State v. Olivero ( 2023 )

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STATE OF CONNECTICUT v. CESAR A. OLIVERO
(AC 42991)
Cradle, Suarez and Harper, Js.
Syllabus
Convicted, after a jury trial, of the crime of assault in the first degree in
connection with his attack on H with a handsaw, the defendant appealed
to this court. The defendant lived in a condominium owned by K, with
whom the defendant had a relationship. Approximately two weeks
before the assault on H, the relationship between the defendant and
K became strained and the defendant began staying with his mother.
However, the defendant retained keys to the condominium, kept per-
sonal belongings there, and went to and from the condominium at will.
The night prior to the assault, in a series of text messages between K
and the defendant, K asked the defendant to return his keys and indicated
to him that he was no longer allowed to live there. The next night, K
went out for dinner and drinks with H, an acquaintance she met a few
months earlier and with whom she had exchanged text messages. They
returned to the condominium so H could wait for his car service. H and
K were unaware that the defendant was in the condominium. When H
exited the bathroom in the condominium, the defendant attacked him
with a handsaw, severely injuring him. The defendant was charged with
assault in the first degree, burglary in the first degree, and home invasion.
Prior to trial, the court denied the defendant’s request to present the
testimony of K and himself in support of his motion to dismiss the
charges of burglary in the first degree and home invasion. The trial
court denied the motion to dismiss. At trial, the jury was unable to reach
a unanimous verdict on the first degree burglary and home invasion
charges and the court declared a mistrial as to those charges. Held:
1. The trial court properly denied the defendant’s pretrial motion to dismiss
the first degree burglary and home invasion charges: contrary to the
defendant’s claim that there was insufficient evidence to establish that
the defendant had unlawfully entered or remained in the condominium,
the proffered proof, viewed in the light most favorable to the state,
warranted a person of reasonable caution to believe that the defendant
unlawfully entered the condominium, as required for a conviction of
first degree burglary and home invasion; moreover, a fact finder could
reasonably find that whatever privilege the defendant previously held
to enter K’s condominium was expressly and clearly revoked by K on
the day prior to the incident via the text messages she sent to the
defendant in which she asked him to return his keys and informed him
that he did not live there anymore; furthermore, although the defendant
claimed that he retained his privilege to enter the condominium because,
inter alia, he still had keys to the condominium and kept his personal
belongings there, the text messages sent by K on the day prior to the
incident illustrated that the defendant was no longer permitted to enter
the condominium, and it was undisputed that he entered it on the night
of the incident.
2. The trial court did not abuse its discretion in denying the defendant’s
requests to present testimony in support of his pretrial motion to dismiss
the first degree burglary and home invasion charges because there was
no factual dispute between the defendant and the state to warrant the
evidentiary testimony of the defendant and K: it was clear from the
parties’ representations at the hearing on the motion that they agreed
on 95 percent of the relevant factual predicate to the defendant’s motion,
which claimed that the facts themselves were insufficient to support the
first degree burglary and home invasion charges against the defendant;
moreover, because defense counsel provided a full and detailed proffer
of the testimony he requested to present, which the state mostly accepted
as true, a full evidentiary hearing to iterate those same facts would have
been superfluous; furthermore, the defendant did not identify on appeal,
how, if at all, his testimony or the testimony of K would have supple-
mented or been different from the proffer articulated by defense counsel,
and therefore, the defendant failed to demonstrate that, even if the
court’s ruling was incorrect, he was harmed by the ruling.
3. The defendant could not prevail on his unpreserved claim that the trial
court judge improperly failed to disqualify himself from presiding over
the defendant’s trial because the judge was actually biased against him
on the basis of the judge’s use of the term ‘‘victim’’ to refer to H in
various pretrial hearings and because the judge’s denial of his motion
to dismiss established the appearance of bias: the judge’s use of the
term ‘‘victim’’ in pretrial hearings did not objectively establish that he
was actually biased against the defendant so as to constitute a due
process violation depriving the defendant of a fair trial, the judge’s
reference to H as ‘‘victim’’ was not critical or hostile to the defendant,
as the judge used the term victim merely to identify H, who indisputably
sustained significant physical injuries as a result of the defendant’s
conduct, the judge did not refer to H as a victim in front of the jury,
and the judge’s use of the term did not establish that he had predeter-
mined the defendant’s guilt prior to the start of trial, nor did it reflect
on the strength of the state’s case or the defendant’s claim of self-
defense; moreover, the judge’s use of the term could not support a claim
of actual bias as the term was not derived from an extrajudicial source,
but from judicial proceedings, and did not reveal a high degree of antago-
nism so as to make a fair judgment impossible, and the defendant cited
no conduct by the judge during the trial that suggested that he conducted
the trial in a way that was biased against the defendant; furthermore,
this court declined to review the defendant’s unpreserved claim that
the judge’s denial of his motion to dismiss was sufficient to establish
the appearance of bias because a claim of judicial bias based solely on
the appearance of partiality was not of constitutional dimension.
4. The defendant could not prevail on his unpreserved claim that the trial
court violated his confrontation clause rights by improperly restricting
his ability to cross-examine H concerning the content of text messages
between H and K in an effort to impeach H’s credibility: the defendant,
through his defense counsel, abandoned his effort to question H regard-
ing the content of the text messages at trial and, thus, waived his appel-
late claim; the record sufficiently demonstrated that, although the trial
court had granted the state’s motion in limine, without prejudice, to
preclude the defendant from questioning H as to the content of the
messages, defense counsel, at trial, outside the presence of the jury,
expressed an intention to question H on the content of those messages,
but, the next day, stated that he no longer sought to question H in that
regard, and, instead, expressed his intention to question H regarding the
volume of the messages, which the trial court permitted, and, ultimately,
defense counsel never attempted to question H as to the content of the
text messages.
5. The defendant could not prevail on his claim that the prosecutor’s use
of the term ‘‘victim’’ approximately fourteen times during the evidentiary
portion of the trial and in closing argument constituted prosecutorial
impropriety that deprived him of his constitutional right to a fair trial:
the prosecutor’s use of the term ‘‘victim’’ to refer to H was not sufficiently
prevalent and chronic so as to be improper, as the number of instances
the term was used was not sufficiently excessive in light of the length
of the trial, which lasted six days and culminated in approximately 900
pages of transcript, the majority of the prosecutor’s use of the term
during the evidentiary portion of the trial occurred after witnesses used
it for the first time, and the one time defense counsel objected to the
prosecutor’s use of the term victim, the court sustained the objection,
the prosecutor rephrased the question and the prosecutor did not use
the term throughout the remaining three days of evidence; moreover,
even if this court were to assume that each of these uses of the term
‘‘victim’’ by the prosecutor was improper, the defendant failed to satisfy
his burden of demonstrating that those improprieties were so egregious
as to amount to a denial of due process, this court having concluded,
after applying the factors set forth in State v. Williams (204 Conn. 523),
that the alleged improprieties did not deprive the defendant of a fair
trial because, although the alleged improprieties were not invited by
defense counsel and no curative instructions were adopted by the trial
court, and, although the term victim was central to the critical issue of
the case, which was whether H was the victim of assault or an intruder,
which supported the defendant’s claim of self-defense, the use of the
term was infrequent when compared to the length of the trial, the trial
court repeatedly instructed the jury during various parts of trial that
counsel’s arguments did not constitute evidence, that the jurors were the
sole arbiters of credibility, and that the jurors must confine themselves
to the evidence in the record, the state’s case was strong because there
was an abundance of evidence that supported the charge of first degree
assault, and, finally, although the jury deliberated for five days, their
deadlock was on the unlawful entry element of the first degree burglary
and home invasion charges, not on the assault charge.
Argued September 7, 2022—officially released May 30, 2023
Procedural History
Substitute information charging the defendant with
the crimes of assault in the first degree, burglary in the
first degree, and home invasion, brought to the Superior
Court in the judicial district of Stamford-Norwalk,
where the court, White, J., denied the defendant’s
motion to dismiss the charges of burglary in the first
degree and home invasion; thereafter, the matter was
tried to the jury before White, J.; verdict of guilty of
assault in the first degree; subsequently, the court
declared a mistrial as to the charges of burglary in the
first degree and home invasion; judgment of guilty, from
which the defendant appealed to this court. Affirmed.
Peter G. Billings, assigned counsel, for the appellant
(defendant).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, was Paul J. Ferencek, state’s
attorney, for the appellee (state).
Opinion
HARPER, J. The defendant, Cesar A. Olivero, appeals
from the judgment of conviction, rendered after a jury
trial, of assault in the first degree in violation of General
Statutes § 53a-59 (a) (1).1 On appeal, the defendant
claims that (1) the trial court incorrectly denied his
pretrial motion to dismiss the charges of first degree
burglary and home invasion, (2) the trial court abused
its discretion by denying his requests to present testi-
mony in support of his pretrial motion to dismiss, (3)
the trial judge, White, J., improperly failed, sua sponte,
to disqualify himself from presiding over the defen-
dant’s jury trial because Judge White previously had
denied the defendant’s motion to dismiss and used the
term ‘‘victim’’ in various pretrial hearings, (4) the trial
court improperly restricted his ability to cross-examine
the victim concerning the content of certain text mes-
sages, and (5) the prosecutor’s use of the term ‘‘victim’’
during the trial and in closing argument deprived him
of his constitutional right to a fair trial.2 We affirm the
judgment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. The defendant began a relationship with K3
sometime around 2011, and they have one minor child
together, born in 2014.4 In 2014, the defendant and K
moved into K’s condominium located in Stamford. On
June 14, 2015, two weeks prior to the incident, the
defendant and K had a heated argument, which caused
them to take a ‘‘break’’ from their relationship. The
defendant consequently left K’s condominium to reside
with his mother in Manhattan.
Also in the spring of 2015, K was seeking employment
at a peer-to-peer networking company that employed
the victim, Alejandro Herrera. Herrera interviewed K
for the position, but the company did not hire her.
Nevertheless, Herrera and K stayed in touch via email,
and Herrera attempted to help K with other professional
opportunities. Although initially their emails were pro-
fessional, the two then began exchanging text messages
that were friendly and social. Then their text messages
became, as Herrera described at trial, ‘‘fun,’’ ‘‘a little
flirty,’’ and ‘‘racy,’’ which was ‘‘inappropriate’’ because
Herrera was married with four children.
On June 25, 2015, the night of the incident, Herrera
and K met for dinner at a restaurant in White Plains,
New York, at approximately 6 p.m. K informed the
defendant that she was going out with her friends, and
she did not tell the defendant that she was going to
dinner with Herrera because he was married. K asked
the defendant to watch their child, but the defendant
told her that he could not. Herrera took the train and
a cab from his residence in New Jersey to the restaurant,
and he had scheduled a car service to pick him up at
8:30 p.m. because they were planning on having a few
drinks and his license was suspended in New York due
to a pending charge for driving under the influence
(DUI). After dinner, Herrera learned that the car service
he had scheduled was stuck in traffic in New York, so
he and K went to a few more bars in the area. At
approximately 10 p.m., K invited Herrera to her condo-
minium so that he could wait for his car service.
On the drive to K’s condominium, the defendant
repeatedly called K’s cell phone. K answered one of the
defendant’s calls and she told the defendant that she
was getting ready to go to bed. After the call ended,
the defendant sent K several text messages accusing
her of not being home because it sounded to him like
K was not indoors and that she was wide awake. The
defendant also texted K: ‘‘Your very selfish, what goes
around comes around,’’ and ‘‘[l]augh now, cry later &
I won’t feel sorry this time.’’
K and Herrera then arrived at K’s condominium, and
they parked in the garage on the first floor. Herrera
asked to use the bathroom, and K walked with him up
the staircase from the garage to the bathroom that was
located just at the top of the stairs on the second floor.
Herrera used the bathroom for approximately two
minutes, and during that time he heard sounds in the
condominium that were ‘‘indicative of like dishes and
water running and like . . . kitchen sounds.’’ Herrera
then took one or two steps outside of the bathroom
and noticed a light coming from inside the kitchen area,
and he could not see K. K asked Herrera if he wanted
a drink, which he declined.
K suddenly screamed, ‘‘Cesar, no,’’ and Herrera heard
a crashing sound that he described at trial as resembling
‘‘if somebody had pushed somebody over or knocked
somebody over banging and clanking sound.’’ Herrera
then felt a violent impact on the top of his head from
behind, which caused him to see stars and to buckle.
Herrera turned to see the defendant standing in the
dark holding a fifteen inch handsaw. The defendant
rushed at Herrera and swung the saw with ‘‘all his force’’
and ‘‘like a crazy person,’’ hitting Herrera multiple times
on the head, face, left shoulder, and hands. While swing-
ing the saw, the defendant shouted, ‘‘[t]his is what you
get, this is what you get, this is what you get for fucking
my girlfriend.’’ Herrera attempted to evade the saw, and
to grab the saw, but his hands were ‘‘cut in pieces.’’
After three or four minutes, Herrera and the defendant
ended up in the kitchen area where the defendant struck
the light in the kitchen with the saw, causing glass to
shatter everywhere. The defendant eventually dropped
the saw, and Herrera, at trial, stated that it was like the
defendant ‘‘snapped out of a trance, like, it just was
like a different person.’’
K then called 911 and reported that the defendant
had attacked Herrera with a saw. Shortly thereafter,
Stamford police officers, including Officer William Mer-
cado and Officer Neals Mira, arrived at the scene and
K informed them that her former boyfriend was inside
and that he had attacked Herrera with a saw. The police
officers apprehended the defendant at the bottom of
the stairs to the garage, and they then proceeded up
the stairs to find Herrera, who was covered in blood,
sitting in a chair in the kitchen. They observed blood
on the walls and on the floor of the kitchen, broken
glass on the floor, and a bloody handsaw on the table
in the dining room. Emergency medical personnel trans-
ported Herrera to Stamford Hospital, and he was later
transferred to Westchester Medical Center to obtain
medical treatment from a hand specialist. Herrera suf-
fered severe injuries and lacerations to his upper body
area, arms, head, face, and hands, which required sta-
ples, stitches, and five surgeries. Herrera sustained per-
manent scars, continues to suffer from pain, and he has
lost the use of most of the fingers on his right hand.
The defendant subsequently was charged, by way of
the state’s October 23, 2017 information, with assault
in the first degree in violation of § 53a-59 (a) (1), bur-
glary in the first degree in violation of General Statutes
§ 53a-101 (a) (2), and home invasion in violation of
General Statutes § 53a-100aa (a) (2). Following a jury
trial on these charges, and five days of jury delibera-
tions, the defendant was found guilty only on the assault
charge, and the jury was unable to reach a unanimous
verdict on the first degree burglary and home invasion
charges. Consequently, the court declared a mistrial as
to the first degree burglary and home invasion charges.
The court sentenced the defendant to fourteen years
of incarceration followed by six years of special parole.
This appeal followed. Additional facts and procedural
history will be set forth as necessary.
I
The defendant first claims that the court incorrectly
denied his pretrial motion to dismiss the first degree
burglary and home invasion charges. The defendant
argues that the state failed to establish sufficient proba-
ble cause for an essential element common to both
the first degree burglary and home invasion charges,
specifically, that the defendant ‘‘enter[ed] or remain[ed]
unlawfully’’ in K’s condominium.5 See General Statutes
§§ 53a-101 (a) (2) and 53a-100aa (a) (2). We disagree.
We first set forth the undisputed facts and procedural
history relevant to our resolution of this claim. On
August 7, 2017, the state filed an information charging
the defendant with three counts: assault in the first
degree in violation of § 53a-59 (a) (1) (count one); bur-
glary in the first degree in violation of § 53a-101 (a) (3)
(count two); and home invasion in violation of § 53a-
100aa (a) (2) (count three). Relevantly, in count two, the
state charged the defendant with unlawfully entering
or remaining in a building at night with the intent to
commit a crime therein, to wit: assault, in violation of
§ 53a-101 (a) (3). In count three, the state charged the
defendant with unlawfully entering or remaining in a
dwelling, with the intent to commit a crime therein, to
wit: assault, while a person other than a participant in
the crime was actually present in such dwelling, and,
in the course of committing the home invasion, was
armed with a dangerous instrument, in violation of
§ 53a-100aa (a) (2).6
On September 21, 2016, the defendant, pursuant to
Practice Book § 41-8 (5), filed a motion to dismiss the
first degree burglary and home invasion charges against
him on the ground that there was insufficient evidence
to support those charges. In his memorandum of law
in support of his motion to dismiss, the defendant main-
tained that a common essential element of both the
first degree burglary charge pursuant to § 53a-101 and
the home invasion charge pursuant to § 53a-100aa was
that he ‘‘unlawfully’’ entered and remained in a dwelling.
The defendant argued that he lawfully entered and
remained in K’s condominium at the time of the incident
because he previously had resided there, had a key to
the condominium, received mail at the condominium,
kept his clothing at the condominium, prepared meals
at the condominium, and assisted in providing care for
their minor child at the condominium. The defendant
attached to his motion screenshots of a series of text
messages between K and the defendant on the day prior
to the incident. In those messages, K twice asked the
defendant to ‘‘leave’’ his set of keys to her condomin-
ium, to which the defendant responded,‘‘[i]ts not neces-
sary’’ and ‘‘[w]hy would you want me to leave the keys
I still live here?’’ K responded, ‘‘[n]o u don’t. Leave them
please.’’ The defendant then asked, ‘‘[s]o you don’t want
me here?’’ K answered, ‘‘[n]o. U need to get your shit
together. I’m done babysitting.’’
On August 14, 2017, the court held a hearing on the
defendant’s motion to dismiss. At the outset of the hear-
ing, the court stated that the parties in chambers had
‘‘essentially agreed’’ on the factual predicate of the
defendant’s motion to dismiss and, thus, the court
requested that the parties ‘‘make those representations
on the record.’’ Defense counsel agreed with the court’s
account, and he stated that the parties ‘‘were able to
agree to about probably 95 percent of the chronology.’’
The court then summarized its understanding of the
parties’ agreed upon facts as follows: ‘‘[K] and the defen-
dant . . . were in a relationship for about a period of
five years. They lived together . . . in Stamford. The
two had a child together. They had a somewhat volatile
relationship. They broke up about two weeks prior to
this incident. The . . . address is a condo[minimum]
owned by [K]. That the defendant moved out of that
address and was living in New York with his mother.
And a specific address was mentioned. And the claim is
that the defendant was in and out of the [condominium]
during this two week period. He still had a key to the
[condominium]. And the claim is that, I guess, a day
before this incident there was an exchange of text mes-
sages between the defendant and [K], and in that
exchange [K] asked this defendant to return the house
key. And he never did.’’
Defense counsel responded that the court’s recitation
was ‘‘correct,’’ but ‘‘incomplete.’’ Defense counsel thus
made a series of requests to present to the court the
testimony of K and the defendant, which he represented
was necessary for context. The court did not initially
rule on the defendant’s requests to present testimony
but, instead, invited defense counsel to make a proffer
as to the substance of the testimony he intended to
present. Defense counsel then described the expected
testimony of K and the defendant as follows. The rela-
tionship between the defendant and K began ten years
prior to the incident, and they had been cohabitating
at three separate addresses for five years prior to the
incident. Five days prior to the incident and the day
prior to the incident, the defendant visited the condo-
minium to visit with K, their minor child, K’s family,
and his friend, and, on those occasions, the defendant
‘‘came and went from the apartment . . . on his own.’’7
Stored throughout the condominium were the defen-
dant’s personal belongings, including his clothes, com-
puter, books and records, music equipment, and a sofa
bed. During the two weeks prior to the incident, the
defendant slept on the sofa at his mother’s apartment
in Manhattan, and he returned to K’s condominium ‘‘of
his own free will’’ for changes of clothing, laundry, and
to pick up and drop off his personal belongings. At
some uncertain point during those same two weeks, K
invited the defendant ‘‘to come back into’’ the condo-
minium.
In response, the state represented that it did not dis-
pute ‘‘most’’ of defense counsel’s proffer, and, more
specifically, that it did not dispute what happened in
the two weeks prior to the incident, the day before
the incident, or the fact that the defendant’s clothes
remained at the condominium. The state’s argument
instead focused on the events just prior to the incident,
including K’s text messages to the defendant on the
day prior to the incident in which K, the owner of the
condominium, clearly communicated to the defendant
that he should return his keys and that he no longer
lived at the condominium.
After hearing both parties’ arguments as to whether
the agreed upon facts were sufficient to support the
first degree burglary and home invasion charges, the
court orally denied the defendant’s motion to dismiss.
The court reasoned that, even crediting the entirety of
the defendant’s proffer, there was sufficient evidence
to support the conclusion that the defendant unlawfully
entered and remained in K’s condominium on the night
of the incident, so as to warrant presenting that question
of fact to the jury. The court also did not permit the
defendant to present testimony, reasoning that there
was no ‘‘real dispute between the state and the defense’’
as to the facts.8
We next set forth the standard of review and relevant
legal principles governing our review of this claim. ‘‘The
standard to be applied in determining whether the state
can satisfy this burden in the context of a pretrial
motion to dismiss under General Statutes § 54-569 and
Practice Book § 41-8 (5)10 is no different from the stan-
dard applied to other claims of evidentiary sufficiency.
. . . When assessing whether the state has sufficient
evidence to show probable cause to support continuing
prosecution [following a motion to dismiss under § 54-
56], the court must view the proffered proof, and draw
reasonable inferences from that proof, in the light most
favorable to the state. . . . The quantum of evidence
necessary to [overcome a motion to dismiss] . . . is
less than the quantum necessary to establish proof
beyond a reasonable doubt at trial . . . . In [ruling on
the defendant’s motion to dismiss], the court [must]
determine whether the [state’s] evidence would warrant
a person of reasonable caution to believe that the
[defendant had] committed the crime.’’ (Citations omit-
ted; footnotes added; footnote omitted; internal quota-
tion marks omitted.) State v. Pelella, 327 Conn. 1, 18–19,
170 A.3d 647 (2017). We exercise plenary review over
the court’s decision to deny the defendant’s motion to
dismiss. Id., 9–10; see also State v. Cyr, 291 Conn. 49,
56, 967 A.2d 32 (2009).
The parties agree that a common essential element
for both first degree burglary pursuant to § 53a-101 and
home invasion pursuant to § 53a-100aa is that the state
must prove that the defendant ‘‘enters or remains
unlawfully’’ in K’s condominium. ‘‘A person ‘enter[ed]
or remain[ed] unlawfully’ in or upon premises when
the premises, at the time of such entry or remaining,
are not open to the public and when the actor is not
otherwise licensed or privileged to do so.’’ General Stat-
utes § 53a-100 (b). ‘‘To enter unlawfully means to
accomplish an entry by unlawful means, while to remain
unlawfully means that the initial entering of the building
. . . was lawful but the presence therein became
unlawful because the right, privilege or license to
remain was extinguished.’’ (Internal quotation marks
omitted.) State v. Weaver, 85 Conn. App. 329, 342, 857
A.2d 376, cert. denied, 271 Conn. 942, 861 A.2d 517(2004). ‘‘A license in real property is defined as a per-
sonal, revocable, and unassignable privilege, conferred
either by writing or parol, to do one or more acts on
land without possessing any interest therein. . . . Gen-
erally, a license to enter premises is revocable at any
time by the licensor. . . . It is exercisable only within
the scope of the consent given. . . . The term, privi-
lege, is more general. It is a right or immunity granted
as a peculiar benefit, advantage, or favor; special enjoy-
ment of a good or exemption from an evil or burden;
a peculiar or personal advantage or right esp[ecially]
when enjoyed in derogation of common right; preroga-
tive. . . . The phrase, licensed or privileged, as used
in [our burglary statutes], is meant as a unitary phrase,
rather than as a reference to two separate concepts.’’11
(Emphasis omitted; internal quotation marks omitted.)
State v. Marsan, 192 Conn. App. 49, 56, 216 A.3d 818,
cert. denied, 333 Conn. 939, 218 A.3d 1049 (2019); see
also State v. Ashby, 336 Conn. 452, 489, 247 A.3d 521(2020). ‘‘Whether an entry on premises is ‘unlawful’
within the meaning of . . . § 53a-100 (b) is a question
of fact for the jury.’’ State v. Grant, 6 Conn. App. 24,
31, 502 A.2d 945 (1986).
For instance, the state can sufficiently establish that
a defendant unlawfully entered a private residence if
there is evidence that the resident or owner of the
residence informs a defendant that he or she is not
permitted inside the home. See, e.g., State v. Kyle A.,
212 Conn. App. 239, 252, 74 A.3d 896 (evidence at trial
was sufficient to establish that defendant unlawfully
entered home because defendant was not residing at
home on date of incident, resident of home previously
had communicated to defendant that he was not permit-
ted to enter home, and defendant forcibly had entered
home without obtaining permission from resident),
cert. granted, 343 Conn. 930, 281 A.3d 1187 (2022); State
v. Calabrese, 116 Conn. App. 112, 124, 975 A.2d 126(evidence at trial was sufficient to establish that defen-
dant unlawfully entered home because owner of house
twice told defendant not to come to house, yet defen-
dant entered house despite owner ‘‘having made it quite
clear that he was not welcome’’), cert. denied, 293 Conn.
933, 981 A.2d 1076, and cert. denied, 293 Conn. 933, 981
A.2d 1076 (2009).
Applying the foregoing, we conclude that the court
properly denied the defendant’s motion to dismiss
because the proffered proof, viewed in the light most
favorable to the state, would warrant a person of rea-
sonable caution to believe that the defendant unlawfully
entered the condominium, as required for a conviction
of first degree burglary and home invasion. Specifically,
a fact finder could reasonably find that whatever license
or privilege the defendant once had to enter K’s condo-
minium was revoked by K on the day prior to the inci-
dent. A fact finder could reasonably find that the facts
supporting the defendant’s argument—including that he
retained a key to the condominium, had his possessions
there, resided there up until two weeks prior to the
incident, and visited several times during the two weeks
prior to the incident—were vitiated by K’s text mes-
sages to the defendant on the night prior to the incident.
After the occurrence of all these events; see footnote
7 of this opinion; a fact finder reasonably could find
that the defendant’s license or privilege to enter the
condominium was expressly and clearly revoked by K
through her text messages exchanged with the defen-
dant on the night prior to the incident. In those mes-
sages, K twice asked the defendant to return his set
of keys to her condominium, and twice informed the
defendant that he did not live at her condominium any-
more. K’s statements made it quite clear to the defen-
dant that he was not permitted to enter the condomin-
ium, yet, despite these statements, it was undisputed
that the defendant entered the condominium on the
night of the incident. As in State v. Kyle A., supra, 212
Conn. App. 252, and State v. Calabrese, supra, 116 Conn.
App. 124, the communication by the resident of the
dwelling to the defendant that he was not permitted
to enter is sufficient to establish that the defendant
unlawfully entered the dwelling. Therefore, we con-
clude that the court properly denied his pretrial motion
to dismiss the first degree burglary and home invasion
charges because a fact finder could reasonably find that
the defendant entered K’s condominium unlawfully.
II
The defendant next claims that the court abused its
discretion by denying his requests to present testimony
in support of his pretrial motion to dismiss. Specifically,
he argues that the court should have permitted defense
counsel to present to the court the testimony of the
defendant and K ‘‘to ensure [that] the state had suffi-
cient probable cause on the home invasion and burglary
charges . . . .’’ We disagree.
We first set forth the standard of review and relevant
legal principles governing our review of this claim. Our
Supreme Court ‘‘consistently [has] held that, unless oth-
erwise required by statute, a rule of practice or a rule
of evidence, whether to conduct an evidentiary hearing
generally is a matter that rests within the sound discre-
tion of the trial court.’’ (Internal quotation marks omit-
ted.) State v. Michael J., 274 Conn. 321, 332, 875 A.2d 510(2005). The defendant does not claim that an evidentiary
hearing was required by a statute, rule of practice, or
rule of evidence; thus, we review the court’s decision
not to hear testimony for an abuse of discretion. ‘‘In
determining whether there has been an abuse of discre-
tion, every reasonable presumption should be given in
favor of the correctness of the court’s ruling. . . .
Reversal is required only where an abuse of discretion
is manifest or where injustice appears to have been
done. . . . Discretion means a legal discretion, to be
exercised in conformity with the spirit of the law and
in a manner to subserve and not to impede or defeat
the ends of substantial justice. . . . It goes without
saying that the term abuse of discretion does not imply
a bad motive or wrong purpose but merely means that
the ruling appears to have been made on untenable
grounds.’’ (Internal quotation marks omitted.) Wheeler
v. Beachcroft, LLC, 210 Conn. App. 725, 757, 271 A.3d
141 (2022).
As explained in part I of this opinion, the defendant
filed a pretrial motion to dismiss the first degree bur-
glary and home invasion charges against him on the
ground that there was insufficient evidence to establish
that he had unlawfully entered or remained in the con-
dominium. At the hearing on the motion, the court
stated that the parties in chambers had ‘‘essentially
agreed’’ on the factual predicate of the defendant’s
motion to dismiss and, thus, the court requested that
the parties ‘‘make those representations on the record.’’
Defense counsel stated that the parties ‘‘were able to
agree to about probably 95 percent of the chronology.’’
The court then summarized its understanding of the
parties’ agreed upon facts, and the defendant responded
that the court’s recitation was ‘‘correct’’ but ‘‘incom-
plete.’’ Defense counsel thus made a series of requests
to present to the court the testimony of K and the
defendant, which he represented was necessary for con-
text.12 The court did not initially rule on the defendant’s
requests to present testimony but, instead, asked
defense counsel to make a proffer as to the substance
of the testimony he intended to present. Defense coun-
sel then provided the court with a description of the
expected testimony of K and the defendant. Afterward,
the state represented that it did not dispute ‘‘most’’ of
defense counsel’s proffer, and, more specifically, that
it did not dispute what happened in the two weeks prior
to the incident, the day before the incident, or the fact
that the defendant had his clothes at the condominium.
Given the absence of any ‘‘real dispute between the
state and the defense’’ as to the facts, the court ulti-
mately denied the defendant’s requests to present testi-
mony.
On the basis of the foregoing, we conclude that the
court did not abuse its discretion by denying the defen-
dant’s requests to present testimony in support of his
pretrial motion to dismiss. It was clear from the parties’
representations at the hearing that there was no factual
dispute between the parties because they had agreed
on 95 percent of the predicate facts. Rather, the issue
presented was whether those facts were sufficient to
support the first degree burglary and home invasion
charges against the defendant. In light of the fact that
defense counsel provided a full and detailed summary
of the testimony he requested to present, which the
state mostly accepted as true, a full evidentiary hearing
to iterate those same facts would have been superflu-
ous. Indeed, the defendant on appeal does not identify
how, if at all, his testimony or the testimony of K would
have supplemented or been different from the proffer
articulated by defense counsel. The defendant, there-
fore, has failed to demonstrate that, even if the court’s
ruling was incorrect, he was harmed by the ruling.
Under these circumstances, the defendant has not dem-
onstrated that the court abused its discretion by denying
his requests to present testimony in support of his
motion to dismiss.
III
The defendant next claims that Judge White improp-
erly failed, sua sponte, to disqualify himself from presid-
ing over his jury trial because Judge White previously
had denied the defendant’s motion to dismiss and, when
referring to Herrera, used the term ‘‘victim’’ in various
pretrial hearings. Specifically, the defendant argues
that, although ‘‘[t]here is no statute or rule that
expressly prohibits a judge who finds probable cause
against a particular defendant from later presiding at
that defendant’s trial,’’ Judge White’s failure to disqual-
ify himself deprived the defendant of his constitutional
right to a fair trial. The defendant’s claim has two parts.
First, he argues that Judge White’s use of the term
‘‘victim’’ approximately twenty-four times in eleven dif-
ferent pretrial hearings established that Judge White
actually was biased against him. Second, he argues
that Judge White’s denial of his motion to dismiss was
sufficient to establish the appearance of bias. We dis-
agree.
At the outset, the defendant concedes that this claim
is unpreserved because he failed to seek the disqualifi-
cation of Judge White in the trial court, and requests
review pursuant to the standards set forth in State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
as modified by In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015). Pursuant to Golding, ‘‘a defendant
can prevail on a claim of constitutional error not pre-
served at trial only if all of the following conditions are
met: (1) the record is adequate to review the alleged
claim of error; (2) the claim is of constitutional magni-
tude alleging the violation of a fundamental right; (3)
the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial; and (4) if
subject to harmless error analysis, the state has failed to
demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt.’’ (Emphasis in
original; footnote omitted.) State v. Golding, supra,239–40; see In re Yasiel R., supra, 781 (modifying third
prong of Golding).
The defendant asserts, and the state agrees, that the
entirety of the defendant’s claim satisfies the first two
prongs of Golding. We disagree that the entirety of the
judicial bias claim is reviewable under Golding. We
agree with both parties that the defendant’s actual bias
claim satisfies the first two prongs of Golding and, thus,
is reviewable. Particularly, the record is adequate to
review the defendant’s actual bias claim because the
record contains the transcripts reflecting Judge White’s
use of the term ‘‘victim’’; see State v. Milner, 325 Conn.
1, 10, 155 A.3d 730 (2017); and actual bias rises to the
level of a constitutional violation. See State v. Cane,
193 Conn. App. 95, 133 n.33, 218 A.3d 1073, cert. denied,
334 Conn. 901, 219 A.3d 798 (2019). In contrast with the
parties, we conclude that the defendant’s appearance
of bias claim fails the second prong of Golding and,
thus, is not reviewable because a claim of judicial bias
based solely on the appearance of partiality is not of
constitutional dimension. See id.; State v. Stanley, 161
Conn. App. 10, 32–33, 125 A.3d 1078 (2015), cert. denied,
320 Conn. 918, 131 A.3d 1154 (2016). Accordingly, we
turn our focus to determine whether the defendant’s
actual bias claim satisfies the third prong of Golding.
‘‘A claim of judicial bias is a very serious matter.’’
State v. Carlos C., 165 Conn. App. 195, 206, 138 A.3d
1090, cert. denied, 322 Conn. 906, 140 A.3d 977 (2016).
‘‘The United States Supreme Court consistently has held
that a judge’s failure to disqualify himself or herself will
implicate the due process clause only when the right
to disqualification arises from actual bias on the part of
that judge. . . . [M]ost questions concerning a judge’s
qualifications to hear a case are not constitutional ones,
because the [d]ue [p]rocess [c]lause of the [f]ourteenth
[a]mendment establishes a constitutional floor, not a
uniform standard. . . . Instead, these questions are, in
most cases, answered by common law, statute, or the
professional standards of the bench and bar. . . . But
the floor established by the [d]ue [p]rocess [c]lause
clearly requires a fair trial in a fair tribunal . . . before
a judge with no actual bias against the defendant or
interest in the outcome of his particular case. . . .
[C]ertainly only in the most extreme of cases would
disqualification on [the basis of allegations of bias or
prejudice] be constitutionally required . . . .’’ (Empha-
sis added; internal quotation marks omitted.) State v.
Stanley, supra, 161 Conn. App. 32. ‘‘Accusations of judi-
cial bias or misconduct implicate the basic concepts of
a fair trial. . . . [A] claim of judicial bias strikes at the
very core of judicial integrity and tends to undermine
public confidence in the established judiciary. . . . No
more elementary statement concerning the judiciary
can be made than that the conduct of the trial judge
must be characterized by the highest degree of impar-
tiality. If [the judge] departs from this standard, he [or
she] casts serious reflection upon the system of which
[the judge] is a part.’’ (Internal quotation marks omit-
ted.) State v. Cane, supra, 193 Conn. App. 133.
‘‘The standard to be employed is an objective one,
not the judge’s subjective view as to whether he or she
can be fair and impartial in hearing the case.’’ (Internal
quotation marks omitted.) Id., 133–34; see also Rippo
v. Baker, 580 U.S. 285, 287, 137 S. Ct. 905, 197 L. Ed.
2d 167 (2017) (‘‘[r]ecusal is required when, objectively
speaking, ‘the probability of actual bias on the part of
the judge or [decision maker] is too high to be constitu-
tionally tolerable’ ’’). ‘‘[J]udicial remarks during the
course of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases,
ordinarily do not support a bias or partiality challenge.
They may do so if they reveal an opinion that derives
from an extrajudicial source; and they will do so if they
reveal such a high degree of favoritism or antagonism as
to make fair judgment impossible.’’ (Internal quotation
marks omitted.) Ponns Cohen v. Cohen, 342 Conn. 354,
363, 270 A.3d 89 (2022).
In the present case, the defendant’s actual bias claim
is founded on Judge White’s use of the term ‘‘victim’’
approximately twenty-four times in various pretrial
hearings.13 He argues that ‘‘our [Supreme] Court has
frowned upon the prosecutors use of the word ‘victim’
because the jury could understand that the state was
expressing its personal opinion that the defendant had
victimized the complainant. State v. Warholic, 278
Conn. 354, [370] n.7, [897 A.2d 569] (2006). This same
reasoning applies to Judge White.’’ He contends that
Judge White’s use of that term ‘‘demonstrates that he
already made conclusions about the guilt of the defen-
dant even before starting the trial,’’ and, thus, estab-
lishes that Judge White was not impartial.14
We conclude that Judge White’s use of the term ‘‘vic-
tim’’ in pretrial hearings does not objectively establish
that he actually was biased against the defendant so
as to constitute a due process violation depriving the
defendant of a fair trial. Although a prosecutor’s
repeated use of the term ‘‘victim’’ in front of a jury may
be improper under some circumstances; see part V of
this opinion; we disagree with the defendant that ‘‘this
same reasoning’’ applies to Judge White’s use of that
term in pretrial proceedings. In Warholic, the case cited
by the defendant in support of his argument, our
Supreme Court ‘‘caution[ed] the state . . . against
making excessive use of the term ‘victim’ to describe
a complainant when the commission of a crime is at
issue because prevalent use of the term may cause the
jury to draw an improper inference that the defendant
committed a crime against the complainant.’’ State v.
Warholic, supra, 278 Conn. 370 n.7. The reasoning of
Warholic is inapposite to the present case because the
court did not refer to Herrera as the victim in front of
the jury.
Furthermore, Judge White’s use of the term ‘‘victim’’
does not support the defendant’s actual bias claim
because it is not critical or hostile to the defendant.
Ponns Cohen v. Cohen, supra, 342 Conn. 363. Instead,
Judge White used the term ‘‘victim’’ in pretrial proceed-
ings merely to identify the individual, Herrera, who
indisputably sustained significant physical injuries as a
result of the defendant’s conduct. Judge White’s use of
the term ‘‘victim’’ does not establish that he predeter-
mined the defendant’s guilt prior to starting the trial,
and it expresses no definite opinion on the strength of
the state’s case or the defendant’s claim of self-defense.
The defendant’s argument is further undercut by the
fact that defense counsel used the term ‘‘victim’’ three
times during those same pretrial hearings.
Additionally, Judge White’s use of the term ‘‘victim’’
does not support his actual bias claim because it neither
derived from an extrajudicial source nor revealed a high
degree of antagonism to make fair judgment impossible.
See Ponns Cohen v. Cohen, supra, 342 Conn. 363. It
was apparent from the outset of the criminal proceeding
that Herrera was the individual who sustained injuries
as a result of the defendant’s conduct and, thus, the
court’s designation of Herrera as the ‘‘victim’’ stemmed
from judicial proceedings, not any extrajudicial source.
See State v. Cane, supra, 193 Conn. App. 137 (court’s
reference to defendant as ‘‘violent’’ stemmed from
defendant’s criminal history noted in presentence inves-
tigation report). The use of the term ‘‘victim’’ further
does not reveal any antagonism by Judge White that
would impact his fair judgment. Indeed, as the state
aptly notes, it was the duty of the jury, not Judge White,
to determine whether the defendant was guilty. See id.,134–35 n.35 (noting that judge’s use of term ‘‘victims’’
in pretrial decision ‘‘was not indicative of bias’’ as judge
did not refer to ‘‘victims in front of the jury’’ and defen-
dant ‘‘subsequently [was] tried by a jury, and not by
the court’’). The defendant cites no conduct by the court
during the trial that would suggest that Judge White
conducted the trial in a way that was biased against
the defendant.
In light of the foregoing, this is not one of the ‘‘ ‘most
extreme of cases’ ’’ in which the constitution requires
a judge to recuse himself or herself. State v. Stanley,
supra, 161 Conn. App. 32–33. Therefore, we conclude
that Judge White did not improperly fail to disqualify
himself from presiding over the defendant’s trial.
IV
The defendant next claims that the court improperly
restricted his ability to cross-examine Herrera concern-
ing the content of certain text messages. Particularly,
the defendant contends that the court violated his con-
frontation clause rights by forbidding him from cross-
examining Herrera regarding text messages exchanged
between Herrera and K concerning Herrera’s ‘‘pending
DUI at the time of the incident, prior violent behavior
. . . and texts that contradicted [Herrera’s] testimony
to the jury.’’ In response, the state contends, among
other things, that the defendant abandoned this claim
at trial. We agree with the state.
We first set forth the undisputed facts and procedural
history relevant to our resolution of this claim. The
defendant’s claim regarding the cross-examination of
Herrera as to text messages exchanged between Her-
rera and K stems from the state’s October 11, 2017
pretrial motion in limine. In that motion in limine, the
state sought to preclude the defendant from introducing
certain text messages between Herrera and K on the
ground that those messages constituted improper
extrinsic evidence to impeach the credibility of Herrera
pursuant to §§ 4-5 and 6-6 of the Connecticut Code of
Evidence. The motion specifically sought to exclude,
inter alia, two categories of text messages concerning
(1) a pending criminal action in New York against Her-
rera stemming from his DUI arrest, his plea negotiations
relating to his DUI, and the fact that he previously had
been pulled over approximately four to five times, and
(2) Herrera’s frustration with his defense counsel in the
New York DUI action and his statement that he ‘‘was
fighting with Jews all day.’’ In the October 11, 2017
motion, the state noted in a footnote that many of the
text messages exchanged between Herrera and K were
of a sexual nature and were the subject of a separate
motion in limine filed on August 7, 2017.
On October 31, 2017, the court heard oral argument
on the state’s October 11, 2017 motion in limine. The
state argued that these text messages should be
excluded because the messages have nothing to do with
Herrera’s credibility and, instead, ‘‘simply show that
you know perhaps he is a bad person.’’ In response,
the defendant argued that the text messages should be
admitted to impeach Herrera and to corroborate the
defendant’s theory that Herrera was a violent person
who was intoxicated at the time of the incident. After
hearing the parties’ arguments, the court orally granted
the state’s motion in limine, without prejudice, holding
that ‘‘these texts are essentially texts for purposes of
impeaching . . . Herrera’s character, saying he’s a bad
guy, or made some inappropriate or derogatory com-
ments.’’
On the first day of trial, the state presented the testi-
mony of Herrera. Prior to the start of the defendant’s
cross-examination of Herrera, and outside the presence
of the jury, the parties again addressed the defendant’s
use of the text messages between Herrera and K. The
state asked that defense counsel abide by the court’s
prior motion in limine ruling as to the admissibility
of the text messages, and defense counsel stated that
‘‘[t]here’s no ruling’’ and indicated that he intended to
question Herrera concerning a set of redacted text mes-
sages. The court stated that, in light of Herrera’s testi-
mony that his relationship with K was flirtatious, it
was going to give the defendant some leeway to cross-
examine Herrera on the nature of his relationship with
K, and that it would take up the issue of text messages
afterward because ‘‘we may not even have to go there
with the texts.’’ The defendant proceeded to start, but
did not finish, his cross-examination of Herrera on the
first day of trial, and he did not question Herrera about
his text messages with K.15
After the close of the first day of evidence and outside
the presence of the jury, defense counsel indicated his
intention to introduce approximately 600 text messages
between Herrera and K, which had been redacted to
‘‘remove any references to the objectionable subject
matters, which had been the subject of some motions
in limine.’’ Defense counsel stated that the purpose of
the text messages was to impeach the credibility of
Herrera with respect to his activities on the night of
the incident, and the nature of his relationship with
K. The state disputed the adequacy of the defendant’s
redactions because some of the salacious messages that
the state moved in limine to exclude had not been
redacted. The court marked the text messages for iden-
tification as exhibit D and indicated that it would take
up the issue before the start of evidence on the next day.
Prior to the start of the second day of evidence and
outside the presence of the jury, the court again heard
arguments on the defendant’s admission of text mes-
sages to impeach Herrera. Preliminarily, defense coun-
sel indicated that he no longer intended to offer any
specific text messages between Herrera and K. Specifi-
cally, defense counsel stated that Herrera’s testimony
‘‘was circumspect if not outright misleading about the
depth of his communications of the volume of his com-
munications. So, my application at this point is simply
that I’m not going to offer any of the specific text mes-
sages between them. I do want the jury to hear, and I
will question him about the volume of text messages
in the five day period preceding this transaction. So,
I—I think that there may be some problems with his
recollection or his accuracy, but I don’t foresee indepen-
dently offering on this witness any of those messages.’’
The state objected to the proposed inquiry concerning
the quantity of text messages because it did not ‘‘see
how the number of text messages between the two of
them impeaches anything that . . . Herrera said yes-
terday.’’ The court stated that, as it previously had indi-
cated, defense counsel could ‘‘impeach on credibility
but you can’t introduce extrinsic evidence,’’ and that it
was going to give defense counsel ‘‘a little bit of leeway
in asking about’’ the quantity of text messages, but that
it was ‘‘not going to let you put in the texts. But you
said you’re not offering them anyway.’’ Defense counsel
responded that he was ‘‘not making an offer. I’m alerting
counsel that I am going to ask this witness about the
volume of his text communication in the five day[s]
preceding this encounter.’’ Finally, the court stated that
it was ‘‘going to give the defense some leeway in that
regard. But at some point I’m going to say that’s
enough,’’ and defense counsel responded that he
‘‘[u]nderstood.’’
During the second day of evidence, defense counsel
resumed his cross-examination of Herrera. Relevantly,
defense counsel asked Herrera: ‘‘I think you said there
was some texting between you and [K] in a period
leading up to [the date of the incident], is that fair?’’
Herrera responded, ‘‘yes.’’ Defense counsel then asked
Herrera, ‘‘[w]ithout going into what any particular text
said or didn’t say, do you recall about how much texting
you did with [K] in, say, the five day period leading up
to this?’’ Herrera responded, ‘‘I don’t recall exactly, but
there was a lot of texting,’’ and that he ‘‘really would
be just guessing’’ at the volume of text messages.
Defense counsel then asked Herrera three questions
regarding the quantity of messages exchanged between
himself and K. First, defense counsel asked if it would
refresh Herrera’s recollection to ‘‘look at . . . a tab of
the texts . . . that went on between you?’’ Second,
defense counsel asked if it was ‘‘fair to say that more
than fifteen hundred texts passed between you and
[K]?’’ Third, defense counsel asked whether Herrera
could ‘‘say with any specificity the number of texts
that’’ passed between him and K. The state objected to
the first two questions without specifying the basis for
the objection and objected to the third question on the
ground of relevancy, and the court sustained each of
the state’s objections. Defense counsel did not ask any
further questions of Herrera regarding his text messages
to K.
A threshold issue is whether the defendant preserved
this claim. He contends on appeal that defense counsel’s
‘‘arguments, objections and the court’s ruling have pre-
served this claim for review,’’ and that, alternatively,
this claim is reviewable under Golding. We disagree
with the defendant that he preserved this claim because,
as outlined previously, the defendant never attempted
to cross-examine Herrera regarding the content of his
text messages and did not raise a confrontation clause
claim with respect to the scope of Herrera’s testimony.
Although the defendant previously opposed the state’s
motion in limine to exclude the text messages on evi-
dentiary grounds, this argument failed to preserve his
confrontation clause claim as to the scope of Herrera’s
testimony. We nevertheless conclude that the first two
prongs of Golding are met and, thus, turn to Golding’s
third prong to determine whether the defendant’s con-
frontation clause violation actually occurred and
deprived the defendant of a fair trial. See State v. Gold-
ing, supra, 213 Conn. 239–40; see In re Yasiel R., supra,317 Conn. 781 (modifying third prong of Golding).
We next set forth legal principles of abandonment
that govern our resolution of this claim. ‘‘It is well set-
tled that a criminal defendant may waive rights guaran-
teed to him under the constitution. . . . [T]he defini-
tion of a valid waiver of a constitutional right . . . [is]
the intentional relinquishment or abandonment of a
known right. . . . When a party consents to or
expresses satisfaction with an issue at trial, claims aris-
ing from that issue are deemed waived and may not be
reviewed on appeal. . . . Additionally, it is well settled
that defense counsel may waive a defendant’s sixth
amendment right to confrontation.’’ (Internal quotation
marks omitted.) State v. Sweet, 214 Conn. App. 679,
695, 280 A.3d 1243, cert. denied, 345 Conn. 920, 284
A.3d 983 (2022). ‘‘A defendant may waive his right of
confrontation . . . either expressly or impliedly by his
deliberate action.’’ (Internal quotation marks omitted.)
State v. Smith, 289 Conn. 598, 621, 960 A.2d 993 (2008).
‘‘Waiver consists of the intentional abandonment or
voluntary relinquishment of a known right . . . . [It]
involves the idea of assent, and assent is an act of
understanding. . . . [W]aiver does not have to be
express, but may consist of acts or conduct from which
waiver may be implied . . . . In other words, waiver
may be inferred from the circumstances if it is reason-
able to do so.’’ (Internal quotation marks omitted.) State
v. Gaskin, 116 Conn. App. 739, 753, 977 A.2d 681, cert.
denied, 294 Conn. 914, 983 A.2d 851 (2009).
‘‘[W]hen a party abandons a claim or argument before
the trial court, that party waives the right to appellate
review of such claim because a contrary conclusion would
result in an ambush of the trial court . . . .’’ (Internal
quotation marks omitted.) State v. McLaughlin, 135
Conn. App. 193, 198, 41 A.3d 694, cert. denied, 307 Conn.
904, 53 A.3d 219 (2012). ‘‘Our appellate courts frequently
have stated that a party may not pursue one course of
action at trial for tactical reasons and later on appeal
argue that the path he rejected should now be open to
him.’’ (Internal quotation marks omitted.) State v. Ful-
ler, 158 Conn. App. 378, 393, 119 A.3d 589 (2015). ‘‘[A]
constitutional claim that has been waived does not sat-
isfy the third prong of the Golding test because, in
such circumstances, we simply cannot conclude that
injustice [has been] done to either party . . . or that
the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial . . . . To
reach a contrary conclusion would result in an ambush
of the trial court by permitting the defendant to raise
a claim on appeal that his or her counsel expressly had
abandoned in the trial court.’’ (Internal quotation marks
omitted.) State v. Sweet, supra, 214 Conn. App. 695.
Our review of the record, and in particular the defen-
dant’s arguments prior to the second day of evidence,
leads us to conclude that the defendant abandoned his
earlier effort to question Herrera regarding the content
of the text messages at trial and, thus, he has waived
this appellate claim.16 Prior to trial, the court granted,
without prejudice, the state’s motion in limine to
exclude certain text messages between Herrera and K.
After the first day of evidence, the defendant, through
defense counsel, expressed an intention to question
Herrera regarding the content of the subject text mes-
sages. Nevertheless, on the morning prior to the second
day of evidence, defense counsel made clear that he
no longer sought to question Herrera regarding the con-
tent of the text messages. Defense counsel expressly
stated that he was ‘‘not going to offer any of the specific
text messages between them,’’ and that he did not ‘‘fore-
see independently offering on this witness any of those
messages.’’ Instead, defense counsel expressed his
intention to question Herrera as to the volume of text
messages between the defendant and K, and the court
permitted him some ‘‘leeway’’ to pursue this avenue
of inquiry over the state’s objection. Then, during the
second day of evidence, defense counsel asked Herrera
as to the amount of text messages he exchanged with
K, and ‘‘[w]ithout going into what any particular text
said or didn’t say, do you recall about how much text-
ing you did with [K] in, say, the five day period leading
up to this?’’ (Emphasis added.) In response, Herrera
testified that there was a fair amount of texting between
them, but he did not recall the exact amount. In accor-
dance with his prior indications, defense counsel did
not ask Herrera regarding the content of the text mes-
sages. The defendant, through his counsel, made the
decision not to question Herrera regarding the text mes-
sages, so he cannot ‘‘later on appeal argue that the
path he rejected should now be open to him.’’ (Internal
quotation marks omitted.) State v. Fuller, supra, 158
Conn. App. 393. In sum, we conclude that the defendant
abandoned this claim and, consequently, it fails the
third prong of Golding.
V
The defendant finally claims that the prosecutor’s
use of the term ‘‘victim’’ during the trial and in closing
argument deprived him of his constitutional right to a
fair trial. The defendant argues that the prosecutor’s
use of the term ‘‘victim’’ fourteen total times, specifi-
cally, nine times during the evidentiary portion of the
trial and five times during closing argument, constituted
prosecutorial impropriety.17 We disagree.
We first set forth the undisputed facts relevant to our
resolution of this claim. The evidentiary portion of the
trial and closing argument spanned six days and culmi-
nated in approximately 900 transcript pages. During the
evidentiary portion of the trial, the prosecutor used the
term ‘‘victim’’ to refer to Herrera on nine occasions,
specifically when questioning the law enforcement per-
sonnel. On the first day of evidence, Mercado testified
on direct examination that when police arrived at the
scene, they ‘‘found the victim, [Herrera], in the kitchen
sitting at a chair.’’ In turn, the prosecutor asked Mercado
the following three questions utilizing the term ‘‘victim’’:
(1) ‘‘Now, while waiting for the EMT or an ambulance,
did you . . . and Officer Mira remain with the victim?’’
(2) ‘‘[D]o you recall how many technicians assisted the
victim, if you recall?’’ And (3) ‘‘were you there when
they were assisting the victim or did you move to
another area at the condo?’’ Also, on the first day of
evidence, Officer Fabio Rodriguez testified that his pur-
pose for being dispatched to Stamford Hospital was
‘‘[t]o stay with the victim at the hospital.’’ The prosecu-
tor then asked Rodriguez two questions using the term
‘‘victim’’: ‘‘What kind of victim?’’ And, ‘‘[d]id you notice
any injuries to [the] victim’s—Mr. Herrera’s thumb, if
you recall?’’ On the second day of evidence, the prosecu-
tor asked Officer Eva Maldonado, who interviewed K
at the Stamford Police Department the day after the
incident, whether she was ‘‘appraised when you were
briefed as to the facts of the case, umm, were you
appraised as to who was the victim in the case?’’ On
the third day of evidence, the prosecutor asked Sergeant
Adrian Novia three questions using the term ‘‘victim’’:
(1) ‘‘Now, while on scene, did you actually meet with
the assault victim?’’ (2) ‘‘[A]nd where was the assault
victim, if you know, when you got on scene?’’ And (3)
‘‘where did you interview [K] after the . . . victim was
taken away by the medics?’’ In response to the second
question to Novia, defense counsel objected to the pros-
ecutor’s use of the terms ‘‘victim’’ and ‘‘assault.’’ The
court sustained the objection, and the prosecutor
rephrased his question to omit those terms. The prose-
cutor did not use the term ‘‘victim’’ for the remaining
evidentiary portion of the trial. After the conclusion of
evidence, the defendant did not move for a mistrial or
a new trial alleging prosecutorial impropriety based on
the prosecutor’s use of the word ‘‘victim,’’ nor did he
request an instruction to the jury concerning the prose-
cutor’s use of the term.
During closing argument, the prosecutor referred to
Herrera as the ‘‘victim’’ on five occasions. In its initial
closing argument, the prosecutor stated: ‘‘You recall
Sergeant Novia’s testimony, that on the evening of the
assault, after the defendant was taken into custody and
after the victim was taken to the hospital, they sat down
with [K], and she had calmed down somewhat and she—
they asked her a number of questions to explain what
she had observed and what had happened.’’ During the
state’s rebuttal closing argument, the prosecutor stated:
‘‘[Y]ou will see . . . that right outside the bathroom
there is blood spatter on the wall, consistent with the
victim’s rendition of facts. You can see it right here.
And this is state’s exhibit 59. You can see it bigger in
the photograph that Officer Rondano said he zoomed
in on, you can see the blood spatter on the wall just
above the molding, and that’s right outside the bath-
room. How is the blood evidence inconsistent with the
victim’s story? There’s blood on the wall right outside
the bathroom. There is, consistent with the victim’s
story, blood right outside the banister, you can see, this
was blown up. And again, [Officer] Rondano [showed
you] the blood drops on the floor. Take a look at this
when you’re in the deliberation room. What does this
show? This supports the victim’s story that he was
whacked over the head, right outside the bathroom,
not in the kitchen.’’
The court repeatedly instructed the jury—prior to
the start of evidence, prior to closing argument, during
defense counsel’s closing argument, and after the con-
clusion of closing arguments—that the argument of
counsel does not constitute evidence, that the jurors
were the sole arbiters of credibility, and that the jurors
must confine themselves to the evidence in the record.
Additionally, the prosecutor began his closing argument
by reminding the jury that ‘‘you are the fact finders
in this case. You find the facts, not me, not [defense
counsel], not Judge White. Your verdict has to be based
on the evidence in the case.’’
We next set forth the relevant legal principles govern-
ing our review of the defendant’s claim.18 ‘‘In analyzing
claims of prosecutorial impropriety, we engage in a two
step analytical process. . . . The two steps are sepa-
rate and distinct. . . . We first examine whether prose-
cutorial impropriety 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 ultimate effect on the fair-
ness of the trial. Whether that impropriety was harmful
and thus caused or contributed to a due process viola-
tion involves a separate and distinct inquiry.’’ (Internal
quotation marks omitted.) State v. Hinds, 344 Conn.
541, 555–56, 280 A.3d 446 (2022); see State v. Johnson,
345 Conn. 174, 215, 283 A.3d 477 (2022) (defendant has
burden to establish both parts of prosecutorial impro-
priety test).
With respect to the first prong, in State v. Warholic,
278 Conn. 354, 370, 897 A.2d 569 (2006), our Supreme
Court held that a prosecutor’s reference to the com-
plainant as the ‘‘victim’’ in closing argument was not
necessarily inappropriate because ‘‘the jury was likely
to understand that the state’s identification of the com-
plainant as the victim reflected the state’s contention
that, based on the state’s evidence, the complainant
was the victim of the alleged crimes.’’ Our Supreme
Court ‘‘caution[ed] the state, however, against making
excessive use of the term ‘victim’ to describe a com-
plainant when the commission of a crime is at issue
because prevalent use of the term may cause the jury
to draw an improper inference that the defendant com-
mitted a crime against the complainant.’’ Id., 370 n.7.
Although ‘‘[t]here is . . . no mathematical formula
that can be applied ritualistically’’ to this type of claim;
State v. Rodriguez, 107 Conn. App. 685, 702, 946 A.2d
294, cert. denied, 288 Conn. 904, 953 A.2d 650 (2008);
our Supreme Court and this court ‘‘repeatedly have
concluded that a prosecutor’s infrequent use of the term
‘victim’ does not constitute prosecutorial impropriety.’’
State v. Johnson, supra, 345 Conn. 217; see, e.g., id.,
216 (prosecutor’s reference to complainant as ‘‘victim’’
on one occasion during examination of witness did not
amount to impropriety); State v. Ciullo, 314 Conn. 28,
55, 59, 100 A.3d 779 (2014) (prosecutor’s reference to
complainants as ‘‘victims’’ on seven occasions during
examination of witnesses in thirteen days of trial and
closing argument was not sufficiently excessive to be
improper); State v. Warholic, supra, 278 Conn. 370 n.7
(prosecutor’s reference to complainant as ‘‘victim’’ on
two occasions during closing argument did not amount
to impropriety); State v. Williams, 200 Conn. App. 427,
438–39, 238 A.3d 797 (prosecutor’s reference to com-
plainant as ‘‘victim’’ on four occasions during closing
argument did not amount to impropriety), cert. denied,
335 Conn. 974, 240 A.3d 676 (2020); State v. Kurrus,
137 Conn. App. 604, 621, 49 A.3d 260 (prosecutor’s refer-
ence to complainant as ‘‘victim’’ on three occasions
during closing argument did not amount to impropri-
ety), cert. denied, 307 Conn. 923, 55 A.3d 566 (2012);
State v. Rodriguez, supra, 107 Conn. App. 701, 703 (pros-
ecutor’s sporadic use of term ‘‘victim’’ during closing
argument did not amount to impropriety).
‘‘On the other hand, when a prosecutor’s references
to a complainant as a ‘victim’ are ‘prevalent and chronic,
[our appellate courts] have determined that such refer-
ences have invaded the propriety of the trial proceed-
ing.’ ’’ State v. Johnson, supra, 345 Conn. 217; see, e.g.,
State v. Thompson, 146 Conn. App. 249, 270–72, 76
A.3d 273 (prosecutor’s use of term ‘‘victim’’ on seven
occasions during examination of witnesses and closing
argument, each of which was subject to timely defense
objection that court promptly sustained without opposi-
tion by state, constituted impropriety), cert. denied, 310
Conn. 956, 81 A.3d 1182 (2013); State v. Albino, 130
Conn. App. 745, 766, 24 A.3d 602 (2011) (when there was
challenge as to whether crime occurred, prosecutor’s
reference to complainant as ‘‘victim’’ on twenty-seven
occasions during examination of witnesses, in conjunc-
tion with twelve references to killing as ‘‘murder’’ and
six references to firearm as ‘‘murder weapon,’’ consti-
tuted impropriety), aff’d, 312 Conn. 763, 97 A.3d 478(2014).
Although we iterate our caution that the state should
refrain from making excessive use of the term ‘‘victim’’
to describe a complainant when the commission of a
crime is at issue, we conclude that the prosecutor’s
use of the term ‘‘victim’’ to refer to Herrera was not
sufficiently prevalent and chronic so as to be
improper.19 The prosecutor’s fourteen uses of that term
were not sufficiently excessive particularly in light of
the fact that the evidentiary portion of the trial and
closing argument spanned six days and culminated in
approximately 900 transcript pages. Additionally, the
majority of the prosecutor’s use of the term ‘‘victim’’
during the evidentiary portion of the trial occurred after
the witnesses first used the term. With the exception of
these fourteen occurrences, the prosecutor consistently
referred to Herrera by his name, his pronouns (he/his/
him), and as an ‘‘individual.’’ During the evidentiary
portion of the trial, the prosecutor only used the term
‘‘victim’’ on the first three days, and the prosecutor did
not use that term to question any of the witnesses after
the court sustained defense counsel’s objection to the
use of the terms ‘‘assault’’ and ‘‘victim.’’ During closing
argument, the prosecutor’s use of the term ‘‘victim’’ was
not improper because the jury would understand that
it was based on evidence presented and on the state’s
argument that the defendant had committed the crimes
charged. See State v. Rodriguez, supra, 107 Conn. App.
703 (use of word ‘‘victim’’ by prosecutor during closing
argument was nothing more than permissible rhetorical
device, based on state’s view of evidence).
Furthermore, the prosecutor’s use of the term ‘‘vic-
tim’’ did not rise to the level of egregiousness that this
court has determined to be improper in Thompson and
Albino. In State v. Thompson, supra, 146 Conn. App.
270–72, this court held that the prosecutor’s use of the
term ‘‘victim’’ on seven occasions during examination
of the witnesses and in closing argument, each of which
was subject to a timely defense objection that the court
promptly sustained without opposition by the state,
was improper. More specifically, this court rejected the
state’s ‘‘argument that such references were not
improper because there were too few of them to consti-
tute excessive use, within the meaning of Warholic,
ignores the important distinguishing fact that the trial
court had repeatedly ruled them to be improper and
instructed the prosecutor not to use them, yet the prose-
cutor, unaccountably even to herself, could not restrain
herself from repeating them.’’ Id., 271. Here, unlike in
Thompson, the court never ruled that the use of the
term ‘‘victim,’’ by itself, was improper, never instructed
the prosecutor not to use the term, and the prosecutor
did not continue to use the term in violation of the
court’s rulings. Instead, there was only one objection
by defense counsel to the prosecutor’s use of the terms
‘‘assault’’ and ‘‘victim,’’ the court sustained the objec-
tion, the prosecutor rephrased the question, and the
prosecutor did not use the terms throughout the
remaining three days of evidence.
In State v. Albino, supra, 130 Conn. App. 766, this
court held that the prosecutor’s reference to the com-
plainant as ‘‘victim’’ on twenty-seven occasions during
the examination of witnesses, in conjunction with
twelve references to killing as ‘‘murder’’ and six refer-
ences to firearm as ‘‘murder weapon,’’ was improper.
In the present case, there were fourteen references
to the term ‘‘victim,’’ far less than the twenty-seven
references at issue in Albino. Additionally, the defen-
dant’s challenge in the present appeal is limited to the
prosecutor’s use of the term ‘‘victim,’’ and does not
include any additional terms. In sum, we conclude that
the prosecutor’s use of the term ‘‘victim’’ on fourteen
occasions was not improper.
Even if we were to assume that each of these uses
of the term ‘‘victim’’ by the prosecutor was improper,
we cannot conclude that the defendant satisfied his
burden of demonstrating that those improprieties were
so egregious as to amount to a denial of due process.
‘‘To aid us in determining whether prosecutorial impro-
priety so infected the proceedings with unfairness as
to deprive a defendant of a fair trial, [our appellate
courts apply] the factors set forth in State v. Williams,
204 Conn. 523, 540, 529 A.2d 653 (1987). These factors
include: the extent to which the [impropriety] was
invited by defense conduct or argument . . . the sever-
ity of the [impropriety] . . . the frequency of the
[impropriety] . . . the centrality 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.’’ (Internal quotation marks omitted.)
State v. Hinds, supra, 344 Conn. 563–64.
Applying the Williams factors, we conclude that the
alleged improprieties did not deprive the defendant of
a fair trial. First, the impropriety was not invited by
defense counsel. Second, we do not view the alleged
improprieties as severe primarily because defense
counsel objected to the prosecutor’s use of the term
‘‘victim’’ only on the eighth of the fourteen occasions,
which suggests that defense counsel did not perceive
the term as being severe. See id., 564 (defense counsel’s
failure to object to allegedly improper comments was
strong indication that those comments were not so egre-
gious to rise to level of constitutional violation). Addi-
tionally, this court in Albino held that the prosecutor’s
use of the term ‘‘victim’’ on twenty-seven occasions was
not so severe as to deprive the defendant of a fair trial;
State v. Albino, supra, 130 Conn. App. 766, 778; whereas
the prosecutor in the present case used the term ‘‘vic-
tim’’ fourteen times. Third, as explained previously, the
use of the term ‘‘victim’’ was not frequent when com-
pared to the entirety of the trial, which was six days
and culminated in approximately 900 transcript pages.
See id., 779 (prosecutor’s use of term ‘‘victim’’ twenty-
seven times, although sufficient to constitute an impro-
priety, did not satisfy third Williams factor because
uses of term ‘‘were infrequent when compared to the
entirety’’ of two week trial and 1000 pages of transcript).
Fourth, although neither party takes a position on this
factor, we conclude that the alleged impropriety was
central to the critical issue in the case, namely, whether
Herrera was the victim of an assault or an intruder,
allegedly justifying the defendant’s use of self-defense.
See id. (use of term ‘‘victim’’ by prosecutor was central
to critical issue of case, specifically whether defendant
was acting in self-defense).
Fifth, no curative instructions as to the prosecutor’s
use of the term ‘‘victim’’ were adopted; however, this
can be attributed ‘‘to [defense counsel’s] failure to
object or request any curative instruction from the
court.’’ (Internal quotation marks omitted.) State v.
Hinds, supra, 344 Conn. 564; see State v. Albino, supra,
130 Conn. App. 780 (‘‘defense counsel has a responsibil-
ity to call perceived prosecutorial improprieties to the
attention of the court’’ and, thus, ‘‘the court did not
adopt, nor have the opportunity to consider whether
to adopt, specific curative measures’’). Nevertheless,
the court repeatedly instructed the jury—prior to the
start of evidence, prior to closing argument, during
defense counsel’s closing argument, and after the con-
clusion of closing arguments—that the argument of
counsel does not constitute evidence, that the jurors
were the sole arbiters of credibility, and that the jurors
must confine themselves to the evidence in the record.
These general instructions were more than adequate to
counteract any harm resulting from the alleged impro-
prieties. See State v. Hinds, supra, 564; State v. Albino,
supra, 781. Additionally, the prosecutor began his clos-
ing argument by informing the jury that it was the fact
finder, not him, not defense counsel, and not Judge
White.
Sixth, we conclude that the state’s case was strong
because there was an abundance of compelling evi-
dence supporting the state’s first degree assault
charge.20
The evidence established that the defendant sent K
several threatening text messages just prior to her
arrival with Herrera at the condominium, stating ‘‘[y]our
very selfish, what goes around comes around,’’ and
‘‘[l]augh now, cry later & I won’t feel sorry this time.’’
After K and Herrera arrived at the condominium, the
defendant suddenly and violently attacked Herrera with
a saw for three to four minutes while the defendant
shouted: ‘‘This is what you get, this is what you get,
this is what you get for fucking my girlfriend.’’ The
defendant never disputed that he repeatedly struck Her-
rera with the saw; rather, the defendant’s theory was
that he was acting in self-defense because Herrera initi-
ated the confrontation. The defendant’s self-defense
claim was weak because it was founded entirely on K’s
account at trial that Herrera took two steps toward the
defendant with both of his arms bent in front of him
at the elbows. Furthermore, K’s testimony drastically
contrasted with her description of the incident in her
911 call and to the investigating police officers, in which
K told officers that the defendant came out of nowhere
and attacked Herrera with a saw. Finally, although the
jury deliberated for five days, their deadlock was on
the unlawful entry element of the first degree burglary
and home invasion charges that resulted in a mistrial,
not the assault charge.
In sum, we conclude that the alleged improprieties
did not deprive the defendant of a fair trial. Therefore,
we reject the defendant’s claim that the prosecutor’s
use of the term ‘‘victim’’ during the trial and closing
argument deprived him of his constitutional right to a
fair trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
As subsequently explained, the defendant also was tried on the charges
of burglary in the first degree in violation of General Statutes § 53a-101 (a)
(2), and home invasion in violation of General Statutes § 53a-100aa (a) (2).
The court declared a mistrial on those two charges after the jury was unable
to reach a unanimous verdict.
2
For ease of discussion, we address the defendant’s claims in a different
order than they are presented in his principal appellate brief.
3
In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018), as
amended by the Violence Against Women Act Reauthorization Act of 2022,
Pub. L. No. 117-103, § 106, 136 Stat. 49, 851; we decline to identify any person
protected or sought to be protected under a protection order, protective
order, or a restraining order that was issued or applied for, or others through
whom that person’s identity may be ascertained.
4
At the time of trial in November, 2017, the defendant and K were engaged
to be married.
5
This court sua sponte raised at oral argument the issue of whether the
defendant’s claim that the court incorrectly denied his motion to dismiss
the first degree burglary and home invasion charges was moot because a
mistrial was entered on those counts. In response, both parties contended
that this claim was not moot. An appeal from the denial of a motion to
dismiss may become moot if the state’s ability to recharge the defendant
has been foreclosed, for instance, if the original charges were nolled and
the statute of limitations had expired; see State v. Owen, 331 Conn. 658,
664 n.5, 207 A.3d 17 (2019); State v. Williams, 106 Conn. App. 323, 327, 941
A.2d 985, cert. denied, 287 Conn. 908, 950 A.2d 1287 (2008), cert. denied,
556 U.S. 1153, 129 S. Ct. 1683, 173 L. Ed. 2d 1038 (2009); or if the jury finds
the defendant guilty of the charges. See State v. Ward, 306 Conn. 698, 713,
52 A.3d 591 (2012). Neither of these circumstances are present here because
the state, as it represented at oral argument before this court, has the ability
to recharge the defendant with first degree burglary and home invasion.
Therefore, we agree with the parties that the defendant’s claim is not moot.
6
We pause to resolve a discrepancy stemming from the August 7, 2017
information and the October 23, 2017 information. As noted previously,
count two of the August 7, 2017 information charged the defendant with a
violation of § 53a-101 (a) (3), whereas count two of the October 23, 2017
information charged the defendant with a violation of § 53a-101 (a) (2). The
August 7, 2017 information was operative for purposes of the defendant’s
motion to dismiss, and, despite the parties’ representations in their appellate
briefs to the contrary, it is apparent from the record that the October 23,
2017 information was operative for purposes of trial.
7
It is unclear from the record whether K’s text messages to the defen-
dant—in which K requested that the defendant return his keys and instructed
him that he no longer lived there—occurred prior to, during, or after the
defendant’s visit to the condominium with K’s family on the day before the
crime. Viewing the evidence in the light most favorable to the state, as we
are required to do when reviewing a court’s decision on a pretrial motion
to dismiss; State v. Pelella, 327 Conn. 1, 18–19, 22 n.17, 170 A.3d 647 (2017);
we will assume for purposes of our analysis that the text messages occurred
after the defendant had left the condominium that day.
8
After the state rested its case at trial, defense counsel orally moved to
dismiss the first degree burglary and home invasion charges on the same
ground. The court denied defense counsel’s oral motion. On appeal, the
defendant does not challenge the propriety of the court’s denial of the oral
motion to dismiss.
9
General Statutes § 54-56 provides that ‘‘[a]ll courts having jurisdiction
of criminal cases shall at all times have jurisdiction and control over informa-
tions and criminal cases pending therein and may, at any time, upon motion
by the defendant, dismiss any information and order such defendant dis-
charged if, in the opinion of the court, there is not sufficient evidence or
cause to justify the bringing or continuing of such information or the placing
of the person accused therein on trial.’’
10
Practice Book § 41-8 provides in relevant part: ‘‘The following defenses
or objections, if capable of determination without a trial of the general issue,
shall, if made prior to trial, be raised by a motion to dismiss the information
. . . (5) Insufficiency of evidence or cause to justify the bringing or continu-
ing of such information or the placing of the defendant on trial . . . .’’
11
The defendant recognizes in his principal appellate brief that ‘‘[t]here
is a well-developed body [of] law interpreting . . . § 53a-100 (b), as well
as its application to the separate acts of unlawful entry and unlawful remain-
der in dwellings as they relate to the burglary and home invasion statutes.’’
Nevertheless, the defendant primarily relies on summary process statutes;
see General Statutes § 47a-23 et seq.; and landlord tenant statutes; see Gen-
eral Statutes § 47a-43 et seq.; to contend that he had the ‘‘legal authority’’
to be inside the condominium because K had not formally evicted him. The
defendant in his appellate reply brief states that, ‘‘[a]lthough the defendant
agrees that these [statutes] are not controlling, it is certainly worthwhile to
consider when determining whether the defendant, as a matter of law, could
have been unlawfully occupying the premises.’’ We are not persuaded by
this argument and, instead, we apply our established criminal precedents
to determine whether the defendant was ‘‘licensed or privileged’’ to enter
the condominium at the time of the incident. See General Statutes § 53a-
100 (b).
12
The defendant further contends that he made a request to present testi-
mony in support of his motion to dismiss in his November 4, 2016 motion
for hearing in advance of trial. The defendant, however, represented in that
motion that ‘‘[i]t is likely that no evidence or live testimony will be necessary
in order for the court to adjudicate the issues raised in the motion to dis-
miss.’’
13
We note that the factual predicate of the defendant’s claim is not as
grave as he presents it. Of the twenty-four times that the defendant contends
that the court used the term ‘‘victim,’’ the court used the phrase ‘‘alleged
victim’’ nine of those times and the phrase ‘‘female victim,’’ presumably to
refer to K, two of those times.
14
The defendant also urges this court to adopt the rationale of the dissent
in State v. D’Antonio, 274 Conn. 658, 877 A.2d 696 (2005), in which Justice
Katz concluded, in contrast to the majority, that a violation of the Niblack rule
was structural error and, thus, harmless error analysis was inappropriate.
Id., 722 (Katz, J., dissenting); see State v. Niblack, 220 Conn. 270, 280, 596
A.2d 407 (1991) (establishing nonconstitutional rule that it is improper for
trial judge to preside over defendant’s trial after having participated actively
in unsuccessful plea negotiations in case). We decline to adopt the rationale
of Justice Katz’ dissent because Niblack is not implicated in the present
case and it is axiomatic that we cannot accept the rationale of the dissent
because we are bound by the majority’s decision in D’Antonio. See State
v. Hurdle, 217 Conn. App. 453, 475, 288 A.3d 675 (explaining that Appellate
Court is bound by, and cannot overrule or discard, decisions of our Supreme
Court), cert. granted, 346 Conn. 923, A.3d (2023).
15
Defense counsel, however, did ask Herrera: ‘‘In the week prior to this
tragedy, describe your relationship with [K]. Was it something where you
were socializing with her? Were you arranging a date with her? Were you
giving her employment advice? Were you mentoring [her]? What’s the best
[way] to understand it?’’ Herrera responded: ‘‘I can’t recall a specific week
two and a half years ago. I’m sorry, I can’t answer that question.’’
16
To be clear, the defendant does not challenge on appeal the court’s
evidentiary rulings excluding certain text messages and sustaining the state’s
objections to his last three questions as to the volume of text messages.
Instead, he argues that his confrontation clause rights were violated because
he was prohibited from questioning Herrera regarding the content of these
text messages, including Herrera’s DUI, Herrera’s comments about defense
counsel in the DUI case, and the sexual nature of Herrera’s relationship
with K. In his appellate reply brief, the defendant did not address the state’s
argument that he abandoned this claim.
17
In his appellate brief, the defendant supports his prosecutorial impropri-
ety claim with reference to three categories of statements: (1) the prosecu-
tor’s use of the term ‘‘victim’’ at least four times during pretrial hearings;
(2) the prosecutor’s use of the term ‘‘victim’’ at least twenty times in front
of the jury; and (3) the witnesses’ use of the term ‘‘victim’’ an unspecified
number of times.
First, we summarily reject the defendant’s reliance on the first category
of statements because they were made by the prosecutor in pretrial hearings
outside the presence of the jury and, accordingly, cannot serve as the basis
for his prosecutorial impropriety claim. See State v. Warholic, supra, 278
Conn. 370 n.7 (explaining that reason prosecutor’s use of term ‘‘victim’’
could support prosecutorial impropriety claim is because jury could under-
stand that state was expressing its personal opinion that defendant had
victimized complainant).
Second, with respect to the second category of statements, at oral argu-
ment before this court, the defendant represented that the state, in its
appellee brief, adequately had identified each of the times the prosecutor
used the term ‘‘victim’’ to refer to Herrera in front of the jury. We construe
defense counsel’s representations as accepting the state’s recitation of the
fourteen times that the prosecutor used the term ‘‘victim’’ to refer to Herrera
as the basis for his claim.
Third, the defendant at oral argument before this court abandoned the
aspect of his claim based on the third category of statements.
18
As an initial matter, we agree with both parties that it is immaterial
whether the defendant’s one objection to the prosecutor’s use of the term
‘‘victim’’ preserved his prosecutorial impropriety claim because ‘‘under set-
tled law, a defendant who fails to preserve claims of prosecutorial [impropri-
ety] need not seek to prevail under the specific requirements of State v.
Golding, [supra, 213 Conn. 239–40], and, similarly, it is unnecessary for a
reviewing court to apply the four-pronged Golding test.’’ (Internal quotation
marks omitted.) State v. Hinds, 344 Conn. 541, 555 n.7, 280 A.3d 446 (2022).
‘‘The reason for this is that the defendant in a claim of prosecutorial miscon-
duct must establish that the prosecutorial misconduct was so serious as to
amount to a denial of due process . . . .’’ (Internal quotation marks omit-
ted.) State v. Darryl W., 303 Conn. 353, 375 n.19, 33 A.3d 239 (2012).
19
The state does not contest on appeal that the commission of a crime,
specifically the defendant’s assault of Herrera, was at issue. At trial, the
defendant’s theory of the case was that he acted in self-defense because
Herrera initiated the physical confrontation. Thus, despite the fact that the
defendant did not dispute that Herrera sustained significant physical injuries
during the incident, it was a question of fact whether those injuries were
the result of actions taken by the defendant in self-defense or whether they
were the result of criminal activity. See State v. Albino, supra, 130 Conn.
App. 766 (commission of crime at issue where ‘‘there is no doubt that a
homicide occurred and that the defendant was the person who caused it
to occur, and the only question for the jury is whether the homicide was
justified’’ based on defendant’s theory of self-defense (footnote omitted)).
20
As for the sixth factor, the defendant argues in full: ‘‘The final factor,
the strength of the case, weighs in favor of the defendant. The jury had
before it evidence that [Herrera] took the initial steps towards the defendant.
Similarly, the defendant stayed at the scene while police arrived. This was
not a slam dunk case for the state.’’