State v. Tilus ( 2015 )

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STATE OF CONNECTICUT v. TINESSE TILUS
(AC 35567)
Sheldon, Prescott and Pellegrino, Js.
Argued January 5—officially released May 26, 2015
(Appeal from Superior Court, judicial district of
Fairfield, Kavanewsky, J.)
Janice N. Wolf, assistant public defender, for the
appellant (defendant).
Emily D. Trudeau, deputy assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Joseph J. Harry, senior assistant state’s
attorney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Tinesse Tilus, appeals
from the judgment of conviction, rendered after a jury
trial, of robbery in the first degree in violation of General
Statutes § 53a-134 (a) (2). On appeal, the defendant
claims that his conviction should be reversed and his
case should be remanded for a new trial on grounds
that (1) the trial court violated his sixth amendment
right to conflict free counsel by inadequately canvassing
him as to his desire to proceed with retained counsel
who had previously represented both him and one of
his codefendants in the case; (2) the trial court violated
his sixth amendment right to present a defense by induc-
ing that same codefendant, a key defense witness, to
invoke his fifth amendment privilege against self-
incrimination and not testify; (3) the trial court abused
its discretion by declining to admit certain physical
evidence received from his nontestifying codefendant in
support of his theory of defense; and (4) the prosecutor
violated his right to a fair trial by committing several
improprieties in closing and rebuttal arguments to the
jury. We affirm the judgment of the trial court.
The jury was presented with the following evidence
upon which to base its verdict. On December 28, 2011,
at approximately 8 p.m., Rene Aldof and his employee,
Ramon Tavares, were tending Aldof’s store, the Carib-
bean-American Grocery and Deli (store) located at 263
Wood Avenue in Bridgeport, when four men entered
the store. One of the men was the defendant, whom
Aldof recognized as ‘‘Tinesse,’’ a regular customer of
the store. Aldof also recognized a second man, Jean
Barjon, but did not recognize either of the two other
men. One of the unknown men pulled out a handgun
and demanded that Aldof give him the money, while
the other three men, including the defendant, ‘‘encased’’
him in an effort to prevent his escape. Aldof was able
to push past the men and exit the store, pursued by
one of the men, who unsuccessfully attempted to
restrain him by grabbing his coat. Aldof ran into a
nearby laundromat, where he held the door shut to
prevent his pursuer from coming in behind him.
Tavares, who remained in the store after Aldof’s
departure, was stationed in a plexiglass enclosed booth
where the cash register was located. A man approached
the booth, pointed a handgun at Tavares’ head and
ordered him to open the door. Tavares immediately
complied, and the man entered the booth. The man,
still holding the gun in his outstretched hand, ‘‘turned’’
Tavares to face the wall and told him to place his hands
up against the wall. Tavares ‘‘felt something in the back
of [his] head,’’ and the man demanded that he ‘‘give
him all the money.’’ The man took Tavares’ cell phone
and wallet, and the money in the cash register. Tavares
asked the man to return his wallet, as it contained his
papers, and the man did so, keeping only the cash inside
the wallet. Tavares stood facing the wall until he heard
the man exit the store.1
Patrol Officer Elizabeth Santora, of the Bridgeport
Police Department, was on her dinner break, driving
down Wood Avenue in a marked police cruiser, when
she observed a person later identified as Aldof, standing
outside of the Laundromat, waving his arms and
screaming ‘‘like a crazy person because [he] thought
that [he] was going to die.’’ Aldof told Santora that he
had just been robbed at gunpoint, and he pointed to one
of his alleged assailants, who was still in the immediate
vicinity. Once Santora focused on the suspect, he
started walking fast down Wood Avenue. Santora imme-
diately followed him in her cruiser, and Aldof followed
on foot, shouting that the man had just robbed him.
Santora kept the suspect in her sights as he broke
into a run and turned the corner onto Sherwood Avenue.
There, Santora observed the suspect come to a halt
next to several trash cans outside of the Esquina Latina
Restaurant. Santora stopped her cruiser, got out of her
vehicle and shouted, ‘‘don’t even fucking move.’’ The
suspect heeded the order. Santora approached the sus-
pect, gave him a ‘‘quick patdown,’’ then grabbed him
by the back of his pants and pulled him toward the
police cruiser.
As Santora approached the cruiser with the suspect
in tow, she observed a white Nissan Altima that had
been parked on Sherwood Avenue begin ‘‘pulling off’’
into the street. Aldof, then positioned on the corner of
Wood and Sherwood Avenues, told Santora that the
three men in the Altima had also been involved in the
robbery. Santora flagged down the vehicle and told its
driver to stop the car and give her the keys. The driver
obeyed. The first suspect and the three men in the
Altima were detained for questioning. The men were
later identified as Guillatemps Jean-Philippe, Jean
Louis, Barjon, and the defendant. Aldof confirmed that
the detainees were the same four men who had robbed
his store.
Once the scene had been secured, Santora and sev-
eral other members of the Bridgeport Police Depart-
ment searched the surrounding area for the gun that
allegedly had been used to perpetrate the robbery. A
nine millimeter pistol was discovered on the ground
in the vicinity of the trash cans where Santora had
apprehended the fleeing suspect. The pistol was taken
into evidence and later sent to the firearm and tool
mark division of the state forensic science laboratory
for testing and analysis. The pistol was examined, test
fired and found to be operable. A search of a national
database revealed that the pistol had been used in a
recent incident in New Jersey.
The defendant was arrested and charged with one
count each of conspiracy to commit robbery in the first
degree in violation of General Statutes §§ 53a-48 and
53a-134, and robbery in the first degree in violation
of § 53a-134. The defendant pleaded not guilty to the
charges and elected a jury trial.
The defendant, who testified in his own defense, chal-
lenged Aldof’s account of events on the evening of the
alleged robbery. The defendant testified that he had
known Aldof since he was a small child because their
families came from the same part of Haiti. He also
testified that he had been in Aldof’s store ‘‘many times,’’
and that on such occasions he had observed Aldof run-
ning an illegal Dominican lottery. The defense claimed
that Aldof had concocted his story about the alleged
robbery to avoid paying out a large sum of money to
one of the alleged coconspirators, Jean-Philippe, who
had gone to Aldof’s store alone that evening to collect
on a winning lottery ticket he had bought there.
The defendant explained that on the night of the
alleged robbery, his friend, Barjon, had come to his
house at about 7 p.m. and asked him if he would like
to take a ride to New Haven. When he agreed to do so,
he got in Barjon’s car, where Jean-Philippe and another
man he did not know were seated in the rear passenger
seat. The defendant was told that Barjon had agreed
to drive the two men to the train station in New Haven.
Instead, however, Barjon drove to Aldof’s store and
parked his car on the corner of Wood and Sherwood
Avenues. The defendant testified that once they arrived
at the store, Jean-Philippe, ‘‘with no mention, nothing,’’
got out of the car and entered the store. The defendant
and the other two men remained in the parked car,
where the defendant called a friend on his cell phone.
Shortly thereafter, while he was still on the phone, he
saw Jean-Philippe and a police officer approaching the
vehicle. When Jean-Philippe tried to open the car door,
the police officer ordered him to stop. The defendant
and the other two men were then escorted into a police
van, questioned, and later arrested.
Jean-Philippe also testified for the defense.2 Jean-
Philippe stated that he did not know the defendant, but
that he was a friend of Barjon. He testified that he had
gone to Aldof’s store on the evening of December 28,
2011, to collect $39,000 in lottery winnings, but that
Aldof had refused to pay him. Jean-Philippe claimed
that he went into the store alone while the other three
men remained in the car, drinking coffee and smoking
cigarettes. In the store, Jean-Philippe met Aldof, whom
he referred to as the ‘‘old man,’’ and produced his
receipt with the winning lottery numbers and showed
it to him. In response, Aldof left the store and walked
into the laundromat next door. When Jean-Philippe was
later arrested, he told police that he had played the
lottery at the store and had gone back there to collect
his money.3 Jean-Philippe also claimed not to have seen
anyone but Aldof in the store that evening, although he
testified that he did not know whether someone else
may have been in the store, in the section ‘‘where they
play the Lotto . . . .’’4 Jean-Philippe denied having a
pistol.
The jury found the defendant guilty of robbery in the
first degree. The jury found him not guilty, however,
of conspiracy to commit robbery in the first degree.
The court rendered judgment in accordance with the
jury’s verdict, sentencing the defendant to a term of
twelve years incarceration, execution suspended after
eight years, followed by four years of probation. The
defendant appeals from that judgment.
I
The defendant first claims that the trial court’s failure
to secure a valid waiver violated his constitutional right
to conflict free representation. Specifically, he claims
that the court, having knowledge of his trial counsel’s
conflict of interest due to his prior representation of
the codefendant, Barjon, improperly relied on the defen-
dant’s ill-advised representations that he wanted to pro-
ceed to trial with his retained counsel rather than
conducting a more thorough canvass regarding his trial
counsel’s conflict of interest.5 We disagree.
The following additional facts, which are undisputed
in the record, are relevant to our resolution of the defen-
dant’s claim. The defendant was arraigned on December
29, 2011, at which time he was assisted by counsel from
the Office of the Public Defender. His codefendant,
Barjon, was arraigned on the same day, and he, too,
was assisted by counsel from the Office of the Public
Defender. One month later, on January 31, 2012, Attor-
ney Eroll Skyers filed appearances in both cases.
Shortly thereafter, on February 7, 2012, the defendant
entered a plea of not guilty before Judge Robert J.
Devlin, Jr. At that time, Skyers informed Judge Devlin
that he represented both the defendant and Barjon in
their pending cases. On April 9, 2012, in front of Judge
Devlin, the defendant appeared with Skyers and
rejected the state’s plea offer, and his case was placed
on the trial list.
On October 2, 2012, Skyers appeared in court before
Judge Devlin with Barjon, who had communicated,
through counsel, his intention to plead guilty under the
Alford 6doctrine to the charge of conspiracy to commit
robbery in the first degree. Barjon failed his plea can-
vass, however, and thus the court vacated his guilty
plea.7 Because, at that time, it was clear that both Barjon
and the defendant intended to proceed to trial, the court
raised with Skyers the potential conflict of interest pre-
sented by his continued representation of both men.
In this regard, the court focused initially on problems
associated with Skyers’ continued representation of
Barjon. Skyers responded by stating for the record that
when Barjon and the defendant first came to him seek-
ing joint representation, he had informed them that
there could be a potential conflict if both cases pro-
ceeded to trial. Although both men persisted in their
desire to have him represent them, they agreed that
Barjon would retain other counsel if his case was not
resolved by entering a guilty plea.
The prosecutor then questioned whether, under the
circumstances, Skyers’ continued representation of the
defendant was advisable. On that score, the prosecutor
noted, specifically, the possibility that the defendant
would call Barjon to testify in his defense. The court
stated, ‘‘I guess we’d have to cross that bridge when
we come to it. I think, though, that Mr. Barjon would
have a fifth amendment right not to testify and therefore
could assert [it], and whoever represented him would
probably advise him to do so before his case was con-
cluded. And I would think that—he could choose to
testify, I guess, but he could not be compelled to testify
against his interest. And I suspect that the lawyer would
advise that, but maybe not.’’
The court then asked Skyers if he had discussed the
matter with the defendant, and he confirmed that he
had, stating, ‘‘at the time that I was retained by [the
defendant], he’s actually who came to me first, I advised
him that I’d be happy to represent him. He . . . indi-
cated that Mr. Barjon wanted to speak to me. And in
both of their presence, I indicated that potentially this
would be a conflict if I represented both of them, but
they persisted and they agreed on my representation
in the early stages of this case.’’ Skyers informed the
court that the defendant was present, if the court
wanted to question him.8 The following colloquy then
took place between the court and the defendant:
‘‘The Court: So, if Attorney Skyers continues to repre-
sent you, Mr. Tilus, he’s asking that he basically be
taken off of Mr. Barjon’s case and Mr. Barjon get his
own lawyer on the case, which would leave Mr. Skyers
just representing you. Understand so far?
‘‘[The Defendant]: Yes. To represent me.
‘‘The Court: But—correct. But it also means every-
thing that Mr. Barjon said to Attorney Skyers is pro-
tected by what we call the attorney-client privilege. It’s
confidential information that a person can talk to the
lawyer without fear of a lawyer using that information
against a person . . . we want people to talk to their
lawyers, and we want them to have confidence that
what is said is kept private between the client and the
lawyer. Understand what I’m trying to get at there?
‘‘[The Defendant]: Yes.
‘‘The Court: What that means is that whatever infor-
mation Mr. Skyers may have learned from Mr. Barjon,
you know, he could not use that in a way that would
hurt Mr. Barjon; he could use that in a way that would,
you know, make the case against Mr. Barjon easier to
prove by the state. That information would have to stay
confidential between Attorney Skyers and Mr. Barjon.
And he could not use that or reveal that in representing
you. Do you understand that?
‘‘[The Defendant]: Yeah, I understand that.
‘‘The Court: Okay.
‘‘[The Defendant]: But [I have] spoke[n] to my lawyer.
Mr. Skyers, all the time, me and him have a separate
case. . . .
‘‘The Court: Right. But what I’m saying is that he
talked to Barjon—let’s assume, just say . . . he knew
something from Barjon that might help your case, I
don’t know that he did, but if he did, he couldn’t use
that. He has to keep his . . . information from Barjon
separate and confidential and secret. So, do you under-
stand that?
‘‘[The Defendant]: Yes.
‘‘The Court: So, in some ways—now, I don’t know
what Mr. Barjon [is] going to do. I assume he’s going
to hire his own lawyer, and whatever happens with that
case, happens with that case. I’m more concerned with
yours because I think I’m going to let Mr. Skyers out
of Mr. Barjon’s case. But with respect to you, do you
still wish to have Mr. Skyers as your lawyer under those
circumstances?
‘‘[The Defendant]: Yes.
‘‘The Court: Would you like to consult with another
lawyer, a different lawyer about this, you know, before
we go forward on your case?
‘‘[The Defendant]: No. . . .
‘‘The Court: Okay. All right. And, Attorney Skyers,
from your point of view, have I correctly framed the
issue as far as—is there more that should be put on
the record here?
‘‘[Skyers]: Absolutely have, Your Honor. Yes.’’
Against this factual background, the defendant
argues that Skyers’ joint representation of himself and
Barjon in the pretrial phase of the proceedings gave
rise to a conflict of interest which jeopardized the defen-
dant’s sixth and fourteenth amendment right to counsel.
He further argues that the court’s inquiry into the matter
was not adequate to apprise him of the risks of contin-
ued representation by Skyers and, thus, no valid waiver
was obtained.
We begin our analysis of the defendant’s claim by
setting forth the applicable standard of review. ‘‘Almost
without exception, we have required that a claim of
ineffective assistance of counsel must be raised by way
of habeas corpus, rather than by direct appeal, because
of the need for a full evidentiary record for such [a]
claim. . . . On the rare occasions that we have
addressed an ineffective assistance of counsel claim on
direct appeal, we have limited our review to allegations
that the defendant’s sixth amendment rights had been
jeopardized by the actions of the trial court, rather than
by those of his counsel. . . . We have addressed such
claims, moreover, only where the record of the trial
court’s allegedly improper action was adequate for
review or the issue presented was a question of law,
not one of fact requiring further evidentiary develop-
ment. . . . We, therefore, review the defendant’s claim
as a question of law and, as with all questions of law,
our review is plenary.’’ (Citations omitted; emphasis
omitted; internal quotation marks omitted.) State v.
Parrott, 262 Conn. 276, 285–86, 811 A.2d 705 (2003).
‘‘The sixth amendment to the United States constitu-
tion as applied to the states through the fourteenth
amendment, and article first, § 8, of the Connecticut
constitution, guarantee to a criminal defendant the right
to effective assistance of counsel. Powell v. Alabama,
287 U.S. 45, 69, 53 S. Ct. 55, 77 L. Ed. 158 (1932); Festo
v. Luckart, 191 Conn. 622, 626, 469 A.2d 1181 (1983).
Where a constitutional right to counsel exists, our Sixth
Amendment cases hold that there is a correlative right
to representation that is free from conflicts of interest.
Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097,
67 L. Ed. 2d 220 (1981).’’9 (Internal quotation marks
omitted.) State v. Parrott, supra, 262 Conn. 286, quoting
State v. Crespo, 246 Conn. 665, 685–86, 718 A.2d 925(1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142
L. Ed. 2d 909 (1999). ‘‘This right applies not only to
the trial itself, but to any critical stage of a criminal
proceeding.’’ (Internal quotation marks omitted.) State
v. Gaines, 257 Conn. 695, 706–707, 778 A.2d 919 (2001).
Conflicts of interest arise in circumstances where the
defense lawyer’s representation violates, or is likely to
violate, certain ethical rules. ‘‘Cases involving conflicts
of interest usually arise in the context of representation
of multiple codefendants by one attorney where the
attorney adduces evidence or advances arguments on
behalf of one defendant that are damaging to the inter-
ests of the other defendant. Phillips v. Warden, 220
Conn. 112, 135–36, 595 A.2d 1356 (1991). A conflict
of interest also arises if trial counsel simultaneously
represents the defendant and another individual associ-
ated with the incident and that representation inhibits
counsel’s ability to represent the defendant.’’ (Internal
quotation marks omitted.) State v. Cruz, 41 Conn. App.
809, 812, 678 A.2d 506, cert. denied, 239 Conn. 908, 682
A.2d 1008 (1996). ‘‘An attorney has an actual, as opposed
to a potential, conflict of interest when, during the
course of the representation, the attorney’s and defen-
dant’s interests diverge with respect to a material fac-
tual or legal issue or to a course of action. . . . An
attorney has a potential conflict of interest if the inter-
ests of the defendant may place the attorney under
inconsistent duties at some time in the future.’’ (Cita-
tions omitted; internal quotation marks omitted.)
United States v. Perez, 325 F.3d 115, 125 (2d Cir. 2003).
The trial court has a duty to explore the possibility
of a conflict when it is alerted to the fact that the
defendant’s constitutional right to conflict free counsel
is in jeopardy. State v. Crespo, supra, 246 Conn. 697.
‘‘There are two circumstances under which a trial court
has a duty to inquire with respect to a conflict of inter-
est: (1) when there has been a timely conflict objection
at trial . . . or (2) when the trial court knows or rea-
sonably should know that a particular conflict exists
. . . .’’ (Citations omitted; internal quotation marks
omitted.) State v. Parrott, supra, 262 Conn. 285–87. ‘‘The
purpose of the court’s inquiry . . . is to determine
whether there is an actual or potential conflict, and,
if there is an actual conflict, to inquire whether the
defendant chooses to waive the conflict or whether the
attorney must withdraw.’’ State v. Figueroa, 143 Conn.
App. 216, 226, 67 A.3d 308 (2013).
‘‘Just as the right to assistance of counsel may be
waived in favor of self-representation; see Faretta v.
California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed.
2d 562 (1975); State v. Carter, 200 Conn. 607, 611, 513
A.2d 47 (1986); so may a defendant waive the right
to conflict-free representation. The trial court must,
however, determine on the record that such a waiver
is knowing and intelligent. Glasser v. United States,
[315 U.S. 60, 71, 62 S. Ct. 457, 86 L. Ed. 680 (1942)];
United States v. Curcio, 680 F.2d 881, 888–89 (2d Cir.
1982); State v. Tyler-Barcomb, 197 Conn. 666, 670, 500
A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct.
1518, 89 L. Ed. 2d 916 (1986). If the defendant reveals
that he is aware of and understands the various risks
and pitfalls, and that he has the rational capacity to
make a decision on the basis of this information, and
if he states clearly and unequivocally . . . that he nev-
ertheless chooses to hazard [the] dangers of waiving
conflict-free representation, then his waiver may appro-
priately be accepted. United States v. Curcio, supra[888]; State v. Tyler-Barcomb, supra [670]. The waiver
is not vitiated simply because the defendant, with the
benefit of hindsight, might have chosen differently. A
defendant need not be prescient in order to waive know-
ingly and intelligently the right to conflict-free represen-
tation. United States v. Curcio, supra [888].’’ (Internal
quotation marks omitted.) State v. Williams, 203 Conn.
159, 167–68, 523 A.2d 1284 (1987).
In the present case, the record shows that the court
explored the potential conflict of interest when the
issue was raised by the prosecutor. The court heard
from Skyers and the defendant. Skyers represented to
the court that he had discussed the potential conflict
of interest with the defendant. The court then informed
the defendant of the risks attendant to Skyers’ represen-
tation of him, namely, Skyers’ continuing obligations
to Barjon and the ethical barrier to using any informa-
tion that he had acquired as a result of representing
Barjon. The defendant confirmed that he was aware
of Skyers’ obligations to Barjon, and he expressed his
desire to proceed with his retained counsel.
The defendant argues that the court’s inquiry into the
matter was not sufficient, in that the court did not
adequately warn him as to the problems that could
potentially arise as a result of Skyers’ earlier joint repre-
sentation of him and Barjon. The defendant argues that
a knowing and intelligent waiver of conflict free counsel
requires the type of inquiry that has been adopted by the
United States Court of Appeals for the Second Circuit.
Specifically, he claims: ‘‘[T]he court should advise the
defendant of his right to separate and conflict-free rep-
resentation, instruct the defendant as to problems
inherent in being represented by an attorney with
divided loyalties, allow the defendant to confer with
his chosen counsel, encourage the defendant to seek
advice from independent counsel, and allow a reason-
able time for the defendant to make his decision.’’
United States v. Curcio, supra, 680 F.2d 890. Review of
our appellate decisions addressing this issue, however,
reveals that ‘‘[t]he [appropriate] course . . . followed
by the court in its inquiry depends upon the circum-
stances of the particular case.’’ (Emphasis added; inter-
nal quotation marks omitted.) State v. Drakeford, 261
Conn. 420, 427, 802 A.2d 844 (2002); accord DaSilva
v. Commissioner of Correction, 132 Conn. App. 780,
789–90, 34 A.3d 429 (2012).
For example, in State v. Tyler-Barcomb, supra, 197
Conn. 671, a case involving joint representation, our
Supreme Court held that where defense counsel and
the trial court had previously advised two codefendants
of their attorney’s possible conflict of interest in jointly
representing them, then again made them aware of the
risks potentially arising from such a conflict immedi-
ately before jury selection, the defendants’ stated will-
ingness to proceed despite knowledge of those risks
constituted a waiver of their right to conflict free repre-
sentation.
In State v. Williams, supra, 203 Conn. 168, a case in
which defense counsel notified the court mid-trial that
a conflict prevented him from pursuing a line of defense
implicating a third party look-alike, the defendant, on
appeal, claimed that the court’s canvass of him was
deficient because the court failed to properly determine
whether he was fully aware of the ‘‘ ‘factual and legal
parameters’ ’’ of his waiver. Id. Our Supreme Court
rejected the defendant’s claim, reasoning that the defen-
dant had been informed of the pitfalls associated with
his counsel’s continued representation both by the
court and by his attorney. The court stressed that
defense counsel ‘‘had an ethical obligation to disclose
to the defendant the circumstances of the conflict and
its effect upon his ability to exercise independent pro-
fessional judgment on the defendant’s behalf.’’ Id., 169.
Here, the court advised the defendant as to the ethical
limitations placed on his attorney as a result of his
pretrial representation of Barjon. Skyers informed the
court that he, too, had made the defendant aware of
the implications of the joint representation when the
defendant initially retained him almost nine months
before the start of trial. The defendant confirmed on
the record that such discussions had indeed taken
place. The court was entitled to rely on these represen-
tations in determining whether the defendant’s waiver
was knowing and intelligent.10 ‘‘[D]efense counsel have
an ethical obligation to avoid conflicting representa-
tions and to advise the court promptly when a conflict of
interest arises during the course of trial. Absent special
circumstances, therefore, trial courts may assume
either that [the potentially conflicted] representation
entails no conflict or that the lawyer and his clients
knowingly accept such risk of conflict as may exist.
. . . [T]rial courts necessarily rely in large measure
upon the good faith and good judgment of defense coun-
sel.’’11 (Emphasis omitted; internal quotation marks
omitted.) State v. Crespo, supra, 246 Conn. 696, quoting
Cuyler v. Sullivan, 446 U.S. 335, 346–47, 100 S. Ct. 1708,
64 L. Ed. 2d 333 (1980); see also State v. Williams,
supra, 203 Conn. 168. In addition, it is important that
the court defer to counsel where appropriate and refrain
from unnecessarily interfering in the attorney-client
relationship. See State v. Tyler-Barcomb, supra, 197
Conn. 670 (‘‘[t]he scope of the trial court’s inquiry
should be thorough . . . yet not be overly intrusive
into the attorney-client relationship’’).
The defendant argues that his waiver was invalid
because the court failed to elicit narrative responses
from him as to his understanding of the risks of Skyers’
continued representation of him. A similar argument
was made and rejected in DaSilva v. Commissioner of
Correction, supra, 132 Conn. App. 790–91, wherein this
court determined that ‘‘[a]lthough the trial court’s
inquiry of the petitioner was brief, the petitioner’s
responses were sufficient under the circumstances to
constitute a knowing and intelligent waiver of the poten-
tial conflict.’’ In State v. Williams, supra, 203 Conn. 172,
our Supreme Court, citing Curcio, agreed that narrative
responses furnish ‘‘additional assurance that the defen-
dant’s waiver [is] knowing and intelligent,’’ but deter-
mined that if the record otherwise demonstrates that
the defendant has made a valid waiver, ‘‘the [court’s]
failure to elicit narrative responses does not, in itself,
justify reversal.’’ Here, the record establishes that the
defendant was aware of the possible consequences of
his attorney’s joint representation well in advance of
the court’s canvass, and his responses to the court’s
questions were clear and unequivocal. Under these cir-
cumstances, the defendant’s waiver was valid.
The defendant also argues that the court should have
encouraged him to seek the advice of independent coun-
sel before deciding whether to waive his right to conflict
free counsel, and afforded him additional time to do
so. We are not persuaded for two reasons. First, our
cases do not suggest that such consultation is required.
See, e.g., DaSilva v. Commissioner of Correction,
supra, 132 Conn. App. 790–91 (it was not necessary for
court to advise petitioner about obtaining independent
counsel). Second, the record here reveals that the court
did give the defendant the opportunity to consult with
another lawyer before going forward with his case, but
the defendant declined to do so, clearly stating that he
wanted to have Skyers continue to represent him.
In any case involving a possible conflict of interest,
the court must be mindful of the defendant’s constitu-
tional right to the counsel of his choice; see United
States v. Bubar, 567 F.2d 192, 204 (2d Cir.) (recognizing
defendant’s ‘‘constitutional right to be represented by
counsel of his own choice’’), cert. denied, 434 U.S. 872,
98 S. Ct. 217, 54 L. Ed. 2d 151 (1977); when making a
determination as to the soundness of the defendant’s
determination to move forward with his present counsel
despite the potential risks. ‘‘[O]ur chosen system of
criminal justice is built upon a truly equal and adversar-
ial presentation of the case, and upon the trust that can
exist only when counsel is independent of the Govern-
ment. Without the right, reasonably exercised, to coun-
sel of choice, the effectiveness of that system is
imperiled.’’ (Internal quotation marks omitted.) State v.
Peeler, 265 Conn. 460, 472, 828 A.2d 1216 (2003), cert.
denied, 541 U.S. 1029, 124 S. Ct. 2094, 158 L. Ed. 2d 710(2004), quoting Caplin & Drysdale, Chartered v. United
States, 491 U.S. 617, 648, 109 S. Ct. 2646, 105 L. Ed. 2d
528 (1989) (Blackmun, J., dissenting).
Here, the defendant persisted in his desire to proceed
to trial with the assistance of his chosen counsel. In
light of the fact that the only anticipated impediment
to Skyers’ continued representation of the defendant
was the possibility that Barjon would choose to testify
on the defendant’s behalf, which the court correctly
deemed unlikely given Barjon’s decision to proceed to
trial, it properly deferred to the defendant’s expressed
desire to proceed, notwithstanding the potential
conflict.
II
The defendant next claims that the trial court, Kava-
newsky, J., violated his sixth amendment right to pre-
sent a defense by inducing his codefendant, Barjon,
to invoke his fifth amendment privilege against self-
incrimination and not testify. More specifically, the
defendant argues that the court substantially interfered
with his right to present a defense by continually ques-
tioning Barjon, whom the defendant claims would have
testified favorably to the defense, as to his willingness
to testify, and thereby causing him to refuse to testify
at trial. The record establishes, however, that the court
properly advised Barjon of his constitutional rights
without exercising any undue influence upon him.
Accordingly, we reject the defendant’s claim.
As a preliminary matter, we note that the defendant
did not object to the court’s inquiry of Barjon at trial.
Because the record is adequate for review, however,
and the defendant’s claim is of constitutional magni-
tude, we review that claim pursuant to State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989).12
The following additional facts and procedural history
are relevant to our review of this claim. On October
17, 2012, Barjon appeared to testify on the defendant’s
behalf.13 When he did so, he was questioned by the court
outside the presence of the jury and advised of his
fifth amendment privilege not to testify. Specifically,
the court cautioned Barjon that by testifying, he would
subject himself to questioning by both the defendant
and the state, and that any statements he made in the
course of his testimony could be used against him in
his pending case.14 Upon receiving this advisement of
his rights, Barjon expressed a desire to discuss the
matter further with his new counsel, Attorney Matthew
Coulute. Barjon was later brought back into the court-
room, where he stated that he still intended to testify
for the defendant. The defense then proceeded with its
case, calling as its first witness, the defendant’s alleged
coconspirator, Jean-Philippe. Following Jean-Philippe’s
testimony, outside the presence of the jury, the court
held a sidebar conference with the prosecutor, Skyers
and Coulute. Barjon was then brought back before the
court, which inquired of him again whether or not he
wanted to testify:
‘‘The Court: [Attorney] Coulute and Mr. Barjon, have
you made a decision on whether you want to testify in
this case?
‘‘Barjon: I did.
‘‘The Court: Are you going to testify or not testify?
‘‘Barjon: Not testify.
‘‘The Court: [Attorney] Coulute, anything else?
‘‘Attorney Coulute: No, Your Honor. Thank you.’’
On appeal, the defendant argues that the court’s con-
duct caused Barjon to invoke his privilege against self-
incrimination and, thus, violated the defendant’s consti-
tutional right to present a defense. He further argues
that because Barjon did not testify, he was deprived of
a credible witness whose testimony was critical to his
defense, without whom he was unable to introduce
‘‘crucial evidence regarding lottery tickets’’ sold at
Aldof’s store. See part III of this opinion.
The defendant has a fundamental constitutional right
to present a defense. See Washington v. Texas, 388 U.S.
14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). ‘‘The
federal constitution require[s] that criminal defendants
be afforded a meaningful opportunity to present a com-
plete defense. . . . The sixth amendment . . . [guar-
antees] the right to offer the testimony of witnesses,
and to compel their attendance, if necessary, [and] is
in plain terms the right to present a defense, the right
to present the defendant’s version of the facts as well
as the prosecution’s to the jury so that it may decide
where the truth lies.’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Cerreta, 260 Conn. 251,
260–61, 796 A.2d 1176 (2002). The defendant’s right to
present a defense is not absolute, however; ‘‘[t]he right
may, in appropriate cases, bow to accommodate other
legitimate interests in the criminal trial process.’’ (Inter-
nal quotation marks omitted.) Rock v. Arkansas, 483
U.S. 44, 55, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987).
‘‘The accused does not have an unfettered right to offer
testimony that is incompetent, privileged, or otherwise
inadmissible under standard rules of evidence.’’ Taylor
v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 98 L. Ed.
2d 798 (1988).
‘‘The function of the court in a criminal trial is to
conduct a fair and impartial proceeding. . . . A trial
judge in a criminal case may take all steps reasonably
necessary for the orderly progress of the trial. . . .
When the rights of those other than the parties are
implicated, [t]he trial judge has the responsibility for
safeguarding both the rights of the accused and the
interests of the public in the administration of criminal
justice.’’ (Citation omitted; internal quotation marks
omitted.) State v. Torres, 60 Conn. App. 562, 569–70,
761 A.2d 766 (2000), cert. denied, 255 Conn. 925, 767
A.2d 100 (2001); see also State v. Roma, 199 Conn. 110,
114–15, 505 A.2d 717 (1986). Accordingly, it is within
the court’s discretion to warn a witness about the possi-
bility of incriminating himself. United States v. Arthur,
949 F.2d 211, 215 (6th Cir. 1991).
The court, however, abuses its discretion if it actively
interferes in the defendant’s presentation of his defense,
and thereby pressures a witness into remaining silent.
See Webb v. Texas, 409 U.S. 95, 93 S. Ct. 351, 34 L. Ed.
2d 330 (1972). In assessing whether the court has acted
unreasonably, the reviewing court looks to the factual
circumstances surrounding the witness’ invocation of
his privilege not to testify. ‘‘The dispositive question in
each case is whether the government actor’s interfer-
ence with a witness’s decision to testify was ‘substan-
tial.’ ’’ United States v. Serrano, 406 F.3d 1208, 1216
(10th Cir.), cert. denied, 546 U.S. 913, 126 S. Ct. 277,
163 L. Ed. 2d 247 (2005).
In United States v. Arthur, supra, 949 F.2d 215, on
which the defendant relies, the District Court advised
the witness that it was not in his best interest to testify;
the court stepped into the role of the witness’ advocate,
repeatedly cautioning the witness about the perils of
testifying, despite the witness’ expressed willingness to
do so. In response to the court’s badgering, the witness
invoked his privilege. Id., 216. On the basis of these
facts, the United States Court of Appeals for the Sixth
Circuit held that the District Court had committed
reversible error by inducing the witness to exercise his
fifth amendment right not to testify. Id.
Likewise, in Webb v. Texas, supra, 409 U.S. 96, the
United States Supreme Court found a due process viola-
tion where the trial court had admonished the defen-
dant’s witness that he did not have to testify, implying
that it expected him to perjure himself if he did so, and
warned him that it would personally see to it that his
case be presented to the grand jury so he could be
indicted for perjury if such testimony was offered.
In the present case, the record is devoid of any such
improper conduct on the part of the court. Here, it was
within the court’s discretion to inform Barjon of his fifth
amendment privilege against self-incrimination and of
the possible consequences of testifying. The court’s
advisement of rights was neutral and lacked the coer-
cive admonitions present in Arthur and Webb. It is also
important to note that Barjon had legal representation
at the time of his advisement and was given the opportu-
nity by the court to consult with his attorney following
the court’s canvass, thereby undermining the defen-
dant’s claim that Barjon’s will was overborne by the
court. See United States v. Serrano, supra, 406 F.3d
1216 (‘‘[t]he potential for unconstitutional coercion by
a government actor significantly diminishes . . . if a
defendant’s witness elects not to testify after consulting
an independent attorney’’ [emphasis omitted]). In light
of these factors, we conclude that the court acted prop-
erly under the circumstances, and thus that the defen-
dant has failed to show that his constitutional rights
were clearly violated by the court’s conduct, as required
to satisfy the third prong of Golding.
III
The defendant next claims that the trial court abused
its discretion by precluding certain lottery ticket evi-
dence on the ground that the defense had failed to lay
an adequate foundation as to its authenticity.15 We
disagree.
We review the defendant’s claim in accordance with
certain well settled legal principles. ‘‘The trial court’s
ruling on evidentiary matters will be overturned only
upon a showing of a clear abuse of the court’s discre-
tion. . . . Every reasonable presumption should be
made in favor of the correctness of the court’s ruling
in determining whether there has been an abuse of
discretion. . . . Furthermore, the burden to prove the
harmfulness of an improper evidentiary ruling is borne
by the defendant. The defendant must show that it is
more probable than not that the erroneous action of
the court affected the result.’’ (Citation omitted; internal
quotation marks omitted.) State v. Brisco, 84 Conn.
App. 120, 132, 852 A.2d 746, cert. denied, 271 Conn. 944,
861 A.2d 1178 (2004).
The following additional facts are relevant to the
resolution of the defendant’s claim. At trial, the defen-
dant sought to support his defense that Aldof had con-
cocted his story about a robbery to cover up his refusal
to honor Jean-Philippe’s winning lottery ticket by intro-
ducing into evidence several papers that he claimed to
be lottery tickets from the store. Outside the presence
of the jury, the defendant testified that he had seen
Barjon play the lottery at the store on several occasions.
He further testified that the tickets he sought to intro-
duce were similar in appearance to those he had pre-
viously seen Barjon play, but he could not verify that
they were in fact the same lottery tickets.16 The state
objected to the admission of the evidence, arguing that
the defense had failed to provide an adequate founda-
tion to authenticate the documents. The court agreed
and thus excluded the evidence.
‘‘Authentication is . . . a necessary preliminary to
the introduction of most writings in evidence . . . .’’
(Internal quotation marks omitted.) State v. Colon, 272
Conn. 106, 188, 864 A.2d 666 (2004), cert. denied, 546
U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005). ‘‘The
requirement of authentication as a condition precedent
to admissibility is satisfied by evidence sufficient to
support a finding that the offered evidence is what its
proponent claims it to be. . . . In general, a writing
may be authenticated by a number of methods, includ-
ing direct testimony or circumstantial evidence. . . .
Both courts and commentators have noted that the
showing of authenticity is not on a par with the more
technical evidentiary rules that govern admissibility,
such as hearsay exceptions, competency and privilege.
. . . Rather, there need only be a prima facie showing
of authenticity to the court.’’ (Citation omitted; internal
quotation marks omitted.) Gagliardi v. Commissioner
of Children & Families, 155 Conn. App. 610, 618–19,
110 A.3d 512, cert. denied, 316 Conn. 917, A.3d
(2015).
‘‘Once a prima facie showing of authorship is made
to the court, the evidence, as long as it is otherwise
admissible, goes to the jury, which will ultimately deter-
mine its authenticity. . . . The only requirement is that
there have been substantial evidence from which the
jury could infer that the document was authentic.’’
(Citations omitted.) State v. Berger, 249 Conn. 218, 233,
733 A.2d 156 (1999); see also Conn. Code Evid. § 9-1.
An item that is offered into evidence, which is claimed
to be relevant for a particular purpose—here, presum-
ably, to establish that Aldof had been running an illegal
Dominican lottery out of his store—must first be shown
to have some connection to the facts in issue. In the
present case, however, there was no identifying infor-
mation on the tickets indicating that they originated
from the store, nor did the defendant have any indepen-
dent knowledge from which the jury reasonably could
infer that they did. The defendant did not testify as to
who had purchased the tickets, who had issued them,
or when they had been created. At best, the defendant’s
testimony established that Barjon had purchased lottery
tickets from the store that looked similar to the prof-
fered evidence. ‘‘The law of evidence is agnostic; it does
not accept items at face value.’’ C. Tait & E. Prescott,
Connecticut Evidence (5th Ed. 2014) § 9.1.2, p. 685; see
also State v. Brisco, supra, 84 Conn. App. 133 (defendant
did not provide evidence to prove authorship of
unsigned writing and thus court did not err in exclud-
ing it).
We conclude that the court did not abuse its discre-
tion in ruling that the defendant failed to establish a
prima facie showing of authenticity such that a reason-
able juror could find in favor of authenticity.17
IV
Finally, the defendant claims that his right to a fair
trial was violated by several prosecutorial improprieties
during the state’s closing arguments. We conclude that,
although one of the prosecutor’s challenged statements
was improper, the defendant was not deprived of his
due process right to a fair trial.
The standard we apply to claims of prosecutorial
impropriety is well established. ‘‘In analyzing claims
of prosecutorial impropriety, we engage in a two step
analytical process. . . . The two steps are separate and
distinct. . . . We first examine whether prosecutorial
impropriety occurred. . . . Second, if an impropriety
exists, we then examine whether it deprived the defen-
dant of his due process right to a fair trial. . . . In other
words, an impropriety is an impropriety, regardless of
its ultimate effect on the fairness of the trial. Whether
that impropriety was harmful and thus caused or con-
tributed to a due process violation involves a separate
and distinct inquiry. . . . [If] a defendant raises on
appeal a claim that improper remarks by the prosecutor
deprived the defendant of his constitutional right to a
fair trial, the burden is on the defendant to show . . .
that the remarks were improper . . . .’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Ross,
151 Conn. App. 687, 693, 95 A.3d 1208, cert. denied, 314
Conn. 926, 101 A.3d 271 (2014).18
A
The defendant first claims that the prosecutor’s state-
ments during closing arguments improperly attempted
to appeal to the passions of the jury by analogizing
the plight of Aldof to that of a prostitute rape victim.
Specifically, the defendant directs our attention to a
portion of the state’s argument, in which the prosecutor
stated: ‘‘now, if you take the defendant’s story and you
say, well, there is a Lotto going on . . . so what? He
still robbed Mr. Aldof. That’s like saying, well, because
someone is a prostitute and she’s committing a criminal
act, she can’t get raped.’’ In rebuttal argument, the pros-
ecutor made similar comments, arguing that the law
does not condone either the robbing of drug dealers or
the raping of prostitutes.19
The defendant submits that the prosecutor’s com-
ments constituted an improper appeal to the emotions,
passions, and prejudice of the jury. In response, the
state argues that the prosecutor used a commonly
understood example to illustrate the point that just
because a person is engaged in illegal activity, as the
defendant had claimed, that would not justify the com-
mitting of crimes of violence against him. The state
further argues that the prosecutor’s statements cannot
reasonably be interpreted to imply that armed robbery
is similar to rape or that Aldof was comparable to a
raped prostitute, as the defendant now claims. We agree
with the state and conclude that the prosecutor’s
remarks, when put in proper context, were not
improper.
‘‘[I]t is well established that, [a] prosecutor may not
appeal to the emotions, passions and prejudices of the
jurors. . . . [S]uch appeals should be avoided because
they have the effect of diverting the jury’s attention
from their duty to decide the case on the evidence. . . .
When the prosecutor appeals to emotions, he invites
the jury to decide the case, not according to a rational
appraisal of the evidence, but on the basis of powerful
and irrelevant factors which are likely to skew that
appraisal.’’ (Citation omitted; internal quotation marks
omitted.) State v. Crump, 145 Conn. App. 749, 755, 75
A.3d 758, cert. denied, 310 Conn. 947, 80 A.3d 906 (2013).
That being said, we are cognizant that ‘‘[i]n determin-
ing whether [prosecutorial impropriety] has occurred
[in the course of closing arguments], the reviewing
court must give due deference to the fact that [c]ounsel
must be allowed a generous latitude in argument, as
the limits of legitimate argument and fair comment can-
not be determined precisely by rule and line, and some-
thing must be allowed for the zeal of counsel in the
heat of argument. . . . Thus, as the state’s advocate,
a prosecutor may argue the state’s case forcefully, [pro-
vided the argument is] fair and based upon the facts in
evidence and the reasonable inferences to be drawn
therefrom. . . . Moreover, [i]t does not follow . . .
that every use of rhetorical language or device [by the
prosecutor] is improper. . . . The occasional use of
rhetorical devices is simply fair argument. . . . Never-
theless, the prosecutor has a heightened duty to avoid
argument that strays from the evidence or diverts the
jury’s attention from the facts of the case.’’ (Internal
quotation marks omitted.) State v. Daniel G., 147 Conn.
App. 523, 555, 84 A.3d 9, cert. denied, 311 Conn. 931,
87 A.3d 579 (2014).
Here, the defendant would have us construe the pros-
ecutor’s mention of rape as an improper appeal to the
passions of the jury. But we do not decide the defen-
dant’s claim in a factual vacuum. The crux of the defense
theory at trial was that Aldof fabricated the story about
the robbery to avoid having to pay out a large sum of
money owed to Jean-Philippe in connection with an
illegal lottery he was running out of his store. The prose-
cutor’s comments were a relevant rhetorical device
aimed at defeating one possible view of the defense:
that Aldof deserved to be robbed because he had been
engaged in unlawful activity. Under the circumstances,
the prosecutor’s comments were not likely to have been
misunderstood.
B
The defendant next directs our attention to state-
ments made by the prosecutor referring to the defen-
dant’s witness, Jean-Philippe, as ‘‘muscle,’’ positing to
the jury that Jean-Philippe had been recruited by the
defendant to act as an enforcer in the robbery. The
prosecutor argued that the defendant ‘‘brought muscle
out of New Jersey to rob the place.’’ The prosecutor
later argued again that ‘‘the defendant brought muscle
along with Barjon and they went and robbed the place.’’
The defendant argues that it was improper for the prose-
cutor to refer to the defense witness as ‘‘muscle.’’ He
further argues that the prosecutor improperly argued
facts not in evidence by mischaracterizing the defen-
dant’s alleged role in the offense. We agree that these
statements were improper.
Jean-Philippe testified that he was from Elizabeth,
New Jersey. The state presented evidence that the pistol
discovered behind the trash cans where Jean-Philippe
was apprehended had been linked to a prior incident
in New Jersey. Jean-Philippe stated that three or four
days prior to the alleged robbery he was staying with
his girlfriend in East Hartford. During that time frame,
he said, he asked Barjon where he could ‘‘get the Lotto.’’
Barjon directed him to the Caribbean-American Gro-
cery and Deli and drove him to the store, where he
purchased a ticket. He testified that on the date of the
incident, Barjon picked him up and drove him back to
the store so that he could collect $39,000 in lottery
winnings.
On cross-examination, the prosecutor challenged
Jean-Philippe’s account and attempted to elicit testi-
mony from him that his assistance had been sought out
by the defendant for the purpose of helping him collect
winnings on a lottery ticket that the defendant had
purchased. Jean-Philippe denied the prosecutor’s sug-
gestion, as demonstrated in the following colloquy:
‘‘Q. Okay. And you’re saying you played the Lotto out
of the Caribbean-American store in Bridgeport; correct?
‘‘A. Yes.
‘‘Q. And when did you buy that ticket?
‘‘A. Between December 24, 25.
‘‘Q. The 24th, 25th. So, you were in Connecticut on
the 24th or 25th of December, 2011?
‘‘A. Yes, I was there.
‘‘Q. And isn’t it more accurate that the ticket belonged
to [the defendant]?
‘‘A. No, that’s not his. I was the one who played with
my own money; that’s mine.
‘‘Q. And isn’t it correct that you and Mr. Louis came
out of New Jersey to help [the defendant] collect his
winnings?
‘‘A. No, I don’t know anything about it.
‘‘Q. And isn’t it true that when you came out of New
Jersey you brought this firearm that was used in a
shooting in New Jersey on the 14th?’’
Defense counsel objected on the stated ground that
there had been no testimony relating to the specifics
of the prior incident in New Jersey. The prosecutor
then asked:
‘‘Q. And isn’t it true you would help people collect
money by being an enforcer?
‘‘A. I have no knowledge about it; I’m not a police
officer.
‘‘Q. No. You’re not a police officer: you’re engaged in
an illegal enforcing, helping people collect debts. . . .
‘‘A. No.’’
In his closing argument, the prosecutor continued to
underscore his enforcer theory. The prosecutor argued:
‘‘[w]hat motive does the defendant have to commit a
robbery? Greed. Would he do it at a place he knew? Is
it reasonable? Do you think that these people are going
to come forward? He brought muscle out of New Jersey
to rob the place.’’
The prosecutor misstated the evidence. Jean-Philippe
testified that Barjon told him where to purchase a lot-
tery ticket, and that Barjon drove him to Aldof’s store
both prior to and on the date of the incident. He further
testified that he had never met the defendant before
the evening of the incident. There was no testimony at
trial to suggest that Jean-Philippe was in Connecticut
to do the defendant’s bidding, as the prosecutor had
argued. It was improper for the prosecutor to invite
speculation on a matter as to which he attempted, but
failed, to elicit any supporting evidence at trial.
Comments, such as those at issue here, attributing
to the defendant a plan to import an out-of-state
enforcer to carry out the robbery, run afoul of a fair
adversarial process, where the sole consideration for
the jury should be the evidence presented at trial and
whether that evidence supports a determination of guilt.
The risk presented by such unsupported arguments is
that the jury will accept the prosecutor’s representa-
tions without evidence on the theory that the prosecutor
is privy to information of the sort he proposes by his
argument. ‘‘A prosecutor may invite the jury to draw
reasonable inferences from the evidence; however, he
or she may not invite sheer speculation unconnected
to evidence.’’ (Internal quotation marks omitted.) State
v. Jones, 135 Conn. App. 788, 801, 44 A.3d 848, cert.
denied, 305 Conn. 925, 47 A.3d 885 (2012).
The prosecutor, as the representative of the state, has
considerable influence on jurors. See State v. Martinez,
143 Conn. App. 541, 574, 69 A.3d 975, cert. granted
on other grounds, 310 Conn. 909, 76 A.3d 625 (2013).
Accordingly, comments such as those at issue here, in
addition to leaving the jury with the impression that
the prosecutor may be privy to relevant information
not presented at trial, pose the risk that jurors may
consciously or unconsciously rely on what they per-
ceive to be the prosecutor’s view of the case, rather
than their own evidence based judgment.
Having concluded that the prosecutor’s comments
were improper, we turn to the second step of our analy-
sis, which is to determine whether the impropriety ‘‘so
infected the trial with unfairness as to make the convic-
tion a denial of due process.’’ (Internal quotation marks
omitted.) State v. Stevenson, 269 Conn. 563, 589, 849
A.2d 626 (2004). To determine whether the improper
conduct by the prosecutor violated the defendant’s right
to a fair trial, we consider the factors set forth in State
v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).
‘‘[O]ur determination of whether any improper con-
duct by the state’s attorney violated the defendant’s fair
trial rights is predicated on the factors set forth in State
v. Williams, [supra, 204 Conn. 540], with due consider-
ation of whether that [impropriety] was objected to at
trial. . . . These factors include the extent to which
the [impropriety] was invited by defense conduct or
argument . . . the severity of the [impropriety] . . .
the frequency of the [impropriety] . . . the centrality
of the [impropriety] to the critical issues in the case
. . . the strength of the curative measures adopted
. . . and the strength of the state’s case. . . . [If] a
defendant raises on appeal a claim that improper
remarks by the prosecutor deprived the defendant of
his constitutional right to a fair trial, the burden is on
the defendant to show, not only that the remarks were
improper, but also that, considered in light of the whole
trial, the improprieties were so egregious that they
amounted to a denial of due process.’’ (Internal quota-
tion marks omitted.) State v. Ross, supra, 151 Conn.
App. 701.
Here, the defense did not invite the improper com-
ments, no curative measures were taken by the court,
and the impropriety was central to a critical issue in
the case, more particularly, the prosecutor’s comments
went to the defendant’s theory of defense. Those factors
weigh in favor of the defendant. The remaining factors,
however, weigh in favor of the state. The impropriety
was isolated and not severe, as evidenced by the fact
that the defendant did not object to the argument or
request a curative instruction. Although a party’s failure
to object to improper arguments does not preclude a
claim of prosecutorial impropriety, ‘‘[d]efense counsel’s
objection or lack thereof allows an inference that coun-
sel did not think the remarks were severe.’’ (Emphasis
omitted.) State v. Santiago, 269 Conn. 726, 759, 850
A.2d 199 (2004).
Finally, the state’s case against the defendant was
strong. There was testimony presented that the defen-
dant had worked at Aldof’s store, and as a result, the
jury reasonably could infer that the defendant had
knowledge concerning the daily receipts of the store.
The defendant also testified that he was aware of a
daily lottery operation in the store involving large sums
of money. The weapon identified in connection with
the robbery was discovered in the location where Jean-
Philippe was apprehended by the police, thereby cor-
roborating Aldof’s account of the robbery and
undermining the defense theory of the incident, as testi-
fied to by Jean-Philippe. Finally, Aldof, who had known
the defendant for years, identified the defendant as one
of the perpetrators of the robbery immediately follow-
ing the crime. In light of our consideration of the Wil-
liams factors, we conclude that the isolated improper
statements made by the prosecutor did not deprive the
defendant of a fair trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Tavares testified that he saw one man during the robbery. At trial, Tavares
identified the defendant, not in connection with the robbery, but as a cus-
tomer of the store, who frequently came there to eat.
2
By the time of the defendant’s trial, Jean-Philippe had entered a guilty
plea under the Alford doctrine; see North Carolina v. Alford, 400 U.S. 25,
91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); to charges of robbery in the first
degree and conspiracy to commit robbery in the first degree in connection
with the same incident.
3
Jean-Philippe testified that the winning ticket had been confiscated by
the police.
4
Jean-Philippe described this section of the store as an area to the left
of the store entrance with a ‘‘white door . . . .’’ The record indicates that
the area described by Jean-Philippe had been partitioned behind a plexiglass
enclosure with a one-way glass window at the time of the robbery, and it
was subsequently remodeled. Tavares testified that he was in the plexiglass
booth at the time of the robbery.
5
The defendant claims that his trial counsel’s conflict of interest adversely
affected his performance in the following ways: (1) his codefendant, Barjon,
was required to retain a new lawyer, who advised him not to testify; see
part II of this opinion; (2) defense counsel was unable to testify about certain
lottery ticket evidence he had received from Barjon; see part III of this
opinion; (3) defense counsel was prevented from obtaining a written state-
ment from Barjon to use on the defendant’s behalf; and (4) defense counsel
was unable to shift blame for the robbery from him to Barjon.
6
Under North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970), a criminal defendant who enters a guilty plea does not admit
guilt but acknowledges that the state has sufficient evidence to convict him.
State v. Fairchild, 155 Conn. App. 196, 199 n.2, 108 A.3d 1162, cert. denied,
316 Conn. 902, A.3d (2015).
7
When canvassed, Barjon did not acknowledge that there was a risk that
if he went to trial, the jury could find him guilty as charged. He indicated
that he was pleading guilty to help the defendant. He also indicated that he
believed a plea would enable him to return to work. On the basis of these
representations, the court vacated Barjon’s guilty plea.
8
Jury selection in the defendant’s case was scheduled to begin that day.
9
The defendant has not advanced a claim under the Connecticut constitu-
tion; thus, we limit our review to the United States constitution.
10
On this score, the defendant asserts on appeal that the court failed to
determine adequately whether his grasp of English and educational back-
ground enabled him to make a knowing and intelligent waiver. However,
Skyers, who was in the best position to assess the defendant’s English
proficiency, never made any representations to the court that his client
needed additional assistance.
11
Moreover, Skyers had a continuing obligation to inform the court and
the defendant if he believed his representation was compromised at any
later point in the proceedings.
12
Pursuant to State v. Golding, supra, 213 Conn. 239–40, ‘‘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 clearly exists and clearly 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. . . . [T]he first two [prongs of Golding] involve a determination of
whether the claim is reviewable . . . and under those two prongs, [t]he
defendant bears the responsibility for providing a record that is adequate
for review of his claim of constitutional error.’’ (Citations omitted; internal
quotation marks omitted.) State v. Elson, 311 Conn. 726, 743–44, 91 A.3d
862 (2014).
13
Barjon, who had been released on bond, appeared of his own volition.
14
The court informed Barjon as follows: ‘‘Okay. You have a case still
active, and it’s pending. It’s not been resolved in any fashion, and at some
point the state intends to try you on these charges. Now, you have every
right not to incriminate yourself. You have every right not to say anything.
Even if Mr. Skyers wants you [to] testify, you have every right to say no
insofar as it would subject you to any criminal liability. Because anything
you say is taken down, it’s recorded, and it can and may very well be used
against you in your own trial and, I don’t know, but it could be evidence
that leads to your conviction in that trial. . . . But the fact of the matter
is, as a criminal defendant you have every right not to say anything. I know
this is not your trial, but I want to impress upon you that you still have the
right not to say anything.’’
15
The defendant first casts his claim as an issue of constitutional dimen-
sion; however, ‘‘[d]ecisions on whether a proper foundation has been laid
are evidentiary and, therefore, not constitutional in nature.’’ State v. Nunes,
58 Conn. App. 296, 305, 752 A.2d 93, cert. denied, 254 Conn. 944, 762 A.2d
906 (2000).
16
The defendant suggested that Barjon had given the tickets to his
attorney.
17
A further obstacle to the defendant’s ability to meet his burden on
appeal is the limited value of the evidence that he sought to introduce. The
state argues, and we agree, that the defense did not purport to show that
it was offering Jean-Philippe’s winning ticket, and thus the probative value
of the evidence was limited to proving that the illegal lottery existed—a
matter as to which the jury heard ample testimony from the defense wit-
nesses, which it was free to credit.
18
The defendant did not object to the comments that he now claims
constitute prosecutorial impropriety. ‘‘It is well established law, however,
that a defendant who fails to preserve claims of prosecutorial [impropriety]
need not seek to prevail under the specific requirements of State v. Golding,
[supra, 213 Conn. 239–40], and, similarly, it is unnecessary for a reviewing
court to apply the four-pronged Golding test. . . . Our Supreme Court has
explained that the defendant’s failure to object at trial to each of the occur-
rences that he now raises as instances of prosecutorial impropriety, though
relevant to our inquiry, is not fatal to review of his claims. . . . This does
not mean, however, that the absence of an objection at trial does not play
a significant role in the determination of whether the challenged statements
were, in fact, improper. . . . To the contrary, we continue to adhere to
the well established maxim that defense counsel’s failure to object to the
prosecutor’s argument when it was made suggests that defense counsel did
not believe that it was [improper] in light of the record of the case at the
time.’’ (Citations omitted; internal quotation marks omitted.) State v. Maner,
147 Conn. App. 761, 782, 83 A.3d 1182, cert. denied, 311 Conn. 935, 88 A.3d
550 (2014).
19
More particularly, the prosecutor argued, ‘‘There could [have] been the
biggest . . . illegal lottery game in the word occurring out of [Aldof’s] Carib-
bean-American store. It doesn’t matter. The law does not recognize the
ability to go in and rob from someone when their committing an illegal act.
Then every prostitute would be subject to rape. Every person that you know
is driving down the road violating the law would be subject to an attack.
The law says you pull a handgun, you pull a firearm, you go into a store,
you go to the drug dealer on the side of the street and you pull it and you
tell him you want his drugs, you want to rape her, that’s a crime.’’