State v. Robert B.

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STATE OF CONNECTICUT v. ROBERT B.*
(AC 42423)
Lavine, Prescott and Moll, Js.
Syllabus
Convicted of the crimes of unlawful restraint in the first degree and breach
of the peace in the second degree in connection with an incident involv-
ing his former wife, T, and their two sons, the defendant appealed to
this court. He claimed that he was denied his constitutional right to a
fair trial and that the trial court erred by not instructing the jury on a
certain lesser included offense. Held:
1. The defendant could not prevail on his claim that his rights to due process
and a fair trial were violated when T testified on cross-examination as
to his prior bad acts and arrests, his claim being unpreserved and not
of constitutional magnitude: the claim was not reviewable because the
defendant failed to preserve it at trial by either moving to strike the
testimony at issue or seeking a curative instruction; moreover, the defen-
dant’s claim was not of constitutional magnitude, and, therefore, not
reviewable under the second prong of State v. Golding (213 Conn. 233),
the admission of evidence of a defendant’s other crimes being controlled
by the law of evidence, not principles of constitutional law.
2. The defendant could not prevail on his claim that he was denied a fair
trial due to prosecutorial impropriety in that one of the two prosecutors
who represented the state objected during his cross-examination of a
witness despite not having conducted the direct examination of that
witness, the claimed error having not constituted prosecutorial impropri-
ety; our rule of practice (§ 5-4), on which the defendant based his claim,
concerns the examination or cross-examination of a single witness by
counsel for one party, and there is nothing explicit in the rule regarding
whether one counsel alone is required to object to opposing counsel’s
examination of a witness.
3. The defendant could not prevail on his claim that the trial court erred
by failing to instruct the jury on the lesser included offense of unlawful
restraint in the second degree, his claim being unpreserved, as it was
waived; the defendant did not submit a request to charge, ask the court
to include an instruction on that lesser included offense after he had
reviewed the court’s proposed charge, or take an exception to the charge
as given, and therefore acquiesced in the charge and waived the right
to raise the claim on appeal.
Argued June 29—officially released October 6, 2020
Procedural History
Substitute information charging the defendant with
the crimes of unlawful restraint in the first degree and
breach of the peace in the second degree, brought to
the Superior Court in the judicial district of Stamford-
Norwalk, geographical area number one, and tried to
the jury before Blawie, J.; verdict and judgment of
guilty, from which the defendant appealed to this
court. Affirmed.
Michael J. Tortora, for the appellant (defendant).
James M. Ralls, senior assistant state’s attorney, with
whom, on the brief, were Richard J. Colangelo, Jr.,
former state’s attorney, and Michael Nemec, deputy
assistant state’s attorney, for the appellee (state).
Opinion
LAVINE, J. The defendant, Robert B.,1 appeals from
the judgment of conviction, rendered after a jury trial,
of unlawful restraint in the first degree in violation of
General Statutes § 53a-95 and breach of the peace in
the second degree in violation of General Statutes § 53a-
181 (a) (1). On appeal, the defendant claims that (1)
he was denied his constitutional right to a fair trial
when a witness repeatedly testified about the defen-
dant’s prior bad acts and arrests, (2) the court erred
by not instructing the jury on the lesser included offense
of unlawful restraint in the second degree, and (3) he
was denied a fair trial due to prosecutorial impropriety
because one of the two prosecutors who represented
the state objected during the defendant’s cross-exami-
nation of a witness despite not having conducted the
direct examination of that witness. We affirm the judg-
ment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of the defendant’s appeal. The
defendant and his former wife, T, were divorced in 2003.
They have two sons, P and D, who were nineteen and
sixteen, respectively, at the time of the underlying inci-
dent. On the morning of August 12, 2017, T and the
sons (collectively, victims) were leaving the office of a
Stamford dentist by the rear stairs. They saw a man
wearing a hat and sunglasses, facing away from them,
standing at the bottom of the stairs, blocking their way.
When the victims reached the bottom of the stairs, the
man grabbed D’s arm and stated: ‘‘Happy Birthday . . .
we got to go to court.’’2 The victims then recognized
the defendant. T instructed the sons to get into her car.
Before they could do so, the defendant grabbed D from
behind, held him around the neck and stomach, and
dragged him toward his vehicle, which was parked in
front of the building. T and P yelled for the defendant
to stop and tried to pull D from the defendant’s grasp.
D struggled to free himself. His shoes came off and his
feet were dragged on the ground as he was pulled by
the defendant. A dental patient who noticed the incident
went into the dentist’s office and asked someone to
called 911. The defendant put his cell phone in T’s face
and stated that he was recording her.
T pulled the defendant’s sunglasses from his face and
threw them into the street. P blocked the defendant
from putting D into his car. A third party came from a
nearby business and pushed the defendant away from
D, who was able to run across the street away from
the defendant. The defendant got into his vehicle and
drove away. After the police arrived, the victims went
to the police department and gave written statements.
Members of the Stamford Police Department investi-
gated the incident and arrested the defendant pursuant
to a warrant on August 18, 2017.3 He was charged in a
long form information with unlawful restraint in the
first degree and breach of the peace in the second
degree.4 The defendant, who represented himself,
pleaded not guilty and elected to be tried by a jury. The
presentation of evidence commenced on September 20,
2018. On September 24, 2018, the jury found the defen-
dant guilty of both charges. The court sentenced the
defendant to eighteen months of incarceration on the
unlawful restraint conviction and six months of incar-
ceration on the breach of the peace conviction, to be
served concurrently, for a total effective sentence of
eighteen months in prison and a $5000 fine. The defen-
dant appealed.
I
The defendant first claims that his rights to due pro-
cess and a fair trial were violated when a witness, T,
testified on cross-examination as to the defendant’s
prior bad acts and arrests. The defendant’s claim fails
because it is unpreserved and is not of constitutional
magnitude.
The following facts are relevant to the defendant’s
claim. The state called T to testify about the August
12, 2017 incident. On cross-examination, the defendant
questioned T in such a way that he elicited the testimony
about which he now complains, claiming that the testi-
mony violated his constitutional right not to have evi-
dence of his prior bad acts placed before the jury.5 The
defendant argues that ‘‘[a]t no time during the trial did
the trial court ever instruct [T] to stop making such
improper statements nor did [the court strike] the evi-
dence from the record or give a curative instruction.’’6
To support his claim, the defendant relies on State v.
Ferrone, 97 Conn. 258, 116 A. 336 (1922). See id., 266
(‘‘[e]vidence tending to show the commission of other
crime on the part of the accused, or facts disclosing
his bad character or repute, are not material or relevant
to the charge against the accused, and should never be
permitted to be introduced; for its purpose can be none
other than to prejudice the jury against the accused,
and hence to deny him the fair trial which the law
guarantees him of being proven guilty of the crime with
which he stands charged by evidence which our law
accepts’’). The defendant also relies on cases in which
our appellate courts have addressed the propriety of
the state’s having introduced a defendant’s prior mis-
conduct. See, e.g., State v. Nash, 278 Conn. 620, 655–60,
899 A.2d 1 (2006) (rationale of rule is to guard against
use of prior misconduct merely to show evil disposition
of accused); State v. Boykin, 74 Conn. App. 679, 682–89,
813 A.2d 143 (remark’s lack of specificity did not
unfairly prejudice defendant), cert. denied, 263 Conn.
901, 819 A.2d 837 (2003).
In response, the state argues that there was no error
because the defendant, not the state, elicited T’s testi-
mony at issue during his cross-examination of her.7 See
footnote 5 of this opinion. More significantly, however,
the state contends that the claim is evidentiary in nature,
not constitutional, and therefore, is not reviewable
because the defendant failed to move to strike T’s testi-
mony and thus preserve the claim for appellate review.
We agree that the claim is not reviewable because the
defendant failed to preserve it at trial by either moving
to strike the testimony or seeking a curative
instruction.8
‘‘[T]he standard for the preservation of a claim alleg-
ing an improper evidentiary ruling at trial is well settled.
This court is not bound to consider claims of law not
made at the trial. . . . In order to preserve an eviden-
tiary ruling for review, trial counsel must object prop-
erly. . . . In objecting to evidence, counsel must prop-
erly articulate the basis of the objection so as to apprise
the trial court of the precise nature of the objection
and its real purpose, in order to form an adequate basis
for a reviewable ruling.’’ (Internal quotation marks omit-
ted.) State v. Jorge P., 308 Conn. 740, 753, 66 A.3d
869 (2013).
The defendant requests, if we determine that the
claim is not preserved, that we review it pursuant to
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). A defendant can prevail on
an unpreserved claim under Golding if four conditions
are met: (1) the record is adequate for review, (2) the
claim is of constitutional magnitude alleging the viola-
tion of a fundamental right, (3) the ‘‘violation . . .
exists and . . . deprived’’ the defendant of a fair trial,
and (4) if subject to harmless error analysis, the state
failed to demonstrate the harmlessness of the error
beyond a reasonable doubt. See State v. Golding, supra,
239–40. ‘‘[T]he first two [prongs of Golding] involve a
determination [as to] whether the claim is reviewable;
the second two . . . involve a determination [as to]
whether the defendant may prevail.’’ (Internal quotation
marks omitted.) State v. Whitford, 260 Conn. 610, 621,
799 A.2d 1034 (2002). The defendant’s claim is not
reviewable because it is not of constitutional mag-
nitude.
Generally, ‘‘evidence of the commission of other
crimes or specific acts of misconduct is inadmissible
to prove that a defendant is guilty of the crime charged
against him.’’ State v. Talton, 197 Conn. 280, 289, 497
A.2d 35 (1985). The admission of evidence of a defen-
dant’s other crimes is controlled by the law of evidence,
not principles of constitutional law. See State v. Gard-
ner, 297 Conn. 58, 65, 1 A.3d 1 (2010) (erroneous intro-
duction of prior misconduct evidence involves claim
arising under state law and does not involve constitu-
tional right). Because the defendant’s unpreserved
claim is an evidentiary one, it is not of constitutional
magnitude. He, therefore, is not entitled to review pur-
suant to Golding.
II
The defendant’s second claim is that the court erred
by failing to instruct the jury on the lesser included
offense of unlawful restraint in the second degree.9 The
defendant cannot prevail on the claim because it is
unpreserved.
The following facts are relevant to the defendant’s
claim. On September 20, 2018, immediately prior to the
swearing in of the jurors, the court, the defendant and
the prosecutors discussed a variety of matters related
to the trial. The court asked the defendant whether
there was anything that he wished to say. The defendant
represented that the last time he was in court with the
prosecutors, Steven Weiss and Michael Nemac, Weiss
mentioned that he wanted ‘‘to drop the unlawful
restraint in the first down to unlawful restraint in the
second.’’ The defendant was concerned that the state
was adding an additional charge against him. The court
understood the defendant’s concern and explained that
the state could not add an additional charge at that
time. Nemec then addressed the court: ‘‘The state would
ask—at the time we discuss the charge to the jury, the
state is going to be asking for—I think this is what [the
defendant] is referring to. I did bring it up with Judge
White. Just—I wanted it on the record I’m providing
notice that the state would be asking for unlawful
restraint in the second degree as a lesser included
offense. We’d be asking Your Honor for—at the time
of charging that that charge be included.’’
The court explained the lesser included defense doc-
trine to the defendant. The court then stated: ‘‘So I
understand your point and then we can have additional
discussions about this as the—when the time comes,
but the state should be prepared to submit a properly
drafted request to charge, especially for the benefit of
[the] self-represented party as to what you’re dis-
cussing. And I’ve only given you very preliminary dis-
cussion of it. I have not made a ruling on whether a
lesser included offense is proper, but in light of what
the state said, that’s sort of what I’m telling you.’’
(Emphasis added.)
During the presentation of evidence, the defendant
placed into evidence the incident report from the Stam-
ford Police Department listing the offenses committed
as breach of the peace in the second degree and unlaw-
ful restraint in the second degree. At the conclusion of
evidence, the court inquired of the state whether it
would be seeking a lesser included offense instruction
with respect to the charge of unlawful restraint in the
second degree as it had previously indicated. The state
responded that it would file a request to charge on
Monday, September 24, 2018. The court stated that it
would take up the matter during a charge conference.
On Monday, when the court asked the state whether it
was proceeding on any lesser included offense, the state
answered that it was not. The court stated that it was
a two count information, as drafted.
During the charge conference, the court discussed
the procedures for summation and informed the defen-
dant that he could not make any argument regarding
plea offers because they were not in evidence. But,
because the police incident report that the defendant
had put into evidence stated the offense was unlawful
restraint in the second degree, the defendant could
argue that crime. See footnote 3 of this opinion. The
court provided the parties with copies of its proposed
charge, which it reviewed with the defendant and the
prosecutors and solicited comments from them.10 Nota-
bly, the defendant did not file a request to charge, and
he did not request that the court instruct the jury on
the lesser included offense of unlawful restraint in the
second degree. During the state’s final argument,
Nemec argued that the jury should find the defendant
guilty of unlawful restraint in the first degree, explicitly
discussing the elements of that crime. Nemec did not
mention unlawful restraint in the second degree. When
the defendant presented his final argument, he did not
mention unlawful restraint in the second degree. The
court instructed the jury only on unlawful restraint in
the first degree and breach of the peace in the second
degree. The defendant took no exception to the instruc-
tion as given by the court.
On appeal, the defendant claims that the state ‘‘clearly
and unequivocally placed the defendant on notice that
the lesser included charge of unlawful restraint in the
second degree would be charged.’’ He argues that,
although he did not take an exception to the charge,
the record does not indicate that he acquiesced to the
charge as he was ‘‘under the impression [that] he could
argue it during closing and therefore, it cannot be con-
cluded that [he] abandoned his request.’’11 The state
argues that the claim is unpreserved and, therefore, the
defendant is not entitled to review of it. We conclude
that the defendant waived his right to appellate review
of his claim of instructional error.
In Connecticut, ‘‘unpreserved claims of improper jury
instructions are reviewable under [State v. Golding,
supra, 213 Conn. 239–40] unless they have been . . .
implicitly waived.’’ State v. Kitchens, 299 Conn. 447,
468, 10 A.3d 942 (2011). ‘‘[W]aiver is an intentional relin-
quishment or abandonment of a known right or privi-
lege. . . . It involves the idea of assent, and assent is
an act of understanding. . . . The rule is applicable
that no one shall be permitted to deny that he intended
the natural consequences of his acts and conduct. . . .
In order to waive a claim of law it is not necessary . . .
that a party be certain of the correctness of the claim
and its legal efficacy. It is enough if he knows of the
existence of the claim and of its reasonably possible
efficacy. . . . Connecticut courts have consistently
held that when a party fails to raise in the trial court the
constitutional claim present on appeal and affirmatively
acquiesces to the trial court’s order, that party waives
any such claim [under Golding].’’ (Citation omitted;
internal quotation marks omitted.) Id., 469.
Implied waiver may be found when counsel fails ‘‘to
take exception or object to the instructions together
with (1) acquiescence in, or expressed satisfaction with,
the instructions following an opportunity to review
them, or (2) references at trial to the underlying issue
consistent with acceptance of the instructions ulti-
mately given.’’ Id., 469–70. The rationale for the implied
waiver rule is that ‘‘[t]o allow [a] defendant to seek
reversal [after] . . . his trial strategy has failed would
amount to allowing him to . . . ambush the state [and
the trial court] with that claim on appeal.’’ (Internal
quotation marks omitted.) Id., 470.
In the present case, the defendant did not submit a
request to charge, ask the court to include an instruction
on the lesser included offense of unlawful restraint in
the second degree after he had reviewed the court’s
proposed charge, or take an exception to the charge
as given. The defendant therefore acquiesced in the
charge and waived the right to raise the claim on appeal.
The defendant’s instructional claim therefore is not
reviewable.
III
The defendant’s third claim is that he was denied a
fair trial due to prosecutorial impropriety because one
of the two prosecutors who represented the state
objected during the defendant’s cross-examination of
a witness despite not having conducted the direct exam-
ination of that witness. We disagree.
We begin with the well-known standard of review
for claims of prosecutorial impropriety. ‘‘In analyzing
claims of prosecutorial impropriety, we engage in a two
step analytical process. . . . The two steps are sepa-
rate and distinct. . . . We first examine whether prose-
cutorial impropriety occurred. . . . Second, if an
impropriety exists, we then examine whether it
deprived the defendant of his due process right to a
fair trial. . . . In other words, an impropriety is an
impropriety, regardless of its ultimate effect on the fair-
ness of the trial. Whether that impropriety was harmful
and thus caused or contributed to a due process viola-
tion involves a separate and distinct inquiry.’’ (Internal
quotation marks omitted.) State v. Pernell, 194 Conn.
App. 394, 403, 221 A.3d 457, cert. denied, 334 Conn.
910, 221 A.3d 44 (2019). If we first determine that an
impropriety exists, we then apply the factors set forth
in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653
(1987). Because we conclude that there was no prosecu-
torial impropriety as claimed by the defendant, we need
not address the Williams factors.
The defendant grounds his claim of prosecutorial
impropriety in the following facts, about which there
is no dispute. Prosecutors Nemec and Weiss repre-
sented the state at trial. The defendant has assumed
that Nemec was the lead counsel as he called all of the
state’s witnesses and conducted the direct examination
of each of them. Nemec also made the state’s final
argument. During the defendant’s cross-examination of
the state’s witnesses, however, Weiss voiced objections
to the defendant’s questions. Also, both Nemec and
Weiss responded to questions from the court through-
out trial. The defendant acknowledges that it is common
practice for a party to have lead counsel and a second
chair, but that it was fundamentally unfair for both
Nemec and Weiss to ‘‘flip flop’’ as to who was doing the
examination and who was objecting during his cross-
examination of the witnesses whom Nemec called and
examined. The defendant claims that he was prejudiced
by having to defend himself against not one, but two,
prosecutors at the same time. Although the defendant
never objected to the prosecutor’s ‘‘flip flop,’’ he claims
on appeal that the court should have stopped the ‘‘flip
flop’’ from happening and issued a warning to the prose-
cutors. The defendant also claims that had Weiss’ objec-
tions not been sustained by the court, he would have
been able to present further evidence through cross-
examination that would have led the ‘‘jury to think dif-
ferently.’’12
The defendant bases his claim on Practice Book § 5-
4. Section 5-4 provides: ‘‘The counsel who commences
the examination of a witness, either in chief or on cross-
examination, must alone conduct it; and no associate
counsel will be permitted to interrogate the witness,
except by permission of the judicial authority.’’13
‘‘The interpretative construction of the rules of prac-
tice is to be governed by the same principles as those
regulating statutory interpretation. . . . The interpre-
tation and application of a statute, and thus a Practice
Book provision, involves a question of law over which
our review is plenary. . . . In seeking to determine
[the] meaning [of a statute or rule of practice, we] . . .
first . . . consider the text of the statute [or rule] itself
and its relationship to other statutes [or rules]. . . . If,
after examining such text and considering such relation-
ship, the meaning of such text is plain and unambiguous
and does not yield absurd or unworkable results, extra-
textual evidence . . . shall not be considered.’’ (Inter-
nal quotation marks omitted.) Deutsche Bank National
Trust Co. v. Fraboni, 182 Conn. App. 811, 818–21, 191
A.3d 247 (2018). ‘‘We recognize that terms [used] are
to be assigned their ordinary meaning, unless context
dictates otherwise. . . . Put differently, we follow the
clear meaning of unambiguous rules, because
[a]lthough we are directed to interpret liberally the rules
of practice, that liberal construction applies only to
situations in which a strict adherence to them [will]
work surprise or injustice.’’ (Internal quotation marks
omitted.) Id., 822.
Practice Book § 5-4 concerns the examination or
cross-examination of a single witness by counsel for
one party. Counsel who commences the examination or
cross-examination alone must conduct it; no associate
counsel may conduct the examination without permis-
sion of the judicial authority. There is nothing explicit
in § 5-4 regarding whether one counsel alone is required
to object to opposing counsel’s examination of a wit-
ness. Considering all of the circumstances present, we
do not conclude that the claimed error constitutes pros-
ecutorial impropriety, although we do not approve of
the practice engaged in by the prosecutors and discour-
age its use in the future. See, e.g., State v. Bermudez,
195 Conn. App. 780, 824, 228 A.3d 96 (not every misstep
by prosecutor amounts to impropriety), cert. granted
on other grounds, 335 Conn. 908, 227 A.3d 521 (2020);
State v. Roberts, 158 Conn. App. 144, 152, 118 A.3d 631
(2015) (same).
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of family violence, we decline to identify the victims or others
through whom the victims’ identities may be ascertained. See General Stat-
utes § 54-86e.
Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)
(2018); we decline to identify any party protected or sought to be protected
under a protective order or a restraining order that was issued or applied
for, or others through whom that party’s identity may be ascertained.
1
The defendant represented himself at the criminal trial but was repre-
sented by counsel at sentencing and on appeal.
2
Although the defendant and T were divorced in 2003, they apparently
have had a contentious and litigious relationship since that time and the
sons allegedly are estranged from the defendant. The record, however, does
not disclose why the defendant acted as he did on August 12, 2017.
3
The offenses listed on the Stamford Police Department incident report
were breach of the peace in the second degree and unlawful restraint in
the second degree.
4
Count one of the information charged the defendant with unlawful
restraint in the first degree, in that ‘‘in the city of Stamford, on [or] about
August 12, 2017, [the defendant] did restrain another person, [D], under
[circumstances] which did expose that person to a substantial risk of physi-
cal injury in violation of [§] 53a-95 (a) of the . . . General Statutes.’’
Count two of the information charged the defendant with breach of the
peace in the second degree, in that ‘‘in the city of Stamford, on [or] about
August 12, 2017, [the defendant] with intent to cause inconvenience, annoy-
ance and alarm, and recklessly creating a risk thereof, such person did
engage in fighting and in violent, tumultuous, and threatening behavior in a
public place, in violation of [§] 53a-181 (a) (1) of the . . . General Statutes.’’
5
As examples of the testimony about which he complains, the defendant
included the following portions of his cross-examination of T in his brief:
‘‘[The Defendant]: Okay. Okay. So . . . when you came out of the dentist
office, you walked into the parking lot?
‘‘[T]: When I came out of the dentist office, I opened the door and there
were the stairs and there [you were] blocking them.
‘‘[The Defendant]: Blocking the stairs?
‘‘[T]: That’s correct.
‘‘[The Defendant]: So you were stuck on the stairs?
‘‘[T]: Your body was to the right. There’s three stairs down exactly. Your
body was right at the bottom of the third step. And immediately I started
panicking when I realized it was you because you had—
‘‘[The Defendant]: Why did you panic?
‘‘[T]: —glasses and—
‘‘[The Defendant]: Why did you panic again?
‘‘[T]: Because we have—you’ve been estranged from the kids since you
were last arrested when [P] was twelve years old and you picked him up
intoxicated at the police station—
‘‘[The Defendant]: Estranged—excuse me, Your Honor. Just—
‘‘The Court: Sustained.
‘‘[T]: —and they—and you haven’t seen the—
‘‘The Court: Ma’am—ma’am.
‘‘[The Defendant]: Ma’am.
‘‘The Court: I sustained the objection.
***
‘‘[The Defendant]: You mentioned the word blocking.
‘‘[T]: I’m very fearful of you and your body . . . .
‘‘[The Defendant]: And why are you very fearful?
‘‘[T]: Because you’ve done nothing but harass me and the children for
years—
‘‘[The Defendant]: Well, I’m sorry, how did I harass you?
‘‘[T]: —and we have nothing but protective orders against you for the
past twelve years.
‘‘[The Defendant]: She’s rambling on—
‘‘The Court: Stop. All right.
***
‘‘[The Defendant]: So why, prior to the incident, did you not want to allow
the parenting time with the minor child to occur?
‘‘[T]: I was going to court for supervised visits because [the defendant]
was arrested when my son . . . was twelve years old at an exchange at
the police department. He showed up drunk and he asked the workers there
if they had green cards to be working there. . . .
‘‘[The Defendant]: Wait, wait, wait. You’re rambling on. Your Honor, we
just asked her—
‘‘The Court: Stop. Stop ma’am. Ma’am.
‘‘[T]: I’m sorry.
‘‘The Court: All right. You asked a question, but again, we have to focus
on the events of August 12, 2017.
***
‘‘[The Defendant]: And prior to that, did you give the children up on a
weekly basis like you’re supposed to? . . .
‘‘[T]: The children were always given to you . . . before you got drunk
and arrested. And [P] was twelve years old and I went to court for supervised
visits, which we fought about for six years. . . .
‘‘[The Defendant]: You keep mentioning this drunk thing. All right. Do
you have any . . . proof that there—
‘‘[T]: You were—yes. It’s in the evidence that you were—you went to jail
for sixty days.
‘‘[The Defendant]: Excuse me, Your Honor.
‘‘[T]: You were false reporting—
‘‘The Court: Ma’am—ma’am, excuse me. Ladies and gentlemen, I’m going
to ask you to step out while we take this up.
***
‘‘[The Defendant]: Why do you tell the minor child that he doesn’t have
to listen to his father?
‘‘[T]: Because you’re unsafe. We’ve had protective orders against you for
the past twelve years. I was told by a judge you need [a] psychiatric evaluation
before you even could have supervised visitation with the children. And
we’ve been nothing but scared for the past eight years with nothing but
protective orders against you. . . .
‘‘[The Defendant]: So why doesn’t the child have to listen to their
father again?
‘‘[T]: He has a psychiatric problem. We’ve had protective orders against
him . . . .’’
6
The record discloses that at one point during the defendant’s cross-
examination of T, the court stopped the examination and excused the jury.
The court stated to the defendant: ‘‘Sir, you have to keep the questioning
focused on the events of August 12, 2017. . . . I get the fact this was a
contentious divorce, but [these are] irrelevant questions and answers. Again,
I don’t want this trial to get off track. The focus has to remain on the events
of August 12, 2017, not whether or not something happened with [D’s] older
brother, [P], when he was twelve. That’s not relevant to what’s going on in
this trial, and I don’t want that to become the focus of this trial.
‘‘So the questioning has to be more relevant and your answer—you can
wait till you finish the question, ma’am, to decide whether or not—but it
just should be in response to either a question from [Assistant State’s]
Attorney Nemec or a question from [the defendant]. But volunteering infor-
mation about past incidences or arrests or—again . . . .’’
7
‘‘So long as the answer is clearly responsive to the question asked, the
questioner may not later secure a reversal on the basis of invited error,’’
and this includes those answers that are ‘‘not phrased in language the
defendant would have preferred . . . .’’ (Internal quotation marks omitted.)
State v. Smith, 212 Conn. 593, 611, 563 A.2d 671 (1989); see also State v.
Holley, 327 Conn. 576, 621, 175 A.3d 514 (2018) (court properly declined to
strike answer that was responsive to question asked).
8
In his brief, the defendant argues that he preserved his claim because
he objected to T’s use of the word ‘‘estranged.’’ The state argues that the
defendant did not preserve his claim because the defendant did not ‘‘ ‘dis-
tinctly raise’ ’’ or state the basis of his objection to put the court on notice.
See Practice Book § 60-5. Although the court sustained the defendant’s
objection, the record is unclear as to the basis of the defendant’s objection.
Therefore, it was not properly preserved.
9
The state charged the defendant in a long form information with violation
of § 53a-95 (a), unlawful restraint in the first degree. General Statutes § 53a-
95a (a) provides: ‘‘A person is guilty of unlawful restraint in the first degree
when he restrains another person under circumstances which expose such
other person to a substantial risk of physical injury.’’
General Statutes § 53a-96 (a), unlawful restraint in the second degree,
provides: ‘‘A person is guilty of unlawful restraint in the second degree
when he restrains another person.’’
10
The defendant objected to a portion of the breach of the peace instruc-
tion, but that instruction is not at issue on appeal.
11
The defendant also contends, pursuant to State v. Whistnant, 179 Conn.
576, 588, 427 A.2d 414 (1980), that the court erred by failing sua sponte to
instruct the jury on the lesser included offense of unlawful restraint in the
second degree. Under Whistnant, ‘‘a lesser included offense instruction
should be given when: (1) an appropriate instruction is requested by either
the state or the defendant; (2) it is not possible to commit the greater
offense, in the manner described in the information or bill of particulars,
without having first committed the lesser; (3) there is some evidence, intro-
duced by either the state or the defendant, or by a combination of their
proofs, which justifies conviction of the lesser offense; and (4) the proof
on the element or elements which differentiate the lesser offense from the
offense charged is sufficiently in dispute to permit the jury consistently to
find the defendant innocent of the greater offense but guilty of the lesser.’’
(Internal quotation marks omitted.) State v. Rudd, 62 Conn. App. 702, 706,
773 A.2d 370 (2001). The defendant’s contention is predicated on the police
incident report that he placed into evidence charging him with unlawful
restraint in the second degree. Even though the court advised the defendant
that he could argue the evidence regarding the affidavit and information,
the transcript of the defendant’s final argument discloses that he made no
such argument.
12
The defendant did not identify what evidence he was prevented from
presenting due to Weiss’ objections and how ‘‘the jury [would have
thought] differently.’’
13
See also Practice Book § 5-8 (‘‘[n]o more than one counsel on each side
shall be heard on any question of evidence . . . without permission of
judicial authority’’); E. Prescott, Tait’s Handbook of Connecticut Evidence
(6th Ed. 2019) § 6.14, p. 344 (direct examination).