State v. Silva

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STATE OF CONNECTICUT v. JOSEPH SILVA
(SC 20266)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
Pursuant to statute (§ 53a-54b (7)), a person is guilty of murder with special
circumstances when such person is convicted of ‘‘murder of two or
more persons at the same time or in the course of a single transaction’’
and was eighteen years of age or older at the time of the offense.
Convicted, after a jury trial, of the crime of murder with special circum-
stances in connection with the shooting deaths of A and J, the defendant
appealed to this court, claiming, inter alia, that the trial court had incor-
rectly instructed the jury on the ‘‘in the course of a single transaction’’
element of murder with special circumstances, thereby relieving the
state of its burden of proving that element beyond a reasonable doubt.
On the night of the murders, the defendant, along with passengers O
and R, drove around in the defendant’s car looking for J, with whom
the defendant had a feud. Upon finding J sitting in the driver’s seat of
A’s car, the defendant stopped, exited his car, and walked toward J,
who had exited A’s car. When the defendant reached J, he shot him
two times and then walked to A’s car and fired multiple shots at A,
who was seated in the front passenger seat. The operative information
charged the defendant with having committed the murders in the course
of a single transaction but not at the same time. At trial, the defendant
presented a third-party culpability defense implicating O in the murders.
Specifically, defense counsel argued during closing argument that only
O had the motive, means and opportunity to murder A and J. The trial
court instructed the jury, with respect to the ‘‘in the course of a single
transaction’’ element of murder with special circumstances, that, to
prove that element, the state was required to establish beyond a reason-
able doubt either that there was a temporal nexus between the murders
of A and J or that there was a plan, motive, or intent common to both
murders. Defense counsel did not object to that instruction. Held:
1. The defendant did not implicitly waive his unpreserved claim of instruc-
tional error under State v. Kitchens (299 Conn. 447); although the trial
court provided the parties with a copy of its revised jury charge and
defense counsel did not object to the court’s instruction on murder with
special circumstances, that court, under the circumstances of this case,
did not provide the parties with a meaningful opportunity to review a
change that it had made to the instruction on the ‘‘in the course of a
single transaction’’ element of murder with special circumstances prior
to charging the jury.
2. The defendant could not prevail on his unpreserved claim that the trial
court had incorrectly instructed the jury that, if it found that there was
a temporal nexus between the two murders, it could find that the state
had proven the ‘‘in the course of a single transaction’’ element: contrary
to the defendant’s assertion, this court did not hold in State v. Gibbs
(254 Conn. 578) that evidence of a common plan, motive, or intent is
required to prove that multiple murders occurred in the course of a
single transaction but held that a temporal connection alone is sufficient
to satisfy the ‘‘in the course of a single transaction’’ element and that,
in the absence of a temporal connection, evidence of a common plan,
motive, or intent is sufficient to demonstrate a clear connection between
multiple murders and to establish that those murders occurred in the
course of a single transaction; accordingly, the trial court properly
instructed the jury that it could find the ‘‘in the course of a single
transaction’’ element proven by evidence of a temporal nexus between
the murders of A and J, and, therefore, the defendant’s claim of instruc-
tional error failed under the third prong of State v. Golding (213
Conn. 233).
3. The trial court did not commit plain error by failing to provide the jury,
sua sponte, with a special credibility instruction with respect to the
testimony of O, who the defendant claimed was the actual perpetrator
of the murders of A and J, and, thus, had a strong motive to testify falsely
against him: even if the defendant had requested such an instruction,
it would not have been plain error for that court to have declined to
provide it, as this court has not endorsed, let alone required, such an
instruction; moreover, the trial court instructed the jury on O’s credibility
generally, and defense counsel, during cross-examination and closing
argument, highlighted for the jury O’s motivations for testifying falsely,
including the defense’s theory that O was the actual perpetrator of
the murders.
4. The defendant could not prevail on his unpreserved claim that the trial
court had violated his constitutional rights to counsel and to present
a defense by precluding defense counsel from arguing during closing
argument that the absence of testimony from V, O’s best friend, created
reasonable doubt: the trial court reasonably determined that defense
counsel was making an improper missing witness argument rather than
raising a significant issue or making appropriate comment about V’s
absence at trial to the extent that V’s absence reflected on the weakness
of the state’s case, as V was not a witness to the murders of A and J
and, thus, could not corroborate or dispute the version of events to which
various witnesses testified, and there was ample testimony, without the
need to discuss V’s absence, from which defense counsel could argue
to the jury that O had a stronger motive than the defendant, as well as
the means and opportunity, to murder A and J; accordingly, the trial
court reasonably exercised its discretion in limiting the scope of defense
counsel’s closing argument to prevent comment on facts that were not
in evidence, and, therefore, the defendant’s claim failed under the third
prong of Golding.
Argued January 12—officially released July 15, 2021*
Procedural History
Substitute information charging the defendant with
two counts of the crime of murder and one count of the
crime of murder with special circumstances, brought
to the Superior Court in the judicial district of Hartford
and tried to the jury before Gold, J.; verdict and judg-
ment of guilty; thereafter, the court vacated the convic-
tion of two counts of murder, and the defendant
appealed to this court. Affirmed.
Mark Rademacher, assistant public defender, for the
appellant (defendant).
Jonathan M. Sousa, deputy assistant state’s attorney,
with whom, on the brief, were Sharmese L. Walcott,
state’s attorney, Gail P. Hardy, former state’s attorney,
and Robin D. Krawczyk, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
KELLER, J. Following a jury trial, the defendant,
Joseph Silva, was convicted of two counts of murder
in violation of General Statutes § 53a-54a (a)1 and one
count of murder with special circumstances in violation
of General Statutes § 53a-54b (7).2 The trial court
vacated the conviction on the murder counts3 and
imposed a mandatory sentence under General Statutes
§ 53a-35a (1) (B) of life imprisonment without the possi-
bility of release on the murder with special circum-
stances count. The defendant appealed directly to this
court pursuant to General Statutes § 51-199 (b) (3). On
appeal, the defendant claims that the trial court (1)
incorrectly instructed the jury on the ‘‘in the course of
a single transaction’’ element of murder with special
circumstances, (2) improperly failed to provide the jury,
sua sponte, with a special credibility instruction with
respect to one of the state’s witnesses, who the defen-
dant claimed was the actual perpetrator of the murders,
and (3) violated his state and federal constitutional
rights to counsel and to present a defense by precluding
defense counsel from making an argument in closing
argument that the absence of testimony from a certain
witness created reasonable doubt. We disagree and,
accordingly, 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. On May 16, 2016, the defendant shot and killed
the victims, Joshua Cortez and Alysha Ocasio, at the
intersection of Campfield Avenue and Cowles Street in
Hartford. The defendant and Cortez had a preexisting
feud due in part to the fact that, when Cortez worked for
the defendant selling marijuana, he had sold customers
fake marijuana, prompting customers to complain to
the defendant, and because Cortez’ friend, Juan Gomez,
had had sex with Coraima Velez, with whom the defen-
dant had a child, after Cortez introduced them to each
other. As a result, on the night of May 16, 2016, the
defendant, joined by passengers Kailei Opalacz, with
whom he had been in an on-and-off relationship for
several years, and Josue Rodriguez, his friend, drove his
car around Hartford looking for Cortez. The defendant
found Cortez sitting in the driver’s seat of Ocasio’s
Honda Accord by the intersection of Campfield Avenue
and Cowles Street. The defendant stopped and exited
his car and walked toward Cortez, who had exited the
Accord. When the defendant reached Cortez, he shot
him twice, once in the face and once in the top of his
head. The defendant then walked over to the driver’s
side of the Accord and fired multiple shots at Ocasio,
who was seated in the front passenger seat.
After shooting the two victims, the defendant ran
back to his car, climbed into the driver’s seat, and said
to Opalacz and Rodriguez, ‘‘That’s how Joseph Silva
does it’’ and ‘‘I can’t believe I just did that . . . .’’ While
speeding away from the murder scene, on a sharp left
turn, the front right wheel of the defendant’s car
detached, immobilizing the car. Opalacz called her best
friend, Nyasia Villegas, and told her to come pick them
up, which Villegas did immediately. Villegas then drove
them to the home of the defendant’s mother on Mon-
trose Street in Hartford, where the defendant exited
the car and hid the murder weapon under a pile of
wood at the rear of the property. The group then drove
to a Walmart store in Manchester, where the defendant
bought a shirt and a pair of pants, which he changed into
in the store’s bathroom. During the drive to Walmart,
the defendant described for the other passengers how
he had killed Cortez and Ocasio. The defendant
explained that, after he exited his car and approached
Cortez, he said to Cortez, ‘‘what up, nigga, what up,’’
before shooting him in the face. The defendant placed
his fingers on Villegas’ forehead to demonstrate how
he shot Cortez in the head. The defendant then
described how he then walked over to Ocasio’s Accord,
opened the door, and shot her in the chest.
On the way back from Walmart, the car was stopped
and searched by Hartford police officers, and the pas-
sengers were taken to the Hartford police station for
questioning. During questioning, Opalacz, Villegas, and
Rodriguez all provided statements implicating the
defendant in the victims’ murders. The following morn-
ing, Hartford police officers searched the property of
the defendant’s mother and found the murder weapon
where the defendant had concealed it the night before.
The defendant was arrested and charged with two
counts of murder and one count of murder with special
circumstances.4
At trial, the defendant presented a third-party culpa-
bility defense implicating Opalacz, arguing that she,
rather than he, had murdered the victims. Specifically,
the defendant adduced evidence that Opalacz and Velez,
the mother of his child, had engaged in an escalating
feud for the defendant’s affections and that Ocasio,
Velez’ best friend, Ocasio’s boyfriend, Cortez, and Vil-
legas had all become embroiled in that feud. As a result
of the feud, a week or so before the murders, Velez’
brother had smashed the rear window of Opalacz’ Nis-
san Altima with a baseball bat and an unidentified indi-
vidual threw a rock out of Ocasio’s Accord toward
Opalacz’ Altima. In retaliation, Opalacz and Villegas
drove to Ocasio’s Accord, and Villegas fired a BB gun
at it, damaging the rear, driver’s side window. The
defendant also elicited testimony from Villegas that the
defendant and Opalacz each had paid one half of the
purchase price for the murder weapon and that, on May
16, 2016, the night of the murders, Opalacz had held
that weapon before leaving with the defendant and
Rodriguez to drive around Hartford looking for Cortez.
On the basis of this evidence, defense counsel argued
during closing argument that Opalacz alone had the
motive, means, and opportunity to kill the victims. The
jury rejected that defense and found the defendant
guilty on all counts. The trial court thereafter rendered
judgment in accordance with the jury’s verdict, vacated
the conviction on the murder counts; see footnote 3 of
this opinion; and imposed a sentence of life imprison-
ment without the possibility of release. This appeal
followed. Additional facts and procedural history will
be set forth as necessary.
On appeal, the defendant claims that the trial court
(1) incorrectly instructed the jury that, if it found that
there was a temporal nexus between the two murders,
it could find that the state has proved the ‘‘in the course
of a single transaction’’ element of murder with special
circumstances, (2) improperly failed to provide the jury,
sua sponte, with a special credibility instruction con-
cerning Opalacz’ testimony in light of the evidence
implicating her in the victims’ murders, and (3) violated
his state and federal constitutional rights to counsel
and to present a defense by precluding defense counsel
from arguing in closing argument that Velez’ absence
as a witness at trial created reasonable doubt. Because
the defendant’s claims are unpreserved, he seeks review
pursuant to State v. Golding, 213 Conn. 233, 567 A.2d
823 (1989), as modified by In re Yasiel R., 317 Conn.
773, 781, 120 A.3d 1188 (2015),5 or, alternatively, for
plain error.6 We conclude that the defendant’s first and
third claims are reviewable under Golding but that his
second claim is reviewable only for plain error. For the
reasons set forth hereinafter, we reject all three claims.
I
The defendant first claims that the trial court incor-
rectly instructed the jury as to the ‘‘in the course of
a single transaction’’ element of murder with special
circumstances, thereby relieving the state of its burden
of proving that element beyond a reasonable doubt.
Specifically, the defendant argues that, under § 53a-
54b (7), the state can prosecute murder with special
circumstances in one of two ways: (1) by proving that
the murders took place at the same time, or (2) by
proving that they took place in the course of a single
transaction. The defendant further argues that, under
State v. Gibbs, 254 Conn. 578, 606, 758 A.2d 327 (2000),
the state cannot prove that the murders occurred in
the course of a single transaction by evidence of a
temporal connection alone but, rather, must establish
that he ‘‘possessed a plan, motive, or intent common
to [both] murders.’’ (Internal quotation marks omitted.)
Because the court instructed the jury that it could find
the single transaction element proven by either evi-
dence of a temporal connection or a common plan,
motive, or intent, the defendant argues that the jury
was misled and ‘‘almost certainly’’ chose to find the
element satisfied by evidence of a temporal connection
because that was ‘‘the easier, more direct route to con-
viction,’’ which allowed the jurors to ‘‘avoid the difficult
question’’ of the defendant’s common motive or plan
for killing both Cortez and Ocasio, or whether he even
had such a common motive or plan. The defendant
finally argues that, because the state charged him with
murder of two people ‘‘in the course of a single transac-
tion,’’ rather than ‘‘at the same time,’’ and because the
jury was instructed that it could find him guilty on the
basis of a temporal connection alone, ‘‘[t]he court’s
instructions on murder with special circumstances
effectively enlarged count three of the information,
allowing him to be convicted of a crime with which he
had never been charged . . . .’’
In response, the state argues that the defendant’s
claim fails under the third prong of Golding because
(1) it was waived implicitly under State v. Kitchens,
299 Conn. 447, 10 A.3d 942 (2011),7 and (2) the court’s
charge accurately instructed the jury that the single
transaction element is proven by evidence of ‘‘some
‘clear connection’ or ‘logical nexus’ between the two
[murders],’’ and, contrary to the defendant’s assertion,
evidence of either a temporal connection or a common
plan, motive, or intent is sufficient to prove that ele-
ment. Specifically, the state argues that, contrary to the
assertion of the defendant, ‘‘the phrase, ‘at the same
time or in the course of a single transaction,’ does not
describe two conceptually distinct alternative acts but,
rather, provides two different descriptions of the same
prohibited conduct—the commission of multiple mur-
ders that are logically connected through time, place,
motive, common plan, or a combination of many fac-
tors.’’ We conclude that the defendant’s claim is review-
able under Golding because the record is adequate and
it is of constitutional magnitude. See, e.g., State v. Floyd,
253 Conn. 700, 706–707, 756 A.2d 799 (2000) (defen-
dant’s claim that trial court improperly instructed jury
on essential elements of crime of accessory murder
implicated his due process right to fair trial and, thus,
satisfied second prong of Golding). We further con-
clude that, although the defendant did not waive his
instructional error claim under Kitchens, he cannot pre-
vail on that claim because the trial court correctly
instructed the jury that it could find the single transac-
tion element proven with evidence of a temporal con-
nection between the victims’ murders.
The following additional procedural history is rele-
vant to this claim. On October 26, 2018, the third to last
day of evidence, the court summarized on the record
an in-chambers charging conference it had conducted
with the parties earlier that day. During its summary,
the court noted that the state’s long form information
charged the defendant with committing two murders
only ‘‘in the course of a single transaction,’’ not ‘‘at
the same time,’’ and that it would limit its instruction
accordingly. On the afternoon of Saturday, October 27,
2018, the court sent the parties its proposed jury charge.
When trial reconvened on the following Monday, the
court stated that, since sending the parties the proposed
charge, it had made several changes to it and intended
to discuss them with the parties during a free moment.
For the remainder of that Monday, however, no such
free moment presented itself, and the court did not
provide the parties with a copy of its proposed changes.
On the morning of Tuesday, October 30, the court pro-
vided the parties with a revised copy of a proposed jury
charge containing its changes to the proposed charge
it had sent the parties over the weekend. Prior to the
court’s morning recess, the state presented its final
witness, the court read the parties’ stipulations to the
jury, and then the state rested. Thereafter, the defense
made an oral motion for a judgment of acquittal, which
the court denied, the defendant was canvassed on his
decision not to testify, and then the defense rested. The
court then took its morning recess, during which it
discussed with the parties the changes it had made
to its prior proposed jury charge. With respect to the
instruction for murder with special circumstances, the
court noted that, in defining the single transaction ele-
ment, it had ‘‘augmented some of the language from the
standard charge’’8 in accordance with State v. Campbell,
328 Conn. 444, 180 A.3d 882 (2018), which ‘‘indicates
that to be in the course of a single transaction the state
is required to prove it was either a temporal nexus,
that is, a continuity between the two murders based on
time, or a common plan, motive, or intent.’’9 (Emphasis
added.) After the morning recess, the parties presented
their closing arguments, which were followed by the
luncheon recess. The court invited the parties to review
the changes it had made to its prior proposed charge
during that luncheon recess.
Following the luncheon recess, the state made its
rebuttal argument, followed immediately by the court’s
charge to the jury. When instructing the jury on the
single transaction element of murder with special cir-
cumstances, the court stated: ‘‘The second element of
murder with special circumstances is that . . . two
murders . . . occurred in the course of a single trans-
action. . . . [I]n order to prove that the two murders
occurred in the course of a single transaction, the state
must prove beyond a reasonable doubt either that there
was a temporal nexus between the murders of . . .
Cortez and . . . Ocasio, that is, a continuity between
them based on time, or that there was a plan, motive,
or intent common to both murders. If you find beyond
a reasonable doubt that the state has proven that the
defendant committed two murders as part of a single
course of conduct with a clear connection, then you
shall find this element of murder with special circum-
stances to have been proven.’’ (Emphasis added.)
Defense counsel did not object to the court’s instruction
on murder with special circumstances.
As an initial matter, we conclude that, under the
circumstances of this case, the court did not provide
the parties with a meaningful opportunity to review the
change it had made to the instruction on the ‘‘in the
course of a single transaction’’ element of murder with
special circumstances before charging the jury. As pre-
viously indicated, the court first discussed that change,
among others, with the parties during a brief morning
recess on the day that it charged the jury. Although the
court provided the parties with a copy of the revised
jury charge prior to the morning recess, the parties did
not have a meaningful opportunity to review that charge
before the morning recess because of the various trial
activities conducted that morning. When the court
finally discussed its changes during that morning
recess, the parties ability to focus on each change high-
lighted for them by the court was undoubtedly limited
by the fact that they would begin their closing argu-
ments immediately following the recess. Moreover,
although the court gave the parties the luncheon recess
to review the changes, we do not believe that this was
a sufficient allotment of time for the parties to review
meaningfully each of those changes, particularly the
change to the instruction on the ‘‘in the course of a
single transaction’’ element, a technical change war-
ranting this court’s review on appeal, and State v. Camp-
bell, supra, 328 Conn. 444, on which the court had based
its change to that instruction. See State v. Lavigne, 307
Conn. 592, 597 n.4, 57 A.3d 332 (2012) (concluding that
defendant did not implicitly waive instructional error
claim in lengthy and complex trial when defense coun-
sel had approximately ninety minutes to review court’s
proposed instructions between conclusion of testimony
and beginning of charging conference); see also State
v. Kitchens, supra, 299 Conn. 495 n.28 (‘‘[h]olding an
on-the-record charge conference, and even providing
counsel with an advance copy of the instructions, will
not necessarily be sufficient in all cases to constitute
waiver of Golding review if defense counsel has not
been afforded adequate time, under the circumstances,
to examine the instructions and to identify potential
flaws’’). But cf. State v. Webster, 308 Conn. 43, 63, 60
A.3d 259 (2013) (concluding that defense counsel, who
was given opportunity to review proposed jury instruc-
tions overnight following closing arguments, had, under
Kitchens, ‘‘meaningful opportunity’’ to review those
instructions). Accordingly, we conclude that the defen-
dant did not waive implicitly his instructional error
claim and turn now to the merits of that claim.
‘‘It is well established that a defendant is entitled to
have the jury correctly and adequately instructed on
the pertinent principles of substantive law. . . . More-
over, [i]f justice is to be done . . . it is of paramount
importance that the court’s instructions be clear, accu-
rate, complete and comprehensible, particularly with
respect to the essential elements of the alleged crime.
. . . Nevertheless, [t]he charge is to be read as a whole
and individual instructions are not to be judged in artifi-
cial isolation from the overall charge. . . . In reviewing
the charge as a whole, [the] instructions need not be
perfect, as long as they are legally correct, adapted to
the issues and sufficient for the jury’s guidance. . . .
The test to be applied to any part of a charge is whether
the charge considered as a whole presents the case
to the jury so that no injustice will result.’’ (Internal
quotation marks omitted.) State v. Blaine, 334 Conn.
298, 308, 221 A.3d 798 (2019).
In State v. Gibbs, supra, 254 Conn. 601, this court
considered whether the state had proved the ‘‘in the
course of a single transaction’’ element of capital felony;
General Statutes (Rev. to 1991) § 53a-54b (8) (now mur-
der with special circumstances); despite the fact that
it had not presented evidence of temporal proximity
between two murders. In that case, the defendant,
David A. Gibbs, went to the home of his former girl-
friend and her mother to murder both women over their
failure to repay money that Gibbs claimed they owed
him. State v. Gibbs, supra, 581–82. Only the mother was
home when he arrived, and, after killing her, Gibbs
waited until his former girlfriend returned the next day,
at which time he killed her. Id., 582–83. On appeal,
Gibbs argued that the state was required to present
evidence of a temporal nexus between the murders to
establish the elements of the offense of murder of two
or more persons in the course of a single transaction,
while the state contended that it had to prove only that
there was some nexus between the murders, which it
claimed to have done by presenting evidence that the
murders were connected by a common purpose or plan.
Id., 601. This court agreed with the state, explaining
that ‘‘[a] single transaction is a series of events with a
temporal continuity or clear connection.’’ (Emphasis
omitted; internal quotation marks omitted.) Id., 603,
quoting In re Michael B., 36 Conn. App. 364, 380, 650
A.2d 1251 (1994); see also State v. Campbell, supra, 328
Conn. 501 (‘‘[t]o constitute a single transaction . . .
there must be some clear connection between the mur-
ders, so that they may be viewed as part of a series of
related but separate events’’ (internal quotation marks
omitted)). The court noted that, although ‘‘the relation-
ship [between the separate events] often is a temporal
one . . . [that] does not categorically foreclose the
possibility that a ‘clear connection’ between [multiple]
murders may be established by some other type of
nexus.’’ State v. Gibbs, supra, 603. Accordingly, the
court held that, ‘‘although a temporal nexus between
multiple murders committed by a defendant may consti-
tute evidence that those murders took place in the
course of a single transaction, such a temporal relation-
ship is not an absolute prerequisite to prosecution under
[the murder with special circumstances statute]. Rather,
the nexus between multiple murders necessary to prove
that those murders took place in the course of a single
transaction also may be established by proof beyond a
reasonable doubt that a defendant possessed a plan,
motive or intent common to the murders.’’ Id., 606.
Contrary to the defendant’s assertion, this court did
not hold in Gibbs that evidence of a common plan,
motive, or intent was required to prove that multiple
murders occurred in the course of a single transaction.
We held, rather, that, in the absence of a temporal
connection, evidence of a common plan, motive, or
intent was sufficient to demonstrate a clear connection
between the murders and, thus, to establish that they
occurred in the course of a single transaction. Id. In
reaching that determination, we also made clear that
evidence of a temporal connection alone was sufficient
to satisfy the single transaction element. Id., 603 (‘‘a
temporal nexus between multiple murders committed
by a defendant may constitute a capital felony’’); see
id. (noting that relationship between separate events
occurring in single transaction ‘‘often is a temporal
one’’); id., 606 (‘‘temporal nexus between multiple mur-
ders committed by a defendant may constitute evidence
that those murders took place in the course of a single
transaction’’).10 We therefore agree with the state that
the trial court did not incorrectly instruct the jury that
it could find the ‘‘in the course of a single transaction’’
element proven by evidence of a temporal nexus
between the victims’ murders. Accordingly, the defen-
dant’s claim of instructional error fails under the third
prong of Golding.11
II
The defendant next claims that the trial court improp-
erly failed to provide the jury, sua sponte, with a special
credibility instruction concerning Opalacz’ testimony.
Specifically, the defendant argues that ‘‘special credibil-
ity instruction[s] [have] roots in the concern that certain
witnesses have such a powerful motive to testify falsely
that the court should warn jurors to consider carefully
their testimony’’ and that, because the defendant pre-
sented evidence that Opalacz possessed the motive,
means, and opportunity to kill the victims, the court
should have provided a special credibility instruction
with respect to her testimony. The state argues that,
because the defendant’s claim is not of constitutional
magnitude, it fails under the second prong of Golding
and is reviewable only for plain error. The state further
argues that this court should reject the defendant’s
claim of plain error because Opalacz does not fit within
any of the existing exceptions to the general rule that
a defendant is not entitled to an instruction singling
out a state’s witness and highlighting their potential
motive to testify falsely, and because it is not plain
error for the trial court to fail to provide the jury, sua
sponte, with a special credibility instruction that has
not previously been recognized, let alone required, by
Connecticut appellate courts.
We agree with the state that the defendant’s claim
fails under the second prong of Golding because this
court repeatedly has held that the failure of a trial court
to provide a special credibility instruction is not of
constitutional magnitude. See, e.g., State v. Patterson,
276 Conn. 452, 471, 886 A.2d 777 (2005) (holding that, for
purposes of harmfulness analysis, trial court’s improper
failure to provide jury with special credibility instruc-
tion for witness who was jailhouse informant was not
constitutional in nature); State v. Brown, 187 Conn. 602,
613, 447 A.2d 734 (1982) (holding that trial court’s failure
to give accomplice credibility instruction to jury does
not involve violation of constitutional right); State v.
Cooper, 182 Conn. 207, 212, 438 A.2d 418 (1980) (same
for complaining witness credibility instruction); see
also State v. Diaz, 302 Conn. 93, 99 n.3, 25 A.3d 594(2011) (‘‘[t]he defendant concedes that the trial court’s
failure to give [sua sponte] a special credibility instruc-
tion was not of constitutional magnitude and, therefore,
his claim does not qualify for review under [Gold-
ing]’’).12 Accordingly, we conclude that the defendant’s
claim is reviewable only for plain error. We further
conclude that the court’s failure to provide the jury, sua
sponte, with a special credibility instruction concerning
Opalacz’ testimony does not constitute plain error.
The following procedural history is relevant to this
claim. On October 26, 2018, during its summary of the
in-chambers charging conference it had conducted with
the parties, the trial court stated that it would provide
the jury with a third-party culpability instruction identi-
fying the defense’s theory that Opalacz, not the defen-
dant, murdered the victims. The court further stated
that, although it had considered providing the jury with
an accomplice credibility instruction concerning Opa-
lacz’ testimony, it would not do so ‘‘because [that
instruction] is contrary to the [defense’s] theory’’ that
Opalacz was not an accomplice but rather the principal.
Defense counsel agreed with the court’s decision not
to provide an accomplice credibility instruction for Opa-
lacz and did not otherwise request a special credibility
instruction concerning her testimony. During its charge
to the jury, the court provided a third-party culpability
instruction,13 a general credibility instruction,14 and a
specific instruction concerning Opalacz’ credibility as
a witness who had pleaded guilty to, and had a pending
sentencing hearing for, hindering prosecution with
respect to the victims’ murders.15 Defense counsel did
not object to the court’s jury charge.
As previously stated, ‘‘a defendant is entitled to have
the jury correctly and adequately instructed on the perti-
nent principles of substantive law.’’ (Internal quotation
marks omitted.) State v. Blaine, supra, 334 Conn. 308.
‘‘The charge must be correct in the law, adapted to the
issues and sufficient to guide the jury. . . . The pri-
mary purpose of the charge to the jury is to assist [it]
in applying the law correctly to the facts which [it]
find[s] to be established.’’ (Internal quotation marks
omitted.) State v. Patterson, supra, 276 Conn. 466. ‘‘Gen-
erally, a [criminal] defendant is not entitled to an
instruction singling out any of the state’s witnesses and
highlighting his or her possible motive for testifying
falsely. . . . This court has held, however, that a spe-
cial credibility instruction is required for three types of
witnesses, namely, complaining witnesses, accomplices
and jailhouse informants.’’ (Citation omitted; footnotes
omitted; internal quotation marks omitted.) State v.
Diaz, supra, 302 Conn. 101–102. As set forth in footnote
6 of this opinion, ‘‘[an appellant] cannot prevail under
[the plain error doctrine] . . . unless he demonstrates
that the claimed error is both so clear and so harmful
that a failure to reverse the judgment would result in
manifest injustice.’’ (Emphasis in original; internal quo-
tation marks omitted.) State v. Jamison, 320 Conn. 589,
597, 134 A.3d 560 (2016).
In State v. Diaz, supra, 302 Conn. 93, this court con-
sidered a claim ‘‘that the trial court committed plain
error when it failed to instruct the jury, sua sponte, that
it must consider with great caution the testimony of
[three witnesses], in light of their involvement in the
criminal justice system and the possibility that they
would receive some benefit from the government in
exchange for their testimony.’’ Id., 99. The defendant
in Diaz argued that State v. Patterson, supra, 276 Conn.
469–70, and State v. Arroyo, 292 Conn. 558, 569, 973
A.2d 1254 (2009), cert. denied, 559 U.S. 911, 130 S. Ct.
1296, 175 L. Ed. 2d 1086 (2010), in which this court
required that a special credibility instruction be given
for jailhouse informants, should be extended to ‘‘any
witness who is in a position to receive a benefit from
the state, even if the witness is not a classic jailhouse
informant.’’ State v. Diaz, supra, 99. This court rejected
the defendant’s claim of plain error, concluding that
for two of the three witnesses, to whom the defendant
conceded that the jailhouse informant instruction did
not apply because they testified about events sur-
rounding the crime that they had witnessed outside
of prison, ‘‘the trial court’s failure to give a special
credibility instruction concerning [their] testimony
. . . pursuant to Patterson or Arroyo would not have
been improper even if the defendant had requested such
an instruction. A fortiori, its failure to do so sua sponte
did not constitute an error that was so obvious that
it affect[ed] the fairness and integrity of and public
confidence in the judicial proceedings, or of such monu-
mental proportion that [it] threaten[ed] to erode our
system of justice and work a serious and manifest injus-
tice on the aggrieved party.’’ (Internal quotation marks
omitted.) Id., 104.
In the present case, the defendant claims that the
court committed plain error by failing to provide the
jury, sua sponte, with a special credibility instruction
for Opalacz because evidence was presented at trial
that she murdered the victims and, thus, had a strong
motive to testify falsely against the defendant. Similar
to the defendant in Diaz, the defendant here seeks a
novel exception to the general rule against singling out
a witness and highlighting the witness’ motive to testify
falsely. See id. (defendant conceded that requiring spe-
cial credibility instruction for two witnesses who were
not jailhouse informants ‘‘would be an expansion of
Patterson’’). The defendant failed to request that the
court provide such an instruction, but, even if he had
done so, it would not have been plain error for the
court to decline to provide it, as this court has yet to
endorse, let alone to require, trial courts to provide
such an instruction. See id., 104 n.8 (‘‘[i]t is axiomatic
that the trial court’s proper application of the law
existing at the time of trial cannot constitute reversible
error under the plain error doctrine’’). But cf. State
v. Moore, 293 Conn. 781, 824, 981 A.2d 1030 (2009)
(concluding that trial court’s failure to provide accom-
plice credibility instruction was ‘‘plain or readily dis-
cernible error’’ because this court previously had held
that ‘‘[when] it is warranted by the evidence, it is the
court’s duty to caution the jury to scrutinize carefully
the testimony [of accomplice witnesses]’’ (emphasis in
original; internal quotation marks omitted)), cert.
denied, 560 U.S. 954, 130 S. Ct. 3386, 177 L. Ed. 2d 306(2010). A fortiori, as in Diaz, the trial court’s failure to
provide the instruction, sua sponte, cannot constitute
plain error.16 Moreover, because the court instructed
the jury on Opalacz’ credibility; see footnotes 14 and
15 of this opinion; and because the defense, during
cross-examination and in closing argument, highlighted
for the jury Opalacz’ motivations for testifying falsely,
including its theory that she was the actual and sole
perpetrator of the victims’ murders, we further reject
the defendant’s plain error claim. See State v. Diaz,
supra, 302 Conn. 103 (‘‘trial court’s failure to give, sua
sponte, a jailhouse informant instruction pursuant to
Patterson [did] not constitute plain error when the trial
court ha[d] instructed the jury on the credibility of
witnesses and the jury [was] aware of the witness’ moti-
vation for testifying’’).
III
The defendant’s final claim is that the trial court
violated his state and federal constitutional rights to
counsel and to present a defense by precluding defense
counsel from arguing in closing argument that the
absence of testimony from Velez created reasonable
doubt. Specifically, the defendant argues that the trial
court incorrectly determined that defense counsel was
making a missing witness argument under Secondino
v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598(1960), overruled in part by State v. Malave, 250 Conn.
722, 737 A.2d 442 (1999), cert. denied, 528 U.S. 1170,
120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000),17 because he
did not encourage the jury to speculate that, had the
state called Velez as a witness, her testimony would
have been unfavorable to the state. The defendant
asserts that defense counsel was, in fact, arguing that
the state’s theory that he killed Cortez because of a
dispute over ‘‘ ‘fake weed’ ’’ was not credible and that,
in advancing that argument, defense counsel merely
was asking the jurors whether, in assessing each parties’
theory of motive, ‘‘they [would have] want[ed] to hear
from Velez about the feud between Opalacz and the
victims.’’ We review the defendant’s claim under Gold-
ing because the record is adequate and the claim is of
constitutional magnitude. See, e.g., State v. Santiago,
305 Conn. 101, 207–208, 49 A.3d 566 (2012) (reviewing
under Golding defendant’s claim that ‘‘the [trial court’s]
curative instruction abridged his constitutional right to
present a summation in a criminal jury trial’’), super-
seded in part, 318 Conn. 1, 122 A.3d 1 (2015).
In response, the state argues that the trial court did
not violate the defendant’s constitutional rights to coun-
sel or to present a defense because the court ‘‘reason-
ably concluded that . . . [defense counsel] was insinu-
ating that the state did not want the jury to hear from
Velez because she was best friends with Ocasio, with
whom Opalacz had a feud, and her testimony would
have bolstered the [defense’s] theory that Opalacz shot
the victims.’’ (Emphasis omitted.) The state further
argues that the court did not prevent defense counsel
from arguing to the jury the existence of reasonable
doubt or the defense’s third-party culpability theory
based on evidence adduced at trial of the feud between
Opalacz and Velez. We agree with the state.
The following procedural history is relevant to this
claim. During his closing argument, defense counsel
asked the jury: ‘‘What about . . . Velez? . . . [B]est
friends with . . . Ocasio. Ask yourself, didn’t you want
to hear from her in this trial?’’18 Before defense counsel
could proceed any further with this argument, the pros-
ecutor objected. The trial court sustained the objection,
stating, ‘‘[t]hat’s [an] improper argument,’’ and defense
counsel responded that he was ‘‘[m]oving on.’’ After
defense counsel concluded his closing argument, and
outside the presence of the jury, the court stated that
it had sustained the state’s objection because it believed
that defense counsel was making a missing witness
argument in violation of State v. Malave, supra, 250
Conn. 722. The court also noted that, on a page of a
flip chart utilized by defense counsel during his closing
argument, there was reference to Velez’ absence from
the trial, which it felt had ‘‘compound[ed] the problem.’’
The court stated that defense counsel’s argument was
‘‘particularly inappropriate . . . given the fact that the
record will reflect that . . . yesterday . . . Velez was
here under defense subpoena, was ready to testify, and
[the] defense chose not to put her on.’’ The court
declined to provide a curative instruction but invited the
prosecutor to respond to defense counsel’s argument
during the state’s rebuttal argument. The prosecutor did
so, stating that, ‘‘when [defense counsel asked] wouldn’t
you have liked to have heard from . . . Velez, that was
improper argument. You’re not allowed to speculate as
to why . . . Velez did not testify. And you should know
that both sides are free to call witnesses.’’ Defense
counsel did not object to the state’s sustained objection
to his closing argument, the court’s permission to the
prosecutor to respond to his ‘‘improper argument,’’ or
the prosecutor’s particular response during the state’s
rebuttal argument.
The following legal principles guide our analysis of
this claim. ‘‘[T]he right to the assistance of counsel
ensures an opportunity to participate fully and fairly in
the adversary [fact-finding] process. . . . The opportu-
nity for the defense to make a closing argument in a
criminal trial has been held to be a basic element of
the adversary process and, therefore, constitutionally
protected under the sixth and fourteenth amendments.
. . . Closing argument is an integral part of any criminal
trial, for it is in this phase that the issues are sharpened
and clarified for the jury and each party may present
his theory of the case. Only then can [counsel] . . .
argue the inferences to be drawn from all the testimony,
and point out the weaknesses of their adversaries’ posi-
tions. And for the defense, closing argument is the last
clear chance to persuade the trier of fact that there
may be reasonable doubt of the defendant’s guilt. . . .
‘‘[T]he scope of final argument lies within the sound
discretion of the court . . . subject to appropriate con-
stitutional limitations. . . . It is within the discretion
of the trial court to limit the scope of final argument
to prevent comment on facts that are not properly in
evidence, to prevent the jury from considering matters
in the realm of speculation and to prevent the jury
from being influenced by improper matter[s] that might
prejudice its deliberations. . . . While we are sensitive
to the discretion of the trial court in limiting argument
to the actual issues of the case, tight control over argu-
ment is undesirable when counsel is precluded from
raising a significant issue.’’ (Citation omitted; internal
quotation marks omitted.) State v. Joyce, 243 Conn. 282,
305–306, 705 A.2d 181 (1997), cert. denied, 523 U.S.
1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674 (1998).
We conclude that the trial court reasonably deter-
mined that defense counsel was making an improper
missing witness argument, rather than ‘‘raising a signifi-
cant issue’’; id., 306; or making appropriate comment
about Velez’ absence insofar as her absence reflected
on the weakness of the state’s case. See State v. Malave,
supra, 250 Conn. 739. Velez was not a witness to the
events on May 16, 2016, that surrounded the victims’
murders and, thus, could not corroborate or dispute
the version of events to which Opalacz, Rodriquez, and
Villegas testified. Furthermore, it was the defense, not
the state, that initially sought, yet later declined, to call
Velez as a witness. See footnote 18 of this opinion.
Accordingly, it was reasonable for the court to conclude
that, when defense counsel asked the jury, ‘‘[w]hat
about . . . Velez? . . . [B]est friends with . . .
Ocasio. Ask yourself, didn’t you want to hear from her
in this trial?’’ he was not identifying a weakness in the
state’s case but was, in fact, inviting the jury to speculate
that the state declined to call Velez as a witness because,
as Ocasio’s best friend, she would have provided unfa-
vorable testimony to the state by, for example, support-
ing the defense’s theory that Opalacz murdered the
victims. But cf. State v. Ross, 18 Conn. App. 423, 431,
433–34, 558 A.2d 1015 (1989) (holding that trial court
improperly restricted defendant’s right to present clos-
ing argument by precluding his argument that failure
of witness who ‘‘was the sole eyewitness to the shoot-
ing’’ to testify created reasonable doubt in state’s case).
Moreover, there was ample testimony, without the need
to discuss Velez’ absence at trial, from which defense
counsel was able to argue in closing argument that
Opalacz had a stronger motive than the defendant, as
well as the means and opportunity, to murder the vic-
tims. The reasonableness of the trial court’s determina-
tion is further illustrated by the fact that defense coun-
sel did not provide advance notice to the court or the
prosecutor that he would be making a reasonable doubt
argument based on Velez’ absence; see State v. Malave,
supra, 740; and that, when the court accused him of
having made an improper missing witness argument, he
did not argue to the contrary. Accordingly, we conclude
that the court reasonably determined that defense coun-
sel was making an improper missing witness argument
and that it reasonably exercised its discretion by lim-
iting the scope of defense counsel’s final argument to
prevent comment on facts that were not properly in
evidence.19 See, e.g., State v. Joyce, supra, 243 Conn.
305–306. The defendant’s claim thus fails under the third
prong of Golding.20
The judgment is affirmed.
In this opinion the other justices concurred.
* July 15, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
General Statutes § 53a-54a (a) provides in relevant part: ‘‘A person is
guilty of murder when, with intent to cause the death of another person,
he causes the death of such person . . . .’’
2
General Statutes § 53a-54b provides in relevant part: ‘‘A person is guilty
of murder with special circumstances who is convicted of any of the follow-
ing and was eighteen years of age or older at the time of the offense . . .
(7) murder of two or more persons at the same time or in the course of a
single transaction . . . .’’
3
The trial court vacated the defendant’s conviction on the murder counts
pursuant to State v. Roszkowski, 329 Conn. 554, 563, 188 A.3d 139 (2018)
(holding that, under State v. Polanco, 308 Conn. 242, 245, 61 A.3d 1084(2013), trial court should have vacated defendant’s three murder convictions,
rather than merging them into corresponding capital felony convictions, as
lesser included offenses of capital crimes).
4
In November, 2016, Opalacz and Villegas were both charged with hinder-
ing prosecution in the second degree in violation of General Statutes § 53a-
166 for their actions following the victims’ murders. At the time of the
defendant’s trial, Opalacz pleaded guilty to that charge and was awaiting
sentencing, and Villegas’ case was pending. Following the defendant’s trial,
Opalacz was sentenced to ten years of imprisonment, execution suspended,
and five years of probation, and Villegas pleaded guilty to interfering with
an officer in violation of General Statutes § 53a-167a and was sentenced
to one year of imprisonment, execution suspended, and three years of
probation.
5
Pursuant to Golding, ‘‘a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged 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 omit-
ted.) State v. Golding, supra, 213 Conn. 239–40; see also In re Yasiel R.,
supra, 317 Conn. 781 (modifying third prong of Golding).
6
‘‘[T]he plain error doctrine, codified at Practice Book § 60-5, is an extraor-
dinary remedy used by appellate courts to rectify errors committed at trial
that, although unpreserved [and nonconstitutional in nature], are of such
monumental proportion that they threaten to erode our system of justice
and work a serious and manifest injustice on the aggrieved party. [T]he
plain error doctrine . . . is not . . . a rule of reviewability. It is a rule of
reversibility. That is, it is a doctrine that this court invokes in order to rectify
a trial court ruling that, although either not properly preserved or never
raised at all in the trial court, nonetheless requires reversal of the trial
court’s judgment . . . for reasons of policy. . . . In addition, the plain error
doctrine is reserved for truly extraordinary situations [in which] the exis-
tence of the error is so obvious that it affects the fairness and integrity of
and public confidence in the judicial proceedings. . . . Plain error is a
doctrine that should be invoked sparingly. . . . Implicit in this very
demanding standard is the notion . . . that invocation of the plain error
doctrine is reserved for occasions requiring the reversal of the judgment
under review. . . .
‘‘An appellate court addressing a claim of plain error first must determine
if the error is indeed plain in the sense that it is patent [or] readily [discern-
ible] on the face of a factually adequate record, [and] also . . . obvious in
the sense of not debatable. . . . This determination clearly requires a review
of the plain error claim presented in light of the record.
‘‘Although a complete record and an obvious error are prerequisites for
plain error review, they are not, of themselves, sufficient for its application.
. . . [I]n addition to examining the patent nature of the error, the reviewing
court must examine that error for the grievousness of its consequences
in order to determine whether reversal under the plain error doctrine is
appropriate. A party cannot prevail under plain error unless it has demon-
strated that the failure to grant relief will result in manifest injustice. . . .
[This court previously has] described the two-pronged nature of the plain
error doctrine: [An appellant] cannot prevail under [the plain error doctrine]
. . . unless he demonstrates that the claimed error is both so clear and so
harmful that a failure to reverse the judgment would result in manifest
injustice. . . . [O]ur review . . . with respect to plain error is plenary.’’
(Citations omitted; emphasis in original; footnote omitted; internal quotation
marks omitted.) State v. Jamison, 320 Conn. 589, 595–97, 134 A.3d 560 (2016).
7
In Kitchens, this court concluded that, ‘‘when the trial court provides
counsel with a copy of the proposed jury instructions, allows a meaningful
opportunity for their review, solicits comments from counsel regarding
changes or modifications and counsel affirmatively accepts the instructions
proposed or given, the defendant may be deemed to have knowledge of any
potential flaws therein and to have waived implicitly the constitutional right
to challenge the instructions on direct appeal.’’ State v. Kitchens, supra,299 Conn. 482–83
8
Instruction 5.5-1, titled ‘‘Capital Felony or Murder with Special Circum-
stance—§ 53a-54b,’’ provides in relevant part: ‘‘The second element is that
the murders occurred at the same time or in
the course of a single transaction. In order to prove that the murders occurred
at the same time or in the course of a single transaction the state must prove
beyond a reasonable doubt that the murders occurred at approximately the
same time or that the murders were related to a single course of conduct
or plan carried out as a series of events with a clear connection. Was there
a plan, motive or [intent] common to the
murders? If you find beyond a reasonable doubt that the state has proved
that all of the murders occurred as part of a single course of conduct with
a clear connection, then you shall find this element to have been proven.’’
Connecticut Criminal Jury Instructions 5.5-1, available at https://www.jud.ct
.gov/JI/Criminal/Criminal.pdf (last visited July 13, 2021).
9
Despite our conclusion that the defendant did not implicitly waive his
right to challenge the trial court’s instruction on appeal, we commend the
court for having taken the time to draft the subtle change to the instruction on
the ‘‘in the course of a single transaction’’ element that it deemed necessary
as a result of its review of State v. Campbell, supra, 328 Conn. 444.
10
Contrary to the defendant’s assertion, our conclusion is not undermined
by our statement in Gibbs that ‘‘[t]o construe the amount of time between
the murders as alone controlling the issue of whether those murders took
place in the course of a single transaction would render the first clause [‘at
the same time’] mere surplusage.’’ (Emphasis added.) State v. Gibbs, supra,
254 Conn. 602. The defendant argues that, consistent with our reasoning in
Gibbs, to construe the phrase ‘‘in the course of a single transaction’’ to
include murders that occur at the same time but without evidence of a
common plan, motive, or intent would render the second clause of § 53a-
54b (7) superfluous. We disagree. As we have explained, in Gibbs, the
issue before the court was whether the phrase ‘‘in the course of a single
transaction’’ required proof of a close temporal nexus between the murders.
State v. Gibbs, supra, 601. We concluded that it did not, explaining that the
legislature’s use of that phrase indicated an intent to make the murder of
two or more persons a capital felony not only when the murders occur at
the same time but also when they are part of a common plan, motive, or
intent; id., 606; as was the case in Gibbs. Thus, we explained that, although
a single transaction may be established by proof that there was a close
temporal nexus between the murders, it also may be established by proof
that there was a clear connection between them. Id., 603. Contrary to the
defendant’s assertion, however, there is nothing in the language or legislative
history of § 53a-54b (7) to suggest that the phrase ‘‘in the course of a
single transaction’’ was intended to apply only to murders that occurred in
connection with a common plan, motive, or intent, or that the statute was
intended to proscribe two conceptually distinct acts of murder—i.e., multiple
murders that occur at the same time and those that occur in connection
with a common plan, motive, or intent. We agree with the state that our
analysis in Gibbs makes clear that the phrase ‘‘at the same time or in the
course of a single transaction’’ in § 53a-54b (7) merely provides two different
descriptions of the same prohibited conduct (the murder of more than two
people), with the phrase ‘‘at the same time’’ conceptually subsumed within
the meaning of ‘‘in the course of a single transaction . . . .’’ For example,
if a motorcyclist were to shoot all the passengers in a vehicle because the
driver had just cut him off on the highway, the murders would have occurred
as part of a single transaction no less than if the killer, in exacting his
revenge, had waited and murdered each of the passengers separately, over
the course of several hours.
11
Because we conclude that the defendant’s claim fails under the third
prong of Golding, we further conclude that his claim of plain error also
fails. See State v. Blaine, supra, 334 Conn. 305 (‘‘plain error review is reserved
for only the most egregious errors’’ (internal quotation marks omitted)); see
also State v. Stephens, 301 Conn. 791, 797, 22 A.3d 1262 (2011) (concluding
that defendant’s claims, which failed under the third prong of Golding, were
‘‘not entitled to the extraordinary relief available under the plain error
doctrine’’).
12
In arguing that ‘‘[t]he compelling facts of [his] case [warrant an] excep-
tion to the general rule that the failure to give [a special credibility instruc-
tion] is not constitutional error,’’ the defendant cites to State v. Baltas, 311
Conn. 786, 91 A.3d 384 (2014), in which, he contends, this court applied the
constitutional standard for assessing harmfulness following its conclusion
that the trial court improperly failed to provide a special credibility instruc-
tion. The defendant misreads Baltas, which explicitly states that the defen-
dant in that case did not claim ‘‘that the trial court’s failure to instruct the
jury on [a witness’] motive to testify falsely violated any of his constitutional
rights, [and, thus, he bore] the burden of demonstrating that the court’s
error was harmful.’’ Id., 822; see also State v. Cody M., 337 Conn. 92, 113
n.17, 259 A.3d 576 (2020) (‘‘[i]f the claim is of constitutional magnitude, the
state has the burden of proving the constitutional error was harmless beyond
a reasonable doubt’’ (internal quotation marks omitted)).
13
The court instructed the jury on third-party culpability as follows: ‘‘The
defendant has offered evidence that a third party . . . Opalacz, and not the
defendant, committed the crimes with which the defendant is here charged.
This evidence is not intended to prove the guilt of the third party but is
part of the total evidence for you to consider. The burden remains on the
state to prove each and every element of the offense, including identification,
beyond a reasonable doubt. It is up to you and to you alone to determine
whether any of this evidence, if you choose to believe it, tends to directly
connect . . . Opalacz to the commission of the crimes with which the
defendant is charged. If, after a full and fair consideration and comparison
of all the evidence, you have left in your minds a reasonable doubt indicating
that . . . Opalacz may [be] the individual who committed the crimes that
the defendant is charged with committing, then it would be your duty to
render a verdict of not guilty as to the defendant before you.’’
14
The court instructed the jury on witness credibility in general in relevant
part: ‘‘[I]n deciding what the facts are, you must consider all the evidence
and decide which testimony to believe and which testimony not to believe.
You may believe or disbelieve all, none, or any part of any [witness’] testi-
mony. In making that decision, you may take into account a number of
factors, including . . . did the witness have any interest in the outcome of
this case or any bias or prejudice concerning any party or any matter involved
in the case? . . .
‘‘You should size up each witness and then make your own judgment as
to his or her credibility and decide what portion, all, some or none of any
particular [witness’] testimony you will believe. You should use all of your
experiences, your knowledge of human nature, and of the motives which
influence and control human conduct, and you should test the evidence
against that knowledge.’’
15
With respect to Opalacz’ testimony, the court instructed the jury on her
credibility as a state witness with pending criminal charges as follows: ‘‘Now,
evidence has been presented that the [witness] . . . Opalacz . . . [was]
arrested by [the] police in November of 2016, on the charge of hindering
prosecution in the second degree, a felony punishable by up to ten years
in prison, for engaging in actions that the state claimed hindered the prosecu-
tion of the crimes that are [the] subject of the case now before you. . . .
Opalacz had pleaded guilty to that crime and is awaiting sentence. . . .
You may consider this evidence in determining the credibility of the [wit-
ness], that is, on the issue of the weight that you will give [her] testimony
and in determining whether [her] testimon[y] should be believed wholly,
partly, or not at all. You should keep in mind that [she], by cooperating
with the state, may be looking for more favorable treatment in her ultimate
sentencing. . . . As to [this witness], you should, therefore, consider
whether she may have an interest in the outcome of the case now before
you and the extent to which, if at all, that interest may have colored the
testimony she has given.
‘‘Of course, it is important for you also to keep in mind . . . that many,
if not most, crimes are of such a nature and are committed under such
circumstances that the only persons capable of giving useful testimony as
to what occurred are those who may have themselves engaged in some type
of criminal conduct at or around the time of the commission of the crime
about which they have given testimony. So, for that reason, you must give
due consideration to the testimony of . . . Opalacz . . . during your delib-
erations.
‘‘In the final analysis, it is for you to decide whether you believe or
disbelieve the testimony of . . . Opalacz in whole or in part . . . . You
should give such weight to these facts that you decide is fair and reasonable
in determining the credibility of [Opalacz]. Like all other questions of credibil-
ity, this is a determination that you must make based on all the evidence
presented before you.’’
16
Although we express no opinion on the defendant’s proposed special
credibility instruction for a witness who may have committed the crime
with which a defendant is charged, we reiterate, as we did in Diaz, that ‘‘it
is within the discretion of a trial court to give a cautionary instruction to
the jury whenever the court reasonably believes that a witness’ testimony
may be particularly unreliable because the witness has a special interest in
testifying for the state and the witness’ motivations may not be adequately
exposed through cross-examination or argument by counsel. In determining
whether to give such an instruction, the trial court may consider the circum-
stances under which the witness came forward; the seriousness of the
charges with which the witness has been charged or convicted; the extent
to which the state is in a position to provide a benefit to the witness and
the potential magnitude of any such benefit; the extent to which the witness’
testimony is corroborated by other evidence; the importance of the witness’
testimony to the state’s case; and any other relevant factor.’’ State v. Diaz,
supra, 302 Conn. 113.
17
‘‘This court articulated the missing witness rule in Secondino v. New
Haven Gas Co., supra, 147 Conn. 675, which had held that [t]he failure of
a party to produce a witness who is within his power to produce and who
would naturally have been produced by him, permits the inference that the
evidence of the witness would be unfavorable to the party’s cause. . . .
[T]he jury charge explaining the [missing witness] rule commonly is referred
to as the Secondino instruction or the missing witness instruction. . . .
The legislature abandoned the missing witness instruction in civil cases by
adopting General Statutes § 52-216c.’’ (Citation omitted; internal quotation
marks omitted.) State v. Santiago, 305 Conn. 101, 206 n.96, 49 A.3d 566(2012), superseded in part, 318 Conn. 1, 122 A.3d 1 (2015).
In State v. Malave, 250 Conn. 722, 730–38, 737 A.2d 442 (1999), cert.
denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000), this court,
for reasons of policy, abandoned the missing witness rule in criminal cases.
In so doing, however, the court noted that it ‘‘[did] not prohibit counsel
from making appropriate comment, in closing arguments, about the absence
of a particular witness, insofar as that witness’ absence may reflect on the
weakness of the opposing party’s case. . . . So long as counsel does not
directly exhort the jury to draw an adverse inference by virtue of the witness’
absence, the argument does not fall within the Secondino rule, and our
holding . . . does not forbid it. . . . Fairness, however, dictates that a
party who intends to comment on the opposing party’s failure to call a
certain witness must so notify the court and the opposing party in advance
of closing arguments. Advance notice of such comment is necessary because
comment on the opposing party’s failure to call a particular witness would
be improper if that witness were unavailable due to death, disappearance
or otherwise. That notice will ensure that an opposing party is afforded a
fair opportunity to challenge the propriety of the missing witness comment
in light of the particular circumstances and factual record of the case. Of
course, the trial court retains wide latitude to permit or preclude such a
comment, and may, in its discretion, allow a party to adduce additional
evidence relative to the missing witness issue.’’ (Citations omitted; footnotes
omitted.) Id., 739–40.
18
On October 29, 2018, the trial court stated on the record that, although
the defense initially expressed an intention to call Velez as a witness and
that she was ‘‘in the building’’ under a defense subpoena, defense counsel
since had indicated to the court off the record that the defense had decided
‘‘as a matter of tactics and strategy’’ not to call her as a witness. Defense
counsel confirmed the court’s summary of the off-the-record discussion and
agreed to excuse Velez from the defense subpoena.
19
The defendant also argues that the trial court improperly (1) instructed
the jury not to consider defense counsel’s ‘‘ ‘improper argument’ ’’ and that
it could not find reasonable doubt in the failure to hear from Velez, and (2)
permitted the state to argue in closing argument that defense counsel could
have called Velez as a witness, which he contends unconstitutionally ‘‘shifted
the burden of proof to the defense . . . [and] dilute[ed] the reasonable
doubt standard . . . .’’ (Citations omitted.) We reject these arguments
because the court properly instructed the jury not to consider defense
counsel’s speculative missing witness argument and because the state’s
argument that ‘‘both sides are free to call witnesses’’ was not tantamount
to arguing that the defense was required to produce evidence of his inno-
cence. The court, moreover, instructed the jury that ‘‘[t]he defendant does
not have to prove his innocence,’’ an instruction that we presume the jury
followed. See, e.g., State v. Reynolds, 264 Conn. 1, 131, 836 A.2d 224 (2003)
(‘‘[i]n the absence of a showing that the jury failed or declined to follow
the court’s instructions, we presume that it heeded them’’), cert. denied,
541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).
20
As with the defendant’s first claim, because this claim fails under the
third prong of Golding, it also fails under the plain error doctrine. See
footnote 11 of this opinion.