State v. Patel , 186 Conn. App. 814 ( 2019 )

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STATE OF CONNECTICUT v. NIRAJ
PRABHAKAR PATEL
(AC 40605)
Sheldon, Keller and Bright, Js.
Syllabus
Convicted of the crimes of felony murder, home invasion as an accessory,
burglary in the first degree as an accessory, robbery in the first degree
as an accessory, conspiracy to commit burglary in the first degree and
hindering prosecution in the second degree in connection with the shoot-
ing death of the victim, the defendant appealed. Held:
1. The trial court did not abuse its discretion in denying the defendant’s
motion for a continuance, which was made due to the fact that the
defendant was experiencing, among other things, laryngitis and
coughing, when he was scheduled to testify on his own behalf; the facts
in the record, which were known to the trial court at the time of the
defendant’s request, demonstrated that the defendant had requested
multiple continuances, that the defendant’s physician testified that the
defendant was medically able to testify via microphone, that the court
was aware that the defendant had been working at his family’s business
and speaking with customers in the interim, and that the court had
made adjustments to its amplification system in the courtroom to assist
the jury in better hearing the defendant and others.
2. The trial court did not abuse its discretion in denying the defendant’s
motions for a mistrial, which the defendant made during and immediately
after his testimony because the jury had informed the court that it could
not hear him; although the jury initially may have had trouble hearing
the defendant due, in part, to problems with the court’s amplification
system, the jury properly notified the court, which took immediate
corrective action, including having the previous testimony read back to
the jury in its entirety, permitting counsel to offer corrections to the
testimony that was read back, and correcting the problem with the
amplification system, it was clear from the record that the jury heard the
defendant’s testimony through the court’s correction of its amplification
system or when the testimony was read back, and was able to observe
the defendant’s demeanor while testifying, and defense counsel made
a strategic choice not to ask the defendant to reanswer questions the
jury originally had difficulty hearing.
3. The defendant could not prevail on his claim that the trial court improperly
admitted into evidence as statements against penal interest a jailhouse
recording of a confidential informant and one of his coconspirators, C,
who was the informant’s cellmate, which was based on his claim that
the statements made in the recording were testimonial in nature and
were not trustworthy or reliable: C’s statements to the informant, which
implicated the defendant, bore none of the characteristics of testimonial
hearsay, as C made the statements to his prison cellmate in an informal
setting, he implicated himself and two others, and there was no indica-
tion that he anticipated that his statements would be used in a criminal
investigation or prosecution, and, therefore, the trial court did not violate
the defendant’s right to confrontation by admitting the recording into
evidence; moreover, the defendant’s claim that the statements were not
trustworthy or reliable was not reviewable, as the trial court denied the
defendant’s motion in limine to exclude the recording without prejudice
and specifically told defense counsel that its ruling was not final and
that defense counsel could question the cellmate outside the presence
of the jury, through which defense counsel could have developed the
record further and attempted to establish that the recording was untrust-
worthy or unreliable, but defense counsel did not do so, nor did defense
counsel object at the time the recording was offered into evidence, and,
therefore, the claim was not preserved for appellate review.
4. The trial court did not abuse its discretion in preventing the defendant from
asking certain questions to potential jurors during voir dire regarding
the death penalty as a means of exploring potential racial biases in
jurors and whether jurors could keep an open mind through the end of
the trial, including the questioning of the final witness, whom the defen-
dant claimed in many cases is the most important witness: the questions
regarding the death penalty could have been misleading and confusing
to a potential juror, the record revealed that defense counsel was given
wide latitude in questioning potential jurors regarding their ability to
be fair and impartial and to follow the law, the trial court never imposed
any prohibition on defense counsel’s ability to explore potential racial
bias or prejudices, and defense counsel chose not to engage in such
exploration; moreover, the defendant’s proffered question regarding the
final witness presented had the potential to plant prejudicial matter in
the minds of the jurors and might have caused the potential jurors
to assume that the final witness was special or more important than
other witnesses.
5. The defendant’s claim that the trial court erred in giving a certain limiting
instruction to the jury regarding nonhearsay testimony and that such
instruction impacted his right to testify in his own defense by affecting
his credibility was not reviewable; the defendant specifically having
voiced agreement with the trial court’s statement that it would give a
limiting instruction and, thereafter, having failed to object to the precise
instruction given by the court, the claim of instructional error was
unpreserved, and because the claim was evidentiary in nature, it was
not reviewable pursuant to State v. Golding (213 Conn. 233).
Argued September 21, 2018—officially released January 8, 2019
Procedural History
Substitute information charging the defendant with
the crimes of felony murder, murder, home invasion as
an accessory, burglary in the first degree as an acces-
sory, robbery in the first degree as an accessory, con-
spiracy to commit burglary in the first degree,
conspiracy to commit robbery in the first degree, and
hindering prosecution in the second degree, brought to
the Superior Court in the judicial district of Litchfield
and tried to the jury before Danaher, J.; verdict and
judgment of guilty; thereafter, the court vacated the
defendant’s conviction of murder and conspiracy to
commit robbery in the first degree, and the defendant
appealed. Affirmed.
Hubert J. Santos, with whom was Trent A. LaLima,
for the appellant (defendant).
Melissa Patterson, assistant state’s attorney, with
whom, on the brief, were David S. Shepack, state’s
attorney, and Dawn Gallo, supervisory assistant state’s
attorney, for the appellee (state).
Opinion
BRIGHT, J. The defendant, Niraj Prabhakar Patel,
appeals from the judgment of conviction of felony mur-
der in violation of General Statutes (Rev. to 2011) § 53a-
54c, home invasion as an accessory in violation of Gen-
eral Statutes §§ 53a-100aa (a) (1) and 53a-8 (a) and (b),
home invasion as an accessory in violation of §§ 53a-
100aa (a) (2) and 53a-8 (b), burglary in the first degree
as an accessory in violation of General Statutes §§ 53a-
101 (a) (1) and 53a-8 (a) and (b), robbery in the first
degree as an accessory in violation of General Statutes
§§ 53a-134 (a) (2) and 53a-8 (a) and (b), conspiracy to
commit burglary in the first degree in violation of Gen-
eral Statutes §§ 53a-101 (a) (1) and 53a-48, and hinder-
ing prosecution in the second degree in violation of
General Statutes § 53a-166.1 On appeal, the defendant
claims that the trial court erred in (1) denying his motion
for a continuance, (2) denying his motions for a mistrial,
(3) admitting into evidence the jailhouse recording
between a confidential informant and Michael Cala-
brese, one of the defendant’s coconspirators, (4) pre-
venting him from asking certain questions to potential
jurors during voir dire, and (5) giving an improper lim-
iting instruction to the jury regarding nonhearsay testi-
mony. We affirm the judgment of the trial court.
The following facts reasonably could have been found
by the jury. On June 12, 2012, the defendant was arrested
by the Torrington police following a traffic stop. In
his vehicle, the police discovered a black duffle bag
containing, among other things, marijuana and $12,375
in cash. The defendant, thereafter, needed money to
retain a lawyer and to pay the person to whom he
owed the $12,375 that the police had confiscated. The
defendant searched for legal loans, fast cash loans, and
cash advances, to no avail. He also, unsuccessfully,
attempted to borrow money from family members.
When these efforts failed, the defendant enlisted the
help of his cousin, Hiral Patel (Patel), and his friend,
Calabrese. The defendant concocted a plan to rob
another friend, Luke Vitalis, who was a marijuana
dealer. Calabrese agreed to help the defendant because
the defendant led him to believe that Vitalis owed
money to the defendant, and that the robbery was a
way to obtain the money that Vitalis owed. The defen-
dant also led Calabrese to believe that he and the defen-
dant would split the proceeds from the robbery.
The defendant learned that Vitalis was going to sell
$29,000 worth of marijuana to a client and that the sale
was to occur on the evening of August 5, 2012, at Vitalis’
home, located in Sharon. The defendant then set up his
own purchase from Vitalis for the following evening,
with the intention of robbing him of those proceeds.
On August 6, 2012, the defendant drove Patel and Cala-
brese to the vicinity of Vitalis’ home. Calabrese was
armed with a loaded .40 caliber Ruger handgun, which
the defendant had given to him.
Patel and Calabrese watched the home for a while,
and, then, at approximately 6 p.m., they covered their
faces with masks and put on black hats and gloves,
before entering the home and declaring that it was a
home invasion. Vitalis’ mother was in the home, and
Patel and Calabrese tied her hands, as she begged them
not to hurt or kill her son. Calabrese then went upstairs,
struck Vitalis with the Ruger, and shot him three times,
killing him and leaving ‘‘chunks of . . . brain . . . all
over the wall.’’ Calabrese could hear Vitalis’ mother
screaming. Calabrese, soaked in blood, then searched
for Vitalis’ money, but was able to find only $70 and
approximately one-half ounce of marijuana, both of
which he took. Patel and Calabrese then fled the scene,
leaving a bloody footprint behind. As they left the house,
one of them was on a cell phone, and Vitalis’ mother
heard him saying ‘‘hurry up, hurry the fuck up.’’
Vitalis’ mother was able to free herself, and she called
911. After the police arrived, they went upstairs and
found Vitalis’ body. The police searched the ransacked
room and discovered an empty Pioneer speaker box.
In total, the police found $32,150 in the bedroom, and
they discovered .40 caliber shell casings. They also
found a large quantity of marijuana in the home. After
the police had arrived at Vitalis’ home, the defendant,
in an effort to mislead the police, sent a text message
to Vitalis’ cell phone saying that he was on his way
and would be at Vitalis’ home in approximately forty-
five minutes.
Eventually Patel and Calabrese met up with the defen-
dant. Calabrese thereafter burned his clothing and his
sneakers, which police later discovered, enabling them
to match the print of the sneaker to that of the bloody
footprint left at the scene of the murder. Calabrese also
disposed of the Ruger, which never was found. Later,
the defendant attempted to dispose of a bulletproof
vest, a Ruger pistol box, a magazine, and a shotgun,
leaving the items with relatives in New York City and
repeatedly requesting that his cousin dispose of the
items in different locations.2
On September 11, 2013, the state police arrested the
defendant. Following a trial, the jury, on February 4,
2016, returned a verdict of guilty on all counts. Specifi-
cally, the jury found the defendant guilty of felony mur-
der, murder under the Pinkerton doctrine,3 two counts
of home invasion as an accessory, burglary in the first
degree as an accessory, robbery in the first degree as
an accessory, conspiracy to commit burglary in the
first degree, conspiracy to commit robbery in the first
degree, and hindering prosecution in the second degree.
The court, thereafter, rendered judgment in accordance
with the jury’s verdict. See footnote 1 of this opinion.
This appeal followed. Additional facts will be set forth
as necessary.
I
The defendant claims that the court abused its discre-
tion in denying his motion for a continuance, which
was made because the defendant was experiencing,
among other things, laryngitis and coughing, when he
was scheduled to testify on his own behalf. The defen-
dant argues that his request was reasonable, supported
by his affidavit and the note and testimony of his physi-
cian, and would have involved only a one day delay in
the presentation of evidence in a case that was well
ahead of schedule. He contends that this alleged error
was harmful because it placed him in a bad light before
the jury, which was not able to get an accurate impres-
sion of him in order to assess his credibility. The state
argues that the court acted well within its discretion
in denying another continuance in this matter, espe-
cially in light of the fact that the defendant had gone
to work at his family’s business and there was no guar-
antee that his laryngitis would have been better with
this delay. We conclude that the court acted well within
its discretion.
The following additional facts inform our review of
this claim. The prosecution rested its case on Wednes-
day, January 20, 2016. The defendant then requested a
continuance to Tuesday, January 26, 2016. The court
granted the request. Over the weekend, however, the
defendant became ill, and was coughing, vomiting, and
experiencing trouble speaking. Defense counsel noti-
fied the court, presented a note from the defendant’s
physician, and requested a continuance to Friday, Janu-
ary 29, 2016. The court considered the request, granted
a further continuance to Wednesday, January 27, 2016,
and told defense counsel that he could present wit-
nesses other than the defendant on that day, thereby
giving the defendant another day to recuperate
before testifying.
On January 28, 2016, the defendant still was experi-
encing laryngitis and coughing, with the ability to speak
only in a low voice. His attorney requested a continu-
ance until Tuesday, February 2, 2016. The prosecution
argued that the defendant had been seen working at
his family’s business in the preceding days and that the
continuance should not be granted. Defense counsel
conceded that the defendant had been at the family’s
business but argued that this was quite different from
testifying in court while experiencing fits of coughing
and having laryngitis. Counsel also argued that to make
the defendant testify while his health and voice were
compromised would violate his rights under both the
state and federal constitutions.
Later that day, the state presented the testimony of
the defendant’s physician, who opined that the defen-
dant was ill. The physician also stated that he had given
the defendant a prescription on Monday, January 25,
2016. He further indicated that with this medication,
the defendant should be able to testify approximately
seventy-two hours after beginning the medication. He
specifically confirmed that if the defendant had started
his prescription on Tuesday, he would be ready to tes-
tify on Friday, January 29. He further testified that the
defendant had not called his office for a follow-up visit
and had not indicated to him that the defendant’s condi-
tion had worsened. On cross-examination, the physician
testified that when he told the defendant on Monday
to take seventy-two hours off, that meant that the defen-
dant was not supposed to work. When asked if he would
recommend that the defendant take more time off, he
answered ‘‘[n]o.’’
Defense counsel also had the defendant speak his
name and address so the physician could hear the qual-
ity of the defendant’s voice. After listening to the defen-
dant, the physician further opined that the defendant
was medically able to testify with a microphone. The
court denied the requested continuance, noting that it
would use the microphone amplification system and
‘‘turn it up as high as we need to,’’ when the defendant
testified on Friday, January 29, 2016. Defense counsel
then requested permission to make a record and argued
that the court’s ruling interfered with the defendant’s
right to testify under both the state and federal constitu-
tions. In response, the state noted that it already had
its rebuttal witnesses make accommodations and that
they were on standby. The court then restated its ruling
that the defendant would testify the next day, noting
that (1) the defendant had contributed to his own prob-
lem by not following medical advice when he returned
to work earlier in the week, (2) the defendant’s physi-
cian had testified that the defendant could testify, and
(3) the court had an amplification system to project the
defendant’s voice.
The defendant argues that the court abused its discre-
tion when it denied his request for a continuance.
Although he suggests that the court’s ruling under these
circumstances implicates his right to testify under the
federal and state constitutions, he has not made a free-
standing constitutional claim. Instead he has briefed
the claim under only the abuse of discretion standard
using the Hamilton factors. See State v. Hamilton, 228
Conn. 234, 240–41, 636 A.2d 760 (1994). Applying those
factors, we conclude that the court did not abuse its dis-
cretion.
‘‘[T]rial judges necessarily require a great deal of lati-
tude in scheduling trials. Not the least of their problems
is that of assembling the witnesses, lawyers, and jurors
at the same place at the same time, and this burden
counsels against continuances except for compelling
reasons. Consequently, broad discretion must be
granted trial courts on matters of continuances . . . .’’
(Internal quotation marks omitted.) State v. Bush, 325
Conn. 272, 316, 157 A.3d 586 (2017).
‘‘A reviewing court is bound by the principle that
[e]very reasonable presumption in favor of the proper
exercise of the trial court’s discretion will be made.
. . . To prove an abuse of discretion, an appellant must
show that the trial court’s denial of a request for a
continuance was arbitrary. . . . There are no mechani-
cal tests for deciding when a denial of a continuance
is so arbitrary as to violate due process. The answer
must be found in the circumstances present in every
case, particularly in the reasons presented to the trial
judge at the time the request is denied. . . .
‘‘In appellate review of matters of continuances, fed-
eral and state courts have identified multiple factors
that appropriately may enter into the trial court’s exer-
cise of its discretion. Although the applicable factors
cannot be exhaustively catalogued, they generally fall
into two categories. One set of factors focuses on the
facts of record before the trial court at the time when
it rendered its decision. From this perspective, courts
have considered matters such as: the timeliness of the
request for continuance; the likely length of the delay;
the age and complexity of the case; the granting of
other continuances in the past; the impact of delay on
the litigants, witnesses, opposing counsel and the court;
the perceived legitimacy of the reasons proffered in
support of the request; the defendant’s personal respon-
sibility for the timing of the request; the likelihood that
the denial would substantially impair the defendant’s
ability to defend himself; the availability of other, ade-
quately equipped and prepared counsel to try the case;
and the adequacy of the representation already being
afforded to the defendant. . . . Another set of factors
has included, as part of the inquiry into a possible abuse
of discretion, a consideration of the prejudice that the
defendant actually suffered by reason of the denial of
the motion for continuance.’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
State v. Hamilton, supra, 228 Conn. 240–41; see State
v. Bush, supra, 325 Conn. 316–17.
In this matter, the facts of record before the trial
court at the time it rendered its decision were the fol-
lowing. The request for an additional continuance came
during the evidentiary portion of the trial. The prosecu-
tion rested on January 20, 2016, after having presented
more than thirty witnesses over a two week period,
and the court granted the defendant a continuance to
January 26, 2016. On January 26, the defendant
requested another continuance, this time due to his
illness, to Friday, January 29, 2016. The court granted
another continuance but only until Wednesday, January
27, 2016, and it told the defendant that he could present
witnesses other than himself on that date, thereby giv-
ing him the additional day to recover that he had
requested.
On January 28, the defendant, still coughing and
asserting that he was having trouble speaking,
requested another continuance to Tuesday, February
2, 2016, with no guarantees that he would recover by
that date or that his voice would be back to normal;
defense counsel stated that he ‘‘hope[d]’’ the defen-
dant’s voice would be better by then. Moreover, the
defendant’s physician testified that the defendant was
medically able to testify with a microphone, despite
his illness. Additionally, the court was aware that the
defendant had been working at his family’s business
and speaking with customers, although the defendant
was arguing that he was not fit to testify because of
illness, and his attorney had believed that he was home
resting during that time. To assist the jury in better
hearing the defendant and others, the court also
instructed that the amplification system be turned up
as loud as needed. On the basis of these facts, which
were known to the trial court at the time of the defen-
dant’s request for a continuance, we conclude that the
trial court did not abuse its discretion in denying the
defendant’s request.4
II
The defendant claims that the court erred in denying
his motions for a mistrial, made during and immediately
after his testimony, because the jury had informed the
court that it could not clearly hear the defendant. The
defendant argues: ‘‘When the jury informed the court
[that] it could not hear [the defendant], he had already
testified about all of the conduct that may encompass
all of the crimes except hindering prosecution. The
court was also aware that the credibility of [the defen-
dant’s] testimony was the crucial question, and a jury
that credit[s] [the defendant’s testimony] must acquit
on all charges except, possibly, hindering prosecution.
. . . [Although] the court was in a difficult position
after the jury’s note, this position had no possible reme-
dies to restore [the defendant’s right to a] fair trial.’’
We are not persuaded.
The following additional facts are necessary to our
consideration of this claim. The day after the court had
denied the defendant’s motion for another continuance,
he was called to testify. The defendant explained to the
jury that he had bronchitis and laryngitis, and that this
was affecting his voice. Several times during his testi-
mony, the defendant was asked to repeat his answers
and move closer to the microphone. The defendant
testified about the events that had occurred before the
crimes of which he was accused, ending at the point
where he had dropped off Patel and Calabrese at Vitalis’
home. See footnote 2 of this opinion. The jury then was
excused for its morning break, and it sent a note to the
court stating that it was having trouble hearing the
defendant. The defendant requested that the court poll
the jury to see how many of them did not hear his
testimony, and to ascertain what they did not hear, and
he requested that the court declare a mistrial. The state
objected to the defendant’s request, noting that at other
points during the trial, jurors had raised their hands
and asked for testimony to be repeated when they did
not hear it, and that this had not occurred during the
defendant’s testimony. The state also noted that defense
counsel could take the defendant through his testimony
again if counsel thought it was appropriate to do so.
The court denied both the request to poll the jury
and the defendant’s motion for a mistrial. At the request
of the jury, the defendant’s previous testimony there-
after was read to the jury. The court also repositioned
the defendant’s microphone, placed the speaker
directly in front of the jury, and instructed the jurors
that if any one of them had any further difficulty hearing
testimony, she or he should immediately notify the
court by raising her or his hand. The defendant’s live
testimony then continued. Almost immediately, one or
more jurors raised his or her hand, and the amplification
system again was adjusted. No subsequent problems
were recorded. Following the defendant’s testimony,
he again moved for a mistrial, which the court denied.
The defendant claims the court committed error by
denying his motions for a mistrial. We disagree.
‘‘[T]he principles that govern our review of a trial
court’s ruling on a motion for a mistrial are well estab-
lished. Appellate review of a trial court’s decision grant-
ing or denying a motion for a [mistrial] must take into
account the trial judge’s superior opportunity to assess
the proceedings over which he or she has personally
presided. . . . Thus, [a] motion for a [mistrial] is
addressed to the sound discretion of the trial court and
is not to be granted except on substantial grounds. . . .
In our review of the denial of a motion for [a] mistrial,
we have recognized the broad discretion that is vested
in the trial court to decide whether an occurrence at
trial has so prejudiced a party that he or she can no
longer receive a fair trial. The decision of the trial court
is therefore reversible on appeal only if there has been
an abuse of discretion. . . .
‘‘In reviewing a claim of abuse of discretion, we have
stated that [d]iscretion means a legal discretion, to be
exercised in conformity with the spirit of the law and
in a manner to subserve and not to impede or defeat
the ends of substantial justice. . . . In general, abuse
of discretion exists when a court could have chosen
different alternatives but has decided the matter so
arbitrarily as to vitiate logic, or has decided it based
on improper or irrelevant factors. . . . Therefore, [i]n
those cases in which an abuse of discretion is manifest
or where injustice appears to have been done, reversal
is required.’’ (Internal quotation marks omitted.) State
v. Holley, 327 Conn. 576, 628, 175 A.3d 514 (2018).
Although the defendant’s voice may have been low
and the jury initially may have had trouble hearing him
due, at least in part, to problems with the court’s amplifi-
cation system,5 the jury properly notified the court,
which took immediate corrective action. The court had
the previous testimony read to the jury in its entirety,
and counsel was permitted to offer corrections to the
read back. The court also adjusted the defendant’s
microphone, the speakers, and the amplification sys-
tem. The court told the jury to notify it immediately if
there was any further difficulty hearing testimony, and,
almost immediately, such notification was given to the
court, which took further corrective action, and the
jury, again, was instructed to notify the court if any
further problems were encountered. The defendant
then resumed his testimony, with no further problems.
We readily acknowledge the defendant’s concern that
the jury was required to assess his credibility and that
its ability to do so could be compromised if it was
unable to hear him. The shortcoming of the defendant’s
argument, however, is that the court corrected the prob-
lem with the amplification system, had the testimony
read to the jury, and gave counsel an opportunity to
offer any corrections to the testimony that was read
back, and the defendant resumed his live testimony.
Had defense counsel thought it crucial that the jury hear
the missed testimony live, directly from the defendant,
rather than read back, he could have reinquired of the
defendant or asked the court to strike the prior testi-
mony that the jury did not hear and allow him to begin
anew.6 He chose not to do so. It is clear from the record
that the jury heard the defendant’s testimony, either
live or by virtue of its being read, and was able to
observe the defendant’s demeanor while testifying,7 and
that defense counsel made a strategic choice not to ask
the defendant to reanswer the questions that the jury
originally had difficulty hearing. On this basis, we con-
clude that the court did not abuse its discretion in
denying the defendant’s motions for a mistrial.8
III
The defendant next claims that the trial court erred
in admitting into evidence, as statements against penal
interest under § 8-6 (4) of the Connecticut Code of Evi-
dence, (1) the jailhouse recording of a confidential
informant and Calabrese, the informant’s cellmate, and
(2) the testimony of Calabrese’s former girlfriend, Brit-
ney Colwell, who testified to statements made by Cala-
brese that implicated the defendant. The defendant first
argues that by admitting the jailhouse recording into
evidence, the court violated his right to confrontation.9
He contends that Calabrese’s statements were testimo-
nial in nature, and, even if they were not testimonial,
they failed to meet the requirements of the Connecticut
Code of Evidence because they were not trustworthy
or reliable. The defendant argues that Calabrese’s state-
ments to Colwell were unreliable and not against Cala-
brese’s penal interest. The state argues that Calabrese’s
statements in the jailhouse recording were not testimo-
nial in nature and that their admission into evidence,
therefore, did not violate the defendant’s right to con-
frontation. Additionally, the state argues that, as an
evidentiary matter, the defendant’s claim is not review-
able, but, to the extent that we deem it reviewable,
the statements in the jailhouse recording were both
trustworthy and reliable as dual inculpatory statements
and that their admission, therefore, did not violate the
Connecticut Code of Evidence. We agree with the
state.10
The following additional facts inform our review.
After Calabrese was arrested, he and his cellmate were
talking about the charges that were pending against
them. Thereafter, the cellmate approached a security
officer and offered to record Calabrese. The cellmate
was set up with a recording device, and he recorded
his conversation with Calabrese, who was unaware that
he was being recorded. Calabrese told his cellmate
about the events surrounding Vitalis’ killing, implicating
himself, Patel, and the defendant.
The defendant filed a motion in limine seeking to
exclude the jailhouse recording of Calabrese and his
cellmate, alleging that the admission of this recording
would be in violation of the fourth, fifth, sixth, and
fourteenth amendments to the United States Constitu-
tion, Article I, §§ 8, 9, and 10 of the Connecticut constitu-
tion, and § 42-15 of the Practice Book. The court denied
the motion without prejudice, explaining that it did not
consider the issue to be final and that it also would
permit the defendant, out of the presence of the jury,
to question the cellmate about the recording before the
cellmate testified to the jury. The defendant has not
pointed us to anything in the record that indicates that
the defendant opted to pursue such questioning.
On the morning that the cellmate was scheduled to
testify, the prosecutor notified the court and defense
counsel that it had received a letter from Calabrese’s
attorney stating that Calabrese would invoke his fifth
amendment privilege against self-incrimination if called
to testify at the defendant’s criminal trial and that his
attorney would instruct him to remain silent. The fol-
lowing colloquy then occurred:
‘‘[The Prosecutor]: I had discussions with Your Honor
and defense counsel on a date prior to today in anticipa-
tion of [the cellmate’s] testimony, and I believe that we
had agreed in chambers that a representation made by
way of letter from [Calabrese’s attorney] on behalf of
his client would suffice insofar as the foundation neces-
sary for the dual inculpatory statement’s admission.
‘‘The Court: All right. Is . . . the record you just
made sufficient for your purposes or do you want to
mark the letter as an exhibit?
‘‘[The Prosecutor]: I would like to mark it, please,
for ID, Your Honor.
‘‘The Court: All right, marked for ID only. That will
be state’s exhibit—
‘‘The Clerk: Thirty-seven.
‘‘The Court: Anything from the defense?
‘‘[Defense Counsel]: No, Your Honor.’’
When the cellmate was called to testify at the defen-
dant’s trial, he admitted that he had a cooperation
agreement with the state that provided that if he testi-
fied honestly and truthfully that the state, in the future,
would notify the court of his cooperation. The prosecu-
tor then questioned him about his offer to record Cala-
brese, and moved to admit the recording as a full
exhibit. Defense counsel specifically stated that he had
‘‘[n]o objection.’’ The prosecutor then moved to admit
into evidence transcripts of the recording. When the
court asked defense counsel if he had any objection,
defense counsel responded: ‘‘No.’’ The court instructed
the jury that the transcripts were to assist them, but
that they should rely on their understanding of the
recording, and that if they believed something in the
transcript differed from what they heard in the
recording, the recording would control. The prosecutor
then played the recording for the jury. Shortly there-
after, defense counsel began his cross-examination.
Redirect by the prosecutor and recross by defense coun-
sel followed. After the cellmate was excused from the
courtroom, the court asked the parties if there was
anything further before they took a recess, and both
the prosecutor and defense counsel said no.
The defendant now claims that the court violated his
right to confrontation by admitting this recording into
evidence because the statements made in the recording
were testimonial in nature,11 and, even if they were not
testimonial in nature, they failed to meet the require-
ments of the Connecticut Code of Evidence because
they were not trustworthy or reliable. We consider each
argument in turn.
A
Whether the Statements were Testimonial
‘‘Under Crawford v. Washington, [541 U.S. 36, 68–69,
124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)], the hearsay
statements of an unavailable witness that are testimo-
nial in nature may be admitted under the sixth amend-
ment’s confrontation clause only if the defendant has
had a prior opportunity to cross-examine the declarant.
Hearsay statements that are nontestimonial in nature
are not governed by the confrontation clause, and their
admissibility is governed solely by the rules of evidence.
. . . Thus, the threshold inquiry for purposes of the
admissibility of such statements under the confronta-
tion clause is whether they are testimonial in nature.’’
(Internal quotation marks omitted.) State v. Maguire,
310 Conn. 535, 564 n.14, 78 A.3d 828 (2013). ‘‘Because
this determination is a question of law, our review is
plenary.’’ State v. Madigosky, 291 Conn. 28, 44, 966 A.2d
730 (2009).
‘‘In Crawford, the Supreme Court declined to spell
out a comprehensive definition of testimonial . . . .
Instead, the court defined a testimonial statement in
general terms: A solemn declaration or affirmation
made for the purpose of establishing or proving some
fact. . . . The court did note, however, three formula-
tions of th[e] core class of testimonial statements . . .
[1] ex parte in-court testimony or its functional equiva-
lent—that is, material such as affidavits, custodial
examinations, prior testimony that the defendant was
unable to cross-examine, or similar pretrial statements
that declarants would reasonably expect to be used
prosecutorially . . . [2] extrajudicial statements . . .
contained in formalized testimonial materials, such as
affidavits, depositions, prior testimony, or confessions
. . . [and 3] statements that were made under circum-
stances which would lead an objective witness reason-
ably to believe that the statement would be available
for use at a later trial . . . .’’ (Internal quotation marks
omitted.) Id., 44–45.
‘‘Subsequently, in Davis v. Washington, [547 U.S. 813,
822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)], the United
States Supreme Court elaborated on the third category
and applied a ‘primary purpose’ test to distinguish testi-
monial from nontestimonial statements given to police
officials, holding: ‘Statements are nontestimonial when
made in the course of police interrogation under cir-
cumstances objectively indicating that the primary pur-
pose of the interrogation is to enable police assistance
to meet an ongoing emergency. They are testimonial
when the circumstances objectively indicate that there
is no such ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove
past events potentially relevant to later criminal prose-
cution.’ In Davis, the court held that statements given
to a 911 operator while an emergency was unfolding
were nontestimonial and could be admitted because
they were given for the primary purpose of responding
to the emergency. . . . In contrast, statements given
in an affidavit following a 911 telephone call to a police
officer were testimonial and therefore inadmissible
because they were provided to the officer after the
emergency had passed for the primary purpose of devel-
oping evidence against an accused. . . .
‘‘In State v. Slater, [285 Conn. 162, 172 n.8, 939 A.2d
1105, cert. denied, 553 U.S. 1085, 128 S. Ct. 2885, 171 L.
Ed. 2d 822 (2008)], we reconciled Crawford and Davis,
noting: ‘We view the primary purpose gloss articulated
in Davis as entirely consistent with Crawford’s focus
on the reasonable expectation of the declarant. . . .
[I]n focusing on the primary purpose of the communica-
tion, Davis provides a practical way to resolve what
Crawford had identified as the crucial issue in determin-
ing whether out-of-court statements are testimonial,
namely, whether the circumstances would lead an
objective witness reasonably to believe that the state-
ments would later be used in a prosecution.’ . . . We
further emphasized that ‘this expectation must be rea-
sonable under the circumstances and not some subjec-
tive or far-fetched, hypothetical expectation that takes
the reasoning in Crawford and Davis to its logical
extreme.’ ’’ (Citations omitted.) State v. Smith, 289
Conn. 598, 623–24, 960 A.2d 993 (2008).
The defendant contends that ‘‘there was no ongoing
emergency [and] the entire purpose behind correction
officers having [the cellmate] make the recording of
Calabrese was to obtain evidence against him and oth-
ers for later prosecution. . . . An objective witness in
Calabrese’s position, as an incarcerated person, should
have reasonably expected that anything he said about
his crimes to another inmate . . . could be later
relayed and used at a trial. An objective person would
not reasonably trust a person he just met with the details
of a murder without suspecting his words may later
haunt him.’’ (Citations omitted; footnote omitted.) He
further contends that ‘‘[t]he relevant inquiry is not based
upon Calabrese’s subjective beliefs but, rather, that of
an objective, reasonable witness under similar circum-
stances.’’
The state responds that an objective witness would
not expect his statements to his cellmate to be recorded
and used against him or his coconspirator. Additionally,
the state argues, ‘‘[m]oreover, post-Crawford, the
majority of federal courts have held that dual inculpa-
tory or coconspirator statements made by one prisoner
to another, even when one of the prisoners is a confiden-
tial informant for law enforcement, are nontestimonial
and these courts have done so after analyzing the ques-
tion from the perspective of the declarant.12’’ We agree
with the state.
It does not appear as though our Supreme Court has
addressed the specific issue of whether a recording
initiated by a prisoner, who is acting as a confidential
informant, of a fellow prisoner unwittingly making dual
inculpatory statements about himself and a coconspira-
tor or codefendant are testimonial in nature. After
reviewing relevant case law, we conclude that Cala-
brese’s statements at issue in the present case are non-
testimonial in nature.
In Davis, the Supreme Court indicated that state-
ments made unwittingly to a government informant, or
statements made from one prisoner to another, ‘‘were
clearly nontestimonial.’’ Davis v. Washington, supra,
547 U.S. 825 (‘‘Where our cases . . . dispense[d] with
[the confrontation clause requirements of unavailability
and prior cross-examination in cases that involved testi-
monial hearsay]—even under the [pre-Crawford]
approach—the statements at issue were clearly nontes-
timonial. See, e.g., Bourjaily v. United States, 483 U.S.
171, 181–184[,] [107 S. Ct. 2775, 97 L. Ed. 2d 144] [1987]
[statements made unwittingly to a Government infor-
mant]; Dutton v. Evans, 400 U.S. 74, 87–89[,] [91 S.
Ct. 210, 27 L. Ed. 2d 213] [1970] [plurality opinion]
[statements from one prisoner to another].’’).
In United States v. Saget, 377 F.3d 223, 228 (2d Cir.
2004), cert. denied, 543 U.S. 1079, 125 S. Ct. 938, 160
L. Ed. 2d 821 (2005),13 then Judge Sotomayor explained
in a unanimous decision that ‘‘[a]lthough [the Supreme
Court in Crawford] declined to spell out a comprehen-
sive definition of testimonial . . . it provided examples
of those statements at the core of the definition, includ-
ing prior testimony at a preliminary hearing, previous
trial, or grand jury proceeding, as well as responses
made during police interrogations. . . . With respect
to the last example, the Court observed that [a]n
accuser who makes a formal statement to government
officers bears testimony in a sense that a person who
makes a casual remark to an acquaintance does not.
. . . Thus, the types of statements cited by the Court
as testimonial share certain characteristics; all involve
a declarant’s knowing responses to structured ques-
tioning in an investigative environment or a courtroom
setting where the declarant would reasonably expect
that his or her responses might be used in future judicial
proceedings.’’ (Citations omitted; internal quotation
marks omitted.)
The court further opined, ‘‘Crawford at least suggests
that the determinative factor in determining whether a
declarant bears testimony is the declarant’s awareness
or expectation that his or her statements may later be
used at a trial. [Crawford] lists several formulations of
the types of statements that are included in the core
class of testimonial statements, such as ‘statements that
were made under circumstances which would lead an
objective witness reasonably to believe that the state-
ment would be available for use at a later trial.’ . . .
All of these definitions provide that the statement must
be such that the declarant reasonably expects that the
statement might be used in future judicial proceedings.
. . . Although the Court [in Crawford] did not adopt
any one of these formulations, its statement that ‘[t]hese
formulations all share a common nucleus and then
define the Clause’s coverage at various levels of abstrac-
tion around it’ suggests that the Court would use the
reasonable expectation of the declarant as the anchor
of a more concrete definition of testimony.’’ (Citations
omitted; emphasis added; footnote omitted.) Id.,228–29; see also State v. Miller, 95 Conn. App. 362, 382,
896 A.2d 844 (discussing Saget), cert. denied, 279 Conn.
907, 901 A.2d 1228 (2006).
In Saget, it was undisputed that the coconspirator of
the defendant had no knowledge that he was speaking
with a confidential informant. United States v. Saget,
supra, 377 F.3d 229. The court stated that, in light of
this, it would not ‘‘attempt to articulate a complete
definition of testimonial statements in order to hold
that [the coconspirator’s] statements did not constitute
testimony . . . because Crawford indicates that the
specific type of statements at issue here are nontestimo-
nial in nature.’’ Id.The court in Saget went on to discuss the Supreme
Court’s decision in Bourjaily v. United States, supra,
483 U.S. 171, which it found relevant. United States
v. Saget, supra, 377 F.3d 229. It explained, Bourjaily
‘‘involved a co-defendant’s unwitting statements to an
FBI informant, as an example of a case in which nontes-
timonial statements were correctly admitted against the
defendant without a prior opportunity for cross-exami-
nation. . . . In Bourjaily, the declarant’s conversation
with a confidential informant, in which he implicated
the defendant, was recorded without the declarant’s
knowledge. . . . The Court held that even though the
defendant had no opportunity to cross-examine the
declarant at the time that he made the statements and
the declarant was unavailable to testify at trial, the
admission of the declarant’s statements against the
defendant did not violate the Confrontation Clause.
. . . Crawford approved of this holding, citing it as an
example of an earlier case that was consistent with
the principle that the Clause permits the admission of
nontestimonial statements in the absence of a prior
opportunity for cross-examination.’’ (Citations omitted;
internal quotation marks omitted.) Id.In reliance on Crawford and Bourjaily, the court in
Saget firmly held that ‘‘a declarant’s statements to a
confidential informant, whose true status is unknown
to the declarant, do not constitute testimony within
the meaning of Crawford.’’ Id.; accord United States v.
Dargan, 738 F.3d 643, 650–51 (4th Cir. 2013) (state-
ments made by coconspirator of defendant to cellmate
in informal setting were ‘‘plainly nontestimonial’’ under
Davis and Crawford); United States v. Pelletier, 666
F.3d 1, 9 (1st Cir. 2011) (‘‘Although we have not pre-
viously had occasion to apply Davis to the situation
presented here—statements made by one inmate to
another—we have little difficulty holding that such
statements are not testimonial. . . . [The declarant’s]
jailhouse statements to [his fellow inmate] bear none
of the characteristics of testimonial hearsay. They were
made not under formal circumstances, but rather to a
fellow inmate with a shared history, under circum-
stances that did not portend their use at trial against
[the defendant].’’ [Citations omitted.]), cert. denied, 566
U.S. 1023, 132 S. Ct. 2683, 183 L. Ed. 2d 48 (2012); United
States v. Smalls, 605 F.3d 765, 778, 780 (10th Cir. 2010)
(accomplice declarant’s recorded statement to confi-
dential informant cellmate ‘‘unquestionably nontesti-
monial’’ because declarant ‘‘in no sense intended to
bear testimony against [defendant]; [declarant] in no
manner sought to establish facts for use in a criminal
investigation or prosecution . . . [declarant] boasted
of the details of a cold-blooded murder in response to
‘casual questioning’ by a fellow inmate and apparent
friend’’ [citation omitted; emphasis in original]); United
States v. Johnson, 581 F.3d 320, 325 (6th Cir. 2009)
(declarant’s dual inculpatory statements implicating
himself and codefendants, unwittingly made to confi-
dential jailhouse informant wearing wire, were nontesti-
monial), cert. denied, 560 U.S. 966, 130 S. Ct. 3409, 177
L. Ed. 2d 326 (2010); United States v. Watson, 525 F.3d
583, 589 (7th Cir. 2008) (‘‘statement unwittingly made
to a confidential informant and recorded by the govern-
ment is not ‘testimonial’ for Confrontation Clause pur-
poses’’), cert. denied sub nom. Redmond v. United
States, 555 U.S. 1037, 129 S. Ct. 610, 172 L. Ed. 2d 466(2008), and cert. denied, 555 U.S. 1104, 129 S. Ct. 972,
173 L. Ed. 2d 117 (2009); United States v. Udeozor, 515
F.3d 260, 270 (4th Cir. 2008) (because defendant plainly
did not think he was giving any sort of testimony when
making statements to victim during recorded telephone
calls, admission of taped conversations into evidence
did not violate defendant’s rights under confrontation
clause).
In the present case, Calabrese’s statements to his
prison cellmate bear none of the characteristics of testi-
monial hearsay. Calabrese made these statements to
his prison cellmate in an informal setting. He implicated
himself, Patel, and the defendant, and there is no indica-
tion that he anticipated that his statements would be
used in a criminal investigation or prosecution. Accord-
ingly, we conclude that the trial court did not violate
the defendant’s right to confrontation by admitting into
evidence the recording of Calabrese’s statements.14
B
Whether Calabrese’s Statements were Trustworthy or
Reliable
The defendant contends that the court improperly
admitted Calabrese’s statements under § 8-6 (4) of the
Connecticut Code of Evidence as statements against
penal interest when they were not trustworthy or reli-
able. The state argues that, as an evidentiary matter, the
defendant’s claim is not reviewable because he failed
to preserve his objection properly by reasserting it after
his motion in limine was denied without prejudice. In
the alternative, it argues that the statements were both
trustworthy and reliable. We conclude that this claim
is not reviewable because the defendant failed to pre-
serve his objection.
As set forth in our statement of additional facts, in
ruling on the defendant’s motion in limine to exclude
Calabrese’s statements, the court denied the motion
without prejudice and specifically told defense counsel
that its ruling was not final, and that defense counsel
could question the cellmate outside of the presence of
the jury, before he testified and before the recording
was introduced into evidence. Defense counsel has not
asserted on appeal that he took the opportunity to ques-
tion the cellmate outside of the jury’s presence. Addi-
tionally, the record clearly demonstrates that defense
counsel did not object when the recording of the state-
ments was offered into evidence. The record also
reveals that defense counsel specifically agreed that
the prosecutor had laid the necessary foundation for
admission of the recording by his submission of a letter
from Calabrese’s attorney stating that Calabrese would
invoke his fifth amendment privilege if called to testify.
Practice Book § 60-5 provides in relevant part: ‘‘In
jury trials, where there is a motion, argument, or offer
of proof or evidence in the absence of the jury, whether
during trial or before, pertaining to an issue that later
arises in the presence of the jury, and counsel has fully
complied with the requirements for preserving any
objection or exception to the judge’s adverse ruling
thereon in the absence of the jury, the matter shall be
deemed to be distinctly raised at the trial for purposes
of this rule without a further objection or exception
provided that the grounds for such objection or excep-
tion, and the ruling thereon as previously articulated,
remain the same. . . .’’ (Emphasis added.)
‘‘A trial court may entertain a motion in limine made
by either party regarding the admission or exclusion of
anticipated evidence. . . . The judicial authority may
grant the relief sought in the motion or such other relief
as it may deem appropriate, may deny the motion with
or without prejudice to its later renewal, or may reserve
decision thereon until a later time in the proceeding.
Practice Book § 42-15. This court has said that [t]he
motion in limine . . . has generally been used in Con-
necticut courts to invoke a trial judge’s inherent discre-
tionary powers to control proceedings, exclude
evidence, and prevent occurrences that might unneces-
sarily prejudice the right of any party to a fair trial.’’
(Emphasis added; internal quotation marks omitted.)
State v. Holmes, 64 Conn. App. 80, 85, 778 A.2d 253,
cert. denied, 258 Conn. 911, 782 A.2d 1249 (2001).
Our Supreme Court has stated: ‘‘[T]he standard for
the preservation of a claim alleging an improper eviden-
tiary ruling at trial is well settled. This court is not
bound to consider claims of law not made at the trial.
. . . In order to preserve an evidentiary ruling for
review, trial counsel must object properly.’’ (Internal
quotation marks omitted.) State v. Cabral, 275 Conn.
514, 530–31, 881 A.2d 247, cert. denied, 546 U.S. 1048,
126 S. Ct. 773, 163 L. Ed. 2d 600 (2005). In particular,
where the court’s evidentiary ruling is preliminary and
not final, it is ‘‘incumbent on the defendant to seek a
definitive ruling [when the evidence is offered at trial]
in order fully to comply with the requirements of our
court rules of practice for preserving his claim of error
. . . .’’ State v. Johnson, 214 Conn. 161, 170, 571 A.2d
79 (1990).
We conclude that the defendant’s claim is not review-
able. The court denied the defendant’s motion in limine
without prejudice, and specifically stated that its ruling
was not final, in order to permit defense counsel the
opportunity to question the cellmate out of the presence
of the jury; defense counsel, through such questioning,
would have had the opportunity to attempt to establish
that the recording containing Calabrese’s statement was
untrustworthy or unreliable. The defendant specifically
was permitted to make such a showing and to raise
additional objections when the recording was intro-
duced into evidence. This would have allowed the trial
court to make a final ruling after the record was further
developed by defense counsel and the court was in a
better position to evaluate the circumstances sur-
rounding the recording. Having not taken advantage of
the court’s offer and having not objected at the time
the evidence was offered, the defendant has not pre-
served this evidentiary issue for appellate review.15
IV
The defendant also claims that the trial court erred
in preventing him from asking certain questions to
potential jurors during voir dire. Specifically, the defen-
dant claims that the court abused its discretion in pre-
venting him from questioning potential jurors regarding
(1) their opinions on the death penalty and (2) whether
they would keep an open mind throughout the trial,
including when the final witness was questioned
because ‘‘many times the most important witness is the
last witness.’’ The state contends that the court properly
prohibited these questions on the ground that they
raised irrelevant and improper matters. After setting
forth our standard of review and the principles that
guide us, we will consider each voir dire question in
turn.
‘‘Voir dire plays a critical function in assuring the
criminal defendant that his [or her] [s]ixth [a]mendment
right to an impartial jury will be honored. . . . Part of
the guarantee of a defendant’s right to an impartial jury
is an adequate voir dire to identify unqualified jurors.
. . . Our constitutional and statutory law permit each
party, typically through his or her attorney, to question
each prospective juror individually, outside the pres-
ence of other prospective jurors, to determine [his or
her] fitness to serve on the jury. Conn. Const., art. I,
§ 19; General Statutes § 54-82f; Practice Book [§ 42-12].
. . . Because the purpose of voir dire is to discover if
there is any likelihood that some prejudice is in the
[prospective] juror’s mind [that] will even subcon-
sciously affect his [or her] decision of the case, the party
who may be adversely affected should be permitted [to
ask] questions designed to uncover that prejudice. This
is particularly true with reference to the defendant in
a criminal case. . . . The purpose of voir dire is to
facilitate [the] intelligent exercise of peremptory chal-
lenges and to help uncover factors that would dictate
disqualification for cause.’’ (Internal quotation marks
omitted.) State v. Edwards, 314 Conn. 465, 483, 102
A.3d 52 (2014).
‘‘[I]f there is any likelihood that some prejudice is in
the juror’s mind which will even subconsciously affect
his decision of the case, the party who may be adversely
affected should be permitted questions designed to
uncover that prejudice. . . . The latitude . . .
afforded the parties in order that they may accomplish
the purposes of the voir dire [however] is tempered by
the rule that [q]uestions addressed to prospective jurors
involving assumptions or hypotheses concerning the
evidence which may be offered at the trial . . . should
be discouraged . . . . [A]ll too frequently such inquir-
ies represent a calculated effort on the part of counsel
to ascertain before the trial starts what the reaction of
the venire[person] will be to certain issues of fact or
law or, at least, to implant in his mind a prejudice or
prejudgment on those issues. Such an effort transcends
the proper limits of the voir dire and represents an
abuse of the statutory right of examination. . . .
‘‘Thus, we afford trial courts wide discretion in their
supervision of voir dire proceedings to strike a proper
balance between [the] competing considerations . . .
but at the same time recognize that, as a practical mat-
ter, [v]oir dire that touches on the facts of the case
should be discouraged.’’ (Citations omitted; footnotes
omitted; internal quotation marks omitted.) State v.
Ebron, 292 Conn. 656, 666–67, 975 A.2d 17 (2009), over-
ruled on other grounds by State v. Kitchens, 299 Conn.
447, 10 A.3d 942 (2011). ‘‘[T]he permissible content of
the voir dire questions cannot be reduced to simplistic
rules, but must be left fluid in order to accommodate
the particular circumstances under which the trial is
being conducted. Thus, a particular question may be
appropriate under some circumstances but not under
other circumstances. . . . The trial court has broad
discretion to determine the latitude and the nature of
the questioning that is reasonably necessary to search
out potential prejudices of the jurors.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Skipper,
228 Conn. 610, 626–27, 637 A.2d 1101 (1994).
A
On October 26, 2015, the defendant filed a motion for
permission to question prospective jurors about their
views on the death penalty on the grounds that he
wanted to evaluate whether jurors were defense or
prosecution oriented, and he wanted to ‘‘gauge [their]
knowledge and awareness of current issues.’’16 He
asserted that he would inform the jury that this was
not a death penalty case. The prosecutor objected,
arguing, in part, that, since the death penalty is nonexis-
tent in Connecticut, these types of questions would
mislead and confuse the jury, which has no say in the
defendant’s punishment in any case. The prosecutor
contended that there were many other ways that
defense counsel could explore juror bias without
injecting irrelevant and inappropriate matters into the
case. The court denied the defendant’s motion on the
basis that the questions sought to inquire into whether
prospective jurors were aware that the death penalty
had been abolished, and an inquiry into a juror’s knowl-
edge of existing law was impermissible under Duffy v.
Carroll, 137 Conn. 51, 56–57, 75 A.2d 33 (1950) (‘‘Neither
is a juror’s knowledge or ignorance concerning ques-
tions of law a proper subject of inquiry. These are con-
cerned with matters which the juror is bound to take
from the court. A juror cannot be a law to himself, but
is bound to follow the instructions of the court in that
respect, and hence his knowledge or ignorance con-
cerning questions of law is not a proper subject of
inquiry upon the trial of the challenge for cause.’’ [Inter-
nal quotation marks omitted.]). The court also stated
that sentencing was not a matter for potential jurors
to consider.
The defendant argues that the court’s prohibition on
his questions regarding the death penalty was an abuse
of discretion because studies have indicated that ‘‘pro-
death penalty jurors would be more likely to harbor
racial biases against [the defendant, and it] is proper
for defense counsel to inquire regarding the death pen-
alty as a means of exploring potential racial biases in
jurors as well as jurors’ favorable views of the prosecu-
tion.’’ We are not persuaded.
In the defendant’s motion, he specifically stated in
part that he wanted to gauge the knowledge of prospec-
tive jurors concerning current issues, namely the death
penalty. We agree with the state and the trial court that
such questioning could be misleading and confusing to
a potential juror. ‘‘[A] juror’s knowledge or ignorance
with respect to questions of law is not a proper subject
of inquiry on voir dire. . . . [A]ll too frequently such
inquiries represent a calculated effort on the part of
counsel to ascertain before the trial starts what the
reaction of the venireman will be to certain issues of
fact or law or, at least, to implant in his mind a prejudice
or prejudgment on those issues. Such an effort tran-
scends the proper limits of the voir dire and represents
an abuse of the statutory right of examination.’’ (Cita-
tions omitted; internal quotation marks omitted.) Lamb
v. Burns, 202 Conn. 158, 164, 520 A.2d 190 (1987). ‘‘[I]t
is important that the trial [court], in the exercise of
[its] discretion, be punctilious in restricting counsel’s
inquiries to questions which are pertinent and proper
for testing the capacity and competency of the juror
. . . and which are neither designed nor likely to plant
prejudicial matter in his mind.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. Anthony, 172
Conn. 172, 176, 374 A.2d 156 (1976).
Here, the record reveals that defense counsel was
given wide latitude in questioning potential jurors
regarding their ability to be fair and impartial and to
follow the law. Specifically, he inquired about, inter
alia, their feelings about the criminal justice system,
about their ability to remain fair and impartial despite
the defendant’s arrest and the facts of the crimes
alleged, about potential sympathy for the victim’s
mother, and about the presumption of innocence and
reasonable doubt. Furthermore, the court never
imposed any prohibition on defense counsel’s ability
to explore potential racial bias or prejudices; rather, it
appears that defense counsel chose not to engage in
such exploration. On the basis of the foregoing, we
conclude that the court did not abuse its discretion in
preventing the defendant from questioning potential
jurors about the death penalty.
B
On November 5, 2015, the defendant questioned
potential jurors about whether they could keep an open
mind through the end of trial because ‘‘many times, the
most important witness is the last witness.’’ After jury
selection ended for the morning session, the court noted
these questions and told defense counsel that they were
problematic because they focused on the final witness,
regardless of who that witness might be, and they could
lead a juror to conclude that the last witness was more
important than other witnesses. The court suggested
that counsel could ask the potential jurors whether they
would keep an open mind throughout the entire trial.
The defendant argues that his proposed question
‘‘did not instruct the juror to place extra weight on the
testimony of the last witness; instead, to ensure the
juror waits until all the evidence is presented, it asks
the juror to be open to the possibility that the last
witness is most important. The situation proposed by
the statement is true; sometimes the last witness truly
is the most important.’’ (Emphasis in original.) We con-
clude that the court did not abuse its discretion in
disallowing this question.
As stated in part A of this section: ‘‘[I]t is important
that the trial [court], in the exercise of [its] discretion,
be punctilious in restricting counsel’s inquiries to ques-
tions which are pertinent and proper for testing the
capacity and competency of the juror . . . and which
are neither designed nor likely to plant prejudicial mat-
ter in his mind.’’ (Citation omitted; internal quotation
marks omitted.) State v. Anthony, supra, 172 Conn.
176. In this case, the court was concerned that defense
counsel’s focus on ‘‘the last witness’’ might cause the
potential jurors to assume that the last witness was
special or more important than other witnesses. With
this concern in mind, the court told defense counsel
that he could ask whether the juror would remain open
minded throughout the entire trial, from start to finish,
but he could not ask specifically about ‘‘the last wit-
ness.’’ We conclude that this question has the potential
to plant prejudicial matter in the minds of the jurors.
See id. Accordingly, we conclude that the trial court
did not abuse its discretion in prohibiting it.
V
The defendant claims that the court erred in giving
a certain limiting instruction to the jury regarding non-
hearsay testimony. He also contends that the court’s
limiting instruction affected his right to testify in his
own defense by affecting his credibility, and, therefore,
that this claim is of constitutional magnitude appro-
priate for Golding review.17 The state argues, in relevant
part, that this is nothing more than an alleged eviden-
tiary error, which the defendant failed to preserve. We
agree with the state.
The following additional facts inform our consider-
ation of this claim. On January 29, 2016, during a break
in the defendant’s direct testimony, defense counsel
filed a motion requesting to introduce certain out-of-
court statements, particularly a statement allegedly
made by Calabrese to the defendant on the ground that
such statement was being ‘‘offered not for its truth but
to show its effect on the hearer, [and], therefore, [it] is
not hearsay.’’ The court heard argument on the motion,
which included the following colloquy:
‘‘The Court: My first question . . . is exactly what
statements [are we] talking about. You indicated before
the break that you wanted to offer, through your client,
a statement that Michael Calabrese said the day after
the shooting that, ‘[i]f I’m going down, you’re going
down.’ Are there other statements that are not identified
in this motion that are going to come up?
‘‘[Defense Counsel]: Correct. That statement was
made—something to that effect, I don’t know the exact
language, and I believe—I believe that’s all we have, yes.
‘‘The Court: All right.
‘‘[Defense Counsel]: And then that statement affected
a number of things after, but that’s the one statement
essentially. . . .
‘‘The Court: My understanding of your argument, at
least one you articulated, is that this is offered not for
the truth, but to explain why the defendant took the
steps he did and that the state argues constitute con-
sciousness of guilt. Is that correct, that’s the argument?
‘‘[Defense Counsel]: Correct, Your Honor. I believe
it’s relevant. The state has made consciousness of guilt
a large portion of [its] case, particularly things that
happened after the homicide, therefore this statement
to my client and my client heard on the morning after
the homicide colored all of his actions afterwards, and
would be, I think, crucial and necessary explanation
for why he took some of the steps he did, which would
otherwise could raise suspicion with the jury as to con-
sciousness of guilt charge.
***
‘‘The Court: So you do want the statement in for the
truth, you want the jury to hear those words.
‘‘[Defense Counsel]: We believe the words are
important to understand why they would have that
impact on the defendant. And I fail to see the prejudice
here. I mean, I suppose the jury could be prejudiced
against Mr. Calabrese for making a threatening state-
ment, but they already heard numerous statements by
Mr. Calabrese here in court that I think would suffi-
ciently prejudice them against him and would already
lead them to believe that he could be violent and that
he could be threatening, and I don’t see . . . prejudice
here, that was all on the tape. And the probative value
here, the consciousness of guilt evidence, he acts like
this because Calabrese says I will essentially—that I
will take action to make sure you are guilty.
‘‘The Court: How can you say the jury must hear
those particular words and at the same time argue that
you’re not offering those words for the truth, you don’t
want the jury to credit those words?
‘‘[Defense Counsel]: They don’t need to credit them,
they need to understand why the statement was so
alarming to my client. Did you know that you could be
legally liable for this, that would be different, but if ‘I
go down, you go down,’ he knows that Mr. Calabrese
will go down based on what Mr. Calabrese did, that
statement is much more alarming than just a general
idea of Calabrese saying you could be legally liable.
‘‘The Court: Isn’t that the point. I mean, didn’t he
learn that day or sooner that Michael Calabrese shot
Luke Vitalis, and that’s in evidence, that Luke Vitalis
was dead, that his testimony is that he believed Luke
Vitalis was only going to make a drug purchase, that
he knew, and you established this, that he gave a gun
to Michael Calabrese, he knew he drove Michael Cala-
brese to Luke Vitalis’ house, he knew that he drove
Michael Calabrese from Luke Vitalis’ house, and this is
all of his testimony, all of that is admissible, it’s not
hearsay, and all of those things would certainly go to
why he did the investigation that he did. I don’t—again,
it seems that you’re telling me you don’t want the jury
to believe the words, but you want them to hear the
words, all—and, quite frankly, are less incriminating,
the fact that Michael Calabrese said that, than all the
facts I just outlined that are in evidence.
‘‘[Defense Counsel]: I believe that fact that there’s
a threat would explain the panic on the part of the
defendant. And it doesn’t matter whether or not it’s a
credible threat, it matters the language of it and what
he hears. I don’t think we need to judge whether or not
it’s a credible threat by Mr. Calabrese, whether or not
the language is such it would cause someone in the
defendant’s position to panic and to take rash actions
to try and potentially remove himself from—
‘‘The Court: Did that alarm him more than knowing
he now is involved in a murder?
‘‘[Defense Counsel]: I—people—I don’t know what
his legal knowledge was before this, but it would be
reason for him to say I didn’t plan this, I didn’t have
no involvement, I can’t get in trouble for it, and then
the next morning what Calabrese says, oh, my God, I
could be going to jail for that. That’s a reasonable
thought someone could have being told that threat, and
I think the full language of the threat is necessary to
communicate why he would panic, why he would take
certain actions.
‘‘The Court: Turning to your alternative argument,
that this statement by Michael Calabrese is against his
penal interest. How is he exposed to prosecution by
saying the words, ‘If I go down, you go down?’
‘‘[Defense Counsel]: First, it’s an admission by Mr.
Calabrese that he could be going down. Second, it’s
tampering with a witness by threatening [the defendant]
not to go forward with any information, because he’s
saying if you take any action to make sure I’m punished,
I will make sure you come down with me.
‘‘The Court: [Prosecutor]?
‘‘[The Prosecutor]: There’s no—well, I mean, an
admission—Mr. Calabrese is not on trial, so the defen-
dant can’t offer Mr. Calabrese’s statement as an admis-
sion. ‘If I’m going down, you’re going down,’ in no way
implicates Mr. Calabrese, because it’s conditional. I
mean . . . it’s a conditional situation. He’s not saying,
‘Yo, man, I did this, you drove me, and if you tell the
cops that I did this, I’m telling ‘em you drove me.’ It’s not
factual. It’s conditional. . . . [H]ow can a conditional
statement be a statement against penal interest? It’s
alleging something in the future.
‘‘[Defense Counsel]: Your Honor, first, if [the defen-
dant] had testified at Mr. Calabrese’s trial, this state-
ment would come in as an admission against penal
interest. I have no doubt about that. Additionally, we
would ask that the state articulate the potential proof
of prejudice is so great it would outweigh its probative
value. I don’t think we’ve heard any prejudice articu-
lated, but that’s a prejudice articulated at this time.
‘‘The Court: What is the prejudice to the state if it’s
not offered for the truth?
‘‘[The Prosecutor]: Your Honor, the defendant’s
whole case is going to be to attempt to discount the
credibility of Mr. Calabrese’s taped statement, and so
they’re—inevitably they’re going to have to argue that
somehow Mr. Calabrese’s intent was to frame [the
defendant]. . . . And this statement goes directly to
that.
‘‘The Court: I understand. Am I correct in my under-
standing and expectation that if the [court] were to
admit it, that there would be no argument in closing
argument or at any other time that—no reference to
the statement as supporting the defendant’s claim that
Calabrese’s tape recording is not accurate?
‘‘[Defense Counsel]: That’s correct. And the idea that
we’re attacking credibility of Mr. Calabrese, is further
evidence we’re not producing it for the truth, Mr. Cala-
brese is lying on the tape, he’s lying here.
‘‘The Court: I don’t know if it’s be[ing] introduced
for the truth, but I think I am going to—I’m not confident
that this is the only way to get this evidence before the
jury and that it’s necessary. I will allow it, but there
will be a corrective instruction immediately that it’s not
being offered for the truth, that the jury will not consider
it to be the truth, or draw any conclusions or make any
findings based upon whether the statement is truthful
or not, it’s simply offered to explain why the defendant
took certain subsequent actions. Is that fair?
‘‘[Defense Counsel]: Very good.
‘‘The Court: All right. Please call the jury.’’
After the defendant resumed the witness stand, he
testified that Calabrese told him: ‘‘ ‘Don’t say anything.
If I go down, you’re going down with me.’ ’’ The court
immediately provided a limiting instruction to the jury:
‘‘All right, at this point, ladies and gentlemen, that is a
statement that is offered for a specific purpose, and
that is a limited purpose, and so when you engage in
your deliberations, you can only consider it for that
limited purpose, and it is as follows: That statement,
as I understand it, is going to be offered to explain why
the defendant took certain subsequent actions. It is
not offered for the truth. It is not offered with the
expectation or the understanding that you believe that
those were the words that were spoken. All right. Go
ahead.’’ (Emphasis added.) It is the emphasized portion
of the court’s limiting instruction that the defendant
now contends violated his right to testify in his own
defense. He alleges that the court effectively under-
mined his credibility by giving this instruction.
First, we conclude that this claim is an evidentiary
matter. Our Supreme Court repeatedly has opined that
‘‘because an instructional error relating to general prin-
ciples of witness credibility is not constitutional in
nature; State v. Patterson, [276 Conn. 452, 469–71, 886
A.2d 777 (2005)]; the defendant would not be entitled
to review of any such claim under State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989) . . . .’’ (Internal
quotation marks omitted.) State v. Diaz, 302 Conn. 93,
114, 25 A.3d 594 (2011). Accordingly, we will not afford
Golding review to this evidentiary matter.
Moreover, in the present case, the defendant specifi-
cally voiced agreement with the court’s statement that
it would give a limiting instruction, and the defendant,
thereafter, failed to object to the precise instruction
given by the court. His claim, therefore, is unreviewable.
See State v. William C., 103 Conn. App. 508, 520 n.6,
930 A.2d 753 (‘‘[t]he defendant did not object at trial,
however, to the court’s instructions, and, therefore, the
unpreserved claim of instructional error is not review-
able’’), cert. denied, 284 Conn. 928, 934 A.2d 244(2007).18
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant was also convicted of murder and conspiracy to commit
robbery in the first degree. The trial court vacated his conviction of those
charges to avoid double jeopardy concerns, and imposed a total effective
sentence of sixty years incarceration, execution suspended after forty years,
thirty years mandatory minimum, with five years probation.
2
Although the defendant agreed with much of the state’s evidence, he
testified that he previously had sold the Ruger to Calabrese in December,
2011, for $600. He also testified that he had asked Calabrese and Patel to
purchase $20,000 worth of marijuana from Vitalis for him, and that he
would drop them off and pick them up. Approximately fifteen minutes after
dropping off the pair at Vitalis’ home, he received a frantic call from Patel
telling him to hurry up. Upon driving near the home, the defendant testified,
he saw the police and assumed a drug raid had occurred, and, in an effort
to mislead police, he sent a text message to Vitalis. He alleged that he had
no knowledge of the killing at that time.
3
‘‘[U]nder the Pinkerton doctrine, [see Pinkerton v. United States, 328
U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946)], a conspirator may be found
guilty of a crime that he or she did not commit if the state can establish
that a coconspirator did commit the crime and that the crime was within the
scope of the conspiracy, in furtherance of the conspiracy, and a reasonably
foreseeable consequence of the conspiracy.’’ (Emphasis omitted; internal
quotation marks omitted.) State v. Taylor, 177 Conn. App. 18, 20 n.1, 171
A.3d 1061 (2017), cert. denied, 327 Conn. 998, 176 A.3d 555 (2018).
4
Because we have concluded that the court did not act unreasonably in
denying the defendant’s additional request for a continuance, we need not
engage in harmless error analysis. See State v. Hamilton, supra, 228
Conn. 242.
5
The court also voiced concern that the defendant may have been exagger-
ating his symptoms, and it pointed to several specific instances where it
had to direct the defendant to speak into the microphone.
6
Of course, it would have been up to the court to rule on a request to
strike the prior testimony, but, in any event, the record reveals that the
defendant did not undertake such a request.
7
The defendant claims that certain symptoms of his illness, including his
coughing and illness related pauses in his speech, could have been viewed
as ‘‘tics’’ that the jury interpreted as indications that the defendant was
anxious or lying. The defendant’s argument ignores the fact that the jury
was told at the outset of the defendant’s testimony that he was not feeling
well and had laryngitis and bronchitis.
8
The defendant also requested that we review a video recording of the
defendant’s testimony made by a news organization. The defendant claims
that the recording would allow us to see for ourselves whether the defendant
adequately could be heard when he testified. We decline the defendant’s
invitation for several reasons. First, the recording was not marked as an
exhibit in the trial court and, therefore, is not part of the record before us.
Second, we have no way of knowing whether the recording accurately
depicts the vantage point of the jury. Third, the state does not dispute that
at least some jurors had difficulty hearing the defendant before the morning
recess. Finally, the court took steps to address the issue raised by the jury.
The defendant does not claim that the jury was unable to hear him after
those steps were taken. Nor does he claim that any inaccuracies in the read
back of his prior testimony were not immediately corrected or that the
court in any way restricted defense counsel’s ability to reask questions, the
answers to which counsel was concerned the jury might not have heard
the first time.
9
The sixth amendment to the United States constitution provides in rele-
vant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him . . . .’’ Although the
defendant does not clarify whether his claim is brought pursuant to the
sixth amendment to the federal constitution or article first, § 8, of our
state constitution, the defendant makes no claim that our state constitution
provides greater protections, and we, in fact, previously have held that the
confrontation clause in our state constitution does not provide greater rights
than those guaranteed by the federal constitution. See State v. Jones, 140
Conn. App. 455, 466, 59 A.3d 320 (2013) (‘‘there exists no legal basis that
suggests that our state constitution provides the defendant any broader
protection to confront a witness against him’’), aff’d, 314 Conn. 410, 102
A.3d 694 (2014).
10
In its brief, the state does not address the admission of Colwell’s testi-
mony. This is not entirely surprising given the manner in which the defen-
dant, in his principal brief, sets forth his argument regarding Calabrese’s out-
of-court statements. The defendant repeatedly uses the term ‘‘statements’’
to refer to the various statements made by Calabrese in the jailhouse
recording. He then makes only passing reference to Colwell’s testimony in
his brief when discussing the reliability of Calabrese’s ‘‘statements.’’ The
defendant also fails to include any harm analysis directed specifically to
Colwell’s testimony. Similarly, the defendant, in his reply brief, focuses on
‘‘[t]he out-of-court statement made by [Calabrese] to [his cellmate informant]
. . . .’’ In fact, Colwell is not mentioned a single time in the reply brief.
Finally, to the extent Calabrese’s statements were addressed at oral argu-
ment before this court, the defendant discussed only the statements made
in the jailhouse recording. Nevertheless, for the same reason that we hold
in part B of this section that any evidentiary objection to the admission of
the jailhouse recording was not preserved properly by the defendant, we
also hold that any claim that the trial court erred by admitting Colwell’s
testimony as to the statements made to her by Calabrese has been abandoned
by the defendant’s failure to raise any objection to such testimony at trial
after the court denied, without prejudice, his motion in limine.
11
Insofar as the defendant failed to renew his objection after the court
denied his motion to exclude without prejudice, we consider this claim
under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as
modified by In re Yasiel R., 317 Conn. 773, 120 A.3d 1188 (2015) (defendant
can prevail on claim of constitutional error not preserved at trial only if
following conditions are met: [1] record is adequate to review alleged claim;
[2] claim is of constitutional magnitude alleging violation of fundamental
right; [3] alleged constitutional violation exists and deprived defendant of fair
trial; and [4] if subject to harmless error analysis, state failed to demonstrate
harmlessness beyond reasonable doubt). We conclude, however, that the
statements made in the recording were not testimonial in nature, and that
this claim, therefore, is not of constitutional magnitude, thus failing Golding’s
second prong.
12
‘‘See United States v. Pelletier, 666 F.3d 1, 9–10 (1st Cir. 2011) (dual
inculpatory statement of one inmate to another nontestimonial) (collecting
cases from Fourth, Sixth, Eighth, Tenth, and Eleventh Circuit Courts of
Appeals), cert. denied, 566 U.S. 1023, 132 S. Ct. 2683, 183 L. Ed. 2d 48 (2012);
United States v. Pike, 292 Fed. Appx. 108, 112 (2d Cir. 2008) . . . (dual
inculpatory statement from one inmate to another who was confidential
informant nontestimonial where informant’s status unknown to declarant),
cert. denied, 555 U.S. 1122, 129 S. Ct. 959, 173 L. Ed. 2d 150 (2009), [and
cert. denied sub nom. Pattison v. United States, 555 U.S. 1122, 129 S. Ct.
957, 173 L. Ed. 2d 150 (2009)]; United States v. Underwood, 446 F.3d 1340,
1346–48 (11th Cir. 2006) (dual inculpatory statements of one inmate to
another nontestimonial), cert. denied, 549 U.S. 903, 127 S. Ct. 225, 166 L.
Ed. 2d 179 (2006).’’
13
‘‘Decisions of the Second Circuit Court of Appeals, although not binding
on us, are particularly persuasive. Turner v. Frowein, 253 Conn. 312, 341,
752 A.2d 955 (2000); see also State v. Spencer, 268 Conn. 575, 610, 848 A.2d
1183 (opinions of Second Circuit entitled to significant deference), cert.
denied, 543 U.S. 957, 125 S. Ct. 409, 160 L. Ed. 2d 320 (2004).’’ (Internal
quotation marks omitted.) State v. Miller, 95 Conn. App. 362, 382 n.13, 896
A.2d 844, cert. denied, 279 Conn. 907, 901 A.2d 1228 (2006).
14
To the extent that the defendant also argues that even if the statements
were nontestimonial, their admission still violated his right of confrontation,
we reject this claim as inconsistent with our law. See State v. Smith, supra,289 Conn. 618 (‘‘[n]ontestimonial statements . . . are not subject to the
confrontation clause’’); State v. Anwar S., 141 Conn. App. 355, 361, 61
A.3d 1129 (‘‘[h]earsay statements that are nontestimonial in nature are not
governed by the confrontation clause, and their admissibility is governed
solely by the rules of evidence’’ [internal quotation marks omitted]), cert.
denied, 308 Conn. 936, 66 A.3d 499 (2013).
15
The defendant argues in his reply brief that his evidentiary claim is
preserved properly because he did not need to again raise his objection at
trial because ‘‘no additional information arose.’’ This assertion is not correct.
At the time the court rendered its preliminary ruling, neither it nor the
parties had the benefit of the informant’s testimony. The situation at trial
was different when the state offered the recording after the defendant had
stipulated that a foundation for its admission had been laid and the informant
provided additional foundational testimony before the state offered it into
evidence. See generally this part of the opinion. The defendant chose not
to conduct any examination of the informant before the statement was
admitted into evidence. To the contrary, defense counsel stated that he had
‘‘[n]o objection’’ to the introduction of the statement. The defendant thus
made no attempt to seek a definitive ruling from the court on the basis of
either the record at trial or the additional testimony he could have procured
from the informant. Consequently, not only did the defendant fail to preserve
the claim he now raises on appeal, he abandoned the claim at trial.
16
The death penalty prospectively was repealed by the legislature in 2012.
See Public Acts 2012, No. 12-5. Our Supreme Court, thereafter, on August
25, 2015, in State v. Santiago, 318 Conn. 1, 122 A.3d 1 (2015), declared the
death penalty unconstitutional for previous convictions as well.
17
See State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as
modified by In re Yasiel R., 317 Conn. 773, 120 A.3d 1188 (2015).
18
During oral argument before this court, the defendant argued that he
properly preserved this claim by raising an objection to a similar limiting
instruction given in the court’s final instruction to the jury. We disagree. In
its final instruction the court stated, ‘‘there was testimony by the defendant
that Michael Calabrese made a statement to him about, if I go down, you’re
going down with me, or words to that effect. That was offered for a limited
purpose. That was to show the effect of such a statement on the defendant;
it is not to be considered by you for the truth of those statements or for
you to conclude that those statements were made in those words.’’ After
the defendant objected on the ground that the jury was charged incorrectly
that it could not ‘‘conclude that those statements were made,’’ the court
offered the defendant an opportunity to submit a corrective charge to the
court. After the luncheon recess, defense counsel confirmed to the court
that he no longer was seeking that the jury be recharged on this issue. Thus,
any claim that the defendant might have had that the jury was charged
incorrectly explicitly was waived by counsel when he declined the opportu-
nity to have the jury recharged.