State v. Bunn ( 2020 )

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STATE OF CONNECTICUT v. RICKY BUNN, JR.
(AC 42915)
Prescott, Moll and Eveleigh, Js.
Syllabus
Convicted, following a jury trial, of the crimes of murder, conspiracy to
commit murder, and possession of a pistol without a permit, the defen-
dant appealed. At trial, during cross-examination of the defendant, the
prosecutor asked a question that referenced the defendant’s consultation
with his counsel. Defense counsel did not object but the trial court,
sua sponte, issued a cautionary instruction to the jury. On appeal, the
defendant claimed that the prosecutor’s question constituted prosecu-
torial impropriety that deprived him of his due process right to a fair
trial. Held that the defendant could not prevail on his claim that the
prosecutor’s question to the defendant, even if it was assumed to be an
impropriety, deprived him of his due process right to a fair trial, as any
impact of that alleged impropriety was sufficiently cured by the trial
court’s strong curative instruction; the state presented a strong case,
the severity of the alleged impropriety was low, the alleged impropriety
was limited to one question that was qualified in nature, and, although
the alleged impropriety was not invited by defense counsel, and the
alleged impropriety would have been central to the issues before the
jury as it involved the defendant’s testimony in a criminal trial, any
impact the alleged impropriety had on the central issue of credibility
was sufficiently cured by the trial court’s strong curative instruction to
the jury that was specifically directed at the question.
Argued December 2, 2019—officially released March 24, 2020
Procedural History
Information charging the defendant with the crimes
of murder, conspiracy to commit murder, and carrying
a pistol without a permit, brought to the Superior Court
in the judicial district of New Haven and tried to the
jury before Vitale, J.; verdict and judgment of guilty,
from which the defendant appealed. Affirmed.
Gary A. Mastronardi, for the appellant (defendant).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom were John P. Doyle, Jr., senior
assistant state’s attorney, and, on the brief, Patrick J.
Griffin, state’s attorney, for the appellee (state).
Opinion
EVELEIGH, J. The defendant, Ricky Bunn, Jr.,
appeals from the judgment of conviction, rendered fol-
lowing a jury trial, of murder in violation of General
Statutes § 53a-54a (a), conspiracy to commit murder in
violation of General Statutes §§ 53a-48 and 53a-54a (a),
and carrying a pistol without a permit in violation of
General Statutes § 29-35 (a). On appeal, the defendant
claims that the prosecutor engaged in prosecutorial
impropriety that deprived him of a fair trial. We disagree
and, accordingly, affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. In April, 2014, the defendant and the victim, Tor-
rence Gamble, were both sixteen years old and mem-
bers of Piru, a street gang affiliated with the Bloods,
which had a local presence in New Haven. Piru had a
hierarchical structure, and Jaquwan Burton was one of
the Piru leaders in New Haven. At approximately 6:45
a.m. on April 3, 2014, the police arrested Jaquwan Bur-
ton, who had been staying at the home of his girlfriend,
Laneice Jackson. Jackson called the defendant at 7:08
a.m. and continued to exchange phone calls with him
throughout the day.
At approximately 4:40 p.m. that day, Jaquwan Burton
called Jackson from the facility in which he was being
held and, while on speaker phone, indicated that ‘‘some-
body set [me] up.’’ Jackson, Jackson’s mother, and her
boyfriend, Ricky Freeman, a member of a different sect
of the Bloods who gave advice to young Piru members,
all thought that the victim had informed the police of
Jaquwan Burton’s location.1 Freeman stated that the
victim ‘‘had to go,’’ and Jaquwan Burton agreed with
Freeman that the victim needed to be killed. Freeman
instructed John Helwig to ‘‘get in contact’’ with Otis
Burton,2 who was a member of Piru, and the defendant
because ‘‘they know what to do.’’ Freeman also
instructed Helwig to ‘‘[g]et up with them and . . . han-
dle it.’’ Helwig was closely associated with Piru but was
not a member, and would drive Piru members to ‘‘stash
houses’’ and to locations where Piru members would
commit crimes.
Helwig contacted the defendant, who, in turn, con-
tacted Otis Burton. When Helwig arrived at the defen-
dant’s house, Otis Burton and the defendant, who was
dressed in black and carrying a gun, entered Helwig’s
truck. Helwig informed the defendant and Otis Burton
that, according to Freeman, ‘‘[the victim] had to die and
[the defendant] was supposed to do it.’’ The defendant
called Paul Hill, who stated that the victim was at Hill’s
house, and the defendant instructed Helwig to drive to
that location.
Once at Hill’s house, the defendant and Otis Burton
exited the truck. The defendant and Otis Burton joined
the group inside Hill’s house, and, after the group dis-
persed, the victim, the defendant, and Otis Burton
walked to a nearby store. While on Daggett Street on
the return route from the store, the defendant lagged
behind, stating that he needed to tie his shoe, and fired
one fatal shot to the back of the victim’s head. Helwig
received an urgent call from the defendant telling him
to ‘‘come quick’’ to retrieve him and Otis Burton. After
entering Helwig’s truck, the defendant told Helwig to
‘‘go, go, go, go.’’ The defendant was crying and Otis
Burton was ‘‘choked up.’’ The defendant was holding
a nine millimeter handgun that smelled of gun smoke,
which, at Helwig’s instruction, he placed in a compart-
ment in the back seat of the truck. The defendant admit-
ted to Helwig that he had shot the victim in the back
of the head.
Sometime after Helwig drove him home, Otis Burton
texted the defendant, questioning if the victim had sur-
vived and if he would accuse them, to which text mes-
sage the defendant responded, ‘‘chill, we got it.’’ The
defendant and Helwig visited Freeman, and the defen-
dant explained to them how he and Otis Burton lured
the victim from Hill’s house and how he shot the victim
in the back of the head after lagging behind while pre-
tending to tie his shoe.
When the police interviewed the defendant in August,
2014, he stated that, at the time of the incident, he was
with Miquel ‘‘Quel’’ Lewis in the Newhallville area of
New Haven. According to phone records, the defen-
dant’s cell phone connected to cell towers located near
the defendant’s home around 9 p.m., to cell towers in
the Hill neighborhood where the murder occurred from
9:30 to 9:43 p.m., and to cell towers in the Newhallville
area of New Haven from 9:50 to 9:52 p.m. The defendant,
Otis Burton, and Helwig were arrested in connection
with the murder.
While in prison, the defendant wrote a letter ‘‘to the
love of my life,’’ stating that ‘‘you need to tell Quel this.
I got a buried blick in my backyard behind my old crib
near the garage. . . . I never told anyone in the world
w[h]ere it was or I had it. Tell him he needs to go and
get it and don’t lose my shit.’’ The police understood
the word ‘‘blick’’ to be a street term for a firearm and
‘‘Quel’’ to refer to Lewis.
Prior to the start of evidence, the state moved for a
sequestration order of potential witnesses, and the
court granted the motion. Helwig and Otis Burton both
pleaded guilty to conspiracy to commit murder and
testified for the state pursuant to their respective plea
agreements. The defendant was the only witness to
testify for the defense, and he testified on direct exami-
nation to the following version of events. Piru had a
positive impact on him by making sure that he stayed
in school and did well in sports. On the morning of
April 3, 2014, he received a phone call from Jackson,
who informed him that Jaquwan Burton had been
arrested. That evening, while he was in Helwig’s truck
with Otis Burton, Helwig mentioned that he thought
the victim had informed the police of Jaquwan Burton’s
location and that ‘‘we got to make sure something gets
done,’’ but he did not indicate that anything should be
done that night. The defendant was ‘‘very close’’ with
the victim, with whom he shared a bond due to having
been initiated into Piru together. He learned from social
media that there was a gathering at Hill’s house where
everyone was together ‘‘smoking . . . [c]hilling . . .
whatever,’’ and he called Hill regarding the gathering.
He suggested that Helwig drive to Hill’s house so that
he and Otis Burton could attend. After spending some
time at Hill’s house smoking marijuana, he, Otis Burton,
and the victim left. Otis Burton and the victim went to
a nearby store while he urinated behind Hill’s house.
While on his way to meet up with the victim and Otis
Burton, the defendant heard a gunshot and saw some-
one running from Daggett Street. He began running and
saw Otis Burton, who instructed him to call Helwig.
While in Helwig’s truck, Otis Burton gave Helwig a gun
and stated that he had shot the victim.
During cross-examination of the defendant, the fol-
lowing colloquy occurred:
‘‘[The Prosecutor]: So, good afternoon . . . . So,
. . . you had the benefit of over the last four days of
sitting here throughout this entire trial, isn’t that
correct?
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: And you heard the testimony of
everybody that came before you, isn’t that correct?
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: Including . . . Helwig and [Otis]
Burton, correct?
‘‘[The Defendant]: Yes. Yes.
***
‘‘[The Prosecutor]: And again—Now, by the way, you
were able to sit here and listen to all the testimony that
was presented here in this courtroom, right?
‘‘[The Defendant]: You’re right.
‘‘[The Prosecutor]: And over there, I’m sure you got
a folder and a binder, and you’ve seen all the reports
and all the statements and everything that the New
Haven Police Department and the FBI has done and
everybody has done in this case, and you’ve been read-
ing them and you’ve been analyzing them, isn’t that
correct?
‘‘[The Defendant]: Yeah. I read them. Yeah. Yeah, I
read them.
‘‘[The Prosecutor]: You’ve—you’ve been reading
them, is that correct . . . ?
‘‘[The Defendant]: Yeah. That’s correct. Yeah.
‘‘[The Prosecutor]: And without getting into conversa-
tions with your lawyer but you—about—you talked to
your lawyers about what’s in those statements and
those reports, right?
‘‘[The Defendant]: Yeah.
‘‘[The Prosecutor]: So, walking in here, okay, you
know everything that’s in the documents or the reports
prior to hearing the testimony here today?
‘‘[The Defendant]: Uh-huh.
‘‘[The Prosecutor]: Okay. But you, sir, are the only
one that got to hear everybody’s testimony, isn’t that
correct?
‘‘[The Defendant]: You’re right.’’
The defendant was the last witness to testify before
the close of evidence. The following morning, the court
stated on the record that an in-chambers discussion
with counsel had occurred regarding the court’s pro-
posed jury instructions. The court stated that it would
provide the jury with a cautionary instruction. The court
inquired of defense counsel, ‘‘before we get to the cau-
tionary instruction . . . did you wish to be heard at
all? Any objections with respect to the court’s proposed
instructions?’’ Defense counsel responded: ‘‘No, Your
Honor.’’ The court then explained the instruction3 and
asked defense counsel: ‘‘[D]id you wish to be heard at
all?’’ Defense counsel answered: ‘‘No, Your Honor. I’m
in . . . agreement with the court.’’
During closing argument, the state mentioned the
defendant’s opportunity to tailor his testimony and did
not mention the defendant’s consultation with counsel.
During its instructions to the jury, the court gave the
following cautionary instruction: ‘‘Now, ladies and gen-
tlemen, I’m going to provide you with a specific instruc-
tion to address an improper question that was asked
by the state during its cross-examination of the defen-
dant. I am speaking specifically about a question by the
state that generally referenced whether the defendant
had consulted with his attorneys when reviewing the
police reports and statements connected with this case.
I am instructing you specifically that the specific ques-
tion asked by the state in this regard was improper,
and you are to completely disregard it. The question
and answer are stricken from the record and may play
no role in your deliberations in this case. I want you
to be clear that every defendant has a constitutional
right to the assistance of counsel, which necessarily
means the ability to consult with his attorney. I am
therefore instructing you that you may draw no negative
or unfavorable inferences from the defendant’s exercise
of his constitutional right to consult with his counsel
when reviewing documents connected to this case. As
I have told you repeatedly, the defendant is presumed
innocent, and the burden of proof rests entirely with the
state to prove the defendant’s guilt beyond a reasonable
doubt.’’ After completing the jury instructions and out-
side the presence of the jury, the court asked defense
counsel if he wanted to be heard, to which defense
counsel responded: ‘‘No, Your Honor. I have no
exceptions.’’
The defendant was convicted of murder, conspiracy
to commit murder, and carrying a pistol without a per-
mit, and was sentenced to forty-seven years of incarcer-
ation. This appeal followed.
The defendant claims that the prosecutor engaged in
prosecutorial impropriety by asking him during cross-
examination the following question regarding the police
and FBI documents: ‘‘And without getting into conver-
sations with your lawyer but you—about—you talked
to your lawyers about what’s in those statements and
those reports, right?’’ The defendant argues that, by
asking this question, the prosecutor implied that he
contrived his testimony on direct examination using
knowledge that he had acquired from two sources: his
presence in court during trial; and from the police and
FBI documents. He contends that because the prosecu-
tor linked the defendant’s consultation with counsel to
the latter of the two sources, the prosecutor implied
that he had tailored his direct examination testimony
with the assistance of counsel. He argues that this
impropriety deprived him of his due process right to a
fair trial.4 We disagree.
We review the defendant’s unpreserved claim of pros-
ecutorial impropriety under a two step analytical pro-
cess. ‘‘We first examine whether prosecutorial impro-
priety occurred. . . . Second, if an impropriety exists,
we then examine whether it deprived the defendant of
his due process right to a fair trial. . . . In other words,
an impropriety is an impropriety, regardless of its ulti-
mate effect on the fairness of the trial. Whether that
impropriety was harmful and thus caused or contrib-
uted to a due process violation involves a separate and
distinct inquiry. . . .
‘‘[T]he touchstone of due process analysis in cases
of alleged [harmful] prosecutorial [impropriety] is the
fairness of the trial, and not the culpability of the prose-
cutor. . . . The issue is whether the prosecutor’s
[actions at trial] so infected [it] with unfairness as to
make the resulting conviction a denial of due process.
. . . In determining whether the defendant was denied
a fair trial . . . we must view the prosecutor’s [actions]
in the context of the entire trial. . . .
‘‘[I]t is not the prosecutor’s conduct alone that guides
our inquiry, but, rather, the fairness of the trial as a
whole. . . . [A] determination of whether the defen-
dant was deprived of his right to a fair trial . . . must
involve the application of the factors set out . . . in
State v. Williams, 204 Conn. 523, 540, 529 A.2d 653
(1987). As [the court] stated in that case: In determining
whether prosecutorial [impropriety] was so serious as
to amount to a denial of due process, this court, in
conformity with courts in other jurisdictions, has
focused on several factors. Among them are the extent
to which the [impropriety] was invited by defense con-
duct or argument . . . the severity of the [impropriety]
. . . the frequency of the [impropriety] . . . the cen-
trality of the [impropriety] to the critical issues in the
case . . . the strength of the curative measures
adopted . . . and the strength of the state’s case. . . .
‘‘Regardless of whether the defendant has objected
to an incident of [impropriety], a reviewing court must
apply the Williams factors to the entire trial, because
there is no way to determine whether the defendant
was deprived of his right to a fair trial unless the [impro-
priety] is viewed in light of the entire trial. . . . The
application of the Williams factors, therefore, is identi-
cal to the third and fourth prongs of [State v.] Golding,
[213 Conn. 233, 239–40, 567 A.2d 823 (1989)] namely,
whether the constitutional violation exists, and whether
it was harmful. . . . Requiring the application of both
Williams and Golding, therefore, would lead . . . to
confusion and duplication of effort. . . . Application
of the Williams factors provides [the appropriate] anal-
ysis, and the specific Golding test, therefore, is superflu-
ous.’’ (Citations omitted; internal quotations marks
omitted.) State v. Fauci, 282 Conn. 23, 32–34, 917 A.2d
978 (2007).
It is not improper for a prosecutor to comment on
a defendant’s opportunity to fabricate or to tailor his
testimony as a result of the defendant’s presence in the
courtroom and his ability to hear the testimony of other
witnesses. See State v. Alexander, 254 Conn. 290, 294–
300, 755 A.2d 868 (2000). ‘‘Defense counsel are not
immunized from being spoken about during criminal
trials. . . . If reference to a defendant’s decision to
consult with counsel is focused and pertinent to a
proper issue, rather than part of an invitation to infer
guilt, it is not improper. . . . [P]rosecutors tread on
extremely thin ice when they comment on a defendant’s
decision to consult with counsel . . . .’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Santi-
ago, 100 Conn. App. 236, 247, 917 A.2d 1051, cert. denied,
284 Conn. 933, 935 A.2d 153 (2007).
Turning to the present case, even if we assume, with-
out deciding, that the prosecutor’s question that refer-
enced the defendant’s consultation with counsel was
improper, we are unconvinced that the defendant was
denied a fair trial. Applying the first Williams factor,
we conclude that the prosecutor’s impropriety was not
invited by defense conduct or argument. No question
raised by defense counsel on direct examination invited
the prosecution to mention his consultation with
counsel.
We next examine the second Williams factor regard-
ing the severity of the impropriety. In determining
whether the prosecutorial impropriety was severe, ‘‘it
[is] highly significant that defense counsel failed to
object to . . . the improper [remark], [to] request cura-
tive instructions, or [to] move for a mistrial. . . . A
failure to object demonstrates that defense counsel pre-
sumably [did] not view the alleged impropriety as preju-
dicial enough to jeopardize seriously the defendant’s
right to a fair trial.’’ (Citation omitted; internal quotation
marks omitted.) State v. Fauci, supra, 282 Conn. 51. In
the present case, the defendant did not object to the
prosecutor’s question, request a curative instruction,
or move for a mistrial. Furthermore, the prosecutor’s
question did not directly ask the jury to infer guilt from
the defendant’s consultation with counsel. We conclude
that the severity was low.
Next, we examine the third Williams factor regarding
the frequency of the alleged impropriety. The alleged
impropriety was isolated to one question that was quali-
fied in nature, specifying that the prosecutor was not
inquiring into conversations with counsel, and was
ambiguous as to its meaning. We disagree with the
defendant that the alleged impropriety ‘‘echoed
throughout’’ all of the prosecutor’s proper questions
that attacked the defendant’s credibility on the ground
that he tailored his testimony after having listened to
the evidence presented at trial. It is not reasonable to
assume that the jury, after hearing the prosecutor’s
single question pertaining to the defendant’s pretrial
review of certain documentary evidence with the assis-
tance of counsel, inferred from the defendant’s consul-
tation with his counsel that he had tailored his testi-
mony according to the testimony he had heard at his
trial. Therefore, we conclude that the allegedly
improper comment was infrequent and that this Wil-
liams factor weighs heavily in the state’s favor.
The fourth Williams factor is the centrality of the
impropriety to the critical issues before the jury. The
defendant’s argument that the one question at issue
called into question the entirety of his version of events
by suggesting that it was tailored with the assistance
of counsel attributes a larger impact than the narrow
focus of the question, which concerned the defendant’s
review of New Haven Police Department documents
with the assistance of counsel. Assuming that one ques-
tion implicated the defendant’s credibility as to his ver-
sion of events, that issue was not central to the critical
issues in the case. We note that the case did not involve
a credibility contest between two witnesses. See, e.g.,
State v. A. M., 324 Conn. 190, 211–12, 152 A.3d 49 (2016)
(determining that credibility was central issue that was
critical in sexual assault case in which physical evi-
dence was lacking and there were no corroborating
witnesses). Although Otis Burton and the defendant
were the only two witnesses present at the scene of the
murder, Helwig’s testimony that he drove the defendant
and Otis Burton to Hill’s house, that the defendant
called Helwig to retrieve him and Otis Burton following
the murder, that the defendant was crying and holding
a recently discharged firearm when he returned to Hel-
wig’s truck following the murder, and that the defendant
stated to Helwig that he had shot the victim, corrobo-
rated Otis Burton’s testimony. Helwig’s and Otis Bur-
ton’s testimony was also corroborated by phone records
showing that the defendant had called Helwig around
the time of the murder and that the defendant’s cell
phone connected to cell towers within the vicinity of
the murder. Nevertheless, because the defendant’s testi-
mony in a criminal trial is often central to the outcome
of the case, we conclude that this factor, in the absence
of a strong curative instruction, would weigh in favor
of the defendant.
The fifth Williams factor, the strength of the curative
measures adopted, strongly weighs in favor of the state.
‘‘[A] prompt cautionary instruction to the jury regarding
improper prosecutorial remarks or questions can obvi-
ate any possible harm to the defendant. . . . Moreover,
[i]n the absence of an indication to the contrary, the
jury is presumed to have followed [the trial court’s]
curative instructions. . . . [A] general instruction does
not have the same curative effect as a charge directed
at a specific impropriety, particularly when the miscon-
duct has been more than an isolated occurrence.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Ceballos, 266 Conn. 364, 413, 832 A.2d 14 (2003). In
the present case, despite the fact that defense counsel
did not object to the prosecutor’s question, the court,
sua sponte, gave a curative instruction. The defendant
was the final witness to testify, and the court gave
the curative instruction the following day. The curative
instruction was specifically directed to the prosecutor’s
question that underlies the defendant’s appeal; the court
directed the jury to disregard the question and answer
and instructed the jury regarding a defendant’s right to
consult with counsel. When asked by the court if he
wished to be heard regarding the cautionary instruction,
defense counsel stated that he agreed with the instruc-
tion. The trial court’s specific instruction that was
directed at the prosecutor’s question was sufficient to
cure any impropriety.
The defendant contends that the prosecutor’s ques-
tion at issue casts doubt on the entirety of the defen-
dant’s testimony on direct examination regarding his
version of the events. He argues therefore, that, the
curative instruction was insufficient and that the court,
instead, should have stricken all of the prosecutor’s
cross-examination of the defendant that pertained to
the defendant’s having tailored his testimony. Even if
such taint had occurred, the court’s narrowly tailored
curative instruction that the jury should draw no nega-
tive inferences from the defendant’s exercise of his right
to consult with counsel, was sufficient to cure it. Given
the court’s thorough instruction, which the jury is pre-
sumed to have followed, there is no reasonable possibil-
ity that the jury based its verdict on the fact that the
defendant had consulted with counsel and tailored his
testimony in line with the documents according to the
advice of counsel.
We turn now to the final Williams factor, concerning
the strength of the state’s case. Our Supreme Court has
‘‘never stated that the state’s evidence must have been
overwhelming in order to support a conclusion that
prosecutorial [impropriety] did not deprive the defen-
dant of a fair trial.’’ (Internal quotation marks omitted.)
State v. Stevenson, 269 Conn. 563, 596, 849 A.2d 626
(2004). In any event, the evidence in the present case
was strong. There was evidence that Freeman told Hel-
wig to contact Otis Burton and the defendant and to
have them ‘‘handle’’ the situation. Otis Burton testified
that the defendant shot the victim in the back of the
head. The defendant entered Helwig’s truck holding a
gun. Around the time of the murder, the defendant
telephoned Helwig to retrieve him and Otis Burton, and
the defendant, after entering Helwig’s truck with a gun
that smelled of gun smoke, was crying and instructed
Helwig to ‘‘go, go, go, go.’’ The defendant explained to
Helwig and Freeman how he gave the excuse that he
needed to tie his shoe and then shot the victim in the
back of the head. Additionally, in response to Otis Bur-
ton’s text message questioning whether the victim had
survived and would accuse them, the defendant
responded, ‘‘chill, we got it.’’ The defendant’s phone
records showed that he placed a cell phone call to
Helwig at 9:43 p.m. while he was in the vicinity of the
murder scene. The police did not recover the murder
weapon, and the defendant wrote a letter stating that
he had buried a gun in his backyard and requested its
removal. The testimony of the other witnesses coupled
with the defendant’s confession presented a strong case
on behalf of the prosecution.
Therefore, we conclude that the Williams factors
weigh in favor of the state. Any impact the alleged
impropriety had on the central issue of credibility was
sufficiently cured by the excellent curative instruction
given by the trial court. The defendant, therefore, was
not deprived of his due process right to a fair trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The information that the police received that led to Jaquwan Burton’s
arrest did not, in fact, come from the victim.
2
Jaquwan Burton and Otis Burton are not related.
3
The court stated: ‘‘Okay. Regarding the cautionary instruction the court
intends to deliver, the court is informed by State v. Santiago, [100 Conn.
App. 236, 917 A.2d 1051, cert. denied, 284 Conn. 933, 935 A.2d 153 (2007)].
. . . Although factually the situation presented here is some[what] different,
the state during its cross-examination of the defendant yesterday did ques-
tion the defendant several times about the fact, essentially, that his presence
in the courtroom provided him with the opportunity to tailor his testimony,
along the lines of the argument. That is permitted in such cases as State v.
Adeyemi, [122 Conn. App. 1, 998 A.2d 211, cert. denied, 298 Conn. 914, 4
A.3d 833 (2010)]. The court’s concern is that the single follow-up question,
which incorporated the defendant’s review essentially of discovery material
with his attorney, may be misconstrued by the jury as somehow being
probative of the defendant’s guilt. However, I want to be clear that I do not
believe it was the state’s intention to do so by that question. It was an
isolated inquiry among a series of questions on that general topic that
mentioned the involvement of counsel, and I don’t think that the question
itself undeniably or openly hinted to the jury that the fact that the defendant
consulted with counsel was probative of his guilt. In fact, the court views
the absence of an objection to the question by the defendant as a tacit
understanding that it was not the state’s intention to do so, and [defense
counsel] has not made that claim. However, to avoid even the remote possi-
bility that the isolated question could be viewed in an impermissible manner
by the jury, the court intends to instruct the jury to disregard that specific
question and answer, and that they are to draw no negative or unfavorable
inference from the defendant’s exercise of his constitutional right to counsel.
And the state obviously is not going to mention that in its closing argument.’’
4
The defendant does not argue on appeal that the alleged impropriety
infringed on a specifically enumerated constitutional right. See, e.g., State
v. Payne, 303 Conn. 538, 565, 34 A.3d 370 (2012). Accordingly, the burden
is on the defendant to establish that the alleged impropriety deprived him
of his due process right to a fair trial. Id.