State v. Marrero-Alejandro ( 2015 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. GILBERTO O.
MARRERO-ALEJANDRO
(AC 37165)
DiPentima, C. J., and Lavine and Alvord, Js.
Argued April 14—officially released August 25, 2015
(Appeal from Superior Court, judicial district of New
Britain, D’Addabbo, J.)
James B. Streeto, senior assistant public defender,
for the appellant (defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Brian Preleski, state’s attor-
ney, and John H. Malone, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
LAVINE, J. The defendant, Gilberto O. Marrero-Alej-
andro, appeals from the judgment of conviction, ren-
dered after a jury trial, of murder in violation of General
Statutes § 53a-54a. On appeal the defendant claims that
(1) his due process rights were violated as a result
of improper remarks made by the prosecutor during
closing argument and rebuttal, (2) the trial court
improperly denied his motion to suppress certain state-
ments he made to the police and certain DNA evidence,
(3) the court improperly admitted uncharged miscon-
duct evidence, and (4) the court abused its discretion
in denying his request to replace his trial counsel. We
affirm the judgment of the trial court.
The defendant’s conviction arises from the murder
of the victim, Jose Cruz-Diaz. The jury reasonably could
have found the following facts on the basis of the evi-
dence presented at trial. In August, 2010, the defendant
resided in Bristol after moving from Puerto Rico earlier
that spring. His friend Henry Bermudez helped him
move to Connecticut. During that summer, Bermudez
worked for a drug ring run by Christian Bonilla. The
defendant then began working for Bonilla selling illegal
drugs. Carrie Skinner purchased narcotics from Bonilla
and met the defendant during these drug transactions.
The defendant subsequently began a romantic relation-
ship with Skinner. During this time, Skinner also was
dating the victim a rival drug dealer. Skinner’s simulta-
neous romantic relationships led to a toxic love triangle
among the victim, the defendant, and herself.
Bonilla and the victim were engaged in a turf war
over the Bristol drug scene. Bonilla allegedly stole a
gold chain from the victim, and in retaliation, on August
13, 2010, the victim shot at Bonilla’s car. In an effort
to seek revenge against the victim, Bonilla offered to
pay the defendant $1000 to kill him. On August 15, 2010,
the defendant traveled to the victim’s home in Bristol
and shot him multiple times. The defendant fled on
foot. An eyewitness recovered a sweatshirt near the
crime scene and gave it to the police. After the shooting,
the defendant left the state. Bermudez bought the defen-
dant a bus ticket to Springfield, Massachusetts and gave
him $1000 from Bonilla for killing the victim.
On August 23, 2010, the Massachusetts State Police
executed an outstanding warrant on Oscar Rivera at
his apartment in Springfield. The defendant had no iden-
tification when the police found him in Oscar Rivera’s
apartment. He agreed to accompany the officers to the
police station for fingerprint identification. Carlos
Rivera, a Massachusetts state trooper, became aware
that the Bristol Police Department had an interest in
speaking with the defendant. While he was at the sta-
tion, the defendant agreed to talk to Bristol police offi-
cers who had traveled to Springfield to speak with him
regarding the victim’s death. The Bristol officers ques-
tioned the defendant at the local district attorney’s
office for approximately one hour and forty minutes
before the defendant invoked his right to counsel and
stopped the interview.
Before the defendant left the district attorney’s office,
the Bristol police officers asked him for permission to
obtain a buccal swab of his mouth. The defendant
agreed. Biological material from the swab was tested to
determine the defendant’s DNA profile. The sweatshirt
tested positive for the presence of gunshot residue on
both cuffs and inside the front right pocket. The DNA
analysis of the biological material taken from the front
pocket of the sweatshirt and from the buccal swab
could not eliminate the defendant as a contributor to
the DNA profile.
The defendant was arrested and charged with murder
in violation of § 53a-54a. He pleaded not guilty and
elected a trial by jury. After the jury found the defendant
guilty, the court sentenced him to sixty years imprison-
ment. This appeal followed. Additional facts will be set
forth as necessary.
I
The defendant first claims that he was deprived of
his due process right to a fair trial as a result of prosecu-
torial impropriety. In particular, the defendant claims
that the prosecutor improperly (1) misstated the facts
of the case and (2) appealed to the emotions, passions,
and prejudices of the jury during his closing argument
and rebuttal. The state argues that the prosecutor’s
comments were not improper. Alternatively, the state
contends that even if some of the prosecutor’s com-
ments were improper, none of them deprived the defen-
dant of a fair trial. We do not agree that the prosecutor
engaged in impropriety and, accordingly, reject the
defendant’s claim.
Our standard of review is well established. ‘‘In analyz-
ing 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 defendant of his due process right to a
fair trial. . . . In other words, an impropriety is an
impropriety, regardless of its ultimate effect on the fair-
ness of the trial. Whether that impropriety was harmful
and thus caused or contributed to a due process viola-
tion involves a separate and distinct inquiry. . . . [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 . . . .’’ (Internal quotation marks omitted.)
State v. Grant, 154 Conn. App. 293, 319, 112 A.3d 175
(2014), cert. denied, 315 Conn. 928, 109 A.3d 923 (2015).
Because the claimed prosecutorial improprieties
occurred during closing arguments, we advance the
following legal principles. ‘‘[P]rosecutorial [impropri-
ety] of a constitutional magnitude can occur in the
course of closing arguments. . . . In determining
whether such [an impropriety] has occurred, 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 cannot be determined precisely by rule and
line, and something 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, [provided the argument is] fair and
based upon facts in evidence and the reasonable infer-
ences to be drawn therefrom.’’ (Internal quotation
marks omitted.) State v. Chase, 154 Conn. App. 337,
342–43, 107 A.3d 460, cert. denied, 315 Conn. 925, 109
A.3d 922 (2014). The defendant concedes that he did
not object at trial to any of the statements that he now
claims constituted 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, [213 Conn. 233, 239–40, 567 A.2d 823
(1989)].’’ State v. Grant, supra, 154 Conn. App. 319.
On appeal, the defendant claims that the prosecutor
‘‘engaged in a pattern of prosecutorial impropriety.’’1
He argues that the prosecutor ‘‘engaged in a vicious
attack on the defendant, argued facts not in evidence,
appealed to the jury’s emotions, and denigrated the
defendant’s credibility.’’2 We consider the arguments
raised in support of the defendant’s claim as falling into
two broad categories: that the prosecutor improperly
(1) misstated facts of the case and (2) appealed to the
emotions, passions, and prejudices of the jury. We will
address each in turn.
A
We first examine the defendant’s claim that, during
closing argument, the prosecutor made a number of
improper comments that misstated the evidence and
argued facts not in evidence. Specifically, the defendant
argues that the prosecutor misstated the DNA evidence
and argued facts not in evidence related to the state’s
witness, Bermudez. We disagree with the defendant.
The defendant argues that the prosecutor in his clos-
ing argument committed ‘‘the prosecutor’s fallacy’’ by
improperly equating random match probability with
source probability in relation to the DNA evidence pre-
sented.3 The defendant takes issue with the prosecutor’s
statement made during his closing argument: ‘‘Now,
what we’ve learned of the DNA evidence is the chances
of someone else wearing those pants is one [in] seven
billion, seven billion being the number of people on
this earth, for the sweater, particularly the pocket of
the sweater the chances of someone else other than
the defendant leaving that is one in seven billion that
piece of DNA.’’ The state argues that the prosecutor’s
comment ‘‘did not equate the random match probability
with the probability that the defendant was guilty of
the crime charged but, rather, used the statistics to
suggest that the jury could infer that his DNA was found
in the hooded sweatshirt, among other items.’’ We agree
with the state.
Under the totality of the circumstances, we conclude
that the prosecutor’s comment regarding the DNA evi-
dence, an inherently complex subject, was not
improper. The jury heard extensive testimony from
Cheryl Carreiro, a DNA analyst at the state forensic
science laboratory, regarding the testing of the defen-
dant’s DNA. ‘‘A prosecutor may invite the jury to draw
reasonable inferences from the evidence . . . such
inferences must be both reasonable and based on facts
in evidence.’’ (Citation omitted; internal quotation
marks omitted.) State v. Swain, 101 Conn. App. 253,
272, 921 A.2d 712, cert. denied, 283 Conn. 909, 928 A.2d
539 (2007). In the present case, the prosecutor’s state-
ment invited the jury to draw reasonable inferences
from the DNA evidence. The jury was free to reject
the invitation. We, therefore, cannot conclude that the
prosecutor’s comment was improper.
Next, the defendant claims that ‘‘the prosecutor also
argued two points not in evidence: the inner workings
of drug organizations, and the reasons Bermudez could
get into trouble if he lied.’’ The prosecutor’s statements
asked the jury not to disregard Bermudez’ testimony
simply because he had a criminal record and was a
member of a drug organization. During his rebuttal, the
prosecutor also stated that Bermudez had immunity
and no motive to lie. The state argues that such facts
were in evidence through the testimony of Bermudez.
On the basis of our review of the record, we conclude
that the prosecutor’s statements constitute an argument
that invited the jury to draw reasonable inferences from
the evidence adduced at trial. Bermudez testified as to
his involvement in the drug organization and to the
terms of the immunity agreement he made with the
state prior to testifying at the defendant’s trial.4 ‘‘[I]t is
not improper for a prosecutor to remark on the motives
that a witness may have to lie, or not to lie, as the case
may be.’’ (Internal quotation marks omitted.) State v.
Stevenson, 269 Conn. 563, 585, 849 A.2d 626 (2004).
It therefore was not improper for the prosecutor to
comment on facts entered into evidence and to argue
that Bermudez had no motive to lie given the scope
of his immunity agreement. In sum, the prosecutor’s
statements during closing argument and rebuttal did
not constitute prosecutorial impropriety.
B
We next examine the defendant’s claim that, during
closing argument and rebuttal, the prosecutor used sar-
casm and personally attacked the defendant, which
impermissibly appealed to the emotions of the jury.
We are not persuaded that the prosecutor crossed the
tenuous line between vigorous permissible argument
and prosecutorial impropriety.
‘‘A prosecutor may not appeal to the emotions, pas-
sions and prejudices of the jurors. . . . When the pros-
ecutor 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. . . .
Similarly, a prosecutor should not inject extraneous
issues into the case that divert the jury from its duty
to decide the case on the evidence. . . . Additionally,
a prosecutor may not express his own opinion, directly
or indirectly, as to the credibility of the witnesses. . . .
Nor should a prosecutor express his opinion, directly
or indirectly, as to the guilt of the defendant. . . . Such
expressions of personal opinion are a form of unsworn
and unchecked testimony, and are particularly difficult
for the jury to ignore because of the prosecutor’s special
position.’’ (Citation omitted; internal quotation marks
omitted.) State v. Francione, 136 Conn. App. 302, 315,
46 A.3d 219, cert. denied, 306 Conn. 903, 52 A.3d 730
(2012).
The first statement at issue occurred in the beginning
of the prosecutor’s closing argument, when the prosecu-
tor commented on how the victim was shot in the back
while retreating and classified the act as ‘‘certainly a
cowardly way to confront somebody . . . .’’ The defen-
dant argues that this was a personal attack on the defen-
dant. ‘‘[A]n improper appeal to the jurors’ emotions can
take the form of a personal attack on the defendant’s
character . . . .’’ (Internal quotation marks omitted.)
State v. Santiago, 143 Conn. App. 26, 37, 66 A.3d 520
(2013). The state contends that the prosecutor’s state-
ment was not an impermissible attack on the defendant
but, rather, a comment on the evidence. ‘‘[I]t is not
improper for the prosecutor to comment upon the evi-
dence presented at trial and to argue the inferences
that the jurors might draw therefrom . . . .’’ (Internal
quotation marks omitted.) State v. Luther, 114 Conn.
App. 799, 811–12, 971 A.2d 781, cert. denied, 293 Conn.
907, 978 A.2d 1112 (2009). Personal attacks on the defen-
dant are not appropriate; nonetheless, in this case, the
prosecutor’s statement was not improper. The record
supports the state’s claim that the prosecutor’s state-
ment was meant to comment on the evidence that the
victim was ambushed and shot in the back numerous
times, not on the defendant’s character. The prosecu-
tor’s statement may have approached the line separat-
ing proper from improper comment, but we do not think
that that line was breached.
The second set of statements the defendant contests
relate to the prosecutor’s closing argument and rebuttal
during which he accused the defendant of lying. In the
first instance, the prosecutor characterized the defen-
dant’s inconsistencies in his story as: ‘‘[t]he defendant
. . . was lying, I would submit to you, to protect him-
self.’’ In addition, the prosecutor commented on the
defendant fleeing the state and writing letters in which
he hinted as to his involvement in the shooting. In the
prosecutor’s rebuttal, he stated that, when the defen-
dant was questioned by the police, he denied having a
close relationship with either Bonilla or Skinner. The
evidence showed, however, that the defendant worked
for Bonilla, complied with orders from him, and had a
romantic relationship with Skinner that led to a love
triangle and jealousy among Skinner, the defendant, and
the victim. ‘‘When reviewing a claim of prosecutorial
impropriety, we do not scrutinize each individual com-
ment in a vacuum but, rather, review the comments
complained of in the context of the entire trial.’’ (Inter-
nal quotation marks omitted.) State v. Chase, supra,
154 Conn. App. 345.
On the basis of our review of the record, we conclude
that the prosecutor’s second set of statements did not
necessarily express his personal opinion but, rather,
commented on the evidence presented at trial. We are
mindful that it is unprofessional for a prosecutor to
argue that a defendant is a liar. See State v. Spyke, 68
Conn. App. 97, 113, 792 A.2d 93, cert. denied, 261 Conn.
909, 804 A.2d 214 (2002). We are satisfied, however,
that in this case, the comments posited reasonable infer-
ences that the jury could have drawn without access
to the prosecutor’s personal knowledge or opinion of
the case. See State v. Thompson, 266 Conn. 440, 466,
832 A.2d 626 (2003) (concluding no impropriety when
statement defendant lied followed detailed summary of
evidence supporting inference); State v. Washington,
155 Conn. App. 582, 609, 110 A.3d 493 (2015) (‘‘[i]t is
permissible for a prosecutor to ask the jury to infer that
a defendant testified untruthfully if there is a reasonable
basis in the evidence on which to draw such an infer-
ence’’). ‘‘We must give the jury the credit of being able
to differentiate between argument on the evidence and
attempts to persuade them to draw inferences in the
state’s favor, on one hand, and improper unsworn testi-
mony, with the suggestion of secret knowledge, on the
other hand.’’ (Internal quotation marks omitted.) State
v. Luther, supra, 114 Conn. App. 812. On the basis of
the evidence, the jury reasonably could have inferred
that the defendant was untruthful about the events sur-
rounding the shooting and his relationships with Boni-
lla, the victim, and Skinner.
Next, the defendant claims that the prosecutor
improperly disparaged the defense’s case during rebut-
tal when he used sarcasm to characterize the defense’s
case as suggesting that the police should have been
‘‘looking for a nine foot tall black non-Hispanic man’’
wearing the defendant’s hoodie. The state argues that
in his closing argument, the defendant conceded that
the only issue in the case was the identity of the shooter.
In arguing his theory during closing argument, the
defendant focused on the testimony of an eyewitness
who initially described the shooter as a tall, non-His-
panic, dark skinned man. The defendant contrasted this
eyewitness description with his physical features to
demonstrate that he could not have been the shooter.
Immediately following the statement in issue, the prose-
cutor stated: ‘‘I guess if we’re to follow [the defendant’s]
logic we have to be looking for a nine foot tall black
non-Hispanic man wearing the defendant’s hoodie such
as it is.’’ Therefore, according to the state, the prosecu-
tor’s comments were made in response to the defen-
dant’s closing argument. We agree.
‘‘Although we neither encourage nor condone the use
of sarcasm, we also recognize that not every use of
the rhetorical language or device is improper. . . . The
occasional use of rhetorical devices is simply fair argu-
ment. . . . [S]ome use of sarcastic and informal lan-
guage, when intended to forcefully criticize a defense
theory on the permissible bases of the evidence and the
common sense of the jury, is not necessarily improper.’’
(Citation omitted; internal quotation marks omitted.)
State v. Grant, supra, 154 Conn. App. 321. ‘‘It is not
improper . . . for a prosecutor appropriately to
respond to statements made by defense counsel during
the defendant’s closing argument.’’ State v. Francione,
supra, 136 Conn. App. 315. In this case, the prosecutor
clearly was referencing the defendant’s reliance on one
eyewitness account while ignoring the other evidence
pointing to him as the shooter. As noted, not every use
of rhetorical language is improper. Lawyers must have
reasonable latitude to make vigorous arguments to the
jury. We, therefore, cannot conclude that the prosecu-
tor’s comments were improper.
In sum, the prosecutor’s statements during closing
argument and rebuttal did not constitute impermissible
appeals to the jury’s emotions. Because we conclude
that the prosecutor’s statements were not improper, we
need not consider whether any claimed impropriety
deprived the defendant of his right to a fair trial. See
State v. Otto, 305 Conn. 51, 76 n.19, 43 A.3d 629 (2012).
II
The defendant next claims that the court improperly
denied his motion to suppress the oral statements that
he made to the Bristol police at the district attorney’s
office in Springfield and the DNA evidence obtained
from the buccal swab. Although the defendant acknowl-
edges that he was advised of his Miranda rights,5 he
argued at trial that he waived them involuntarily. The
defendant now contends that his statements should
have been suppressed because they were involuntarily
made while he was in custody, in violation of his
Miranda rights. The defendant also claims that the
court improperly denied his motion to suppress with
respect to the DNA evidence because it was obtained
after he invoked his right to counsel. We disagree.
The following facts that the trial court reasonably
could have found are relevant to our resolution of this
claim. Before trial, the defendant filed a motion to sup-
press, and the court conducted an evidentiary hearing.
On May 9, 2013, the court issued a memorandum of
decision in which it denied the motion. In its memoran-
dum of decision, the court found the following facts.
On August 23, 2010, the Massachusetts State Police
executed an outstanding arrest warrant on Oscar Rivera
at his apartment. The defendant was found sleeping in
the apartment, and the police asked him to accompany
them to the police station and to submit to fingerprint
identification, to which the defendant voluntarily
agreed. The state police used the defendant’s finger-
prints to determine whether there were any outstanding
warrants against him; there were none. Trooper Rivera,
however, asked the defendant if he would speak with
the Bristol police officers. The defendant answered in
the affirmative and waited in the public lobby of the
police station. The court heard testimony that at
approximately 11 a.m. Bristol police Detectives Peter
Dauphinais, Garrie Doorman, and Gary Heinz arrived in
Springfield. With the interpreting assistance of Trooper
Rivera, the Bristol police asked the defendant to speak
with them at the local district attorney’s office. The
defendant agreed and traveled, without any physical
restraints, to the office in Dauphinais’ police vehicle.
The trial court determined that at the time the defen-
dant was questioned, he was not under arrest. The ques-
tioning took place in a fifteen by twenty foot conference
room. The defendant was not restrained and was free to
leave. Dorman and Dauphinais requested that Trooper
Rivera give the defendant his Miranda advisement,
which was given orally in Spanish and in print in Span-
ish. The defendant answered that he understood his
rights and waived them by initialing and signing both
Miranda forms.
The interview was videotaped and admitted into evi-
dence. Throughout the interview, the defendant main-
tained that he was not involved in any criminal activity
and denied knowing the victim. In response to being
accused of lying, the defendant stated: ‘‘If they have
proof and they believe that I am lying, I will get an
attorney, and I am not going to talk anymore.’’ Trooper
Rivera engaged in a colloquy to determine whether the
defendant was invoking his right to counsel or condi-
tioning it upon the continued accusation that the defen-
dant was a liar. The defendant indicated the latter and
continued to answer questions. After approximately
one hour and forty minutes of questioning, the defen-
dant declared that he wished to cease the interview.
The police complied with that request. Prior to leaving,
Trooper Rivera explained to the defendant that the Bris-
tol police were requesting his consent for permission
to use a buccal swab to obtain a DNA sample. The
defendant voluntarily signed the ‘‘Consent to Search
Form,’’ and the police subsequently obtained and tested
the defendant’s DNA.
In its memorandum of decision, the court concluded
that the defendant was not in custody, and, therefore,
the police were not required to advise the defendant
of his Miranda rights. The defendant, however, had
been advised of his Miranda rights, and the court found
that he knowingly and voluntarily had waived them.
The court further concluded that the state had met its
burden of proving that the defendant’s statements were
made voluntarily and thus denied the defendant’s
motion to suppress his oral statement and videotape
depiction thereof. On appeal, the defendant claims that
his statements were a product of a custodial interroga-
tion and were involuntary. We are not persuaded.
‘‘[O]ur standard of review of a trial court’s findings
and conclusions in connection with a motion to sup-
press is well defined. A finding of fact will not be dis-
turbed unless it is clearly erroneous in view of the
evidence and pleadings in the whole record . . . .
[When] the legal conclusions of the court are chal-
lenged, we must determine whether they are legally and
logically correct and whether they find support in the
facts set out in the memorandum of decision . . . .’’
(Internal quotation marks omitted.) State v. Collin, 154
Conn. App. 102, 121, 105 A.3d 309 (2014), cert. denied,
315 Conn. 924, 109 A.3d 480 (2015).
A
We first consider whether the court properly found
that the defendant was not in custody at the time the
statements in issue were made. ‘‘Two threshold condi-
tions must be satisfied in order to invoke the warnings
constitutionally required by Miranda [v. Arizona, 384
U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)]:
(1) the defendant must have been in custody; and (2)
the defendant must have been subjected to police inter-
rogation. . . . [A]lthough the circumstances of each
case must certainly influence a determination of
whether a suspect is in custody for purposes of receiv-
ing Miranda protection, the ultimate inquiry is simply
whether there is a formal arrest or restraint on freedom
of movement of the degree associated with a formal
arrest. . . . Further, the United States Supreme Court
has adopted an objective, reasonable person test for
determining whether a defendant is in custody. . . .
Thus, in determining whether Miranda rights are
required, the only relevant inquiry is whether a reason-
able person in the defendant’s position would believe
that he or she was in police custody of the degree
associated with a formal arrest. . . .
‘‘Furthermore, we note that [n]o definitive list of fac-
tors governs a determination of whether a reasonable
person in the defendant’s position would have believed
that he or she was in custody. Because, however, the
Miranda court expressed concern with protecting
defendants against interrogations that take place in a
police-dominated atmosphere containing inherently
compelling pressures which work to undermine the
individual’s will to resist and to compel him to speak
where he would not otherwise do so freely . . . cir-
cumstances relating to those kinds of concerns are
highly relevant on the custody issue. . . .
‘‘The defendant bears the burden of proving custodial
interrogation. . . . The trial court’s determination of
the historical circumstances surrounding the defen-
dant’s interrogation are findings of fact . . . which
will not be overturned unless they are clearly erroneous.
. . . In order to determine the [factual] issue of cus-
tody, however, we will conduct a scrupulous examina-
tion of the record . . . in order to ascertain whether,
in light of the totality of circumstances, the trial court’s
finding is supported by substantial evidence. . . . The
ultimate inquiry as to whether, in light of these factual
circumstances, a reasonable person in the defendant’s
position would believe that he or she was in police
custody of the degree associated with formal arrest
. . . calls for application of the controlling legal stan-
dard to the historical facts [and] . . . therefore, pre-
sents a . . . question of law . . . over which our
review is de novo.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Jackson, 304 Conn. 383,
416–17, 40 A.3d 290 (2012).
In concluding that the defendant was not in custody
at the time he made the statements to the Bristol police,
we look to the following relevant factors. First, the
defendant voluntarily accompanied the police to the
station and then to the district attorney’s office for
questioning. See State v. Edwards, 299 Conn. 419, 434–
35, 11 A.3d 116 (2011). Second, the defendant was not
handcuffed, shackled, or otherwise restrained, and was
not placed under arrest. See State v. Britton, 283 Conn.
598, 612, 929 A.2d 312 (2007). The officers informed the
defendant that he could leave at any time, and, after
approximately one hour and forty minutes of ques-
tioning, the defendant did in fact terminate the inter-
view and leave the office of his own free will. On the
basis of our review of the record, we conclude that a
reasonable person in the defendant’s position would
not have believed that he was in custody at the time
he made his statements.
We now consider whether the defendant’s statements
to the police were voluntary. ‘‘In order to be voluntary
a confession must be the product of an essentially free
and unconstrained choice by the maker. . . . [T]he test
of voluntariness is whether an examination of all the
circumstances discloses that the conduct of law
enforcement officials was such as to overbear [the
defendant’s] will to resist and bring about confessions
not freely self-determined . . . .’’ (Internal quotation
marks omitted.) State v. Richard S., 143 Conn. App.
596, 615, 70 A.3d 1110, cert. denied, 310 Conn. 912, 76
A.3d 628 (2013).
‘‘Whether a confession is involuntary because it was
coerced rests upon the factual determinations regarding
the circumstances surrounding the defendant’s confes-
sion. . . . Although the ultimate question of voluntari-
ness is one of law over which our review is plenary,
the factual findings underpinning that determination
will not be overturned unless they are clearly erroneous.
. . . As in other cases in which the factual findings
implicate a defendant’s constitutional rights and the
credibility of witnesses is not the primary issue, we
will, however, undertake a scrupulous examination of
the record to ensure that the findings are supported by
substantial evidence. . . .
‘‘The determination of whether a confession is volun-
tary must be based on a consideration of the totality of
circumstances surrounding it . . . including both the
characteristics of the accused and the details of the
interrogation. . . . Factors that may be taken into
account, upon a proper factual showing, include: the
youth of the accused; his lack of education; his intelli-
gence; the lack of any advice as to his constitutional
rights; the length of the detention; the repeated and
prolonged nature of the questioning; and the use of
physical punishment, such as the deprivation of food
and sleep.’’ (Citation omitted; internal quotation marks
omitted.) State v. Jackson, supra, 304 Conn. 419–20.
We conclude that under the totality of the circum-
stances the defendant’s statements were voluntarily
made. The defendant argues that his statements were
involuntary because of the following factors: the inter-
rogation was long, continuous, and took place in the
district attorney’s office; the defendant does not speak
English; and he was subjected to a police dominated
atmosphere. Here, the defendant was twenty-six years
old at the time of the interview in question. The police
advised the defendant of his Miranda rights in his native
language, both orally and in print. The court found that
the defendant was indeed advised of his rights and
knowingly and voluntarily waived them. The court fur-
ther found that there was no evidence that the defen-
dant had intellectual limitations that affected the
voluntariness of his statements. The defendant con-
cedes in his appellate brief that there was no evidence
of coercion, nor was there evidence he was threatened.
The court noted that nothing in the record indicated
that the defendant was subjected to exhaustive ques-
tioning or that his will was overborne. He was provided
with food and a drink during approximately one hour
and forty minutes of questioning at the district attor-
ney’s office. Under the totality of the circumstances,
the court concluded that ‘‘there is no evidence that the
defendant’s decision to waive his rights and talk [with
the police] . . . was anything other than the result of
his free, considered, and unconstrained choice.’’
On the basis of our scrupulous review of the record,
we conclude that the court’s findings are supported by
the record and, therefore, are not clearly erroneous.
‘‘[T]here is considerable overlap between the factors
that courts should consider in determining whether a
defendant is in custody for Miranda purposes and the
factors that courts should consider in determining
whether a defendant’s statements were voluntary.’’
State v. Jackson, supra, 304 Conn. 421. Having con-
cluded that the defendant was not in custody when the
Bristol police questioned him, we further conclude that
his statements were made voluntarily and that the court
properly denied the defendant’s motion to suppress his
oral statements.
B
The defendant also claims that the court improperly
denied his motion to suppress with respect to the DNA
evidence obtained from the buccal swab because the
swab was taken after he invoked his right to counsel.
The state argues in response that the defendant aban-
doned that issue at the suppression hearing and that
he is, therefore, not entitled to review of it on appeal.
We conclude that this claim was not preserved at trial.
The defendant, however, requests that to the extent
that his claim was not preserved at trial, we review it
under State v. Golding, supra, 213 Conn. 239–40. We
decline to review the defendant’s claim.
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 constitu-
tional 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 harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis in original; footnote
omitted.) Id. We conclude that the defendant cannot
prevail under Golding because his claim is not of consti-
tutional magnitude and, thus, is not reviewable.
The defendant conceded in his reply brief and at oral
argument before this court that his claim is controlled
by State v. Asherman, 193 Conn. 695, 478 A.2d 227
(1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84
L. Ed. 2d 814 (1985), because the buccal swab sample
is not testimonial evidence. In Asherman, our Supreme
Court held that, like the fifth amendment to the federal
constitution, article first, § 8, of our state constitution
applies only to testimonial evidence. Id., 713–15. We
note that ‘‘[e]videntiary claims do not merit review pur-
suant to State v. Golding, [supra, 213 Conn. 239–40],
because they are not of constitutional magnitude. . . .
Regardless of how the defendant has framed the issue,
he cannot clothe an ordinary evidentiary issue in consti-
tutional garb to obtain appellate review.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Smith,
110 Conn. App. 70, 85–86, 954 A.2d 202, cert. denied, 289
Conn. 954, 961 A.2d 422 (2008). Therefore, we decline to
review this evidentiary claim because it fails under the
second prong of Golding.
III
The defendant’s third claim is that the court improp-
erly concluded that portions of Skinner’s testimony
were admissible under § 4-5 (b) of the Connecticut Code
of Evidence. Specifically, the defendant contends that
the evidence was not relevant, and that even if it were
relevant, its prejudicial effect outweighed its probative
value. In response, the state argues that the testimony
properly was admitted for the purpose of showing the
defendant’s motive. We agree with the state.
The following additional facts are relevant to this
claim. Prior to trial, the defendant filed a motion in
limine to preclude any evidence of prior misconduct.
In response, the state filed a notice of intent to introduce
six instances of uncharged misconduct, only three of
which are at issue in this appeal. The state’s notice
stated in relevant part that it would offer the following
acts of misconduct: ‘‘(2) The defendant was a member
of an organization engaged in the sale of drugs; (3) The
defendant stole money and drugs from [a] drug dealer
[Bonilla] . . . [and]; (6) The defendant made threats
against the victim’s girlfriend [Skinner] because of her
relationship with the victim.’’ The state proffered that
such instances of misconduct would be presented, inter
alia, through the testimony of Skinner.
On February 5, 2013, the court held a hearing outside
the presence of the jury on whether to admit the testi-
mony. Skinner testified that she previously had dated
the defendant and bought narcotics from him and Boni-
lla. Skinner testified that, in the late summer of 2010,
the defendant contacted her to give him a ride out of
the state because ‘‘he had taken drugs and money . . .
[f]rom [Bonilla].’’ She testified that Bonilla wanted to
recover the drugs and money that the defendant had
stolen and that she conspired with Bonilla to set up the
defendant. She explained that she arranged a time to
meet the defendant, and when he arrived, Bonilla and
others physically attacked him. She testified that the
victim also was present while Bonilla assaulted the
defendant.
Skinner explained that she had started a romantic
relationship with the victim during that time, and the
defendant was ‘‘not happy.’’ Specifically, Skinner testi-
fied to a particular text message exchange she had with
the defendant. She indicated that the defendant had
sent her the following threatening message to her cell
phone numerous times: ‘‘[Y]ou better get out, I’m com-
ing for you. I’m going to shoot up the house with every-
body in it.’’
After hearing argument from both the state and the
defendant, the court ruled that the uncharged miscon-
duct evidence was admissible for trial. Specifically, it
noted that Skinner’s testimony regarding the defen-
dant’s membership in a drug organization, his theft of
Bonilla’s drugs and money, and his threats toward Skin-
ner due to her relationship with the victim were relevant
and material to ‘‘provide some basis for the jury to
understand the relationships between the parties, and
it could be interpreted, if they choose to, as to motive
for a crime.’’ The court further decided that the proba-
tive value of the uncharged misconduct evidence out-
weighed its prejudicial effect.
Following Skinner’s testimony at trial, the court gave
a limiting instruction in an attempt to minimize any
prejudice that might arise out of the admission of the
uncharged misconduct evidence.6 The limiting instruc-
tion prohibited the jury from considering the uncharged
misconduct as evidence of bad character. The jury
could, however, consider it as evidence to show motive
for commission of the charged crime.
‘‘[O]ur standard of review regarding challenges to a
trial court’s evidentiary rulings is that these rulings will
be overturned on appeal only where there was an abuse
of discretion and a showing by the defendant of substan-
tial prejudice or injustice. . . . In reviewing claims that
the court abused its discretion, great weight is given
to the trial court’s decision and every reasonable pre-
sumption is given in favor of its correctness. . . . We
will reverse the trial court’s ruling only if it could not
reasonably conclude as it did.’’ (Internal quotation
marks omitted.) State v. Solomon, 150 Conn. App. 458,
462–63, 91 A.3d 523, cert. denied, 314 Conn. 908, 100
A.3d 401 (2014).
‘‘Pursuant to § 4-5 (b) of the Connecticut Code of
Evidence,7 evidence of prior misconduct is inadmissible
to prove that a criminal defendant is guilty of the crime
of which the defendant is accused. . . . Such evidence
cannot be used to suggest that the defendant has a bad
character or propensity for criminal behavior. . . . We
have, however, recognized exceptions to the general
rule if the purpose for which the evidence is offered is
to prove intent, identity, malice, motive, a system of
criminal activity or the elements of a crime. . . .
‘‘To determine whether evidence of a prior miscon-
duct falls within an exception to the general rule prohib-
iting its admission, we have adopted a two-pronged
analysis. . . . First, the evidence must be relevant and
material to at least one of the circumstances encom-
passed by the exceptions. Second, the probative value
of such evidence must outweigh the prejudicial effect of
the other crime evidence.’’ (Citation omitted; emphasis
altered; footnotes altered; internal quotation marks
omitted.) State v. Pereira, 113 Conn. App. 705, 712–13,
967 A.2d 121, cert. denied, 292 Conn. 909, 973 A.2d
106 (2009).
‘‘It is not essential that the state prove a motive for
a crime. . . . But it strengthens its case when an ade-
quate motive can be shown. . . . Evidence of prior
misconduct that tends to show that the defendant har-
bored hostility toward the intended victim of a violent
crime is admissible to establish motive. . . . Because
intent is almost always proved, if at all, by circumstan-
tial evidence, prior misconduct evidence, where avail-
able, is often relied upon.’’ (Citations omitted; internal
quotation marks omitted.) State v. Reynolds, 152 Conn.
App. 318, 325, 97 A.3d 999, cert. denied, 314 Conn. 934,
102 A.3d 85 (2014).
‘‘[T]he primary responsibility for . . . determin[ing]
whether [prior misconduct] evidence is more probative
than prejudicial rests with the trial court, and its conclu-
sion will be disturbed only for a manifest abuse of
discretion. . . . Moreover, [w]hen the trial court has
heard a lengthy offer of proof and arguments of counsel
before performing the required balancing test, has spe-
cifically found that the evidence was highly probative
and material, and that its probative value significantly
outweighed the prejudicial effect, and has instructed
the jury on the limited use of the evidence in order to
safeguard against misuse and to minimize the prejudi-
cial impact . . . we have found no abuse of discre-
tion.’’ (Internal quotation marks omitted.) State v.
Kantorowski, 144 Conn. App. 477, 489–90, 72 A.3d 1228,
cert. denied, 310 Conn. 924, 77 A.3d 141 (2013).
We are not persuaded by the defendant’s argument
that because motive was not a seriously contested issue
at trial, the evidence’s relevance was grossly out-
weighed by its prejudicial value. On the basis of our
review of the record, we conclude that the court prop-
erly balanced the probative value of the evidence with
its potential prejudicial effect. The court heard a lengthy
offer of proof and arguments from counsel before it
denied the defendant’s motion in limine. By instructing
the jury on uncharged misconduct, the court properly
limited the jury’s use of such evidence. ‘‘Absent evi-
dence to the contrary, we presume that the jury fol-
lowed the court’s limiting instruction.’’ (Internal
quotation marks omitted.) State v. Brown, 153 Conn.
App. 507, 532, 101 A.3d 375 (2014). Therefore, we con-
clude that the trial court did not abuse its discretion
by admitting evidence of the defendant’s uncharged
misconduct.
IV
Finally, the defendant claims that the court abused
its discretion by declining to replace his trial counsel
and thereby deprived him of his federal and state consti-
tutional rights to the effective assistance of counsel. In
his appellate brief, the defendant argues that he alleged
sufficient facts to demonstrate an exceptional circum-
stance justifying the appointment of new counsel. In
doing so, he argues that his trial counsel was ‘‘unpre-
pared and not properly concerned with this case.’’ We
are not persuaded.
We begin with our standard of review. ‘‘The court
possesses broad discretion in determining whether the
circumstances warrant the appointment of new coun-
sel. . . . [A]bsent a factual record revealing an abuse
of discretion, the court’s failure to allow new counsel
is not reversible error.’’ (Citation omitted; internal quo-
tation marks omitted.) State v. Robert H., 71 Conn. App.
289, 309, 802 A.2d 152 (2002), aff’d, 273 Conn. 56, 866
A.2d 1255 (2005).
The following additional facts are pertinent to this
claim. On January 17, 2013, during jury selection, the
defendant stated to the court that he no longer wished
to have his trial counsel represent him. Specifically,
he alleged that trial counsel was unprepared for trial,
uninterested in his case, and failed to provide him with
documents and review motions written by the defen-
dant.8 When the defendant concluded, the court asked
trial counsel questions regarding the defendant’s allega-
tions. The court specifically inquired about the alleged
missing documents and motions, and whether trial
counsel was preparing for trial. Trial counsel stated
that his ‘‘practice now has been devoted to this case’’
and that he was prepared to represent the defendant
to the best of his ability. Trial counsel explained to
the court that he had shown the defendant all of the
materials he had received from the state. In addition,
trial counsel noted that the defendant filed his motions
with the court and that trial counsel had not received
a copy, but that they were presumably in the court’s file.
The court then gave its oral decision. It began by
identifying the issues surrounding the defendant’s
request for new counsel and acknowledging that the
defendant is entitled to representation.9 The court
explained to the defendant that ‘‘the law is you’re enti-
tled to representation, but you can’t sit back and say I
don’t want him. . . . So, [trial counsel] has indicated
that he’s—first of all he’s Spanish speaking. He’s very
willing to represent you. He’s preparing as best he can.
Information has been provided. What you’re seeking is
not in the possession of the state’s file, and your options
are basically you can have [trial counsel] represent you,
you can hire an attorney if you wish, or you can repre-
sent yourself.’’ The court further concluded that the
facts did not constitute ‘‘exceptional circumstances to
take [trial counsel] off of the case.’’ Notwithstanding
its rejection of the defendant’s request for the appoint-
ment of new counsel, the court indicated that it would
give the defendant and trial counsel time to talk and
provide trial counsel more time to prepare.
‘‘The United States Supreme Court has definitively
held that due process requires that the accused have
the assistance of counsel for his defense. . . . There is
[however] no unlimited opportunity to obtain alternate
counsel.’’ (Citation omitted; internal quotation marks
omitted.) State v. Hernaiz, 140 Conn. App. 848, 853, 60
A.3d 331, cert. denied, 308 Conn. 928, 64 A.3d 121 (2013).
‘‘A defendant has no unbridled right to discharge of
counsel on the eve of trial. . . . In order to work a
delay by a last minute discharge of counsel there must
exist exceptional circumstances.’’ (Emphasis in origi-
nal; internal quotation marks omitted.) Id., 854.
Our review of the record supports the court’s factual
determination that no substantial reason existed to jus-
tify the appointment of new counsel during jury selec-
tion, much less ‘‘exceptional circumstances.’’ The court
observed that the defendant and his trial counsel
appeared to communicate effectively during jury selec-
tion and confirmed with trial counsel that he was willing
and prepared to represent the defendant at trial. We
agree with the court’s finding that exceptional circum-
stances did not exist and, therefore, conclude that the
court did not abuse its discretion in denying the defen-
dant’s request for new counsel.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In briefing this claim, the defendant did not specify the exact language
he was contesting in all instances of alleged impropriety but did cite to the
page numbers of the corresponding transcript. See State v. John M., 87
Conn. App. 301, 311 n.8, 865 A.2d 450 (2005), aff’d, 285 Conn. 822, 942 A.2d
323 (2008). We note that it would aid this court in analyzing claims of
prosecutorial impropriety if the defendant includes the exact language of
the argument he or she challenges.
2
The defendant also raises several other instances of alleged prosecutorial
impropriety in the first footnote of his appellate brief. He fails, however, to
provide analysis as to how any of the alleged statements violated his right to
a fair trial. ‘‘[W]e are not required to review issues that have been improperly
presented to this court through an inadequate brief. . . . Analysis, rather
than mere abstract assertion, is required in order to avoid abandoning an
issue by failure to brief the issue properly.’’ State v. Vazquez, 119 Conn.
App.249, 257, 987 A.2d 1063 (2010) (Internal quotation marks omitted.).
Accordingly, we decline to address the defendant’s claim in footnote 1 of
his appellate brief.
3
Random match probability and source probability are distinguishable.
‘‘The prosecutor’s fallacy is the assumption that the random match probabil-
ity is the same as the probability that the defendant was not the source of
the DNA sample.’’ McDaniel v. Brown, 558 U.S. 120, 128, 130 S. Ct. 665, 174
L. Ed. 2d 582 (2010). Random match probability is ‘‘the probability a member
of the general population would share the same DNA’’ with the defendant. Id.
Source probability is the probability that someone other than the defendant is
the source of the DNA found at the crime scene. Id.
4
Bermudez received immunity from any crimes related to the death of
the victim and any drug offenses that he may admit to during the trial in
exchange for his testimony in the defendant’s case.
5
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
6
The limiting instruction stated in relevant part: ‘‘Now the state has offered
evidence of other acts of misconduct of the defendant. That evidence was
not admitted into evidence to prove the bad character of the defendant or
the defendant’s tendency to commit criminal acts. This evidence was admit-
ted solely to show or establish a motive for the commission of the crime
alleged. . . . You may consider such evidence, if you believe it, and further
find that it logically, rationally and conclusively supports the issue from
which it is being offered by the state, but only as it may bear on the issue
of motive . . . . On the other hand, if you do not believe such evidence,
or even if you do, if you find that it does not logically, rationally, and
conclusively support the issue . . . then you may not consider that testi-
mony for any other purpose.’’
7
Section 4-5 of the Connecticut Code of Evidence provides in relevant
part: ‘‘(a) Evidence of other crimes, wrongs or acts of a person is inadmissible
to prove the bad character or criminal tendencies of that person.
(b) Evidence of other crimes, wrongs, or acts of a person is admissible
for purposes other than those specified in subsection (a), such as to prove
intent, identity, malice, motive, common plan or scheme, absence of mistake
or accident, knowledge, a system of criminal activity, or an element of the
crime, or to corroborate crucial prosecution testimony. . . .’’
8
The defendant stated that he asked trial counsel for a copy of text
messages obtained by the state and to review motions he filed with the
court. The state clarified that it was not in possession of text messages but
had already provided trial counsel with a call log.
9
The court noted that trial counsel was the second attorney appointed
to represent the defendant after the first public defender was replaced
because the attorney ‘‘did not speak Spanish and [the defendant] was unsatis-
fied apparently on that basis.’’