State v. McKinney

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STATE OF CONNECTICUT v. WILLIAM MCKINNEY
(AC 43611)
Bright, C. J., and Alvord and Harper, Js.
Syllabus
The defendant appealed to this court from the judgments of the trial court
rendered in accordance with the jury’s verdict of guilty of the crime of
assault of an elderly person in the second degree and the court’s finding
that the defendant had violated his probation. The defendant was
involved in a verbal disagreement with the victim during which he
punched the victim repeatedly, which resulted in serious injuries to the
victim. The defendant raised a claim of self-defense in which he asserted
that he suffered injuries when the victim attacked him first with a sock
that had a rock inside it. At the time of the incident with the victim,
the defendant was serving a probationary sentence as a result of a
previous conviction. Prior to trial, the court denied a motion he filed
to correct an illegal sentence in which he challenged the validity of the
prior conviction. The defendant thereafter appealed to this court from
that denial but subsequently withdrew the appeal. At the sentencing
proceeding on the defendant’s assault conviction, the trial court declined
to consider a second motion the defendant filed to correct the sentence
imposed on the prior conviction. Held:
1. This court declined to review the merits of the defendant’s claim that the
prior trial court abused its discretion in denying his first motion to
correct an illegal sentence, the defendant having waived any claims
relating to that motion when he withdrew his appeal challenging its
denial; there was no merit to the defendant’s assertion, which contra-
vened the well established law of waiver, that his filing of the second
motion to correct an illegal sentence negated the withdrawal of the
prior appeal and, thus, allowed him to renew his challenge to the prior
trial court’s denial of his first motion to correct an illegal sentence.
2. The defendant’s claim that the trial court erred in certain of its evidentiary
rulings was unavailing:
a. The defendant’s assertion that the trial court erred in excluding relevant
testimony from a police detective as to whether a sock with a rock inside
it was a weapon was rendered unreviewable as a result of the defendant’s
failure to make an offer of proof at trial; because the defendant gave no
explanation as to why the evidence was relevant, the trial court did not
know the specific theory that supported the admission or nature of the
proposed evidence, and, thus, this court could not determine whether
the trial court’s ruling was harmful, as an assessment of the defendant’s
claim would require a record that reflects the substance of the detective’s
expected testimony.
b. The trial court did not abuse its discretion in determining that a
physician’s testimony about an incident more than six years earlier in
which a police officer allegedly hit the defendant with a baton was
relevant: notwithstanding the state’s contention that the defendant’s
claim was unpreserved for appellate review because he raised a theory
of relevancy on appeal that he did not argue at trial, which was that the
physician was not the appropriate witness to testify because he had no
knowledge of the prior incident, the defendant’s attempt to assert a new
argument that was premised on a different perspective of the evidence
did not render his claim unpreserved, as this court was limited to
assessing the relevancy of the testimony exclusively within the confines
of the defendant’s arguments at trial; moreover, because the defendant
raised the defense of self-defense, it was relevant for the state to present
evidence that would allow the jury to infer that the injuries from which
he allegedly suffered were not the result of an attack by the victim but,
rather, were caused when he previously was hit with the baton, which
was a material issue of fact for the jury’s consideration in evaluating
whether the defendant’s use of physical force against the victim was
justified under the circumstances.
c. The defendant could not prevail on his unpreserved claim that the
trial court improperly struck certain of his counsel’s statements during
closing argument to the jury and thereby violated his sixth amendment
right to the effective assistance of counsel because those statements
were essential to his self-defense claim: although the record was adequate
for review and the claim was of constitutional magnitude, the defendant
failed to demonstrate that the alleged constitutional violation existed,
as the inference counsel sought to draw, which was that the victim
attacked at least one other person with the sock that had a rock in it,
was unreasonable and not based on facts in evidence, as was counsel’s
statement that the evidence supported the inference that the defendant
probably had been struck by the sock with the rock in it; moreover,
even though only certain DNA evidence could possibly have supported
a conclusion that the sock with a rock in it was used to hit someone
other than the defendant, no facts were adduced at trial to indicate how
or when such an incident could have occurred, there was no evidence
to support a conclusion that the DNA on the sock was the result of an
attack, and, thus, counsel’s argument required expansive speculation as
to facts not in evidence to permit a conclusion that the victim used the
sock with the rock in it to attack a third party; accordingly, the defen-
dant’s right to present a closing argument was not abridged.
Argued October 4—officially released December 21, 2021
Procedural History
Two substitute informations charging the defendant,
in the first case, with the crimes of assault of an elderly
person in the first degree and assault of an elderly
person in the second degree, and, in the second case,
with violation of probation, brought to the Superior
Court in the judicial district of New Haven, where the
first case was tried to the jury before B. Fischer, J.,
and the second case was tried to the court; verdict and
judgment of guilty of assault of an elderly person in the
second degree and judgment revoking the defendant’s
probation, from which the defendant appealed to this
court. Affirmed.
Raymond L. Durelli, assigned counsel, for the appel-
lant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Sean P. McGuinness, assistant state’s
attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, William McKinney,1 appeals
from the judgment of conviction, rendered after a jury
trial, of one count of assault of an elderly person in the
second degree in violation of General Statutes § 53a-
60b (a) (1).2 The defendant also appeals from the court’s
judgment finding him in violation of his probation pur-
suant to General Statutes § 53a-32. The defendant
claims that the court erred in (1) denying his first motion
to correct an illegal sentence that he filed and (2) its
rulings on several evidentiary objections during trial.
We affirm the judgments of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to the
defendant’s appeal. At about 11 p.m. on July 13, 2017,
on the New Haven Green (Green), about fifty yards in
from the street, near a fountain in the middle of the
lower Green, the defendant became involved in a verbal
disagreement with the victim.3 The argument quickly
became physical, and the victim fell to the ground.
Although the victim was on the ground, the defendant
did not walk away. Instead, the defendant straddled the
victim and punched him repeatedly in the head and
face. The defendant hit the victim ‘‘well over ten times.’’
Each punch made a ‘‘wet, slapping sound.’’ The victim
soon became motionless. After a few minutes, the
defendant stood up and walked away.
The defendant walked away from the scene along
Chapel Street, where New Haven Police Officer John
Moore stopped him because he matched the description
of someone involved in an assault on the Green. Although
the defendant was not hostile toward Moore, he was
visibly irate. The defendant had blood on his hands and
forearms. When asked if he had been in a fight, the
defendant told Moore, ‘‘I fucked that guy up.’’ The defen-
dant claimed that he had cut his hand, had been hit in
the head, and may have broken a knuckle. The officer
requested an ambulance. Once the ambulance arrived,
an emergency medical technician (EMT) cleaned the
victim’s blood off the defendant’s hands and checked
him for injuries.4
The defendant then told Moore his version of what
happened:5 He was waiting at the bus stop on Temple
Street, near the Green, when the victim attacked him
with what the defendant thought was a blackjack but
later claimed was a rock inside of a sock. The two men
began to fight and shortly thereafter the victim slipped,
allowing the defendant to get the upper hand. The defen-
dant then got on top of the victim and punched him
‘‘over fifty times.’’ When informed that the victim was
in serious condition, the defendant said, ‘‘good, I hope
that motherfucker dies.’’ The defendant then was taken
to the police station for questioning.
Earlier, during the confrontation, two passersby
observed the defendant repeatedly punching the victim
while he lay on the ground, and the passersby stopped to
call the police.6 By the time they called 911, the defendant
had begun to walk away. The passersby observed that
the victim’s breathing was labored, he was not moving,
he had blood on his face, and his ‘‘skull was crushed in.’’
New Haven Police Officer Daophet Sangxayarath was
the first to arrive at the scene. He saw the victim, later
identified as Robert Haynes, aged sixty-two, lying face
down on the ground, bleeding from the head. Shortly
thereafter, New Haven Police Officers Evan Kelly and
Nicole Motzer arrived at the scene. Kelly, who pre-
viously was an EMT, tended to the victim. The victim
was semiconscious and unable to follow any com-
mands. He had bruising along the right side of his head
from his forehead down to his cheekbone, his right eye
was swollen shut, and there were abrasions on his face.
Concerned about the victim’s breathing, Kelly turned
him onto his back. In doing so, he discovered ‘‘a sock
with some kind of blunt object inside’’ (the sock with
a rock inside it) beneath the victim and handed the
item to Sangxayarath.7 An ambulance arrived soon after
and transported the victim to Yale-New Haven Hospital.
The victim was treated for, inter alia, a life-threatening
skull fracture likely caused by blunt force trauma.
The victim remained hospitalized for three months,
after which he was transferred to a rehabilitation facility
where he remained for at least twenty-two months. The
victim was unable to communicate verbally until about
three months after the incident. Since the altercation,
he has been unable to walk, has lost sight in his right
eye, has had difficulty using his hands, and has an inden-
tation in his head.
The defendant ultimately was charged, by way of a
two count information, with assault of an elderly person
in the first degree in violation of General Statutes § 53a-
59a (a) (1)8 and assault of an elderly person in the
second degree in violation of § 53a-60b (a) (1) (2017
assault charges). At the time of the assault, the defen-
dant was serving a probationary sentence imposed as
a result of a 2012 conviction. In April, 2012, the defen-
dant had pleaded guilty to robbery in the second degree
in violation of General Statutes (Rev. to 2011) § 53a-135
and larceny in the sixth degree in violation of General
Statutes § 53a-125b,9 and was sentenced to eight years
of incarceration, execution suspended after thirty-six
months, and three years of probation (2012 sentence).
Thus, as a consequence of his arrest on the 2017 assault
charges, the defendant was charged in a separate docket
with violation of probation.
During the pretrial proceedings, on July 30, 2018, the
defendant filed a motion to correct an illegal sentence
(first motion to correct), arguing that his 2012 sentence
was illegal, and requesting ‘‘an order reopening the judg-
ment of conviction and vacating his plea to the charges
therein, and scheduling the case for trial.’’ The court,
Clifford, J., denied the motion. The defendant appealed
the ruling but withdrew the appeal before any briefs
were filed.
On May 31, 2019, evidence was presented at a hearing
on the probation violation charge. At the conclusion of
the hearing, the court stated that it would ‘‘wait to hear
on the jury on the underlying information’’ before issu-
ing a decision on the probation violation. A jury trial
on the assault charges was held over the course of four
days in May and June, 2019. On June 4, 2019, the jury
found the defendant not guilty of assault of an elderly
person in the first degree in violation of § 53a-59 (a)
(3) and guilty of assault of an elderly person in the
second degree in violation of § 53a-60b (a) (1). On the
same day, after accepting the verdict, the court deter-
mined that the defendant had violated the terms of his
probation in violation of § 53a-32 ‘‘by committing an
assault against [the victim] on July 13, 2017.’’
A sentencing hearing was held on August 28, 2019.
At the start of the hearing, the court noted that the
defendant had filed a second motion to correct an illegal
sentence10 in July, 2019 (second motion to correct).11
Although the defendant filed the motion while acting
in a self-represented capacity, he was represented by
counsel at the hearing.12 The court, B. Fischer, J., did
not consider the second motion to correct, regarding
the 2012 sentence, noting ‘‘[i]t’s not in front of this
[c]ourt. So . . . I’m not taking any action on it.’’ The
defendant was then sentenced to five years of incarcera-
tion for the assault and five years of incarceration for
the violation of probation, to run consecutively. This
appeal followed.
I
The defendant’s first claim on appeal is that the court
abused its discretion in denying his first motion to cor-
rect an illegal sentence. For the following reasons, we
decline to reach the merits of this argument.
The following procedural history is relevant to our
resolution of this claim. On July 30, 2018, the defendant
filed his first motion to correct an illegal sentence and
requested that the court open the 2012 judgment of
conviction, vacate his pleas, and schedule the case for
trial.13 On October 9, 2018, Judge Clifford heard oral
argument on the first motion to correct. At the hearing,
the defendant argued that the 2012 sentence was illegal
because the plea agreement on which his guilty plea
was based had been violated.14 After lengthy discussion,
Judge Clifford, in an oral ruling, determined that the
plea agreement was not violated and, therefore, denied
the defendant’s first motion to correct.15 On March 13,
2019, the defendant appealed to this court from Judge
Clifford’s denial of the motion to correct. On August
13, 2019, however, before any briefs were filed, the
defendant withdrew the appeal.
After trial on the 2017 assault charges and prior to
sentencing, on August 2, 2019, the defendant, acting in
a self-represented capacity, filed his second motion to
correct, arguing that the 2012 sentence was ‘‘ambiguous
and contradictory.’’ On August 28, 2019, prior to sen-
tencing, Judge Fischer, who had presided over the trial,
addressed the defendant’s motion. Following argu-
ments from each side, wherein the defendant was again
represented by counsel, Judge Fischer stated: ‘‘I’m not
going to take any action on the motion to correct [an]
illegal sentence. He has remedies on that. It’s not in
front of this court. . . . I’m not taking any action on it.’’
On appeal, the defendant claims that the court erred
in denying his first motion to correct an illegal sentence
because his 2012 sentence was both ambiguous and
contradictory. He contends that the case should be
remanded for the trial court to correct the illegal sen-
tence and vacate his sentence for violation of probation.
The state, however, asserts, inter alia, that this claim
is not reviewable because ‘‘(1) the defendant abandoned
any claim with respect to Judge Clifford’s denial of his
[first] motion to correct an illegal sentence when he
withdrew his appeal of that decision, and (2) Judge
Fischer never issued a ruling on the matter.’’
The defendant responds that ‘‘[t]he state’s argument
minimizes the fact that the defendant renewed the
motion to correct before Judge Fischer. Although Judge
Fischer did not make a ruling on that motion, he most
certainly let Judge Clifford’s ruling stand and sentenced
the defendant to five years to serve on the violation of
probation . . . predicated on the 2012 sentence. These
facts make Judge Clifford’s ruling an intricate compo-
nent of this appeal.’’ We agree with the state that the
defendant waived this claim when he withdrew his
appeal of Judge Clifford’s ruling on the first motion to
correct.
At the outset, it is important that we determine the
subject of the defendant’s appeal as it relates to this
claim. The defendant’s principal brief is devoid of any
reference to his second motion to correct and to Judge
Fischer’s treatment of it. Although the defendant indi-
cated on his appeal form that the appeal pertains to
Judge Fischer, the defendant identified the action that
constitutes the appealable judgment as: ‘‘Judgment of
Convictions C.G.S. Sec. 53a-60b, 53a-32.’’ He did not
identify any judicial action with respect to either of his
motions to correct. The defendant begins his analysis
by noting that the ‘‘trial court was correct in concluding
it had jurisdiction to consider the merits of the defen-
dant’s motion.’’ Importantly, the issue of jurisdiction
was considered by Judge Clifford and not Judge
Fischer. Additionally, the defendant notes that the ‘‘trial
court recognized the ambiguity in the sentencing agree-
ment: ‘Right, but that’s where you’re mixing it up. Your
issue was, you weren’t able to set up another resi-
dency.’ ’’ Again, it was Judge Clifford who ‘‘recognized
the ambiguity,’’ not Judge Fischer.
Further, the defendant includes copies of his first
motion to correct an illegal sentence and Judge Clif-
ford’s ruling on that motion in his appendix but does
not include a copy of the second motion to correct.
The defendant’s principal brief to this court reads only
as an appeal of Judge Clifford’s denial of the first motion
to correct—a claim he has waived. The defendant first
mentions the second motion to correct in his reply
brief, only to argue that the second motion to correct
constituted a renewal of the first motion to correct.16
Similarly, during oral argument before this court, the
defendant’s appellate counsel referred to the second
motion to correct as renewing the first motion and
contended that Judge Fischer ‘‘let Judge Clifford’s rul-
ing stand,’’ allowing the defendant to again appeal from
Judge Clifford’s ruling. Counsel’s position further sup-
ports the conclusion that the defendant is appealing
only from Judge Clifford’s denial of the first motion to
correct. Finally, if the defendant were appealing from
Judge Fischer’s ruling, he would be claiming that it was
error for Judge Fischer to decide that the issue was
‘‘not in front of this court’’; this was not his claim.17
Thus, the defendant is undoubtedly appealing from
Judge Clifford’s denial of his first motion to correct.
‘‘It is well established that when a party brings a
subsequent appeal, it cannot raise questions which were
or could have been answered in its former appeals.
. . . Failure to raise an issue in an initial appeal to this
court constitutes a waiver of the right to bring the
claim.’’ (Internal quotation marks omitted.) Disciplin-
ary Counsel v. Evans, 159 Conn. App. 343, 356, 123
A.3d 69 (2015). ‘‘Waiver is an intentional relinquishment
or abandonment of a known right or privilege.’’ (Internal
quotation marks omitted.) Gagne v. Vaccaro, 80 Conn.
App. 436, 445, 835 A.2d 491 (2003), cert. denied, 268
Conn. 920, 846 A.2d 881 (2004). ‘‘It is axiomatic, how-
ever, that this principle applies only when the issue that
a party seeks to raise in a subsequent appeal was one
that the party actually litigated prior to the initial
appeal such that the issue could have been raised in
the initial appeal.’’ (Emphasis in original; internal quo-
tation marks omitted.) Disciplinary Counsel v. Evans,
supra, 356. ‘‘Failure to follow this rule would lead to
the bizarre result . . . that a party who has chosen not
to argue a point on a first appeal should stand better
as regards the law of the case than one who had argued
and lost.’’ (Citation omitted; internal quotation marks
omitted.) Harris v. Bradley Memorial Hospital & Health
Center, Inc., 306 Conn. 304, 319–20, 50 A.3d 841, cert.
denied, 569 U.S. 918, 133 S. Ct. 1809, 185 L. Ed. 2d
812 (2012).
For example, in Evans, the defendant appealed from
the trial court’s order suspending him from the practice
of law, but that appeal was dismissed because he failed
to file a preliminary statement of issues, as required by
Practice Book § 63-4 (a) (1). See Disciplinary Counsel
v. Evans, supra, 159 Conn. App. 355–56. The defendant
later appealed the court’s order denying his motion for
reinstatement and raised several claims that were also
raised in the first appeal. Id., 353, 355. Due to the fact
that the defendant had already raised the same claims
in the first appeal, this court determined that the claims
were waived and declined to review them. Id., 356–57.
Likewise, in the present case, the defendant waived
his claim regarding his first motion to correct when he
withdrew his appeal challenging Judge Clifford’s ruling
on that first motion. His claims as to that ruling could
have been addressed in that appeal. See id. The defen-
dant cannot now revive that earlier claim, as he has
waived it.
In an attempt to obscure the fatality of this defect,
the defendant raised a new argument in his reply brief
and during oral argument before this court. Without
providing any legal support, the defendant contended
that, because Judge Fischer declined to rule on his
second motion to correct, Judge Fischer had ‘‘let Judge
Clifford’s ruling stand,’’ thereby resurrecting Judge Clif-
ford’s ruling on the first motion to correct while simulta-
neously creating an entirely new ruling on an entirely
new motion to correct. Therefore, he asserts that,
despite the fact that he waived his claims regarding the
first motion to correct, he can argue in this appeal that
Judge Clifford incorrectly denied his first motion to
correct. The defendant’s counsel conceded that, ‘‘if the
defendant hadn’t renewed the motion then the with-
drawal of his appeal would have been an abandonment
of that issue in this appeal.’’ Yet, the defendant argues
that the filing of the second motion to correct somehow
renewed the first motion to correct and negated the
withdrawal of the prior appeal, thereby allowing him
to renew his challenge to Judge Clifford’s determina-
tion. The defendant’s argument is meritless, as it contra-
venes the well established law of waiver. See Harris
v. Bradley Memorial Hospital & Health Center, Inc.,
supra, 306 Conn. 319; Disciplinary Counsel v. Evans,
supra, 159 Conn. App. 356–57; Gagne v. Vaccaro, supra,
80 Conn. App. 445–46. Because he has waived any
claims relating to the first motion to correct and cannot
resurrect those claims through Judge Fischer’s determi-
nation that the second motion to correct was not prop-
erly before him, we decline to review the merits of
this claim.
II
The defendant also claims that the court erred as to
three rulings made during the trial on the 2017 assault
charges. Specifically, the defendant claims that the
court erred in (1) excluding testimony from the lead
detective regarding his opinion as to whether a sock
with a rock inside it is a weapon, (2) admitting testimony
from a Department of Correction physician regarding
an alleged 2011 incident in which the police hit the
defendant in the head with a baton, and (3) striking
certain statements defense counsel made regarding the
victim during closing argument in violation of the defen-
dant’s constitutional right to present a defense.18 We
address each claim in turn.
A
The defendant first claims that the court erred in
excluding testimony from Detective Matthew Collier as
to his opinion as to whether a sock with a rock inside
it is a weapon. Specifically, the defendant argues that,
despite the court’s ruling to the contrary, the testimony
was relevant under § 4-1 of the Connecticut Code of
Evidence.19 The state contends that this claim is not
reviewable because the defendant failed to make an
offer of proof. We agree with the state.
The following additional facts are relevant to our
resolution of this claim. At trial, the defendant did not
deny that he hit the victim but asserted that he acted
in self-defense. On May 30 and 31, 2019, the state pre-
sented the testimony of Collier, the lead detective on
the case. Through Collier, the state presented video
footage of the defendant’s statement to the police imme-
diately following his arrest on July 13, 2017. In the
statement, the defendant asserted several times that
the victim began the altercation when he hit the defen-
dant in the head with a sock with a rock inside it.
On cross-examination, the following exchange oc-
curred:
‘‘[Defense Counsel]: Let me ask you this, detective.
If that rock inside a sock had swung at someone’s head,
do you consider it a deadly weapon?
‘‘[The Prosecutor]: Objection, Judge. It’s irrelevant.
‘‘The Court: Yeah. How is that relevant there, Attor-
ney Carty? Are you claiming that?
‘‘[Defense Counsel]: I’m claiming it, yes.
‘‘The Court: All right. I’m going to—I’m going to sus-
tain the objection. It’s not relevant.’’ (Emphasis added.)
Defense counsel then proceeded with further ques-
tioning.
On appeal, the defendant now asserts that the court’s
ruling was erroneous. The state responds that, because
‘‘the relevance of any testimony that [Collier] may have
given is not obvious based on the question’’ and because
the defendant’s claim is ‘‘based on speculation concern-
ing how [Collier] may have replied to defense counsel’s
inquiries,’’ the claim is not reviewable without an offer
of proof, which was not provided. (Emphasis in origi-
nal.) In response, the defendant contends that the
‘‘[s]tate’s [argument] misses the mark because (1) police
officers, based on their training and experience, have
been routinely permitted to provide opinions; and (2)
the defendant was charged with assault and claimed
he acted in self-defense; [t]wo of the elements of self-
defense require the jurors to determine (a) whether the
defendant used such degree of force that he reasonably
believed necessary to defend himself; and (b) whether
the defendant’s actual belief about the degree of force
necessary to defend himself was a reasonable belief.
[General Statutes] § 53a-19 (a). Had Collier been permit-
ted to respond to defense counsel’s question it would
have assisted the jurors in determining whether the
defendant’s belief was reasonable. Defense counsel’s
question was relevant and admissible and [went] directly
to the core of his defense strategy that he acted in self-
defense.’’ Despite the fact that the defendant prefaces
this argument by stating that it responds to the state’s
position, the defendant’s assertions fail to do so. In fact,
the defendant merely argues the merits of his claim
to support his position that it is reviewable. For the
following reasons, we conclude that the claim is not
reviewable.
Although an offer of proof is not a strict prerequisite
for appellate review; see State v. Holley, 327 Conn.
576, 595–96, 175 A.3d 514 (2018) (‘‘[b]ecause [State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
as modified by In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015)] does not excuse an inadequate record,
the absence or inadequacy of an offer of proof may
prevent a criminal defendant from proving on appeal
that the trial court’s preclusion of certain evidence vio-
lated his right to present a defense’’ (emphasis added;
footnote omitted)); Burns v. Hanson, 249 Conn. 809,
824, 734 A.2d 964 (1999) (no offer of proof necessary
because ‘‘[i]t [was] clear from the record what the [wit-
ness’] answer would have been’’); in certain circum-
stances the failure to make an offer of proof renders a
claim unreviewable on appeal. See, e.g., State v. Gooch,
186 Conn. 17, 24, 438 A.2d 867 (1982) (claim not review-
able without offer of proof because witness could have
provided multiple answers, one of which being admissi-
ble and other not); State v. Papineau, 182 Conn. App.
756, 771–72, 190 A.3d 913 (failure to make offer of proof
by asking court to hear witness’ response outside pres-
ence of jury left record inadequate to review claim of
evidentiary error), cert. denied, 330 Conn. 916, 193 A.3d
1212 (2018).
‘‘[A] reviewing court may be unable to determine the
propriety or effect of the excluded facts unless the
substance of the proffered evidence is disclosed in the
record. . . . Accordingly, [a]n offer of proof is the
accepted procedure to preserve the record for appeal
if evidence is excluded. . . . An offer of proof, properly
presented, serves three purposes. First, it should inform
the court of the legal theory under which the offered
evidence is admissible. Second, it should inform the
trial judge of the specific nature of the offered evidence
so the court can judge its admissibility. Third, it thereby
creates a record adequate for appellate review. . . .
Without an adequate record to review the ruling of the
trial court, this court must assume that the trial court
acted properly.’’ (Citations omitted; internal quotation
marks omitted.) State v. Johnson, 171 Conn. App. 328,
350–51, 157 A.3d 120, cert. denied, 325 Conn. 911, 158
A.3d 322 (2017).
As stated, in certain circumstances the failure to pro-
vide an offer of proof renders an evidentiary ruling
unreviewable on appeal. For example, in State v. Papi-
neau, supra, 182 Conn. App. 771–72, this court deter-
mined that the failure to provide an offer of proof ren-
dered the defendant’s claim unreviewable. In that case,
the state objected to proposed testimony as hearsay,
and defense counsel provided an explanation as to why
the challenged evidence was admissible but did not
provide an offer of proof. See id., 766. Because of the
lack of an offer of proof, this court declined to review
the claim, holding: ‘‘The record does not contain the
substance of the excluded testimony, and, thus, leaves
us without a basis on which to evaluate its relevance.
In Connecticut, our appellate courts do not presume
error on the part of the trial court. . . . Rather, the
burden rests with the appellant to demonstrate revers-
ible error. . . . The defendant bears the burden of pro-
viding this court with an adequate record to review
his claims. Practice Book § 61-10. The present claim
depends on a record that reflects the substance of [the
witness’] testimony concerning the conversation that
he allegedly overheard. This is necessary not merely
to determine whether the court properly excluded the
testimony, but whether the court’s ruling was harmful
to the defense.’’ (Citation omitted; emphasis added;
internal quotation marks omitted.) State v. Papineau,
supra, 771–72.
In the present case, the defendant’s failure to make
an offer of proof renders his claim unreviewable.
Because the defendant did not provide an offer of proof
and gave no explanation as to why the evidence was rele-
vant, despite the court’s specific request for an explana-
tion, the court did not know the specific theory that
supported the admission of the evidence or the nature
of the proposed evidence. See State v. Johnson, supra,
171 Conn. App. 350–51. Not only could the court not
make a full assessment of the evidence, but, without
an offer of proof in the record, we cannot review the
defendant’s claim. Assessment of the present claim
would require a record that reflects the substance of
Collier’s expected testimony regarding his opinion of
the sock with a rock inside it, a record that we do not
have. Moreover, without an offer of proof, we are not
able to determine whether the court’s ruling was harm-
ful to the defense.20 See State v. Papineau, supra, 182
Conn. App. 772. Therefore, we decline to review the
substance of the defendant’s claim.
B
The defendant next claims that the court erred in
allowing the state to cross-examine James Elderkin, a
physician at the Department of Correction who treated
the defendant in September, 2017, about a 2011 incident
in which a police officer allegedly hit the defendant in
the head with a baton. Specifically, the defendant argues
that the court improperly rejected his arguments that
the testimony was irrelevant. We disagree.
Before we address the substance of this claim, we
set forth the applicable standard of review. ‘‘We review
a trial court’s evidentiary rulings for abuse of discretion.
. . . We will make every reasonable presumption in
favor of upholding the trial court’s ruling, and only upset
it for a manifest abuse of discretion. . . . [Thus, our]
review of such rulings is limited to the questions of
whether the trial court correctly applied the law and
reasonably could have reached the conclusion that it
did.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Gonzalez, 315 Conn. 564, 593, 109 A.3d
453, cert. denied, 577 U.S. 843, 136 S. Ct. 84, 193 L. Ed.
2d 73 (2015).
The following additional facts are relevant to our
resolution of this claim. At trial, the defense presented
Elderkin’s testimony to support the inference that the
victim was the initial aggressor whose attacks caused
the defendant head trauma. On cross-examination, the
following colloquy took place between the prosecutor
and Elderkin:
‘‘Q. Are you aware whether or not [the defendant]
has ever suffered a head injury in the past?
‘‘A. Only what he reported to me and I recorded on
this note of 9-22-17.
‘‘Q. And what—and what was that?
‘‘A. . . . He reported to me that he had intermittent
headaches since head injury in July of 2017.
‘‘Q. Okay. So he didn’t report to you whether or not
he had a head injury in February of 2011?
‘‘A. Not that I recall and not that I recorded in the
record.
‘‘Q. So you don’t have any information as to whether
or not [the defendant] suffered a head injury in February
of 2011; fair to say?
‘‘A. Yes.
‘‘Q. Okay. Are you aware that [the defendant] is cur-
rently suing the Middletown Police Department?
‘‘A. No.
‘‘Q. He didn’t tell you that?
‘‘A. No.
‘‘Q. Are you aware that he’s suing them because he’s
alleging—
‘‘[Defense Counsel]: Objection.
‘‘Q. —excessive force? . . .
‘‘[Defense Counsel]: Objection is relevance.’’
After the court excused the jury from the courtroom,
defense counsel argued that the evidence was not rele-
vant, stating, ‘‘[t]his is New Haven, and it has nothing
to do with Middletown in this case.’’ The court then
requested an offer of proof before ruling on the objec-
tion. Outside of the presence of the jury, the prosecutor
proceeded to ask Elderkin about the lawsuit, which
the defendant had brought, asserting that, in 2011, a
Middletown police officer hit him in the head with a
baton, causing injury. Elderkin was not aware of the
lawsuit or the alleged incident. During the offer of proof,
defense counsel, in turn, emphasized that the alleged
incident occurred six and one-half years prior to the
2017 altercation and asked Elderkin, ‘‘would it be likely
that [the defendant] would still be suffering from the
injuries from six and a half years earlier . . . ?’’
Elderkin replied that he did not think he could say.21
In arguing that the evidence was admissible, the pros-
ecutor asserted that the evidence ‘‘allows [the jury] to
draw yet another inference for how these injuries could
have occurred.’’ Defense counsel responded that,
‘‘[p]articularly, since he can’t say that, you know, that
the injuries would be lasting six and a half years, it
would be purely speculative for counsel to try to elicit
some information about something that’s totally unre-
lated to this incident both in time and in terms of circum-
stances.’’ The court, however, disagreed and allowed
the prosecutor to inquire about the 2011 incident.
On appeal, the defendant maintains that the evidence
is irrelevant. Now, however, he newly asserts that the
evidence was irrelevant because ‘‘the doctor did not
have any personal knowledge with respect to the prose-
cutor’s line of questioning’’ and that ‘‘the only evidence
[regarding the 2011 incident] before the jurors was the
doctor’s testimony that hitting someone in the head
with a baton could potentially cause a concussion. But
because the prosecutor’s questions are not in evidence,
and because the doctor had no personal knowledge of
the 2011 incident, there was no evidence before the
jury that the defendant had even been hit with a baton.’’
The state, however, contends that the defendant
failed to preserve his claim because his relevancy argu-
ment on appeal differs from the argument made at trial.
Although we disagree with the state as to preservation,
we do agree that the defendant’s change in argument
impacts our review, as we cannot assess an evidentiary
ruling using a theory of relevancy that was not pre-
sented to the trial court.
‘‘[I]t is well settled that [o]ur review of evidentiary
rulings made by the trial court is limited to the specific
legal ground raised in the objection [to the trial court].
. . . This court reviews rulings solely on the ground
on which the party’s objection is based.’’ (Internal quo-
tation marks omitted.) State v. Raynor, 175 Conn. App.
409, 449, 167 A.3d 1076 (2017), aff’d, 334 Conn. 264, 221
A.3d 401 (2019). For example, a party who at trial objects
to evidence only because its probative value is out-
weighed by its prejudicial effect cannot on appeal argue
that the evidence was irrelevant because that specific
legal ground of objection was not raised at trial. See
id. However, these precepts do not render a claim
unpreserved on appeal where a party merely
changes the argument in support of the objection with-
out attempting to change the grounds on which the
objection was based. In the present case, the defendant
maintains that the evidence is inadmissible because it
is irrelevant—the same ground of inadmissibility raised
at trial. The fact that he is attempting to assert a new
argument does not render his claim unpreserved.
His claim is, however, confined to the relevancy argu-
ments made before the trial court. ‘‘An appellant who
challenges on appeal a trial court’s exclusion of evi-
dence is limited to the theory of admissibility that was
raised before and ruled upon by the trial court. A court
cannot be said to have refused improperly to admit
evidence during a trial if the specific grounds for admis-
sion on which the proponent relies never were pre-
sented to the court when the evidence was offered.’’
(Internal quotation marks omitted.) State v. Papineau,
supra, 182 Conn. App. 769–70. This principle extends
to situations in which an appellant asserts new argu-
ments in support of unchanged grounds of objection.
Therefore, on appeal, ‘‘[w]e must evaluate relevancy
in accordance with the theory of admissibility and/or
relevancy argued at trial, not on appeal.’’ State v. Wat-
son, 192 Conn. App. 353, 377 n.9, 217 A.3d 1052 (2019)
(confining review to relevancy arguments made at trial
despite fact that state provided additional arguments
to justify trial court’s determination that excluded evi-
dence was irrelevant), aff’d, 339 Conn. 352, 261 A.3d
706 (2021).
Although the defendant insists that his claim on
appeal asserts the same argument as his objection at
trial, his argument on appeal is premised on a very
different perspective of the evidence. On appeal, the
defendant asserts that, because Elderkin had no knowl-
edge of the incident and because the state did not pro-
duce any other proof as to the 2011 incident, Elderkin
was not the appropriate witness to testify as to that
incident—rejecting the conclusion that there was any
incident in 2011. At trial, however, the defendant’s
objection focused on the fact that Elderkin could not
speculate as to whether injuries from the 2011 incident
could persist through 2017—not challenging that the
defendant was hit on the head with a baton in 2011.
Although these two arguments are based on the same
objection, that of relevancy, on close inspection they
are dissimilar, as one asserts that the state failed to
properly prove the 2011 incident while the other accepts
that the incident occurred. If we were to consider the
defendant’s arguments on appeal regarding this evi-
dence, we would be rejecting well established law and
would be overstepping the well-defined role of an appel-
late court. See, e.g., State v. Papineau, supra, 182 Conn.
App. 769–70; State v. Raynor, supra, 175 Conn. App.
448–49. Therefore, we are limited to assessing the rele-
vancy of the testimony exclusively within the confines
of the defendant’s arguments before the trial court.
During the offer of proof, the state represented that
the evidence would allow the jury to infer that the head
injuries from which the defendant allegedly suffered
were not the result of an attack by the victim on July
13, 2017, but, rather, were caused when a police officer
hit the defendant on the head with a baton in 2011.
Defense counsel argued that the evidence was not rele-
vant because the incidents were six and one-half years
apart and were unrelated ‘‘both in time and in terms of
circumstances.’’ Presented with these arguments, the
court did not abuse its discretion in determining that
the evidence was relevant.
Relevant evidence is evidence that has ‘‘any tendency
to make the existence of any fact that is material to
the determination of the proceeding more probable or
less probable than it would be without the evidence.’’
Conn. Code Evid. § 4-1. ‘‘One fact is relevant to another
if in the common course of events the existence of one,
alone or with other facts, renders the existence of the
other either more certain or more probable. . . . Evi-
dence is not rendered inadmissible because it is not
conclusive. All that is required is that the evidence tend
to support a relevant fact even to a slight degree, [as]
long as it is not prejudicial or merely cumulative.’’
(Emphasis in original; internal quotation marks omit-
ted.) Ulanoff v. Becker Salon, LLC, 208 Conn. App. 1,
13, A.3d (2021).
Because the defendant raised the defense of self-
defense, the issue of whether his alleged head injuries
were caused by the victim was a material issue of fact
for the jury’s consideration in evaluating whether his
use of physical force was justified under the circum-
stances. Section 53a-19 (a), which sets forth the defense
of self-defense, provides: ‘‘Except as provided in sub-
sections (b) and (c) of this section, a person is justified
in using reasonable physical force upon another person
to defend himself or a third person from what he reason-
ably believes to be the use or imminent use of physical
force, and he may use such degree of force which he
reasonably believes to be necessary for such purpose;
except that 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.’’ Evidence that the defendant’s head injury
occurred in 2011 and not during the July, 2017 alterca-
tion with the victim, has a tendency to make it less
probable that the defendant had a reasonable belief as
to the use or imminent use of physical force against
his person, as it discredits the defendant’s claim that
the victim struck him on the head with the sock with
a rock inside it. The fact that Elderkin, who examined
the defendant in 2017, could not say conclusively that
the 2011 incident caused the head injury does not render
the evidence irrelevant.
C
Finally, the defendant claims that the trial court erred
in striking from defense counsel’s closing arguments
statements that the evidence presented at trial sup-
ported an inference that the victim attacked ‘‘at least
one other person’’ with the sock with a rock inside it.
Specifically, the defendant asserts that the court vio-
lated his sixth amendment right to the effective assis-
tance of counsel by precluding defense counsel’s
remarks because the excluded statements were essen-
tial to his claim of self-defense. The defendant admits
that this claim was not properly preserved but asserts
that it is reviewable under State v. Golding, supra, 213
Conn. 239–40. Although the claim is reviewable, the
defendant has failed to show that a constitutional viola-
tion actually occurred.
Under Golding, ‘‘a defendant can prevail on a claim
of constitutional error not preserved at trial only if all
of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the
claim is of constitutional magnitude alleging the viola-
tion of a fundamental right; (3) the alleged constitu-
tional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis in original; footnote
omitted.) Id. ‘‘The first two [prongs of Golding] involve
a determination of whether the claim is reviewable; the
second two . . . involve a determination of whether
the defendant may prevail.’’ (Internal quotation marks
omitted.) State v. LaFontaine, 128 Conn. App. 546, 550
n.3, 16 A.3d 1281 (2011).
In the present case, we review the defendant’s claim
because the record is adequate for our review, and the
claim is of constitutional magnitude. See, e.g., State v.
Cunningham, 168 Conn. App. 519, 530–32, 146 A.3d
1029, cert. denied, 323 Conn. 938, 151 A.3d 385 (2016);
id., 530 (claim that ‘‘the court violated [defendant’s]
sixth amendment right to argue [during closing argu-
ments] that the state had failed to satisfy its burden to
prove an essential element of the crime charged beyond
a reasonable doubt’’ is constitutional in nature for pur-
pose of second prong of Golding); see also State v.
Gonzalez, 338 Conn. 108, 130, 257 A.3d 283 (2021) (‘‘[t]he
courts of this state have consistently recognized that the
sixth amendment right to present a closing argument
protects a criminal defendant’s right to present his the-
ory of the defense at the close of evidence’’).
The following facts are relevant to our resolution of
this claim. During trial, the state entered two stipula-
tions into evidence. The first stipulation provided: ‘‘On
December 9, 1998, [the victim] was convicted of
[a]ssault in the [f]irst [d]egree, in violation of Connecti-
cut General Statutes [§] 53a-59 (a) (1).’’ The second
stipulation provided that, on July 13, 2017, the night
of the assault, ‘‘[t]he [victim’s] ethanol level was the
equivalent of a [b]lood [a]lcohol [c]ontent of .07.’’
Jillian Echard, a DNA technician at the forensic sci-
ence laboratory of the Department of Emergency Ser-
vices and Public Protection, testified at trial on behalf
of the state as to DNA testing performed on the sock
with a rock inside it. The sock was tested at three
points: the bottom of the sock, the middle of the sock
(where the rock was located), and the sock opening
(which was tied in a knot). Testing showed the presence
of DNA from three different individuals at the bottom
of the sock. The victim’s DNA profile was present.22
The results were inconclusive as to whether the defen-
dant was a contributor. As to the middle of the sock,
testing showed the presence of DNA from two individu-
als: the victim was identified as a contributor and the
results were inconclusive as to whether the defendant
was a contributor.23 At the sock opening, testing showed
that only the victim’s DNA was present; the defendant
was not a source.24 In addition, the prosecutor elicited
testimony regarding how DNA is transferred. Specifi-
cally, Echard testified that ‘‘the force in which an object
touches someone can . . . impact whether or not their
DNA ends up on the object’’ and that, ‘‘the more frequent
the contact that someone has with an object, the more
likely it is that their DNA would end up on the object
. . . .’’
On cross-examination, defense counsel inquired fur-
ther into how DNA can be transferred to an object
when the object is used to strike someone. Specifically,
defense counsel asked Echard, ‘‘if someone was struck
on the face or the arm or wherever, that might cause
DNA to be transferred . . . to the item that you exam-
ined; correct?’’ Echard responded: ‘‘Yes. If somebody
was struck in the area with skin in such rigor, that
would expect to transfer cells over. . . . If you’re strik-
ing somebody, then there’s a little bit more rigor to it
than just a casual.’’
During closing argument, defense counsel argued
that the victim started the fight when he attacked the
defendant at the bus stop. Defense counsel further
argued that the bruises on the defendant’s arms were
evidence of his having attempted to block the victim’s
attacks. He also argued that the DNA evidence sup-
ported a conclusion that the defendant ‘‘probably was
the guy on [the rock] end.’’ Defense counsel continued:
‘‘But the other thing is that they had a third person’s
DNA on the rock end of the sock. From this we can
infer at least one other person was struck, attacked.’’
At this point, the prosecutor objected. The court sus-
tained the objection and ordered the statement stricken.
Moments later, defense counsel stated that, ‘‘[w]hile
the results of the right rock end of the—the sock are
inconclusive as to [the defendant], he’s not eliminated,
and he has—as he [had] been from the handle of the
rock. From this you can infer that he was at least one
of two people struck with the rock.’’ The prosecutor
did not object to this statement.
Later during his closing argument, defense counsel
stated, ‘‘[n]ow, we wouldn’t even be here but for the
actions of [the victim]. The state and defense stipulated
that in 1998 [the victim] was convicted of assault in the
first degree. Now, at that time he was a man of about
40, 41, 42, and now some 20 years later, he’s a 62 year
old man, he apparently still hadn’t learned his lesson.
He’s still engaging in assaultive behavior. We know that
his attack on [the defendant] was not an isolated inci-
dent because of the DNA of the third person.’’ The
prosecutor then objected. Again, the court sustained
the objection and ordered the statement stricken. The
defendant now asserts that these rulings were in error.
Despite our determination that the defendant’s claim
is reviewable, we conclude that the court did not violate
the defendant’s right to present a closing argument,
and, therefore, the defendant’s claim fails under the
third prong of Golding. In support of his claim, the
defendant argues that his right to present a closing
argument was violated because, in precluding the state-
ment regarding the inference that the victim attacked
other people with the sock with a rock inside it, the
court prohibited him from arguing a significant issue
that bore directly on his theory of defense, which was
that the victim was the initial aggressor and the defen-
dant acted in self-defense. In response, the state con-
tends that the defendant ‘‘received an unfettered oppor-
tunity to raise every significant issue bearing directly
on his theory of defense,’’ and that the contested state-
ments were based on facts not in evidence and on
unreasonable inferences, and were, therefore, imper-
missible. We agree with the state that the inferences
were unreasonable and were based on facts not in evi-
dence; therefore, the defendant’s rights were not vio-
lated.
‘‘We review the limits that the trial court imposes on a
defendant’s closing argument for an abuse of discretion.
The presiding judge must be and is given great latitude
in controlling the duration and limiting the scope of
closing summations. He [or she] may limit counsel to
a reasonable time and may terminate argument when
continuation would be repetitive or redundant. He [or
she] may ensure that argument does not stray unduly
from the mark, or otherwise impede the fair and orderly
conduct of the trial. . . . It is within the discretion of
the trial court to limit the scope of final argument to
prevent comment on facts that are not properly in evi-
dence, to prevent the jury from considering matters in
the realm of speculation and to prevent the jury from
being influenced by improper matter that might preju-
dice its deliberations.’’ (Internal quotation marks omit-
ted.) State v. Cunningham, supra, 168 Conn. App. 533–
34. Further, ‘‘[c]ounsel may comment upon facts
properly in evidence and upon reasonable inferences to
be drawn from them. . . . Counsel may not, however,
comment on or suggest an inference from facts not
in evidence.’’ (Citation omitted; emphasis in original;
internal quotation marks omitted.) State v. Arline, 223
Conn. 52, 58, 612 A.2d 755 (1992).
The defendant points out that the ‘‘[t]rial court per-
mitted the prosecutor to ask the jurors to infer that
because no witnesses saw [the victim] attack the defen-
dant, they could infer the defendant was the initial
aggressor.25 But the trial court precluded the defendant
[from] asking the jurors to infer, that based on facts in
evidence, [the victim] had previously attacked a third
person, and therefore more likely than not he also
attacked the defendant.’’ (Footnote added.) The defen-
dant relies on the evidence presented at trial that (1)
the victim had been convicted of assault in the first
degree, (2) the victim had a blood alcohol content of
0.07 at the time of the incident underlying that assault
conviction, (3) there was DNA belonging to individuals
aside from the victim on the sock, (4) DNA could trans-
fer if someone was struck with rigor, and (5) the defen-
dant consistently maintained that the victim had struck
him on the head several times with the rock in the sock.
The defendant argues that, taken together, this evidence
supports the inference that the victim ‘‘attacked
‘another’ or ‘third’ person . . . .’’ We reject this argu-
ment, as it would require reliance on facts not in evi-
dence; furthermore, the inference the defendant draws
is far from reasonable. See State v. Arline, supra, 223
Conn. 58.
Of the facts to which the defendant points, only the
DNA evidence could possibly support a conclusion that
the sock with a rock inside it was used to hit someone
other than the defendant. Significantly, however, there
were no facts adduced at trial to indicate how or when
such an incident could have occurred. Further, there
was no evidence to support a conclusion that the DNA
was on the sock as a result of an attack—the DNA
could have been present for any number of reasons.
Defense counsel’s argument requires expansive specu-
lation as to facts not in evidence in order to permit a
conclusion that the victim used the sock with the rock
inside it to attack a third party. Expressed differently,
defense counsel’s statements constituted an entirely
unreasonable inference from the facts in evidence. For
these reasons, the court did not abuse its discretion in
excluding defense counsel’s arguments, and, therefore,
the defendant’s right to present a closing argument was
not abridged. Accordingly, the defendant’s claim fails
Golding’s third prong because the alleged constitutional
violation does not exist.
The judgments are affirmed.
In this opinion the other judges concurred.
1
At various times throughout the trial court proceedings, the defendant
was self-represented.
2
General Statutes § 53a-60b (a) provides in relevant part that ‘‘[a] person
is guilty of assault of an elderly . . . person . . . in the second degree
when such person commits assault in the second degree under section 53a-
60 . . . and (1) the victim of such assault . . . has attained at least sixty
years of age . . . .’’
General Statutes § 53a-60 (a) provides in relevant part that ‘‘[a] person is
guilty of assault in the second degree when . . . (7) with intent to cause
physical injury to another person, the actor causes such injury to such
person by striking or kicking such person in the head while such person is
in a lying position.’’
3
According to the defendant, the two men did not know each other.
4
EMTs cleaned the blood off of the defendant’s hands and arms, assuming
that the blood belonged to the defendant, while searching for injuries. Once
the blood was removed from the defendant’s hands, he informed the EMTs
that the blood belonged to the victim. Aside from an abrasion on his left
cheek and some bruising on his arms, the defendant had no injuries. The
defendant was later taken to the emergency department where X-rays con-
firmed the lack of serious injuries.
5
The defendant gave the same account during his police interview.
6
Both passersby testified at trial. Neither observed the start of the fight,
and they had no information as to how or why the fight began.
7
The sock with a rock inside it was sent to the state forensics laboratory
for DNA analysis.
8
General Statutes § 53a-59a (a) provides in relevant part that ‘‘[a] person
is guilty of assault of an elderly . . . person . . . in the first degree, when
such person commits assault in the first degree under section . . . 53a-59
(a) (3) . . . and (1) the victim of such assault has attained at least sixty
years of age . . . .’’
General Statutes § 53a-59 (a) provides in relevant part that ‘‘[a] person is
guilty of assault in the first degree when . . . (3) under circumstances
evincing an extreme indifference to human life he recklessly engages in
conduct which creates a risk of death to another person, and thereby causes
serious physical injury to another person . . . .’’
9
The defendant subsequently filed a motion to withdraw his plea, asserting
that he ‘‘unknowingly and involuntarily and unintelligently accepted [the]
plea.’’ The court denied the motion, noting that the defendant had been
thoroughly canvassed before his plea was accepted.
10
Although we refer to this as the second motion to correct for clarity,
in actuality, the defendant filed at least five motions to correct, many while
acting in a self-represented capacity. None of these motions is relevant to
this appeal.
11
The court also addressed various other motions that the defendant filed,
including a motion for a mistrial and a motion for a new trial, both of which
the court denied.
12
After the trial, on June 27, 2019, the court granted the defendant’s motion
to dismiss his trial counsel. New counsel was subsequently appointed.
13
Although Attorney Paul V. Carty represented the defendant at the time
of the filing of the first motion to correct, prior to oral argument on that
motion, Judge Clifford granted the defendant’s request to represent himself
after a lengthy canvassing. Thus, the defendant represented himself during
oral argument on the first motion to correct.
14
In the written motion, however, the defendant asserted that ‘‘[i]t is
unconstitutional to banish someone from a state. As such, the defendant
accepted the plea agreement under false pretense/representation. The condi-
tion of banishing this defendant from the state has no rehabilitative purpose.
The purpose of probation is to rehabilitate. The state never intended to
honor its agreement with the defendant, as it is illegal to do so.’’
15
Judge Clifford later filed a signed transcript of his oral decision as a
memorandum of decision.
16
Further, in addressing the merits of the claim in his reply brief, the
defendant again focuses only on what Judge Clifford said and did.
17
At oral argument before this court, counsel for the defendant expressly
stated that the defendant was not arguing that Judge Fischer erred in
determining that the issue was ‘‘not in front of this court.’’ Specifically,
counsel argued that, because Judge Fischer did not hear the motion or the
basis of the motion, it would be unreasonable to appeal as to Judge Fischer
pertaining to this issue.
18
Although the defendant provides distinct arguments on each point, he
presents these claims as one claim of error in his appellate brief. The state,
however, responds to these claims separately. Similarly, we address them
as such.
We also note that, in the opening paragraph of part II of his brief, the
defendant maintains that the court’s action ‘‘constituted an abuse of discre-
tion and deprived the defendant of his constitutional right to present a
defense as guaranteed by the sixth and fourteen amendments to the United
States constitution. Specifically, the defendant claims that the trial court
improperly excluded evidence and closing argument comments material to
his claim of self-defense.’’
In the first two subsections of his argument, however, the defendant
makes no mention of the constitution and provides no argument as to how
the court’s exclusion or admission of the evidence at issue violated his
constitutional rights. Only in the final subpart, in which the defendant con-
tests the exclusion of certain statements during defense counsel’s closing
argument, does the defendant provide any basis for a constitutional claim.
See part II C of this opinion. Finally, in his reply brief, with respect to his
first evidentiary claim, the defendant argues that, ‘‘[t]he state overlook[ed]
the fact that the defendant has also claimed the trial court deprived him of
his constitutional right to present a defense,’’ again without providing any
analysis to support his alleged claim of constitutional violation.
To the extent that the defendant is seeking to raise constitutional claims
related to his first two evidentiary claims, any such claim is inadequately
briefed. See, e.g., Grimm v. Grimm, 276 Conn. 377, 393, 886 A.2d 391 (2005)
(‘‘It is well settled that claims on appeal must be adequately briefed . . . .
Claims that are inadequately briefed generally are considered abandoned.’’
(Citations omitted.)), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed.
2d 815 (2006); Ward v. Greene, 267 Conn. 539, 546, 839 A.2d 1259 (2004)
(‘‘[a]nalysis, rather than mere abstract assertion, is required in order to
avoid abandoning an issue by failure to brief the issue properly’’ (internal
quotation marks omitted)).
19
Section 4-1 of the Connecticut Code of Evidence provides: ‘‘ ‘Relevant
evidence’ means evidence having any tendency to make the existence of any
fact that is material to the determination of the proceeding more probable
or less probable than it would be without the evidence.’’
20
The defendant argues that, despite the lack of an offer of proof, ‘‘harm
can be shown regardless of Collier’s response to defense counsel’s question.
. . . If Collier had responded in the affirmative, it would support the defen-
dant’s theory of the case that he believed he had to use deadly force against
[the victim] to [defend] himself, and that belief was reasonable. If Collier
responded in the negative . . . it would support an inference that, although
deadly force may not have been warranted in defending himself from [the
victim], some level of force was justified, and that belief was reasonable.’’
We are not persuaded. Such a harm analysis improperly requires pure specu-
lation, assumes that Collier could have responded only ‘‘yes’’ or ‘‘no,’’ and
relies on suspect reasoning. As the state aptly observes, ‘‘[the defendant’s]
assertion fails to remove the defendant’s claim from the realm of speculation
because Collier may not have provided a simple ‘yes’ or ‘no’ response. This
is especially so given counsel’s use of the phrase ‘deadly weapon,’ which
carries independent legal significance, and may have given Collier pause.
. . . Without knowing what Collier would have said, the defendant cannot
meet his burden of showing harm.’’ (Citation omitted.)
21
The entirety of the offer of proof was as follows:
‘‘[The Prosecutor]: So you’re not aware that he’s suing the Middletown
Police Department?
‘‘[Elderkin]: Correct. . . .
‘‘[The Prosecutor]: And that he was forced to go to the hospital?
‘‘[Elderkin]: Correct.
‘‘[The Prosecutor]: And that was during a struggle inside of his cell? You’re
not aware of that?
‘‘[Elderkin]: No.
‘‘[The Prosecutor]: Okay. Could hitting someone in the head with a baton
potentially cause a concussion?
‘‘[Elderkin]: Yes.
‘‘The Court: What time frame on that?
‘‘[The Prosecutor]: 2011.
‘‘The Court: Oh, 2011. Did you want to inquire on the offer?
‘‘[Defense Counsel]: Yes. . . .
‘‘[Defense Counsel]: Good morning, Doctor. That February, 2011 incident
was approximately six and a half years prior to the July 17 incident; is
that correct?
‘‘[Elderkin]: Yes.
‘‘[Defense Counsel]: All right. And would—would it be likely that [the
defendant] would be still suffering from the injuries from six and a half
years earlier and complaining about that in 2017?
‘‘[Elderkin]: I don’t think I could say.’’
22
Specifically, Echard testified: ‘‘[A]t least 100 billion times more likely
to occur if [the DNA] originated from [the victim] and 2 unknown individuals
as opposed from it originating from 3 unknown individuals.’’
23
Specifically, Echard testified: ‘‘[A]t least 100 billion times more likely
to occur if [the DNA] originated from [the victim] and 1 unknown individual
as opposed to it originating from 2 unknown individuals.’’
24
Specifically, Echard testified: ‘‘[A]t least 100 billion times more likely
to occur if [the DNA] originated from [the victim] than if it originated from
an unknown individual.’’
25
We note that defense counsel made no objections during the prosecutor’s
closing arguments.