State v. Swilling , 180 Conn. App. 624 ( 2018 )

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STATE OF CONNECTICUT v. RICARDO SWILLING
(AC 40234)
Alvord, Keller and Beach, Js.
Syllabus
Convicted of the crimes of kidnapping in the first degree, home invasion
and assault in the second degree, and of being a persistent dangerous
felony offender, the defendant appealed. The defendant, who had paid
the victim to stay at her apartment, allegedly had engaged in a violent
physical struggle with the victim in the apartment over the course of
two days, during which he held her hostage in the apartment, attempted
to strangle her, stabbed her with kitchen knives, and punched and kicked
her. When the victim was able to escape, she went to the apartment of
a neighbor, where she called 911. On appeal, the defendant claimed,
inter alia, that the trial court violated his due process right to a fair
trial by questioning two witnesses during the state’s case-in-chief and
improperly permitted the victim to make an in-court identification of
him in the absence of a showing that she previously had made a nonsug-
gestive out-of-court identification of him. Held:
1. The defendant could not prevail on his unpreserved claim that the trial
court violated his due process right to a fair trial, which was based on
his assertion that the court became an advocate for and suggested that
it favored the state when it questioned the victim and the neighbor
during the state’s case-in-chief: the trial court did not compel the victim
to identify the defendant as the perpetrator, reflect bias in favor of the
state or act unreasonably when it asked her a single question about the
identity of the defendant after she had made an ambiguous in-court
identification of him, and the present case did not present a situation
in which the court advocated in favor of a particular verdict, suggested
that a particular witness was credible, or otherwise suggested that it
believed or disbelieved any particular version of events; moreover, the
court’s questioning of the neighbor reflected a reasonable attempt to
clarify his ability to make an identification of someone in the courtroom,
as well as the nature of the state’s inquiry, the court’s brief inquiry
protected the defendant’s right to ensure that the jury had before it
facts, rather than confusion, and that the facts were presented to the
jury in an understandable manner, and the court’s jury instructions
conveyed to the jury that the court did not have a role in the fact-finding
process and did not have an opinion concerning the outcome of the trial.
2. This court found unavailing the defendant’s unpreserved claim that his
due process rights were violated when the trial court permitted the
victim to make an in-court identification of him in the absence of a
showing that she previously had made a nonsuggestive out-of-court
identification of him: although the state failed to request permission
from the trial court to conduct a first time in-court identification of the
defendant, as required under the newly created rule applicable to first
time in-court identifications set forth in State v. Dickson (322 Conn.
410), that rule applied to the parties in that case and to all pending
cases, the defendant’s appeal was pending at the time Dickson was
decided, which meant that the suggestive in-court identification already
had occurred, and, thus, the defendant was not necessarily entitled to
relief arising from the state’s failure to abide by a procedural rule that
was not in existence at the time of the defendant’s trial, and given that
there were no factual disputes with respect to the victim’s familiarity
with or ability to identify the defendant, or with her ability to observe,
recall and narrate facts concerning the person who allegedly assaulted
her, and, despite the fact that the record was silent with respect to any
out-of-court identification made by the victim, her in-court identification
of the defendant was permissible without adherence to the procedural
safeguards in Dickson where, as here, there was no showing of harm.
3. The defendant could not prevail on his claim that the trial court abused
its discretion in admitting evidence of his prior felony convictions, which
was based on his assertion that the convictions were too remote in time
and were more prejudicial than probative; the defendant’s argument
that the convictions were too remote in time was not persuasive, as the
defendant was released from confinement within ten years of the time
of his trial, he was unable to demonstrate that the trial court’s determina-
tion that the felony convictions were relevant in an assessment of his
credibility was improper, and there was no reason to doubt that the
jury followed the limiting instructions given by the court immediately
following the admission of the evidence and during the court’s charge.
4. The trial court did not abuse its discretion in admitting into evidence under
the spontaneous utterance exception to the hearsay rule a recording of
the 911 call made by the victim:
a. The trial court properly determined that the 911 recording fell within
the spontaneous utterance exception to the hearsay rule; that court
properly considered the manner in which the victim spoke in its review
of all of the relevant facts surrounding her statements and properly
determined that the victim’s declarations were made under circum-
stances that negated the opportunity for deliberation, contrivance and
misrepresentation by the declarant, as the 911 call occurred within
minutes after the victim fled from her apartment while she was under
the influence of a startling event following an ordeal that reasonably
would be expected to have created a high degree of emotional distur-
bance, and although some of the victim’s statements were made in
response to questions posed to her by the 911 dispatcher, many others
were made spontaneously, the circumstances reflected a lack of fore-
thought by the victim in responding to the questions, and there was
ample evidence to support the court’s finding that the victim’s statements
were spontaneous.
b. The trial court did not abuse its discretion in failing to conclude
that the admission of the 911 recording was unduly prejudicial; the
defendant’s claim that the 911 recording was prejudicial because it was
cumulative was not supported by the record, and the victim’s strong
language in the recording that the defendant had tortured and kidnapped
her was not any more inflammatory than, and was not likely to have
aroused the jury’s emotions any more than, her testimony concerning
the defendant’s actions, which included beating, choking, kicking and
repeatedly stabbing her.
5. The defendant could not prevail on his claim that the cumulative effect
of the trial court’s alleged errors deprived him of his right to a fair and
impartial trial; the claim was not adequately briefed, as it consisted of
a legal assertion and was devoid of analysis of facts or law, and even
if the claim was considered on its merits, it lacked merit in light of
this court’s determination that no error existed with respect to the
defendant’s claims on appeal.
Argued November 15, 2017—officially released April 3, 2018
Procedural History
Two part substitute information charging the defen-
dant, in the first part, with the crimes of kidnapping in
the first degree, assault in the first degree and home
invasion, and, in the second part, with three counts of
being a persistent dangerous felony offender, brought to
the Superior Court in the judicial district of Waterbury,
where the first part of the information was tried to the
jury before K. Murphy, J.; verdict of guilty of kidnap-
ping in the first degree, home invasion and the lesser
included offense of assault in the second degree; there-
after, the defendant was presented to the court on con-
ditional pleas of nolo contendere to two counts of being
a persistent dangerous felony offender in the second
part of the information; judgment of guilty in accor-
dance with the verdict and pleas, from which the defen-
dant appealed. Affirmed.
Robert L. O’Brien, assigned counsel, with whom, on
the brief, was William A. Adsit, assigned counsel, for
the appellant (defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Marc G. Ramia, senior assistant state’s
attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, Ricardo Swilling, appeals
from the judgment of conviction, rendered following a
jury trial, of kidnapping in the first degree in violation
of General Statutes § 53a-92 (a) (2) (A), home invasion
in violation of General Statutes § 53a-100aa (a) (2), and
assault in the second degree in violation of General
Statutes § 53a-60 (a) (2).1 Additionally, following the
defendant’s pleas of nolo contendere, the defendant
was convicted of two counts of being a persistent dan-
gerous felony offender in violation of General Statutes
§ 53a-40 (a) (1), as alleged in part B informations that
were related to the kidnapping and home invasion
charges.2 The defendant claims that (1) the trial court
violated his due process right to a fair and impartial
trial by questioning two witnesses during the state’s
case-in-chief, (2) the court improperly permitted the
victim to make an in-court identification of him absent
a showing that she previously had made a nonsuggestive
out-of-court identification of him, (3) the court improp-
erly admitted evidence of his prior felony convictions,
(4) the court improperly admitted a recording of a 911
call made by the victim, and (5) the cumulative effect
of the court’s errors deprived him of his right to a
fair and impartial trial. We affirm the judgment of the
trial court.
The jury reasonably could have found the following
facts. In December, 2014, the victim, Barbara Wilson,
resided in an apartment complex in Waterbury in a unit
that was leased to her and her daughter. The living
room and the kitchen were located on the first floor of
the unit, and three bedrooms and a bathroom were
located on the second floor of the unit. The victim had
a practice of letting others rent space in her apartment,
at a usual rate of $150 per week. The victim first met
the defendant in 2013. In early December, 2014, a mutual
friend of the victim and the defendant, identified in the
record as ‘‘Luis,’’ appeared at the victim’s residence
with the defendant. Luis asked the victim if the defen-
dant could stay at her apartment for a few days. Initially,
the victim did not consent to Luis’ request and the two
men departed. Later that day, however, the defendant
appeared once more at the victim’s apartment to discuss
the matter further. The defendant gave the victim $20
and some brandy.
During this second meeting, the victim agreed to let
the defendant pay her to stay at the apartment. The
defendant explained that he worked overnight and
would come and go from the residence as necessary.
The victim, who was almost always at home, did not
give the defendant a key to the apartment, but simply
let him in whenever he knocked on the door. The victim
had only two keys for the residence, one which she
kept and another that was kept by her parents.
The defendant stayed at the apartment over the
course of two weeks in December, 2014, sometimes
spending the overnight hours there. He frequently came
to the residence to sleep either in an unfurnished bed-
room or on a sofa. He paid the victim $70. During the
time that the defendant spent at the apartment, he was
never left alone there and, prior to the events at issue,
when the defendant was present at the apartment, there
was always one or more third parties present along with
the victim. The defendant did not keep any personal
belongings at the apartment, but always carried his
belongings with him in a duffel bag.
On December 24, 2014, at approximately 10 a.m., the
victim was at the apartment with her boyfriend, Eddie
Ortiz, when the defendant arrived at the apartment. The
defendant asked for a ride. Soon thereafter, Ortiz drove
the defendant to a bus stop located near a liquor store.
Then, Ortiz drove the victim to a store. At approximately
11 a.m., he drove her back to her apartment. The victim
entered the apartment alone and locked the door.
At approximately 11:30 a.m., the victim observed the
defendant standing near the front door inside of her
apartment. The victim asked the defendant how he
gained access to the apartment. What followed was a
violent physical struggle between the victim and the
defendant. The defendant wrapped his hands around
the victim’s throat and began to strangle her. The victim
was experiencing difficulty breathing, and she managed
to pry the defendant’s hands off her. The victim fled the
apartment by means of the front door, but the defendant
pursued her from behind, dragged her back inside the
apartment, and resumed strangling her.
The victim physically struggled with the defendant
and, eventually, the victim and the defendant were on
the floor of the kitchen. The victim was able to twist
her body to break free of the defendant’s grasp, at which
time she got back on her feet and reached a rear door
inside the kitchen. The defendant cornered the victim
between a stove and a sink. At this point in time, the
defendant grabbed two knives that were on top of a
nearby microwave oven and began to stab the victim
repeatedly while she was standing in front of the stove.
While the defendant was stabbing her and yelling at
her, the victim raised her hands to protect her face.
The victim sustained multiple stab wounds and was
bleeding.
There was a knock at the victim’s front door. The
defendant told the victim that if she said anything, he
would kill her. He pushed the victim upstairs to the
bathroom and forced her to stand in a bathtub. He
threatened her with a knife until the knocking ceased.
The defendant led the victim to her bedroom and
continued to yell at her. Among the things that the
defendant stated was that if he was not going to have
a good Christmas, neither was the victim. The victim
partially undressed and began to tend to her wounds
with a T-shirt. She was permitted to go into the bath-
room to wash some of the blood off her body and to
put on a clean shirt. While the victim was cleaning
her body, the defendant remained in the bathroom and
threatened her with a knife. The defendant noticed that
a knife blade had broken off during the attack and
remained stuck in the victim’s arm. The defendant told
the victim that he almost felt ‘‘some kind of sympathy’’
for her and he removed the broken blade from her arm.
The defendant, still holding a knife, led the victim
back into her bedroom, where he remained with the
victim for several hours. He yelled at the victim and
repeatedly used his cell phone, but apparently was
unable to reach anyone on his cell phone. Additionally,
the defendant watched a movie and consumed alcohol
during this time.
At approximately 5 or 6 p.m., there was another
knock on the victim’s front door. The victim told the
defendant that it was likely that her daughters were at
the door and that, if he let them in, she would not say
anything about what had occurred and that he could
get a ride somewhere. The defendant refused, and he
warned her to remain quiet. When the knocking
stopped, the victim asked the defendant for a cigarette.
The defendant approached the victim and punched her
in the face. The defendant and the victim shouted at
one another and, after using his cell phone, he
approached the victim, who was sitting on a bed, kicked
her, and pushed her into a wall. The defendant contin-
ued to yell things that were incomprehensible to the
victim and continued to threaten the victim. For exam-
ple, he told the victim that he found more liquor, he
was ready for ‘‘round two,’’ and that she was ‘‘really
going to get it.’’ The victim, under the constant supervi-
sion of the defendant, remained in the bedroom with the
defendant until approximately 4 a.m., the following day.
At that point in time, the defendant ordered the victim
to prepare chicken for him to eat. He escorted her to
the kitchen where she complied with his request. The
defendant forced the victim to sit next to him in the
living room while he ate the meal she had prepared,
but he did not permit her to eat or drink anything. The
defendant warned the victim not to ‘‘make a move.’’
At approximately 6 or 7 a.m., the defendant escorted
the victim back upstairs. The victim, who had barely
slept the night before, felt weak and sat on the bed.
The defendant stabbed her in the right arm with a knife.
The defendant repeatedly yelled at the victim. The vic-
tim asked the defendant if she could return to the bath-
room to tend to her wounds, but he refused this request.
Throughout the day, the defendant continued to con-
sume alcohol and watch television. Although he did not
do so previously during this incident, the defendant
eventually fell into a deep sleep.
At approximately 8 p.m., the victim sensed an oppor-
tunity to rush past the sleeping defendant and make
her way out of the apartment. She quickly exited her
apartment and approached the apartment of a neighbor,
Luis Matos. The victim knocked frantically on Matos’
door. Matos let the victim inside of his apartment where
she called 911. Police and emergency medical personnel
arrived at the scene shortly thereafter. The victim was
transported to a nearby hospital where she received
treatment for her many stab wounds.
Waterbury police Officer Brian LaPerriere was one
of several police officers to respond to the scene. When
he encountered the victim, her clothing was covered
in dried blood and several of her stab wounds were
apparent to him. After hearing the victim’s version of
events, the officers entered the victim’s apartment
through a rear window on the second floor. They
observed bloodstains throughout the residence and
bloody knives on the floor of the kitchen and bedroom.
While he was in the process of searching the apartment,
LaPerriere discovered the defendant hiding in a closet
on the first floor. The defendant complied with LaPer-
riere’s commands, and provided the officers with his
name and his street name, Apollo. The defendant stated
to the police that he ‘‘was in some shit.’’ Additional
facts will be set forth as necessary in our analysis of
the defendant’s claims.
I
First, the defendant claims that the court violated
his due process right to a fair and impartial trial by
questioning the victim and Matos during the state’s case-
in-chief. We disagree.
The following two events that occurred during the
trial are the subject of the present claim. The first
occurred during the state’s direct examination of the
victim. By way of relevant background, the victim testi-
fied that she was familiar with the defendant prior to
the events at issue. She identified the person that she
allowed to stay in her apartment as ‘‘Ricardo Swilling,’’
who had a street name of ‘‘Apollo,’’ and described his
arrangement with her regarding the use of the apart-
ment. Absent objection, the following colloquy
occurred:
‘‘[The Prosecutor]: . . . And is [the defendant] pre-
sent in court today?
‘‘[The Victim]: Yes.
‘‘[The Prosecutor]: Can you please point to him and
describe what he’s wearing?
‘‘[The Victim]: He’s right over here. He [has] a gray
suit on.
‘‘The Court: With the tie or without the tie?
‘‘[The Victim]: I can’t see over the screen. No tie.
‘‘The Court: All right. The record can reflect identifi-
cation of the defendant.’’
Absent objection, at the conclusion of the state’s
examination of the victim, during which she described
the defendant’s conduct during December 24 and
December 25, 2014, the following colloquy occurred:
‘‘[The Prosecutor]: And the individual who stabbed
you on [December 24 and December 25] of 2014, is he
present in court today?
‘‘[The Victim]: Yes, he is.
‘‘[The Prosecutor]: The person that did not allow you
to leave your apartment?
‘‘[The Victim]: Yes, he is present.’’
Following an additional brief inquiry of the victim by
the state, the prosecutor stated that he did not have
any further questions for the victim. The following collo-
quy followed:
‘‘The Court: Before we take the recess . . . you said
that person is in the courtroom and it may seem obvious,
but is that the person you’ve identified before as [the
defendant]?
‘‘[The Victim]: Yes.’’
Second, during the state’s direct examination of
Matos during its case-in-chief, Matos testified in rele-
vant part that, on December 25, 2014, the victim
appeared at his door, he provided assistance to her,
and police and emergency medical personnel were sum-
moned to the scene. Matos testified that the victim
explained to him what had happened to her. There is
no indication in Matos’ testimony that he knew the
defendant prior to the events at issue or had any interac-
tion with him following the events at issue. He testified
that, following the victim’s arrival at his apartment on
December 25, 2014, he went outside to see ‘‘where was
the guy at.’’ The following colloquy then occurred:
‘‘[The Prosecutor]: And when you were outside . . .
did you see anything?
‘‘[The Witness]: No. The only time I seen him was
when the officer ran behind her house; that’s when he
locked the door on the house.
‘‘[The Prosecutor]: Okay. When you say, ‘he,’ who do
you mean?
‘‘[The Witness]: The guy. When the officer went to
the house to see if he was still there, the guy ran back
to the house, he locked the door.
‘‘[The Prosecutor]: So . . . you saw an individual
outside of [the victim’s] apartment?
‘‘[The Witness]: No. I didn’t get to see him, but the
officer ran and he seen him locking the door.
‘‘[The Prosecutor]: Okay. And which door did you
see him lock or go into?
‘‘[The Witness]: The back door of [the victim’s] house.
‘‘[The Prosecutor]: Okay. And were you able to see
that individual?
‘‘[The Witness]: No. I didn’t get to see him. I seen
him after he got arrested and everything, then I seen
him. But I never seen that guy before.
‘‘[The Prosecutor]: Now, the person that you saw go
back into the house, was that the same person you saw
in police custody later?
‘‘[The Witness]: Yup.
‘‘[The Prosecutor]: Okay. And is that person in court
here today?
‘‘[The Witness]: I don’t know. I have no idea.
‘‘[The Prosecutor]: If you take a look in the court-
room, can you let us know if you recognize anybody?
‘‘[The Witness]: That guy.
‘‘[The Prosecutor]: Can you describe what he’s
wearing?
‘‘[The Witness]: He’s got a gray sweater.
‘‘The Court: What color shirt is he wearing?
‘‘[The Witness]: He’s wearing a white shirt with
like blue—
‘‘The Court: No, I’m talking about right now.
‘‘[The Witness]: Right now, he’s got a blue on, with
dreads.
‘‘The Court: Okay.
‘‘[The Prosecutor]: I’ll ask [that] the record reflect he
did point in that direction.
‘‘The Court: He did. The record can reflect he pointed
in the direction of the defendant, but—Mr. Matos, let
me just make it a little easier here. You pointed over
in that direction. Do you see the person that the police
took into custody that night here in the courtroom?
‘‘[The Witness]: Well, it looks, the only one that look
familiar is him.
‘‘The Court: Okay. And what color shirt is he wearing,
that’s all I’m asking you.
‘‘[The Witness]: Blue.
‘‘The Court: Blue. Okay. There is really no one over
there with a blue shirt that I could see.
‘‘[The Witness]: I’m not a color, you know—
‘‘The Court: Okay. All right. That’s enough. That’s
fine. Go ahead. Continue your questioning.’’
At the time of trial, the defendant did not raise any
objection to the court’s questioning of the victim or
Matos. On appeal, the defendant claims that the court
violated his due process right to a fair trial3 by ques-
tioning the victim and Matos directly, thereby interfer-
ing with and aiding the state’s direct examinations of
the victim and Matos. The defendant argues that, by
questioning these witnesses as it did, the court aban-
doned an impartial posture, became an advocate for
the state, intruded on the role of counsel, and suggested
to the jury that it favored the state’s case. The defendant
argues that the court asked the victim a leading question
that effectively compelled her to identify the defendant
as the perpetrator of the violence she described in her
testimony. The defendant argues that, during its collo-
quy with Matos, the court ‘‘essentially pressed Matos
to identify [the] defendant’’ as the man he observed
outside of his apartment. According to the defendant,
‘‘Matos’ failure to identify [the] defendant made [the
court’s] interference even more improper. It worked to
disadvantage [the] defendant’s case in that it tended to
convey to the jury . . . [the court’s belief that the]
defendant was the perpetrator, or at least strongly sug-
gest[ed] that the jury should infer this, even though
there was nothing in evidence prior to [the victim’s]
compelled identification in response to the court’s lead-
ing question that suggested [the] defendant was [the
person who the victim knew to be] ‘Apollo.’ ’’ The defen-
dant argues that absent the court’s interference with
the presentation of evidence, the record is devoid of
sufficient evidence from which the jury reasonably
could have found that the state had satisfied its burden
of demonstrating the essential element of identity, that
is, that he was the perpetrator of the crimes at issue.
The defendant requests review under the doctrine
set forth in State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989).4 As modified by In re Yasiel R.,
317 Conn. 773, 781, 120 A.3d 1188 (2015), the Golding
doctrine provides that ‘‘a defendant can prevail on a
claim of constitutional error not preserved at trial only
if all of the following conditions are met: (1) the record
is adequate to review the alleged claim of error; (2)
the claim is of constitutional magnitude alleging the
violation of a fundamental right; (3) the alleged constitu-
tional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail. The appellate
tribunal is free, therefore, to respond to the defendant’s
claim by focusing on whichever condition is most rele-
vant in the particular circumstances.’’ (Emphasis in
original; footnote omitted.) State v. Golding, supra, 239–
40. ‘‘The defendant bears the responsibility for provid-
ing a record that is adequate for review of his claim of
constitutional error. . . . The defendant also bears the
responsibility of demonstrating that his claim is indeed
a violation of a fundamental constitutional right. . . .
Finally, if we are persuaded that the merits of the defen-
dant’s claim should be addressed, we will review it
and arrive at a conclusion as to whether the alleged
constitutional violation . . . exists and whether it . . .
deprived the defendant of a fair trial.’’ (Citations omit-
ted.) Id., 240–41.
We conclude that the claim is reviewable under Gold-
ing because the record is adequate to review the claim
presented and the claim is of constitutional magnitude.
We conclude, however, that the defendant cannot pre-
vail under Golding because he is unable to demonstrate
that a constitutional violation exists and that it deprived
him of a fair trial.
‘‘Due process requires that a criminal defendant be
given a fair trial before an impartial judge and an unprej-
udiced jury in an atmosphere of judicial calm. . . . In
a criminal trial, the judge is more than a mere moderator
of the proceedings. It is [the trial judge’s] responsibility
to have the trial conducted in a manner which
approaches an atmosphere of perfect impartiality which
is so much to be desired in a judicial proceeding. . . .
Consistent with his [or her] neutral role, the trial judge
is free to question witnesses or otherwise intervene in
a case in an effort to clarify testimony and assist the
jury in understanding the evidence so long as [the trial
judge] does not appear partisan in doing so. . . . Thus,
when it clearly appears to the judge that for one reason
or another the case is not being presented intelligibly
to the jury, the judge is not required to remain silent.
On the contrary, the judge may, by questions to a wit-
ness, elicit relevant and important facts. . . .
‘‘One of the chief roles of the trial judge is to see that
there is no misunderstanding of a [witness’] testimony.
The judge has a duty to comprehend what a witness
says as much as it is [the judge’s] duty to see that the
witness communicates with the jury in an intelligible
manner. A trial judge can do this in a fair and unbiased
way. [The judge’s] attempt to do so should not be a
basis of error. Whe[n] the testimony is confusing or not
altogether clear the alleged jeopardy to one side caused
by the clarification of a [witness’] statement is certainly
outweighed by the desirability of factual understanding.
The trial judge should strive toward verdicts of fact
rather than verdicts of confusion.’’ (Internal quotation
marks omitted.) State v. Gonzalez, 272 Conn. 515, 535–
36, 864 A.2d 847 (2005); see also State v. Bember, 183
Conn. 394, 401, 439 A.2d 387 (1981).
‘‘Whether or not the trial judge shall question a wit-
ness is within his sound discretion . . . [and] [i]ts exer-
cise will not be reviewed unless he has acted
unreasonably, or, as it is more often expressed, abused
his discretion. . . . The trial judge can question wit-
nesses both on direct and cross-examination. . . . [I]t
may be necessary to do so to clarify testimony as [the
judge] has a duty to comprehend what a witness says
. . . [and] to see that the witness communicates with
the jury in an intelligible manner. . . . While no precise
theorem can be laid down, we have held that it is proper
for a trial court to question a witness in endeavoring,
without harm to the parties, to bring the facts out more
clearly and to ascertain the truth . . . and [intervene]
where the witness is embarrassed, has a language prob-
lem or may not understand a question.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Iban
C., 275 Conn. 624, 652, 881 A.2d 1005 (2005); see also
State v. Velasco, 253 Conn. 210, 237–38, 751 A.2d 800
(2000); State v. Fernandez, 198 Conn. 1, 12–13, 501
A.2d 1195 (1985). ‘‘The risk of constitutional judicial
misconduct is greatest in cases where the trial court
has interceded in the merits of the trial.’’ State v. Wood-
son, 227 Conn. 1, 31, 629 A.2d 386 (1993).
Mindful of the foregoing principles, we turn to the
court’s questioning of each of the two witnesses at
issue. As set forth previously in this opinion, the record
reflects that the victim made an in-court identification
of the defendant as the person she knew to be ‘‘Ricardo
Swilling’’ or ‘‘Apollo,’’ the person she permitted to stay
at her apartment. Later, after the victim had testified
with respect to the violent events of December 24 and
December 25, 2014, she testified in response to the
prosecutor’s inquiry that the person who had stabbed
her and who did not permit her to leave her apartment
was ‘‘present’’ in the courtroom. It is abundantly clear
from reviewing the victim’s testimony that the person
she referred to as ‘‘Ricardo Swilling’’ or ‘‘Apollo’’ was
the person she believed to be the perpetrator of the
crimes at issue. After eliciting this testimony with
respect to the perpetrator’s mere presence in the court-
room, however, the prosecutor did not ask the victim
specifically to identify the defendant.
When the prosecutor indicated that he did not have
any further questions for the victim, the court asked a
single question of the victim. The court asked her if
the person she had identified as the perpetrator of the
crimes, and who was present in the courtroom, was
the person she had previously identified as ‘‘Mr. Swill-
ing.’’ The court aptly observed that its inquiry seemed
‘‘obvious’’—the victim already had identified the defen-
dant to be ‘‘Ricardo Swilling,’’ the person who was stay-
ing at her apartment, and she testified that this same
person was the perpetrator of the crimes. Nonetheless,
at the time of the court’s inquiry the victim had made
an in-court identification that was ambiguous. She
merely had testified that the perpetrator of the crimes
was present in the courtroom. Thus, although she made
a second in-court identification, her identification was
not clear, but left an ambiguity with respect to a critical
factual issue. In this circumstance, the court did not
appear to be taking sides in the matter. It merely asked
a single question that readily clarified the victim’s testi-
mony for the benefit of the court and the jury. We
disagree that the court compelled the witness in any
way, reflected any degree of bias in favor of the state’s
case, or acted unreasonably.
With respect to the court’s inquiry of Matos, as is set
forth previously in this opinion, it is clear that, with
respect to whether Matos observed the perpetrator or
was able to make an in-court identification of the defen-
dant, the prosecutor did not present an intelligible nar-
rative. Matos testified that he did not see anything when
he went outside. Then, Matos testified that he saw ‘‘him’’
when a police officer ran behind the victim’s house.
The prosecutor asked Matos to explain, to which Matos
testified that he saw ‘‘[t]he guy’’ run to the back of the
victim’s house and lock the door. When the prosecutor
asked for further explanation as to whether Matos saw
an individual outside of the victim’s apartment, Matos
testified ‘‘No. I didn’t get to see him . . . .’’ Then, Matos
testified that an officer saw someone locking a door at
the victim’s house. The prosecutor again asked if Matos
was able to see this individual, to which Matos
answered that he did not see him, but also that he saw
him after he was placed under arrest.
Following this utterly confusing testimony, the prose-
cutor attempted to elicit an in-court identification of
the defendant by Matos. The prosecutor asked Matos
if the person that he observed reentering the victim’s
house was the same person that he observed later in
police custody. Matos replied, ‘‘Yup.’’ When the prose-
cutor asked Matos if he observed that same person in
the courtroom, he replied, ‘‘I don’t know. I have no
idea.’’ When the prosecutor asked Matos to look around
the courtroom and ‘‘let us know if you recognize any-
body,’’ Matos replied, ‘‘[t]hat guy,’’ and began to
describe someone who was wearing a gray sweater.
The court asked Matos four questions, all of which
sought clarification from Matos with respect to whom
in the courtroom he was attempting to identify and
whether that person was the man that he observed in
police custody on December 25, 2014. The court asked
Matos, three times, to clarify the clothing being worn
by the person he was attempting to identify. The prose-
cutor had asked Matos to identify someone that he
‘‘recognize[d]’’—an inquiry that was not pertinent to
the issues before the jury and which possibly could
have created confusion in the minds of the jurors. The
court, in an obvious attempt to dispel any ambiguity
with respect to who in the courtroom Matos was
attempting to identify and why, asked Matos, ‘‘[d]o you
see the person that the police took into custody that
night here in the courtroom?’’ When Matos continued
to reflect an inability to provide an intelligible identifica-
tion, the court ended the inquiry by stating, ‘‘[t]hat’s
enough.’’
Having reviewed the record carefully, we are per-
suaded that the court’s questioning of Matos reflected
a reasonable attempt to clarify both Matos’ ability to
make an identification of someone in the courtroom as
well as the nature of the state’s inquiry. It is clear from
a review of the colloquy between the prosecutor, the
court, and Matos that such clarification was needed.
By making the brief inquiry of the witness that it did,
the court did not do more than protect the defendant’s
right to ensure that the jury had before it facts rather
than confusion. Stated otherwise, the court fulfilled its
role of ensuring that the facts were presented to the
jury in an understandable manner. Contrary to the
defendant’s characterization of the court’s questions,
the court did not reflect any bias in favor of the state’s
case or exert any influence on Matos to identify the
defendant as the person he may or may not have seen
on the night in question.
The present case does not present a situation in which
the court advocated in favor of a particular verdict,
suggested that a particular witness was credible, or
otherwise suggested that it believed or disbelieved any
particular version of events. The court’s brief inquiries
in the present case appear to have been directly tailored
to address ambiguities that obviously existed in the
questioning of the two witnesses at issue. The defendant
argues that the court improperly assisted the state’s
case and infringed upon the role of counsel. Yet, as our
case law reflects, judicial intervention in the form of
questioning witnesses is proper when, as in the present
case, such intervention is limited and is properly tai-
lored to dispelling confusion in the mind of the court
and the jury with respect to the nature of the evidence
being presented by a party. Although it was the jury’s
function to evaluate the evidence, including any in-court
identifications of the defendant, it was the court’s func-
tion to clarify whether an in-court identification of the
defendant by Matos, in fact, had occurred.
Additionally, we observe that during its charge, the
court stated in relevant part: ‘‘You should not be influ-
enced by my actions during the trial in ruling on motions
or objections by counsel, or in comments to counsel,
or in questions to witnesses, or in setting forth the law
in these instructions. You are not to take my actions
as any indication of my opinion as to how you should
determine the issues of fact.’’ Also, the court stated: ‘‘If
by any remote chance you think I have an opinion in
this case, I must tell you that you are wrong. I have no
opinion in this case. I am, if you will, like the referee
in a basketball game. I have no opinion as [to] how the
matter should end. My job is to make sure that every-
body plays by the rules and to explain the rules when
necessary.’’ These instructions unambiguously con-
veyed to the jury that the court did not have a role in
the fact-finding process and did not have an opinion
with respect to the outcome of the trial, thereby mitigat-
ing the danger that the jury might have considered the
conduct at issue in this claim in the harmful manner
suggested by the defendant.
For the foregoing reasons, we conclude that the court
acted well within its discretion. The defendant has
failed to demonstrate that a constitutional violation
exists and deprived him of a fair trial. Accordingly, the
claim fails under Golding’s third prong.
II
Next, the defendant claims that the court improperly
permitted the victim to make an in-court identification
of him in the absence of a showing that she previously
had made a nonsuggestive out-of-court identification
of him. We disagree.
In arguing that his due process rights were violated,
the defendant relies solely on State v. Dickson, 322
Conn. 410, 426, 141 A.3d 810 (2016), cert. denied,
U.S. , 137 S. Ct. 2263, 198 L. Ed. 2d 713 (2017), in
which our Supreme Court held that ‘‘first time in-court
identifications, like in-court identifications that are
tainted by an unduly suggestive out-of-court identifica-
tion, implicate due process protections and must be
prescreened by the trial court.’’ The court explained:
‘‘[A]ny first time in-court identification by a witness
who would have been unable to reliably identify the
defendant in a nonsuggestive out-of-court procedure
constitutes a procedural due process violation. . . .
Although we recognize that, when the witness could
have identified the defendant in a nonsuggestive proce-
dure, a first time in-court identification does not consti-
tute an actual violation of due process principles, this
court has an obligation to adopt procedures that will
eliminate the risk that the defendant will be deprived
of a constitutionally protected right by being identified
in court by a witness who could not have identified
the defendant in a fair proceeding. Indeed, it is well
established that courts have the duty not only to craft
remedies for actual constitutional violations, but also
to craft prophylactic constitutional rules to prevent the
significant risk of a constitutional violation. . . . In the
present case, we conclude that the practice of allowing
first time in-court identifications creates a significant
risk of a due process violation and that the procedures
that we adopt herein are more effective at preventing
such violations, less costly and more in keeping with the
legislative will than any other alternative.’’ (Citations
omitted; emphasis omitted.) Id., 426–27 n.11.
Our Supreme Court went on to explain that certain
in-court identifications were not subject to the prophy-
lactic rules set forth in Dickson. The court stated: ‘‘In
cases in which there has been no pretrial identification,
however, and the state intends to present a first time
in-court identification, the state must first request per-
mission to do so from the trial court. . . . The trial
court may grant such permission only if it determines
that there is no factual dispute as to the identity of the
perpetrator, or the ability of the particular eyewitness
to identify the defendant is not at issue. . . . For exam-
ple, in cases in which the trial court determines that
the only issue in dispute is whether the acts that the
defendant admittedly performed constituted a crime,
the court should permit a first time in-court identifica-
tion. In cases in which the defendant concedes that
identity or the ability of a particular witness to identify
the defendant as the perpetrator is not in dispute, the
state may satisfy the prescreening requirement by giving
written or oral notice to that effect on the record.’’
(Citations omitted.) Id., 445–46. The court clarified that,
if a defendant did not dispute a witness’ ability to iden-
tify him, but merely disputed such witness’ testimony
on other grounds, the witness would be ‘‘properly per-
mitted to make a first time in-court identification of the
defendant’’ without violating due process. Id., 446 n.28.
The defendant seeks review pursuant to the Golding
doctrine. We previously set forth the parameters of the
Golding doctrine in part I of this opinion. We will review
the claim because the record provides us with an ade-
quate basis to do so, and the claim is of constitutional
magnitude. 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 deprived him of a fair trial.
In arguing that the victim’s in-court identification
deprived him of his right to due process,5 the defendant
argues: ‘‘[T]here was no evidence presented that [the
victim] ever identified [the] defendant in a nonsugges-
tive out-of-court setting of any kind at all. None of the
police officers testified that she identified [the] defen-
dant as ‘Apollo,’ her alleged attacker, in any interview
or constitutionally acceptable [photographic] array or
lineup. There is not a shred of evidence [that the victim]
ever identified [the] defendant at all outside of court.
Moreover, her in-court identification was tainted with
[the trial court’s] leading question, so it cannot be
trusted. . . .
‘‘Since no prior, out-of-court nonsuggestive identifi-
cations were made, the state was obligated to seek the
court’s permission to have nonsuggestive . . . identifi-
cations made and have a hearing on how that could be
accomplished. . . . Short of that, the in-court identifi-
cations are not to be allowed.’’ (Citations omitted.)
The defendant does not challenge the victim’s in-
court identification of him as the person who resided
with her over the course of several weeks in December,
2014, and whom she knew to be ‘‘Ricardo Swilling’’ or
‘‘Apollo.’’ The victim testified, and the defendant did
not dispute, that she was familiar with the defendant
prior to the time that the person identified in the record
as Luis accompanied the defendant to her home
because he needed a place to stay. The victim testified
that she first met the defendant in 2013, at which time
she had a lengthy conversation with him. Far from
attempting to demonstrate that the victim was unfamil-
iar with him prior to the events at issue, the defendant
testified that, prior to December, 2014, he and the victim
were in a sexual relationship. The defendant’s theory
of defense, articulated during closing argument, was
not that the victim was unable to identify him correctly.
Rather, defense counsel suggested that an unnamed
third party who was a tenant of the victim had commit-
ted the crimes at issue, the victim was too fearful to
identify this third party, and, because she was in need
of assistance and felt pressure to name a perpetrator
following the incident, she falsely named the defendant
as her assailant because he happened to be staying with
her at that time.
The facts of the present case reflect that there was
no factual dispute with respect to whether the victim
had the ability to identify the defendant. The victim’s
familiarity with the defendant was not a disputed issue
of fact. The victim’s ability to observe, recall, and nar-
rate facts concerning the person that allegedly assaulted
her and held her hostage in her apartment during the
course of two days also was not a disputed issue of
fact. Accordingly, despite the fact that the record is
silent with respect to any out-of-court identification
made by the victim in the present case, the victim’s in-
court identification of the defendant as the perpetrator
of the crime was permissible absent adherence to the
procedural safeguards that the court in Dickson made
applicable to first time in-court identifications.
The defendant also focuses on the state’s failure to
request permission to conduct a first time in-court iden-
tification as is required by the newly created procedural
rules announced in Dickson. See State v. Dickson,
supra, 322 Conn. 445–46. As the state correctly
observes, the victim’s in-court identification occurred
on February 29, 2016. The defendant filed the present
appeal on June 28, 2016. Our Supreme Court, however,
did not officially release its decision in Dickson until
August 9, 2016. With respect to the applicability of the
procedural rules announced in Dickson, our Supreme
Court stated that they applied ‘‘to the parties to the
present case and to all pending cases. It is important
to point out, however, that, in pending appeals involving
this issue, the suggestive in-court identification has
already occurred. Accordingly, if the reviewing court
concludes that the admission of the identification was
harmful, the only remedy that can be provided is a
remand to the trial court for the purpose of evaluating
the reliability and the admissibility of the in-court identi-
fication under the totality of the circumstances. . . .
If the trial court concludes that the identification was
sufficiently reliable, the trial court may reinstate the
conviction, and no new trial would be required.’’ (Cita-
tions omitted; emphasis in original; footnote omitted.)
Id., 451–52.
In the present case, although we would be obliged
to afford the defendant relief if he had demonstrated
a violation of his due process rights, he is not necessarily
entitled to relief arising from the prosecutor’s failure
to abide by a procedural rule that was not in existence
at the time of trial. For the reasons already discussed,
we do not conclude that the admission of the victim’s
in-court identification violated his constitutional rights.
Because there is no showing of harm, there is no need
to upset the judgment of the trial court or to remand
the case to the trial court for further proceedings with
respect to the identification.
With respect to the victim’s in-court identification
of him as the perpetrator, the defendant is unable to
demonstrate that a constitutional violation exists and
that it deprived him of a fair trial.6 Accordingly, the
claim fails under Golding’s third prong.7
III
Next, the defendant claims that the court improperly
admitted evidence of his prior felony convictions. We
disagree.
The following additional facts are relevant to the
present claim. After the state rested its case-in-chief,
defense counsel indicated to the court that the defen-
dant intended to testify. After the court addressed the
defendant about his decision to testify, the court asked
the prosecutor to identify prior convictions of the defen-
dant that the state intended to use for impeachment
purposes. The prosecutor replied that he intended to
ask the defendant if he had been convicted of four
felony crimes on July 13, 2001. The prosecutor stated
that, on that date, the defendant was convicted of bur-
glary in the first degree, carrying or selling a dangerous
weapon, kidnapping in the first degree with the use of
a firearm, and kidnapping in the second degree with
the use of a firearm. The prosecutor indicated that he
did not intend to elicit the names of these felony crimes.
The prosecutor represented that the convictions
occurred in 2001, but the defendant was not discharged
to special parole until May 22, 2013. In terms of the
remoteness of the convictions, the state argued that
the fact that the defendant was not discharged to special
parole until May 22, 2013, put the convictions ‘‘well
within’’ a ten year window of the trial. Defense counsel
objected8 on the ground that the convictions were too
remote in time and that reference to the convictions
would be unduly prejudicial to the defense.
In relevant part, the court ruled: ‘‘I will allow the state
to impeach him. . . . I’m not clear what the nature of
the burglary is because there is no indication whether
there is larcenous intent in regard to that statute. But,
it’s clear [that] those offenses, the burglary first degree
and carrying a dangerous weapon, kidnapping second,
kidnapping first are all felonies and under the case law,
the felonies do go to the truth and veracity, and not as
much as crimes such as larceny or perjury. But they
still are considered admissible, and do go to truth and
veracity. I’m required at this point to weigh three fac-
tors. The extent of any prejudice likely to arise, the
significance of the commission of the particular crime
indicating on truthfulness and remoteness in time.
‘‘I’ll find that while these offenses—the convictions
are [in] July of 2001, he was not discharged. He wasn’t
released from prison until May 22, 2013. . . . I’ll indi-
cate [that] I’m reading from a business record from
the Department of Correction indicating [that] he was
discharged from prison . . . to parole, on May 22, 2013,
and that as of the date of this incident, December 26,
2014, he was still on parole. He may even still be on
parole today, but regardless, he certainly was on parole
up until December 26th. . . .
‘‘So, as a result, I believe that the case law indicates
that this conviction, while starting on July 13, 2001, is
still, in effect, even today as we speak, but certainly
when he was discharged just approximately three years
ago. So, I find for that purpose, it’s not too remote
in time.
‘‘I also find that since it’s going to be referred to as
unnamed felonies . . . and also since the state is going
to refer to the date of conviction, which is 2001, that
the extent of the prejudice is minimal.
‘‘And as far as the significance of the commission
of the particular crimes here regarding truthfulness, it
would appear that they aren’t the type of crimes ordi-
narily associated with truthfulness, but the case law
indicates that because they are felonies, they . . . as
opposed to misdemeanors . . . [reflect on the defen-
dant’s] truthfulness . . . . Obviously, less than a lar-
ceny would, but still some elements.
‘‘So, based on all the weighing of those factors, and
the fact that [the] state is prohibited from referring
to the particular offenses and is also prohibited from
mentioning when he got off of parole, or [was] released
from prison . . . the argument could be made by the
defense that he doesn’t have a conviction since 2001.
So, I don’t think there is the prejudice that might be
associated with, you know, some reference to some-
thing more recent.
‘‘So, I am going to allow the state to impeach with
those four offenses. I will also indicate that the defen-
dant was apparently convicted of [a] burglary charge
and was in . . . 1997, which, under . . . my reading
of the statute could possibly be used as a source of
impeachment since he has one or more offenses within
the ten years. But in discussing with the state, I urge the
state not to impeach him with that, so from a balancing
standpoint, I . . . ask the state not to do that. They
are not going to do that. So, that was something that
went into my decision to allow impeachment as I’ve
described.’’
During the state’s cross-examination of the defen-
dant, the prosecutor asked the defendant if he was a
convicted felon in that he had been convicted of four
felony crimes on July 13, 2001. The defendant acknowl-
edged that he had been convicted of these felony
crimes. Immediately after the prosecutor elicited this
evidence, the court provided a limiting instruction to
the jury in which it ordered the jury to consider the
evidence only with respect to an assessment of the
defendant’s credibility.9
During the state’s closing argument, the prosecutor
did not expressly rely on the defendant’s prior felony
convictions. During defense counsel’s closing argu-
ment, counsel referred briefly to the impeachment evi-
dence at issue by reminding the jury that the testimony
with respect to the defendant’s four felony convictions
was admitted solely for use in the jury’s assessment of
his credibility generally.10 During its charge to the jury,
the court reiterated, in substance, the limiting instruc-
tion that it provided to the jury immediately after the
state elicited testimony from the defendant concerning
the four unnamed felony convictions.11
Presently, the defendant argues that, by permitting
the state to introduce evidence that, in 2001, he was
convicted of committing four felony crimes, the court
‘‘violated [his] right to due process of law and a fair
and impartial trial,’’ and, in the alternative, the court
abused its discretion, thereby undermining his defense.
Although, in his initial discussion of the present claim
in his brief, the defendant makes reference to an alleged
violation of his constitutional rights, his analysis of the
claim focuses solely on the issue of whether the court
abused its discretion in admitting the evidence and
whether its improper ruling was harmful to the defense.
Thus, the defendant abandoned any claim of constitu-
tional magnitude with respect to the court’s ruling.
‘‘[T]he standard for the preservation of a claim alleg-
ing an improper evidentiary ruling at trial is well settled.
This court is not bound to consider claims of law not
made at the trial. . . . In order to preserve an eviden-
tiary ruling for review, trial counsel must object prop-
erly. . . . In objecting to evidence, counsel must
properly articulate the basis of the objection so as to
apprise the trial court of the precise nature of the objec-
tion and its real purpose, in order to form an adequate
basis for a reviewable ruling. . . . Once counsel states
the authority and ground of [the] objection, any appeal
will be limited to the ground asserted. . . .
‘‘These requirements are not simply formalities. They
serve to alert the trial court to potential error while
there is still time for the court to act. . . . Assigning
error to a court’s evidentiary rulings on the basis of
objections never raised at trial unfairly subjects the
court and the opposing party to trial by ambush. . . .
Thus, because the sine qua non of preservation is fair
notice to the trial court . . . the determination of
whether a claim has been properly preserved will
depend on a careful review of the record to ascertain
whether the claim on appeal was articulated below with
sufficient clarity to place the trial court on reasonable
notice of that very same claim.’’ (Citations omitted;
internal quotation marks omitted.) State v. Jorge P., 308
Conn. 740, 753–54, 66 A.3d 869 (2013).
As we discussed previously in this opinion, at the
time that defense counsel objected to the admission of
evidence related to the prior convictions, he argued
that they were too remote in time and that they were
more prejudicial than probative. To the extent that the
defendant attempts to undermine the court’s ruling by
arguing for the first time before this court that the
evidence simply was not at all relevant in an assessment
of his veracity, we decline to address that aspect of his
claim. We will review the grounds advanced before
the trial court related to the prejudicial nature of the
evidence as well as its remoteness.
‘‘It is well settled that evidence that a criminal defen-
dant has been convicted of crimes on a prior occasion
is not generally admissible. . . . There are, however,
several well recognized exceptions to this rule, one of
which is that [a] criminal defendant who has previously
been convicted of a crime carrying a term of imprison-
ment of more than one year may be impeached by the
state if his credibility is in issue. . . . In its discretion
a trial court may properly admit evidence of prior con-
victions provided that the prejudicial effect of such
evidence does not far outweigh its probative value. . . .
[Our Supreme Court] has identified three factors which
determine whether a prior conviction may be admitted:
(1) the extent of the prejudice likely to arise; (2) the
significance of the commission of the particular crime
in indicating untruthfulness; and (3) its remoteness in
time. . . . A trial court’s decision denying a motion to
exclude a witness’ prior record, offered to attack his
credibility, will be upset only if the court abused its
discretion. . . . Those three factors have been incor-
porated in [the Connecticut] [C]ode of [E]vidence.
Conn. Code Evid. § 6-7 (a). . . .
‘‘There is no doubt that if evidence of a felony convic-
tion is otherwise admissible, the name of the crime is
generally also admissible. See Conn. Code Evid. § 6-7
(c) ([i]f, for purposes of impeaching the credibility of
a witness, evidence is introduced that the witness has
been convicted of a crime, the court shall limit the
evidence to the name of the crime . . . except that
. . . the court may exclude evidence of the name of
the crime . . . .’’ (Citations omitted; emphasis in origi-
nal; internal quotation marks omitted.) State v. Young,
174 Conn. App. 760, 768–69, 166 A.3d 704, cert. denied,
327 Conn. 976, 174 A.3d 195 (2017). ‘‘As indicated in
§ 6-7, the court has discretion to admit the prior convic-
tion as an unnamed felony. Factors to consider include
whether the prior crime reflects directly on credibility
and whether the prejudice inherent in the name of the
crime outweighs the probative impeaching value. . . .
‘‘[I]n evaluating the separate ingredients to be
weighed in the balancing process, there is no way to
quantify them in mathematical terms. . . . Therefore,
[t]he trial court has wide discretion in this balancing
determination and every reasonable presumption
should be given in favor of the correctness of the court’s
ruling . . . . Reversal is required only where an abuse
of discretion is manifest or where injustice appears to
have been done. . . . The burden lies with the party
objecting to the admission of evidence of prior convic-
tions to demonstrate the prejudice that is likely to arise
from its admission. . . . The test for determining
whether evidence is unduly prejudicial is not whether
it is damaging to the defendant but whether it will
improperly arouse the emotions of the jury.’’ (Citations
omitted; internal quotation marks omitted.) Id., 769–70.
‘‘[P]rior convictions that are admissible for impeach-
ment purposes may be segregated into two general cate-
gories. First are those crimes that by their very nature
indicate dishonesty or tendency to make false state-
ment. . . . Beyond the obvious violations such as per-
jury or false statement, we have recognized that crimes
involving larcenous intent imply a general disposition
toward dishonesty such that they also fall within this
category. . . . Convictions of this sort obviously bear
heavily on the credibility of one who has been convicted
of them. The probative value of such convictions, there-
fore, may often outweigh any prejudice engendered by
their admission.
‘‘The second category involves convictions for crimes
that do not reflect directly on the credibility of one who
has been convicted of them. . . . The theory behind
the admissibility of these convictions as evidence of
credibility posits that conviction of a crime demon-
strates a bad general character, a general readiness to
do evil and that such a disposition alone supports an
inference of a readiness to lie in the particular case
. . . .
‘‘Convictions of crimes that fall within this second
category blemish the character of one so convicted. A
juror might reasonably conclude that such a witness
lacks to some degree the moral rectitude from which
a witness’s oath of honesty derives its credibility. Never-
theless, conviction of a crime not directly reflecting on
credibility clearly lacks the direct probative value of a
criminal conviction indicating dishonesty or a tendency
to make false statement. Thus, the balance used to
measure admissibility of prior convictions is weighted
less heavily toward admitting the prior conviction when
it involves a crime related only indirectly to credibility.’’
(Citations omitted; internal quotation marks omitted.)
State v. Geyer, 194 Conn. 1, 12–13, 480 A.2d 489 (1984).
‘‘To avoid unwarranted prejudice to the witness, when
a party seeks to introduce evidence of a felony that
does not directly bear on veracity, a trial court ordi-
narily should permit reference only to an unspecified
crime carrying a penalty of greater than one year that
occurred at a certain time and place.’’ State v. Pinnock,
220 Conn. 765, 780, 601 A.2d 521 (1992). ‘‘That prudent
course [of permitting evidence of unnamed felony con-
victions] allows the jury to draw an inference of dishon-
esty from the prior conviction without the extraordinary
prejudice that may arise from naming the specific
offense. . . . Ultimately, [t]he trial court, because of
its intimate familiarity with the case, is in the best posi-
tion to weigh the relative merits and dangers of any
proffered evidence. . . . This principle applies with
equal force to the admissibility of prior convictions.’’
(Citation omitted; internal quotation marks omitted.)
State v. Muhammad, 91 Conn. App. 392, 401, 881 A.2d
468, cert. denied, 276 Conn. 922, 888 A.2d 90 (2005).
We first address the defendant’s claim that the court
abused its discretion in admitting evidence of the con-
victions because they were too remote. It appears to
be undisputed that the convictions occurred in 2001,
but that the defendant’s release from confinement in
connection with those convictions did not occur until
May 22, 2013. The defendant argues that the convictions
occurred nearly fifteen years prior to the time of trial,
which occurred in 2016. Ignoring the significance of
the date of his release from confinement, the defendant
asserts that he was serving the special parole portion
of his sentence at the time of trial and, thus, the ten
year presumptive bar to the prior convictions evidence
should have applied. The defendant correctly acknowl-
edges in his brief that there is no legal precedent in
support of his argument.12
This court has explained: ‘‘[T]he fact that a prior
conviction is more than ten years old should greatly
increase the weight carried by the third prong in the
balancing test set forth in § 6-7 of the Connecticut Code
of Evidence, unless that prior conviction relates to the
witness’ veracity. . . . That ten year benchmark, how-
ever, does not present an absolute bar to the use of a
conviction that is more than ten years old but rather
functions as a guide to assist the court in evaluating
the conviction’s remoteness. . . . [T]he measuring
point for a remoteness determination under § 6-7 of the
Connecticut Code of Evidence is the date of conviction
or the date of release from resulting confinement,
whichever is later.’’ (Citations omitted; internal quota-
tion marks omitted.) Id., 399–400. Because the defen-
dant was released from confinement within ten years
of the time of trial, the defendant’s argument that the
convictions were too remote is not persuasive.
With respect to the defendant’s argument that the
evidence was unduly prejudicial, he argues that because
he was facing serious felony charges in the present
case, the admission of the evidence at issue ‘‘was likely
to lead the jury to conclude [that he] was more likely
guilty in this case.’’ Observing that the jury’s assessment
of his credibility was a critical factual issue in the pre-
sent case, the defendant asserts that the evidence was
‘‘unduly prejudicial and of minor probative value.’’
The court carefully applied the correct legal princi-
ples in its assessment of the evidence. The court prop-
erly recognized that the four felony convictions, which
arose from charges of burglary in the first degree, car-
rying or selling a dangerous weapon, kidnapping in the
first degree with the use of a firearm, and kidnapping
in the second degree with the use of a firearm, did not
reflect directly on the defendant’s credibility. The court
recognized, however, that the felony convictions none-
theless were relevant in an assessment of the defen-
dant’s credibility. In light of the legal principles
previously discussed in this opinion, the defendant is
unable to demonstrate that the court’s determination
that the felony convictions were relevant in an assess-
ment of his credibility was not proper, nor did he
attempt to do so at the time of trial.
The defendant, noting that the evidence was adverse
to him, argues that the evidence was prejudicial. All
adverse evidence is prejudicial. Here, the court took
several measures to ensure that the evidence was not
unduly prejudicial. First and foremost, the court limited
the state’s inquiry to unnamed felonies that occurred
in 2001. The jury learned no details related to the crimes
which arguably might have inflamed negative feelings
toward the defendant. Additionally, the court provided
the jury with a limiting instruction immediately follow-
ing its admission of the evidence at issue, and it reiter-
ated this instruction during its charge. The defendant
does not argue that the court’s instructions were defi-
cient and provides us with no reason to doubt that the
jury followed these instructions in its careful assess-
ment of the evidence.
For the foregoing reasons, the defendant has failed
to demonstrate that the court abused its discretion in
admitting the prior conviction evidence.
IV
Next, the defendant argues that the court improperly
admitted a recording of a 911 call made by the victim.
We disagree.
The following additional facts are relevant to the
present claim. During the victim’s direct examination
by the state, she testified about the ordeal that she
endured in her apartment over the course of two days
and how, immediately after she fled her apartment on
December 25, 2014, she ran to Matos’ apartment and
sought assistance from him. The victim testified that,
once she was inside Matos’ apartment, she hid in a
closet. She asked Matos to call 911 for her and, after
the call was made, she spoke to a dispatcher at the 911
call center. At that juncture in the victim’s examination,
the prosecutor asked her if she recognized a CD that
the state marked as an exhibit for identification pur-
poses. The victim testified that she recognized the CD
and had listened to portions of it at the courthouse.
She testified that it contained a recording of the conver-
sation that she had with the 911 dispatcher on Decem-
ber 25, 2014.
When the prosecutor offered the recording as a full
exhibit, defense counsel objected to its admission on
the ground of hearsay. After the court excused the jury,
the prosecutor argued that the recorded statements
were not hearsay because they were the victim’s sponta-
neous utterances immediately following her escape
from captivity that were made while she was still experi-
encing the stress and excitement of the violent event.
The prosecutor argued, as well, that the recorded state-
ments were not hearsay because they were statements
made by the victim related to her then-existing medi-
cal condition.
Initially, the court expressed concerns with respect
to the authenticity of the exhibit offered by the state,
but defense counsel stated that he was not raising an
objection based on authentication. Rather, defense
counsel stated, that his objection was based on the fact
that the recording was hearsay and it was cumulative
evidence because ‘‘this witness can clearly testify [with
respect to] all of the things that would be revealed on
the tape. What was your state of mind at the time? She
can tell us. . . . What did you tell the police? She can
tell us that. . . . So, under the circumstances, I don’t
see any need to admit the tape.’’
Noting that defense counsel was not objecting on
authentication grounds, the court asked the prosecutor
to play the recording. In the recording, the victim made
many statements, some of which were unprompted and
some of which were responsive to questions posed to
her by a 911 dispatcher. She identified herself and pro-
vided her location. She indicated that she had been
kidnapped in her apartment by a five foot, eight inch
tall black male with ‘‘long dreads’’ named ‘‘Rick,’’ who
had the street name of ‘‘Apollo.’’ The victim stated that
she knew her assailant, and that, while she was alone
with him, he stabbed her with kitchen knives and
choked, beat, and tortured her. The victim stated that
she had escaped to her current location, a neighbor’s
apartment, but that she was ‘‘bleeding all over’’ and
needed an ambulance. The victim stated her belief that
the perpetrator was still asleep in her apartment.
After the court heard the recording, defense counsel
reiterated his view that the recording was inadmissible
because it was hearsay and it was cumulative. Addition-
ally, defense counsel argued that the recording was
more prejudicial than probative. The prosecutor replied
that the evidence, which shed light on the victim’s state
of mind in the minutes after she fled from her apartment,
was relevant to the jury’s assessment of the victim’s
credibility. Additionally, the prosecutor reiterated his
belief that the statements were not inadmissible hearsay
because they were the excited utterances of the victim.
The court ruled: ‘‘It’s not admissible for credibility.
She hasn’t been cross-examined. . . . [I]t may become
admissible under some of the case law that discusses
that, but at this point that is not why it’s admissible.
‘‘I’ve listened to the entire 911 call, which is in four
or five separate sections. It is clear, even though a
number of the . . . statements [made by the victim]
are made in response to questions [posed to her by the
911 dispatcher] which would militate against a sponta-
neous utterance exception, it is clear in listening to her
voice, her voice is many times hurried. She seems out
of breath during most of the conversation. It is clear
that she’s under the influence of a startling event. It’s
within minutes, if not seconds, of her being released
from, or escaping, I should say, from the house that
she was being held captive in. It’s her . . . rambling,
again, reflecting a lack of forethought in responding to
things. It’s just a spur of the moment. So, it’s clear that
most of the statements made by her are admissible for
the truth of the matter as spontaneous utterance.
‘‘To the extent that there are some things in there
that are not . . . it’s just a repeat of some previous
things that were said. Additionally, there are some
descriptions of the defendant. Those are admissible
under the identification exception to the hearsay rule.
And . . . under § 8-5 [of the Connecticut Code of Evi-
dence], she’s available for cross-examination. So that’s
available there.
‘‘This is a 911 call and, therefore, would come in as
a business record exception if the state would lay a
foundation for that which they up to now have not
done. But, additionally, I find that under the residual
exception, it indicates a statement that is not admissible
under any of the foregoing exceptions. I think it is
admissible under a number of the foregoing exceptions.
But, it’s certainly admissible if the court determines
there is a reasonable necessity for the admission of the
statement. This is the only time. There’s no other 911
calls, so there is a reasonable necessity for the admis-
sion of it in the statement supported by the equivalent
guarantees of trustworthiness and reliability essential
to other evidence admitted. I find it extremely trustwor-
thy and reliable given the fact that it’s a recorded state-
ment. It was done within seconds, or minutes, of being
released from captivity, and, therefore . . . the 911 call
in its entirety is admissible in full.’’ Thereafter, the court
summoned the jury to the courtroom and the recording
was played in the jury’s presence.
Presently, the defendant challenges the court’s ruling
by arguing that the court erred in its determination that
the victim’s statements were spontaneous utterances
and that admitting the recording was not unduly prejudi-
cial to the defense.13 We will review these preserved
evidentiary issues, in turn.14
A
First we address the defendant’s argument that the
court improperly determined that the recording fell
within the spontaneous utterance exception to the hear-
say rule. Our Supreme Court has set forth the standard
of review we are bound to utilize in hearsay claims:
‘‘To the extent a trial court’s admission of evidence is
based on an interpretation of the Code of Evidence,
our standard of review is plenary. For example, whether
a challenged statement properly may be classified as
hearsay and whether a hearsay exception properly is
identified are legal questions demanding plenary
review. They require determinations about which rea-
sonable minds may not differ; there is no judgment call
by the trial court, and the trial court has no discretion
to admit hearsay in the absence of a provision providing
for its admissibility. . . .
‘‘We review the trial court’s decision to admit evi-
dence, if premised on a correct view of the law, how-
ever, for an abuse of discretion. . . . In other words,
only after a trial court has made the legal determination
that a particular statement is or is not hearsay, or is
subject to a hearsay exception, is it vested with the
discretion to admit or to bar the evidence based upon
relevancy, prejudice, or other legally appropriate
grounds related to the rule of evidence under which
admission is being sought. For example, whether a
statement is truly spontaneous as to fall within the
spontaneous utterance exception will be reviewed with
the utmost deference to the trial court’s determination.
Similarly, appellate courts will defer to the trial court’s
determinations on issues dictated by the exercise of
discretion, fact finding, or credibility assessments.’’
(Citations omitted; internal quotation marks omitted.)
State v. Saucier, 283 Conn. 207, 218–19, 926 A.2d 633
(2007).
‘‘An out-of-court statement offered to prove the truth
of the matter asserted is hearsay and is generally inad-
missible unless an exception to the general rule applies.
. . . Section 8-3 of the Connecticut Code of Evidence
sets forth exceptions to the hearsay rule that apply
regardless of the availability of the declarant. Conn.
Code Evid. § 8-3. One such exception is the spontaneous
utterance exception set forth in § 8-3 (2), which applies
to: A statement relating to a startling event or condition
made while the declarant was under the stress of excite-
ment caused by the event or condition. Under § 8-3 (2),
an out-of-court declaration will not be excluded under
the hearsay rule when the following factors are estab-
lished: (1) the declaration follows a startling occur-
rence, (2) the declaration refers to that occurrence,
(3) the declarant observed the occurrence, and (4) the
declaration is made under circumstances that negate
the opportunity for deliberation and fabrication by the
declarant. . . .
‘‘In determining whether a declaration is admissible
as a spontaneous utterance, the court should look at
various factors, including [t]he element of time, the
circumstances and manner of the accident, the mental
and physical condition of the declarant, the shock pro-
duced, the nature of the utterance, whether against the
interest of the declarant or not, or made in response
to question, or involuntary, and any other material facts
in the surrounding circumstances . . . . The relation
of the utterance in point of time to the accident or
occurrence, while an important element to be consid-
ered in determining whether there has been opportunity
for reflection, is not decisive. . . . Instead, [t]he over-
arching consideration is whether the declarant made
the statement before he or she had the opportunity to
undertake a reasoned reflection of the event described
therein.’’ (Citations omitted; internal quotation marks
omitted.) State v. Daley, 161 Conn. App. 861, 883–84,
129 A.3d 190 (2015), cert. denied, 320 Conn. 919, 132
A.3d 1093 (2016).
The defendant challenges the court’s determination
that the circumstances in which the victim made the
recorded statements negated the opportunity for delib-
eration and fabrication by her. As set forth previously,
the court made myriad findings in this regard. After
listening to the recording, the court found that the vic-
tim sounded ‘‘hurried’’ and ‘‘out of breath’’ during most
of her conversation with the 911 dispatcher. At times,
the court found, the victim appeared to be ‘‘rambling
. . . .’’ The victim testified, and the recording reflects,
that the 911 call was made immediately after the victim
escaped from her apartment and, desperately seeking
assistance, gained access to Matos’ apartment. Thus,
the court found that the recording was made ‘‘within
minutes . . . of her . . . escaping . . . from the
house that she was being held captive in.’’ Crediting
the victim’s testimony that she had been tortured during
the course of two days and appeared at Matos’ apart-
ment only after rushing out of her apartment when
the defendant was asleep, while still bloodied from a
plethora of stab wounds, the court observed that the
victim clearly was ‘‘under the influence of a startling
event’’ at the time the 911 call was made. The court
correctly recognized that many of the victim’s state-
ments were made in response to questions posed to
her by the 911 dispatcher, yet found that that the circum-
stances reflected a ‘‘lack of forethought’’ by the victim in
responding to these questions and ‘‘spur of the moment’’
statements by her.
The defendant argues that the victim’s statements
were not spontaneous because many of them were
made in response to questions posed to her by the
911 dispatcher, the court’s assessment of the victim’s
speech pattern was insignificant to a proper analysis,
the court improperly appeared to resolve the ‘‘ultimate
issue of the case’’ that she had been held captive, and the
evidence reflected that the victim made the statements
from the safety of Matos’ apartment, at which point in
time ‘‘she was able to collect her thoughts and respond
to questions.’’
Our careful review of the recording reflects that some
of the victim’s statements in the recording at issue were
made in response to questions posed to her by the 911
dispatcher. Many others, however, were made sponta-
neously. Nevertheless, the central premise of the defen-
dant’s argument is not legally correct. ‘‘[T]hat a
statement is made in response to a question does not
preclude its admission as a spontaneous utterance.’’
State v. Kirby, 280 Conn. 361, 376, 908 A.2d 506 (2006);
State v. Davis, 109 Conn. App. 187, 195 n.3, 951 A.2d
31 (same), cert. denied, 289 Conn. 929, 958 A.2d 160
(2008); State v. Nelson, 105 Conn. App. 393, 407, 937
A.2d 1249 (same), cert. denied, 286 Conn. 913, 944 A.2d
983 (2008).
The defendant does not cite any authority in support
of his argument that the court’s observations with
respect to the sound of the victim’s voice, or the hurried
nature of her speech, were irrelevant to an assessment
of whether her statements reflected a lack of fore-
thought on her part. One of the factors relevant to an
assessment of whether a declarant spoke spontane-
ously or not is his mental and physical condition at the
time of the declaration at issue. In an analysis of relevant
facts, an observation that a declarant had spoken
slowly, calmly, and without emotion might support an
inference that he had carefully considered his state-
ments. An observation that he had spoken rapidly, emo-
tionally, or while out of breath might support an
inference that he had not carefully considered his state-
ments. Accordingly, this court has reasoned that a
declarant’s ‘‘emotional tone of voice,’’ as reflected in a
911 call recording, was one of several factors supporting
a finding that the 911 recording was a spontaneous
utterance. State v. Silver, 126 Conn. App. 522, 537, 12
A.3d 1014, cert. denied, 300 Conn. 931, 17 A.3d 68 (2011);
see also State v. Kirby, supra, 280 Conn. 376–77 (that
declarant ‘‘ ‘sounded highly emotional’ ’’ was relevant
factor in assessment of whether declarant’s statements
were spontaneous utterances). The court properly con-
sidered the manner in which the victim spoke in its
review of all of the relevant facts surrounding the vic-
tim’s statements.
The defendant suggests impropriety in that the court
found that the statements at issue were made within
minutes after she had escaped from her apartment
because this was ‘‘the ultimate issue of the case . . . .’’
The defendant, however, did not dispute that the victim
was assaulted over the course of two days in her apart-
ment or that she had escaped captivity, fled to Matos’
residence, and called 911 upon her arrival. Instead, the
ultimate issue in the case was the identity of the perpe-
trator of the crimes at issue. Accordingly, the defen-
dant’s argument is not supported by the record.
Last, the defendant disagrees with the court’s finding
that the victim’s statements to the 911 dispatcher were
spontaneous. He argues that the evidence supported a
finding that, by the time that the 911 call was made by
the victim, she was in a safe place and was able to
collect her thoughts. There was ample evidence to the
contrary. As the court observed, the 911 call occurred
within minutes of the victim fleeing her apartment fol-
lowing a lengthy and violent ordeal that reasonably
would be expected to have created a high degree of
emotional disturbance in the victim. At the time that
the statements were made, the victim was hiding from
the perpetrator in her neighbor’s apartment. There was
evidence that, at the time that the victim spoke with
the 911 dispatcher, her mental condition was fearful
because she informed the dispatcher that she did not
want to go outside because ‘‘[h]e might come and find
me again.’’ In terms of her physical condition, the victim
stated that she was in need of an ambulance and that
she was ‘‘bleeding all over.’’ In light of all the relevant
circumstances surrounding the statement, the defen-
dant is unable to demonstrate that the court abused its
discretion in finding that the declarations were made
under circumstances that negated the opportunity for
deliberation, contrivance, and misrepresentation by
the declarant.
B
The defendant argues that the admission of the 911
recording was unduly prejudicial to the defense because
it tended to arouse the jury’s emotions, hostility or
sympathy.15 We disagree.
‘‘Relevant evidence may be excluded if its probative
value is outweighed by the danger of unfair prejudice
or surprise, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of
time or needless presentation of cumulative evidence.’’
Conn. Code Evid. § 4-3. We note that ‘‘[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 defendant but whether
it will improperly arouse the emotions of the jury. . . .
The court bears the primary responsibility for conduct-
ing the balancing test to determine whether the proba-
tive value outweighs the prejudicial impact, and its
conclusion will be disturbed only for a manifest abuse
of discretion.’’ (Internal quotation marks omitted.) State
v. William C., 103 Conn. App. 508, 519–20, 930 A.2d
753, cert. denied, 284 Conn. 928, 934 A.2d 244 (2007).
With respect to the issue of improperly arousing the
emotions of the jury, the defendant argues that the 911
recording had a general tendency to invoke sympathy
for the victim and that it was inflammatory because in
it the victim referred to the fact that she had been
‘‘kidnapped for two days’’ and that the defendant had
been ‘‘torturing’’ her. Additionally, the defendant argues
that the 911 recording was prejudicially cumulative:
‘‘Given the cumulative effect of the 911 call with [the
victim’s] in-court testimony, the 911 call served simply
to arouse the juror’s sympathy for [the victim] without
providing any additional substantive information that
she had not already given in her direct testimony.’’
The defendant’s broad assessment of the 911
recording as prejudicially cumulative evidence is not
supported by the record. Before the trial court, the
defendant argued that the evidence was cumulative
because the victim could testify about the details set
forth in the 911 recording. He did not distinctly argue
that the 911 recording was prejudicial because it was
cumulative, so a claim based on that ground in not
properly before us.16 In any event, we observe that the
911 recording was introduced during the victim’s direct
examination. The victim was the first witness called by
the state in its case-in-chief. Although she related, in
detail, many specific facts concerning the episode in
her apartment, the victim did not relate all of the specific
information that she had provided to the dispatcher
during the 911 call. This information included a detailed
description of the perpetrator as well as the entire sub-
stance of the details that the victim provided to the
dispatcher. To the contrary, the victim merely had testi-
fied that she made a 911 call from Matos’ residence.
Accordingly, we reject the contention that the 911
recording was prejudicial because it was cumulative.
Although the defendant argues that the recording
was inflammatory we disagree that it was any more
inflammatory than the victim’s lengthy testimony con-
cerning the defendant’s actions by which he prevented
her from leaving her apartment over the course of two
days and repeatedly assaulted her in a variety of ways.
This included beating, choking, kicking, and repeated
stabbings. During the recording, the victim referred to
the fact that the defendant had ‘‘tortured’’ her and ‘‘kid-
napped’’ her. We are not persuaded that this strong
language was likely to have aroused the jury’s emotions
any more than the factual recitation that she set forth
in her testimony. Accordingly, we conclude that the
court did not abuse its discretion by failing to conclude
that the evidence was unduly prejudicial.
V
Finally, the defendant claims that the cumulative
effect of the court’s errors deprived him of his right to
a fair and impartial trial. This claim lacks merit.
In his brief, the defendant argues: ‘‘In the alternative
to the claims [raised previously in this opinion], assum-
ing this court finds that, alone, none of those claims is
sufficient to state a claim for relief in the form of a
remand and new trial, then the cumulative effect of the
violations of [the] defendant’s rights and evidentiary
decisions discussed [in those claims is] together suffi-
cient to undermine confidence in the result of [the]
defendant’s trial.’’ Beyond this conclusory statement,
the defendant merely cites to three federal cases in
support of this claim.
We observe that this claim is not adequately briefed
in that it consists of a legal assertion and is devoid of
any analysis of facts or law.17 Even if we were to con-
sider this claim of cumulative error18 on its merits, we
would conclude that it lacks merit because we have
not concluded that any error exists with respect to the
claims previously addressed in this opinion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant was charged with assault in the first degree in violation
of General Statutes § 53a-59 (a) (1). The jury returned a verdict of not guilty
with respect to that count, but found the defendant guilty of the lesser
included offense of assault in the second degree in violation of § 53a-60
(a) (2).
2
The court sentenced the defendant to a total effective term of incarcera-
tion of forty years, which includes a twenty year mandatory minimum sen-
tence, followed by ten years of special parole.
3
Although the defendant refers to his rights under the state and federal
constitutions, he has not provided this court with an independent analysis
of his claim under the state constitution in accordance with State v. Geisler,
222 Conn. 672, 684–86, 610 A.2d 1225 (1992). Accordingly, we deem his state
constitutional claim abandoned. See, e.g., State v. Bennett, 324 Conn. 744,
748 n.1, 155 A.3d 188 (2017).
4
Alternatively, the defendant argues that reversal is warranted under
the plain error doctrine, codified in Practice Book § 60-5, which ‘‘is an
extraordinary remedy used by appellate courts to rectify errors committed
at trial that, although unpreserved [and nonconstitutional in nature], are of
such monumental proportion that they threaten to erode our system of
justice and work a serious and manifest injustice on the aggrieved party.’’
(Internal quotation marks omitted.) State v. Jamison, 320 Conn. 589, 595–96,
134 A.3d 560 (2016). In light of our conclusion that the present claim fails
on its merits under the bypass rule of Golding and that the court acted well
within its discretion by questioning the witnesses as it did to clarify the
testimony of both witnesses, the defendant cannot demonstrate that plain
error exists. Additionally, the defendant urges us to exercise our supervisory
authority to grant him relief. In light of our assessment of the court’s limited
and proper intervention in the presentation of evidence, we reject the defen-
dant’s invocation of this rarely utilized doctrine. As our Supreme Court has
explained: ‘‘The exercise of our supervisory powers is an extraordinary
remedy to be invoked only when circumstances 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.’’ (Emphasis
omitted; internal quotation marks omitted.) State v. Lockhart, 298 Conn.
537, 576, 4 A.3d 1176 (2010).
5
To the extent that the defendant has attempted to raise a claim under
our state constitution, he has abandoned such claim by virtue of his failure
to provide this court with an independent analysis of it. See footnote 3 of
this opinion.
6
In the context of challenging the victim’s in-court identification under
Dickson, the defendant purports to raise ‘‘an additional ground of error’’
under Dickson with respect to Matos. Specifically, the defendant argues
that, despite the fact that there was no evidence that Matos had identified
the defendant previously, the court nonetheless ‘‘prompted’’ Matos to make
an in-court identification of the defendant. We have concluded in part I of
this opinion that the court’s inquiries of Matos were proper. Despite the fact
that the defendant challenges the court’s inquiries of Matos, he nonetheless
acknowledges that Matos never made an in-court identification of the defen-
dant. Setting aside our concern that the defendant’s scant analysis of this
aspect of his unpreserved claim does not constitute adequate briefing, we
readily conclude that it fails under Golding’s third prong in light of the
undisputed fact that an in-court identification by Matos did not occur in
the present case.
7
To the extent that the defendant argues, in the alternative, that plain
error exists with respect to either aspect of the present claim under Dickson,
we conclude, in light of the reasons discussed in our Golding analysis, that
the defendant has failed to demonstrate that plain error exists. Additionally,
to the extent that the defendant requests extraordinary relief in terms of
the exercise of our supervisory authority, we conclude that our review of
the present claim does not reflect the existence of any infringement of the
defendant’s rights and does not give rise to any concerns that would warrant
the exercise of our supervisory authority.
8
The record reflects that, prior to this point in the trial, defense counsel
filed a motion in limine to preclude the state from introducing evidence
pertaining to the defendant’s criminal record. Therein, the defendant argued
that such evidence was ‘‘not probative as to any material issue in the present
case and is so highly prejudicial as to inflame the jury.’’
9
The court stated: ‘‘[T]his evidence that you’ve just heard is the defendant
was convicted in 2001 of felony charges. A felony is a crime for which a
person can be incarcerated for more than one year. The evidence of the
commission of a crime other than the one charge[d] is not admissible to
prove the guilt of the defendant in this particular case. The commission of
the other matters . . . by this defendant, has been admitted into evidence
for the sole purpose of affecting his credibility. You must weigh the testimony
and consider it along with all the other evidence in this case. You may
consider the convictions of the defendant only as they bear upon his credibil-
ity. And you should determine that credibility based on the same considera-
tions you would give any other witness.’’
10
Defense counsel argued in relevant part: ‘‘[The defendant] admitted that
back in 2001, he was convicted of four felonies on the same date and time,
so they obviously were all a result of one incident, presumably. And I bring
your attention to that simply to alert you that the judge will tell you that
that information is admissible only on the question of [the defendant’s]
credibility. That is, you can’t use that information to say, well, if he’s been
convicted of a felony, some, now, fifteen years ago, therefore he’s guilty of
this felony. You can’t use that information in any way to draw that type of
conclusion. The only reason it’s admissible, and it was allowed here in court
today, is for your consideration as to whether or not it may affect his overall
credibility. That’s something for you to consider. But certainly you are not
to consider it with regards to whether or not he’s guilty of the crimes
charged here.’’
11
The court stated in relevant part: ‘‘In this case, evidence was introduced
to show that in 2001, the defendant was convicted of felony charges. A
felony is any crime for which a person may be incarcerated for more than
one year. Evidence of the commission of a crime, other than the one charged,
is not admissible to prove the guilt of the defendant in this particular case.
The commission of other matters by this defendant has been admitted into
evidence for the sole purpose [of] affecting his credibility. You must weigh
the testimony and consider it along with all the other evidence in the case.
You may consider the convictions of the defendant only as they bear upon
his credibility and you should determine that credibility upon the same
considerations as those given to any other witness.’’
12
At the time of oral argument before this court, the defendant’s appellate
counsel acknowledged that the defendant was released from confinement
in 2013 and that the date he was released from confinement was not insignifi-
cant in evaluating whether the convictions were admissible.
13
In his appellate brief, the defendant also argues that the court abused
its discretion in admitting the evidence because it was not authenticated.
Because, at the time of trial, the defendant expressly waived any objection
on the ground of authentication, we decline to review this aspect of his
claim. ‘‘We generally do not review unpreserved, waived claims. . . . To
reach a contrary conclusion would result in an ambush of the trial court
by permitting the defendant to raise a claim on appeal that his or her counsel
expressly had abandoned in the trial court.’’ (Citation omitted; internal
quotation marks omitted.) State v. Foster, 293 Conn. 327, 337, 977 A.2d
199 (2009).
To the extent that the defendant argues that the court erroneously relied
on the residual exception to the hearsay rule, we need not address this
aspect of his claim. Our conclusion that the court properly relied on the
spontaneous utterance exception is a sufficient basis on which to uphold
the court’s ruling that the statements at issue should not be excluded under
the hearsay rule.
14
To the extent that the defendant claims that plain error exists with
respect to this claim, we conclude, on the basis of our determination that
the court’s evidentiary ruling was a proper exercise of its discretion, that
plain error does not exist. Also, to the extent that the defendant claims that
the present claim warrants the exercise of our supervisory authority, we
conclude in light of our analysis of the court’s evidentiary ruling that such
a showing has not been made.
15
Additionally, the defendant argues that he had no reasonable ground
to anticipate the evidence, was unfairly surprised, and was unprepared to
meet it. The defendant does not explain why he had no reasonable ground
to anticipate the evidence, was unfairly surprised, or was unprepared to
meet it. Nor does he direct us to where in the record arguments of this
nature were raised before and addressed by the trial court.
16
Additionally, to the extent that the defendant argues before this court
that the evidence should have been excluded because its only purpose was
to bolster the victim’s credibility, we observe that such argument was not
advanced before the trial court and, in fact, the court stated in its ruling
that it was not admitting the evidence for the purpose of bolstering the
victim’s credibility.
17
‘‘[W]e are not required to review claims that are inadequately briefed.
. . . We consistently have held that [a]nalysis, rather than mere abstract
assertion, is required in order to avoid abandoning an issue by failure to
brief the issue properly. . . . [F]or this court judiciously and efficiently to
consider claims of error raised on appeal . . . the parties must clearly and
fully set forth their arguments in their briefs. We do not reverse the judgment
of a trial court on the basis of challenges to its rulings that have not been
adequately briefed. . . . The parties may not merely cite a legal principle
without analyzing the relationship between the facts of the case and the
law cited.’’ (Internal quotation marks omitted.) State v. Claudio C., 125
Conn. App. 588, 600, 11 A.3d 1086 (2010), cert. denied, 300 Conn. 910, 12
A.3d 1005 (2011).
18
The state argues that the federal cumulative error rule on which the
defendant relies is not legally cognizable in this state. Although we need
not reach the merits of this issue, we note that our Supreme Court recently
deemed it unnecessary to address a claim in which it was asked to adopt
the federal cumulative error rule. State v. Campbell, Conn. , ,
A.3d (2018).