State v. Morales ( 2016 )

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STATE OF CONNECTICUT v. RONALDO MORALES
(AC 37121)
Keller, Mullins and Schaller, Js.
Argued October 19, 2015—officially released March 29, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Kavanewsky, J.)
John L. Cordani, Jr., assigned counsel, for the appel-
lant (defendant).
Emily D. Trudeau, deputy assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Ann F. Lawlor, senior assistant state’s
attorney, for the appellee (state).
Opinion
MULLINS, J. The defendant, Ronaldo Morales,
appeals from the judgment of conviction, rendered after
a jury trial, of strangulation in the second degree in
violation of General Statutes § 53a-64bb, unlawful
restraint in the first degree in violation of General Stat-
utes § 53a-95 (a), threatening in the second degree in
violation of General Statutes § 53a-62 (a) (1), and
assault in the third degree in violation of General Stat-
utes § 53a-61 (a) (1).1 On appeal, the defendant claims
the following: (1) his conviction of unlawful restraint,
assault, and strangulation violate his constitutional
right against double jeopardy; (2) his jury trial and due
process rights were violated when the trial court found
at sentencing that the state had proven that the unlawful
restraint, assault, and strangulation charges were based
on distinct and separate incidents; (3) his constitutional
rights were violated when the state introduced at trial
evidence of unwarned statements and other conduct;
and (4) the trial court erred in admitting prior uncharged
misconduct evidence on the issue of intent. We affirm
the judgment of the trial court.
The jury reasonably could have found the following
relevant facts. In October, 2012, after having been in a
romantic relationship since earlier that year, the defen-
dant and the victim began living together at the victim’s
uncle’s house at 704 Garfield Avenue in Bridgeport.
They lived there with the victim’s son, the victim’s uncle,
and the uncle’s friend. In December, 2012, their relation-
ship began to sour. Consequently, in early July, 2013,
the defendant began sleeping in a room in the basement
instead of in the victim’s bedroom.
In the early evening of July 17, 2013, the defendant
and the victim were alone at home. The defendant went
upstairs and knocked on the victim’s bedroom door.
After knocking at the door for some time, the defendant
demanded that she let him in. She eventually complied.
Once inside the victim’s bedroom, the defendant sat
next to the victim on the side of her bed, and they
discussed their relationship. At some point in the con-
versation, the defendant punched the victim on the side
of her face. After he punched her, he then began choking
her, and she lost consciousness. When she regained
consciousness, he was on top of her. He expressed
surprise that she was not dead and told her that he
would have to kill her to prevent her from calling the
police. He produced a knife and held it to her back. He
then gave the knife to her and told her to kill him. She
threw the knife out of reach and begged him to leave.
Then, the victim tried to leave the house. She reached
the front door, which was at the bottom of the stairs
leading up to her bedroom, but the defendant leapt
down the stairs, intercepted her, and prevented her
from leaving the house. He then dragged her back
upstairs. He forced her back into the bedroom, where
she offered him money in exchange for leaving but told
him that she did not have the money with her in the
house. He replied that he would take her to the bank.
The defendant took the victim’s keys to her car and
drove them to the bank.
When they arrived at the bank, which was closed,
the defendant accompanied the victim to the automated
teller machine. After she withdrew cash from the
machine, he demanded that she give it to him, but she
replied that she would give it to him in the car. When
they returned to the car, she pretended to climb in until
she saw that he was in the car. Once she saw that he
was inside the car, she fled to a nearby Walgreen’s
pharmacy where an employee called the police at her
request. The defendant drove away in the victim’s car
and was arrested thereafter.
The record also reveals the following relevant facts
and procedural history. The state charged the defendant
by way of an eight count substitute long form informa-
tion. At the conclusion of the defendant’s jury trial, he
requested and received a jury instruction as to the lesser
included offense of strangulation in the second degree.
The jury returned a verdict of guilty on the charges of
strangulation in the second degree, unlawful restraint,
threatening, and assault.
At the defendant’s sentencing hearing, the court, sua
sponte, raised the issue of the propriety under § 53a-
64bb (b)2 of the jury’s guilty verdict on the strangulation,
unlawful restraint and assault charges. In response, the
state summarized the evidence presented at trial,
arguing that it established three separate incidents out
of which the charges respectively arose. The defendant
countered that the verdict on those charges could not
be sustained without knowing whether the jury actually
found that each charge arose from a separate incident.3
The court concluded that there was ‘‘enough evidence
to support jury verdicts on each of these counts as
separate and discrete incidents.’’ In accordance with
the jury’s verdict, the court imposed a total effective
sentence of eight years imprisonment. This appeal fol-
lowed. Additional facts will follow as necessary.
I
The defendant first claims that his conviction of and
punishment for strangulation in the second degree,
assault, and unlawful restraint violated his constitu-
tional right against double jeopardy. He argues that his
conviction of assault and unlawful restraint must be
vacated because (1) those charges arose from the same
act or transaction as the charge of strangulation in the
second degree, and (2) § 53a-64bb (b) expresses the
legislature’s intent to treat strangulation in the second
degree as the same offense as assault and unlawful
restraint for double jeopardy purposes. We disagree.
Before discussing the merits of this claim, we note
that the defendant never raised a double jeopardy chal-
lenge in the trial court, and, therefore, his double jeop-
ardy claim was not preserved for appellate review. State
v. Thompson, 146 Conn. App. 249, 259, 76 A.3d 273 (‘‘[i]t
is well settled that [o]ur case law and rules of practice
generally limit this court’s review to issues that are
distinctly raised at trial’’ [internal quotation marks omit-
ted]), cert. denied, 310 Conn. 956, 81 A.3d 1182 (2013).
He also has not sought review of his unpreserved claim
pursuant to State v. Golding, 213 Conn. 233, 567 A.2d
823 (1989).4 Nevertheless, we will consider his double
jeopardy claim because the record is adequate for our
review and the claim is of constitutional magnitude.
State v. Elson, 311 Conn. 726, 754–55, 91 A.3d 862 (2014)
(no need for affirmative request for Golding review if
record is adequate and claim is of constitutional magni-
tude); State v. Chicano, 216 Conn. 699, 704–705, 584
A.2d 425 (1990) (double jeopardy claim reviewable
under Golding), cert. denied, 501 U.S. 1254, 111 S. Ct.
2898, 115 L. Ed. 2d 1062 (1991), overruled in part on
other grounds by State v. Polanco, 308 Conn. 242, 248,
261, 61 A.3d 1084 (2013).
‘‘A defendant’s double jeopardy challenge presents a
question of law over which we have plenary review.
. . . The double jeopardy clause of the fifth amendment
to the United States constitution provides: [N]or shall
any person be subject for the same offense to be twice
put in jeopardy of life or limb. The double jeopardy
clause is applicable to the states through the due pro-
cess clause of the fourteenth amendment. . . . This
constitutional guarantee prohibits not only multiple tri-
als for the same offense, but also multiple punishments
for the same offense in a single trial. . . .
‘‘Double jeopardy analysis in the context of a single
trial is a two-step process. First, the charges must arise
out of the same act or transaction. Second, it must be
determined whether the charged crimes are the same
offense. Multiple punishments are forbidden only if
both conditions are met. . . .
‘‘Traditionally we have applied the Blockburger5 test
to determine whether two statutes criminalize the same
offense, thus placing a defendant prosecuted under
both statutes in double jeopardy: [W]here the same act
or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other
does not. . . . This test is a technical one and examines
only the statutes, charging instruments, and bill of par-
ticulars as opposed to the evidence presented at
trial. . . .
‘‘Our analysis of [the defendant’s] double jeopardy
[claim] does not end, however, with a comparison of
the offenses. The Blockburger test is a rule of statutory
construction, and because it serves as a means of dis-
cerning [legislative] purpose the rule should not be con-
trolling where, for example, there is a clear indication
of contrary legislative intent. . . . Thus, the
Blockburger test creates only a rebuttable presumption
of legislative intent, [and] the test is not controlling
when a contrary intent is manifest. . . . When the con-
clusion reached under Blockburger is that the two
crimes do not constitute the same offense, the burden
remains on the defendant to demonstrate a clear legisla-
tive intent to the contrary.’’ (Citations omitted; footnote
added; internal quotation marks omitted.) State v.
Wright, 319 Conn. 684, 689–90, 127 A.3d 147 (2015).
Finally, ‘‘[o]n appeal, the defendant bears the burden
of proving that the [convictions] are for the same
offense in law and fact.’’ (Internal quotation marks omit-
ted.) State v. Ferguson, 260 Conn. 339, 361, 796 A.2d
1118 (2002).
The defendant argues that in assessing whether multi-
ple charges arose from the same act or transaction, this
court is limited to reviewing only what the state has
alleged in its information. He contends that although
‘‘the state may indeed prosecute and punish a defendant
for multiple assaults and strangulations committed dur-
ing one continuous altercation,’’ to do so it must distin-
guish those charges from one another in the
information. Therefore, because in this case the state,
in its information, failed to distinguish temporally, geo-
graphically, or factually among the charges of strangula-
tion in the second degree, assault, and unlawful
restraint, they necessarily arose from the same act or
transaction.
Contrary to the defendant’s argument, we conclude
that we are not limited to a review of the state’s informa-
tion in order to determine whether the defendant’s
crimes arose from the same act or transaction. Our
review of the case law leads us to conclude that the
fact that the state charged him in the information with
committing the subject crimes on the same date and
at approximately the same time and place does not
dispose of this portion of the double jeopardy analysis;
rather, we are permitted to look at the evidence pre-
sented at trial. Upon reviewing that evidence, we con-
clude that the defendant has failed to prove that these
three charges arose from the same act or transaction.
As a result, we need not reach the second prong of the
double jeopardy analysis of whether the defendant’s
conviction of these three charges was a conviction of
the same offense.6
At the outset of our discussion, we acknowledge, as
the defendant points out, that ‘‘[i]t repeatedly has been
held that to determine whether two charges arose from
the same act or transaction, we look to the information,
as amplified by the bill of particulars, if any.’’ State v.
Mincewicz, 64 Conn. App. 687, 691, 781 A.2d 455, cert.
denied, 258 Conn. 924, 783 A.2d 1028 (2001) (citing,
inter alia, State v. Goldson, 178 Conn. 422, 424, 423 A.2d
114 [1979], and collecting cases). We also acknowledge
that our Supreme Court once cautioned courts making
this determination to be mindful that ‘‘[t]he [d]ouble
[j]eopardy [c]lause is not such a fragile guarantee that
prosecutors can avoid its limitations by the simple expe-
dient of dividing a single crime into a series of temporal
or spatial units. If separate charges explicitly addressing
different temporal aspects of the same conduct do not
avoid the double jeopardy clause, surely an information
and bill of particulars stipulating a single date and time
cannot do so.’’ (Internal quotation marks omitted.) State
v. Goldson, supra, 425, quoting Brown v. Ohio, 432 U.S.
161, 169, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977).
More recent case law, however, reveals that ‘‘[i]n
analyzing whether certain charges arise out of the same
act or transaction, our Supreme Court repeatedly has
examined the evidence submitted at trial. See, e.g., State
v. Brown, 299 Conn. 640, 653–54, 11 A.3d 663 (2011);
State v. Kulmac, 230 Conn. 43, 67–69, 644 A.2d 887(1994).’’ State v. Shenkman, 154 Conn. App. 45, 68 n.12,
104 A.3d 780 (2014), cert. denied, 315 Conn. 921, 107
A.3d 959 (2015); see also, e.g., State v. Miranda, 260
Conn. 93, 124, 794 A.2d 506, cert. denied, 537 U.S. 902,
123 S. Ct. 224, 154 L. Ed. 2d 175 (2002); State v. James
E., 154 Conn. App. 795, 834–35, 112 A.3d 791 (2015).
These cases demonstrate that our appellate courts have
looked beyond the information to consider the evidence
presented at trial to resolve the same transaction prong
of the double jeopardy analysis.
Thus, notwithstanding some older authority
appearing to restrict a reviewing court’s analysis to the
information, we conclude, on the basis of numerous
and generally more recent decisions of our appellate
courts, that we may resolve whether the defendant’s
crimes arose from the same transaction according to
whether, on the record before us, a distinct criminal
act formed the basis of each offense for which the
defendant was convicted and punished. See, e.g., State
v. Miranda, supra, 260 Conn. 124 (holding that although
state alleged continuous failure to protect from harm
that led to victim’s injuries, no double jeopardy violation
where record established that distinct act led to each
injury); accord State v. Beaulieu, 118 Conn. App. 1,
14, 982 A.2d 245 (holding that luring minor victim into
location to engage in sexual act and engaging in sexual
act with victim were separate acts for double jeopardy
purposes), cert. denied, 294 Conn. 921, 984 A.2d 68(2009); see also State v. Shenkman, supra, 154 Conn.
App. 68 n.12, and cases cited therein.
In the present case, the state alleged in the informa-
tion a course of conduct by the defendant that took
place over a short span of time at the victim’s uncle’s
house. At trial, the state presented evidence of discrete
acts that took place within that course of conduct.
Although the state charged the defendant with multiple
offenses arising from a course of conduct that occurred
during a short period of time at a single location, our
review of the record satisfies us that the jury reasonably
could have concluded that each charge was based on
a separate act committed with the requisite criminal
intent.
Previously in this opinion, we set forth the facts that
the jury reasonably could have found on the basis of
the evidence presented at trial. With respect to the
assault charge, the defendant’s punch to the victim’s
face when the two of them were seated next to each
other on the bed—and before any strangulation
occurred—provided a basis for finding him guilty of
assault that was separate from the subsequent act of
strangulation. There was testimony and other evidence
that the defendant, with intent to cause the victim physi-
cal injury, did cause her physical injury; see General
Statutes § 53a-61 (a) (1); when he punched her on the
side of her face. Specifically, upon looking in the mirror
after being punched, the victim testified, she noticed
that her ‘‘eyes were bad, [her] face was bad.’’ Addition-
ally, photographs of the victim in evidence exhibit bruis-
ing around her left eye. On the basis of the victim’s
testimony and the photographs depicting bruising to
her face, the jury properly could have concluded that
the defendant intentionally caused the victim physical
injury apart from the act of strangling her.7
With respect to the unlawful restraint charge, the
defendant’s conduct toward the victim by the front door
of the house, some time after he strangled her in her
bedroom, provided a basis on which to convict him of
unlawful restraint in the first degree that was indepen-
dent of the earlier act of strangulation. There was testi-
mony that he restrained the victim under circumstances
that exposed her to a substantial risk of physical injury;
see General Statutes § 53a-95 (a); when she tried to flee
the home. Specifically, the evidence showed that at
some point after the victim regained consciousness fol-
lowing the strangulation, she tried to leave through the
front door of the house, which was at the bottom of
the stairs from her bedroom. The defendant leaped to
the bottom of the stairs, grabbed her, and dragged her
back up the stairs to her bedroom. From this testimony,
the jury reasonably could have found that the defendant
exposed the victim to a substantial risk of physical
injury through conduct separate from the act of strangu-
lation.8
‘‘Although [d]ouble jeopardy prohibits multiple pun-
ishments for the same offense in the context of a single
trial . . . distinct repetitions of a prohibited act, how-
ever closely they may follow each other . . . may be
punished as separate crimes without offending the dou-
ble jeopardy clause. . . . The same transaction, in
other words, may constitute separate and distinct
crimes where it is susceptible of separation into parts,
each of which in itself constitutes a completed offense.
. . . [T]he test is not whether the criminal intent is one
and the same and inspiring the whole transaction, but
whether separate acts have been committed with the
requisite criminal intent and are such as are made pun-
ishable by the [statute].’’ (Emphasis omitted; internal
quotation marks omitted.) State v. Brown, supra, 299
Conn. 652; State v. Miranda, supra, 260 Conn. 122–23.
‘‘If a violation of law is not continuous in its nature,
separate indictments may be maintained for each viola-
tion. Thus, a distinct repetition of a prohibited act con-
stitutes a second offense and subjects the offender to an
additional penalty.’’ (Internal quotation marks omitted.)
State v. Snook, 210 Conn. 244, 261, 555 A.2d 390, cert.
denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603(1989). ‘‘The appropriate inquiry . . . [is] whether the
statute that the defendant was charged with violating
prohibited a continuous course of conduct or a distinct
act.’’ State v. Miranda, supra, 122.
It is clear that the present case does not involve
distinct repetitions of the same prohibited act; cf. e.g.,
id., 96 and n.1 (defendant charged with two counts of
first degree assault for separate acts of omission); but
the violation of distinct statutory provisions requiring
different mental states. As the foregoing discussion of
the evidence presented at trial demonstrates, however,
this is nevertheless a case in which ‘‘separate acts have
been committed with the requisite criminal intent and
are such as are made punishable by the [statutes].’’
(Emphasis omitted; internal quotation marks omitted.)
State v. Brown, supra, 299 Conn. 652.
Moreover, this court has construed the second degree
strangulation statute that the defendant was charged
with violating to prohibit a distinct act, not a continuous
course of conduct. ‘‘[T]he same incident to which [§ 53a-
64bb] refers is an incident of strangulation . . . not
an event or course of conduct in which an act of stran-
gulation occurs, but is preceded, followed or even
accompanied by other, separate acts of assault or
unlawful restraint not based, in whole or in part, upon
one or more acts of strangulation.’’ (Emphasis added.)
State v. Miranda, 142 Conn. App. 657, 663–64, 64 A.3d
1268 (2013), appeal dismissed, 315 Conn. 540, 109 A.3d
452 (2015) (certification improvidently granted). The
record in this case satisfies us that the jury reasonably
could have found the defendant guilty of assault and
unlawful restraint for discrete acts toward the victim
that were separate from the act of strangling her—albeit
that took place during a continuing course of conduct
in which the strangulation also occurred. Accordingly,
the defendant has not proved that his conviction of
those charges arose from the same act or transaction.
Because the defendant has failed to prove that his
conviction was based on the same act or transaction,
we may resolve his double jeopardy claim without
determining whether the conviction was for the same
offense. See State v. Marsala, 1 Conn. App. 647, 650,
474 A.2d 488 (1984) (once court concludes offenses at
issue did not arise out of same act or transaction, it
need not consider distinction between them). Because
the defendant’s claim of a double jeopardy violation is
unfounded, no constitutional violation exists that
deprived him of a fair trial, and his claim fails under
Golding.
II
The defendant next claims that the court violated his
right to a jury trial when, at sentencing, it ‘‘made factual
findings as to the existence of separate incidents’’ to
support his conviction of strangulation, unlawful
restraint, and assault, which ‘‘exposed [him] to an
increased range of penalties’’ in violation of the rule
enunciated in Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The state
counters that the court did not expose the defendant
to a greater sentence than the jury’s verdict did when
it merely reviewed the evidence to determine whether
it supported the jury’s guilty verdict on each of the
charges. We agree with the state.9
We note that although the defendant has not
requested Golding review, we will review his claim. See
State v. Elson, supra, 311 Conn. 754–55. The record is
adequate for review, as the trial court’s remarks are set
forth in the sentencing transcript, and a claim of a
violation of the right to a jury trial is of constitutional
magnitude. See id., 756. We conclude, however, that
the defendant cannot prevail on his claim because there
was no constitutional violation.
In Apprendi, the United States Supreme Court held
that ‘‘[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.’’ Id., 490.
‘‘Apprendi thus applies to factual findings that serve
to enhance a defendant’s maximum sentence beyond
that allowable under the verdict alone.’’ (Emphasis
added.) State v. Walker, 90 Conn. App. 737, 742, 881 A.2d
406, cert. denied, 275 Conn. 930, 883 A.2d 1252 (2005).
In the present case, at the defendant’s sentencing
hearing, the court considered whether the evidence
adduced at trial was sufficient to support the jury’s
guilty verdict as to the charges of strangulation, assault,
and unlawful restraint, and found that it did.10 Our rules
of practice expressly permit a trial court to make such
a finding. See Practice Book § 42-51 (‘‘[i]f the jury
returns a verdict of guilty, the judicial authority . . .
upon its own motion, shall order the entry of a judgment
of acquittal as to any offense specified in the verdict
. . . for which the evidence does not reasonably permit
a finding of guilty beyond a reasonable doubt’’). The
court then sentenced the defendant within the statutory
maximum permitted by each conviction.11
As the foregoing indicates, the court did not make
any factual findings prohibited under Apprendi because
it did not find any fact that enhanced the defendant’s
sentence beyond the statutory maximum permitted by
the jury’s verdict. Rather, it simply looked at the evi-
dence and concluded that the evidence supported the
jury’s verdict on each of the separate charges. Cf. e.g.,
State v. Bell, 283 Conn. 748, 810, 931 A.2d 198 (2007)
(before sentence enhancement is imposed, jury, not
sentencing court, must make finding that offender’s
extended incarceration would serve public interest).
Therefore, the defendant has failed to prove that a con-
stitutional violation occurred, and his Apprendi claim
accordingly fails at the third stage of Golding review.
III
The defendant next claims that ‘‘the state improperly
discredited [him] using evidence obtained in violation
of due process and Miranda12 in three instances during
the trial.’’ (Footnote added.) The defendant contends
that introduction of the following evidence at trial was
improper: (1) statements he made in response to custo-
dial interrogation without first being advised of his
Miranda rights; (2) the invocation of his right to remain
silent by refusing to answer questions during the postar-
rest booking process; and (3) the invocation of his right
against unreasonable search and seizure by his refusal
to remove his shirt so that police could photograph
scratch marks on his body.
The following additional facts and procedural history
are relevant to these claims. At trial, Officer Thomas
Harper of the Bridgeport Police Department testified
that in the early morning hours of July 18, 2013, he
responded to a call that a suspicious vehicle was parked
beneath a streetlight. Harper approached the car and
saw the defendant sleeping in the passenger seat. As
Harper tried to wake the defendant, the police radio
dispatcher reported that the car was stolen and con-
nected to an ongoing investigation into a possible sexual
assault and kidnapping.
When he had woken the defendant, who was some-
what disoriented, Harper ordered him to exit the car,
patted him down for weapons, handcuffed him, and
placed him in a patrol car. The defendant asked Harper
why he was being handcuffed. In response, Harper
asked the defendant what he was doing in the area.
The defendant replied that his friend lived nearby.
Harper then suggested that they have the friend come
outside to confirm the defendant’s reason for being in
the area. The defendant refused.
After Harper placed the defendant in the patrol car,
he contacted the dispatcher. The defendant matched
the dispatcher’s description of the suspect wanted for
sexual assault, kidnapping, and a stolen motor vehicle.
Harper consequently placed him under arrest. Harper
conceded that at no point did he ever advise the defen-
dant of his Miranda rights but testified that he had
not asked the defendant any questions regarding the
incident involving the victim.13
Harper then transported the defendant to the police
station for booking. When they arrived, the defendant,
who until then had been speaking English with Harper,
indicated that he did not speak English and refused to
answer Harper’s ‘‘pedigree’’ questions as to his name,
date of birth, social security number, height, weight,
and identifying physical characteristics. Harper sum-
moned a Spanish interpreter, who began translating
Harper’s questions. The defendant provided his home
address but refused to answer any further questions.
Although he repeatedly asked Harper in English why
he was under arrest, he continued to speak only Spanish
when Harper tried to ask him booking questions. Harper
testified that the defendant ‘‘would refuse to answer
any questions . . . [s]o he was uncooperative at that
point as far as just the regular intake procedures that
we do for every prisoner.’’
Harper had noticed scratch marks around the defen-
dant’s neck, chest, and arms and could tell that the
scratch marks continued underneath the defendant’s
shirt. When Harper and Officer Jeffrey Holtz attempted
to photograph those marks, the defendant refused to
be still or to allow them to remove his shirt. The officers
eventually obtained some photographs of the defendant
without removing his shirt.
On August 29, 2013, the defendant filed a motion to
suppress and a motion to suppress statements. The
boilerplate motions sought the suppression, inter alia,
of ‘‘statements . . . obtained through violation of the
defendant’s [f]ifth [a]mendment right against self-
incrimination without knowing and intelligent waiver
of that right.’’ The record does not reveal that there
ever was a hearing or a ruling on the motions.
Because the defendant did not object at trial to the
admission of this evidence, his claims are unpreserved.
The state argues that the defendant’s claims fail at both
the first and the third stages of Golding review. First,
the state argues that the record is inadequate because
the defendant did not pursue a motion to suppress any
of the evidence, the admission of which he now claims
was a constitutional violation. Because the defendant
merely cross-examined Harper and Holtz at trial regard-
ing their conduct instead of moving to suppress the
challenged evidence and allowing the trial court to take
evidence and make factual findings regarding its admis-
sibility, the state argues, the record is devoid of the
factual findings we need to review the defendant’s
claims. Additionally, the state argues that even if we find
that the record is adequate for review of the defendant’s
claims, those claims fail on the merits because the
defendant has not established the existence of a consti-
tutional violation. With this in mind, we consider each
of the defendant’s three claims in turn.
A
We first address the defendant’s claim that Harper
violated his due process rights by subjecting him to
custodial interrogation without first advising him of his
rights under Miranda. It is undisputed that the defen-
dant did not receive Miranda warnings. The defendant
claims that he was entitled to the warnings because he
was subject to custodial interrogation. He argues that
the record is adequate for this court to review this
claim because all of the necessary facts are ‘‘clear and
undisputed based on the record.’’ Specifically, ‘‘the
record is clear that [Harper] asked [the defendant]
express questions during a Terry14 stop in which [the
defendant] was handcuffed and admits that he did not
read [the defendant] his Miranda rights.’’15 (Footnote
added.) The state argues that it was deprived of the
opportunity to introduce evidence regarding the admis-
sibility of the defendant’s responses to Harper’s ques-
tions, the court was deprived of the opportunity to make
factual findings regarding the same, and the record is
accordingly devoid of the factual findings we need to
review the defendant’s claim. We agree with the state.
‘‘Two threshold conditions must be satisfied in order
to invoke the warnings constitutionally required by
Miranda: (1) the defendant must have been in custody;
and (2) the defendant must have been subjected to
police interrogation. . . . The defendant bears the bur-
den of proving that he was in custody for Miranda
purposes. . . . Two discrete inquiries are essential to
determine custody: first, what were the circumstances
surrounding the interrogation; and second, given those
circumstances, would a reasonable person have felt he
or she was not at liberty to terminate the interrogation
and leave. . . . The first inquiry is factual, and we will
not overturn the trial court’s determination of the histor-
ical circumstances surrounding the defendant’s interro-
gation unless it is clearly erroneous. . . . The second
inquiry, however, calls for application of the controlling
legal standard to the historical facts. . . . The ultimate
determination of whether a defendant was subjected
to a custodial interrogation, therefore, presents a mixed
question of law and fact, over which our review is de
novo.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Mitchell, 296 Conn. 449, 459, 996 A.2d
251 (2010).
‘‘[W]hether a defendant was subjected to interroga-
tion . . . involves a similar two step inquiry . . . .
Because this framework is analogous to the determina-
tion of whether a defendant is in custody, the ultimate
determination, therefore, of whether a defendant
already in custody has been subjected to interrogation
also presents a mixed question of law and fact over
which our review is plenary, tempered by our scrupu-
lous examination of the record to ascertain whether
the findings are supported by substantial evidence.’’
(Citation omitted.) State v. Mullins, 288 Conn. 345, 364,
952 A.2d 784 (2008), overruled in part on other grounds
by State v. Polanco, 308 Conn. 242, 248, 253, 61 A.3d
1084 (2013). ‘‘Interrogation, as conceptualized in the
Miranda opinion, must reflect a measure of compulsion
above and beyond that inherent in custody itself.’’
(Internal quotation marks omitted.) State v. Vitale, 197
Conn. 396, 412, 497 A.2d 956 (1985). In the present
case, we previously set forth in this opinion the trial
testimony regarding Harper’s alleged custodial interro-
gation of the defendant. Upon hearing this testimony,
the court was not asked to make, nor did it make, any
factual findings or legal conclusions as to whether the
defendant was in custody or subject to interrogation.
Our Supreme Court has clarified that ‘‘[a] record is not
inadequate for Golding purposes because the trial court
has not reached a conclusion of law if the record con-
tains the factual predicates for making such a determi-
nation.’’ State v. Torres, 230 Conn. 372, 378–79, 645 A.2d
529 (1994). Nevertheless, ‘‘[i]f the facts revealed by the
record are insufficient, unclear or ambiguous as to
whether a constitutional violation has occurred, we will
not attempt to supplement or reconstruct the record,
or to make factual determinations, in order to decide the
defendant’s claim.’’ (Internal quotation marks omitted.)
State v. Hampton, 293 Conn. 435, 443–44, 988 A.2d 167(2009); see also State v. Torres, supra, 378 (Golding
review unavailable where record lacks factual finding
that forms basis of defendant’s claim, not where record
merely lacks factual determination regarding issue
appealed).
The present case is similar to State v. Farr, 98 Conn.
App. 93, 908 A.2d 556 (2006), in which we determined
that the record was inadequate to conduct Golding
review of the defendant’s claim that police had lacked
a reasonable and articulable suspicion to detain him.
In Farr, the defendant did not file a motion to suppress
in the trial court; the court, consequently, did not hold
a suppression hearing; and there was no other opportu-
nity for the court to make factual or legal findings on
the issue of reasonable and articulable suspicion. Id.,
99. The defendant nevertheless argued that the trial
transcript contained sufficient factual predicates—
namely, the testimony of the detaining officer—for this
court to reach the legal conclusion of whether a reason-
able and articulable suspicion existed. Id., 100. This
court concluded that the record was inadequate
because ‘‘[w]e [did] not know if all of the facts sur-
rounding [the officer’s] detention of the defendant were
brought to light during the trial’’ and had ‘‘no way of
divining what evidence the state might have presented
to rebut the defendant’s claim . . . .’’ (Internal quota-
tion marks omitted.) Id., 101; but see State v. Bereis,
117 Conn. App. 360, 372, 978 A.2d 1122 (2009) (conclud-
ing that record was adequate to review defendant’s
claim that state’s use of police reports and testimony
referencing her post-Miranda silence violated her con-
stitutional rights because ‘‘a significant portion of [the]
testimony described the sequence of events, [the offi-
cer’s] actions and the defendant’s actions after the
defendant had been taken to the police barracks’’ and
record was not, therefore, ‘‘void of the factual circum-
stances surrounding the defendant’s claim’’).
In the present case, our examination of the record
leads us to conclude that it is inadequate to review the
defendant’s claim. At trial, Harper did testify to at least
some of the circumstances under which he discovered,
detained, and questioned the defendant. As in Farr,
however, we do not know if all of the pertinent facts
regarding the alleged interrogation and Harper’s con-
duct were elicited. The state did not have the opportu-
nity to present evidence to meet the defendant’s claim
that his responses to Harper were inadmissible under
the circumstances. More fundamentally, the record con-
tains no findings by the court concerning whether the
defendant was subject to interrogation for Miranda
purposes. Even if we were to assume, without deciding,
that the defendant was in custody when Harper hand-
cuffed him; see footnote 15 of this opinion; there is
too scant a basis on which to determine whether the
circumstances ‘‘reflect a measure of compulsion above
and beyond that inherent in custody itself.’’ (Internal
quotation marks omitted.) State v. Vitale, supra, 197
Conn. 412. The defendant thus asks this court ‘‘to make
a determination of fact that the trial court had not been
asked to make.’’ State v. Torres, supra, 230 Conn. 379;
see State v. Mullins, supra, 288 Conn. 363–64 (first
prongs of Miranda custody and interrogation inquiries
are factual). Accordingly, the defendant’s claim is not
reviewable under Golding.
B
We next address the defendant’s claim that introduc-
tion of evidence of his refusal to answer Harper’s book-
ing questions at the police station after he was formally
arrested violated his due process rights because that
refusal constituted an invocation of his right to remain
silent. We conclude that this claim fails under the third
prong of Golding because the defendant did not receive
Miranda warnings before refusing to answer Harper’s
questions, as a result of which, under established prece-
dent, he did not invoke his right to remain silent.
The defendant essentially claims ‘‘that the state vio-
lated the rule established by the United States Supreme
Court in Doyle v. Ohio, [426 U.S. 610, 96 S. Ct. 2240, 49
L. Ed. 2d 91 (1976)], prohibiting the state from eliciting
at trial evidence of a defendant’s silence following the
receipt of Miranda warnings regarding his right to
remain silent.’’ State v. Bell, supra, 283 Conn. 760. ‘‘In
Doyle, the United States Supreme Court expanded the
protections it articulated in Miranda, holding 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 hold-
ing [on] two considerations: First, it noted that silence
in the wake of Miranda warnings is insolubly ambigu-
ous 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 assur-
ance that silence will carry no penalty, such assurance
is implicit to any person who receives the warnings. In
such circumstances, it would be fundamentally 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.’’ (Internal quotation marks
omitted.) State v. Fluker, 123 Conn. App. 355, 364–65,
1 A.3d 1216, cert. denied, 298 Conn. 931, 5 A.3d 491(2010). ‘‘Our Supreme Court has reasoned that it is also
fundamentally 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. State v.
Kirby, 280 Conn. 361, 400, 908 A.2d 506 (2006).’’ State
v. Bereis, supra, 117 Conn. App. 373–74.
As the foregoing language makes clear, the threshold
question is whether the defendant received Miranda
warnings regarding his right to remain silent. As pre-
viously noted, it is undisputed that he did not. The
introduction at trial of Harper’s testimony that the
defendant refused to respond to his ‘‘pedigree’’ ques-
tions, did not, therefore, contravene any implicit assur-
ance with regard to the effect of his refusal to answer
those questions.16 Accordingly, the defendant has failed
to establish that the introduction of that testimony
deprived him of due process.
C
Finally, we address the defendant’s claim that intro-
duction into evidence of his refusal to allow officers to
remove his shirt and photograph the scratches on his
body violated due process because his refusal was an
invocation of his fourth amendment right against unrea-
sonable searches and seizure. The defendant argues
that ‘‘the question [is whether he] ha[d] a fourth amend-
ment right to refuse to remove his shirt so that two
police officers could photograph his shirtless body,’’ in
which case ‘‘it [was] improper to use [his] invocation of
his fourth amendment rights against him.’’ We conclude
that this claim fails under the third prong of Golding
because the defendant has not demonstrated that any
violation of a constitutional right exists.
Although the defendant characterizes his noncooper-
ation with the police officers’ attempts to photograph
him as an invocation of his fourth amendment rights,
similar claims typically have been analyzed under the
fifth amendment’s proscription of compelled self-
incrimination. ‘‘[T]he prohibition of compelling a man
in a criminal court to be witness against himself is a
prohibition of the use of physical or moral compulsion
to extort communications from him, not an exclusion
of his body as evidence when it may be material. . . .
[B]oth federal and state courts have usually held that
it offers no protection against compulsion to submit
to fingerprinting, photographing, or measurements, to
write or speak for identification, to appear in court, to
stand, to assume a stance, to walk, or to make a particu-
lar gesture. . . . [T]he privilege is a bar against compel-
ling communications or testimony, but that compulsion
which makes a suspect or accused the source of real
or physical evidence does not violate it.’’ (Citations
omitted; internal quotation marks omitted.) Pennsylva-
nia v. Muniz, 496 U.S. 582, 591, 110 S. Ct. 2638, 110 L.
Ed. 2d 528 (1990). ‘‘A photograph taken of the defendant
at the time of his arrest [is] properly admitted, despite
the fact that the defendant had not then been advised of
his rights under Miranda . . . because a photograph is
not a confession or other evidence of a testimonial
nature.’’ State v. Hackett, 182 Conn. 511, 516, 438 A.2d
726 (1980).
Our appellate courts, which alternately have analyzed
this type of claim under the fourth and fifth amend-
ments, are uniform in holding that compelling an
arrestee to yield physical evidence to the police does
not violate the rights secured thereunder. See id., 511;
State v. Chesney, 166 Conn. 630, 640, 353 A.2d 783(taking of paraffin tests does not violate fourth and fifth
amendments), cert. denied, 419 U.S. 1004, 95 S. Ct. 324,
42 L. Ed. 2d 280 (1974); State v. Hassett, 155 Conn. 225,
231–32, 230 A.2d 553 (1967) (introduction into evidence
of defendant’s bloodstained shoes, which police
ordered him to remove after he was arrested, did not
violate fourth and fifth amendments); State v. Camp-
field, 44 Conn. App. 6, 17, 687 A.2d 903 (1996) (‘‘because
the [atomic absorption test for detecting gunpowder
residue] does not involve communications or testi-
mony, the request that a defendant submit to such a
test does not constitute questioning and the refusal to
submit to the [test] does not constitute the invocation
of the right to remain silent’’), cert. denied, 240 Conn.
916, 692 A.2d 814, cert. denied, 522 U.S. 823, 118 S. Ct.
81, 139 L. Ed. 2d 39 (1997).
In the present case, the police officers’ attempts to
photograph the defendant did not constitute either an
unreasonable search or compelled self-incrimination.
Because the defendant had no fourth or fifth amend-
ment right to refuse to be photographed, his noncooper-
ation was not an invocation of a constitutional right.
Accordingly, the introduction into evidence of his
refusal to cooperate did not violate his due process
rights, and this claim fails.
For the foregoing reasons, the defendant’s several
Miranda and due process claims fail under Golding.
IV
Finally, the defendant claims that the trial court
improperly admitted evidence of prior uncharged mis-
conduct on the issue of intent with regard to the charge
of threatening in the second degree. In support of this
claim, he argues that (1) the evidence was not material
to the element of intent and (2) its probative value did
not outweigh its prejudicial effect. We disagree.
The following additional facts are relevant to this
claim. On April 15, 2014, the state filed a notice of its
intent to introduce evidence of uncharged misconduct.
At trial, after the state partially had completed its direct
examination of the victim, the court excused the jury so
that the state could proffer evidence of prior uncharged
misconduct. The state proffered evidence that in Febru-
ary, 2013, the defendant had threatened the victim with
a knife in the kitchen of their home. On that occasion,
the defendant came home early from work, destroyed
some of the victim’s jewelry, and, later, while they were
talking in the kitchen, produced a knife and pointed it
at the victim. The victim was nervous and afraid, and
thought that the defendant ‘‘was capable of doing some-
thing at that moment’’ or could ‘‘[h]it [her] or kill [her].’’
He then told her that he was not capable of doing
anything at that time because her son was in the house,
put the knife back into a cabinet, and left the room.
The defendant initially objected to the admission of
this evidence as not falling within any of the exceptions
to the general rule that such evidence is inadmissible.17
The state argued that the evidence was admissible on
the issue of intent with regard to the threatening charge
because the February, 2013 incident ‘‘[was] a threaten-
ing where the defendant by his actions, by his picking
up a knife . . . [made the victim feel] that she was in
fear that he could hurt her, or as she said, kill her.’’
The defendant objected to admission on the ground
that the incident was too remote in time. The state
countered that the proffered evidence was ‘‘not that
remote in time with respect to the defendant’s and the
victim’s relationship.’’ The state further argued that
‘‘[t]he defendant in this case is charged with threaten-
ing, and [the evidence] would demonstrate the defen-
dant’s prior threatening behavior and would enable the
state to argue the defendant’s intent to cause this victim
. . . to be in fear of physical injury, serious physical
injury, if not being killed.’’
The court admitted the evidence and allowed the
victim to testify regarding the February, 2013 incident.
The court stated: ‘‘[T]here are two prongs to allowing
it. One is that it be relevant to an accepted purpose, and
the other is that its probative value is not outweighed by
any prejudicial effect. I think that the evidence is rele-
vant to an acceptable purpose, which the state has
identified as being intent. Also, I don’t think that the
evidence is unduly prejudicial. The evidence was that
there was some dispute or altercation around Valen-
tine’s Day over some jewelry and there was an incident
in the kitchen in which the defendant had a knife and
directed it, pointed it at the [victim]. And then I believe
the evidence was that he put it down at some point
and left that immediate area. That’s the nub of it. No
evidence that I heard as to what he said he would do
with the knife at that time. There was evidence that
the [victim] had certain feelings about that behavior.’’
The court summarized authority indicating that a threat-
ening charge allows the prosecution to introduce evi-
dence of the accused’s prior threatening behavior to
prove an intent to cause fear. Finally, the court found
that the proffered evidence was not ‘‘especially remote
. . . . It’s a few months before the time in question.’’
The court then offered to give the jury a limiting
instruction at the conclusion of the victim’s testimony,
which the defendant declined. After the jury reentered
the courtroom, the victim gave substantially the same
testimony that she had given in the state’s proffer. In
light of the defendant’s waiver of a limiting instruction,
the court did not give one immediately upon the conclu-
sion of the victim’s testimony.
During its final instructions to the jury, the court
stated the following with regard to the evidence of
prior uncharged misconduct: ‘‘[T]he state has offered
evidence of other acts of misconduct of the defendant.
[T]his evidence is that in February, 2013, the defendant
took a knife and pointed it at the [victim], causing her
fear. This is not being admitted to prove the bad charac-
ter, propensity or criminal tendencies of the defendant.
Such evidence is being admitted solely to show or estab-
lish the defendant’s intent with respect to any specific
intent crimes with which he has been charged. . . .
You may not consider such evidence as establishing a
predisposition on the part of the defendant to commit
any of the crimes charged or to demonstrate the crimi-
nal propensity. You may consider such evidence if you
believe it and further find that it logically and rationally
supports the issues for which it is being offered by the
state but only as it may bear on the issue of demonstra-
ting that the defendant had a specific intent to commit
certain crimes.
‘‘On the other hand, if you do not believe such evi-
dence, or even if you do, if you find that it does not
logically and rationally support the issue for which it’s
being offered by the state, namely, that the defendant
had a specific intent to commit certain crimes, then
you may not consider that testimony for any purpose.
‘‘You may not consider evidence of other misconduct
of the defendant for any purpose other than the one
I’ve just told you because it may predispose your mind
unequivocally to believe that the defendant may be
guilty of the offense here charged merely because of
the alleged other misconduct.’’
We review the trial court’s admission of prior
uncharged misconduct evidence for abuse of discretion.
‘‘The admission of evidence of prior uncharged miscon-
duct is a decision properly within the discretion of the
trial court. . . . [E]very reasonable presumption
should be given in favor of the trial court’s ruling. . . .
[T]he trial court’s decision will be reversed only where
abuse of discretion is manifest or where an injustice
appears to have been done. . . .
‘‘Our Supreme Court has established a two part test
to determine the admissibility of evidence of a criminal
defendant’s prior misconduct. First, the evidence must
be relevant and material to at least one of the circum-
stances encompassed by the exceptions outlined in § 4-
5 (b) of the Connecticut Code of Evidence, and, second,
the probative value of such evidence must outweigh its
prejudicial effect. . . .
‘‘Although evidence of prior unconnected crimes is
inadmissible to demonstrate the defendant’s bad char-
acter or to suggest that the defendant has a propensity
for criminal behavior . . . such evidence may be
admissible for other purposes, such as to prove . . .
intent . . . . That evidence tends to prove the commis-
sion of other crimes by the accused does not render it
inadmissible if it is otherwise relevant and material
. . . .’’ (Citations omitted; internal quotation marks
omitted.) State v. Reynolds, 152 Conn. App. 318, 324–25,
97 A.3d 999, cert. denied, 314 Conn. 934, 102 A.3d 85(2014).
First, the defendant contends that the evidence of
prior uncharged misconduct was not material to the
element of intent because intent was not in dispute
in this case. Specifically, ‘‘the defense never disputed
intent, but rather claimed that no knives were ever
present and no threats to kill were ever made.’’ Assum-
ing that such alleged acts were committed, he argues,
there ‘‘[could] be no genuine dispute of intent’’ to
threaten the victim with serious physical injury, in
which case the challenged evidence could only lead the
jury to the impermissible inference that the defendant
had a propensity to engage in those acts. We are not per-
suaded.
‘‘Evidence is material where it is offered to prove a
fact directly in issue or a fact probative of a matter in
issue. . . . Relevant evidence is defined in the Con-
necticut Code of Evidence, § 4-1, as evidence having
any tendency to make the existence of any fact that is
material to the determination of the proceeding more
probable or less probable than it would be without the
evidence. The commentary to that section makes it
clear that there are two separate components of rele-
vant evidence at common law, probative value and
materiality. Evidence is relevant if it tends to support
the conclusion even to a slight degree. . . . Materiality
is determined by the pleadings (or information) and the
applicable substantive law.’’ (Internal quotation marks
omitted.) State v. Rogers, 123 Conn. App. 848, 861–62, 3
A.3d 194, cert. denied, 299 Conn. 906, 10 A.3d 524 (2010).
‘‘[I]ntent, or any other essential element of a crime,
is always at issue unless directly and explicitly admitted
before the trier of fact.’’ (Emphasis omitted; internal
quotation marks omitted.) State v. Irizarry, 95 Conn.
App. 224, 233–34, 896 A.2d 828, cert. denied, 279 Conn.
902, 901 A.2d 1224 (2006); see Estelle v. McGuire, 502
U.S. 62, 69–70, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991)
(noting that ‘‘prosecution’s burden to prove every ele-
ment of [a] crime is not relieved by a defendant’s tactical
decision not to contest an essential element of the
offense’’ and holding that extrinsic act evidence is not
constitutionally inadmissible merely because it relates
to issue that defendant does not actively contest).
In the present case, the relevant charge is threatening
in the second degree, which is a specific intent crime.
Pursuant to § 53a-62 (a) (1), to obtain a conviction of
this offense, the state had to prove beyond a reasonable
doubt the defendant’s intent to place the victim ‘‘in fear
of imminent serious physical injury’’ when he held a
knife to the victim’s back and promised to kill her in
July, 2013. The state proffered evidence that when the
defendant, just five months earlier, in February, 2013,
brandished a knife, the victim feared that he could ‘‘[h]it
[her] or kill [her].’’ Because intent to place the victim
in such fear was an essential element of the crime, the
court did not err in concluding that the state’s proffered
evidence was relevant, which necessarily included a
finding that the evidence was material. See State v.
Rogers, supra, 123 Conn. App. 861–62 (relevant evi-
dence is material and probative).
The defendant argues that the evidence was immate-
rial because he implicitly conceded the issue of intent
and chose instead to argue that he did not engage in
the acts in question. We disagree. Regardless of whether
he chose to argue that he did not commit the acts in
question instead of contesting the element of intent, he
did not explicitly concede this essential element before
the trial court. The state, therefore, bore the burden of
proving both that the defendant committed the acts in
question and that he did so with the intent to place the
victim in imminent fear of serious physical injury. See
State v. Irizarry, supra, 95 Conn. App. 233–34.
Second, the defendant contends that the probative
value of the proffered evidence of prior uncharged mis-
conduct did not outweigh its prejudicial effect. In sup-
port of this argument, he offers little more than the
assertion that ‘‘[t]he state’s true intention in introducing
this evidence was to persuade the jury that [the defen-
dant] was a violent and threatening person who would
not hesitate to draw a knife on someone.’’ We conclude
that the court properly balanced the probative value of
the evidence against its prejudicial effect.18
‘‘The trial court’s discretionary determination that
the probative value of evidence . . . outweigh[s] . . .
its prejudicial effect will not be disturbed on appeal
unless a clear abuse of discretion is shown. . . . We
note that [b]ecause of the difficulties inherent in this
balancing process . . . every reasonable presumption
should be given in favor of the trial court’s ruling. . . .
Of course, [a]ll adverse evidence is damaging to one’s
case, but it is inadmissible only if it creates undue preju-
dice so that it threatens an injustice were it to be admit-
ted. . . . The test for determining whether evidence is
unduly prejudicial is not whether it is damaging to the
defendant but whether it will improperly arouse the
emotions of the jury.’’ (Internal quotation marks omit-
ted.) State v. Franko, 142 Conn. App. 451, 465, 64 A.3d
807, cert. denied, 310 Conn. 901, 75 A.3d 30 (2013);
State v. Orr, 291 Conn. 642, 667–68, 969 A.2d 750 (2009)
(‘‘[e]vidence is prejudicial when it tends to have some
adverse effect upon a defendant beyond tending to
prove the fact or issue that justified its admission into
evidence’’ [internal quotation marks omitted]).
Our appellate courts have acknowledged the proba-
tive value of a defendant’s prior acts toward the same
victim on the issue of intent. ‘‘When instances of a
criminal defendant’s prior misconduct involve the same
victim as the crimes for which the defendant presently
is being tried, those acts are especially illuminative of
the defendant’s motivation and attitude toward that
victim, and, thus, of his intent as to the incident in
question.’’ State v. Irizarry, supra, 95 Conn. App. 235.
‘‘Because intent is almost always proved, if at all, by
circumstantial evidence, prior misconduct evidence,
where available, is often relied upon.’’ State v. Baldwin,
224 Conn. 347, 355, 618 A.2d 513 (1993).
‘‘[W]hen the trial court has heard a lengthy offer of
proof and arguments of counsel before performing the
required balancing test, has specifically found that the
evidence was highly probative and material, and that its
probative value significantly outweighed the prejudicial
effect, and has instructed the jury on the limited use
of the evidence in order to safeguard against misuse
and to minimize the prejudicial impact . . . we have
found no abuse of discretion. . . . Proper limiting
instructions often mitigate the prejudicial impact of
evidence of prior misconduct. . . . Furthermore, a jury
is presumed to have followed a court’s limiting instruc-
tions, which serves to lessen any prejudice resulting
from the admission of such evidence.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Franko,
supra, 142 Conn. App. 465.
The record in the present case reveals that the court
properly balanced the probative value of the evidence
against its prejudicial effect. Outside of the presence
of the jury, the court carefully considered the state’s
offers of proof, the defendant’s arguments against
admission, and the applicable legal authorities. With
regard to probative value, the court noted, consistent
with state precedent, that evidence of a defendant’s
prior acts toward the same victim tends to illuminate
the defendant’s motivation and attitude toward the vic-
tim and, thus, the intent accompanying his acts.
The court also observed that ‘‘[t]here was evidence
that the [victim] had certain feelings about [the defen-
dant’s] behavior’’ during the prior incident. Evidence
that both the defendant and the victim were aware of
this history bore directly on the defendant’s intent to
place the victim in fear of imminent serious injury when
he placed a knife at her back and threatened to kill her
a few months later. See State v. Kantorowski, 144 Conn.
App. 477, 489, 72 A.3d 1228 (because of shared knowl-
edge of prior physical altercations, uncharged miscon-
duct evidence was relevant to defendant’s intent in
making harassing and threatening telephone calls), cert.
denied, 310 Conn. 924, 77 A.3d 141 (2013). Finally, the
court noted that under the circumstances of this case,
the prior incident was not sufficiently remote in time
to undermine its relevance. See id., 490.
With regard to prejudicial effect, ‘‘[t]his court consis-
tently has declined to conclude that the admission of
evidence was unduly prejudicial when the prior acts of
misconduct were substantially less shocking than the
crimes charged.’’ State v. Dillard, 132 Conn. App. 414,
426, 31 A.3d 880 (2011), cert. denied, 303 Conn. 932, 36
A.3d 694 (2012); State v. Irizarry, supra, 95 Conn. App.
238. In the present case, the court recognized that the
February, 2013 incident was a less serious altercation
than the incident forming the basis of the present charge
when it noted that there was ‘‘[n]o evidence that I heard
as to what he said he would do with the knife at that
time.’’ The court also minimized any unduly prejudicial
effect that the evidence might otherwise have had by
giving a limiting instruction in its final instructions to
the jury.19 See State v. Orr, supra, 291 Conn. 669. We
conclude that the trial court did not abuse its discretion
when it determined that the probative value of the prior
uncharged misconduct evidence outweighed its prejudi-
cial effect.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant was acquitted of charges of sexual assault in the first
degree in violation of General Statutes § 53a-70 (a) (1), attempt to commit
robbery in the third degree in violation of General Statutes §§ 53a-49 and
53a-136, kidnapping in the first degree in violation of General Statutes § 53a-
92 (a) (2) (B), and larceny in the third degree in violation of General Statutes
§ 53a-124 (a) (1).
2
General Statutes § 53a-64bb (b) provides in relevant part: ‘‘(b) No person
shall be found guilty of strangulation in the second degree and unlawful
restraint or assault upon the same incident, but such person may be charged
and prosecuted for all three offenses upon the same information. . . .’’
Neither the court nor the defendant raised a separate constitutional double
jeopardy concern, in addition to this potential statutory problem, with
respect to the defendant’s conviction on these three offenses.
3
Defense counsel stated: ‘‘I agree with the court, there is enough evidence
that was submitted that would sustain a verdict. But because of the statute
and the uniqueness of the statute, I don’t think we can rely upon the fact
[alone] that [there was] just enough evidence to sustain a conviction. I think
it requires more in the way of what the jury actually found. And the only
way they can get that is basically through a jury instruction, which was
not in this case given.’’ Defense counsel conceded, however, that no such
instruction had been requested.
4
Under the well established principles of Golding, ‘‘a defendant can prevail
on a claim of constitutional error not preserved at trial only if all of the
following conditions are met: (1) the record is adequate to review the alleged
claim of error; (2) the claim is of constitutional magnitude alleging the
violation of a fundamental right; (3) the alleged constitutional violation . . .
exists and . . . deprived the defendant of a fair trial; and (4) if subject to
harmless error analysis, the state has failed to demonstrate harmlessness
of the alleged constitutional violation beyond a reasonable doubt. In the
absence of any one of these conditions, the defendant’s claim will fail.’’
(Emphasis omitted; footnote omitted.) State v. Golding, supra, 213 Conn.
239–40; see In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (modifying
third condition), reconsideration denied, 319 Conn. 921, 126 A.3d 1086 (2015).
‘‘The first two [prongs of Golding] involve a determination of whether the
claim is reviewable; the second two . . . involve a determination of whether
the defendant may prevail.’’ (Internal quotation marks omitted.) In re Yasiel
R., supra, 779 n.6.
5
See Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L.
Ed. 306 (1932).
6
In his attempt to satisfy the two-pronged double jeopardy test, the defen-
dant argues that he satisfies the second prong simply because the legislature,
by enacting § 53a-64bb (b), has determined that whenever strangulation,
unlawful restraint, and assault are charged together, they are the same
offense. As noted, we need not address this prong of the analysis. We
simply point out that, having previously construed § 53a-64bb (b), we have
determined, contrary to the defendant’s argument, that these three crimes
will be considered the same offense only if they are based on the same
incident of strangulation. See State v. Miranda, 142 Conn. App. 657, 663–64,
64 A.3d 1268 (2013) (‘‘the same incident to which the statute refers is an
incident of strangulation . . . not an event or course of conduct in which
an act of strangulation occurs, but is preceded, followed or even accompa-
nied by other, separate acts of assault or unlawful restraint not based, in
whole or in part, upon one or more acts of strangulation’’), appeal dismissed,
315 Conn. 540, 109 A.3d 452 (2015) (certification improvidently granted).
We note that the defendant has not challenged his conviction of those
charges separately under § 53a-64bb (b) in this appeal. Cf. id., 661.
7
We recognize, as the state admitted at oral argument before this court,
that the state’s closing argument at trial, in which it asserted the defendant’s
choking of the victim as one of the bases for convicting him on the assault
charge, complicates this issue somewhat. At trial, the state argued the follow-
ing in closing: ‘‘[T]here was an assault at 704 Garfield where the [victim]
sustained bruising. She was punched in her face, according to her testimony.
The facts show that she was choked, and there was in fact physical injury
as a result of those injuries. She had bruising; you’ll recall the photos [in
which] she had a bruise on her arm, she had bruising under her eyes, she
had hemorrhages and the marks on her neck.’’ For two reasons, we conclude
that the state’s convoluted restatement of the evidence before the jury does
not affect the resolution of this issue.
First, as previously discussed, the record reveals a basis independent of
the strangulation incident on which to convict the defendant of assault—
namely, the defendant punching the victim in the face and causing her injury.
Indeed, in the first part of the state’s argument, it argued that the punch in
the face was a basis for finding the defendant guilty of assault.
Second, although the defendant argues in passing that the court should
have instructed the jury that it needed to find that each charge arose from
a separate incident in order to find him guilty of all of the charges, he never
requested such an instruction, and the court was not obligated to give such
an instruction sua sponte. See State v. Crawley, 93 Conn. App. 548, 568,
889 A.2d 930, cert. denied, 277 Conn. 925, 895 A.2d 799 (2006). Because
there was evidence that the defendant punched the victim’s face before any
strangulation occurred, and the state argued that the punch was a basis for
the assault conviction, we conclude that the assault was based on an act
separate from the strangulation.
8
Additionally, we note that the state, in its closing argument to the jury,
argued that the unlawful restraint was an act separate from the strangulation:
‘‘[The victim] tried to get out the front door, and she testified that [the
defendant] jumped down the stairs at her and prevented her from leaving.
. . . [T]he facts show, through her testimony, that she was not free to leave
that bedroom, and she was not free to leave that house. She tried, she
couldn’t.’’ The state did not argue that the strangulation itself was a basis
for the unlawful restraint charge.
9
In his reply brief, the defendant argues that because ‘‘the court’s jury
instructions did not require the jury to find that the assault and unlawful
restraint arose from separate incidents from the strangulation,’’ there is no
way of knowing whether the jury did so. In light of this omitted instruction,
he contends, the court’s finding that the conviction of those charges arose
from separate incidents impermissibly exposed him at sentencing to a
greater range of incarceration time than the strangulation conviction sup-
ported.
To the extent that the defendant claims a flaw in the court’s jury instruc-
tions, he waived this claim under State v. Kitchens, 299 Conn. 447, 482–83,
10 A.3d 942 (2011) (‘‘when the trial court provides counsel with a copy of
the proposed jury instructions, allows a meaningful opportunity for their
review, solicits comments from counsel regarding changes or modifications
and counsel affirmatively accepts the instructions proposed or given, the
defendant may be deemed to have knowledge of any potential flaws therein
and to have waived implicitly the constitutional right to challenge the instruc-
tions on direct appeal’’).
Before instructing the jury, the court noted that ‘‘I did send a draft of my
charge to counsel . . . on Sunday night at around 7:30, and . . . apparently
[defense counsel] asked for a lesser on the strangulation two, which I will
give.’’ Defense counsel did not request any other corrections or additions.
At sentencing, defense counsel stated that ‘‘[w]e don’t know whether it was
upon the same [incident] they found him guilty . . . without the specific
. . . jury charge . . . .’’ The court replied, ‘‘but there were no exceptions
to the charge as given.’’ Counsel conceded, ‘‘I know . . . and I understand
that.’’ Thus, because counsel had a meaningful opportunity to review the
charge overnight, the court permitted comment from counsel on the charge,
and counsel affirmatively accepted the charge, the defendant has waived
any challenge to the court’s instructions on this point.
10
At the defendant’s sentencing hearing, after discussing with counsel
§ 53a-64bb (b) and the evidence presented at trial, the court concluded that
‘‘[there was] evidence from which a jury could reasonably conclude that
. . . the unlawful restraint and the strangulation and the assault were not
part and parcel of the same incident.’’ In other words, ‘‘[there was] enough
evidence to support jury verdicts on each of these counts as separate and
discrete incidents.’’
11
The defendant was sentenced to imprisonment as follows: on the charge
of assault in the third degree, a class A misdemeanor, one year, to run
concurrent with his other sentences; see General Statutes § 53a-36 (1) (maxi-
mum sentence for class A misdemeanor is one year); on the charge of
unlawful restraint in the first degree, a class D felony, three years, to run
consecutive to his other sentences; see General Statutes § 53a-35a (8) (maxi-
mum sentence for class D felony is five years); on the charge of threatening
in the second degree, a class A misdemeanor, one year, to run concurrent
with his other sentences; see General Statutes § 53a-36 (1) (maximum sen-
tence for class A misdemeanor is one year); and on the charge of strangula-
tion in the second degree, a class D felony, five years, to run consecutive
to his other sentences; see General Statutes § 53a-35a (8) (same).
12
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
13
On cross-examination, the defendant gave substantially the same
account of these events: he fell asleep in the parked car and was awakened
by the police, who asked him for his name and identification; he asked
why he was being arrested; the police transported him to the station after
informing him that the car had been reported stolen; and, at the station,
the police took photographs of him.
14
See Terry v. Ohio, 392 U.S. 1, 24, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
15
Specifically, the defendant argues that (1) he was in custody because
handcuffing a suspect during the course of an investigatory stop under Terry
v. Ohio, 392 U.S. 1, 24, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), rises to the
level of custody for Miranda purposes, and (2) he was subject to interroga-
tion because Harper should have known that asking him what he was doing
in the area and whether his friend would confirm his claimed reason for
being in the area was reasonably likely to elicit an incriminating response.
As to whether he was in custody, the defendant points out that the United
States Court of Appeals for the Second Circuit, the decisions of which,
‘‘although not binding on [this court], are particularly persuasive’’ in resolving
issues of federal law; Turner v. Frowein, 253 Conn. 312, 341, 752 A.2d 955(2000); has held that ‘‘a reasonable person finding himself placed in handcuffs
by the police would ordinarily conclude that his detention would not neces-
sarily be temporary or brief and that his movements were now totally under
the control of the police—in other words, that he was restrained to a degree
normally associated with formal arrest and, therefore, in custody’’ for
Miranda purposes. United States v. Newton, 369 F.3d 659, 676 (2d Cir.),
cert. denied, 543 U.S. 947, 125 S. Ct. 371, 160 L. Ed. 2d 262 (2004).
16
We note that Harper was not required to administer Miranda warnings
before eliciting nonincriminating biographical data from the defendant even
if his questions constituted custodial interrogation. State v. Jones, 37 Conn.
App. 437, 444, 656 A.2d 696, cert. denied, 233 Conn. 915, 659 A.2d 186 (1995).
‘‘In Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S. Ct. 2638, 110 L. Ed.
2d 528 (1990) . . . a plurality of the Supreme Court recognized a routine
booking question exception to the requirement of Miranda warnings. The
exception encompasses questions that secure biographical data necessary
to complete booking or pretrial services. . . . The court acknowledged that
the questions qualify as custodial interrogation but held that questions such
as name, address, height, weight, eye color, date of birth, and age fall outside
the sweep of Miranda . . . .’’ (Citation omitted; internal quotation marks
omitted.) State v. Jones, supra, 444.
17
Section 4-5 (a) of the Connecticut Code of Evidence provides: ‘‘Evidence
of other crimes, wrongs or acts of a person is inadmissible to prove the
bad character or criminal tendencies of that person.’’ Section 4-5 (b) of the
Connecticut Code of Evidence provides: ‘‘Evidence of other crimes, wrongs
or acts of a person is admissible for purposes other than those specified in
subsection (a), such as to prove intent, identity, malice, motive, common
plan or scheme, absence of mistake or accident, knowledge, a system of
criminal activity, or an element of the crime, or to corroborate crucial
prosecution testimony.’’
18
Although we agree with the defendant that the court misstated the
appropriate balancing inquiry when it stated that the probative value of the
evidence must not be outweighed by its prejudicial effect, our review of
the record satisfies us that the court conducted the appropriate inquiry into
whether the probative value of the evidence outweighed its prejudicial effect.
19
As noted previously, the defendant declined the court’s offer to provide
a limiting instruction immediately following the victim’s testimony.