State v. Yury G. ( 2021 )

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STATE OF CONNECTICUT v. YURY G.*
(AC 43069)
Alvord, Clark and Sullivan, Js.
Syllabus
Convicted, after a jury trial, of the crime of disorderly conduct stemming
from a physical altercation with her husband, the defendant appealed
to this court. She claimed, inter alia, that the trial court improperly
determined that her request to instruct the jury on the infraction of
creating a public disturbance as a lesser included offense failed to satisfy
the test set forth in State v. Whistnant (179 Conn. 576). Held:
1. The trial court properly denied the defendant’s request for an instruction
on the lesser included offense of creating a public disturbance; the
defendant’s request failed under the fourth prong of the Whistnant test,
as the evidence showing that the defendant intentionally hit her husband
with her knee would have supported a conviction under either the
greater or the lesser offense and, thus, the jury could not, as a matter
of law, have found the defendant guilty only of creating a public distur-
bance and not guilty of disorderly conduct.
2. The defendant could not prevail on her unpreserved claim that the statu-
tory scheme that gave the prosecutor complete discretion in choosing
whether to charge her with an infraction or with a misdemeanor that
contained identical elements to the infraction violated her state and
federal constitutional rights to due process of law and equal protection
under the law; our Supreme Court held in State v. Harden (175 Conn.
315) that a trial court should not give a lesser included offense instruction
when both the greater and lesser offenses contain only identical ele-
ments, and the United States Supreme Court held in United States v.
Batchelder (442 U.S. 114) that, if there is no discrimination against any
particular class of defendants when deciding under what statute to
charge a defendant, there is no violation under the federal constitution
for two statutes with different penalties to punish the same conduct,
thus, the defendant failed to establish her claimed constitutional viola-
tions and her claim was not reviewable under the third prong of State
v. Golding (213 Conn. 233).
3. The defendant could not prevail on her unpreserved claim that the statu-
tory scheme that gave the prosecutor complete discretion in choosing
whether to charge her with an infraction or with a misdemeanor that
contained identical elements to the infraction violated the separation
of powers provision of the Connecticut constitution by shifting power
from the judiciary to the executive branch; our legal precedent has held
that, in Connecticut, the power of sentencing is shared by all three
branches of government, thus, the defendant failed to establish her
claimed constitutional violation, and her claim was not reviewable under
the third prong of Golding.
4. The defendant could not prevail on her claim that the trial court abused
its discretion in instructing the jury that it could consider her husband’s
affidavit, which had been admitted as a full exhibit, only for impeachment
purposes; although the defendant failed to comply with the rules of
practice by directing her requests to charge to particular evidence in
the case, and she never requested that the court provide an instruction
pursuant to State v. Whelan (200 Conn. 743) regarding the affidavit or
asked the court specifically to instruct the jury that it could use the
affidavit for substantive purposes, a review of the court’s charge in its
entirety revealed that the court never instructed the jury that it was
limited in its use of the affidavit but instead instructed it to consider
all of the testimony and exhibits admitted into evidence in reaching
its verdict.
Argued May 13—officially released September 21, 2021
Procedural History
Information charging the defendant with one count of
the crime of disorderly conduct, brought to the Superior
Court in the judicial district of Ansonia-Milford, geo-
graphical area number twenty-two, and tried to the jury
before Wilkerson-Brillant, J.; verdict and judgment of
guilty, from which the defendant appealed to this court.
Affirmed.
David C. Nielsen, former certified legal intern, with
whom was James B. Streeto, senior assistant public
defender, for the appellant (defendant).
Timothy F. Costello, senior assistant state’s attorney,
with whom, on the brief, were Margaret E. Kelley,
state’s attorney, Alexander C. Beck, assistant state’s
attorney, and Leeza N. Tirado, certified legal intern,
for the appellee (state).
Opinion
ALVORD, J. The defendant, Yury G., appeals from
the judgment of conviction, rendered following a jury
trial, of disorderly conduct in violation of General Stat-
utes § 53a-182 (a) (1). On appeal, the defendant claims:
(1) the trial court incorrectly determined that the defen-
dant’s request to charge the jury on the ‘‘lesser included
offense’’ of creating a public disturbance, an infraction,
failed to meet the test articulated in State v. Whistnant,
179 Conn. 576, 588, 427 A.2d 414 (1980); (2) the statutory
scheme that gives the prosecutor complete discretion
in choosing whether to charge the defendant with an
infraction or with a misdemeanor that contains identical
elements to the infraction violates her state and federal
constitutional right to due process of law and to equal
protection under the law; (3) the statutory scheme that
gives the prosecutor complete discretion in choosing
whether to charge the defendant with an infraction or
with a misdemeanor that contains identical elements
to the infraction violates the separation of powers provi-
sion of the Connecticut constitution; and (4) the court
abused its discretion when it instructed the jury that it
could consider the affidavit of the defendant’s husband
(H) only for impeachment purposes despite having
admitted the affidavit as a full exhibit. We affirm the
judgment of the trial court.
The following facts, which reasonably could have
been found by the jury, inform our review of the defen-
dant’s claims. The defendant and H were married and
were the parents of a ten year old daughter. On October
5, 2016, the power company shut off the family’s elec-
tricity due to nonpayment of their bill. When H came
home that evening, the defendant was upset and con-
fronted him. The accounts of what transpired after he
returned home conflicted, however. The defendant
alleged that H shoved her during the argument, and H
alleged that the defendant struck him in the groin with
her knee, injuring his testicles, during the argument. It
is undisputed, however, that H began to record the
events on his phone, and that the defendant telephoned
the police. Officer Michael Beutel of the West Haven
Police Department arrived at the family’s home at 10:17
p.m. The defendant was waiting outside when Beutel
arrived, and Beutel took the statements of each party
separately. Beutel believed that he had probable cause
to arrest both parties.
Relevant to this appeal, the defendant was charged
with one count of disorderly conduct, and, following a
jury trial, she was found guilty of that charge. After
accepting the jury’s verdict, the court rendered a judg-
ment of conviction, imposing a total effective sentence
of ninety days of incarceration, execution suspended,
followed by one year of probation. This appeal followed.
I
The defendant first claims that the trial court incor-
rectly determined that her request to charge the jury
on the ‘‘lesser included offense’’ of creating a public
disturbance, an infraction, failed to meet the test articu-
lated in State v. Whistnant, supra, 179 Conn. 588. The
state argues that the defendant’s claim fails for two
reasons—first, an infraction cannot be a lesser included
offense of an actual offense, and, second, the defen-
dant’s request to charge fails to satisfy the Whistnant
test. We conclude that the defendant’s request to charge
the jury on the infraction of creating a public distur-
bance, as a ‘‘lesser included offense’’ of disorderly con-
duct, fails the fourth prong of the Whistnant test.1
In this case, the defendant submitted to the trial court
a request that the jury be instructed on the ‘‘lesser
included offense’’ of creating a public disturbance,
arguing that the request to charge satisfied the four
part test set forth in Whistnant. The court denied the
request, concluding that the fourth prong of the Whist-
nant test was not satisfied.
‘‘A defendant is entitled to an instruction on a lesser
[included] offense if . . . the following conditions are
met: (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,
introduced 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 [not guilty]
of the greater offense but guilty of the lesser. State v.
Whistnant, [supra, 179 Conn. 588].’’ (Internal quotation
marks omitted.) State v. Marsala, 337 Conn. 55, 65–66,
252 A.3d 349 (2020).
‘‘In considering whether the defendant has satisfied
the requirements set forth in State v. Whistnant, supra,179 Conn. 588, we view the evidence in the light most
favorable to the defendant’s request for a charge on the
lesser included offense. . . . On appeal, an appellate
court must reverse a trial court’s failure to give the
requested instruction if we cannot as a matter of law
exclude [the] possibility that the defendant is guilty
only of the lesser offense.’’ (Internal quotation marks
omitted.) State v. Corbin, 260 Conn. 730, 745, 799 A.2d
1056 (2002).
In the present case, the trial court concluded that
the defendant’s request to charge on the infraction of
creating a public disturbance, as a ‘‘lesser included
offense’’ of disorderly conduct, failed the fourth prong
of Whistnant. ‘‘[T]he fourth prong of Whistnant specifi-
cally requires that the proof be sufficiently in dispute.
. . . Such proof is sufficient when it is marked by [a]
quality [such as] to meet with the demands, wants or
needs of a situation . . . . In the Whistnant context,
therefore, the proof is sufficiently in dispute [when] it
is of such a factual quality that would permit the finder
of fact reasonably to find the defendant guilty [of] the
lesser included offense. This requirement serves to pre-
vent a jury from capriciously [finding a defendant guilty]
on the lesser included offense when the evidence
requires either [a finding of guilt] on the greater offense
or [a finding of not guilty]. . . . Moreover, the trial
court, in making its determination whether the proof
is sufficiently in dispute, [although] it must carefully
assess all the evidence whatever its source, is not
required to put the case to the jury on a basis [of a
lesser included offense] that essentially indulges and
even encourages speculations as to [a] bizarre recon-
struction [of the evidence].’’ (Citation omitted; internal
quotation marks omitted.) State v. Marsala, supra, 337
Conn. 66–67.
Section 53a-182 provides: ‘‘(a) A person is guilty of
disorderly conduct when, with intent to cause inconve-
nience, annoyance or alarm, or recklessly creating a
risk thereof, such person: (1) Engages in fighting or in
violent, tumultuous or threatening behavior; or (2) by
offensive or disorderly conduct, annoys or interferes
with another person; or (3) makes unreasonable noise;
or (4) without lawful authority, disturbs any lawful
assembly or meeting of persons; or (5) obstructs vehicu-
lar or pedestrian traffic; or (6) congregates with other
persons in a public place and refuses to comply with
a reasonable official request or order to disperse; or
(7) commits simple trespass, as provided in section 53a-
110a, and observes, in other than a casual or cursory
manner, another person (A) without the knowledge or
consent of such other person, (B) while such other
person is inside a dwelling, as defined in section 53a-
100, and not in plain view, and (C) under circumstances
where such other person has a reasonable expectation
of privacy.
‘‘(b) Disorderly conduct is a class C misdemeanor.’’
General Statutes § 53a-181a provides: ‘‘(a) A person
is guilty of creating a public disturbance when, with
intent to cause inconvenience, annoyance or alarm, or
recklessly creating a risk thereof, he (1) engages in
fighting or in violent, tumultuous or threatening behav-
ior; or (2) annoys or interferes with another person by
offensive conduct; or (3) makes unreasonable noise.
‘‘(b) Creating a public disturbance is an infraction.’’
In the present case, the defendant was charged under
§ 53a-182 (a) (1), which required the state to prove that
she had ‘‘[e]ngage[d] in fighting or in violent, tumultu-
ous or threatening behavior . . . .’’ Likewise, a charge
pursuant to § 53a-181a (a) (1) would have required the
state to prove that that the defendant had ‘‘engage[d]
in fighting or in violent, tumultuous or threatening
behavior . . . .’’ The evidence to support a conviction
under either charge, as set forth in the facts section of
this opinion demonstrates that the defendant intention-
ally hit H in the groin with her knee. Pursuant to the
fourth prong of the Whistnant test, a request to charge
on a greater and lesser offense that contain identical
elements and that are premised on the same proof nec-
essarily will fail. See, e.g., State v. Marsala, supra, 337
Conn. 75 (trial court properly denied defendant’s
request for instruction of lesser included offense when,
on basis of evidence, jury could not have found defen-
dant guilty only of lesser included offense and not of
greater offense); State v. Manley, 195 Conn. 567, 580–81,
489 A.2d 1024 (1985) (trial counsel’s rhetorical argu-
ment to jury, in absence of any proof at trial, did not
place matter of whether defendant’s gun could have
been starter pistol sufficiently in dispute for purposes
of fourth prong of Whistnant); State v. Harden, 175
Conn. 315, 325, 398 A.2d 1169 (1978) (trial court should
not give lesser included offense instruction when both
greater and lesser offense contain only identical ele-
ments);2 see also Sansone v. United States, 380 U.S.
343, 349–50, 85 S. Ct. 1004, 13 L. Ed. 2d 882 (1965)
(‘‘[A] lesser-offense charge is not proper where, on the
evidence presented, the factual issues to be resolved
by the jury are the same as to both the lesser and greater
offenses. . . . In other words, the lesser offense must
be included within but not, on the facts of the case,
be completely encompassed by the greater. A lesser-
included offense instruction is only proper where the
charged greater offense requires the jury to find a dis-
puted factual element which is not required for convic-
tion of the lesser-included offense.’’ (Citations omit-
ted.)).
Accordingly, in light of the evidence introduced at
trial and the elements of the ‘‘lesser offense’’ and the
greater offense, we can exclude as a matter of law the
possibility that the jury rationally could have found the
defendant guilty only of creating a public disturbance,
and not guilty of disorderly conduct. The trial court,
therefore, properly denied the defendant’s request for
an instruction on the ‘‘lesser included offense’’ because
the request failed under the fourth prong of the Whist-
nant test.
II
The defendant, requesting review 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),3 next claims that the statutory scheme
that gives the prosecutor complete discretion in choos-
ing whether to charge her with an infraction or with a
misdemeanor that contains identical elements to the
infraction violates her right to due process of law and
equal protection under the law under both the federal
and state constitutions. We conclude that this issue is
controlled by State v. Harden, supra, 175 Conn. 325,
325 n.6, and United States v. Batchelder, 442 U.S. 114,
124–25, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979), and that
the defendant’s claim fails under Golding’s third prong.
Whether a statutory scheme violates a defendant’s
rights to due process of law or to equal protection under
the law presents this court with questions of law over
which we exercise plenary review. See State v. Col-
lymore, 334 Conn. 431, 477, 223 A.3d 1, cert. denied,
U.S. , 141 S. Ct. 433, 208 L. Ed. 2d 129 (2020);
State v. Long, 268 Conn. 508, 520–21, 847 A.2d 862, cert.
denied, 543 U.S. 969, 125 S. Ct. 424, 160 L. Ed. 2d 340(2004). When reviewing such a claim, ‘‘[o]ur analysis
. . . begins with the premise that a validly enacted stat-
ute carries with it a strong presumption of constitution-
ality, [and that] those who challenge its constitutionality
must sustain the heavy burden of proving its unconstitu-
tionality beyond a reasonable doubt. . . . The court
will indulge in every presumption in favor of the stat-
ute’s constitutionality . . . . Therefore, [w]hen a ques-
tion of constitutionality is raised, courts must approach
it with caution, examine it with care, and sustain the
legislation unless its invalidity is clear.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Long,
supra, 521.
The defendant argues that a rule like the one set forth
in Harden, which provides that the trial court should
not give a lesser included offense instruction when both
the greater and the lesser offense contain only identical
elements, ‘‘would represent an unconstitutional delega-
tion of sentencing authority to the executive branch
and would impermissibly hinder the jury’s ability to
determine whether the defendant was guilty of the
greater crime beyond a reasonable doubt.’’ As we
explained in footnote 2 of this opinion, as an intermedi-
ate appellate court, we have no authority to overrule
decisions of our Supreme Court.4 Additionally, as also
recognized by the defendant, the United States Supreme
Court determined long ago that, as long as the govern-
ment does not discriminate against any particular class
of defendants when deciding under what statute to
charge a defendant, there is no violation of due process
or equal protection under the federal constitution for
two statutes with different penalties to prohibit the
same conduct. See United States v. Batchelder, supra,442 U.S. 124–25. As the Supreme Court explained:
‘‘Whether to prosecute and what charge to file . . .
are decisions that generally rest in the prosecutor’s
discretion.’’ Id., 124. Accordingly, we conclude that the
defendant’s claim fails under the third prong of Golding;
the defendant has failed to establish her claimed consti-
tutional violations.
III
The defendant also claims that the statutory scheme
that gives the prosecutor complete discretion in decid-
ing whether to charge a defendant with an infraction
or with a misdemeanor that contains identical elements
violates the separation of powers provision of the Con-
necticut constitution by shifting powers from the judi-
ciary to the executive branch.5 The defendant again
requests Golding review. The state argues that the
defendant’s claim again fails under Golding’s third
prong because the statutory scheme that assigns differ-
ent penalties to identical conduct and that gives the
prosecutor discretion in deciding under which of these
statutes to charge a defendant does not unconstitution-
ally shift powers from the judiciary to the executive
branch. We agree with the state.
‘‘[T]he primary purpose of [the separation of powers]
doctrine is to prevent commingling of different powers
of government in the same hands. . . . The constitu-
tion achieves this purpose by prescribing limitations
and duties for each branch that are essential to each
branch’s independence and performance of assigned
powers. . . . It is axiomatic that no branch of govern-
ment organized under a constitution may exercise any
power that is not explicitly bestowed by that constitu-
tion or that is not essential to the exercise thereof. . . .
[Thus] [t]he separation of powers doctrine serves a dual
function: it limits the exercise of power within each
branch, yet ensures the independent exercise of that
power. . . .
‘‘In the context of challenges to statutes whose consti-
tutional infirmity is claimed to flow from impermissible
intrusion upon the judicial power, we have refused to
find constitutional impropriety in a statute simply
because it affects the judicial function . . . . A statute
violates the constitutional mandate for a separate judi-
cial magistracy only if it represents an effort by the
legislature to exercise a power which lies exclusively
under the control of the courts . . . or if it establishes
a significant interference with the orderly conduct of
the Superior Court’s judicial functions. . . . In accor-
dance with these principles, a two part inquiry has
emerged to evaluate the constitutionality of a statute
that is alleged to violate separation of powers principles
by impermissibly infringing on the judicial authority.
. . . A statute will be held unconstitutional on those
grounds if: (1) it governs subject matter that not only
falls within the judicial power, but also lies exclusively
within judicial control; or (2) it significantly interferes
with the orderly functioning of the Superior Court’s
judicial role.’’ (Emphasis added; internal quotation
marks omitted.) State v. Evans, 329 Conn. 770, 810, 189
A.3d 1184 (2018), cert. denied, U.S. , 139 S. Ct.
1304, 203 L. Ed. 2d 425 (2019).
‘‘[U]nder our state’s law, the power of sentencing is
a shared power. Although the judiciary exclusively has
the power to render, open, vacate, or modify a judg-
ment, we repeatedly have held that the power to sen-
tence is shared by all three branches of government.
See, e.g., Washington v. Commissioner of Correction,
287 Conn. 792, 828, 950 A.2d 1220 (2008) (‘[a]lthough
the judiciary unquestionably has power over criminal
sentencing . . . the judiciary does not have exclusive
authority in that area’ . . . ); id. (legislature decides
appropriate penalties, judiciary adjudicates and deter-
mines sentence, and executive manages parole system);
State v. Campbell, 224 Conn. 168, 178, 617 A.2d 889(1992) (‘sentencing is not within the exclusive control
of the judiciary and . . . there is no constitutional
requirement that courts be given discretion in imposing
sentences’), cert. denied, 508 U.S. 919, 113 S. Ct. 2365,
124 L. Ed. 2d 271 (1993). The judiciary may impose a
specific sentence, but the legislature has the power to
define crimes, prescribe punishments for crimes,
impose mandatory minimum terms of imprisonment for
certain crimes, preclude the probation or suspension
of a sentence, and even pardon offenders. See State v.
Darden, 171 Conn. 677, 679–80, 372 A.2d 99 (1976) (‘the
constitution assigns to the legislature the power to
enact laws defining crimes and fixing the degree and
method of punishment and to the judiciary the power
to try offenses under these laws and impose punishment
within the limits and according to the methods therein
provided’); State v. Morrison, 39 Conn. App. 632, 634,
665 A.2d 1372 (‘Prescribing punishments for crimes
. . . is . . . a function of the legislature. . . . The
judiciary’s power to impose specific types of sentences
is therefore defined by the legislature.’ . . .), cert.
denied, 235 Conn. 939, 668 A.2d 376 (1995) . . . .’’
(Emphasis omitted.) State v. McCleese, 333 Conn. 378,
416–17, 215 A.3d 1154 (2019).
In State v. Erzen, 29 Conn. App. 591, 617 A.2d 177(1992), the defendant argued that the legislature had
delegated too much discretion to law enforcement agen-
cies because it gave the state’s attorneys the ability
to take crimes, such as public indecency cases, and
prosecute them under the risk of injury statute, thereby
increasing potential penalties from six months of incar-
ceration to ten years of incarceration. Id., 599–600. This
court explained that such a statutory scheme ‘‘presents
no constitutional problem. . . . The state has broad
discretion to choose which crimes to charge in particu-
lar circumstances and as long as the state does not
discriminate against any class, the state may choose to
prosecute a defendant under either applicable statute.’’
(Citations omitted.) Id. Our Supreme Court also has
explained that, provided ‘‘the state does not avail itself
of overlapping criminal statutes in a manner that dis-
criminates against any class, the state may legally
choose to prosecute the defendant under either applica-
ble statute. . . . Absent a showing of a selection delib-
erately based upon an unjustifiable standard such as
race, religion or other arbitrary classification . . . con-
scious selectivity in enforcement of the law is not in
itself a constitutional violation.’’ (Citation omitted;
internal quotation marks omitted.) State v. Grullon, 212
Conn. 195, 217, 562 A.2d 481 (1989).
In the present case, the defendant argues that ‘‘where
the prosecutor is able to determine which of two dupli-
cative charges a defendant must defend himself against,
he necessarily impedes the judiciary’s ability to exer-
cise its power to impose punishment.’’ (Emphasis
added.) The defendant’s argument flatly fails in the face
of our legal precedent, which holds that, in Connecticut,
the power of sentencing is a shared power. See State
v. McCleese, supra, 333 Conn. 416–17 (citing cases to
support statement that, under our state’s law, power
to sentence is shared by all three branches of govern-
ment). ‘‘The fact that certain governmental powers
overlap is not only necessary to ensure the smooth and
effective operation of government . . . but also is a
product of the historical evolution of Connecticut’s gov-
ernmental system, which established a tradition of har-
mony among the separate branches of government that
the separate branches of the federal government system
did not have.’’ (Citation omitted; internal quotation
marks omitted.) Id., 419.
On the basis of the foregoing, we conclude that the
defendant has failed to establish that the statutory
scheme that allows the prosecutor to choose under
which of two statutes, containing the same elements
but different punishments, to charge a defendant vio-
lates the separation of powers provision of our state
constitution. Accordingly, her claim fails under the third
prong of Golding.
IV
Lastly, the defendant claims that the trial court
abused its discretion when it instructed the jury that
it could consider H’s affidavit only for impeachment
purposes, despite having admitted the affidavit as a full
exhibit. She contends that the court should have given
the jury an instruction pursuant to State v. Whelan,
200 Conn. 743, 753, 513 A.2d 86 (jury may find prior
statement of witness inconsistent with witness’ trial
testimony and may give such inconsistent statement
whatever weight jury concludes it should be given when
determining witness’ credibility, and jury may use such
statement for truth of its content and may find facts
from it), cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93
L. Ed. 2d 598 (1986).
The state argues that ‘‘[t]he defendant’s claim fails
because: (1) it is an unpreserved evidentiary claim; (2)
she induced any error by requesting the instruction she
now challenges; (3) she implicitly waived any error by
failing to object to the trial court’s proposed instruc-
tions despite having a meaningful opportunity to do so;
and (4) in any event, the instruction was correct.’’ In
her reply brief, the defendant responds to the state’s
argument: (1) there were two different types of incon-
sistent statements made by H, one consisting of his oral
statements and the other, his signed affidavit, (2) the
oral statements were not Whelan statements, (3) the
affidavit was a Whelan statement, (4) the defendant
was entitled to a Whelan instruction regarding the affi-
davit, and (5) the defendant preserved this issue by
submitting a request to charge to the trial court. We
are not persuaded by the defendant’s claim.
‘‘We begin with the well established standard of
review governing the defendant’s [challenge] to the trial
court’s jury instruction. Our review of the defendant’s
claim requires that we examine the [trial] court’s entire
charge to determine whether it is reasonably possible
that the jury could have been misled by the omission
of the requested instruction. . . . While a request to
charge that is relevant to the issues in a case and that
accurately states the applicable law must be honored,
a [trial] court need not tailor its charge to the precise
letter of such a request. . . . If a requested charge is
in substance given, the [trial] court’s failure to give a
charge in exact conformance with the words of the
request will not constitute a ground for reversal. . . .
As long as [the instructions] are correct in law, adapted
to the issues and sufficient for the guidance of the jury
. . . we will not view the instructions as improper. . . .
Additionally, we have noted that [a]n [impropriety] in
instructions in a criminal case is reversible . . . when
it is shown that it is reasonably possible for [improprie-
ties] of constitutional dimension or reasonably probable
for nonconstitutional [improprieties] that the jury [was]
misled.’’ (Internal quotation marks omitted.) State v.
Edwards, 334 Conn. 688, 716–17, 224 A.3d 504 (2020).
The following additional facts are necessary for our
review of the defendant’s claim. H signed an affidavit,
dated January 2, 2019, that provided in relevant part:
‘‘My wife and I were arrested in a dual arrest on October
5, 2016 . . . . I was the primary aggressor but the . . .
[p]olice at the time were following protocol and
arrested both of us and I engaged my wife and she
defended herself. The police stated that they were
required to arrest both parties . . . . I accepted
responsibility for my actions and I received a condi-
tional discharge. . . . I entered a plea to end the case
against me. . . . I would like to withdraw any com-
plaints against my wife and I wish for the charge of
disorderly conduct against her to be dropped. . . . The
argument was over a high electric bill, the electricity
had been shut off and we could have both handled the
problem more appropriately.’’ The state introduced H’s
affidavit as a full exhibit, without objection from the
defendant. During his trial testimony, H stated that he
had not read the affidavit before signing it and that he
had signed it only because the defendant had told him
that she needed it signed in order to get her job back.
The defendant attempted to use the affidavit to impeach
H during cross-examination and through the testimony
of the court service center employee who had typed
the affidavit.
The defendant filed a request to charge that was more
than sixty pages. In her request to charge, the defendant
requested that the court instruct the jury on direct and
circumstantial evidence, including instructing that
‘‘[t]he evidence from which you are to decide what
the facts are consists of: (1) the sworn testimony of
witnesses both on direct and cross examination, regard-
less of who called the witness, [and] (2) the exhibits
that have been admitted into evidence . . . . In reach-
ing your verdict, you should consider all the testimony
and exhibits admitted into evidence.’’ The defendant
also requested, inter alia, an instruction on inconsistent
statements of witnesses and an instruction under the
Whelan rule. Specifically, she submitted verbatim cop-
ies of § 2.4-3 of the Connecticut Criminal Jury Instruc-
tions, titled ‘‘Impeachment—Inconsistent Statements,’’6
and § 2.4-4 of the Connecticut Criminal Jury Instruc-
tions, titled ‘‘Impeachment—Whelan Rule.’’7 She did not
tie any of these requests to any particular evidence—
neither to testimony nor to exhibits. During oral argu-
ment before this court, the defendant conceded that
her request to charge did not comply with the require-
ments of our rules of practice.
The trial court conducted its initial charging confer-
ence, and it distributed a proposed draft of its jury
instructions, stating that it had included some of the
defendant’s requests. The next morning, the court con-
tinued its charging conference, noting the changes that
it had made to the proposed draft charge; none of the
changes involved Whelan or inconsistent statements.
Counsel for the defendant and the state engaged in
discussions with the court concerning the instructions;
none of those discussions concerned Whelan or incon-
sistent statements. The court, thereafter, asked each
party whether it had any exceptions, to which both the
state and the defendant responded in the negative.
In its final charge to the jury, the court instructed in
relevant part: ‘‘The evidence . . . from which you are
to decide what the facts are consist of the sworn testi-
mony of witnesses both on direct and cross-examina-
tion regardless of who called the witness, and the exhib-
its that have been admitted into evidence. In reaching
your verdict you should consider all the testimony and
exhibits admitted into evidence.’’ (Emphasis added.)
The court also instructed the jury that it could evalu-
ate a witness’ credibility based on, inter alia, whether
‘‘the witness’ testimony [was] contradicted by what that
witness has said or done at another time or by the
testimony of other witnesses or by other evidence.’’
Shortly thereafter, as had been requested by the defen-
dant, the court further instructed: ‘‘Evidence has been
presented that [H] made statements outside of court
that may be inconsistent with his trial testimony. You
should consider this evidence only as it relates to credi-
bility of the witness’ testimony, not as substantive evi-
dence. In other words, consider such evidence as you
would any other evidence of inconsistent conduct in
determining the weight to be given to the testimony of
the witness in court.’’
Near the end of its instructions to the jury, the court
stated: ‘‘[A]s I indicated earlier, your verdict must be
based on the evidence, and you may not go outside the
evidence to find facts. . . . I impress upon you that
you are duty bound as jurors to determine the facts on
the basis of the evidence as it has been presented.’’
After the court concluded its final instructions to the
jury, it asked both the defendant and the state whether
they had any comment, and neither voiced any objec-
tion to the court’s instructions as given.
Practice Book § 42-18 provides: ‘‘(a) When there are
several requests [to charge the jury in a criminal matter],
they shall be in separate and numbered paragraphs,
each containing a single proposition of law clearly and
concisely stated with the citation of authority upon
which it is based, and the evidence to which the proposi-
tion would apply. Requests to charge should not exceed
fifteen in number unless, for good cause shown, the
judicial authority permits the filing of an additional
number. If the request is granted, the judicial authority
shall apply the proposition of law to the facts of the case.
‘‘(b) A principle of law should be stated in but one
request and in but one way. Requests attempting to
state in different forms the same principle of law as
applied to a single issue are improper.’’ (Emphasis
added.)
In the present case, the defendant concededly failed
to adhere to our rules of practice and did not tie her
requested instructions to any particular evidence. After
the court provided its proposed instructions to counsel,
which included the defendant’s specific request that
the court provide an instruction pursuant to § 2.4-3 of
the Connecticut Criminal Jury Instructions, the defen-
dant voiced no objection to the court’s proposed draft
instructions.
On the merits of the defendant’s claim, we conclude,
on the basis of the entirety of the court’s jury charge,
that, although the defendant claims that the court
‘‘instructed the jury to consider [H’s] affidavit, a full
exhibit, for impeachment purposes only,’’ the court
never instructed the jury that it was limited in its use
of H’s affidavit. Indeed, the court specifically told the
jury that it ‘‘should consider all the testimony and exhib-
its admitted into evidence’’ in reaching its verdict. Addi-
tionally, although the court gave the limiting instruction
pursuant to § 2.4-3 of the Connecticut Criminal Jury
Instructions that the defendant requested, the defen-
dant readily acknowledges that this instruction was
relevant to alleged oral statements made by H. We are
not persuaded by the defendant’s argument that the
instructions given by the court did not specify to the
jury that it could use H’s affidavit for substantive pur-
poses. The defendant failed to comply with our rules of
practice by directing her requests to charge to particular
evidence in the case, and she never asked the court to
provide a Whelan instruction regarding the affidavit.8
The defendant also never asked the court to single out
the affidavit and to tell the jury specifically that it could
use the affidavit for substantive purposes. Nevertheless,
our review of the charge in its entirety reveals no
instance where the court told the jury that it could use
H’s affidavit only for impeachment purposes. The court
clearly instructed the jury that it ‘‘should consider all
the testimony and exhibits admitted into evidence’’ in
reaching its verdict. Accordingly, we conclude that the
defendant’s claim has no merit.
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.
1
Because we agree with the state that the defendant’s request to charge
fails under Whistnant, we need not determine whether an infraction legally
can be a lesser included offense of a misdemeanor. As our Supreme Court
recently did in Marsala, we save this question for another day. See State
v. Marsala, 337 Conn. 55, 57 n.4, 252 A.3d 349 (2020) (‘‘[b]ecause we conclude
that the defendant failed to satisfy Whistnant, we do not reach the state’s
alternative ground for affirmance, in which the state contends that the
defendant would not have been entitled to an instruction on the infraction
. . . even if he had satisfied Whistnant because infractions are categorically
prohibited from being submitted to the jury as lesser included offenses
of crimes’’).
2
The defendant also argues that State v. Harden, supra, 175 Conn. 315,
should be overruled because it was wrongly decided. ‘‘[I]t is axiomatic
that, [a]s an intermediate appellate court, we are bound by Supreme Court
precedent and are unable to modify it. . . . [W]e are not at liberty to overrule
or discard the decisions of our Supreme Court but are bound by them. . . .
[I]t is not within our province to reevaluate or replace those decisions.’’
(Internal quotation marks omitted.) State v. Vasquez, 194 Conn. App. 831,
839–40, 222 A.3d 1018 (2019), cert. denied, 334 Conn. 922, 223 A.3d 61 (2020).
3
‘‘Pursuant to Golding, a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. . . . State v. Golding, supra, 213 Conn.
239–40; see also In re Yasiel R., supra, 317 Conn. 781 (modifying third prong
of Golding).’’ (Emphasis omitted; internal quotation marks omitted.) State
v. Silva, Conn. , n.5, A.3d (2021).
4
During oral argument before this court, the defendant conceded that
she raised this claim under the state constitution in order to preserve the
issue for review by our Supreme Court. She also stated in her main appellate
brief: ‘‘Inasmuch as this court cannot overrule or modify decisions of the
Connecticut Supreme Court, the defendant appreciates the futility in bringing
this claim before it. Nevertheless, the defendant has chosen to assert the
foregoing state constitutional claims in order to preserve them for possible
review by the Connecticut Supreme Court.’’
5
The defendant appears to recognize that her claim fails under the federal
constitution. See United States v. Batchelder, supra, 442 U.S. 126 (‘‘The
provisions at issue plainly demarcate the range of penalties that prosecutors
and judges may seek and impose. In light of that specificity, the power that
Congress has delegated to those officials is no broader than the authority
they routinely exercise in enforcing the criminal laws. Having informed the
courts, prosecutors, and defendants of the permissible punishment alterna-
tives available under each Title, Congress has fulfilled its duty.’’).
6
Specifically, the request pursuant to § 2.4-3 of the Connecticut Criminal
Jury Instructions provides: ‘‘Evidence has been presented that a witness,
, made [a] statement[s] outside of court that (is/
are) inconsistent with (his/her) trial testimony. You should consider this
evidence only as it relates to the credibility of the witness’s testimony, not
as substantive evidence. In other words, consider such evidence as you
would any other evidence of inconsistent conduct in determining the weight
to be given to the testimony of the witness in court. [ The law treats an omission in a prior statement as an inconsistent
statement.]’’ (Emphasis in original.) See Connecticut Criminal Jury Instruc-
tions, available at https://www.jud.ct.gov/JI/Criminal/Criminal.pdf (last vis-
ited September 15, 2021).
7
Specifically, the request pursuant to § 2.4-4 of the Connecticut Criminal
Jury Instructions provides: ‘‘In evidence as exhibit [ ] is a prior statement
of . To the extent, if at all, you find such statement
inconsistent with the witness’s trial testimony, you may give such inconsis-
tency the weight to which you feel it is entitled in determining the witness’s
credibility here in court. You may also use such statement for the truth of
its content and find facts from it.’’ (Emphasis in original.) See Connecticut
Criminal Jury Instructions, available at https://www.jud.ct.gov/JI/Criminal/
Criminal.pdf (last visited September 15, 2021).
8
During oral argument before this court, the state also argued that the
affidavit was not admitted as a Whelan statement and that Whelan has no
applicability here. Because we conclude that the court did not limit the
jury’s use of the affidavit, we need not address the state’s argument.