State v. Marrero ( 2020 )

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STATE OF CONNECTICUT v. NECTOR MARRERO
(AC 41022)
Prescott, Elgo and Sheldon, Js.
Syllabus
The defendant, who had been convicted of the crimes of home invasion,
burglary in the first degree and assault in the second degree, appealed
to this court, claiming, inter alia, that he was denied his due process
right a fair trial as a result of prosecutorial impropriety. The defendant
had kicked in the door of his former girlfriend’s home and physically
assaulted her. After the police received a tip that he had been in contact
with his then current girlfriend, G, who was incarcerated, the police
obtained and examined G’s phone records and discovered that she had
had several calls with someone who used the same phone number that
the victim had given to the police for the defendant. The police thereafter
obtained copies of G’s recorded phone calls from the Department of
Correction, transcripts of which were admitted into evidence. In the
transcript of one call, the caller admitted that he had gotten drunk at
the home of a friend, J, after which he kicked in the door of the victim’s
home and began fighting. In the transcript of the second call, the caller
told G that he was on the run because the police had gone to his mother’s
house to ask about G’s stolen car. At trial, the victim changed her story
and testified that her injuries were not caused by the defendant but
occurred when she fell down stairs in her home, and the defendant
presented an alibi defense in which J testified that the defendant was
with him at J’s home on the evening of the assault. Held:
1. The defendant could not prevail on his claim that the prosecutor commit-
ted improprieties by using excessive leading questions in his direct
examination of the victim, by refreshing the recollection of a witness
with a document different from the one he stated that he used for that
purpose, and stating in closing argument to the jury, without supporting
evidence, that the victim had been threatened or otherwise influenced
by the defendant to deny her claim against him and to instead insist
that she had been injured when she fell down stairs in her home:
a. The sequences of leading questions that the defendant challenged did
not constitute acts of prosecutorial impropriety under State v. Salamon
(287 Conn. 509), as they were not improper in the evidentiary sense under
the applicable provision (§ 6-8) of the Connecticut Code of Evidence
or in the constitutional sense, in that they did not threaten his due
process right to a fair trial: because the defendant objected to only
one of the prosecutor’s several leading questions, the answer to each
subsequent leading question was permitted to stand and be given what-
ever weight the jury chose to give to it, and operated as a waiver of
any claim by the defendant of evidentiary error on the ground of
improper leading of the witness that he might otherwise have raised on
appeal, the defendant’s claim that the prosecutor improperly asked the
victim leading questions without obtaining the court’s permission to do
so or establishing any valid legal basis for so doing was meritless, as
the defendant’s appellate counsel conceded at oral argument before this
court that the victim was hostile to the prosecution throughout her
testimony, and, in the absence of any objection by the defendant, the
court had no sua sponte right or duty to intervene, and no advance
judicial determination as to the propriety of the prosecutor’s leading
questioning was required; moreover, the defendant’s claim that the pros-
ecutor used a leading question to identify the victim’s injuries before
evidence as to those injuries had been introduced was unavailing, as it
was not improper for the prosecutor to include facts in those leading
questions as to which no other evidence had yet been introduced, as
long as he had a good faith basis for doing so, there was no merit to
the defendant’s claim that the prosecutor improperly responded to the
victim’s assertion about her injuries by asking questions that indicated
to the jury that she changed her story from the one she had given to
the police and that she changed her story frequently, and, although the
defendant claimed that the prosecutor’s leading questions improperly
suggested to the jury that the victim previously stated that the defendant
was the caller on the recordings of G’s phone conversations, it was not
constitutionally improper for the prosecutor to pose those questions,
as the defendant pointed to nothing in the challenged questions that
appealed to the jury to accept the prosecutor’s statements as true, and
it was highly unlikely that the mere asking of the challenged questions
would cause the jury to draw that inference, as there was substantial
evidence that the defendant was the caller; furthermore, the prosecutor’s
challenged leading questions about the defendant’s alleged threatening
phone call to the victim were proper because of the witness’ hostility
to the prosecution and the defendant’s lack of any challenge to the
prosecutor’s good faith basis for asking the leading questions, and there
was nothing about the substance of or manner in which the questions
were asked that did any more than ask the witness to admit or to
deny the truth of the statements concerning her alleged receipt of a
threatening phone call from the defendant and her later report of that
phone call to the police.
b. The record was inadequate to determine whether, as the defendant
claimed, the prosecutor improperly refreshed a witness’ recollection
by showing the witness a police document different from the one he
purported to show the witness for that purpose, as there was no basis
to establish that the witness did not in fact prepare the document at
issue, and the defendant did not move during the pendency of this appeal
to reconstruct the trial court record to identify the document.
c. The prosecutor’s comments in closing argument to the jury about the
victim’s inconsistent statements as to how she had suffered her injuries
were not improper, as they were based on reasonable inferences that
were supported by the evidence: the challenged comments did not refer
to or make substantive use of any of the statements of fact in the
prosecutor’s previous leading questions to the victim, and the prosecutor
did not refer to the victim’s having received a threatening phone call
from the defendant, as was suggested in his prior leading questions to
her, but, instead, suggested that the jury should consider the victim’s
original statements to be more credible than her trial testimony because,
unlike her trial testimony, her original statements were made in the
immediate aftermath of the incident at issue; moreover, the prosecutor’s
argument as to the reasons for the victim’s change in her story was
proper, as it merely pointed out and drew upon the victim’s experience
with the defendant, the fear it aroused in her and the logical effects it
may have had on her desire to testify against him, and the defendant’s
failure to object to the prosecutor’s argument suggested that his counsel
did not perceive the argument to be improper.
2. The defendant could not prevail on his claim that the trial court abused
its discretion by admitting into evidence recordings of G’s phone calls
with him, which was based on his claim that the court improperly
prevented him from exploring the state’s ability to authenticate his voice
on the recordings: although the defendant raised the authentication
issue during a pretrial hearing, in which the court responded by stating
that the recordings would be admitted subject to authentication by the
state, the defendant made no objection when the state introduced them
during trial, he did not attempt to voir dire any witnesses about them
before they were admitted, he never argued that the state failed to lay
a proper foundation to authenticate them or move to strike any testimony
about them after he realized that the state failed to meet its burden of
authentication, and, as there was no basis in the record for the court’s
ruling striking the testimony of a police officer who identified the defen-
dant’s voice on the recordings after they had been admitted, this court
could not determine whether the trial court abused its discretion in
striking that testimony; moreover, the defendant’s failure to object to
the admission of the recordings during trial and to argue that the state
failed to prove the identity of the caller appeared to have been a strategic
choice, as he did not object to the court’s decision to give the jurors
during deliberations transcripts of the recordings on which his name
was listed as that of the caller, and he told the jury during his closing
argument that the state had failed to establish that it was his voice on
the recordings.
3. The trial court did not abuse its discretion in instructing the jury on
consciousness of guilt: although the defendant’s initial objection to the
instruction differed from his claim on appeal, which he preserved for
appellate review by excepting to the court’s instruction after it was
approved and delivered, his claim was unavailing, as the record con-
tained significant support for the court’s instruction in that it was before
the jury that he had a prior relationship with the victim, the jury watched
the police body camera recordings that showed the bloodied victim
identifying the defendant as her attacker, and the jury heard medical
testimony about her injuries, read the statement she gave to the police
and heard her testify that she was afraid of the defendant and had asked
for a protective order against him; moreover, the victim provided the
police with a phone number she knew to be that of the defendant, the
billing information for that number showed that it was registered in the
defendant’s name, and the jury heard evidence in the recordings of the
defendant’s calls to G that the victim had been assaulted.
Argued September 12, 2019—officially released June 16, 2020
Procedural History
Substitute information charging the defendant with
the crimes of home invasion, burglary in the first degree
and assault in the second degree, brought to the Supe-
rior Court in the judicial district of Stamford-Norwalk
and tried to the jury before White, J.; verdict and judg-
ment of guilty, from which the defendant appealed to
this court. Affirmed.
Matthew C. Eagen, assigned counsel, with whom was
Emily L. Graner Sexton, assigned counsel, for the
appellant (defendant).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Richard J. Colangelo, Jr., former
state’s attorney, and Joseph C. Valdes, senior assistant
state’s attorney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Nector Marrero,
appeals from the judgment of conviction rendered
against him after a jury trial on charges of home invasion
in violation of General Statutes § 53a-100aa (a) (1), bur-
glary in the first degree in violation of General Statutes
§ 53a-101 (a) (3), and assault in the second degree in
violation of General Statutes § 53a-60 (a) (1). On appeal,
the defendant claims that he is entitled to the reversal
of his conviction and a new trial on all charges because
(1) improprieties by the prosecutor in different parts
of his trial violated his due process right to a fair trial;
(2) the trial court erred in not requiring the authentica-
tion of his voice on the audio recordings of certain
allegedly self-incriminating phone conversations he was
claimed to have had with his incarcerated girlfriend,
Amber Greco, before admitting such recordings into
evidence against him; and (3) the court improperly
charged the jury on consciousness of guilt. We reject
each of these claims and therefore affirm the judgment
of conviction.
The following facts, which the jury reasonably could
have found, are relevant to our resolution of this appeal.
On December 27, 2015, at approximately 4:45 a.m., the
defendant kicked in the door of his ex-girlfriend’s1 home
and physically assaulted her, causing her to sustain
multiple injuries, including fractured orbital bones, a
fractured tooth, and a two centimeter laceration under
her left eye. After the assault, the victim fled to a neigh-
bor’s home, where she called the police to assist her.
When officers from the Norwalk Police Department
responded to the neighbor’s home, they found the
bloodied, injured victim in a hysterical state, crying and
breathing heavily.
In the victim’s initial report of the incident to the
responding officers, as recorded on their body cameras,
she claimed that the defendant, whom she described
to the officers as her ex-boyfriend, had broken into her
home and beaten her up. She gave the officers the
defendant’s cell phone number. As she did so, however,
she pleaded with the officers not to tell the defendant
that she had called them. Thereafter, the victim was
taken first to a hospital, where she was treated for her
injuries, and then, the next day, after being released
from the hospital, to the police station, where she was
interviewed about the incident and gave a signed, writ-
ten statement again naming the defendant as her
attacker. The victim concluded her statement by stating
that she was afraid of the defendant and wanted a
protective order to be issued against him.
Shortly after the police interviewed the victim, they
began to search the surrounding area for the defendant.
When at first they could not find him, they expanded
their search to include places he was known to frequent,
including the homes of his friends and family members.
As their search for the defendant continued, the police
received a tip that he had been in contact with his
current girlfriend, Greco, who was then incarcerated
at the York Correctional Institution (York) in Niantic.
Following up on that tip, the police obtained and exam-
ined Greco’s phone records at York, where they discov-
ered that she had exchanged several phone calls with
someone using a phone with the same phone number
for the defendant that the victim had given to the police.2
Officers thereupon obtained copies of recordings from
the Department of Correction (department) of Greco’s
phone calls to and from that phone number while she
was at York.
Two phone calls were of particular interest to the
officers—one made on December 28, 2015, the day after
the victim reported the incident, and the other made
about one month later, on January 30, 2016. In the first
of those phone calls, which was made less than thirty-
six hours after the victim reported the incident, a male
caller whom Greco called ‘‘N’’ admitted to Greco, whom
the caller called ‘‘babe’’ or ‘‘baby,’’ that he had ‘‘fucked
up’’ by doing ‘‘some dumb shit . . . .’’ The caller
explained that he got drunk at ‘‘Little Joe’s house’’
because ‘‘[his] bitch’’ had stolen his keys. He left Joe’s
house and went to ‘‘[his] bitch[’s]’’ house, where he
‘‘kicked in the door and fucking just started fighting.’’3
The caller further told Greco that, although he had not
yet been arrested, the police were probably looking for
him, and he probably would be going to jail soon. In
the second recorded phone call of special interest to
the police, the same male caller told Greco that he was
‘‘on the run’’ because the police had gone to his mother’s
house to ask about Greco’s ‘‘stolen car.’’4 After the caller
and Greco discussed how to get rid of her car so they
could raise money for her bail, the caller stated that he
was going to change his phone number, which, shortly
thereafter, the defendant did.
On February 18, 2016, the police finally located the
defendant and arrested him in connection with the inci-
dent at issue on charges of home invasion, burglary in
the first degree, and assault in the second degree. The
defendant pleaded not guilty to those charges and
elected a trial by jury.
The defendant’s jury trial took place from June 27
through 29, 2017. At trial, the defendant presented an
alibi defense, in support of which he called his friend,
Joseph ‘‘Little Joe’’ Ferraro, who testified that the defen-
dant had been with him at his home on the evening of
the alleged assault. The jury found the defendant guilty
on all charges. On August 18, 2017, the court sentenced
the defendant to a total effective sentence of fifteen
years of incarceration, ten years of which were manda-
tory, followed by ten years of special parole. This
appeal followed.
I
The defendant first claims that the prosecutor com-
mitted improprieties on several occasions during trial
in violation of his due process right to a fair trial. Specifi-
cally, the defendant claims that the prosecutor commit-
ted improprieties by (1) using excessive leading ques-
tions in his direct examination of the victim, (2)
refreshing the recollection of a witness with a document
different than the one he had told the court, defense
counsel, and the jury he was using for that purpose,
and (3) arguing in closing argument to the jury, without
supporting evidence, that the victim had been threat-
ened or otherwise influenced by the defendant to
change her account of the incident by denying her initial
claim that the defendant had assaulted her and insisting,
to the contrary, that she had injured herself on the date
of the reported assault by falling down stairs in her
home. We reject each of these claims.
‘‘[W]hen a defendant raises a claim of prosecutorial
impropriety, we first must determine whether any
impropriety in fact occurred; second, we must examine
whether that impropriety, or the cumulative effect of
multiple improprieties, deprived the defendant of his
due process right to a fair trial.’’ (Internal quotation
marks omitted.) State v. Weatherspoon, 332 Conn. 531,
555–56, 212 A.3d 208 (2019). We first examine each
claim separately to determine if any impropriety in
fact occurred.
A
The initial focus of the defendant’s claim of prosecu-
torial impropriety is the prosecutor’s questioning of the
victim on direct examination. In that examination, the
defendant claims, for the first time on appeal, that the
prosecutor used excessive leading questions to make
prejudicial statements of fact before the jury to induce
the jury to rely upon such statements as a basis for
finding him guilty. He claims, in particular, that the
prosecutor used this improper questioning technique
to misinform the jury that, despite the victim’s testi-
mony to the contrary, she previously had (1) identified
the defendant as the male caller who had made self-
incriminating statements to Greco, allegedly about this
incident, in recorded phone conversations between
them while Greco was incarcerated, and (2) reported
to the police that the defendant had threatened her over
the phone to induce her to withdraw her allegations
against him. We conclude that the defendant has failed
to establish any impropriety in the prosecutor’s use of
leading questions on direct examination of the victim.
Our Supreme Court in State v. Salamon, 287 Conn.
509, 559, 949 A.2d 1092 (2008), considered a claim of
prosecutorial impropriety based upon a prosecutor’s
allegedly excessive use of leading questions in conduct-
ing direct examinations of the state’s witnesses at trial.
In Salamon, although the court ultimately rejected the
defendant’s claim of prosecutorial impropriety, it
explained the rationale for basing such a claim on the
excessive use of leading questions on direct examina-
tion of the state’s witnesses and identified the essential
facts that a defendant must prove to prevail on such a
claim. As a general rule, the court noted, the use of
leading questions on direct examination is prohibited.
Id., citing Conn. Code Evid. § 6-8 (b).5 The court further
noted, however, that the general rule is subject to sev-
eral exceptions, under which the trial court may, in its
discretion, allow the use of leading questions on direct
examination. Such exceptions include using leading
questions to develop the testimony of a witness, to
challenge a witness whose testimony has unfairly sur-
prised the party who called the witness to testify, and
to elicit testimony from a witness who either refuses
to answer the direct examiner’s nonleading questions
due to hostility, or is unable to answer such questions
clearly and coherently due to fear, memory loss, confu-
sion, immaturity, or similar problems. See State v. Sala-
mon, supra, 559; see also Conn. Code Evid. § 6-8 (b),
commentary.
The court in Salamon first inquired if any of the
prosecutor’s questions that had been challenged as lead-
ing were improper in the evidentiary sense, in that they
were objectionable as leading under § 6-8 of the Con-
necticut Code of Evidence. State v. Salamon, supra,
287 Conn. 560. In so doing, it determined that all of
the prosecutor’s leading questions, as to which defense
objections on the ground that they were leading, had
been overruled were properly permitted under excep-
tions to the general rule. Id. On that score, it concluded,
inter alia, that the trial court properly had permitted
the prosecutor to ask leading questions to two of the
state’s witnesses on direct examination—a frightened
teenager who had difficulty answering nonleading ques-
tions about the defendant’s alleged sexual assault of
her, and a witness whose testimony was confusing
because his primary language was French. See id.
Because all of the leading questions put to those wit-
nesses were proper in the evidentiary sense, the court
ruled that no such question could serve as a valid legal
basis for establishing a constitutional claim of prosecu-
torial impropriety based on the prosecutor’s allegedly
excessive use of leading questions in examining the
state’s witnesses. See id.
As to several other leading questions in the prosecu-
tor’s direct examinations of the state’s witnesses, how-
ever, the court in Salamon found that they had been
improper in the evidentiary sense, and thus that defense
objections to them on the ground of leading had prop-
erly been sustained. See id. Notwithstanding the eviden-
tiary impropriety of such leading questions, however,
the court declined to treat the asking of any such ques-
tions as acts of prosecutorial impropriety because the
defendant had failed to show that such questions were
also improper in the constitutional sense in that they
threatened his due process right to a fair trial. Id.
In making its further inquiry as to the possible consti-
tutional impropriety of the prosecutor’s leading ques-
tions, the court in Salamon began by noting that
because the answers to all such objectionable questions
had been stricken, the only way in which the questions
might have threatened the defendant’s right to a fair
trial was if the mere asking of those questions had posed
such a threat. See id. Stating that it had not been given
any legal or factual basis for finding that a threat to the
defendant’s due process right to a fair trial had arisen
from the mere asking of the challenged leading ques-
tions, the court ruled that such questions had not been
constitutionally improper, and thus that the defendant
had not satisfied the impropriety prong of his claim
of prosecutorial impropriety. See id. Accordingly, the
court rejected the defendant’s claim without reaching
or deciding the prejudice prong of that claim. The
upshot of Salamon is that to establish the impropriety
prong of a claim of prosecutorial impropriety based
on a prosecutor’s allegedly excessive use of leading
questions on direct examination of the state’s wit-
nesses, the defendant must prove not only that such
questioning was improper in the evidentiary sense but
that it was improper in the constitutional sense as well
because it threatened his due process right to a fair trial.
Salamon offered no fixed list of circumstances in
which a prosecutor’s improper use of leading questions
on direct examination could, potentially, be found to
threaten the defendant’s right to a fair trial and, thus,
to constitute an act of prosecutorial impropriety. Our
case law, however, and that of our sister jurisdictions,
furnish several useful examples of such circumstances,
including, but not limited to, repeatedly asking
improper leading questions after defense objections to
those questions have been sustained,6 asking questions
stating facts that the prosecutor has no good faith basis
to believe are true,7 asking questions referencing preju-
dicial material that the prosecutor has no good faith
basis to believe is relevant and otherwise admissible
at trial,8 calling a known uncooperative witness to tes-
tify for the purpose of putting the witness’ prior incon-
sistent statements before the jury, ostensibly to
impeach the witness, but actually to induce the jury to
make substantive use of such prior inconsistent state-
ments in deciding the issues before them,9 and asking
leading questions in such a way as to induce the jury
to rely upon the truth of the factual statements made
in them, even if the witness denied that such statements
were true.10
In the present case, unlike in Salamon, the defendant
objected to only one of the several leading questions
on which he bases his present claim of prosecutorial
impropriety. As a result, the trial court made only one
ruling as to the evidentiary propriety of one of the
prosecutor’s allegedly leading questions. Although the
court overruled that objection, it did not treat the objec-
tion as a continuing one or otherwise suggest, much
less rule, that any further objections on the ground of
leading would be unnecessary, unwelcome, or futile.
Accordingly, it remained the defendant’s responsibility
throughout the victim’s direct examination to object to
any question he wanted to preclude on the ground of
leading. His failure to do so permitted the answer to
each such question to stand and be given whatever
weight the jury chose to give it in deciding the issues
before it. It also operated as a waiver of any claim of
evidentiary error, on the ground of improperly leading,
that the defendant might otherwise have raised on
appeal.
Here, of course, the defendant does not raise a non-
constitutional claim of evidentiary error but a constitu-
tional claim of prosecutorial impropriety. Such a claim
is not waived on appeal as a result of defense counsel’s
failure to raise it at trial, although defense counsel’s
failure to object to the underlying conduct, or to ask
that appropriate curative measures be taken to lessen
any prejudice potentially arising from it, is strong evi-
dence that the conduct did not truly threaten his client’s
right to a fair trial. See State v. Stevenson, 269 Conn.
563, 576, 849 A.2d 626 (2004) (‘‘[w]e emphasize the
responsibility of defense counsel, at the very least, to
object to perceived prosecutorial improprieties as they
occur at trial, and we continue to adhere to the well
established maxim that defense counsel’s failure to
object to the prosecutor’s argument when it was made
suggests that defense counsel did not believe that it
was unfair in light of the record of the case at the time’’
(internal quotation marks omitted)). Accordingly, we
must examine each sequence of leading questions now
challenged to determine, as the court did in Salamon,
if it satisfied the impropriety prong of a claim of prose-
cutorial impropriety because it was improper both in
the evidentiary sense—because it was objectionable as
leading—and in the constitutional sense—because it
threatened the defendant’s due process right to a fair
trial. For the following reasons, we conclude that none
of the questioning sequences here challenged consti-
tuted an act of prosecutorial impropriety under
Salamon.
The defendant first claims that the prosecutor
improperly asked the victim leading questions without
obtaining the court’s permission to do so or establishing
any valid legal basis for so doing. This claim is meritless
because, as the defendant ultimately conceded at oral
argument before this court, the victim was demonstra-
bly hostile to the prosecution throughout her testi-
mony.11 See Conn. Code Evid. § 6-8 (b). Furthermore,
the law of evidence is not self-executing. A judicial
determination as to the propriety of asking leading ques-
tions on direct examination can be made only when a
party opposing such questions objects to them as lead-
ing at trial. In the absence of such an objection, the
court had no sua sponte right or duty to intervene.
Therefore, no advance judicial determination as to the
propriety of the prosecutor’s leading questioning was
required. See E. Prescott, Tait’s Handbook of Connecti-
cut Evidence (6th Ed. 2019) § 6.19.4, p. 360 (‘‘A party
may lead its own witness whom the court has found
to be hostile or who has so testified as to work a surprise
or deceit on the examiner. . . . Although not essential,
an express finding of surprise or hostility by the court
is the better practice.’’ (Citations omitted; internal quo-
tation marks omitted.)).
The defendant next claims that the prosecutor identi-
fied the victim’s injuries in a leading question before
any evidence listing or describing those injuries had
been introduced.12 This claim fails, however, both in
the evidentiary sense and in the constitutional sense,
for two reasons. First, it is not improper for a prosecu-
tor, when using leading questions to examine a hostile
witness, to include facts in those questions—as to
which no other evidence has yet been introduced—as
long as the prosecutor has a good faith basis for
believing that such facts are true. Here, defense counsel
conceded at oral argument before this court that he
was making no claim that the prosecutor lacked a good
faith basis for asking any of his challenged leading ques-
tions. Second, the defendant’s claim is unsupported
by the record because substantial testimony and other
evidence regarding the victim’s injuries were intro-
duced both before and after the victim testified at trial.
Such evidence included both the victim’s hospital
records, which documented her injuries as her treaters
had seen and described them, and the responding offi-
cers’ body camera videos that confirmed those injuries
by showing the victim’s swollen and bloodied face. The
challenged questions were thus not improper, either in
the evidentiary sense or in the constitutional sense, as
required to establish the impropriety prong of a claim
of prosecutorial impropriety under Salamon.
The defendant further claims that it was improper
for the prosecutor to respond to the victim’s revised
version of events—that she had sustained her injuries
by falling down stairs—with questions such as, ‘‘[o]h,
you’re claiming you fell,’’ and, ‘‘[o]h, you fell down the
stairs. Is that what you’re saying now?’’ The defendant
argues that the prosecutor, by asking such questions,
‘‘indicated to the jury not only that the witness had
changed her story from the one she gave on the police
body cam[era] footage (which had not yet been intro-
duced) or in her written statement to the police (also
not yet introduced), but that she changed her story
frequently.’’ This claim, however, is meritless. Before
the victim testified that she had injured herself on the
day of the reported incident—by falling down stairs in
her home—the jury had in fact seen her on the
responding police officers’ body camera recordings tell-
ing the officers that the defendant had caused those
injuries by breaking into her home and beating her up.
The jury thus had ample reason to know that the victim
had changed her story before the prosecutor asked her
leading questions so suggesting on direct examination.
The questions were not improper because they did not
introduce any facts into the record that had not been
introduced through other witnesses or had not been
supported by proper inferences that the jury reasonably
could have drawn from the evidence before it.
The defendant also raises claims of impropriety as
to two other sequences of leading questions that the
prosecutor asked the victim on direct examination. The
defendant argues that the prosecutor asked such ques-
tions for the improper purpose of inducing the jury to
accept as true and to rely upon the statements of fact
included in those questions, even though the witness
denied such statements and there was no other evi-
dence to support them. The first such challenged
sequence of leading questions concerned the victim’s
ability to identify the defendant as the male caller whose
voice could be heard on the department’s recording of
Greco’s jailhouse phone conversations admitting that
he ‘‘fucked up’’ by kicking down the door to his
‘‘bitch[’s] house’’ and fighting. This challenged sequence
of leading questions in the prosecutor’s direct examina-
tion of the victim was as follows:
‘‘Q. Did you listen to an audio recording—a tape of
a man speaking with a woman? Did you remember
hearing that in our offices?
‘‘A. Umm—
‘‘Q. Yes?
‘‘A. I heard a video of a man—
‘‘Q. An audio. It’s a tape on a computer. You heard
an audiotape on a computer?
‘‘A. Yes, I heard—
‘‘Q. Who was the man on that tape?
‘‘A. I’m sorry?
‘‘Q. Who was the man speaking—
‘‘A. Can you tell me who the man was?
‘‘Q. No. Didn’t you tell us who the man was?
‘‘A. I’m sorry?
‘‘Q. You don’t remember telling us who the man was?
‘‘A. No.’’
The defendant claims that this sequence of leading
questions threatened his due process right to a fair trial
by suggesting to the jury, without supporting evidence,
that the victim had previously stated that the defendant
was the male caller whose voice could be heard on
the recording of Greco’s jailhouse phone conversations
while Greco was incarcerated at York. Such a sugges-
tion, he asserts, was especially damaging because, apart
from the prosecutor’s suggestion, there was nothing in
the record tending to identify him as that male caller
who had made several potentially damaging statements
to Greco about his involvement in an incident very
similar, if not identical, to the one the victim initially
had reported.
To reiterate, despite the defendant’s initial claim that
the prosecutor did not lay a foundation for asking the
victim leading questions on direct examination based
on her hostility to the prosecution, the record is replete
with evidence to the contrary, as the defendant’s appel-
late counsel conceded at oral argument before this
court. Counsel also conceded at oral argument that he
was making no claim that the prosecutor lacked a good
faith basis for asking any of the challenged leading
questions. In light of those concessions, the defendant
was left with no basis for claiming that the substance
of the prosecutor’s leading questions should not have
come before the jury, except that they were asked in
such a way as to induce the jury to accept and rely on
the truth of the facts stated in them even if the victim
denied them.
The defendant, however, has pointed to nothing in
the challenged questions that appealed to the jury to
accept the prosecutor’s statements as true even if the
witness should deny them, as in fact she did. The ques-
tions were brief and to the point, and the prosecutor
did not suggest that he was in possession of evidence
outside of the record that independently established
the truth of the facts stated in them. Moreover, the
ultimate inference supported by such statements of
fact—that the defendant was the male caller who had
admitted his involvement in an incident very similar, if
not identical, to the incident here at issue—was sup-
ported by substantial evidence, making it highly
unlikely that the prosecutor’s mere asking of the chal-
lenged leading questions would cause the jury to draw
that inference. Among such evidence was testimony
that the caller was a male who called Greco, the defen-
dant’s girlfriend, ‘‘babe’’ or ‘‘baby,’’ and whom Greco
called by the defendant’s initial, ‘‘N’’; the caller used a
phone that was registered to the defendant in his own
name and at his mother’s address; the caller’s first state-
ments to Greco about a similar incident were made on
the day after the incident reported by the victim; the
caller noted in his first call about the incident that he
had spent time on the evening of that incident with a
friend named ‘‘Little Joe’’ before going to and kicking
down the door of ‘‘[his] bitch[’s] house’’; and the defen-
dant’s defense at trial was that he had spent that very
evening with a friend named ‘‘Little Joe.’’
Considered in light of that evidence, it was not consti-
tutionally improper for the prosecutor to pose leading
questions to the victim, a hostile witness, about whether
she had previously identified the defendant as the male
caller who had made the damaging admissions to Greco
in the recorded phone conversations.
The defendant finally claims that the prosecutor’s
use of leading questions threatened his due process
right to a fair trial by suggesting to the jury that he had
phoned the victim and threatened her to induce her to
withdraw her accusations against him.13 The sequence
of questions upon which he bases this claim was as
follows:
‘‘[The Prosecutor]: On January 27, 2016, in the after-
noon, did you call Officer [Bruce] Lovallo and tell him
that you had received a phone call from [the defendant]?
‘‘[The Victim]: No.
‘‘[The Prosecutor]: And did you relay to the officer
what [the defendant] told you?
‘‘[The Victim]: No.
‘‘[The Prosecutor]: And that you gave the police offi-
cers [the defendant’s] phone number?
‘‘[The Victim]: No, I did not.
‘‘[The Prosecutor]: And that [the defendant’s] conver-
sation with you was, in essence, a threat?
‘‘[The Victim]: No, I did not, because I was never
threatened by him. So—ever.
‘‘[The Prosecutor]: And do you recall coming to court
the day that the defendant filed a motion with [the]
court that he wanted his trial to go forward? And you,
all of a sudden that day, showed up and asked the state
[to have] the charges dropped?
‘‘[The Victim]: I’m sorry?
‘‘[The Prosecutor]: Do you recall coming by on a day,
uninvited. We didn’t request that you come by. And you
came by as a surprise. And you came by to tell us that
you wanted the charges dropped?
‘‘[The Victim]: No. I have not even spoken with him
or any of his—anybody about this case at all. So, that
is false.’’
The defendant claims that, by posing these questions
to the victim, the prosecutor introduced evidence of
uncharged misconduct concerning the defendant ‘‘to
insinuate that [he] had engaged in tactics designed to
threaten and intimidate [the victim] and prevent her
from testifying truthfully.’’ Such questions, the defen-
dant claims, were improper because they suggested
to the jury that the prosecutor had knowledge of the
defendant’s threatening call, and thus that they should
rely upon his statements about the call, even in the
absence of supporting evidence, as a basis for finding
the defendant guilty.
To reiterate, however, it is proper for a prosecutor
to lead a hostile witness about matters not yet in evi-
dence as long as the prosecutor has a good faith basis
for believing in the truth of the facts suggested by his
questions and for believing that such facts, if the witness
admits them, will be relevant and otherwise admissible
at trial. Such leading questioning is proper unless the
prosecutor asks the questions in such a manner as to
vouch for the truthfulness of the statements of fact
included in them or otherwise to urge the fact finder
to rely on the truth of those statements in reaching a
verdict, even if the witness denies them and there is
no other evidence in the record to support them.
By this standard, the prosecutor’s challenged ques-
tions about the defendant’s alleged threatening phone
call to the victim were proper for several reasons. First,
such questions were properly put to the witness in
leading form because of the witness’ hostility to the
prosecution. Second, the defendant admittedly did not
challenge the prosecutor’s good faith basis for asking
any of his leading questions at trial. Third, there is
nothing about the substance of the questions or the
manner in which the prosecutor asked them that did
any more than ask the witness to admit or deny the
truth of the statements concerning her alleged receipt
of a threatening phone call from the defendant and
her later report of that phone call to the police. The
prosecutor did not vouch for the truth of the facts so
suggested or ask questions in such a way as to suggest
that he personally disbelieved her denials or had extrin-
sic evidence to contradict those denials. Rather, as with
any questioning sequence that a questioner is permitted
to use in examining an adverse witness without having
the right to contradict the witness if the witness should
deny the truth of his suggestions, the prosecutor simply
posed his questions to the witness and let the matter
drop when she answered them in the negative. See, e.g.,
Filippelli v. Saint Mary’s Hospital, 319 Conn. 113, 128,
124 A.3d 501 (2015) (‘‘[T]he only way to prove miscon-
duct of a witness for impeachment purposes is through
examination of the witness. . . . The party examining
the witness must accept the witness’ answers about a
particular act of misconduct and may not use extrinsic
evidence to contradict the witness’ answers.’’ (Citation
omitted; internal quotation marks omitted.)); see also
Martyn v. Donlin, 151 Conn. 402, 407–408, 198 A.2d
700 (1964) (extrinsic evidence inadmissible to prove
particular acts of misconduct going solely to witness’
veracity).
In this case, the defendant has not challenged the
prosecutor’s good faith basis for asking the victim about
the defendant’s alleged threatening phone call. Given
that the prosecutor’s questions were limited to asking
the witness if she had received such a call and reported
it, without improperly vouching for the truth of any
suggestion, there was no constitutional impropriety in
asking the victim about it. See, e.g., State v. Barnes,
232 Conn. 740, 747, 657 A.2d 611 (1995) (‘‘[a] cross-
examiner may inquire into the motivation of a witness
if he or she has a good faith belief that a factual predi-
cate for the question exists’’). Accordingly, we reject
the defendant’s final claim of prosecutorial impropriety,
which was based upon the prosecutor’s alleged use of
excessive leading questions on direct examination of
the state’s witness.
B
The defendant next claims that the prosecutor
improperly refreshed the recollection of a witness. Spe-
cifically, he argues that the prosecutor improperly
refreshed Officer Steven Luciano’s recollection on
direct examination by showing him a document differ-
ent than the one he purported to show the officer for
that purpose. We disagree, concluding that this aspect
of the defendant’s claim of prosecutorial impropriety
is unsupported by the record before us.
The following facts are relevant to this claim. The
prosecutor, as previously noted, sought to introduce
certain department recordings of phone conversations
between the defendant’s incarcerated girlfriend, Greco,
and a male caller the prosecutor claimed to be the
defendant, who was then using a cell phone with the
same number as that which the victim had told the
police was the defendant’s number. In order to connect
the defendant to the recordings, which contained self-
incriminating statements by the male caller that the
prosecutor claimed to concern the assault at issue in
this case, the prosecutor questioned Officer Luciano
about the address that the defendant had given when
he was arrested to demonstrate that it was the same
address as the one listed by the cell service provider
in the billing account information for the male caller’s
cell phone. To that end, the prosecutor asked the follow-
ing sequence of questions to Officer Luciano concerning
the address that the defendant had provided when the
officer arrested him:
‘‘Q. And do you recall the address he gave you?
‘‘A. At the time of arrest?
‘‘Q. Yes.
‘‘A. No, I do not. I don’t recall.
‘‘Q. Okay. Just a moment. . . .
‘‘Q. Did you prepare arrest police reports?
‘‘A. I did. . . .
‘‘Q. All right. So, if I were to show you this part of the
police report, is it enough to refresh your recollection
as to the address that [the defendant] gave you at the
time of your arrest?
‘‘A. Yes it does.
‘‘Q. And what address was that?
‘‘A. 126 North Water Street, Greenwich, Connecticut.
‘‘Q. The same address that the phone records would
go to?
‘‘A. Correct.’’
The defendant claims that the prosecutor’s refreshing
of the officer’s recollection was improper because none
of the police reports he authored in this case listed
the defendant’s address as ‘‘126 North Water Street,
Greenwich, Connecticut . . . .’’ The defendant there-
fore claims that the prosecutor improperly must have
shown the officer a document different than the one
mentioned in his question, ostensibly on the basis of
his refreshed recollection.
‘‘A [witness’] memory may be refreshed by any memo-
randum, object, picture, sound, or smell that can in
fact stimulate present recollection.’’ E. Prescott, supra,
§ 6.21.2, p. 364. ‘‘Any memorandum which can in fact
stimulate the present recollection may be used, whether
made by the witness or not, whether it be the original
or a copy, or whether made at the time of the events
testified to or not.’’ (Internal quotation marks omitted.)
State v. Rado, 172 Conn. 74, 79, 372 A.2d 159 (1976),
cert. denied, 430 U.S. 918, 97 S. Ct. 1335, 51 L. Ed. 2d
598 (1977). ‘‘The procedure for refreshing the recollec-
tion of a witness who has taken the [witness] stand
ordinarily entails counsel[’s] . . . hand[ing] her a
memorandum to inspect for the purpose of refreshing
her recollection, with the result that when she speaks
from memory thus revived, her testimony is what she
says, not the writing. . . . A safeguard to this proce-
dure is the rule which entitles the adverse party, when
the witness seeks to resort to the memorandum, to
inspect the memorandum so that she may object to its
use if ground appears, and to have the memorandum
available for her reference in cross-examinat[ion]
. . . . With the memorandum before her, the cross-
examiner has a good opportunity to test the credibility
of the [witness’] claim that her memory has been
revived, and to search out any discrepancies between
the writing and the testimony.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. Bruno, 236 Conn.
514, 535, 673 A.2d 1117 (1996).
Although the defendant acknowledges that a witness’
memory can be refreshed with any document, he argues
that the prosecutor misled the court, the jury, and
defense counsel by explicitly asking Officer Luciano
whether he had written any ‘‘arrest police reports’’ that
might refresh his recollection as to the address the
defendant had given when he was arrested, before hand-
ing the officer a document for that purpose. This action,
the defendant claims, implied that the document the
prosecutor was showing the officer was one of the
officer’s ‘‘arrest police reports . . . .’’ Such an implica-
tion was misleading and improper, the defendant
claims, because he later discovered, upon subsequent
investigation, that the officer had not written any police
reports in this case that contained the defendant’s
Greenwich address.
So presented, this claim has two fatal flaws that pre-
vent us from reviewing it. First, apart from the defen-
dant’s own unsubstantiated representations concerning
the results of the subsequent investigation he claims
to have been conducted as to the contents of Officer
Luciano’s police reports in this case, there is no basis
in the record for establishing that Officer Luciano did
not in fact prepare a police report listing the defendant’s
Greenwich address in this case. Second, while this
appeal was pending, the defendant did not move to
reconstruct the trial court record to identify the docu-
ment that was used to refresh the witness’ recollection.
As a result, we have no factual basis on which to rely
in assessing this claim. Because we cannot rely on the
representations of counsel to establish the factual basis
for a claim on appeal, we cannot review this unsup-
ported aspect of the defendant’s prosecutorial impropri-
ety claim.
‘‘The defendant bears the responsibility for providing
a record that is adequate for review of his claim of
constitutional error. If the facts revealed by the record
are insufficient, unclear or ambiguous as to whether a
constitutional violation has occurred, we will not
attempt to supplement or reconstruct the record, or to
make factual determinations, in order to decide the
defendant’s claim.’’ State v. Golding, 213 Conn. 233, 240,
567 A.2d 823 (1989). Because the record is inadequate
to determine what document was used to refresh the
witness’ memory, we cannot determine whether any
impropriety has occurred.
C
The defendant also claims that, during closing argu-
ment, the prosecutor improperly argued facts that were
not in evidence. Specifically, the defendant claims that
the prosecutor improperly attempted to explain the vic-
tim’s inconsistent statements as to how she had suffered
the injuries she initially accused the defendant of
inflicting upon her by arguing, without supporting evi-
dence, that the defendant had threatened her before
trial and thereby caused her to deny her prior allega-
tions against him. We disagree.
The defendant argues that the following statement
by the prosecutor regarding the victim’s inconsistent
testimony was improper: ‘‘[I]f you set aside that incon-
sistency and you choose to look at the evidence that
[the victim] gave in the very beginning, when she was
not under the influence of other people, when no one
had an opportunity to persuade her and ask and beg
her or induce her to change her testimony, what did
[the victim] say?’’ The defendant claims that this state-
ment was improper because no evidence was intro-
duced at trial showing why the victim had changed her
story. The defendant claims that the only statement by
a trial participant suggesting that the victim had
changed her story because the defendant had influ-
enced her to do so was that of the prosecutor when he
asked the victim, in a leading question she answered in
the negative, if she had informed one of the investigating
police officers that the defendant had threatened her
in a phone call. That question, as previously noted, was
asked during the following portion of the prosecutor’s
direct examination of the victim:
‘‘Q. On January 27th, 2016, in the afternoon, did you
call Officer Lovallo and tell him that you had received
a phone call from [the defendant]?
‘‘A. No.
‘‘Q. And did you relay to the officer what [the defen-
dant] told you?
‘‘A. No.
‘‘Q. And that you gave the police officers [the defen-
dant’s] phone number?
‘‘A. No, I did not.
‘‘Q. And that [the defendant’s] conversation with you
was, in essence, a threat?
‘‘A. No, I did not because I was never threatened by
him. So—ever.’’
The defendant argues that the prosecutor’s com-
ments during closing argument ‘‘harkened back’’ to the
foregoing colloquy because the prosecutor thereby
insinuated that the defendant’s alleged threat had influ-
enced the victim’s testimony. Because the victim denied
that the defendant had ever threatened her and no other
witness testified to such a threat, the defendant insists
that there was no evidence in the record to support the
prosecutor’s argument that the victim changed her story
because of the defendant’s threat.
‘‘It is well settled that, in addressing the jury, [c]oun-
sel must be allowed a generous latitude in argument
. . . . The parameters of the term zealous advocacy
are also well settled. The prosecutor may not express
his own opinion, directly or indirectly, as to the credibil-
ity of the witnesses. . . . Nor should a prosecutor
express his opinion, directly or indirectly, as to the guilt
of the defendant. . . . Such expressions of personal
opinion are a form of unsworn and unchecked testi-
mony, and are particularly difficult for the jury to ignore
because of the prosecutor’s special position. . . .
Moreover, because the jury is aware that the prosecutor
has prepared and presented the case and consequently,
may have access to matters not in evidence . . . it is
likely to infer that such matters precipitated the per-
sonal opinions. . . . [I]t does not follow . . . that
every use of rhetorical language or device is improper.
. . . The occasional use of rhetorical devices is simply
fair argument. . . .
‘‘Furthermore, this court realizes that the credibility
of the witnesses was central to the case. [The jury] is
free to juxtapose conflicting versions of events and
determine which is more credible. . . . It is the [jury’s]
exclusive province to weigh the conflicting evidence
and to determine the credibility of witnesses.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Williams, 81 Conn. App. 1, 8–9, 838 A.2d 214, cert.
denied, 268 Conn. 904, 845 A.2d 409 (2004).
‘‘A prosecutor, in fulfilling his duties, must confine
himself to the evidence in the record. . . . [A] lawyer
shall not . . . [a]ssert his personal knowledge of the
facts in issue, except when testifying as a witness. . . .
Statements as to facts that have not been proven
amount to unsworn testimony, which is not the subject
of proper closing argument. . . . Our case law reflects
the expectation that jurors will not only weigh conflict-
ing evidence and resolve issues of credibility as they
resolve factual issues, but also that they will consider
evidence on the basis of their common sense. Jurors
are not expected to lay aside matters of common knowl-
edge or their own observation and experience of the
affairs of life, but, on the contrary, to apply them to
the evidence or facts in hand, to the end that their
action may be intelligent and their conclusions correct.’’
(Internal quotation marks omitted.) Id., 13. ‘‘A prosecu-
tor may invite the jury to draw reasonable inferences
from the evidence; however, he or she may not invite
sheer speculation unconnected to evidence.’’ State v.
Singh, 259 Conn. 693, 718, 793 A.2d 226 (2002).
The defendant’s claim that the prosecutor’s com-
ments during closing argument were improper fails for
several reasons. First, contrary to the defendant’s argu-
ment on appeal, the prosecutor’s challenged comments
did not refer to or make substantive use of any of the
statements of fact set forth in his leading questions to
the victim, all of which the victim had denied. Whereas
the prosecutor’s leading questions had suggested that
the victim had received a threatening phone call from
the defendant, which she later reported to the police,
his closing argument made no reference to any such
phone call, or to the report of such a phone call to the
police. Instead, the prosecutor asked the jury more
generally to consider the difference in circumstances
between the time when the victim first reported the
incident and the later time when she testified at trial.
In this regard, the prosecutor suggested only that the
jury should consider the victim’s original statements to
be more credible than her trial testimony because those
statements, unlike her testimony, had been made in the
immediate aftermath of the incident, while she was in
the presence of her neighbors, her medical treaters,
and the police, before anyone with an interest in causing
her to change her story had yet had a chance to try to
influence her to do so. The jury had been shown the
body camera recordings of the victim, seriously injured,
upset, and crying, as she reported the assault to the
responding officers and pleaded with them not to tell
the defendant that she had called for their assistance.
The jury had also reviewed the victim’s medical records,
in which her medical treaters had described her injuries
and recorded her very similar account of how she had
received them at the hands of the defendant. Further-
more, the jury had read the victim’s signed written state-
ment concerning the incident, in which, once again,
she had accused the defendant of assaulting her and
requested that a protective order be issued against him.
In view of the consistency of the victim’s initial allega-
tions that the defendant had assaulted her and the
strength of the evidence supporting those allegations,
her surprising withdrawal of those allegations at trial
surely required an explanation. To make sense of this
uncorroborated change in the victim’s story, the jury
reasonably could have inferred that something signifi-
cant had happened to bring about that change. Although
the jury had no evidence before it about any contact
between the defendant and the victim, other than the
assault itself, it had heard from her initial report that
the defendant had brutally beaten her and that she was
very much afraid of him, as evidenced by her plea that
the police not tell the defendant that she had called
them and by her request for a protective order. With
or without an explicit threat to her well-being if she
persisted in accusing him of crimes that could result
in his long-term incarceration, her fear was so great
that any suggestion of such a threat, real or imagined,
could have caused the victim to back away from her
story to avoid courting disaster in the future. Her vulner-
ability to his violence, and her fear of such violence in
light of its painful consequences, which she claimed to
have experienced, could reasonably have been inferred
to be the motivating force behind her wholesale aban-
donment of her original allegations against the defen-
dant at the time of trial. The prosecutor’s argument as
to the reasons for the victim’s change in story was
proper because it merely pointed out and drew upon
her harrowing experience with the defendant, the
understandable fear it had aroused in her, and the logi-
cal effects it may have had on her desire to testify
against him. See State v. Fauci, 282 Conn. 23, 45–46,
917 A.2d 978 (2007) (‘‘As we previously have noted,
[w]e must give the jury the credit of being able to differ-
entiate between argument on the evidence and attempts
to persuade [it] to draw inferences in the state’s favor,
on one hand, and improper unsworn testimony, with
the suggestion of secret knowledge, on the other hand.
. . . In other words, a prosecutor’s remarks are not
improper when they underscore an inference, on the
basis of the evidence presented at trial, that the jury
could have drawn on its own.’’ (Citation omitted; inter-
nal quotation marks omitted.))
Additionally, the defendant did not object to the pros-
ecutor’s argument at trial. A defendant’s failure to
object to an alleged impropriety strongly suggests that
his counsel did not perceive the argument to be
improper. If counsel did not believe that the argument
was improper at the time, it is difficult for this court,
on review, to reach a contrary conclusion. Our Supreme
Court in State v. Stevenson, supra, 269 Conn. 576,
expressly addressed the impact of a defendant’s failure
to object at trial to what he later claimed to have been
an act of prosecutorial impropriety: ‘‘We emphasize the
responsibility of defense counsel, at the very least, to
object to perceived prosecutorial improprieties as they
occur at trial, and we continue to adhere to the well
established maxim that defense counsel’s failure to
object to the prosecutor’s argument when it was made
suggests that defense counsel did not believe that it
was unfair in light of the record of the case at the time.’’
(Internal quotation marks omitted.)
For the foregoing reasons, we conclude that the pros-
ecutor’s challenged comments in his closing argument
were not acts of prosecutorial impropriety because they
were based upon reasonable inferences supported by
the evidence. We, therefore, reject this final aspect of
the defendant’s claim of prosecutorial impropriety.
II
The defendant next claims that the trial court erred
by ‘‘preventing the defendant from exploring the state’s
ability to authenticate [the] defendant’s voice on the
phone recordings.’’ The defendant argues that the state
did not offer any evidence ‘‘that the voice on the
recordings was that of the defendant’’ and that the ‘‘trial
court prevented either party from eliciting testimony
related to whether witnesses could identify the voices
on the recordings.’’ We disagree.
The following additional facts are relevant to this
claim. Officer Luciano testified that the victim had pro-
vided a known cell phone number for the defendant.
While searching for the defendant, Officer Luciano sub-
mitted a request to Sprint, the cell service provider for
the phone with that number, for the records associated
with that phone. Sprint complied by providing the
account information for that phone, which showed that
it was a prepaid cell phone that had been registered to
‘‘Nector Marrero’’ of 126 North Water Street, Green-
wich, Connecticut, the known address of the defen-
dant’s mother.
The prosecutor informed the court in a pretrial hear-
ing that he intended to offer recordings of Greco’s
prison phone calls into evidence at trial. Defense coun-
sel did not object to the proposed admission of such
recordings at that time but noted that he ‘‘would just
ask for the proper foundation to be laid before’’ they
were introduced.14 The trial court responded that the
recordings would be admitted ‘‘subject to the . . .
state authenticating [them] . . . .’’
During the trial, this matter arose on only two occa-
sions. First, during the direct examination of Officer
Luciano, the officer testified that, ‘‘the [phone record]
[indicated] that it was [the defendant] and, based on
his voice, it appeared to be [the defendant] when I heard
the recording.’’ When the defendant objected to this
answer, a sidebar was held, after which the trial court
ordered the officer’s testimony identifying the male call-
er’s voice as that of the defendant to be stricken. Neither
the ground for the objection nor the basis for the court’s
ruling was ever put on the record.
Second, the matter arose during the cross-examina-
tion of Officer Luciano, when the defendant questioned
the officer about his ability to identify the defendant’s
voice. The following colloquy then occurred:
‘‘[Defense Counsel]: Okay. You don’t know [the defen-
dant’s] voice, do you?
‘‘[Officer Luciano]: I’ve had prior interactions with
[the defendant]—
‘‘[Defense Counsel]: Were—
‘‘[Officer Luciano]: —on a positive level.
‘‘[Defense Counsel]: Do you have any kind of exper-
tise in voice analysis?
‘‘[Officer Luciano]: No, I don’t.
‘‘[Defense Counsel]: So, you couldn’t positively iden-
tify a voice on a recording; correct?
‘‘[Officer Luciano]: No.
‘‘[The Court]: Approach bench please.
‘‘(Sidebar)
‘‘[Defense Counsel]: I withdraw the previous ques-
tion, Your Honor.’’
The basis for defense counsel’s withdrawal of his
final question was never put on the record.
‘‘We review the trial court’s decision to admit evi-
dence, if premised on a correct view of the law . . .
for an abuse of discretion. . . . It is axiomatic that
[t]he trial court’s ruling on the admissibility of evidence
is entitled to great deference. . . . In this regard, the
trial court is vested with wide discretion in determining
the admissibility of evidence. . . . Accordingly, [t]he
trial court’s ruling on evidentiary matters will be over-
turned only upon a showing of a clear abuse of the
court’s discretion. . . . Furthermore, [i]n determining
whether there has been an abuse of discretion, every
reasonable presumption should be made in favor of the
correctness of the trial court’s ruling, and we will upset
that ruling only for a manifest abuse of discretion. . . .
Even when a trial court’s evidentiary ruling is deemed
to be improper, we must determine whether that ruling
was so harmful as to require a new trial. . . . In other
words, an evidentiary ruling will result in a new trial
only if the ruling was both wrong and harmful.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Smith, 179 Conn. App. 734, 761, 181 A.3d 118, cert.
denied, 328 Conn. 927, 182 A.3d 637 (2018).
‘‘ ‘Preliminary questions concerning . . . the admis-
sibility of evidence shall be determined by the court.’
Conn. Code Evid. § 1-3 (a). ‘The requirement of authenti-
cation as a condition precedent to admissibility is satis-
fied by evidence sufficient to support a finding that the
offered evidence is what its proponent claims it to be.’
Conn. Code Evid. § 9-1 (a). The official commentary to
§ 9-1 (a) of the Code of Evidence provides in relevant
part: ‘The requirement of authentication applies to all
types of evidence, including writings, sound recordings,
electronically stored information, real evidence such
as a weapon used in the commission of a crime, demon-
strative evidence such as a photograph depicting an
accident scene, and the like. . . . The category of evi-
dence known as electronically stored information can
take various forms. It includes, by way of example only,
e-mails, Internet website postings, text messages and
‘‘chat room’’ content, computer stored records and data,
and computer generated or enhanced animations and
simulations. As with any other form of evidence, a party
may use any appropriate method, or combination of
methods . . . or any other proof to demonstrate that
the proffer is what the proponent claims it to be, to
authenticate any particular item of electronically stored
information.’ ’’ State v. Smith, supra, 179 Conn. App.
761–62.
Although the defendant admits that he ‘‘did not pre-
serve this claim in the classical manner through straight-
forward objection,’’ he argues that the claim was pre-
served because he did object at the pretrial hearing,
and thus the typical reasons for preventing the review
of unpreserved claims are not present in this case. The
defendant claims that the trial court prevented either
side from eliciting testimony regarding authentication,
referencing the two statements the court had stricken
during Officer Luciano’s testimony. The defendant
argues that these rulings signaled to defense counsel
that it would be futile to continue objecting to such
statements. We disagree.
The defendant did raise the issue of authentication
during the pretrial hearing. The trial court responded
by ruling that the recordings would be admitted subject
to authentication by the state. The defendant, however,
made no subsequent objections to the recordings when
the state introduced them during trial. The defendant
did not attempt to voir dire any of the witnesses about
the recordings prior to their introduction. The defen-
dant never argued to the court that the state had not yet
laid a proper foundation to authenticate the recordings
before they were admitted into evidence, nor did he
move to strike any testimony concerning the recordings
or their contents after realizing that the state had failed
to meet its burden of authentication. The only objection
occurred when Officer Luciano was being questioned
about his ability to identify the male voice on the
recordings. That objection was made after the
recordings had already been admitted into evidence.
Because the basis for the court’s ruling to strike Officer
Luciano’s voice identification of the defendant is not
in the record before us, we cannot determine whether
the court’s decision to strike the testimony was an abuse
of its discretion. The defendant does not point to, nor
does our review of the record reveal, any other occa-
sions when the court prevented the defendant from
questioning the witnesses about the authentication of
his voice as that of the male caller on the recordings.
Moreover, not only did the defendant not challenge
the introduction of the recordings during trial, he did
not challenge the court’s decision during the jury’s
deliberations to give the jurors a transcript of the
recordings on which the defendant’s name was listed
as that of the male caller. Although the court advised
the jurors that the transcript was not evidence—that it
was meant to serve them only as a guide, and that if
anything in the transcript was different from what they
had heard in the recording, the recording should pre-
vail—the transcript still went into the jury room by
agreement and without objection.15 The Connecticut
Code of Evidence is not self-enforcing. It is incumbent
upon lawyers to invoke the rules of evidence in accor-
dance with their own evaluation of any violation they
become aware of and of its impact upon their trial
strategy. ‘‘[W]hen opposing counsel does not object to
evidence, it is inappropriate for the trial court to assume
the role of advocate and decide that the evidence should
be stricken. . . . The court cannot determine if coun-
sel has elected not to object to the evidence for strategic
reasons. . . . Experienced litigators utilize the trial
technique of not objecting to inadmissible evidence to
avoid highlighting it in the minds of the jury. Such court
involvement might interfere with defense counsel’s tac-
tical decision to avoid highlighting the testimony. When
subsequent events reveal that it was an imprudent
choice, however, the defendant is not entitled to turn
the clock back and have [the appellate court] reverse
the judgment because the trial court did not, sua sponte,
strike the testimony and give the jury a cautionary
instruction.’’ (Internal quotation marks omitted.) State
v. Elias V., 168 Conn. App. 321, 335, 147 A.3d 1102, cert.
denied, 323 Conn. 938, 151 A.3d 386 (2016).
Furthermore, the defendant later claimed in closing
argument that the state had failed to establish that it
was the defendant’s voice on the recordings. In his
argument, while discussing the recordings, defense
counsel stated: ‘‘So, we don’t know who opened the
[cell phone] account. But let’s assume [that the defen-
dant] did. We don’t know that that’s his voice on the
recording. No one confirmed that that was his voice on
that recording. Nobody came in and said it. No one was
asked. Do you know whose voice that is? I mean, that’s
reasonable doubt, too, because we don’t [know] who
the heck’s voice that is.’’
Finally, the defendant claims that no witness testified
that it was the defendant’s voice on the recordings. On
the first day of his testimony, however, Officer Luciano,
testified, without objection, that the recording was ‘‘a
phone conversation between Amber Greco and a male,
whom I believe to be [the defendant].’’
The defendant appears to have made the conscious
decision not to seek any remedies available in the trial
court to limit damage potentially arising from this ques-
tion, instead choosing to argue the state’s failure to
authenticate and identify the voice on the recordings
in closing argument as a basis on which the jury could
have found him not guilty. ‘‘We cannot permit an
accused to elect to pursue one course at the trial and
then . . . to insist on appeal that the course which he
rejected at the trial be reopened to him. . . . [T]he
protection which could have been obtained was plainly
waived . . . . The court only followed the course
which he himself helped to chart . . . .’’ (Internal quo-
tation marks omitted.) State v. Reynolds, 264 Conn. 1,
208, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124
S. Ct. 1614, 158 L. Ed. 2d 254 (2004). The failure to
object and the decision to argue the state’s failure to
prove identity on the calls appears to have been a strate-
gic choice. Therefore, we conclude that the trial court
did not abuse its discretion in admitting the challenged
recordings as it did. Accordingly, we reject the defen-
dant’s second claim.
III
The defendant finally claims that the trial court
improperly gave a consciousness of guilt instruction to
the jury. On appeal, the defendant argues that, because
‘‘the evidence the trial court relied on to grant that
[request did] not relate to the defendant’s conscious-
ness of guilt as to the alleged criminal conduct here at
issue, the trial court erred in granting the instruction.’’
We disagree.
The following facts are relevant to this claim. During
a charging conference, a consciousness of guilt instruc-
tion was proposed. The court provided the prosecutor
and defense counsel with a draft of its proposed charge
on June 28, 2017. The parties reviewed the draft charge
in chambers the next day16 and, subsequently, a charging
conference was conducted on the record.
On the record, defense counsel objected to the pro-
posed instruction, claiming that such an instruction was
inappropriate because the defendant had raised an alibi
defense. Defense counsel argued: ‘‘[W]e would object
to the inclusion of that instruction. The court is aware
of what the defense is. Essentially, [the defendant] was
not present. So, if he wasn’t present, there’s nothing to
consciously be guilty of. So, we would object to the
inclusion of that instruction.’’ The prosecutor defended
the proposed instruction in two ways. First, he argued
that the defendant’s avoidance of detection by the
police for a great length of time after the incident was
reported, despite their active efforts to inquire of his
family and friends about his whereabouts, supported
an inference of consciousness of guilt and justified the
giving of the proposed instruction. Second, he argued
that the defendant’s alleged comment to Greco that he
was going to change his phone number—which he later
did—because the police were searching for him sup-
ported an inference of consciousness of guilt, and thus
the appropriateness of giving the proposed instruction.
The court agreed with the prosecutor that sufficient
evidence had been presented to support the giving of
a consciousness of guilt instruction, stating: ‘‘Well, I
recall testimony about the difficulty the authorities had
finding [the defendant], about changing a phone num-
ber. And . . . I remember the evidence regarding the
alleged conversation between [the defendant] and
Amber Greco, and that recording is in evidence. And
there were certain things said. And I didn’t refer to
them in the instruction, but it will be up to the state to
argue about those statements or acts. And if the jury
believes them, they may think that those statements or
that conduct is circumstantial evidence indicating guilty
knowledge or consciousness of guilt. And if—perhaps
there’s an innocent reason for those statements or con-
duct, and if you think there is—if the defense thinks
there is one, you’re free to argue it. So, in any event,
your objection is noted.’’
During their closing arguments, both the prosecutor
and defense counsel addressed whether and how the
evidence cited by the court as grounds for instructing
the jury on consciousness of guilt actually supported
such an inference, and thus whether, and if so how, it
tended to prove him guilty as charged in connection
with the alleged break-in and assault reported by the
victim. The main focus of these arguments was on the
prosecutor’s claim that the defendant was the male
caller who had made self-incriminating statements to
his girlfriend, Greco, about a very similar break-in and
assault in recorded phone conversations with her on
the defendant’s cell phone while she was incarcerated.
In its final charge, the court gave the same instruction
on consciousness of guilt it had shown to counsel and
approved before closing argument. That instruction
read: ‘‘In any criminal case, it is permissible for the
state to show that conduct or statements made by a
defendant after the time of the alleged [offense] may
have been influenced by the criminal act; that is, the
conduct or statements show a consciousness of guilt.
For example, flight, when unexplained, may indicate
consciousness of guilt if the facts and the circumstances
support it. Such acts or statements, do not, however,
raise a presumption of guilt. If you find the evidence
proved and also find that the acts or statements were
influenced by the criminal act and not by any other
reason, you may, but are not required to, infer from
this evidence that the defendant was acting from a guilty
conscience. It is up to you as judges of the facts to
decide whether the defendant’s acts or statements, if
proved, reflect a consciousness of guilt and to consider
such in your deliberations in conformity with these
instructions.’’ Defense counsel took a timely exception
to that instruction after it was given.
A
As a preliminary matter, we must determine whether
the defendant’s claim has been preserved for appellate
review. Practice Book § 60-5 provides in relevant part:
‘‘The court shall not be bound to consider a claim unless
it was distinctly raised at the trial or arose subsequent
to the trial. . . .’’ ‘‘[T]he purpose of the [preservation
requirement] is to alert the court to any claims of error
while there is still an opportunity for correction in order
to avoid the economic waste and increased court con-
gestion caused by unnecessary retrials.’’ (Internal quo-
tation marks omitted.) State v. Ross, 269 Conn. 213,
335, 849 A.2d 648 (2004).
On appeal, the defendant argues that his claim is
preserved because he ‘‘objected to the inclusion of the
instruction’’ and that the ‘‘trial court noted the defen-
dant’s objection.’’ The state responds that the defen-
dant’s argument ‘‘misunderstands the law regarding
preservation of claims.’’ The state, citing to Practice
Book § 42-1617 and State v. Tierinni, 165 Conn. App.
839, 854–55, 140 A.3d 377 (2016), aff’d, 329 Conn. 289,
185 A.3d 591 (2018), contends that ‘‘in order to obtain
appellate review, our rules not only require a timely
objection, but they require the appellate claim to be
distinctly raised.’’ Here, the state claims that the defen-
dant’s initial objection on the basis of his presentation
of an alibi defense is different from his present claim,
which is that ‘‘there was no evidence that his evasive
conduct related to the charged offenses.’’
Although we agree with the state that the claim pre-
sented on appeal is different from the defendant’s initial
objection to the proposed instruction, we conclude that
the defendant preserved his present claim for review
by excepting to the instruction as the court approved
and delivered it. By his exception, the defendant took
issue with the court’s ruling that the state’s conscious-
ness of guilt evidence could appropriately be used to
support an inference of his guilt as the person who had
caused the victim’s injuries by breaking into her home
and assaulting her. The defendant thereby preserved
that very claim for appellate review.
B
Turning to the merits of the defendant’s claim, we
conclude that his claim fails. It was well within the
province of the jury to infer from the evidence before
it that the defendant’s actions supported an inference
that he had a guilty conscience in relation to the incident
in which the victim initially reported that he had
attacked her, which thus tended to prove him guilty
of the crimes charged against him in connection with
that incident.
‘‘[Consciousness of guilt] is relevant to show the con-
duct of an accused, as well as any statement made by
him subsequent to an alleged criminal act, which may
be inferred to have been influenced by the criminal act.
. . . The state of mind which is characterized as guilty
consciousness or consciousness of guilt is strong evi-
dence that the person is indeed guilty . . . and under
proper safeguards . . . is admissible evidence against
an accused.’’ (Internal quotation marks omitted.) State
v. Henry, 76 Conn. App. 515, 547–48, 820 A.2d 1076,
cert. denied, 264 Conn. 908, 826 A.2d 178 (2003). ‘‘Evi-
dence that an accused has taken some kind of evasive
action to avoid detection for a crime, such as flight,
concealment of evidence, or a false statement, is ordi-
narily the basis for a [jury] charge on the inference
of consciousness of guilt.’’ (Internal quotation marks
omitted.) State v. Grajales, 181 Conn. App. 440, 448,
186 A.3d 1189, cert. denied, 329 Conn. 910, 186 A.3d
707 (2018).
‘‘Undisputed evidence that a defendant acted because
of consciousness of guilt is not required before an
instruction is proper. Generally speaking, all that is
required is that the evidence have relevance, and the
fact that ambiguities or explanations may exist which
tend to rebut an inference of guilt does not render
evidence of flight inadmissible but simply constitutes
a factor for the jury’s consideration. . . . The fact that
the evidence might support an innocent explanation as
well as an inference of a consciousness of guilt does
not make an instruction on flight erroneous. . . .
Moreover, [t]he court [is] not required to enumerate
all the possible innocent explanations offered by the
defendant. . . . Once [relevant] evidence is admitted,
if it is sufficient for a jury to infer from it that the
defendant had a consciousness of guilt, it is proper for
the court to instruct the jury as to how it can use that
evidence.’’ (Internal quotation marks omitted.) State v.
Pugh, 190 Conn. App. 794, 814–15, 212 A.3d 787, cert.
denied, 333 Conn. 914, 217 A.3d 635 (2019).
‘‘If there is a reasonable view of the evidence that
would support an inference that [the defendant fled]
because he was guilty of the crime and wanted to evade
apprehension—even for a short period of time—then
the trial court is within its discretion in giving such an
instruction . . . .’’ State v. Scott, 270 Conn. 92, 105–106,
851 A.2d 291 (2004), cert. denied, 544 U.S. 987, 125 S.
Ct. 1861, 161 L. Ed. 2d 746 (2005).
The record before us demonstrates that there was
significant support for a consciousness of guilt instruc-
tion in this case. It was before the jury that the defendant
had a prior personal relationship with the victim. The
jury watched the body camera recordings from the
police department on which the jury could see the
bloodied victim identifying the defendant as her
attacker, explaining that he had come into her house
and beaten her. The attending physician who treated the
victim testified about her injuries as he had documented
them in her medical records. The jury also read the
victim’s signed, written statement, given at the police
station, in which she had identified the defendant as
her attacker. She also stated that she was afraid of the
defendant and asked for a protective order against him.
There was also evidence before the jury that the
victim had provided officers with the phone number
that she knew to be the defendant’s. The billing account
information for that number showed that the number
was registered in the defendant’s name at his mother’s
address. That phone number was the same number used
to phone Greco, the defendant’s girlfriend.
The jury heard further evidence that the victim was
assaulted in the early morning hours of December 27,
2015. The first recorded phone call that the state pre-
sented between Greco and the male caller using the
defendant’s phone number was made the very next day,
December 28, 2015. In that phone call, the male caller
apologized to Greco, continuously called her ‘‘babe’’
and ‘‘baby,’’ and stated that he had done something
stupid but that he did not want to describe it over the
phone. He said he had gone to ‘‘[his] bitch[’s]’’ house
and gotten into a fight and that he was sore from it.
He also said that the woman he had fought with had
called the police, who were probably looking for him
at that time, and thus that he might go to jail soon.
The male caller further explained that he had been
at ‘‘Little Joe’s’’ house on the night he had gotten into
the fight. He explained that he was at ‘‘Little Joe’s’’
house where he had gotten drunk and was upset
because ‘‘[his] bitch’’ had stolen his keys and then he
went to her house where he ‘‘like kicked in the door
and . . . started fighting.’’ At trial, the defendant
admitted, by way of his alibi defense, that he had been
at the house of Joseph Ferraro—who was known to law
enforcement as ‘‘Little Joe’’—on the night of the assault.
During the second phone call, the male caller, again
calling Greco affectionate names and telling her that
he loved her, stated that he was ‘‘on the run’’ as a result
of the incident that he had described in a previous
phone call. He stated that the police had been looking
for him at his friends’ and family’s homes, although he
said that he was being sought in connection with Gre-
co’s stolen car, which was the very story the police had
been giving to his friends and family to explain why
they were looking for him. He finally stated that he had
gotten a new phone and was going to change his number
after he sent Greco a letter with his new phone number.
Shortly after that call, the name on the billing account
information for that phone number was changed.
On the basis of the foregoing evidence, we determine
that the trial court did not abuse its discretion in
instructing the jury on consciousness of guilt. Accord-
ingly, we reject the defendant’s final claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of family violence, we decline to identify the victim. See General
Statutes § 54-86e.
2
The number was associated with a prepaid cell phone that had been
registered to a ‘‘Nector Marrero,’’ whose listed address on the billing records
of the cell service provider was the same as the defendant’s mother’s address.
3
The male voice on the call greeted Greco by saying, ‘‘[b]aby’’ and pro-
ceeded to refer to Greco as ‘‘babe’’ or ‘‘baby’’ throughout the phone call.
Greco greeted the caller by saying, ‘‘Hey, N.’’ The male caller made the
following statements: ‘‘Babe, I got to tell you something. . . . I fucked up
yo. . . . I did some dumb shit . . . I’m not gonna say it over the phone
and shit, but yeah, I kinda like got into a fight and shit and I might go to
jail like soon. . . . Yeah, I might go to jail like soon. Like, I don’t know,
they’re probably looking for me now, like, they went to Little Joes and shit.
I fucked up, baby. . . . I just—I got drunk, I had gotten heavy, like drinking
heavy like at Little Joes house. I fucking walked off from Joes. Fucking
went to somebody’s house and fucking kicked in the door and fucking
started fighting. . . . I was so drunk, I was just so drunk ‘cause the bitch
stole my keys, you know.’’ In response to a question from Greco about
whether it was ‘‘his bitch[’s] house or something,’’ the male caller said,
‘‘[y]eah.’’ Greco, after explaining to the male caller how to bail her out of
jail, told the caller, ‘‘[w]ell, I—I need you out there and not getting, you
know, pissy drunk and arrested and shit behind the girlfriend.’’
4
In their search for the defendant, the police officers told people that
they were looking for him in connection with Greco’s stolen car.
5
Section 6-8 (b) of the Connecticut Code of Evidence provides: ‘‘Leading
questions shall not be used on the direct or redirect examination of a witness,
except that the court may permit leading questions, in its discretion, in
circumstances such as, but not limited to, the following: (1) when a party
calls a hostile witness or a witness identified with an adverse party; (2)
when a witness testifies so as to work a surprise or deceit on the examiner;
(3) when necessary to develop a witness’ testimony; or (4) when necessary
to establish preliminary matters.’’
‘‘It is axiomatic that trial courts have broad discretion to allow leading
questions on direct examination depending upon the circumstances of the
individual case.’’ (Internal quotation marks omitted.) State v. Dews, 87 Conn.
App. 63, 86, 864 A.2d 59, cert. denied, 274 Conn. 901, 876 A.2d 13 (2005).
6
See Locken v. United States, 383 F.2d 340, 341 (9th Cir. 1967) (prosecutor
engaged in multiple improprieties, including continuing to ask leading ques-
tions despite sustained objections by court); People v. Rosa, 108 A.D.
2d 531, 536–40, 489 N.Y.S.2d 722 (1985); id., 537 (court focused on cumulative
impact of many prosecutorial improprieties, including continually repeating
questions on both direct and cross-examination after objections had been
sustained, ‘‘shouting at the defendant’s wife,’’ ‘‘protest[ing] the [c]ourt’s
adverse rulings’’ in inappropriate manner, communicating nonverbally to
jury demonstrating his contempt for defendant, vouching for witness’ credi-
bility, putting facts before jury that were not introduced into evidence, and
asking irrelevant questions to prejudice defendant); State v. Torres, 16 Wn.
App. 254, 257–58, 554 P.2d 1069 (1976) (court focused on amount of repe-
tition).
7
See State v. Barnes, 232 Conn. 740, 747, 657 A.2d 611 (1995) (‘‘[a] good
faith basis on the part of examining counsel as to the truth of the matter
contained in questions propounded to a witness on cross-examination is
required’’ (internal quotation marks omitted)).
8
See Dakin v. State, 632 S.W.2d 864, 866 (Tex. App. 1982) (court over-
turned conviction when presented with record that contained ‘‘numerous
attempts by the prosecutor to present harmful facts, unsupported by the
evidence, to the jury in the form of questions’’).
9
See State v. Williams, 204 Conn. 523, 530, 529 A.2d 653 (1987). In Wil-
liams, our Supreme Court held that it recently had moved away from the
common-law rule that a party could not impeach its own witness but
explained: ‘‘By this holding, however, we did not mean to intimate that a
state’s attorney enjoys unfettered discretion in calling a witness and
impeaching [his] credibility by use of inconsistent statements. The prosecu-
tion may not use a prior inconsistent statement under the guise of impeach-
ment for the primary purpose of placing before the jury evidence which is
admissible only for credibility purposes in [the] hope that the jury will use
it substantively.’’ (Internal quotation marks omitted.) Id.
10
Although the following cases are not explicit examples of a court
determining that a prosecutor committed improprieties, they are useful in
developing our understanding of colorable claims of prosecutorial impropri-
ety on the basis of leading questions. State v. Stevenson, 269 Conn. 563,
587, 849 A.2d 626 (2004) (‘‘[t]he privilege of counsel in addressing the jury
. . . must never be used as a license to state, or to comment upon, or even
to suggest an inference from, facts not in evidence, or to present matters
which the jury [has] no right to consider’’ (internal quotation marks omit-
ted)); State v. Ross, 151 Conn. App. 687, 694, 95 A.3d 1208 (‘‘the prosecutor
has a heightened duty to avoid argument that strays from the evidence or
diverts the jury’s attention from the facts of the case’’ (internal quotation
marks omitted)), cert. denied, 314 Conn. 926, 101 A.3d 271 (2014).
11
The defendant’s concession was well-founded. Almost as soon as the
victim began testifying, she presented herself as a hostile and uncooperative
witness. Within the first few questions posed to the victim, it was clear that
she did not want to testify. In fact, she stated, ‘‘I don’t really want to be
here.’’ When asked to identify herself in a photograph, she, at first, refused,
and then said that it ‘‘[c]ould be me . . . .’’ Throughout her testimony, the
court admonished her more than twenty-one times for not answering the
prosecutor’s questions, not answering the particular question posed, not
audibly responding, and not speaking clearly and loudly enough for the jury
to hear.
12
The defendant explains: ‘‘Rather than [the victim] testifying that she
suffered a missing tooth or a broken bone, the prosecutor, through the
questioning, stated the witness’ injuries . . . and, significantly, the witness
never confirmed that information. The prosecutor was, in effect, using his
own leading question as evidence that the witness had testified in a certain
manner when the record demonstrates that she had not.’’ (Citation omitted.)
13
In this vein, the defendant also claims that the prosecutor improperly
used leading questions to demonize the defendant and to express his opinion
about the defendant’s guilt. For example, the defendant cites the following
question by the prosecutor: ‘‘[W]hen [the defendant] was assaulting you,
did he have permission to stay in your house?’’ The defendant argues that
this was improper because the victim did not answer the question, which
left ‘‘the prosecutor’s assertion that [the defendant] was, in fact, assaulting
her as the only testimony the jury heard on the subject.’’ This claim can be
quickly rejected because it has absolutely no support in the record. The
majority of the victim’s prior statements identifying the defendant as her
attacker had already been admitted for substantive purposes prior to the
victim’s testimony. Therefore, because the defendant’s claim lacks any fac-
tual basis, we determine that there was no evidentiary impropriety as to
this claim.
14
After a short discussion on the record, defense counsel stated that he
did not object to the admission of the first recording, ‘‘[g]iven that the—
the state will authenticate all the [phone] numbers.’’ The defendant did
object to the introduction of a portion of the second recording because it
was not relevant and was potentially prejudicial.
15
The court gave the jury the following instruction: ‘‘I instruct you that
what is said on each audio recording, state’s [exhibits] 7C and 7D, is the
evidence. In other words, what’s said on the tape, that is the evidence. The
transcript of state’s exhibit 7C, however, is not evidence and should not be
treated as such by you. You are being given a transcript of state’s exhibit
7C in order to assist you in understanding what is said on the audiotape. In
other words, it’s what’s said on the tape that’s the evidence, not the transcript.
‘‘If you find that the audio recording reflected in state’s exhibit 7C is
different in some respect than the transcript marked court’s exhibit 5, then
you must ignore court’s exhibit 5 to the extent that it is inconsistent with
state’s exhibit 7 and—and decide for yourself what you heard on the audio
recording, which is included in state’s exhibit 7C. It is up to you, as judges
of the facts, to decide what is said on state’s exhibit 7C and state’s exhibit
7D, the audio recordings, and to decide the credibility of that information
and to decide how much weight to—to give to such information.’’
16
In chambers, the court made a ‘‘few changes to the draft and added
. . . two charges.’’ No changes were made to the charge on consciousness
of guilt.
17
Practice Book § 42-16 provides: ‘‘An appellate court shall not be bound
to consider error as to the giving of, or the failure to give, an instruction
unless the matter is covered by a written request to charge or exception
has been taken by the party appealing immediately after the charge is
delivered. Counsel taking the exception shall state distinctly the matter
objected to and the ground of exception. The exception shall be taken out
of the hearing of the jury.’’