State v. Jackson ( 2014 )

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STATE OF CONNECTICUT v. TIREA JACKSON
(AC 35294)
DiPentima, C. J., and Keller and Mihalakos, Js.
Argued November 22, 2013—officially released May 20, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Thim, J.)
John L. Cordani, Jr., assigned counsel, for the appel-
lant (defendant).
Robin S. Schwartz, special deputy assistant state’s
attorney, with whom, on the brief, were John C. Smriga,
state’s attorney, and Margaret E. Kelley, senior assis-
tant state’s attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, Tirea Jackson, appeals
from the judgment of conviction, rendered after a jury
trial, of attempt to commit murder in violation of Gen-
eral Statutes §§ 53a-49 and 53a-54a (a), and assault in
the first degree in violation of General Statutes § 53a-
59 (a) (1). Also, the defendant appeals from the judg-
ment of conviction, rendered after a court trial, of crimi-
nal possession of a firearm in violation of General
Statutes § 53a-217 (a). The defendant claims that (1)
the trial court improperly admitted into evidence a letter
that had not been authenticated; (2) the court improp-
erly admitted certain uncharged misconduct evidence,
namely, testimony that he had sold illegal drugs to the
victim prior to the events at issue; (3) evidence of state-
ments made by an anonymous witness violated his con-
frontation clause rights; (4) the court improperly
admitted evidence related to recorded prison telephone
conversations of his in violation of his confrontation
clause rights; and (5) the prosecutor deprived him of
his right to due process by introducing evidence that
he invoked his right to remain silent after he had been
advised of his Miranda rights.1 We affirm the judgment
of the trial court.
The jury reasonably could have found the following
facts. On November 20, 2011, at or about 4 p.m., the
victim, Maria Guadalupe Upchurch, was in Bridgeport
to visit with her stepfather, who lived in Marina Village.
While walking to her stepfather’s residence, the victim
was approached by the defendant and his girlfriend,
Shaneeka Durham. The victim knew the defendant and
Durham well. On several occasions, beginning in the
summer of 2011, the victim bought illegal drugs from
the defendant, including heroin and marijuana. She con-
sidered the defendant a friend. Approximately one week
earlier, the victim purchased marijuana from the defen-
dant. The defendant and Durham accused the victim
of paying for the marijuana with a counterfeit $10 bill.
To assuage the defendant, the victim gave him a $10
bill that she had in her pocket. She then proceeded to
walk away.
As the victim walked away, she felt something behind
her. She turned to find the defendant pointing a shotgun,
which was wrapped in a garbage bag, at her head. The
defendant smirked at the victim and said, ‘‘I’m going
to shoot you, [b]itch, you’re dead . . . .’’ The victim
put her hand up, and the defendant discharged the shot-
gun in close proximity to her head, causing substantial
injury to the right side of her face, her right eye, and her
right hand. The victim fell to the ground. The defendant
stood above her, raised his shotgun, and said that if
she ‘‘said anything’’ she was ‘‘gonna be done.’’ While
the victim lay injured on the ground, the defendant
walked away from the scene. Thereafter, the victim
crawled to her stepfather’s residence, where she sum-
moned police and medical assistance. The victim told
the police that the defendant, whom she identified as
‘‘Real,’’ was the shooter.
After the jury returned its finding of guilt with regard
to the charges of attempt to commit murder and assault
in the first degree, the court addressed the criminal
possession of a firearm count. Referring to the evidence
presented during the trial as well as evidence related
to the defendant’s criminal history, the court found that
the defendant, a convicted felon, possessed a firearm
at the time of the commission of the crime. Accordingly,
the court found the defendant guilty of criminal posses-
sion of a firearm as charged. Following a sentencing
hearing, the court imposed a total effective sentence
of twenty years imprisonment. This appeal followed.
Additional facts will be set forth as necessary.
I
First, we address the defendant’s claim that the court
improperly admitted into evidence a letter that had not
been authenticated. We disagree.
The following additional facts are relevant to this
claim. During its case-in-chief, the state presented testi-
mony from Unique Lopez. Lopez testified that, in 2011,
she lived in Marina Village in Bridgeport and that she
was familiar with a person she identified as ‘‘Rell.’’ She
said she knew ‘‘Rell’’ by way of his former girlfriend,
Latoya Murray. During Lopez’ testimony, she identified
the defendant as the man she knew as ‘‘Rell.’’
Lopez testified that, approximately one week follow-
ing the shooting involving the victim, she spoke with
the police. Specifically, she testified that she was asked
by the police about her familiarity with ‘‘Rell,’’ and that,
among other things, she indicated to the police that she
knew him by way of his former girlfriend; that he ‘‘used
to hang out at Marina Village;’’ and that he had given her
his telephone number, which she shared with the police.
Thereafter, the prosecutor asked Lopez whether she
had received any letters from the defendant. Lopez
replied that she had received four such letters. Lopez
testified that she read the first letter before discarding
it, but that she had marked the other letters with the
notation, ‘‘return to sender.’’ Outside of the presence
of the jury, the state marked a handwritten letter and
an envelope with handwritten markings as exhibits for
identification purposes.
The letter is dated October 5, 2012, and states in
relevant part: ‘‘Pay for me[.] Dear Unique[.] Unique
what’s going on with u and Rod. Well I went to court
and I started picking out jury and I think they want u
show up in court but don’t go ok you can’t get in trouble
for that. Ur name was on my paper and they trying to
make you come and go on the stand. They don’t have
no evidence on me at all[.] The day I go to court 10-
11-12 and maybe Monday is unreason ur [wrapped] in
this[.] U told the investigat[ors] I be with her baby dad.
Don’t be [scared] ever things going be ok it going be
over real soon if see my baby mom stay low because
her mom said some bulshit to investigat[ors] when they
call her house in Stamford[.] Im trying come home
please do this keep it real[.] Tell A-V I said whatup I
hope the kid[s] doing good[.] Tell Latoya bulshitting
ass when I come home I’m not fucking with u and u
shited on me and we friends[.] Tell her what kill me
make me stronger[.] I know she got a man that fuck
up you did not write. You did not write the 10 month
I was here at all. Everybody gave me there ass to kiss.
Know I can shake the dirt off my shoulder LOL one
love ps Hope see you soon/Booker[.]’’ The envelope is
addressed to Lopez and the return address is from
‘‘Tirea Jackson 259678#, 1106 North Ave., BCC Bpt Ct
06604 CONN. 37A1-10 Cell.’’ The envelope bears a post-
mark stamp from Stamford on October 4, 2012.
By way of an offer of proof, which occurred on the
first day of trial, October 10, 2012, Lopez testified that
she had received these items at her home within the
preceding few days. She informed an inspector in the
prosecutor’s office that she had received a letter from
the defendant, and provided the letter and the envelope
to the prosecutor. She testified that the letter arrived
in a sealed envelope and that she believed the letter
was from ‘‘Rell.’’ Lopez testified that she did not know
a person by the name of ‘‘Booker,’’ and that she did
not know if any of the letters at issue, despite bearing
the defendant’s return address, truly were from the
defendant because she ‘‘[was] just going by what the
envelope says.’’
The defendant’s attorney argued that the evidence did
not demonstrate that either the letter or the envelope
originated from the defendant. The defendant’s attorney
noted that the letter was not signed by the defendant
and that Lopez was unable to do more than speculate
as to its origin. The defendant’s attorney argued, as
well, that the letter was ‘‘highly prejudicial’’ to the
defense. The prosecutor asserted that the envelope bore
the defendant’s name and return address; the letter was
mailed to Lopez’ home; the letter was dated October 5,
2012, and referred to the status of the present trial,
specifically, jury selection; and the letter referred to
Lopez’ anticipated appearance at trial. On the basis of
the foregoing, the prosecutor argued that the issue of
whether the defendant had authored the letter was a
question of fact for the jury.
After hearing the offer of proof, the court agreed with
the state. The court stated: ‘‘We have the return address
on the envelope, we have the address on the envelope
. . . addressed to the witness [who] received it sealed,
and opened it and brought it in to [the prosecutor’s
office] and said this is a letter I received. The letter
refers to the jury selection process. You know, I think
there’s sufficient indicia of authorship, so the objection
is overruled. It’s up to the jury to decide in the end.’’
During her subsequent testimony before the jury,
Lopez stated that she recognized the letter and the
envelope as having been from the defendant, that she
had received them three or four days earlier and that,
after contacting the prosecutor’s office, she brought
them with her to court that day. Lopez was asked how
she knew that the letter was from the defendant. She
testified that it was mailed to her home, in a sealed
envelope, and that the envelope bore the defendant’s
name and return address. The letter was published to
the jury. The state relied on the letter as evidence that
the defendant had contacted Lopez and had asked her
not to testify.2
The defendant does not claim that the letter was
not relevant to an issue before the jury. Rather, the
defendant claims that the letter was not authenticated
because there was insufficient evidence to support a
finding that it was ‘‘authored by or at least coming
from or otherwise connected to [the defendant].’’ The
defendant argues that although the court relied on the
fact that the envelope bore his return address at prison
and that the letter referred to facts concerning the trial,
his address and the facts about jury selection were
public information, not information that could have
come only from him. The defendant argues that there
is no support for the proposition that letters mailed in
sealed envelopes that bear return addresses are self-
authenticating. Furthermore, the defendant asserts that
an examination of the letter readily gives rise to ques-
tions as to its authenticity. For example, the defendant
argues that the word ‘‘Booker’’ appears at the conclu-
sion of the letter, only the envelope bears the defen-
dant’s real name, the handwriting on the envelope ‘‘is
manifestly different from that on the letter,’’ the date
on the letter is one day after the postmark date on the
envelope, and, although the letter bears a Bridgeport
return address, it appears to have been postmarked in
Stamford. The defendant asserts that the admission of
the letter constituted reversible error.
‘‘To the extent [that] a trial court’s admission of evi-
dence is based on an interpretation of the Code of
Evidence, our standard of review is plenary. For exam-
ple, whether a challenged statement properly may be
classified as hearsay and whether a hearsay exception
properly is identified are legal questions demanding
plenary review. . . . We review the trial court’s deci-
sion to admit [or exclude] evidence, if premised on
a correct view of the law, however, for an abuse of
discretion. . . . In determining whether there has been
an abuse of discretion, the ultimate issue is whether
the court . . . reasonably [could have] conclude[d] as
it did.’’ (Citations omitted; internal quotation marks
omitted.) State v. Davis, 298 Conn. 1, 10–11, 1 A.3d 76
(2010). Here, there is no argument or indication that the
court misinterpreted the law. Accordingly, we examine
whether the court properly applied the relevant eviden-
tiary principles to the evidence at issue.
‘‘The requirement of authentication as a condition
precedent to admissibility is satisfied by evidence suffi-
cient to support a finding that the offered evidence is
what its proponent claims it to be.’’ Conn. Code Evid.
§ 9-1 (a). ‘‘It is well established that [a]uthentication is
. . . a necessary preliminary to the introduction of
most writings in evidence. . . . In general, a writing
may be authenticated by a number of methods, includ-
ing direct testimony or circumstantial evidence. . . .
Both courts and commentators have noted that the
showing of authenticity is not on a par with the more
technical evidentiary rules that govern admissibility,
such as hearsay exceptions, competency and privilege.
. . . Rather, there need only be a prima facie showing
of authenticity to the court. . . . Once a prima facie
showing of authorship is made to the court, the evi-
dence, as long as it is otherwise admissible, goes to the
jury, which will ultimately determine its authenticity.’’
(Internal quotation marks omitted.) State v. Garcia, 299
Conn. 39, 57–58, 7 A.3d 355 (2010); see also State v.
Rosado, 52 Conn. App. 408, 426–27, 726 A.2d 1177 (1999)
(authentication requirement satisfied when there is suf-
ficient information to establish that letter had been
written pursuant to defendant’s consent or authori-
zation).
We agree with the state that there was a prima facie
showing that the letter was what the state claimed it
to be, namely, a letter sent from the defendant to Lopez.
The state made a showing that the letter arrived in a
sealed envelope that was addressed to Lopez and bore
the defendant’s name, inmate number and return
address in prison. The envelope was postmarked on a
date in which the defendant was incarcerated. Lopez,
who knew the defendant and had received other letters
from him prior to receiving the letter at issue, was
familiar with the contents of the letter and testified as
to her belief that the defendant sent the letter to her.
This is significant because the contents of the letter
were not limited to an impersonal request that Lopez
not testify, but dealt with other intimate matters that
the finder of fact readily could infer would not widely
be known outside of the relationship of the defendant
and Lopez. Additionally, the contents of the letter
revealed information about the prosecution of the
state’s case that would have been known by the defen-
dant and, as the state correctly asserts, would likely
have been known only by persons with intimate knowl-
edge of trial matters, such as the defendant.3 Specifi-
cally, the letter referred to jury selection as well as
Lopez being a potential witness for the state.
In State v. John L., 85 Conn. App. 291, 298–302, 856
A.2d 1032, cert. denied, 272 Conn. 903, 863 A.2d 695
(2004), this court rejected a claim that a trial court
improperly had admitted into evidence two letters that
were retrieved from a defendant’s computer. It was not
in dispute that the letters were not handwritten, the
letters were not signed by the defendant, and that others
with access to the defendant’s computer could have
written the letters or altered the date on the letters.
Id., 300. This court, relying on the proposition that in
authenticating the letters the state could rely on circum-
stantial evidence, including the content of the letters
and the circumstances surrounding their discovery, all
of which supported a finding that they were authored
by the defendant, upheld their admission into evidence.
Id., 302. As in John L., there was ample circumstantial
evidence to support a finding that the letter at issue in
the present case, though not signed by the defendant,
was sent by him to Lopez.
As discussed previously, the defendant points to facts
that weigh against a finding that the letter originated
from him or that it was sent on his behalf. These argu-
ments mirror the tenor and substance of the defendant’s
cross-examination of Lopez concerning the letter as
well as the closing arguments made by the defense
during trial. The defendant’s arguments against a find-
ing that the letter constituted consciousness of guilt
evidence were fodder for the jury’s consideration, but
they merely related to the weight of the evidence rather
than its admissibility. The state, in proffering the letter,
was not obliged to demonstrate beyond any doubt that
the letter originated from the defendant. ‘‘The propo-
nent need only advance evidence sufficient to support
a finding that the proffered evidence is what it is claimed
to be. Once this prima facie showing is made, the evi-
dence may be admitted and the ultimate determination
of authenticity rests with the fact finder. . . . [C]ompli-
ance with Section 9-1 (a) does not automatically guaran-
tee that the fact finder will accept the proffered
evidence as genuine. The opposing party may still offer
evidence to discredit the proponent’s prima facie show-
ing.’’ (Internal quotation marks omitted.) Conn. Code
Evid. § 9-1 (a), commentary.
The gist of the defendant’s claim is that the state
failed to produce compelling evidence that the defen-
dant authored the letter or that it was sent on his behalf.
Presumably, this evidence would relate to the circum-
stances surrounding the writing of the letter. By couch-
ing his claim against authentication in such terms, the
defendant urges us to place a nearly insurmountable
barrier to the admission of such documents, for it would
require the presentation of evidence that, one readily
may presume, typically would be known only to the
author of the writing. Our law, instead, permits such
writings to be authenticated by means of direct and
circumstantial evidence. Here, the written words on the
envelope and the letter, as well as the circumstances
surrounding them, supported a finding that the letter
was what the state claimed it to be. Accordingly, we
conclude that the court’s ruling reflected a sound exer-
cise of its discretion.
II
Next, the defendant argues that the court improperly
admitted certain uncharged evidence, namely, testi-
mony that he had sold illegal drugs to the victim prior
to the events at issue. We disagree.
The record reveals the following relevant facts. After
the court granted the defendant’s motion for notice
of uncharged misconduct evidence, the state provided
notice to the defendant and the court that, among other
evidence, it intended to introduce evidence that the
defendant sold marijuana to the victim. The defendant’s
attorney stated: ‘‘Your Honor, we simply state for the
record . . . I think it’s prejudicial to the defendant.’’
The court stated that it had reviewed the arrest warrant
and that the evidence was relevant to the issue of the
victim’s ability to identify the defendant as the perpetra-
tor of the offense. The court stated: ‘‘I believe it will
explain how it is that the witness knows the defendant,
so I believe it’s admissible. We may have an objection
later on but—okay. . . . [L]et’s proceed.’’ Thereafter,
neither party addressed the court further regarding
this evidence.
During the state’s case-in-chief, the state elicited evi-
dence that the defendant had sold illegal drugs to the
victim. The prosecutor asked the victim ‘‘what type of
interaction [she had] with the defendant in the summer
of 2011?’’ The victim testified that on several occasions
beginning in the summer of 2011, she ‘‘had bought
drugs’’ from the defendant and that they became ‘‘like
associates, friends . . . .’’ The prosecutor asked the
victim what kind of drugs she had purchased, to which
the victim replied that she had bought marijuana and
heroin from the defendant. The victim testified that, in
the beginning of this relationship, she typically bought
illegal drugs from the defendant, in Marina Village, two
or three times each week, but ‘‘then it broke down to
probably once or twice a week.’’ The victim testified
that she purchased $10 in marijuana from the defendant
approximately one week prior to the events at issue
and, as stated previously in this opinion, the incident
was precipitated by a dispute over the form of payment.
Evidence of the defendant’s drug selling was pre-
sented during the examination of other witnesses, as
well. Durham testified that she and the defendant knew
the victim, in part, because the victim purchased ‘‘weed
and crack’’ from the defendant. Officer Luis Pomales,
a first responder to the crime scene on November 20,
2011, testified that the victim stated to him that, prior
to the shooting, the defendant accused her of giving
him a counterfeit $10 bill during a marijuana purchase
that occurred one week earlier. Pomales said that,
according to the victim, the defendant demanded
payment.
The defense attempted to cast doubt on the victim’s
identification of the defendant as the perpetrator of the
crime. During closing argument, the prosecutor referred
to the fact that the state bore the burden of demonstra-
ting that the defendant was the perpetrator. In argu-
ment, the prosecutor discussed the evidence of the
defendant’s drug selling conduct and, consistent with
that evidence, referred to the defendant as a drug seller.4
On appeal, the defendant argues that evidence that
he sold drugs should have been excluded because it
‘‘severely prejudiced’’ the defense, the court did not
deliver an instruction limiting the jury’s consideration
of this uncharged misconduct evidence, the state elic-
ited and used this evidence only to attack his character,
the state adequately could have demonstrated the basis
of the victim’s ability to identify him as the perpetrator
of the crime without referring to his drug dealing, and
‘‘the court should have understood the state’s specious
ploy and excluded the specific evidence that [he] met
with [the victim] to deal drugs.’’ (Emphasis in original.)
Furthermore, the defendant argues that the state’s dis-
closure of the uncharged misconduct evidence was
untimely and should have been excluded on that
ground.
Although the defendant states in his brief that the
court admitted the evidence ‘‘over defense objection,’’
the brief does not specify the nature of that objection.
The defense did not file a pretrial motion in limine to
preclude the evidence. Beyond the statement of the
defendant’s attorney, prior to the presentation of evi-
dence, that the evidence of the defendant’s sale of mari-
juana to the victim was ‘‘prejudicial,’’ an issue
concerning which the court contemplated hearing a
further objection during the course of the trial, the
defense did not voice any objection to the state’s inquir-
ies into the defendant’s drug selling conduct, the testi-
monial evidence concerning such conduct, or the state’s
arguments concerning such conduct. There was no
objection that was based on the timeliness of the state’s
disclosure of uncharged misconduct evidence. There
was no objection on this ground to the content of the
state’s closing argument.5 There was no objection to
the court’s failure to deliver a limiting instruction with
regard to the evidence at issue or its failure to curtail
the state’s inquiries or argument. Consequently, the only
ruling occasioned by the defense with regard to this
evidence occurred prior to the presentation of evidence,
when the court found that the victim’s anticipated testi-
mony as to her purchases of illegal drugs from the
defendant was relevant to evaluating her identification
of the defendant.
In most circumstances, ‘‘[w]e do not review claims
raised for the first time on appeal.’’ State v. Williams,
146 Conn. App. 114, 144, 75 A.3d 668, cert. granted on
other grounds, 310 Conn. 959, 82 A.3d 626 (2013). Here,
the defendant does not invoke any type of extraordinary
review for the aspects of his claim that were not pre-
served at trial. ‘‘When a party raises a claim for the first
time on appeal, our review of the claim is limited to
review under either the plain error doctrine as provided
by Practice Book § 60-5, or the doctrine set forth in
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823
(1989). . . . This court often has noted that it is not
appropriate to engage in a level of review that is not
requested. . . . When the parties have neither briefed
nor argued plain error [or Golding review], we will not
afford such review.’’ (Internal quotation marks omit-
ted.) State v. Patterson, 143 Conn. App. 804, 808, 70
A.3d 198, cert. denied, 310 Conn. 913, 76 A.3d 630 (2013).
At trial, the defendant’s attorney asserted merely that
evidence that the defendant sold marijuana to the victim
was ‘‘prejudicial.’’ As a preliminary matter, this general
comment is unavailing on its face because ‘‘all adverse
evidence is prejudicial to the defense.’’ State v. VanAl-
len, 140 Conn. App. 689, 697, 59 A.3d 888, cert. denied,
308 Conn. 921, 62 A.3d 1134 (2013). To the extent that
the statement fairly may be said to have apprised the
court of an objection on the ground of unfair prejudice;
see Conn. Code Evid. § 4-3 (‘‘[r]elevant evidence may
be excluded if its probative value is outweighed by the
danger of unfair prejudice’’ [emphasis added]); we are
not persuaded that the court improperly concluded that
the evidence was not unfairly prejudicial to the defense.
‘‘In evaluating whether the court properly ruled that
the uncharged misconduct evidence was admissible,
we look to the evidence presented to the court at the
time it made that ruling. See State v. Harris, 32 Conn.
App. 476, 481 n.4, 629 A.2d 1166 (‘[w]e are bound to
evaluate the propriety of the trial court’s rulings on the
basis of the facts known to the court at the time of
its rulings’), cert. denied, 227 Conn. 928, 632 A.2d 706
(1993).’’ (Footnote omitted.) State v. Allen, 140 Conn.
App. 423, 434, 59 A.3d 351, cert. denied, 308 Conn. 934,
66 A.3d 497 (2013).
At the time it made its ruling, the court had reviewed
the arrest warrant. As reflected in the court file, the
application for an arrest warrant included an affidavit
in which a police officer averred that the police had
information from the victim that the shooting was inci-
dent to a dispute concerning the allegedly counterfeit
$10 bill that the victim gave to the defendant incident
to her purchase of marijuana from him. As stated pre-
viously, the prosecutor, in disclosing the uncharged
misconduct evidence, indicated simply that the state
intended to present evidence that the defendant sold
marijuana to the victim. The court concluded that the
evidence was admissible because it was relevant to
the issue of identity, but the court suggested that the
defendant could raise further objections related to the
evidence during the trial.
We already have set forth the standard of review for
evidentiary claims in part I of this opinion. Turning to
the law concerning uncharged misconduct, we observe
that ‘‘[e]vidence of other crimes, wrongs or acts of a
person is inadmissible to prove the bad character or
criminal tendencies of that person.’’ Conn. Code Evid.
§ 4-5 (a). ‘‘Evidence of other crimes, wrongs or acts of
a person is admissible for purposes . . . 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.’’ Conn.
Code Evid. § 4-5 (b).
The court reasonably determined that evidence that
the defendant sold marijuana to the victim was highly
probative of the disputed factual issue of identity. This
evidence was not tangential to the state’s theory of the
case, but integral to the crime; the evidence strongly
supported a finding that the victim accurately identified
the defendant as the perpetrator. Certainly, because the
evidence demonstrated that the defendant was engaged
in illegal conduct, it tended to cast him in a negative
light. Yet, given the high degree of probative value of
the evidence, we are persuaded that the court, at the
early stage of the proceeding at which it was asked to
consider the admissibility of the evidence, did not abuse
its discretion by permitting the state to introduce it.
Although the defendant, before this court, raises a num-
ber of nuanced arguments against the admission of the
evidence, he failed to accept the court’s invitation to
revisit the issue at trial and, thus, did not raise any of
those concerns there.
III
Next, the defendant claims for the first time on appeal
that evidence of statements made by an anonymous
witness violated his confrontation clause rights. We
conclude that the defendant’s claim is unavailing.
During her testimony, the victim testified that the
gun used by the defendant during the events at issue
was in a plastic bag with tape wrapped around it. The
victim testified that she thought the bag containing the
gun was green, but that she was not sure because she
was focused on the defendant at the time. The victim
testified that the defendant was standing a few feet
away from her when he discharged his shotgun in close
proximity to her head, but she recalled looking at the
handle of the gun and the plastic wrapped around it.
The victim testified that she was not familiar with guns,
but she said the defendant used a large shotgun, one that
she testified was consistent with the shotgun ultimately
admitted into evidence, which was, at the time of her
testimony, marked for identification purposes as a
state’s exhibit.
The state presented testimony from Pomales, who,
as a first responder to the crime scene, spoke with
the victim and immediately began an investigation to
apprehend the shooter. Pomales testified that the victim
told him at the crime scene that the shooter brandished
a shotgun inside of a black garbage bag. Pomales
recalled that he was receiving information from the
victim at the time that she was receiving medical treat-
ment in an ambulance at the crime scene. Pomales said
that he related the information that he learned from
the victim, including a description of the suspect, to
other police officers, including Sergeant Ronald Mer-
cado. He related information as necessary by using his
radio handset.
Pomales testified that he remained at the crime scene
after the victim had been transported to the hospital.
Pomales stated that, after he went to an apartment that
the victim identified as being the place from which the
shooter emerged with the shotgun, Mercado informed
him that he had been in contact with an anonymous
tipster who ‘‘gav[e] him a description of a party that
the firearm was handed to’’ as well as an address of an
apartment in Marina Village where the shotgun was
located. Pomales said that on the basis of his training
and experience, ‘‘speedy information’’ of this nature is
relied on by the police. Upon arriving at the apartment,
the police were given consent to search. Incident to
their search, the police discovered and seized a shotgun
and a red towel that were concealed in a black garbage
bag in a closet. The police also discovered and seized
two live rounds, found in the garbage bag, as well as
a spent shell casing, found inside the shotgun itself.
Absent objection, the court admitted all of these items
into evidence.
Mercado testified that on the day of the shooting,
he traveled to the crime scene in Marina Village after
hearing a radio transmission concerning the shooting.
He said that ‘‘[a]t that point, I headed to that area along
with my men to canvass for a suspect of the shooting.’’
He said that when he arrived, emergency responders
still were tending to the victim and that he was ‘‘solely
focusing on trying to find a suspect who just committed
a shooting armed with a firearm.’’ He said he learned
a description of the victim and that, while patrolling
and looking for the shooter, he got an update from an
anonymous witness who told one of his officers ‘‘that
the suspect . . . [h]anded off the shotgun to a female,
who then, in turn, handed the shotgun off to a young
Hispanic male named Carlos.’’ Mercado related this
information to other police officers and indicated that,
‘‘at this point, we’re now looking for a young Hispanic
male who’s possibly armed with a shotgun.’’ He said
that one of his officers discovered the person for whom
they were searching, a Hispanic male named Juan Car-
los Cardona, and then went to his residence, which was
close to the crime scene. At the residence, Mercado
spoke to Cardona’s mother, who gave consent to search
the residence. Later, the shotgun and plastic bag,
marked as exhibits at trial, were discovered in a closet
of the residence.
Cardona testified that he lived in Marina Village on
the date of the shooting, November 20, 2011. After he
heard gunshots, he walked outside of his residence to
investigate, at which time he encountered a black
female that he recognized from his neighborhood. At
her request, Cardona took possession of the black gar-
bage bag and the shotgun, which were consistent with
the items marked as state’s exhibits at trial, and con-
cealed them in a closet at his residence. He testified
that although he did not examine the items, he recog-
nized from the weight and shape of the items that he
had been given a shotgun.
On appeal, the defendant emphasizes that the testi-
mony of Pomales and Mercado was essential to demon-
strate the chain of custody of the shotgun, which was
admitted into evidence. Also, the defendant emphasizes
that the evidence concerning the shotgun, including
evidence related to its condition and the types of car-
tridges used, played a prominent role in the state’s the-
ory of the case. The defendant asserts that the testimony
of Pomales and Mercado concerning the anonymous
witness who provided information to the police was
inadmissible hearsay. The defendant correctly acknowl-
edges that before the trial court he did not object to
this testimony. The defendant, claiming that the admis-
sion of the alleged hearsay statements of the anony-
mous witness, who did not testify at trial, violated his
sixth amendment right to confrontation, seeks review
under State v. Golding, supra, 213 Conn. 239–40, and,
in the alternative, asserts that the admission of the
testimony constituted plain error. See Practice Book
§ 60-5.
The state asserts that the invocation of Golding is
unavailing because (1) the defendant’s claim is eviden-
tiary in nature; (2) if the claim is constitutional in nature,
the record is inadequate to review the issue of whether,
under Crawford v. Washington, 541 U.S. 36, 53–54, 124
S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the declarant’s
statements were testimonial in nature; and (3) if the
record is adequate to review the claim under Crawford,
the defendant’s rights were not violated because the
statements were not testimonial in nature. Finally, the
state asserts that any error in admitting the testimony
was harmless beyond a reasonable doubt. Because the
record reflects that any error in admitting the testimony
was harmless beyond a reasonable doubt, we conclude
that the defendant is unable to prevail under Golding.
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. In the absence of any one of these
conditions, the defendant’s claim will fail. The appellate
tribunal is free, therefore, to respond to the defendant’s
claim by focusing on whichever condition is most rele-
vant in the particular circumstances.’’ (Emphasis in
original; footnote omitted.) State v. Golding, supra, 213
Conn. 239–40.
‘‘The sixth amendment to the constitution of the
United States guarantees the right of an accused in a
criminal prosecution to be confronted with the wit-
nesses against him. This right is secured for defendants
in state criminal proceedings. . . . It is well estab-
lished that a violation of the defendant’s right to con-
front witnesses is subject to harmless error analysis
. . . and only if the error was not harmless may the
defendant prevail on his Golding claim. . . . The state
bears the burden of proving that the error is harmless
beyond a reasonable doubt. . . . [T]he test for
determining whether a constitutional [impropriety] is
harmless . . . is whether it appears beyond a reason-
able doubt that the [impropriety] complained of did not
contribute to the verdict obtained.’’ (Citations omitted;
internal quotation marks omitted.) State v. Stovall, 142
Conn. App. 562, 581, 64 A.3d 819, cert. granted on other
grounds, 309 Conn. 917, 70 A.3d 40 (2013).
The defendant accurately states that the primary
import of the testimony at issue, concerning the state-
ments of the anonymous witness who provided informa-
tion to the police, was that it helped the state lay a
foundation for the admission of the shotgun and the
shotgun shells discovered by the police in Cardona’s
residence. As a preliminary matter, however, this testi-
mony was not critical to the admission of the shotgun
evidence.6 There was testimony about the shooting and
the police discovery of the shotgun in Cardona’s resi-
dence, which was near the crime scene. As described
previously, the victim testified that the shotgun pre-
sented at trial was consistent with the shotgun that the
defendant pointed at her and discharged in the direction
of her face. Likewise, Cardona testified that the shotgun
and the bag in which it was concealed, presented as
trial exhibits, were consistent with the shotgun and bag
handed to him by a female at or about the time of the
shooting. This testimony made it reasonable for the
finder of fact to find that the gun was used by the
shooter and justified the admission of the evidence.
Moreover, the shotgun evidence was not critical to
the state’s case. The defendant was convicted of attempt
to commit murder, assault in the first degree, and crimi-
nal possession of a firearm. To obtain a conviction, the
state was not required to present the shotgun used by
the defendant in the commission of any of the offenses
or any physical evidence definitely proving that he pos-
sessed or used a shotgun at the time of the crimes. With
regard to attempt to commit murder, as charged, it was
sufficient for the state to present evidence that the
defendant, intending to cause the victim’s death, inten-
tionally engaged in conduct that constituted a substan-
tial step in a course of conduct planned to culminate
in the victim’s death. With regard to assault, as charged,
it was sufficient for the state to present evidence that
the defendant intended to cause serious physical injury
to the victim and that he caused such injury by means
of a shotgun. With regard to criminal possession of a
firearm, as charged, it was sufficient for the state to
present evidence that the defendant possessed a firearm
and that he previously had been convicted of the crime
of sale of narcotics.
The victim’s testimony was compelling evidence to
support a finding beyond a reasonable doubt that the
defendant possessed a shotgun on the date of the shoot-
ing and used it in such a manner that he committed the
offenses of attempt to commit murder and assault in
the first degree. The evidence strongly reflected that
the victim was familiar with the defendant prior to the
shooting and that she had an opportunity to observe
that he was the perpetrator. The defendant asserts that
‘‘[this court] can have no confidence that the jury would
have found intent to kill or intent to seriously injure
without [the admission of the shotgun].’’ Yet, the vic-
tim’s own testimony concerning the defendant’s con-
duct—her description of the shotgun and the manner
in which the defendant used it to inflict serious physical
injury to her—is highly probative of his criminal mental
state. The evidence concerning her injuries strongly
supported a finding that he used a shotgun precisely
in the violent manner described in her testimony.
Apart from the victim’s testimony concerning the
identification of the defendant as the perpetrator, Dur-
ham testified that the defendant, who was her ‘‘off and
on’’ boyfriend as well as the father of her child, sold
drugs to the victim and that he was at Marina Village
on November 20, 2011. Durham testified that the victim
and the defendant got into an argument that day, but
that she walked away from the scene.
Having reviewed the evidence presented in its
entirety, we are not persuaded that the evidence at
issue in the present claim had any effect on the outcome
of the trial. The statements of the anonymous witness
who provided information to the police were not essen-
tial to the admission of the shotgun evidence, and the
shotgun evidence was not essential to the state’s case.
Under these circumstances, any impropriety in the
admission of the evidence was harmless beyond a rea-
sonable doubt. Accordingly, the claim fails under Gold-
ing’s fourth prong.7
IV
Next, the defendant claims that the court improperly
admitted evidence related to his recorded prison tele-
phone conversations in violation of his confrontation
clause rights. We decline to review this unpreserved
claim.
The following additional facts are relevant to our
analysis of this claim. At trial, on the first day that
evidence was presented, the prosecutor stated that the
state intended to present uncharged misconduct evi-
dence in the form of tape-recorded telephone conversa-
tions involving the defendant. The prosecutor stated
that these conversations were initiated by the defendant
in the ‘‘last couple of weeks’’ prior to trial, while he
was incarcerated awaiting trial. Further, the prosecutor
stated that the conversations ‘‘concern[ed] induce-
ments for the complaining witness not to testify.’’ The
defendant’s attorney indicated that although he was in
possession of notes related to these recorded telephone
conversations, he wanted an opportunity to listen to
the recordings themselves. The court, noting that the
evidence appeared to be admissible, agreed to this
request.
The next day, the prosecutor indicated that, in the
presence of the jury during his examination of a witness,
he intended to play a recording of one telephone conver-
sation that was recorded on September 12, 2012. The
defendant’s attorney objected on the specific grounds
of relevancy and hearsay. The defendant’s attorney
stated to the court that it was, in fact, the defendant’s
voice on the tape. He argued, however, that the defen-
dant’s statements during the conversation did not tend
to reflect his consciousness of guilt and that the state-
ments of a third party during the conversation consti-
tuted hearsay. Outside of the presence of the jury, the
court heard the recording. The prosecutor stated that
the recording reflected a conversation initiated by the
defendant from prison to his home and that, in the
conversation, a third party attempted to calm the defen-
dant by telling him ‘‘that he found the girl and he’d
break her off $500 if she don’t go . . . .’’ The prosecutor
stated that the telephone call was made less than one
month prior to the trial and that descriptive references
to ‘‘the girl’’ in the conversation strongly supported a
finding that the conversation concerned the victim. The
prosecutor stated that this was strong evidence of the
defendant’s consciousness of guilt.
The court agreed with the state and overruled the
defendant’s objection. The court stated that it would
deliver a limiting instruction to the effect that the jury
was to consider the defendant’s statements solely as
evidence of consciousness of guilt. The court delivered
such an instruction at the time that it permitted the
state to play the recorded conversation, and it reiterated
the instruction in its charge.8 The prosecutor played
the recording during the testimony of David Lavery,
a telephone monitor employed by the Department of
Correction’s security division.
On appeal, the defendant neither reiterates the evi-
dentiary objection raised at trial, one based on rele-
vancy and hearsay, nor challenges the adequacy of the
court’s limiting instructions. Instead, the defendant
claims that the court improperly admitted the taped
conversation because the state did not provide an ade-
quate foundation for the admission of the evidence. The
defendant argues that although the state attempted to
authenticate the recorded conversation by means of
Lavery’s testimony, Lavery did not actually record the
telephone conversation, but merely reviewed taped
conversations, purportedly of the defendant, that he
had requested from the defendant’s prison. The defen-
dant goes on to assert that ‘‘the State should have pro-
duced the prison employee that actually taped [his
telephone] calls and gathered the tapes [of such
recorded conversations].’’ Thus, vaguely couching his
claim as one arising under the confrontation clause,
the defendant argues that ‘‘[he] was deprived of the
right to confront the true witness against him.’’
In summary fashion, the defendant asserts that he is
entitled to Golding review of this unpreserved claim.
The defendant’s Golding claim is unavailing because
his claim is not constitutional in nature. In essence,
the defendant argues that the state failed to present a
witness through which the taped conversation could
be authenticated properly. Before the trial court, the
defendant’s attorney stated to the trial court that the
evidence at issue was, in fact, a recording of the defen-
dant. The defendant did not object to the evidence on
the ground of authentication, and he is precluded from
raising such an unpreserved evidentiary claim for the
first time on appeal. His claim that he was deprived of
the right to confront a hypothetically competent witness
who should have been called to testify by the state is
a veiled attempt to raise a claim related to authentica-
tion in the guise of a confrontation clause claim.9
Accordingly, we decline to review the claim under
Golding.
V
Finally, the defendant claims that the prosecutor
deprived him of his right to due process by introducing
evidence that he invoked his right to remain silent after
he had been advised of his Miranda rights. We disagree.
The following additional facts are relevant to this
claim. During the state’s case-in-chief, the state pre-
sented testimony from Sean Ronan, a detective with
the Bridgeport Police Department. Ronan was one of
the police officers who responded to the Marina Village
crime scene on November 20, 2011. Ronan testified
that, as part of his investigation, he interviewed the
defendant following his arrest. Responding to questions
about the course of the police investigation into the
shooting, Ronan testified that, prior to the interview at
police headquarters, he provided the defendant with a
written waiver of Miranda rights form. Ronan testified
that he read the provisions set forth on the form, and
that the defendant wrote his initials next to each provi-
sion and signed the form. The form was introduced into
evidence. One of the provisions on the form, read aloud
in court by Ronan, stated: ‘‘Now that I have been advised
of my rights and that I fully understand these rights, I
am willing to be interviewed and answer questions. I
do not wish the presence of an attorney at this time. I
am waiving these rights [freely] and voluntarily without
any fear, threat or promises being made to me.’’
The following colloquy between the prosecutor and
Ronan occurred:
‘‘Q. Now, after advising [the defendant] of his rights
and having him sign that, did you talk to him at all as
a result of him having waived those rights?
‘‘A. I asked him if he would talk to me about the
incident that happened in Marina Village.
‘‘Q. And what was [the defendant’s] response when
you said that to him?
‘‘A. He said, I don’t know what you’re talking about,
I’ve never been to Marina. I don’t hang around there.
‘‘Q. And did he mention anything about any type of
firearm or gun?
‘‘A. He said he never owned or shot a gun.
‘‘Q. And other than that information, did [the defen-
dant] provide you with any additional information?
‘‘A. No, the next question I asked he refused to answer
and said, you know, we’ll go back upstairs.
‘‘Q. And did the interview terminate at that time?
‘‘A. Yes, ma’am.
‘‘Q. And have you had any further contact with the
defendant after that point?
‘‘A. None. No, ma’am.’’
During closing argument, the prosecutor referred to
the statements that the defendant made to Ronan fol-
lowing his arrest. The prosecutor argued in relevant
part: ‘‘You’re also going to hear an instruction about
statements, the defendant’s statements that can be con-
sidered by you, and I direct your attention to Detective
Sean Ronan, who testified yesterday, who, at the time
Detective Ronan met with the defendant after the arrest,
that the defendant [made] statements, I don’t know
what you’re talking about, I’ve never even been in
Marina Village and I’ve never owned or fired a gun. And
His Honor is going to talk to you about a concept known
as consciousness of guilt, and consciousness of guilt,
you may, if you chose to believe, consider statements
that were made of actions by the defendant if you decide
that they reflect a consciousness of guilt.’’ Immediately
thereafter, the prosecutor drew the jury’s attention to
evidence relevant to consciousness of guilt, specifically,
the letter received by Lopez that we discussed in part
I of this opinion, and the recorded telephone conversa-
tion that we discussed in part IV of this opinion.
At trial, the defendant’s attorney did not object to
the prosecutor’s inquiries of Ronan or the prosecutor’s
reference, made during closing argument, to the evi-
dence of the statements made by the defendant to
Ronan during the post-Miranda interrogation. On
appeal, the defendant argues that, in violation of Doyle
v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 49 L. Ed. 2d
91 (1976), the prosecutor purposely elicited testimony
from Ronan during the state’s case-in-chief about his
invocation of his right to remain silent and, during clos-
ing argument, ‘‘cleverly ask[ed] the jury to consider that
only a guilty person would act to invoke his Miranda
rights and refuse to answer the police’s questions.’’ The
statements on which the defendant relies are set forth
previously. The defendant seeks Golding review of this
unpreserved claim that, he asserts, deprived him of
his due process right to a fair trial and, accordingly,
warrants the reversal of his conviction. The claim is
reviewable under Golding because the record discloses
the factual circumstances relevant to the defendant’s
claim and the claimed violation is of constitutional mag-
nitude. See, e.g., State v. Boyd, 295 Conn. 707, 751, 992
A.2d 1071 (2010), cert. denied, U.S. , 131 S. Ct.
1474, 179 L. Ed. 2d 314 (2011); State v. Camacho, 92
Conn. App. 271, 279, 884 A.2d 1038 (2005), cert. denied,
276 Conn. 935, 891 A.2d 1 (2006).
Our Supreme Court has stated: ‘‘In Doyle [v. Ohio,
supra, 426 U.S. 610] . . . the United States Supreme
Court held that the impeachment of a defendant through
evidence of his silence following his arrest and receipt
of Miranda warnings violates due process. The court
based its holding [on] two considerations: First, it noted
that silence in the wake of Miranda warnings is insolu-
bly ambiguous and consequently of little probative
value. Second and more important[ly], it observed that
while it is true that the Miranda warnings contain no
express assurance that silence will carry no penalty,
such assurance is implicit to any person who receives
the warnings. In such circumstances, it would be funda-
mentally unfair and a deprivation of due process to
allow the arrested person’s silence to be used to
impeach an explanation subsequently offered at trial.
. . . The court . . . reaffirmed Doyle’s reasoning in
Wainwright v. Greenfield, 474 U.S. 284, 290, 106 S. Ct.
634, 88 L. Ed. 2d 623 (1986), in which it held that the
defendant’s silence following his arrest and receipt of
Miranda warnings could not be used at trial to rebut
his defense of insanity. The court reasoned: The point
of the Doyle holding is that it is fundamentally unfair
to promise an arrested person that his silence will not
be used against him and thereafter to breach that prom-
ise by using the silence to impeach his trial testi-
mony. . . .
‘‘This court has recognized that it is also fundamen-
tally unfair and a deprivation of due process for the
state to use evidence of the defendant’s post-Miranda
silence as affirmative proof of guilt . . . and has noted
that post-Miranda silence under Doyle does not mean
only muteness; it includes the statement of a desire to
remain silent, as well as of a desire to remain silent
until an attorney has been consulted. . . .
‘‘This court has also recognized that [r]eferences to
one’s invocation of the right to remain silent [are] not
always constitutionally impermissible . . . [and are]
allowed . . . in certain limited and exceptional cir-
cumstances. . . . Specifically, the state is permitted
some leeway in adducing evidence of the defendant’s
assertion of that right for purposes of demonstrating
the investigative effort made by the police and the
sequence of events as they unfolded . . . as long as
the evidence is not offered to impeach the testimony of
the defendant in any way.’’ (Citations omitted; internal
quotation marks omitted.) State v. Lockhart, 298 Conn.
537, 580–82, 4 A.3d 1176 (2010).
As set forth previously, the state presented Ronan’s
testimony in its case-in-chief that, during his interview
of the defendant, while the defendant was in police
custody and after he had been advised of and had
waived his Miranda rights, the defendant answered
some questions about the crime but refused to answer
other questions, thereby terminating the interview. The
record does not reflect that the prosecutor elicited evi-
dence about how the defendant exercised his right to
terminate the interview or what question or questions
the defendant had declined to answer.
In arguing that a Doyle violation occurred, the defen-
dant relies on State v. Montgomery, 254 Conn. 694,
710–16, 759 A.2d 995 (2000). In Montgomery, the state
presented evidence during its case-in-chief that the
defendant, prior to his arrest and while he was not in
police custody, spoke with the police after being
advised of his Miranda rights. Id., 710–12. The state
presented evidence that the defendant answered sev-
eral questions about his involvement in a killing, but
at one point during the interview when he was asked
whether the victim’s death had been premeditated or
a crime of passion, ‘‘[he] did not respond verbally to
[the detective’s] question, but tears welled up in his
eyes, he began to shake and signaled for a nurse to
terminate the interview. The police then asked the
defendant no further questions.’’ Id., 712. Our Supreme
Court concluded that the introduction of this evidence
ran afoul of Doyle. Id., 715–16. The court held that ‘‘the
evidence adduced by the state regarding the defendant’s
refusal to answer any further questions was fundamen-
tally unfair and thus in violation of his rights under the
fifth and fourteenth amendments to the United States
constitution.’’10 Id.
The state attempts to distinguish Montgomery on the
ground that, unlike the situation in Montgomery, the
record in the present case does not reflect that the state
presented evidence of how the defendant invoked his
right to remain silent or what question or questions the
defendant declined to answer. The state argues that the
present case is analogous to State v. Moye, 177 Conn.
487, 495–99, 418 A.2d 870, vacated and remanded on
other grounds, 444 U.S. 893, 100 S. Ct. 199, 62 L. Ed.
2d 129, on appeal after remand, 179 Conn. 761, 409 A.2d
149 (1979), in which our Supreme Court held that the
introduction of evidence by the state that a defendant,
on the advice of counsel, had terminated giving a postar-
rest statement to the police did not violate Doyle. In
reaching this conclusion, our Supreme Court reasoned
that, in Moye, the state presented this evidence of post-
arrest silence not for a constitutionally repugnant pur-
pose—such as to impeach the defendant’s credibility
or to demonstrate his criminal liability—but to counter
the defendant’s unambiguous reliance on the unfinished
exculpatory statement he gave to the police, and ‘‘to
show the investigative effort made by the police and
the sequence of events as they unfolded . . . .’’ Id., 499.
In the present case, unlike Montgomery, the prosecu-
tor did not elicit evidence concerning the manner in
which the defendant terminated the interview or what
question or questions the defendant declined to answer.
This is significant because the detailed information con-
cerning the defendant’s exercise of his right to remain
silent in Montgomery tended to suggest that the line
of inquiry related to the crime caused the defendant
emotional pain because of his criminal culpability.
Thus, there was a risk in Montgomery that the manner
in which the defendant exercised his right to remain
silent provided a means by which the state could have
demonstrated his guilt because, essentially, it was evi-
dence of silence in the face of accusation.
Here, the evidence related to the cessation of the
interview lacked such details, but appeared, instead, to
be part of the narrative of how the police investigation
proceeded, which is permissible under Moye. In the
present case, however, unlike the circumstances pre-
sent in Moye, there was no logical reason why the state
should have presented the evidence related to the defen-
dant’s invocation of his right to remain silent. Stated
otherwise, this case does not present the ‘‘ ‘limited and
exceptional circumstances’ ’’ in which courts have per-
mitted references to a defendant’s silence. State v. Lock-
hart, supra, 298 Conn. 581. Although it may be said
that the state presented evidence that the defendant
terminated the interview and chose to remain silent, it
does not appear that this evidence was elicited. The
prosecutor did not ask Ronan to discuss the cessation
of the interview, but Ronan divulged the defendant’s
invocation of his right in response to the prosecutor’s
seemingly innocuous question about what information
the defendant had provided to the police during his
interview.11 Moreover, contrary to the defendant’s char-
acterization of what occurred at trial, there is no indica-
tion that the state referred to the evidence that he
terminated the interview, either in questioning or argu-
ment. Thus, while we acknowledge that the state pre-
sented evidence that rarely is permissible, we do not
conclude that the state ran afoul of Doyle because there
is no indication in the record that the state either pre-
sented or utilized the evidence at issue, concerning the
defendant’s termination of the interview, for a forbid-
den purpose.
Even were we to conclude that the evidence pre-
sented by the state related to the defendant’s exercise
of his right to remain silent was fundamentally unfair
to the defendant, we readily conclude that any violation
of Doyle was harmless beyond a reasonable doubt.
‘‘Doyle violations are . . . subject to harmless error
analysis. . . . The harmless error doctrine is rooted in
the fundamental purpose of the criminal justice system,
namely, to convict the guilty and acquit the innocent.
. . . Therefore, whether an error is harmful depends
on its impact on the trier of fact and the result of the
case. . . . [B]efore a federal constitutional error can
be held harmless, the court must be able to declare a
belief that it was harmless beyond a reasonable doubt.
. . . The state bears the burden of demonstrating that
the constitutional error was harmless beyond a reason-
able doubt. . . . That determination must be made in
light of the entire record [including the strength of the
state’s case without the evidence admitted in error].
. . .
‘‘A Doyle violation may, in a particular case, be so
insignificant that it is clear beyond a reasonable doubt
that the jury would have returned a guilty verdict with-
out the impermissible question or comment upon a
defendant’s silence following a Miranda warning. Under
such circumstances, the state’s use of a defendant’s
[post-Miranda] silence does not constitute reversible
error. . . . The [error] has similarly been [found to be
harmless] where a prosecutor does not focus upon or
highlight the defendant’s silence in his cross-examina-
tion and closing remarks and where the prosecutor’s
comments do not strike at the jugular of the defendant’s
story. . . . The cases wherein the error has been found
to be prejudicial disclose repetitive references to the
defendant’s silence, reemphasis of the fact on closing
argument, and extensive, strongly-worded argument
suggesting a connection between the defendant’s
silence and his guilt.’’ (Internal quotation marks omit-
ted.) State v. Bereis, 117 Conn. App. 360, 377–78, 978
A.2d 1122 (2009); see also State v. Brunetti, 279 Conn.
39, 84–85, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212,
127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007). ‘‘[W]hen there
is but a single reference at trial to the fact of defendant’s
silence, the reference is neither repeated nor linked
with defendant’s exculpatory story, and the exculpatory
story is transparently frivolous and evidence of guilt is
otherwise overwhelming, the reference to defendant’s
silence constitutes harmless error. . . . The [error] has
similarly been [found to be harmless] where a prosecu-
tor does not focus upon or highlight the defendant’s
silence in his cross-examination and closing remarks
and where the prosecutor’s comments do not strike at
the jugular of the defendant’s story.’’ (Citations omitted;
internal quotation marks omitted.) State v. Silano, 204
Conn. 769, 781, 529 A.2d 1283 (1987).
In the present case, the prosecutor did not focus
on or highlight the defendant’s silence in any manner.
Although Ronan testified that the defendant refused to
answer and terminated the interview, the prosecutor
merely asked if the interview had terminated at that
time. The defendant suggests that the prosecutor, dur-
ing closing argument, attempted to link the defendant’s
silence with consciousness of guilt and, thus, referred
to the evidence for a forbidden purpose. We have
reviewed the relevant portion of the argument, set forth
previously, and it is unreasonable to afford the argu-
ment such a sinister interpretation. Without any refer-
ence to the fact that the defendant had terminated the
interview, the prosecutor merely referred to the state-
ments that the defendant provided to Ronan. Certainly,
the prosecutor’s reference to this evidence was not
improper. The prosecutor then invited the jury to con-
sider evidence of the defendant’s consciousness of guilt
and in so doing referred explicitly to evidence that was
admitted for that purpose.
In the present case, there were no references by the
state to the evidence at issue, concerning the defen-
dant’s termination of the police interview. When the
court instructed the jury concerning consciousness of
guilt evidence, it did not refer to the evidence that
the defendant had terminated a police interview. The
evidence came in the form of an isolated response to
an innocuous question asked by the prosecutor related
to the police interview. The argument was not used for
an improper impeachment purpose because the defen-
dant did not testify. Nor was the evidence linked to any
exculpatory story advanced by the defense. There was
no emphasis on this evidence and, as discussed pre-
viously, no attempt by the state to use the evidence as
proof that the defendant was criminally liable.
Furthermore, the case against the defendant was
strong. The state presented evidence that the defendant
discharged his shotgun in close proximity to the victim’s
head, thereby causing her injury. The victim, who was
familiar with the defendant, unambiguously identified
the defendant as the shooter both prior to and during
the trial. The defendant urges us to conclude that there
were reasons to doubt the victim’s overall strength as a
witness. Yet, there was evidence, apart from the victim’s
testimony, that the defendant was in Marina Village on
the day of the shooting as well as evidence, apart from
the victim’s testimony, that he was acquainted with the
victim and was, in fact, her drug supplier. This evidence
provided a strong basis on which the finder of fact
could conclude that the victim had not misidentified
the perpetrator, but correctly identified a person with
whom she was familiar.
In light of the evidence presented at trial, the isolated
nature of the evidence of the defendant’s silence, and
the fact that the prosecutor did not in any manner use
the evidence improperly, we conclude that any Doyle
violation in this case was harmless beyond a reasonable
doubt. Accordingly, we conclude that the defendant is
unable to prevail under the third and fourth prongs
of Golding.
The judgment is affirmed.
In this opinion the other judges concurred.
1
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
2
During closing argument, the prosecutor argued in relevant part: ‘‘And
I direct your attention, ladies and gentlemen, to a letter, state’s exhibit 4,
which was admitted when Miss Unique Lopez testified. A letter, ladies and
gentlemen, that was sent by this defendant to Miss Lopez as you were being
selected for a jury. A letter imploring Miss Lopez not to come and testify.’’
3
The record reflects that when the state filed its proposed list of witnesses
on October 1, 2012, it did not identify Lopez as a potential state’s witness.
Nor did the state identify Lopez as a potential state’s witness during jury
selection on October 1 and October 2, 2012. The defendant’s attorney identi-
fied a ‘‘Univa Lopez’’ as a potential defense witness during jury selection
on October 1, 2012, and a ‘‘Unika Lopez’’ as a potential defense witness
during jury selection on October 2, 2012. Between October 2, 2012, and
October 4, 2012, the date on which the letter at issue was postmarked, it
does not appear that the state disclosed publicly that it intended to call
Lopez as a witness. Thus, the state reasonably suggests that only persons
with intimate knowledge of trial matters would have been privy to the fact
that following jury selection and prior to October 4, 2012, the state had
decided to call Lopez as a witness and had made such disclosure to the
defense.
4
During the state’s initial closing argument, the prosecutor stated in rele-
vant part: ‘‘We also have, ladies and gentlemen, fact, there’s been no evidence
to refute that the defendant during [the] time period from the summer of
2011 and up until November of 2011 was selling drugs in Marina Village.
How do we know that? We know that from Maria Guadalupe Upchurch,
who came in here and told you quite frankly that that’s how much she knew
the defendant. She knew the defendant from purchasing drugs over a several
month period. But we also know that from two other witnesses . . . that
weren’t directly harmed . . . by the defendant’s actions in this case. And
we know that by Unique Lopez, who came in here and reluctantly agreed
that when she spoke to the police approximately one week after [the crime
occurred] she did tell them that the defendant, she knew the person as Rell,
was a person who had been selling drugs in Marina Village. And we also
know that, ladies and gentlemen, through Shaneeka Durham, who is the
mother of the defendant’s child, who was with the defendant in Marina
Village on that day, on November 20, 2011. But she also through tears told
us that the defendant would sell drugs at that location. Fact. No evidence
to refute it whatsoever.’’
During the state’s rebuttal closing argument, the prosecutor discussed
factors related to an assessment of the victim’s credibility. The prosecutor
stated in relevant part: ‘‘She never got to her [step]father’s that day, at least
to help him. And so when you look at [her history of drug use], she doesn’t
deny that she used drugs before, she said she didn’t remember [if she had
used drugs the day prior to the shooting]. She’s a drug user; she came in
here and told you that, and that man is the drug seller, the drug seller who
sold those drugs to Maria Guadalupe.’’
5
Unpreserved prosecutorial impropriety claims are reviewable on appeal
under State v. Stevenson, 269 Conn. 563, 572–73, 849 A.2d 626 (2004). We
note that, although the defendant has labeled the prosecutor’s interrogation
of witnesses and closing arguments as an improper attempt to attack his
character, he does so merely in the context of his evidentiary claim. He has
not presented this court with a claim that prosecutorial impropriety deprived
him of his due process right to a fair trial. See State v. Williams, 204 Conn.
523, 540, 529 A.2d 653 (1987).
6
The record reveals that the shotgun and the shells found with the shotgun
were introduced during Pomales’ testimony. Pomales testified prior to Mer-
cado and Cardona and, with regard to the anonymous witness, merely
testified that Mercado had been in contact ‘‘with an anonymous caller who
was giving him a description of a party that the firearm was handed to.’’
7
For the reasons set forth in the foregoing Golding analysis, we likewise
reject the defendant’s argument that plain error exists. In light of the strength
of the state’s case and the role that the evidence at issue played in the
context of the entire trial, we do not conclude that any error in its admission
warrants a reversal of the judgment.
8
During its charge, the court stated in relevant part: ‘‘I want to say a few
comments about the telephone call that was played [for] you. The recording
of a call allegedly made by the defendant was placed into evidence. The
recording may be considered only as it may show a consciousness of guilt
on the part of the defendant and for no other purpose. It is permissible in
a criminal case for the state to show that conduct or statements made by
a defendant after the time of an alleged offense were influenced by the
criminal act; that is, the conduct or statements show a consciousness of
guilt. Such statements do not raise a presumption of guilt. If you find the
defendant made statements that were influenced by the crimes, you may,
but are not required to, infer that he was acting from a guilty conscience.’’
9
In his brief, the defendant refers in general terms to ‘‘the testimonial
hearsay provided by Lavery,’’ but his claim in substance is that the state
failed to present a witness—unlike Lavery—who could have testified with
regard to the method by which his telephone conversations were recorded
and that such a failure deprived him of his right to confrontation.
10
Although the defendant does not rely on Montgomery for this aspect
of its holding, the court in Montgomery went on to conclude that the Doyle
violation was harmless beyond a reasonable doubt. State v. Montgomery,
supra, 254 Conn. 717–21.
11
In his principal appellate brief, the defendant suggests that the prosecu-
tor deliberately introduced the evidence at issue, stating: ‘‘Indeed, the prose-
cutor knew that [the defendant] only answered two questions [during the
police interview], but proceeded to purposefully elicit additional testimony
that he refused to answer any further questions.’’ The defendant, without
referring to any evidence in the record, characterizes the prosecutor’s con-
duct in this manner, but he does not raise a claim of prosecutorial impropriety
in this appeal.