaughter in the first degree, you would then go
on to consider the defense of self-defense . . . . So,
again, it’s the same analysis for . . . each of the
offenses.
‘‘All right. Now, if you . . . unanimously find the
defendant not guilty of the lesser included offense of
manslaughter in the first degree, you would then move
to consider the second lesser included offense of man-
slaughter in the second degree.
‘‘The second applicable lesser included offense is
manslaughter in the second degree. If you unanimously
have found the defendant not guilty of the crime of
manslaughter in the first degree, you shall then consider
this lesser included offense. Do not consider the lesser
included offense until you have unanimously acquitted
the defendant of the greater offense, okay?’’
After the court delivered these instructions with respect
to manslaughter in the second degree, it referred to
self-defense, stating that, if ‘‘you unanimously find that
the state has not disproved beyond a reasonable doubt
at least one of the elements of the defense, or has not
proved one of the statutory disqualifications of self-
defense, then, on the strength of that defense alone,
you must find the defendant not guilty despite the fact
that you have found the elements of the crime proved
beyond a reasonable doubt.
‘‘If you have unanimously found the defendant not
guilty of the crime of manslaughter in the second degree,
you shall then consider the lesser offense of criminally
negligent homicide. Do not consider the offense unless
and until you have unanimously acquitted the defendant
of the greater offense.’’
After the court instructed the jury with respect to
criminally negligent homicide, it stated: ‘‘If you unani-
mously find that all of the elements of the crime of
criminal negligent homicide have been proved beyond
a reasonable doubt, you shall then consider the defense
of self-defense . . . . If you unanimously find that the
state has disproved beyond a reasonable doubt the
defense of self-defense, you must reject the defense
and find the defendant guilty of this offense. If, on the
other hand, you unanimously find that the state has not
disproved beyond a reasonable doubt the defense of
self-defense, then, on the strength of the defense alone,
you must find the defendant not guilty despite the fact
that you have found the elements of the crime proved
beyond a reasonable doubt.’’
The court provided lengthy instructions with respect
to the defense of self-defense. The court reminded the
jury that the defense applied to the charged offense,
murder, and all of the lesser included offenses. The
court then emphasized this point and stated: ‘‘Now, just
as a general summary on your order of your delibera-
tions. If, and only if, you unanimously find the defendant
not guilty of the crime specifically charged, which, in
this case is, murder, you then go on to consider whether
the evidence is sufficient to establish beyond a reason-
able doubt the defendant’s guilt of the lesser included
offenses. You begin with manslaughter in the first
degree. . . . So, you only move on to the lesser
included offenses if, and only if, you have unanimously
found the defendant not guilty of the charged offense
of murder, okay?
‘‘If you do find that the state has proven all of the
elements of the charged offense of murder . . . you
will then go on to further consider the defense of self-
defense . . . . So, you . . . unanimously find not
guilty of the offense of murder, you move on to the
lesser included offense of manslaughter in the first
degree. Okay.
‘‘If you found that the state has proven beyond a
reasonable doubt all of the elements of the offense of
murder . . . then you move on to consider the defense
of self-defense. And that same procedure applies to
each and every one of the offenses charged because
self-defense applies to each of them.
‘‘So, you begin again with murder, you move on to
manslaughter in the first degree. If, in fact, you have
unanimously found, after consideration of the first
lesser included offense instruction, that the state has
failed to prove beyond a reasonable doubt the elements
of that first lesser [included offense], manslaughter in
the first degree, you would then, and only then, go on
to consider the second lesser included offense, which
is manslaughter in the second degree. . . .
‘‘Same applies for manslaughter in the second degree.
If you have unanimously found not guilty as to that
offense . . . you then move on to the criminally negli-
gent homicide. If you found all of the underlying ele-
ments proved beyond a reasonable doubt as to man-
slaughter in the second degree, you would then move
on to self-defense. And the same applies, finally, to
criminally negligent homicide; that, if you have found
that the state has proven all of the elements of the
underlying offense, you move on to self-defense and
consider the defense of self-defense . . . . If you unan-
imously find that the state has failed to prove the ele-
ments of the crime of . . . criminally negligent homi-
cide, that ends your deliberations there because that is
the final lesser included offense, okay. So, I hope that
assists you in terms of guiding you in terms of your
deliberations.’’
For the first time, on appeal, the defendant argues
that the court’s instruction was misleading in that the
court suggested, but did not expressly state, that the
jury should consider lesser included offenses even after
finding that the state failed to disprove beyond a reason-
able doubt the defense of self-defense. The defendant
presently argues that, ‘‘[b]y repeatedly informing the
jurors that they should consider the lesser offenses if
they acquitted [the] defendant on the greater offenses,
thereby suggesting that they do so even if the acquittal
was due to the state’s failure to disprove the claim of
self-defense, the court misled the jurors. Clearly, if they
acquitted on the basis of self-defense, then there was
no need to consider the lesser offenses. The problem
is that [viewed in isolation] . . . the self-defense
instructions and instructions about when to consider
the lesser offenses were accurate, [but] they became
inaccurate when the jury was instructed to consider
both of these [instructions]. . . . Here, by telling the
jurors it was proper to consider the lesser offenses once
there was an acquittal on the greater offense, and by
not specifying [that] they could do so only if the acquit-
tal was due to the state’s failure to prove all the elements
of the crime, the court negated the defendant’s entire
defense.’’ (Emphasis added.)
The defendant did not preserve the present claim at
trial, either by filing a written request to charge that
covered the desired instructional language or by taking
an exception to the charge on this ground immediately
after the charge was delivered.7 See Practice Book § 42-
16 (requirements for preservation of claims of instruc-
tional error). The defendant expressly seeks review of
the claim under the bypass doctrine set forth in State
v. Golding, supra, 213 Conn. 239–40.8 Alternatively, the
defendant argues that plain error exists. See Practice
Book § 60-5.
We will review the claim under Golding because the
record affords us an adequate basis on which to review
the claim, and the claim is of constitutional magnitude
because it implicates the defendant’s fundamental due
process right to establish a recognized legal defense.
See, e.g., State v. Ash, 231 Conn. 484, 492–93, 651 A.2d
247 (1994) (defendant has fundamental due process
right to proper jury instructions concerning self-
defense). We conclude, however, that the claim fails
under Golding’s third prong because the defendant is
unable to demonstrate that a constitutional violation
exists and that it deprived him of a fair trial.9
‘‘An improper instruction on a defense, like an
improper instruction on an element of an offense, is of
constitutional dimension. . . . In either instance, [t]he
standard of review to be applied to the defendant’s
constitutional claim is whether it is reasonably possible
that the jury was misled. . . . In determining whether
it was indeed reasonably possible that the jury was
misled by the trial court’s instructions, the charge to
the jury is not to be critically dissected for the purpose
of discovering possible inaccuracies of statement, but
it is to be considered rather as to its probable effect
upon the jury in guiding [it] to a correct verdict in the
case. . . . The charge is to be read as a whole and
individual instructions are not to be judged in artificial
isolation from the overall charge. . . . The test to be
applied to any part of a charge is whether the charge,
considered as a whole, presents the case to the jury so
that no injustice will result.’’ (Citations omitted; internal
quotation marks omitted.) State v. Prioleau, 235 Conn.
274, 284, 664 A.2d 743 (1995).
‘‘[A] legally adequate instruction as to the defense
should convey that the effect of a finding that the state
has failed to disprove the defense requires the jury to
render a verdict in the defendant’s favor. The court
must unambiguously instruct the jury that it must find
the defendant not guilty if it finds that the state has
not disproved the defense. . . . A proper self-defense
instruction must inform the jury that the defense not
only justifies conduct that would otherwise be criminal
in nature, but that it is a complete defense in a criminal
proceeding.’’ (Citation omitted; emphasis omitted;
internal quotation marks omitted.) State v. Terwilliger,
105 Conn. App. 219, 235–36, 937 A.2d 735 (2008), aff’d,
294 Conn. 399, 984 A.2d 721 (2009).
We now turn to the charge at issue. As the defendant
correctly observes, the court did not instruct the jury
that, if it found that the state failed to disprove self-
defense beyond a reasonable doubt, such finding with
respect to the defense required it to find the defendant
not guilty of murder and all of the lesser included
offenses at issue in this case. The defendant urges that
the lack of such a clear instruction, which would have
been legally accurate, made it possible for the jury to
conclude that self-defense was not a ‘‘complete
defense’’ that applied to each and every lesser included
offense, including manslaughter in the second degree.
We conclude that this possibility is negated by the fact
that the court specifically instructed the jury to consider
the defense of self-defense not only with respect to the
charged offense, murder, but to the lesser included
offenses of manslaughter in the first degree, manslaugh-
ter in the second degree, and criminally negligent homi-
cide. Beyond the fact that the court delivered this
instruction with respect to the four homicide offenses
addressed in its charge, it also unambiguously reiter-
ated at the conclusion of its charge that, if the state
had proven all of the essential element of any of the
offenses at issue, ‘‘you move on to self-defense and
consider the defense of self-defense . . . .’’
Our interpretation of the likely effect of the charge
is not merely informed by our careful review of the
court’s instructions concerning the jury’s order of delib-
erations and its specific instructions with respect to
murder and the lesser included offenses, but by the
court’s self-defense instruction itself, which followed
its instructions with respect to the homicide offenses.
In relevant part, the court stated: ‘‘Self-defense applies
to the charge of murder and all of the lesser included
offenses that I’ve just charged you on; that includes
manslaughter in the first degree, manslaughter in the
second degree and criminally negligent homicide. And
I think you know that by now because, in each of those
instances, I told you that you would go on to evaluate
self-defense. But remember, it applies to each of them.
‘‘After you have considered all of the evidence in this
case, if you find that the state has proved beyond a
reasonable doubt each element of a crime to which self-
defense applies, you must go on to consider whether
or not the defendant acted in self-defense. In this case,
again, you must consider the defense in connection
with the charged offense of murder, as well as all of
the lesser [included offenses]—manslaughter in the first
degree, manslaughter in the second degree, and crimi-
nally negligent homicide.’’
The court unambiguously instructed the jury that self-
defense was ‘‘a compete defense to certain crimes,
including murder and the lesser [included offenses],
manslaughter in the first degree, manslaughter in the
second degree, and criminally negligent homicide
. . . .’’ The court also stated, ‘‘[i]f you unanimously find
that the state has failed to prove beyond a reasonable
doubt any [of the] elements of the crime to which self-
defense applies, you shall then find the defendant not
guilty and not consider the defense. If you unanimously
find that all of the elements of a crime to which self-
defense applies have been proved beyond a reasonable
doubt, you shall then consider the defense of self-defense.’’
Our careful review of the court’s charge, in its entirety,
leads us to conclude that it is not reasonably possible
that it misled the jury in the manner suggested by the
defendant. The defendant’s interpretation of the charge
is belied by the court’s repetitive and unambiguous
instructions that conveyed the applicability of the
defense of self-defense to each and every offense at
issue, as well as the legal significance of a finding that
the state had failed to disprove the defense. We are
satisfied that the charge led the jury to a correct under-
standing of the fact that self-defense was a complete
defense to murder and the lesser included offenses,
that it had to evaluate the defense before returning a
verdict with respect to any of the offenses, and that a
finding that the state failed to disprove the defense
required the jury to return a verdict of not guilty. Accord-
ingly, the defendant has failed to demonstrate that a
constitutional violation exists and that it deprived him
of a fair trial.10
III
Finally, the defendant claims that this court, in the
exercise of its supervisory authority over the adminis-
tration of justice, should require trial courts, in cases
in which self-defense is asserted as a defense, to instruct
juries to consider the defense prior to considering
whether the defendant is guilty of the charged offense
and any lesser included offenses. We disagree.
As we discussed in part II of this opinion, the defen-
dant submitted a request to charge in which he asked
the court to instruct the jury that it may consider the
defense of self-defense prior to considering whether
the state proved the essential elements of the charged
offense, murder, or the three lesser included offenses
at issue in this case. See footnote 7 of this opinion. The
court denied that request and, as we discussed in part II
of this opinion, the defendant attempted to demonstrate
that the court’s charge possibly misled the jury with
respect to the defense of self-defense. In the present
claim, the defendant argues that an instruction similar
to the one he sought ‘‘is warranted to eliminate any
confusion about the legal effect of self-defense that
stems from instructions, like those given by the trial
court [in the present case], that direct the jurors to
consider the lesser included offenses in the case of an
acquittal.’’ The defendant, correctly observing that a
defendant who acts in self-defense is not guilty of any
offense to which the defense applies, argues that an
instruction requiring juries to consider self-defense at
the outset of their deliberations ‘‘would streamline
deliberations and potentially save judicial resources by
cutting down on the amount of time jurors spend delib-
erating.’’ The defendant also argues that this court
should exercise its supervisory powers so that trial
courts ‘‘avoid confusing jurors about the legal effect of
a finding that [a] defendant acted in self-defense, and
to prevent unwarranted convictions of lesser included
offenses, even though the jurors might have believed a
defendant acted in self-defense.’’
‘‘It is well settled that [a]ppellate courts possess an
inherent supervisory authority over the administration
of justice. . . . Supervisory powers are exercised to
direct trial courts to adopt judicial procedures that will
address matters that are of utmost seriousness, not only
for the integrity of a particular trial but also for the
perceived fairness of the judicial system as a whole.
. . . Under our supervisory authority, we have adopted
rules intended to guide the lower courts in the adminis-
tration of justice in all aspects of the criminal process.
. . . The exercise of our supervisory powers is an
extraordinary remedy to be invoked only when circum-
stances are such that the issue at hand, while not rising
to the level of a constitutional violation, is nonetheless
of utmost seriousness, not only for the integrity of a
particular trial but also for the perceived fairness of
the judicial system as a whole. . . . Indeed, there is
no principle that would bar us from exercising our
supervisory authority to craft a remedy that might
extend beyond the constitutional minimum because
articulating a rule of policy and reversing a conviction
under our supervisory powers is perfectly in line with
the general principle that this court ordinarily invoke[s]
[its] supervisory powers to enunciate a rule that is not
constitutionally required but that [it] think[s] is prefera-
ble as a matter of policy.’’ (Citations omitted; internal
quotation marks omitted.) State v. Elson, 311 Conn.
726, 764–65, 91 A.3d 862 (2014).
We are not persuaded that the exercise of our supervi-
sory powers is warranted in the present case. Setting
aside a consideration of the merits of the requested
instruction, the defendant has not demonstrated that
the absence of the instruction resulted in a constitu-
tional violation in the present case or that there existed
a serious risk that his conviction was unjust. The defen-
dant has not established that the procedure followed
by the trial court in instructing the jury infringed on
the integrity of the trial or the perceived fairness of the
judicial system as a whole. Accordingly, we decline to
afford the defendant any relief with respect to this
claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The jury found the defendant not guilty of murder and the lesser included
offense of first degree manslaughter. The trial court sentenced the defendant
to a term of imprisonment of ten years, execution suspended after seven
years, followed by five years of probation.
2
The original information, summons, and rearrest warrant application set
forth a Bridgeport address for the victim. The motion to vacate purportedly
filed by the victim reflects the Bridgeport address as crossed out and a new
address, in West Haven, handwritten in its place.
3
As we stated previously, defense counsel argued before the court that
the proffered evidence was relevant to the defendant’s ability to present
his defense of self-defense.
4
The court discussed the spontaneous utterance rule in the context of
ruling on the admissibility of the evidence at issue in this claim as well as
the admissibility of statements made by the defendant during his police
interview, which the defendant also sought to introduce. We will discuss
the latter evidence in part I C of this opinion.
5
The defendant’s own characterization of the second 911 call is that
his statements therein ‘‘corroborated his account about the incident and,
particularly, that [the victim] hit his car and cut him off. It also corroborated
his testimony that he was waiting for the police after the incident. Import-
antly, he even stated to the operator that the whole incident was unnecessary
and [that] they could have filed a police report and gone on their way.’’ The
defendant also asserts that the recording reflected his ‘‘evident shock and
nervousness immediately after the incident.’’
6
We have set forth the parameters of the Golding doctrine in part I B of
this opinion.
7
We note that, in his written request to charge, the defendant asked the
court to instruct the jury that, prior to its consideration of the charged
offense and any lesser included offenses, it could consider whether the state
had disproved beyond a reasonable doubt his defense of self-defense. Thus,
the defendant asked the court to instruct the jury in relevant part: ‘‘As a
practical matter, you can consider the question of self-defense first. If you
find that the state has failed to disprove self-defense beyond a reasonable
doubt, then you should find the defendant not guilty of murder and all of the
other charges of homicide.’’ The defendant argued that ‘‘jury consideration
of an issue that equally addresses or defeats proof of the other lesser offenses
promotes the worthwhile goal of judicial economy and efficiency. Conduct
is not criminal if it is permitted or justified by law or statute. The issue of
whether the defendant’s actions were justified is an element of the state’s
burden of proof that can be considered before, after, or simultaneous to
the various other elements.’’
During the charge conference, defense counsel asserted that an instruction
permitting the jury to consider self-defense prior to considering the elements
of the offenses of which he could be found guilty served the interest of
judicial economy by avoiding the jury’s ‘‘wast[ing] a lot of time’’ considering
whether the state satisfied its burden of proof with respect to the essential
elements of one or more crimes if it ultimately would find that the defen-
dant’s conduct was justified. The court declined to deliver this requested
instruction. Immediately after the court delivered its charge, defense counsel
reiterated his objection to the fact that the court declined to deliver the
instruction concerning the ‘‘order of deliberations . . . .’’
We discuss the defendant’s written request to charge here because it is
somewhat related to the present claim of instructional error, yet we do not
view the request to charge as addressing distinctly the issue raised in present
claim. The present claim is not simply limited to an evaluation of whether
the court should have instructed the jury to consider self-defense prior to
considering the charged offense and any lesser included offenses, but
focuses on whether the court’s charge misled the jury with respect to how
the defense of self-defense, if not disproved beyond a reasonable doubt by
the state, relieved the defendant of any criminal liability with respect to
any of the homicide charges.
8
We have set forth the parameters of the Golding doctrine in part I B of
this opinion.
9
The state does not argue that the defendant implicitly waived the present
claim of instructional error following a review of the court’s proposed
charge. Nor do we reach such a conclusion on the basis of our independent
assessment of the claim under Golding and our review of the record. In
State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), our Supreme Court
concluded 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 constitutional right to challenge the instructions
on direct appeal.’’ Id., 482–83. The doctrine of implied waiver, when applica-
ble, bars recourse to Golding. Id., 467. As we have previously discussed;
see footnote 7 of this opinion; following a meaningful opportunity for review
of the court’s proposed charge, defense counsel repeatedly expressed his
dissatisfaction with the fact that the court did not deliver his requested
instruction concerning the order of deliberations. Although defense coun-
sel’s request to charge and his objections to the charge did not address
distinctly the issue raised in the present claim, they nonetheless preclude,
for Kitchens purposes, a determination by this court that defense counsel
affirmatively accepted the instructions proposed or given.
10
Because we concluded in the context of our Golding analysis that the
court’s instructions were legally correct and that it was not reasonably
possible that the court’s charge misled the jury in the manner claimed on
appeal, this finding undermines the defendant’s argument that plain error
exists. Accordingly, we reject the defendant’s argument that he is entitled
to relief under the plain error doctrine.