State v. Terry

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. REGINALD TERRY
(AC 35768)
DiPentima, C. J., and Beach and Lavery, Js.
Argued September 16—officially released December 22, 2015
(Appeal from Superior Court, judicial district of
Hartford, Suarez, J.)
Kirstin B. Coffin, assigned counsel, for the appel-
lant (defendant).
Melissa Patterson, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Anthony Bochicchio, senior assistant state’s
attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Reginald Terry,
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 evidence was insufficient
to support the judgment of conviction, (2) the trial court
provided an improper instruction in its jury charge, (3)
the court abused its discretion by limiting the defen-
dant’s cross-examination of a witness regarding the vic-
tim’s criminal record, and (4) the court provided an
improper curative instruction to the jury. We affirm the
judgment of the trial court.
Faced with conflicting evidence and testimony
regarding the events in this case, the jury reasonably
could have found the following facts.2 Late in the eve-
ning on May 2, 2012, near 531 Garden Street in Hartford,
the defendant stabbed Herman Waden in the chest with
a knife during a verbal altercation. The assault took
place in front of a multiunit, single story, horseshoe
shaped apartment complex, within which was the apart-
ment of Waden’s sister.
That day Waden had been visiting his sister in her
apartment. When Waden left, he ‘‘ran into [his] friend’’
Anthony McKenzie. They talked outside of the apart-
ment complex near a fence that had multiple openings
and ran parallel to the sidewalk along Garden Street.
A short time later, the defendant approached the men.
During the unexpected encounter, Waden accused
the defendant of stealing from Waden’s brother, who
was dating the defendant’s mother. He demanded that
the defendant stop taking his brother’s money, other-
wise he and the defendant would ‘‘have problems.’’ The
defendant then stabbed Waden in the chest as McKenzie
grabbed the defendant’s arm to stop him. Waden then
fled to his sister’s apartment. Unable to enter the front
door, Waden walked to the back door of his sister’s
apartment, where he collapsed and later was found by
the police. Waden was transported to a hospital where
he stayed for approximately two weeks. Before being
discharged, Waden provided a statement to the police
department concerning the assault.
The defendant was arrested and charged two weeks
after the assault. Following a three day jury trial, the
defendant was found guilty. The court sentenced him
to fifteen years of incarceration and to five years of
special parole. This appeal followed. Additional facts
will be set forth as necessary.
I
The defendant first claims that the evidence was
insufficient to support the judgment of conviction of
assault in the first degree. Specifically, he contends that
the state failed to disprove the justification defense of
self-defense beyond a reasonable doubt. We are not per-
suaded.
We first set forth additional facts that are relevant
to this claim. Following his arrest, the defendant pro-
vided the investigating officer, Detective Anthony
Rykowski of the Hartford Police Department, a volun-
tary statement. At trial, the state produced the defen-
dant’s statement, the court admitted it into evidence as
a full exhibit, and the statement was read to the jury.
In the statement, the defendant claimed that McKenzie
and he were talking outside the apartment complex
where Waden’s sister lived. According to the defendant,
Waden approached them and accused the defendant of
stealing from Waden’s brother. After denying Waden’s
allegation, the defendant told Waden to ‘‘leave [him]
alone and to go about his business . . . .’’ However,
‘‘every time [the defendant] moved, [Waden] moved.’’
The defendant saw Waden ‘‘digging in his pockets,’’
which prompted him to take out his knife, aim for
Waden’s chest, and ‘‘hit’’ him with the knife despite
McKenzie’s attempt to stop the defendant. The defen-
dant explicitly stated in his voluntary statement that if
he had had a gun, he would have shot Waden. The
defendant concluded his voluntary statement with: ‘‘I
told [Waden] I was the wrong person to fuck with, and
he didn’t listen.’’
The state also presented Waden as a witness. He
testified to the events of the day of the assault. Specifi-
cally, he testified to his version of the assault, to having
been convicted of felonies and violent misdemeanors,3
to ingesting cocaine earlier in the day of the assault,
and to providing a statement to the police while hospi-
talized, which was admitted into evidence as a full
exhibit. As to the statement given to police while in
the hospital, Waden testified that he was ‘‘dizzy on the
drugs’’ and that he ‘‘really [did not] know what [he] was
really saying . . . .’’
On cross-examination, the defendant attempted to
impeach Waden on three grounds. First, the defendant
pressed Waden on his convictions, namely, carrying a
dangerous weapon and other violent crimes. Waden
explained that the dangerous weapon conviction
stemmed from an incident that occurred while he was
transporting a pistol from his old residence to his new
one. Although he knew that a felon cannot legally own
a pistol, Waden testified that he nevertheless kept the
pistol inside his home to protect his children. As to
the various convictions of violent crimes, Waden testi-
fied that those were a ‘‘record about fistfights,’’ but he
‘‘never tried to kill nobody.’’
The defendant next attacked Waden’s credibility by
cross-examining him on his alcohol and drug use. The
defendant sought to impeach Waden’s testimony con-
cerning his alcohol use by pointing to medical records,
which were admitted previously into evidence as a full
exhibit, noting that he was addicted to alcohol. Waden
denied this allegation, claiming that his father’s alcohol-
ism ‘‘turned [him] off’’ alcohol, and testified that he did
not drink much. Waden testified that he was not an
alcoholic despite being longtime drug user, characteriz-
ing himself as a ‘‘[function]al addict.’’ Defense counsel
then sought to attack Waden’s testimony by cross-exam-
ining him on his drug use. Specifically, Waden was
asked whether he was ‘‘coked up’’ on the night of the
assault. He replied that he was not ‘‘coked up’’ to such
a degree that he could not remember the events of
that night.
Finally, the defendant attempted to impeach Waden’s
version of the assault through Waden’s prior statement
to the police while hospitalized. The statement was
inconsistent with Waden’s testimony as to certain facts
leading up to the assault. Specifically, in the prior state-
ment Waden had said that he and the defendant were
having a conversation when the defendant asked for
money to buy cocaine. He refused, and, as he was walk-
ing away, the defendant threw something at him. Waden
returned and punched the defendant in the face.
According to Waden’s statement, the defendant then
stabbed him twice. Waden’s statement did not mention
McKenzie or that the defendant had robbed his brother.
Throughout the cross-examination regarding his state-
ment, however, Waden was adamant that because of
his condition while in the hospital, i.e., medicated and
‘‘in a lot of pain,’’ he likely ‘‘[said] anything’’ to ‘‘get rid
of [the detectives],’’ and did not remember what he said
at that time.
The defendant’s theory of self-defense was that he
reasonably believed Waden was about to use deadly
force and that he was unable to safely retreat. Specifi-
cally, the defendant argues that his version of the
events—Waden’s confronting him, refusing to leave the
defendant alone, and ‘‘digging in his pockets’’—demon-
strates that he was justified to stab Waden in self-
defense. Also, the defendant claims that no evidence
was adduced at trial showing that he could safely
retreat. We are not persuaded.
At the outset, we note that the defendant preserved
this claim by moving for a judgment of acquittal at the
close of the state’s case and his case.4 See State v.
Calabrese, 279 Conn. 393, 401, 902 A.2d 1044 (2006);
Practice Book §§ 42-40 and 42-42. Next, we set forth
the controlling law for a sufficiency claim. ‘‘On appeal,
the standard for reviewing sufficiency claims in con-
junction with a justification offered by the defense is
the same standard used when examining claims of insuf-
ficiency of the evidence. . . . In reviewing a suffi-
ciency of the evidence claim, we apply a two part test.
First, we construe the evidence in the light most favor-
able to sustaining the verdict. Second, we determine
whether upon the facts so construed and the inferences
reasonably drawn therefrom the [jury] reasonably could
have concluded that the cumulative force of the evi-
dence established guilt beyond a reasonable doubt
. . . .’’ (Citation omitted; internal quotation marks
omitted.) State v. Revels, 313 Conn. 762, 778, 99 A.3d
1130 (2014), cert. denied, U.S. , 135 S. Ct. 1451,
191 L. Ed. 2d 404 (2015).
The claim of self-defense is a justification defense.
Hence, it ‘‘operate[s] to exempt from punishment other-
wise criminal conduct when the harm from such con-
duct is deemed to be outweighed by the need to avoid
an even greater harm or to further a greater societal
interest. . . . Thus, conduct that is found to be justified
is, under the circumstances, not criminal.’’ (Internal
quotation marks omitted.) State v. James E., 154 Conn.
App. 795, 813, 112 A.3d 791 (2015).
General Statutes § 53a-19 governs the use of deadly
force for self-defense.5 ‘‘Our Supreme Court has inter-
preted § 53a-19 (a) to require that a person may justifi-
ably use deadly physical force in self-defense only if he
reasonably believes both that (1) his attacker is using
or about to use deadly physical force against him, or
is inflicting or about to inflict great bodily harm, and
(2) that deadly physical force is necessary to repel such
an attack.’’ (Emphasis omitted; internal quotation
marks omitted.) State v. Pranckus, 75 Conn. App. 80,
88, 815 A.2d 678, cert. denied, 263 Conn. 905, 819 A.2d
840 (2003).
‘‘The subjective-objective inquiry into the defendant’s
belief regarding the necessary degree of force requires
that the jury make two separate affirmative determina-
tions in order for the defendant’s claim of self-defense
to succeed. . . . [T]he jury must [first] determine
whether, on the basis of all of the evidence presented,
the defendant in fact had believed that he had needed
to use deadly physical force, as opposed to some lesser
degree of force, in order to repel the victim’s alleged
attack. . . . The jury’s initial determination, therefore,
requires the jury to assess the veracity of witnesses,
often including the defendant, and to determine
whether the defendant’s account of his belief in the
necessity to use deadly force at the time of the confron-
tation is in fact credible. This probe into the defendant’s
actual state of mind clearly demonstrates the function
of the jury in [its] evaluation of the self-defense claim.
. . . If the jury determines that the defendant had not
believed that he had needed to employ deadly physical
force to repel the victim’s attack, the jury’s inquiry ends,
and the defendant’s self-defense claim must fail.
‘‘If, however, the jury determines that the defendant
in fact had believed that the use of deadly force was
necessary, the jury must make a [second] determination
as to whether that belief was reasonable, from the per-
spective of a reasonable person in the defendant’s cir-
cumstances. . . . Thus, if a jury determines that the
defendant’s honest belief that he had needed to use
deadly force, instead of some lesser degree of force,
was not a reasonable belief, the defendant is not entitled
to the protection of § 53a-19.’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
State v. Prioleau, 235 Conn. 274, 286–87, 664 A.2d
743 (1995).
‘‘Whether the defense of the justified use of force
. . . has been disproved by the state is a question of
fact for the jury, to be determined from all the evidence
in the case and the reasonable inferences drawn from
that evidence.’’ (Emphasis omitted; internal quotation
marks omitted.) State v. Pauling, 102 Conn. App. 556,
571–72, 925 A.2d 1200, cert. denied, 284 Conn. 924, 933
A.2d 727 (2007). ‘‘[I]n viewing evidence which could
yield contrary inferences, the jury is not barred from
drawing those inferences consistent with guilt and is
not required to draw only those inferences consistent
with innocence. The rule is that the jury’s function is
to draw whatever inferences from the evidence or facts
established by the evidence it deems to be reasonable
and logical.’’ (Internal quotation marks omitted.) State
v. Ovechka, 292 Conn. 533, 540–41, 975 A.2d 1 (2009).
Finally, ‘‘[w]e also are mindful that [q]uestions of
whether to believe or to disbelieve a competent witness
are beyond our review. As a reviewing court, we may
not retry the case or pass on the credibility of witnesses.
. . . Our review of factual determinations is limited to
whether those findings are clearly erroneous. . . . We
must defer to the [finder] of fact’s assessment of the
credibility of the witnesses that is made on the basis
of its firsthand observation of their conduct, demeanor
and attitude. . . . [A] jury may draw reasonable and
logical inferences from the facts proven, but it may not
resort to speculation and conjecture.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. James
E., supra, 154 Conn. App. 802–803. Guided by these
principles, we turn to the specifics of the defendant’s
sufficiency claim.
The jury reasonably could have concluded that the
defendant did not act in self-defense. See State v. Gray,
221 Conn. 713, 721, 607 A.2d 391 (‘‘the jury [is] entitled
to draw, from conflicting evidence . . . reasonable
inferences that reject the defendant’s theories’’), cert.
denied, 506 U.S. 872, 113 S. Ct. 207, 121 L. Ed. 2d 148
(1992). On the basis of the evidence, the jury was free
to disbelieve the defendant’s voluntary statement and
to conclude beyond a reasonable doubt that he could
not reasonably have believed that he was faced with
the imminent use of deadly physical force or that the
degree of deadly physical force that he used against
Waden was necessary to defend himself. Waden’s testi-
mony and the defendant’s voluntary statement estab-
lished that there was a verbal altercation. The
defendant’s voluntary statement established that
Waden did not use any physical force (much less deadly
physical force) against the defendant, but he nonethe-
less stabbed Waden after seeing him ‘‘digging in his
pockets.’’ No evidence was presented that indicated
that the defendant knew about Waden’s extensive crimi-
nal record, nor did any evidence show that Waden, in
the past, had ever attempted to use deadly physical
force on the defendant. Cf. State v. Abney, 88 Conn.
App. 495, 504, 869 A.2d 1263 (concluding that ‘‘the court
abused its discretion by excluding the medical records
regarding the defendant’s emergency medical care . . .
because that evidence of a prior incident of an assault
on the defendant would have been relevant to show
that she reasonably feared for her safety’’), cert. denied,
274 Conn. 906, 876 A.2d 1199 (2005). As the sole trier
of fact, the jury was within its right to reject the defen-
dant’s theory and accept Waden’s version. See State v.
Osbourne, supra, 138 Conn. App. 534. We reiterate the
point that we defer to the jury’s assessment of all wit-
nesses, and we do not substitute our own judgment for
that of the jury if there is sufficient evidence to support
its verdict. See State v. Whitfield, supra, 75 Conn. App.
214 n.6. Therefore, we conclude that the jury reasonably
could have rejected the defendant’s self-defense claim.
The jury also reasonably could have concluded that
the defendant had the ability to safely retreat. See Miller
v. Commissioner of Correction, 154 Conn. App. 78, 90,
105 A.3d 294 (2014) (‘‘a defendant who raises a claim
of self-defense is required to retreat in lieu of using
deadly physical force if the state establishes beyond a
reasonable doubt that a completely safe retreat was
available and that the defendant actually was aware of
it’’ [internal quotation marks omitted]), cert. denied,
315 Conn. 920, 107 A.3d 959 (2015). The state presented
evidence that the altercation between Waden and the
defendant took place near a fence with multiple open-
ings that ran along the sidewalk paralleling Garden
Street. Also, both the state and the defendant presented
evidence that established that Waden did not physically
restrain the defendant. Therefore, the evidence pre-
sented at trial contradicts the defendant’s claim on
appeal. Accordingly, the jury reasonably could have
concluded that, because the defendant was not physi-
cally restrained and the evidence presented by the state
showed that there were multiple access points along
the fence by which to leave, the defendant could have
retreated without jeopardizing his ‘‘complete safety
. . . .’’ General Statutes § 53a-19 (b).
The jury could credit the testimony of the witness
presented by the state and was free to reject the defen-
dant’s justification defense. Thus, construing the evi-
dence in the light most favorable to sustaining the
verdict, we determine that the jury reasonably could
have concluded that the cumulative force of the evi-
dence established that the state disproved the justifica-
tion defense of self-defense beyond a reasonable doubt.
II
The defendant next claims that the court provided
an improper instruction in its jury charge that preju-
diced him to the extent that his federal and state consti-
tutional rights to a fair trial were violated. Specifically,
the defendant argues that the court improperly
instructed the jury that Waden’s testimony concerning
his prior convictions was admissible only to address
his credibility. The defendant concedes that this claim
is unpreserved, but, nevertheless, seeks review pursu-
ant to State v. Golding, 213 Conn. 233, 567 A.2d 823
(1989).6 We conclude that, pursuant to State v. Kitchens,
299 Conn. 447, 10 A.3d 942 (2011),7 the defendant has
implicitly waived this challenge to the relevant jury
instruction and, therefore, is not entitled to Golding
review.8
The following facts are necessary for the resolution
of this claim. The court provided both parties with its
proposed jury instructions on the second day of a three
day trial. Because this was the first time either counsel
had received the instructions, the court recessed for
approximately thirty minutes to allow the parties to
review the proposed jury instructions. Upon return, the
court proceeded with the charging conference. When
it asked defense counsel whether he had had sufficient
time to review the charge, counsel replied in the affirma-
tive and added that he had ‘‘no requests [or] . . . any
objections.’’ The court, then, was prepared to proceed
with closing arguments, but the state preemptively
objected to the defendant’s closing argument. The state
requested that the defendant refrain from ‘‘arguing to
the jury that [the defendant] was aware of [Waden’s]
violent criminal past’’ because ‘‘[there was] no evidence
that [the defendant] had any knowledge of it, [therefore,
he could not now argue that it] affected his state of
mind . . . .’’ After a brief discussion, the court allowed
the defendant to ask the jury to ‘‘take inferences from
whatever evidence exists,’’ but warned the defendant,
to the ‘‘extent that [he argues] that [the defendant]
actually knew of [Waden’s] violent criminal past . . .
that may be left for an inference . . . .’’ Afterward,
both counsel proceeded with their closing arguments.
The following day, the court and both counsel con-
ducted a charge conference off the record.9 After the
court, on the record, solicited comment from both coun-
sel but before the charge was read to the jury, the
defendant, again, did not request any modifications or
changes, and did not object. The court ultimately
instructed the jury that Waden’s testimonial evidence
regarding his criminal history was ‘‘offered and admit-
ted . . . for one purpose only, to address the question
of [the] credibility or believability of that witness.’’
The defendant argues that the court improperly
instructed the jury that Waden’s testimony concerning
his prior convictions was admissible only to address
his credibility. He claims that Waden’s prior convictions
were not only relevant to his credibility, but also to
show that the defendant had a reasonable belief that
Waden was going to attack and that Waden was the
initial aggressor. We disagree.10
We first set forth the law that guides our analysis. To
determine whether the defendant’s claim is reviewable
under Golding, we first consider whether that claim
was waived at trial. ‘‘A defendant in a criminal prosecu-
tion may waive one or more of his or her fundamental
rights. . . . [I]n the usual Golding situation, the defen-
dant raises a claim on appeal [that], while not preserved
at trial, at least was not waived at trial. . . . [A] consti-
tutional claim that has been waived does not satisfy
the third prong of the Golding test because, in such
circumstances, we simply cannot conclude that injus-
tice [has been] done to either party . . . or that the
alleged constitutional violation . . . exists and . . .
deprived the defendant of a fair trial . . . .’’ (Citation
omitted; internal quotation marks omitted.) State v.
Kitchens, supra, 299 Conn. 467; see In re Yasiel R., 317
Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third
prong of Golding by eliminating clearly exists and
clearly deprived defendant of fair trial).
‘‘[W]hen 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 coun-
sel affirmatively accepts the instructions proposed or
given, the defendant may be deemed to have knowledge
of any potential flaws therein and to have waived implic-
itly the constitutional right to challenge the instructions
on direct appeal.’’ Id., 482–83. Our Supreme Court in
Kitchens directed that ‘‘[s]uch a determination by the
reviewing court must be based on a close examination
of the record and the particular facts and circumstances
of each case.’’ Id., 483.
We conclude that upon a close examination of the
record and the particular facts and circumstances of
this case, the defendant implicitly waived his constitu-
tional right to challenge the instructions on direct
appeal. The recent decision in State v. Davis, 311 Conn.
468, 88 A.3d 445 (2014), is instructive. In that case,
‘‘the trial court did not provide counsel with the actual
proposed instructions . . . .’’ Id., 481. Rather, it stated
to defense counsel that the trial court ‘‘intended to
deliver the model instructions [on the Judicial Branch
website] ‘in essence, maybe not exactly’ . . . .’’ Id., 479.
Our Supreme Court concluded that the trial court’s
unclear and ambiguous reference to the model instruc-
tions on the Judicial Branch website did not meet the
standard for an implied waiver. Id. Thus, the court in
Davis articulated that the ‘‘threshold question for [a
Kitchens’ implied waiver doctrine] analysis is whether
the trial court provided the proposed charges to the
defendant prior to delivery of its instructions to the
jury.’’ Id., 480; cf. State v. Baptiste, 302 Conn. 46, 56,
23 A.3d 1233 (2011) (‘‘[t]here is . . . no indication on
the record that the trial court provided the defendant
with an advance copy of the [charge; therefore] . . .
there is simply no record that the defendant was
afforded a meaningful opportunity to review the pro-
posed charge’’).
Here, defense counsel was provided with a copy of
the proposed instructions on the second day of a three
day trial. The defendant correctly points out that
defense counsel initially was given only approximately
thirty minutes to read the proposed instructions before
being given the opportunity to alert the court to any
potential issues. Although we decline to rule whether
thirty minutes is sufficient time, we note that the defen-
dant had the proposed instructions overnight, which
allowed a meaningful opportunity to review them and
to alert the court to any potential issues at the start of
the third day of trial.
Defense counsel in the present case, having been
provided with a copy of the jury instructions and a
meaningful opportunity to review them and to alert the
court to any potential issues, declined to object in any
way to the portion of the charge instructing the jury
that Waden’s testimony about his convictions was
admissible only to address his credibility, and affirma-
tively expressed his satisfaction with the content of the
instructions. We also note that the instruction at issue
‘‘was not buried in the charge.’’ State v. Thomas W.,
301 Conn. 724, 735, 22 A.3d 1242 (2011). Under these
circumstances, the defendant has waived his claim of
instructional error and, accordingly, it does not satisfy
the third prong of Golding. See State v. Kitchens, supra,
299 Conn. 467.
III
The defendant next argues the court abused its dis-
cretion by limiting his cross-examination of Rykowski
regarding Waden’s criminal record. He also argues that
this evidentiary ruling was harmful error.11 Specifically,
he contends that §§ 4-4 (a) (2)12 and 4-5 (d)13 of the
Connecticut Code of Evidence provide the mechanism
by which the line of questioning was admissible. The
defendant did not raise this claim at trial, nor did he
request review of the claim under Golding or the plain
error doctrine. Therefore, we decline to review this
unpreserved evidentiary claim.14
The following additional facts provide the necessary
context. During cross-examination, the defendant
attempted to elicit testimony from Rykowski concern-
ing Waden’s criminal record. When Rykowski testified
to learning that Waden had ‘‘several arrests,’’ the defen-
dant proceeded to ask, ‘‘Wouldn’t seventy-three be more
accurate?’’ The state objected, and the court excused
the jury.
In the colloquy that followed, the state articulated
its ground for objecting to the defendant’s question
arguing that the number of Waden’s arrests was irrele-
vant because there was no foundation establishing
whether (1) the arrests were convictions, (2) any of the
convictions were within ten years, and (3) any of the
arrests were related to violent crimes. Defense counsel
withdrew the question and continued the cross-exami-
nation of Rykowski outside the presence of the jury.
Defense counsel again sought to elicit testimony from
Rykowski regarding Waden’s criminal record. This time,
the line of questioning was as follows:
‘‘[Defense Counsel]: As part of your background, do
you get a detailed arrest inquiry?
‘‘[Rykowski]: Yes, sir.
‘‘[Defense Counsel]: And it’s important for you to
notice the background of either the victim or a witness,
isn’t it?
‘‘[Rykowski]: Correct.
‘‘[Defense Counsel]: That involves consideration for
community safety as well as safety of the officers.
‘‘[Rykowski]: Absolutely.
‘‘[Defense Counsel]: The detailed arrest inquiry, that’s
something you always do, isn’t it.
‘‘[Rykowski]: Correct, sir.
‘‘[Defense Counsel]: And it indicates that, in fact, the
alleged victim in this case is a career criminal.’’
The state objected on relevance grounds. Defense
counsel conceded that he would address the convic-
tions in detail through Waden, but was seeking to ‘‘high-
light some of the felonies that [Waden has] been
convicted of’’ through Rykowski. When pressed by the
court as to what section of the Connecticut Code of
Evidence rendered such questioning admissible,
defense counsel argued that because Waden’s criminal
record was part of the investigation, it was admissible
testimony through the investigating officer, Rykowski.
After the court sustained the state’s objection, defense
counsel argued that characterizing Waden’s criminal
record as a ‘‘substantial criminal record’’ would be ‘‘fair’’
because it omitted the number of arrests. The state did
not agree, and the court ruled that Waden’s criminal
record was not admissible through Rykowski.
We set forth the applicable law that guides our dispo-
sition of this claim. ‘‘We previously have stated that the
admissibility of evidence is a matter of state law and
unless there is a resultant denial of fundamental fairness
or the denial of a specific constitutional right, no consti-
tutional issue is involved.’’ (Internal quotation marks
omitted.) State v. Epps, 105 Conn. App. 84, 97, 936 A.2d
701 (2007), cert. denied, 286 Conn. 903, 943 A.2d 1102
(2008). Therefore, ‘‘[e]videntiary claims do not merit
review pursuant to Golding . . . because they are not
of constitutional magnitude.’’ (Internal quotation marks
omitted.) State v. Ruffin, 144 Conn. App. 387, 398–99,
71 A.3d 695 (2013), aff’d, 316 Conn. 20, 110 A.3d 1225
(2015). Accordingly, in the absence of such constitu-
tional or fundamental fairness issues, we review this
claim only if it was adequately raised.
The record before us demonstrates that the defendant
did not preserve the precise claim that he now makes on
appeal. The trial transcript shows that after the state’s
objection, the court inquired as to what section of the
Connecticut Code of Evidence applied to permit the
proposed cross-examination. Defense counsel neither
specified the code section nor stated the grounds he
now raises on appeal. Without citing any legal authority,
defense counsel advanced the notion that because
Waden’s criminal record was part of Rykowski’s investi-
gation, it was admissible. Although defense counsel
consented to not ‘‘[asking Rykowski] any further ques-
tions in regard to the criminal background of the alleged
victim,’’ he sought the court’s permission to classify
Waden’s criminal record as ‘‘substantial.’’ This request
was rejected by the court without further argument
from the defendant. It is clear that this evidentiary claim
was unpreserved at trial. As a consequence, the defen-
dant’s claim must fail on appeal.15
IV
The defendant’s final claim is that the court provided
an improper curative instruction to the jury in response
to a question by defense counsel, and that this error
prejudiced (1) his federal and state constitutional rights,
as well as his statutory right, to present a defense, and
(2) his federal and state constitutional rights to confront
a witness. On appeal, the defendant concedes that this
claim was unpreserved but seeks Golding review16 or, in
the alternative, seeks to invoke the plain error doctrine
pursuant to Practice Book § 60-5. We decline to review
this unpreserved evidentiary claim.
The following additional facts are necessary for the
resolution of this claim. After defense counsel com-
mented on Waden’s seventy-three arrests, the jury was
excused from the courtroom. Upon its return, the court
provided the following curative instruction to the jury:
‘‘Ladies and gentlemen, there was an objection made
by the state, and the court has sustained the objection.
I should instruct you at this time that you are not to
consider the [defendant’s] criminal past as any indica-
tion at all in your deliberations.’’ (Emphasis added.)
The defendant did not object or seek to correct the
court but did continue to cross-examine Rykowski.
Although the defendant acknowledges that ‘‘the court
probably misspoke and intended to refer to the victim,
as the instruction was made in the context of the state’s
objection to the victim’s criminal record being admitted
through . . . Rykowski,’’ he still contends that it was
‘‘extremely prejudicial.’’ We disagree.
As previously discussed, unpreserved ‘‘[e]videntiary
claims do not merit review pursuant to Golding . . .
because they are not of constitutional magnitude.’’
(Internal quotation marks omitted.) State v. Ruffin,
supra, 144 Conn. App. 398–99. In the present case, the
defendant did not object to the court’s curative instruc-
tion. ‘‘If defense counsel believed that the court . . .
misspoke and that this somehow was misleading, he
should have brought it to the attention of the judge.’’
State v. Melendez, 74 Conn. App. 215, 228–29, 811 A.2d
261 (2002), cert. denied, 262 Conn. 951, 817 A.2d 111
(2003). Accordingly, we decline to review the defen-
dant’s claim under Golding.
We also decline to review the defendant’s claim under
the plain error doctrine. Pursuant to Practice Book § 60-
5, the plain error doctrine ‘‘is not . . . a rule of review-
ability. 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 where the
existence 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. . . . A party cannot pre-
vail under plain error unless it has demonstrated that
the failure to grant relief will result in manifest injustice.
. . . 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. . . . [Thus, a] defendant can-
not 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.’’ (Internal quotation
marks omitted.) State v. Simpson, 286 Conn. 634,
647–48 n.16, 945 A.2d 449 (2008).
‘‘To prevail on this claim . . . the defendant must
establish that it was reasonably probable that the jury
was misled by the court’s instruction.’’ State v. Davis,
32 Conn. App. 21, 34, 628 A.2d 11 (1993). Moreover, it
is understood that ‘‘the jury is presumed to follow the
court’s curative instructions in the absence of some
indication to the contrary.’’ (Internal quotation marks
omitted.) State v. Luther, 114 Conn. App. 799, 807, 971
A.2d 781, cert. denied, 293 Conn. 907, 978 A.2d 1112
(2009).
In the present case, the defendant has not demon-
strated how the misspoken curative instruction was so
harmful as to warrant reversing a jury’s verdict of guilty
beyond a reasonable doubt. Indeed, the defendant puts
forth sweeping, speculative generalizations of harm,
i.e., the curative instruction ‘‘deprived the defendant of
his right of confrontation’’ and ‘‘categorically dis-
counted . . . the potential impact of Waden’s history
of violence on the defendant’s self-defense claim.’’ Our
review of the record, however, does not support the
defendant’s claims.
The record indicates that the court’s misspoken cura-
tive instruction did not significantly impact the defen-
dant to the extent that he claims. When the curative
instruction was given, there was no evidence indicating
that the defendant had a criminal record. Thus, we
decline to speculate on how the absence of evidence
of the defendant’s criminal record impacted the jury
when considering the curative instruction, which was
given in the context of Waden’s criminal record. More
importantly, in its final charge to the jury, the court
explained that it ‘‘may consider only the evidence prop-
erly admitted [which] . . . includes the sworn testi-
mony of the witnesses both on direct and cross-
examination . . . .’’ If we are to presume that a jury
follows a ‘‘court’s curative instruction in the absence
of some indication to the contrary’’; (internal quotation
marks omitted) State v. Luther, supra, 114 Conn. App.
807; we can also presume that the jury, in this case,
followed the court’s jury charge and considered only
properly admitted evidence, namely, Waden’s criminal
record and not the defendant’s.17 Therefore, we cannot
conclude that the misspoken curative instruction
‘‘undermined the fairness or integrity of the trial
afforded to the defendant . . . [or] that the verdict con-
stituted manifest injustice to the defendant or will lead
to diminished confidence in our judicial system.’’ State
v. Toccaline, 258 Conn. 542, 553, 783 A.2d 450 (2001).
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-59 (a) provides in relevant part: ‘‘A person is
guilty of assault in the first degree when: (1) With intent to cause serious
physical injury to another person, he causes such injury to such person
. . . by means of a deadly weapon or a dangerous instrument . . . .’’
2
‘‘It is axiomatic that it is the jury’s role as the sole trier of the facts to
weigh the conflicting evidence and to determine the credibility of witnesses.
. . . It is the right and duty of the jury to determine whether to accept or
to reject the testimony of a witness . . . and what weight, if any, to lend
to the testimony of a witness and the evidence presented at trial.’’ (Internal
quotation marks omitted.) State v. Osbourne, 138 Conn. App. 518, 533–34,
53 A.3d 284, cert. denied, 307 Conn. 937, 56 A.3d 716 (2012). ‘‘As to any
conflicting testimony provided by the state’s witnesses, we follow the well
established rule that we must defer to the jury’s assessment of the credibility
of the witnesses based on its firsthand observation of their conduct,
demeanor, and attitude. . . . This court cannot substitute its own judgment
for that of the jury if there is sufficient evidence to support the jury’s verdict.’’
(Internal quotation marks omitted.) State v. Whitfield, 75 Conn. App. 201,
214 n.6, 815 A.2d 233, cert. denied, 263 Conn. 910, 819 A.2d 842 (2003); see
also State v. Rosado, 147 Conn. App. 688, 696, 83 A.3d 351 (evidence not
insufficient because it is conflicting or inconsistent), cert. denied, 311 Conn.
928, 86 A.3d 1058 (2014).
3
On direct examination, Waden admitted that he had been convicted of
ten felonies and violent misdemeanors between 1993 and 2011: violation of
a protective order; assault in the third degree; threatening; robbery in the
third degree; an unclassified felony; burglary in the third degree; carrying
a dangerous weapon; assault in the third degree; another assault in the third
degree; another unclassified felony; and robbery in the third degree.
4
Even if this claim had not been preserved, we would review it on appeal.
Our Supreme Court has ‘‘observed that any defendant found guilty on the
basis of insufficient evidence has been deprived of a constitutional right,
and would therefore necessarily meet the four prongs of [State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989)]. . . . Accordingly, because
there is no practical significance . . . for engaging in a Golding analysis,
we review an unpreserved sufficiency of the evidence claim as though it
had been preserved.’’ (Citation omitted; internal quotation marks omitted.)
State v. Revels, 313 Conn. 762, 777, 99 A.3d 1130 (2014), cert. denied,
U.S. , 135 S. Ct. 1451, 191 L. Ed. 2d 404 (2015).
5
General Statutes § 53a-19 provides in relevant part: ‘‘(a) Except as pro-
vided in [subsection] (b) . . . of this section . . . deadly physical force
may not be used unless the actor reasonably believes that such other person
is (1) using or about to use deadly physical force, or (2) inflicting or about
to inflict great bodily harm.
‘‘(b) Notwithstanding the provisions of subsection (a) of this section, a
person is not justified in using deadly physical force upon another person
if he or she knows that he or she can avoid the necessity of using such
force with complete safety (1) by retreating . . . .’’
General Statutes § 53a-3 (5) defines ‘‘[d]eadly physical force’’ as a ‘‘physical
force which can be reasonably expected to cause death or serious physical
injury . . . .’’
6
We will review an unpreserved claim when ‘‘(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. In the absence of any one of these conditions, the defendant’s claim
will fail.’’ (Emphasis omitted; footnote omitted.) State v. Golding, supra,
213 Conn. 239–40; see In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188
(2015) (modifying third prong).
7
Although we note that our Supreme Court recently granted certification
to appeal in State v. Herring, 151 Conn. App. 154, 94 A.3d 688, cert. granted,
314 Conn. 914, 100 A.3d 849 (2014), to decide whether Kitchens should be
overruled, the holding in Kitchens presently remains binding upon this court.
8
The defendant also seeks to invoke the plain error doctrine. See Practice
Book § 60-5. ‘‘To the extent that the claim is amenable to review under the
plain error doctrine, we are not persuaded that an error exists that is so
obvious that it affects the fairness and integrity of and the public confidence
in the judicial proceedings or that the court’s instructions caused the defen-
dant to suffer manifest injustice.’’ State v. Bellamy, 149 Conn. App. 665, 671
n.2, 89 A.3d 927, cert. granted on other grounds, 312 Conn. 914, 93 A.3d 597
(2014); see also State v. Kitchens, supra, 299 Conn. 474 n.18 (‘‘the finding
of a valid waiver precludes a finding that a jury instruction constitutes plain
error because a valid waiver means that there is no error to correct’’).
Similarly here, we decline the defendant’s invitation to invoke the plain
error doctrine.
9
We note that the court added a curative instruction to the jury charge,
and both counsel were given the opportunity to review and discuss it off
the record. The curative instruction addressed defense counsel’s comment
made during his closing argument concerning McKenzie’s absence at trial.
On the record, the court asked defense counsel if he had any objections to
the curative instruction, which was added that morning. Defense counsel
stated, ‘‘I do not believe that [there is] a problem with the instruction . . . .’’
The court explained that it was ‘‘the only difference from the jury charge
that was provided to counsel’’ the day before. This curative instruction does
not pertain to the defendant’s claim on appeal.
We further note that the defendant did not submit a written request to
charge. See State v. Kitchens, supra, 299 Conn. 493 (‘‘Practice Book § 42-
16 informs counsel that it is advisable to file a written request to charge
and provides that there will be no appellate consideration of instructional
error unless such a request is filed or an exception to the charge is taken
immediately following its delivery’’).
10
Because we conclude that the evidence, viewed in the light most favor-
able to sustaining the verdict, was sufficient for the jury to reasonably
conclude that the state disproved the self-defense claim beyond a reasonable
doubt and that the defendant implicitly waived his instructional challenge,
we need not address his claims that Waden’s testimony regarding his prior
convictions was relevant to show that the defendant had a reasonable belief
that Waden was going to attack and that Waden was the initial aggressor.
11
We note that the defendant does not claim that the court’s evidentiary
ruling violated his constitutional right to cross-examine Rykowski.
12
Section 4-4 of the Connecticut Code of Evidence provides in relevant
part: ‘‘(a) Character evidence generally. Evidence of a trait of character of
a person is inadmissible for the purpose of proving that the person acted
in conformity with the character trait on a particular occasion, except that
the following is admissible . . .
‘‘(2) Character of the victim in a . . . criminal assault case. Evidence
offered by an accused in a . . . criminal assault case, after laying a founda-
tion that the accused acted in self-defense, of the violent character of the
victim to prove that the victim was the aggressor, or by the prosecution to
rebut such evidence introduced by the accused. . . .
‘‘(b) Methods of proof. In all cases in which evidence of a trait of character
of a person is admissible to prove that the person acted in conformity with
the character trait, proof may be made by testimony as to reputation or in
the form of an opinion. In cases in which the accused in a . . . criminal
assault case may introduce evidence of the violent character of the victim,
the victim’s character may also be proved by evidence of the victim’s convic-
tion of a crime of violence. . . .’’
13
Section 4-5 of the Connecticut Code of Evidence provides in relevant
part: ‘‘(a) General Rule. Evidence of other crimes, wrongs or acts of a person
is inadmissible to prove the bad character, propensity, or criminal tendencies
of that person . . . .
‘‘(d) Specific instances of conduct when character in issue. In cases in
which character or a trait of character of a person in relation to a charge,
claim or defense is in issue, proof shall be made by evidence of specific
instances of the person’s conduct.’’
14
‘‘It is well established that generally this court will not review claims
that were not properly preserved in the trial court. . . . Where a defendant
fails to seek review of an unpreserved claim under either [State v. Golding,
supra, 213 Conn. 239–40] or the plain error doctrine [set forth in Practice
Book § 60-5], this court will not examine such a claim.’’ (Citation omitted;
internal quotation marks omitted.) State v. Epps, 105 Conn. App. 84, 92, 936
A.2d 701 (2007), cert. denied, 286 Conn. 903, 943 A.2d 1102 (2008).
15
Even if we were to assume, without deciding, that the court erred
in precluding the defendant from cross-examining Rykowski concerning
Waden’s convictions of violent crimes, we would conclude that it was harm-
less error. ‘‘When an improper evidentiary ruling is not constitutional in
nature, the defendant bears the burden of demonstrating that the error was
harmful. . . . [W]hether [an improper ruling] is harmless in a particular
case depends upon a number of factors, such as the importance of the
witness’ testimony in the prosecution’s case, whether the testimony was
cumulative, the presence or absence of evidence corroborating or contradict-
ing the testimony of the witness on material points, the extent of cross-
examination otherwise permitted, and, of course, the overall strength of the
prosecution’s case. . . . Most importantly, we must examine the impact of
the . . . evidence on the trier of fact and the result of the trial. . . . [T]he
proper standard for determining whether an erroneous evidentiary ruling
is harmless should be whether the jury’s verdict was substantially swayed
by the error. . . . Accordingly, a nonconstitutional error is harmless when
an appellate court has a fair assurance that the error did not substantially
affect the verdict.’’ (Internal quotation marks omitted.) State v. Eleck, 314
Conn. 123, 129, 100 A.3d 817 (2014). After Waden testified on direct examina-
tion to the various convictions, defense counsel extensively cross-examined
Waden and, thus, we have a fair assurance that if the court had erroneously
limited the cross-examination of Rykowski, it would not have substantially
affected the verdict.
16
See footnote 6 of this opinion.
17
We note that the record reveals that the defendant’s criminal record, if
any, was never introduced at trial.