State v. Torres

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STATE OF CONNECTICUT v. JULIO TORRES
(AC 38571)
Keller, Mullins and Lavery, Js.
Argued May 18—officially released October 4, 2016
(Appeal from Superior Court, judicial district of
Hartford, Dewey, J.)
James B. Streeto, senior assistant public defender,
for the appellant (defendant).
Bruce R. Lockwood, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Robin D. Krawczyk, senior assistant
state’s attorney, for the appellee (state).
Opinion
LAVERY, J. The defendant, Julio Torres, appeals from
the judgment of conviction, rendered after a jury trial,
of murder in violation of General Statutes § 53a-54a. On
appeal, the defendant claims (1) the court improperly
admitted evidence of his prior misconduct, (2) the court
provided an incorrect jury instruction regarding the
standard of proof beyond a reasonable doubt, (3) the
prosecutor engaged in impropriety during closing and
rebuttal arguments, and (4) the court erred in failing
to disclose the psychiatric records of a state’s witness
following the court’s in camera inspection of the
records. We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. On the night of October 9, 2009, the defendant,
Jorge Zayas, Ricco Correa, and Jose Serrano were drink-
ing alcohol on the porch behind the defendant’s apart-
ment in Hartford. At one point, the victim and Michael
Rodriguez drove into the well lit parking lot adjacent
to the defendant’s apartment building. When the victim
exited the car, the defendant, Zayas, Correa, and Ser-
rano approached him, and an argument ensued. During
the argument, Correa passed a gun to the defendant.
After taking the gun, the defendant shot the victim once
in the head at close range, killing him.1
Rodriguez, who was standing in the parking lot when
the shooting took place, did not see who shot the victim,
but heard the gunshot and immediately turned around
and saw that the defendant was the only person close
to the victim’s body. Seeing Zayas, Correa, and Serrano
standing twenty to twenty-five feet away, Rodriguez
fled the scene on foot. Correa, who had taken back the
gun used to shoot the victim, pursued Rodriguez while
the defendant, Zayas, and Serrano stood in the parking
lot yelling, ‘‘Kill him. Kill him.’’
The defendant’s girlfriend, J.R.,2 observed the whole
incident from the doorway of the defendant’s apart-
ment. After witnessing the defendant shoot the victim,
J.R. went back into the defendant’s apartment and pre-
tended to be asleep. The defendant ran into the apart-
ment and stated to J.R., ‘‘I killed him. I killed him. Get
up.’’ The defendant told J.R. that the victim ‘‘came over
there fighting for the turf and that he shot him.’’ A few
minutes later, the defendant received a phone call from
Correa, who told the defendant that he had ‘‘mistakenly
shot someone else thinking it was [Rodriguez], but that
he was tossing the gun in the river.’’ J.R. could not
remember the type of gun the defendant used to shoot
the victim.
At approximately 1:15 a.m. on October 10, 2009,
police arrived at the scene of the shooting in response
to a 911 call. Officers found the victim’s body in the
parking lot behind the apartment building, bleeding
from the right side of his head. The victim was pro-
nounced dead at the scene. Susan Williams, an associate
medical examiner for the state, determined that the
cause of death was a single gunshot wound to the right
side of the head. Williams estimated that, on the basis
of soot and stippling patterns around the entrance
wound, the muzzle of the gun was approximately six
to ten inches from the right side of the victim’s head
when it was fired.
On September 4, 2013, the state charged the defen-
dant with murder in violation of § 53a-54a. On October
4, 2013, following a jury trial, the defendant was con-
victed of murdering the victim. On December 6, 2013,
the court sentenced the defendant to a total effective
sentence of fifty years incarceration. This appeal fol-
lowed. Additional facts will be set forth as necessary
to our assessment of the issues on appeal.
I
The defendant first claims that the court abused its
discretion by admitting evidence of his prior miscon-
duct, namely, that he had possessed a revolver approxi-
mately three months prior to the murder, for the
purpose of establishing that he had the means to shoot
the victim. In support of this claim, the defendant argues
that the evidence was not relevant and that its prejudi-
cial effect outweighed its probative value. In response,
the state argues that the evidence was relevant because
it tended to show that the defendant had access to a
weapon suitable for the commission of the murder and
that this probative value outweighed the evidence’s
prejudicial effect. We agree with the state.
The following additional facts and procedural history
are relevant to this claim. Prior to trial, the state indi-
cated it was seeking to admit the testimony of Eduardo
Colon, who had been the victim of a prior drive-by
shooting allegedly perpetrated by the defendant. On
September 27, 2013, the court held a hearing during
which the prior misconduct evidence was discussed.
The state represented that Colon would testify that on
July 29, 2009, the defendant had shot him with a chrome
revolver during a nonfatal drive-by shooting for which
the defendant was charged with first degree assault.
The state then argued that Colon’s testimony was rele-
vant ‘‘to show that [the defendant] had the means to
commit th[e] crime.’’ In support of this argument, the
state contended that Colon’s testimony regarding the
defendant’s prior access to a revolver was probative
because the witnesses in the present murder had
observed the defendant carrying a gun and the lab analy-
ses of bullet fragments recovered from the victim’s body
suggested that the bullet was fired from a revolver.
In response, the defendant claimed that this evidence,
‘‘while potentially relevant, [was] more prejudicial than
probative because of the credibility issues surrounding’’
the witnesses to the July 19, 2009 incident. The defen-
dant explained that ‘‘some other witness has said that
they saw [the defendant] . . . the evening of the [vic-
tim’s shooting] in possession of a revolver,’’ and ‘‘to
. . . try and buttress that witness with this remote
event where those witnesses have credibility issues
themselves’’ would confuse the issues and may ‘‘portray
[the defendant] . . . unfairly . . . not only in posses-
sion of a weapon, but using it for violent purposes.’’
The defendant further emphasized that there was not an
established connection between the revolver previously
observed in the defendant’s possession and the shooting
of the victim here, and that the prior incident was
remote in time from the present murder.
The court ruled that the evidence was relevant, but
placed limitations on its admission to alleviate the
defendant’s sole concern that undue prejudice could
result from a detailed discussion of the prior posses-
sion. According to the court’s ruling, the state could
inquire only into whether Colon saw the defendant hold-
ing a revolver and could not probe into the circum-
stances and the assault surrounding that prior
possession. Specifically, the court stated: ‘‘You don’t
have to mention what the event was or why they saw
him [with the revolver], just that on a date there was
a gun. Nothing about what the crime was. Nothing about
any of that information. Just very simply, on that date.
I’m going to allow that and that alone because it is pro-
bative.’’
At trial, and before the state called Colon as a witness,
the defendant twice elicited testimony regarding the
details of his prior possession of the revolver. First,
through the cross-examination of Edwin Cardona, a
state’s witness and the defendant’s parole officer, the
defendant elicited testimony that Cardona had received
a letter from Detective Andrew Jacobson of the Hart-
ford Police Department that indicated that the defen-
dant had been implicated in a nonfatal shooting that
took place on July 19, 2009. The defendant again elicited
evidence during his cross-examination of Jacobson that
exceeded the bounds of the court’s ruling limiting the
admission of evidence regarding his prior possession
of a revolver. Through Jacobson, the defendant brought
out that he had been a suspect in the July 19, 2009
nonfatal shooting, and that the incident involved a drive-
by shooting of two individuals who were selling heroin
on the street.
Also at trial, the state called Iris Sterling, the victim’s
girlfriend, as a witness. Sterling testified that, on the
night of the murder, she saw the defendant inside his
apartment holding a gun and saying, ‘‘let’s play Russian
roulette’’—an act that requires placing a single cartridge
in the cylinder of a revolver. Similarly, J.R. testified
that, on the night of the murder, she saw the defendant
inside his apartment holding a gun, that he was ‘‘always
around guns,’’ but that he did not keep guns inside his
apartment. Additionally, the state’s firearms examiner,
James Stephenson, testified that the bullet fragments
recovered from the victim were consistent with eight
different kinds of revolvers and one kind of semiauto-
matic pistol.
Following this evidence, the state represented that
it intended to call Colon as a witness. In response, the
defendant renewed his objection to Colon’s testimony.
The defendant argued that Colon’s testimony was not
relevant because the state had not established that the
murder weapon had been a revolver. Specifically, the
defendant argued that none of the state’s witnesses at
trial provided a description of the murder weapon, and
J.R. could not recall the kind of gun the defendant used
to shoot the victim. Given that the state’s witnesses
were unable to provide a description of the murder
weapon, the defendant argued, Colon’s testimony was
not relevant because the state had failed to establish ‘‘a
sufficient linkage’’ between the chrome revolver Colon
observed the defendant carrying on July 19, 2009, and
the murder weapon. The defendant also renewed his
objection on prejudice grounds.
The court overruled the defendant’s objection, find-
ing that Colon’s testimony was relevant and not unduly
prejudicial because the defendant already had elicited
testimony regarding the prior shooting, the very testi-
mony that he claimed would have been unduly prejudi-
cial. On the issue of prejudice, the court stated: ‘‘The
jury already knows, primarily through your cross-exam-
ination of [Jacobson] that you put out the information
. . . that there was an accusation involving a gun. So
I don’t think it’s going to be unduly prejudicial and it
does—it is relevant. But the information was brought
out several times to [Jacobson] that when he was—
when you were attempting to challenge the letters, that
your client was arrested for an assault involving a gun.’’
Thereafter, consistent with the court’s ruling limiting
Colon’s testimony, Colon testified that on July 19, 2009,
he saw the defendant carrying a ‘‘[c]hrome plated
revolver.’’ The court then instructed the jury as follows:
‘‘That testimony was offered by the state in an effort
to establish an element of the offense. You can accept
it, you cannot accept it, but it’s not [to] be used for any
other reason including any indication of that character
or propensity to do any type of act.’’ The defendant did
not object to this limiting instruction.
On appeal, the defendant claims that the court abused
its discretion in admitting Colon’s testimony that he
previously had possessed a revolver because the evi-
dence is not relevant and, alternatively, is more prejudi-
cial than probative. We disagree.
‘‘The standard of review regarding uncharged miscon-
duct evidence is well established. Evidence of a defen-
dant’s uncharged misconduct is inadmissible to prove
that the defendant committed the charged crime or to
show the predisposition of the defendant to commit
the charged crime. . . . Exceptions to this rule have
been recognized, however, to render misconduct evi-
dence admissible if, for example, the evidence is offered
to prove intent, identity, malice, motive, a system of
criminal activity or the elements of a crime. . . . To
determine whether evidence of prior misconduct falls
within an exception to the general rule prohibiting its
admission, we have adopted a two-pronged analysis.
. . . First, the evidence must be relevant and material
to at least one of the circumstances encompassed by
the exceptions. Second, the probative value of such
evidence must outweigh the prejudicial effect of the
other crime evidence. . . . Since the admission of
uncharged misconduct evidence is a decision within
the discretion of the trial court, we will draw every
reasonable presumption in favor of the trial court’s
ruling. . . . We will reverse a trial court’s decision only
when it has abused its discretion or an injustice has
occurred.’’ (Internal quotation marks omitted.) State v.
Franklin, 162 Conn. App. 78, 96, 129 A.3d 770 (2015),
cert. denied, 321 Conn. 905, 138 A.3d 281 (2016).
A
In the present case, the defendant contends that
Colon’s testimony was not relevant because the state
failed to establish that the revolver Colon previously
saw the defendant possess and the murder weapon
were the same gun. This specific argument is unavailing,
however, because this court has already concluded that
‘‘[e]vidence indicating that an accused possessed an
article with which the particular crime charged may
have been accomplished is generally relevant to show
that the accused had the means to commit the crime.
. . . The state does not have to connect a weapon
directly to the defendant and the crime. It is necessary
only that the weapon be suitable for the commission
of the offense.’’ (Citation omitted; emphasis altered;
internal quotation marks omitted.) Id.
In Franklin, a firearms examination determined that
the gun used to kill the victim was a nine millimeter
semiautomatic pistol. Id., 97. At trial, in order to estab-
lish that the defendant possessed the means to commit
the crime, the state admitted the testimony of a witness
that, approximately three months before the murder,
she was confronted by the defendant who ‘‘point[ed]
at her what ‘looked like a little gun’ and threatened to
shoot her.’’ Id., 95. The witness testified that she could
not tell whether the gun was a semiautomatic pistol or
a revolver, and that ‘‘all that she saw was the small,
skinny nozzle of the gun and part of the barrel.’’ (Inter-
nal quotation marks omitted.) Id. On appeal, the defen-
dant claimed that the witness’ testimony was not
relevant to the issue of whether he possessed the means
to commit the murder because her description of the
gun was not sufficiently similar to the semiautomatic
pistol used to shoot the victim. Id., 97. In rejecting this
claim, this court noted that the defendant’s effort to
establish that the evidence was not relevant was primar-
ily based on ‘‘speculation that [the witness] only possi-
bly could have seen a revolver, not a pistol.’’ Id.
Comparing the witness’ description of the gun with the
semiautomatic pistol used in the shooting, however,
this court concluded that ‘‘[t]he jury reasonably could
have inferred from [the witness’] testimony that she saw
a handgun, and at that time, the defendant possessed
a weapon suitable for the commission of the offense
charged.’’ Id., 97–98; see also State v. Sivri, 46 Conn.
App. 578, 585, 700 A.2d 96 (rejecting claim that there was
insufficient connection between large caliber handguns
recovered from defendant’s residence and murder of
victim, where state presented evidence that victim lost
large quantity of blood in defendant’s family room and
holes in victim’s skull indicated she was killed by large
caliber handgun), cert. denied, 243 Conn. 938, 702 A.2d
644 (1997).
Our review of the record in the present case per-
suades us that the court did not abuse its discretion in
determining that Colon’s testimony was relevant. Rele-
vance, in this context, is satisfied by a showing that the
prior weapon was ‘‘suitable for the commission’’ of the
present crime. State v. Franklin, supra, 162 Conn. App.
97–98. Suitability is sufficient because ‘‘[t]he state does
not have to connect a weapon directly to the defendant
and the crime. It is necessary only that the weapon be
suitable for the commission of the offense.’’ (Emphasis
omitted.) Id. Here, the evidence adduced at trial estab-
lished that the revolver that Colon previously observed
in the defendant’s possession was suitable for the mur-
der. At trial, Stephenson testified that, after examining
the bullet fragments recovered from the victim, he
determined that the bullet was consistent with eight
different kinds of revolvers and only one kind of semiau-
tomatic pistol. The absence of a spent shell casing at
the scene of the shooting was also consistent with the
use of a revolver. Additionally, Sterling testified that
she saw the defendant inside his apartment on the night
of the shooting holding a gun and saying, ‘‘let’s play
Russian roulette.’’ Although this evidence does not
establish a definitive connection between the revolver
previously observed in the defendant’s possession and
the firearm used to kill the victim, the jury could infer
from this evidence that three months prior to the shoot-
ing the defendant possessed and had access to the same
type of firearm used in the shooting.
We further note that the fact that Correa handed the
murder weapon to the defendant moments before the
victim was shot does not render Colon’s testimony less
relevant. Although the defendant argues that the murder
weapon could have been Correa’s gun and not the
revolver Colon saw the defendant previously possess,
that argument is unpersuasive in light of Franklin,
which specifically rejects the need ‘‘to connect a
weapon directly to the defendant and the crime.’’ State
v. Franklin, supra, 162 Conn. App. 96. Moreover, the
evidence adduced at trial does not necessarily support
the defendant’s argument. To the contrary, J.R. testified
that throughout the night of October 9, 2009, a group
of individuals, including Correa, was inside the defen-
dant’s apartment and on the back porch drinking alco-
hol. J.R. and Sterling testified that, during that time
period, they saw the defendant carrying a gun, and
circumstantial evidence supported the inference that
the defendant’s gun was a revolver. Specifically, the
defendant stated, ‘‘let’s play Russian roulette,’’ no shell
casing was recovered from the scene, and the state’s
firearms examiner testified that the bullet fragments
recovered from the victim were consistent with eight
different kinds of revolvers, but only one kind of semi-
automatic pistol. Although Correa ultimately passed the
defendant the murder weapon, the jury reasonably
could have inferred that the murder weapon was the
same revolver that J.R. and Sterling saw the defendant
holding earlier that night. Additionally, J.R. testified
that the defendant was ‘‘always around guns,’’ but that
he did not keep guns inside his apartment. Finally, no
evidence was produced at trial that excluded the
revolver Colon previously observed in the defendant’s
possession as the firearm used to commit the murder.
Accordingly, Colon’s testimony was relevant to the
issue of whether the defendant had the means to com-
mit the crime. See State v. Franklin, supra, 96.
B
We next turn to whether the prior misconduct evi-
dence was more prejudicial than probative. Here, the
defendant argues that the probative value of Colon’s
testimony was minimal because the state failed to con-
nect the revolver to the shooting and because it was
cumulative of other evidence. The defendant further
contends that the prejudicial effect of Colon’s testi-
mony, including details that the defendant had been
the perpetrator in a prior shooting, outweighed the testi-
mony’s minimal probative value, and that the court’s
curative instruction exacerbated the prejudicial effect
of the evidence. We disagree.
‘‘Although relevant, evidence may be excluded by the
trial court if the court determines that the prejudicial
effect of the evidence outweighs its probative value.
. . . Of course, [a]ll adverse evidence is damaging to
one’s case, but it is inadmissible only if it creates undue
prejudice so that it threatens an injustice were it to be
admitted. . . . The test for determining whether evi-
dence is unduly prejudicial is not whether it is damaging
to the defendant but whether it will improperly arouse
the emotions of the jur[ors]. . . . The trial court . . .
must determine whether the adverse impact of the chal-
lenged evidence outweighs its probative value. . . .
Finally, [t]he trial court’s discretionary determination
that the probative value of evidence is not outweighed
by its prejudicial effect will not be disturbed on appeal
unless a clear abuse of discretion is shown. . . .
[B]ecause of the difficulties inherent in this balancing
process . . . every reasonable presumption should be
given in favor of the trial court’s ruling. . . . Reversal
is required only [when] an abuse of discretion is mani-
fest or [when] injustice appears to have been done.’’
(Internal quotation marks omitted.) State v. Pena, 301
Conn. 669, 675–76, 22 A.3d 611 (2011).
Our review of the record leads us to conclude that
the court did not abuse its discretion in determining
that the prejudicial effect of Colon’s testimony did not
outweigh its probative value. We do not agree with the
defendant’s contention that Colon’s testimony lacked
probative value because the two guns were not shown
conclusively to be the same, or that the testimony was
entirely cumulative of other evidence. As previously
noted; see part I A of this opinion; evidence that the
defendant previously possessed a weapon, introduced
to show that he had the means to commit the crime
alleged, is relevant and probative if the prior weapon
is a type that is suitable for the commission of the
charged crime. See State v. Franklin, supra, 162 Conn.
App. 97–98. Further, Colon’s testimony was not cumula-
tive of other trial testimony. Although J.R. testified that
the defendant always was around guns, and both J.R.
and Sterling testified that they saw the defendant in
possession of a gun on the night of the crime, neither
witness was able to specify that she saw the defendant
in possession of a revolver. Thus, Colon was the only
witness who provided direct evidence that, prior to
the night of the crime, the defendant had access to a
revolver. This was a contested issue as, during pretrial
arguments, the defendant declined to stipulate that he
was in possession of a revolver on the night of the
murder. Viewed in conjunction with Stephenson’s testi-
mony that the bullet fragments recovered from the vic-
tim were consistent with the use of a revolver, and
Sterling’s testimony that, on the night of the murder,
the defendant brandished a gun suitable for Russian
roulette, Colon’s direct testimony that the defendant
previously had access to a revolver carried probative
value.
Likewise, we disagree that Colon’s testimony was
overly prejudicial. First, we note that in the trial court
the defendant’s objection to the evidence on prejudice
grounds was based on the danger that testimony regard-
ing the circumstances of his prior possession of a
revolver, specifically, that he shot Colon during a drive-
by shooting, would be placed before the jury. The court,
however, took care to limit this prejudicial effect by
permitting Colon to testify only that he saw the defen-
dant on July 19, 2009, in possession of a revolver. This
ruling, therefore, precluded the portion of Colon’s testi-
mony that would have caused undue prejudice. See
State v. Pena, supra, 301 Conn. 676 (‘‘[A]ll adverse evi-
dence is damaging to one’s case, but it is inadmissible
only if it creates undue prejudice so that it threatens
an injustice were it to be admitted. . . . The test for
determining whether evidence is unduly prejudicial is
not whether it is damaging to the defendant but whether
it will improperly arouse the emotions of the jur[ors].’’
[Internal quotation marks omitted.]). Moreover, the
defendant himself elicited testimony about the use of
the revolver in a drive-by shooting before the state
called Colon as a witness. The defendant did so knowing
that the court’s ruling forbade the state from presenting
testimony regarding the drive-by shooting at any point
during the trial. Accordingly, the defendant elicited the
precise testimony he argued was unduly prejudicial
without any prompting from the state and, as a result,
was solely responsible for any undue prejudice that
stemmed from Colon’s limited testimony.3 See State v.
Holley, 160 Conn. App. 578, 631, 127 A.3d 221 (‘‘[i]t is
well settled that [a] defendant cannot rely upon the
admission of evidence which he himself introduced as a
basis for a reversal of his conviction’’ [internal quotation
marks omitted]), cert. granted on other grounds, 320
Conn. 906, 127 A.3d 1000 (2015). Further, Colon’s testi-
mony that the defendant possessed a gun was not likely
to evoke an emotional response from the jury in a case
where the defendant was charged with murder. State v.
Collins, 299 Conn. 567, 588, 10 A.3d 1005 (‘‘[u]ncharged
misconduct evidence has been held not unduly prejudi-
cial when the evidentiary substantiation of the vicious
conduct, with which the defendant was charged, far
outweighed, in severity, the character of his prior mis-
conduct’’ [internal quotation marks omitted]), cert.
denied, 565 U.S. 908, 132 S. Ct. 314, 181 L. Ed. 2d 193
(2011).
Finally, we decline to review the defendant’s argu-
ment that the limiting instruction provided by the court
exacerbated the prejudicial effect of Colon’s testimony.
Overlooking the court’s instruction that the evidence
is ‘‘not [to] be used for any other reason including any
indication of that character or propensity to do any type
of act,’’ the defendant argues that the court’s limiting
instruction improperly permitted the jury to consider
the evidence as ‘‘an element’’ of the offense and, in
that capacity, as propensity evidence. The defendant,
however, did not object to the limiting instruction that
the court issued directly after Colon testified and did
not object to the uncharged misconduct instruction that
the court gave in its final instructions to the jury. See
also part II of this opinion (dismissing as waived defen-
dant’s challenge to jury instruction). Accordingly, we
decline to review the defendant’s unpreserved argu-
ment that the court’s limiting instruction exacerbated
the prejudicial effect of the prior misconduct evidence;
see Practice Book § 60-5; State v. William C., 103 Conn.
App. 508, 520 n.6, 930 A.2d 753, cert. denied, 284 Conn.
928, 934 A.2d 244 (2007); and conclude that the court
did not abuse its discretion in admitting the evidence.
II
The defendant next claims that the court provided
an incorrect instruction to the jury regarding the state’s
burden of proof beyond a reasonable doubt. In
response, the state argues that the defendant waived
his challenge to the court’s instructions under State v.
Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011).
The defendant, however, argues that Kitchens does not
apply to the present claim and, alternatively, requests
that we overrule Kitchens. We agree with the state.
On October 3, 2013, prior to instructing the jury, the
court held a charging conference on the record in which
it stated that the parties had received a copy of the
proposed jury instructions earlier that morning for
review. The court then reviewed with counsel each
individual page of the proposed instructions and solic-
ited comments and objections. The defendant did not
object or suggest any changes to the proposed instruc-
tions on reasonable doubt at the charging conference,
and did not object to the reasonable doubt instruction
when the charge was read to the jury.
In State v. Kitchens, supra, 299 Conn. 482–83, our
Supreme 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 defen-
dant may be deemed to have knowledge of any potential
flaws therein and to have waived implicitly the constitu-
tional right to challenge the instructions on direct
appeal.’’
Our careful review of the record in the present case
indicates that the defendant waived his challenge to
the reasonable doubt instructions under Kitchens.
Here, the court provided the defendant with a copy
of the proposed jury instructions, which included the
instruction being challenged on appeal, as well as a
meaningful opportunity to review them. The court then
held a charging conference on the record where it
reviewed the proposed instructions page by page and
solicited the parties’ comments and objections. Never-
theless, the defendant did not object to the reasonable
doubt instruction. Under these circumstances, the
defendant waived his instructional claim.
Our review does not end here, however, because the
defendant argues that Kitchens is not applicable to the
present case because the court did not mark as an
exhibit the proposed jury instructions that were pro-
vided to the defendant for review. We disagree with this
argument. The court in Kitchens held that the defendant
impliedly waives his or her constitutional right to chal-
lenge jury instructions on appeal ‘‘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 . . . .’’ Id.
The record here clearly establishes that the defendant
was provided with a copy of the proposed jury instruc-
tions, given a meaningful opportunity to review them,
and failed to object to the instructions when the court
read the same instructions to the jury. That the court
did not mark the proposed instructions as a court
exhibit does not alter this analysis.4
III
The defendant next claims that he was denied the
right to a fair trial due to prosecutorial impropriety.
Specifically, the defendant argues that, during closing
and rebuttal arguments, the prosecutor (1) made state-
ments that were speculative and not based on evidence
in the record, and (2) misstated the law regarding the
standard of proof beyond a reasonable doubt. We con-
clude that none of the statements at issue was improper,
and, consequently, we do not address the defendant’s
claim that the alleged improprieties violated his due
process right to a fair trial.
As an initial matter, we note that the defendant did
not object to any of the challenged statements at trial.
‘‘It is well established law . . . that a defendant who
fails to preserve claims of prosecutorial [impropriety]
need not seek to prevail under the specific requirements
of State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823
(1989), and, similarly, it is unnecessary for a reviewing
court to apply the four-pronged Golding test. . . . Our
Supreme Court has explained that the defendant’s fail-
ure to object at trial to each of the occurrences that
he now raises as instances of prosecutorial impropriety,
though relevant to our inquiry, is not fatal to review of
his claims. . . . This does not mean, however, that the
absence of an objection at trial does not play a signifi-
cant role in the determination of whether the challenged
statements were, in fact, improper . . . . To the con-
trary, we continue to adhere to the well established
maxim that defense counsel’s failure to object to the
prosecutor’s argument when it was made suggests that
defense counsel did not believe that it was [improper]
in light of the record of the case at the time. . . . With
this maxim in mind, we proceed with our review of
the defendant’s claim[s].’’ (Citations omitted; internal
quotation marks omitted.) State v. Maner, 147 Conn.
App. 761, 782, 83 A.3d 1182, cert. denied, 311 Conn. 935,
88 A.3d 550 (2014).
‘‘[I]n analyzing claims of prosecutorial [impropriety],
we engage in a two step process. The two steps are
separate and distinct: (1) whether [an impropriety]
occurred in the first instance; and (2) whether that
[impropriety] deprived [the] defendant of his due pro-
cess right to a fair trial. Put differently, [an impropriety
is an impropriety], regardless of its ultimate effect on
the fairness of the trial; whether that [impropriety]
caused or contributed to a due process violation is a
separate and distinct question . . . .’’ (Internal quota-
tion marks omitted.) State v. Franklin, supra, 162 Conn.
App. 100. ‘‘[W]hen a defendant raises on appeal a claim
that improper remarks by the prosecutor deprived the
defendant of his constitutional right to a fair trial, the
burden is on the defendant to show, not only that the
remarks were improper, but also that, considered in
light of the whole trial, the improprieties were so egre-
gious that they amounted to a denial of due process.’’
(Internal quotation marks omitted.) State v. Maner,
supra, 147 Conn. App. 783.
‘‘When reviewing the propriety of a prosecutor’s
statements, we do not scrutinize each individual com-
ment in a vacuum but, rather, review the comments
complained of in the context of the entire trial. . . .
Finally, when a prosecutor’s potentially improper
remarks are ambiguous, a court should not lightly infer
that a prosecutor intends an ambiguous remark to have
its most damaging meaning or that a jury, sitting through
a lengthy exhortation, will draw that meaning from the
plethora of less damaging interpretations.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Felix R., 319 Conn. 1, 9, 124 A.3d 871 (2015).
A
We first address the defendant’s claim that the prose-
cutor improperly engaged in speculation and com-
mented on facts not in evidence when she argued to
the jury during closing argument that ‘‘[J.R.] was present
at the installation [of the monitoring unit],’’ and that
‘‘people in that area are familiar with electronic brace-
lets . . . .’’ See footnote 1 of this opinion.
‘‘We long have held that a prosecutor may not com-
ment on evidence that is not a part of the record and
may not comment unfairly on the evidence in the
record. . . . However, the prosecutor may argue the
state’s case forcefully, [provided the argument is] fair
and based upon the facts in evidence and the reasonable
inferences to be drawn therefrom . . . . Furthermore,
[c]ounsel must be allowed a generous latitude in argu-
ment, as the limits of legitimate argument and fair com-
ment cannot be determined precisely by rule and line,
and something must be allowed for the zeal of counsel
in the heat of argument. . . . While a prosecutor is not
permitted to interject his own opinion generally, he
must be permitted to speak to the cumulative evidence
he has put forth during the course of trial. . . . Like-
wise, [w]e must give the jury the credit of being able
to differentiate between argument on the evidence and
attempts to persuade them to draw inferences in the
state’s favor, on one hand, and improper unsworn testi-
mony, with the suggestion of secret knowledge, on the
other hand.’’ (Citations omitted; internal quotation
marks omitted.) State v. Franklin, supra, 162 Conn.
App. 101.
We conclude that the prosecutor’s comment to the
jury that, ‘‘[m]aybe, [J.R.] was present at the installa-
tion,’’ properly was based upon the evidence elicited
at trial. At trial, J.R. testified that, prior to the shooting,
she assisted the defendant in testing the range of his
bracelet. Additionally, Matthew Kennedy, a manager
from the electronic monitoring company, testified that
range testing could only be conducted when the moni-
toring unit was initially installed. The prosecutor’s com-
ment, therefore, was a reasonable inference that
reconciled both sets of testimony.
Likewise, we conclude that the prosecutor’s com-
ment that ‘‘the people in that area are familiar with
the electronic bracelets,’’ could reasonably have been
inferred from evidence in the record. Kennedy testified
that the monitoring unit in the defendant’s residence
had a range of 150 feet. The state admitted an electronic
monitoring report into evidence that revealed that from
October 9 through October 12, 2009, the defendant’s
monitoring unit had detected eight other electronic
bracelets in that range. Thus, during that three day
period, there were at least eight other individuals in
close proximity to the defendant’s residence who were
subject to electronic monitoring. The jury reasonably
could have inferred from this evidence that people in the
defendant’s area were generally familiar with electronic
monitoring bracelets. Accordingly, the prosecutor’s
comments to the jury were not improper.
B
We next address the defendant’s claim that the prose-
cutor misstated the law regarding the standard for proof
beyond a reasonable doubt during her closing argu-
ment. During her closing argument, the prosecutor
made the following remark: ‘‘No one gave you any rea-
son to believe that anyone other than the defendant
killed [the victim]. And no one gave you a reason to
believe the defendant couldn’t have been the one to
kill [the victim].’’ During rebuttal argument, the state
argued: ‘‘And the last thing I want to leave you with is
that reasonable doubt is not, I don’t know, maybe it
happened a different way. I don’t know, maybe some-
body else did it. I don’t know, maybe we’re not sure.
Reasonable doubt is a real doubt . . . an honest doubt,
a doubt which you can attach a reason to. I don’t believe
that [J.R.] is telling the truth because. I don’t believe
[Rodriguez] is telling the truth because. A doubt that
you can actually enunciate. A doubt that you can
express, not some like oh, I don’t know, maybe some-
thing else. Not based on speculation. Not based on
conjecture. If you believe [J.R.], then [the defendant]
shot and killed [the victim]. And if you believe . . .
Rodriguez, then [the defendant] shot and killed [the
victim]. And if you look at their testimony in light of
everybody else’s, and all the things that you know, and
the fact that the electronic bracelet does not provide
an alibi for him, then you have to find him guilty and
that’s what I’m asking you to do.’’ (Emphasis added.)
On appeal, the defendant argues that the prosecutor’s
comments improperly suggested to the jury that reason-
able doubt required the jurors to articulate a reason in
order to find the defendant not guilty, which impermis-
sibly shifted the burden to the defendant to prove his
innocence. We disagree.
It is well established that ‘‘prosecutors are not permit-
ted to misstate the law . . . and suggestions that dis-
tort the government’s burden of proof are likewise
improper . . . because such statements are likely to
improperly mislead the jury.’’ (Internal quotation marks
omitted.) State v. Herring, 151 Conn. App. 154, 172, 94
A.3d 688, cert. granted on other grounds, 314 Conn.
914, 100 A.3d 849 (2014). However, ‘‘[w]e consistently
have held that the definition of reasonable doubt as a
real doubt, an honest doubt, a doubt which has its
foundation in the evidence or lack of evidence, as a
doubt for which a valid reason can be assigned, and as
a doubt in which the serious affairs which concern you
in every day life you would pay heed and attention to
does not dilute the state’s burden of proof when such
definitions are viewed in the context of an entire [jury]
charge.’’ (Internal quotation marks omitted.) State v.
Ferguson, 260 Conn. 339, 371, 796 A.2d 1118 (2002);
see also State v. Ellis, 232 Conn. 691, 705, 657 A.2d 1099
(1995) (rejecting claim that state’s burden of proof was
diluted on basis of jury instruction that ‘‘[a] reasonable
doubt is a doubt for which a valid reason can be
assigned’’ [internal quotation marks omitted]).
In the present case, none of the prosecutor’s remarks,
viewed in conjunction with the entirety of the closing
and rebuttal arguments, improperly misstated the law
regarding reasonable doubt. See State v. Ferguson,
supra, 260 Conn. 371; State v. Ellis, supra, 232 Conn.
705. Moreover, the prosecutor did not misstate the law
when she commented to the jury that, ‘‘I don’t believe
that [J.R.] is telling the truth because. I don’t believe
[Rodriguez] is telling the truth because.’’ In view of the
context in which these statements were made, it is clear
that the prosecutor merely was encouraging the jury
to determine the credibility of the state’s witnesses on
the basis of the actual evidence presented at trial rather
than their own speculation. This court previously
rejected a claim of prosecutorial impropriety where the
comments ‘‘directed the jury to do exactly what it was
supposed to do—weigh the credibility of the witness
in accordance with all of the evidence put before it in
the courtroom and not engage in speculation. . . . Ask-
ing the jury to believe a witness unless there is evidence
to discredit the witness is a proper request and in no
way shifts the burden of [proof] from the state to the
defendant.’’ (Citation omitted.) State v. Betancourt, 106
Conn. App. 627, 641, 942 A.2d 557, cert. denied, 287
Conn. 910, 950 A.2d 1285 (2008). Because the prosecu-
tor’s comments did no more than discourage specula-
tion, they were not improper.
IV
The defendant’s final claim is that the trial court
abused its discretion in failing to release all of J.R.’s
psychiatric records to the defense following an in cam-
era review of the records. We disagree.
The following additional facts and procedural history
are relevant to our resolution of this claim. Prior to
trial, the state subpoenaed J.R.’s mental health records
from Capital Region Mental Health Center, where she
had been a patient from June, 2008, to March, 2009,
and Hartford Behavioral Health, where she had been
a patient from August, 2011, to September, 2013. On
September 27, 2013, the defendant filed a motion
requesting that the court review J.R.’s mental health
records in camera and turn over to the defense any
material from the records that would be relevant to
J.R.’s testimonial capacity. On September 27, 2013, the
court held a hearing on the defendant’s motion, where
it determined that the defendant had made the requisite
preliminary showing to support an in camera review of
the records. The court then reviewed the records in
camera. On September 30, 2013, after reviewing the
records, the court stated on the record that ‘‘[it had]
go[ne] over [J.R.’s] files from both Hartford Behavioral
Health and the Capital Region, and gave to [defense]
counsel anything that was relevant concerning credibil-
ity, ability to testify, anything in that regard, and that
would be needed for trial.’’
‘‘Upon inspecting the records in camera, the trial
court must determine whether the records are espe-
cially probative of the witness’ capacity to relate the
truth or to observe, recollect and narrate relevant occur-
rences. . . . If the court determines that the records
are probative, the state must obtain the witness’ further
waiver of his privilege concerning the relevant portions
of the records for release to the defendant, or have the
witness’ testimony stricken. If the court discovers no
probative and impeaching material, the entire record
of the proceeding must be sealed and preserved for
possible appellate review. . . . Once the trial court has
made its inspection, the court’s determination of a
defendant’s access to the witness’ records lies in the
court’s sound discretion, which we will not disturb
unless abused.’’ (Internal quotation marks omitted.)
State v. Slimskey, 257 Conn. 842, 855–56, 779 A.2d 723
(2001). On appeal, the appellate tribunal reviews the
confidential records to determine whether the trial
court abused its discretion in concluding that no infor-
mation contained therein is ‘‘especially probative of the
victim’s ability to know and correctly relate the truth so
as to justify breaching their confidentiality in disclosing
them to the defendant.’’ State v. Storlazzi, 191 Conn.
453, 460, 464 A.2d 829 (1983). ‘‘We are mindful that
the restriction of a defendant’s access to a witness’
confidential records implicates the defendant’s consti-
tutional right to impeach and discredit state witnesses.’’
(Internal quotation marks omitted.) State v. Francis,
267 Conn. 162, 172, 836 A.2d 1191 (2003).
Our independent review of J.R.’s mental health
records, viewed in conjunction with the entire trial tran-
script, confirms the court’s conclusion that the material
contained therein that was not disclosed by the court is
not relevant to J.R.’s credibility or capacity as a witness.
Accordingly, we conclude that the court properly exer-
cised its discretion by refusing to disclose certain por-
tions of the records to the defense.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant was on parole at the time of the shooting and was required
to wear an ankle bracelet to ensure that he complied with a 9 p.m. to 5
a.m. curfew. There was a monitoring unit inside the defendant’s apartment
that would indicate to the monitoring agency if the defendant exceeded a
range of approximately 150 feet. Police determined that the victim’s body
was located approximately 125 feet from the monitoring unit.
2
We refer to this witness by her initials because we discuss her privileged
psychiatric records. See State v. Santos, 318 Conn. 412, 415 n.2, 121 A.3d
697 (2015).
3
We further reject the defendant’s claim that the court’s pretrial ruling
to admit Colon’s testimony compelled him to cross-examine Jacobson and
Cardona about the defendant’s use of the revolver in a nonfatal shooting.
In its pretrial ruling, the court explicitly stated, and then reiterated upon
the defendant’s request for clarification, that Colon could not testify as to
the use of the revolver in the drive-by shooting or that the incident resulted
in criminal charges against the defendant. The defendant thus made an
unprompted strategic decision to elicit the potentially inflammatory evi-
dence from Jacobson and Cardona in order to impeach their credibility and
to prevent the jury from speculating about the details of the July 19, 2009
incident. That this tactic proved ineffective does not provide the defendant
with grounds to overturn his conviction on appeal. See State v. Gibson, 270
Conn. 55, 67, 850 A.2d 1040 (2004) (‘‘[t]o allow [a] defendant to seek reversal
[after] . . . his trial strategy has failed would amount to allowing him to
induce potentially harmful error, and then ambush the state [and the trial
court] with that claim on appeal’’ [internal quotation marks omitted]); see
also State v. Clark, 48 Conn. App. 812, 820 n.6, 713 A.2d 834 (‘‘[a]n appellant
cannot create a reviewable claim because his appellate counsel disagrees
with the strategy of his trial counsel’’), cert. denied, 245 Conn. 921, 717 A.2d
238 (1998).
4
We also are unable to accept the defendant’s invitation to overrule Kitch-
ens. ‘‘[T]his court will not reexamine or reevaluate Supreme Court precedent.
Whether a Supreme Court holding should be reevaluated and possibly dis-
carded is not for this court to decide.’’ (Internal quotation marks omitted.)
State v. Billie, 123 Conn. App. 690, 706, 2 A.3d 1034 (2010).