State v. Berrios , 187 Conn. App. 661 ( 2019 )

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STATE OF CONNECTICUT v. DENNIS BERRIOS
(AC 40043)
DiPentima, C. J., and Alvord and Lavery, Js.
Syllabus
Convicted of the crimes of manslaughter in the first degree, tampering with
a witness, intimidating a witness and evasion of responsibility in the
operation of a motor vehicle, the defendant appealed to this court.
The victim, T, was killed when, while crossing a street with another
individual, G, he was struck by a vehicle driven by the defendant. T
was pulled under and dragged by the defendant’s vehicle before one of
its tires bounced on his head. The defendant then drove away at a high
rate of speed. About one hour before the incident in which T was killed,
the defendant had driven his vehicle, in the darkness with its headlights
off, through an intersection without stopping at a stop sign, and then
accelerated and swerved the vehicle toward T, G and M, who jumped
onto a sidewalk to avoid being struck. The defendant had attempted to
get money from his girlfriend, W, to buy a gun in the hours before T’s
death, when he angrily told W that he was going to hurt others. After
the defendant was arrested but before trial, he sent crude text messages
to W in which he insulted and threatened her. During trial, the defendant
informed the court that he planned to pursue a defense of self-defense.
The defendant claimed, inter alia, that during the incident in which T
was killed, T and G had thrown rocks at his vehicle, and that he had
driven off to protect himself because he assumed that his life was in
danger. Held:
1. The defendant could not prevail on his claim that the evidence was
insufficient to support his conviction of tampering with a witness and
intimidating a witness because the state failed to prove that any threats
he had made to W were intended to prevent W from testifying or to
induce her to testify falsely; the jury reasonably could have concluded,
in light of all the evidence up to the time that the defendant sent the
text messages to W and the surrounding circumstances, that he intended
to prevent W from testifying at his criminal trial, as the evidence showed
that he sent W text messages in which he threatened her and stated
that her decisions came with consequences and that she should choose
between supporting him or T’s family, and that, on the night of T’s death,
he attempted to obtain a gun and spoke to W about hurting others,
which reasonably supported the jury’s conclusion that the defendant
wanted to prevent such evidence from being heard at his criminal trial.
2. The trial court did not abuse its discretion when it permitted S, a state
medical examiner, to testify that the manner of T’s death was homicide,
which concerned an ultimate issue in the case, that conclusion having
been based on S’s medical knowledge, training and experience, and not
solely or primarily on information she had received from the police
investigation; S conducted the autopsy of T, documented his injuries,
consulted with a neuropathologist about certain of those injuries and
reviewed T’s hospital medical records, and S’s testimony that law
enforcement and the Office of the Chief Medical Examiner cooperate
to determine the manner of death was supported by the statute (§ 19a-
407 [c]) that grants access to the Office of the Chief Medical Examiner
to items in the custody of law enforcement.
3. The trial court did not abuse its discretion by admitting certain evidence
of the defendant’s prior misconduct, which consisted of testimony from
W that the defendant had smashed car windows in his neighborhood
and challenged her father to a fight, and evidence that he had thrown
a bloody ice pack at a hospital employee while he was intoxicated and
belligerent in the emergency department:
a. The trial court did not abuse its discretion in determining that W’s
testimony about the defendant’s smashing of car windows and his chal-
lenge to fight her father was admissible either as uncharged misconduct
evidence or pursuant to the opening the door doctrine, as W’s testimony
was a proper means for the state to rehabilitate her credibility after the
defendant on cross-examination had attempted to persuade the jury
that she was not credible; moreover, the trial court did not abuse its
discretion in determining that the probative value of W’s testimony
about those incidents outweighed its prejudicial impact, as the evidence
explained and put into context the actions and testimony of W, who
was a significant witness for the state, it did not inflame the emotions
of the jury, it involved conduct that was less shocking in nature than
the defendant’s alleged conduct in attempting to interfere with a witness
or driving his motor vehicle into T and dragging T under the vehicle,
and any prejudicial effect of W’s testimony was lessened by the court’s
limiting instruction to the jury.
b. The trial court did not abuse its discretion in concluding that the
defendant’s testimony that he sent crude text messages to W only after
he became depressed and started drinking heavily opened the door to
other incidents in which he consumed alcohol and acted in such a
manner, and the prejudicial impact of the evidence of his behavior at
the hospital emergency department did not outweigh its probative value.
4. The defendant’s claim that the trial court abused its discretion by admitting
into evidence the vulgar text messages he had sent to W was unavailing;
that court properly determined that the probative value of the text
messages outweighed the prejudicial effect of the defendant’s crude
language, which defense counsel did not contemporaneously challenge,
as the probative value of the text messages was high and the jury had
heard an audio recording of a police interview with the defendant in
which he used similar language.
5. The defendant could not prevail on his claim that the trial court improperly
instructed the jury on the initial aggressor and provocation exceptions
to his defense of self-defense, and improperly instructed the jury with
respect to the retreat exception to the use of deadly physical force:
a. The jury reasonably could have concluded that the defendant was
the initial aggressor and, thus, was not justified in using any physical
force; the evidence showed that one hour prior to T’s death, the defen-
dant, with his vehicle’s headlights off, revved the engine and swerved
the vehicle toward T, G and M, which caused them to jump onto a
sidewalk for safety, the defendant failed to provide authority holding
that the passage of one hour rendered the initial aggressor exception
inapplicable, and a reasonable jury could have concluded that the defen-
dant had not communicated his withdrawal so as to nullify the initial
aggressor exception to self-defense.
b. The evidence was adequate to warrant the court’s jury instruction
on the provocation exception to the defense of self-defense; the defen-
dant’s act of swerving his vehicle toward T, G and M was not indisputably
a separate incident that foreclosed the jury from finding that it was
done with the requisite intent for provocation, as the evidence before
the jury showed that the defendant had targeted individuals for physical
harm, that he had attempted to purchase a gun earlier on the day of
T’s death, and that he had sought revenge against those in his neighbor-
hood who allegedly had harassed him.
c. Although the trial court improperly included an objective standard
in its jury instruction on the retreat exception to the use of deadly
physical force, the jury reasonably could not have been misled by the
court’s failure to properly convey the subjective standard of the duty
to retreat; the defendant did not raise his self-defense claim until several
days into the trial, the jury was required to resolve a credibility contest
between inconsistent versions of the events at issue, as the defendant’s
self-defense claim was established through his testimony and interview
with the police, whereas the state presented evidence that he intention-
ally hit T with his vehicle, and neither party presented much evidence
as to the retreat exception or discussed it in detail.
Argued September 12, 2018—officially released February 5, 2019
Procedural History
Substitute information, in the first case, charging the
defendant with two counts of the crime of manslaughter
in the first degree, one count of the crime of murder,
and with the commission of a felony while on release
and the commission of an offense while on release, and
substitute information, in the second case, charging the
defendant with the crimes of tampering with a witness
and intimidating a witness, and substitute information,
in the third case, charging the defendant with the crime
of evasion of responsibility in the operation of a motor
vehicle, brought to the Superior Court in the judicial
district of Fairfield, where the cases were consolidated;
thereafter, the court, Kahn, J., granted the defendant’s
motion to dismiss the charge of having committed an
offense while on release; subsequently, the matter was
tried to the jury; thereafter, the court denied the defen-
dant’s motions to preclude certain evidence, and for a
judgment of acquittal as to the charges of tampering
with a witness and intimidating a witness; verdicts and
judgments of guilty of one count of manslaughter in
the first degree, and tampering with a witness, intimidat-
ing a witness and evasion of responsibility in the opera-
tion of a motor vehicle, from which the defendant
appealed to this court. Affirmed.
Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and C. Robert Satti, Jr., supervisory assistant
state’s attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Dennis Berrios,
appeals from the judgments of conviction, rendered
after a jury trial, of manslaughter in the first degree in
violation of General Statutes § 53a-55 (a) (1), tampering
with a witness in violation of General Statutes § 53a-
151 (a), intimidating a witness in violation of General
Statutes § 53a-151a (A) (1) and evasion of responsibility
in the operation of a motor vehicle in violation of Gen-
eral Statutes § 14-224 (a).1 On appeal, the defendant
claims that (1) there was insufficient evidence to sup-
port his conviction of tampering with a witness and
intimidating a witness, (2) the trial court improperly
permitted certain testimony from a state medical exam-
iner, (3) the court abused its discretion in admitting
certain prior misconduct evidence, (4) the court abused
its discretion in admitting into evidence crude text mes-
sages sent by the defendant and (5) the court improperly
instructed the jury with respect to self-defense. We dis-
agree and, accordingly, affirm the judgments of con-
viction.
The jury reasonably could have found the following
facts. On August 9, 2014, Wilma Figueroa (Wilma) spent
time with the defendant, her boyfriend, at his home on
Park Street in Bridgeport. While in his kitchen after 7
p.m., the defendant angrily told Wilma that ‘‘the only
thing he wanted for his [upcoming] birthday was to
make everyone pay.’’ He continued by stating that he
had ‘‘unfinished business,’’ that he was going to ‘‘hurt
others’’ and that ‘‘there was going to be bloodshed.’’ The
defendant identified Wilma’s brother, William Figueroa
(William), as one of his targets. The defendant further
stated that he needed money to purchase a gun from
his cousin in Hartford and that he would use it to kill
William.
Wilma went with the defendant to an automated teller
machine, but purposefully entered an incorrect code to
‘‘lock out’’ the bank card and prevent the defendant
from getting cash to buy the gun. After returning to the
defendant’s home, Wilma and her son departed at about
9 p.m.
Shortly thereafter, Justin Griffin walked from his resi-
dence to the home of the victim, Tyron Tate. Griffin
saw a black Chevy Avalanche2 with its headlights off
proceed through the intersection at William Street and
Arctic Street without stopping at a stop sign, even
though it was dark outside. Another witness, Michael
Shuler, claimed that he was with Griffin and the victim
when the defendant drove past the stop sign, ‘‘hit the
gas and swerved towards [them while driving the Ava-
lanche], and [they] jumped on the sidewalk.’’3
Approximately thirty minutes later, Griffin and the
victim were walking to a corner store in the vicinity
of Noble Avenue and Jane Street. While crossing the
intersection, Griffin, who was talking or texting on his
phone, walked in front of the victim. The victim shoved
Griffin forward while shouting, ‘‘there’s [the defen-
dant].’’ While being pushed, Griffin looked to the left
and saw a vehicle that had ‘‘just popped out of nowhere
right there and had hit [the victim].’’ Shuler, who also
was present, observed the defendant ‘‘hit the gas’’ and
drive toward Griffin. Shuler also saw the Avalanche hit
and drag the victim. Another witness to the incident,
Jonathan Santos, observed the Avalanche depart in the
wrong lane of travel at a high rate of speed.
The victim, after being struck by the Avalanche, was
pulled under the front of the vehicle. Griffin chased
after the vehicle as the victim was trapped underneath.
Griffin observed the victim ‘‘stuck’’ under the Ava-
lanche, which was ‘‘bouncing up and down on him.’’
Eventually, the front tire on the driver’s side of the
Avalanche ‘‘bounc[ed]’’ on the victim’s head, and his
body was freed as the vehicle was driven away. As
Griffin approached the victim, he observed a significant
blood loss from the head and face, as well as other
injuries.
As Shuler ran toward the home of the victim’s mother,
he noticed that the Avalanche had returned to the area
of Jane Street and Noble Avenue. The driver’s side win-
dow had been lowered, and Shuler identified the defen-
dant as the operator of the vehicle. Shuler also stated
that the defendant might have ‘‘laughed or something.’’
Anthony Caiazzo, a Bridgeport police officer,
received a dispatch at approximately 10 p.m., and was
directed to Noble Avenue between Arctic Street and
Jane Street. Upon Caiazzo’s arrival, he observed the
victim on the ground receiving medical aid. Paramedics
transported the victim to Bridgeport Hospital, where he
died from his injuries.4 Caiazzo retrieved a surveillance
video from a store located on the corner of Arctic Street
and Noble Avenue.
The next morning, on August 10, 2014, Bridgeport
police officers located the Avalanche and detained the
defendant at his home. The defendant invited the offi-
cers into his home where he was interviewed by the
officers, who audio recorded the interview. The defen-
dant initially claimed to have left Bridgeport in the
Avalanche at about 6:30 or 7 p.m. on August 9, 2014,
to visit his brother in Dayville. The defendant then
stated that he had returned to his Bridgeport home
moments before the police officers detained him. Upon
further questioning, the defendant again stated that he
was at his brother’s residence in Dayville and not in
Bridgeport at the time of the incident involving the
victim.
The police informed the defendant of the existence
of a video recording of his Avalanche in Bridgeport the
prior night. The defendant’s initial response was that
the video must have been recorded earlier that evening,
but he eventually acknowledged that the Avalanche was
in Bridgeport at the time the victim was hit. The police
then questioned the defendant regarding certain dam-
age5 to the Avalanche. At first, the defendant claimed
that the damage had occurred in April, 2014, but subse-
quently stated that ‘‘two people [had thrown] rocks at
his vehicle at the corner of Noble [Avenue] and Jane
[Street] that night before.’’ The defendant eventually
acknowledged that he had hit the victim with the Ava-
lanche on August 9, 2014. At the conclusion of this
interview, the police arrested the defendant.
The police interviewed Wilma on August 21, 2014. At
that time, she did not discuss the verbal threats made
by the defendant on August 9, 2014. During the next
few months, the relationship between the defendant
and Wilma waned, and they stopped being intimate
in October, 2014. In the middle of January, 2015, the
defendant sent her text messages that caused her to
contact the police. The defendant texted Wilma a warn-
ing that she should ‘‘[c]hoose wisely,’’ that the victim’s
mother had performed oral sex on him during the rela-
tionship, that his attorney was going to ‘‘rip [you all] a
new [a]sshole,’’ that she was going to find out what the
defendant was ‘‘[a]bout,’’ that ‘‘[d]ecisions come with
consequences,’’ that he hated her because she aban-
doned him, that she played ‘‘both sides of the fence’’
and would ‘‘pay [for her] betrayal,’’ and that he was
standing on her ‘‘corner . . . .’’ These text messages
frightened Wilma. A police detective conducted a sec-
ond interview with her on January 23, 2015.
The state charged the defendant in three separate
informations. The informations were consolidated for
trial, which occurred over several days in October, 2016.
The jury found the defendant guilty of manslaughter
in the first degree, tampering with a witness (Wilma),
intimidating a witness (Wilma) and evasion of responsi-
bility in the operation of a motor vehicle. The court
accepted the verdicts and, on December 9, 2016, sen-
tenced the defendant to twenty years incarceration for
the manslaughter conviction, ten years incarceration,
execution suspended after five years for the evasion of
responsibility conviction, ten years incarceration, exe-
cution suspended after five years for the intimidating
a witness conviction and ten years incarceration for
the tampering with a witness conviction. The sentences
for the evasion of responsibility and intimidating a wit-
ness counts were to run consecutively to the sentence
for the manslaughter count; the sentence for tampering
with a witness was to run concurrently with the other
counts. Thus, the defendant’s total effective sentence
was forty years incarceration, execution suspended
after thirty years, and five years probation with certain
conditions. This appeal followed. Additional facts will
be set forth as needed.
I
The defendant first claims that there was insufficient
evidence to support his conviction of tampering with
a witness and intimidating a witness. Specifically, he
argues that his conviction for these two crimes ‘‘must
be vacated because the state failed to prove that any
threats [he] made were intended to prevent or affect
[Wilma’s] testimony. The texts show that [the] defen-
dant was infuriated with her because she had been
supporting [the victim’s] family and aligning herself
with her brother behind his back. The threats were
made because of her betrayal and were not about any
future testimony she might give.’’ The state counters
that the evidence was sufficient to support the finding
that the defendant’s threats ‘‘were not simply rants moti-
vated by anger over her perceived betrayal and disloy-
alty, but were intended to influence or prevent any
testimony that she might give against him at a criminal
trial.’’ We agree with the state.
As an initial matter, we set forth our standard of
review and relevant legal principles. ‘‘A defendant who
asserts an insufficiency of the evidence claim bears an
arduous burden.’’ (Internal quotation marks omitted.)
State v. Reed, 176 Conn. App. 537, 545, 169 A.3d 326,
cert. denied, 327 Conn. 974, 174 A.3d 194 (2017); State
v. Leandry, 161 Conn. App. 379, 383, 127 A.3d 1115,
cert. denied, 320 Conn. 912, 128 A.3d 955 (2015). ‘‘The
standard of review [that] we [ordinarily] apply to a claim
of insufficient evidence is well established. In reviewing
the sufficiency of the evidence to support a criminal
conviction we apply a two-part test. First, we construe
the evidence in the light most favorable to sustaining
the verdict. Second, we determine whether upon the
facts so construed and the inferences reasonably drawn
therefrom the [finder of fact] reasonably could have
concluded that the cumulative force of the evidence
established guilt beyond a reasonable doubt. . . . In
evaluating evidence, the trier of fact is not required to
accept as dispositive those inferences that are consis-
tent with the defendant’s innocence. . . . The trier may
draw whatever inferences from the evidence or facts
established by the evidence it deems to be reasonable
and logical. . . . This does not require that each subor-
dinate conclusion established by or inferred from the
evidence, or even from other inferences, be proved
beyond a reasonable doubt . . . because this court has
held that a [fact finder’s] factual inferences that support
a guilty verdict need only be reasonable. . . .
‘‘[A]s we have often noted, proof beyond a reasonable
doubt does not mean proof beyond all possible doubt
. . . nor does proof beyond a reasonable doubt require
acceptance of every hypothesis of innocence posed by
the defendant that, had it been found credible by the
trier, would have resulted in an acquittal. . . . [I]n
[our] process of review, it does not diminish the proba-
tive force of the evidence that it consists, in whole or
in part, of evidence that is circumstantial rather than
direct. . . . It is not one fact . . . but the cumulative
impact of a multitude of facts [that] establishes guilt in
a case involving substantial circumstantial evidence.’’
(Internal quotation marks omitted.) State v. Seeley, 326
Conn. 65, 72–73, 161 A.3d 1278 (2017); see State v.
Dubuisson, 183 Conn. App. 62, 68–69, 191 A.3d 229,
cert. denied, 330 Conn. 914, 193 A.3d 560 (2018). Simply
stated, ‘‘[o]n appeal, we do not ask whether there is a
reasonable view of the evidence that would support a
reasonable hypothesis of innocence. We ask, instead,
whether there is a reasonable view of the evidence that
supports the jury’s verdict of guilty.’’ (Internal quotation
marks omitted.) State v. Chemlen, 165 Conn. App. 791,
817, 140 A.3d 347, cert. denied, 322 Conn. 908, 140 A.3d
977 (2016).
Next, we turn to the relevant statutory language for
§§ 53a-151 and 53a-151a. See, e.g., State v. Pommer, 110
Conn. App. 608, 613, 955 A.2d 637, cert. denied, 289
Conn. 951, 961 A.2d 418 (2008). Section 53a-151 (a)
provides: ‘‘A person is guilty of tampering with a witness
if, believing that an official proceeding is pending or
about to be instituted, he induces or attempts to induce
a witness to testify falsely, withhold testimony, elude
legal process summoning him to testify or absent him-
self from any official proceeding.’’ Simply stated, ‘‘liabil-
ity under § 53a-151 hinges on the mental state of the
perpetrator in engaging in the conduct at issue—his
intent to induce a witness to testify falsely [or withhold
testimony, elude legal process or absent himself or her-
self from the proceeding]—not on whether he must
overcome by coercive means the will of a witness reluc-
tant to do so.’’ State v. Coleman, 83 Conn. App. 672,
678, 851 A.2d 329, cert. denied, 271 Conn. 910, 859 A.2d
571 (2004), cert. denied, 544 U.S. 1050, 125 S. Ct. 2290,
161 L. Ed. 2d 1091 (2005); see also State v. Ortiz, 312
Conn. 551, 562–63, 93 A.3d 1128 (2014); State v. Cavallo,
200 Conn. 664, 668–72, 513 A.2d 646 (1986); State v.
Bennett-Gibson, 84 Conn. App. 48, 59, 851 A.2d 1214,
cert. denied, 271 Conn. 916, 859 A.2d 570 (2004).
Section 53a-151a (a) provides: ‘‘A person is guilty of
intimidating a witness when, believing that an official
proceeding is pending or about to be instituted, such
person uses, attempts to use or threatens the use of
physical force against a witness or another person with
intent to (1) influence, delay or prevent the testimony
of the witness in the official proceeding, or (2) induce
the witness to testify falsely, withhold testimony, elude
legal process summoning the witness to testify or
absent himself or herself from the official proceeding.’’
Our Supreme Court has stated that ‘‘[i]n light of the
close relationship between §§ 53a-151 (a) and 53a-151a
(a), it is appropriate to give the same phrase in each
statute the same meaning.’’ State v. Sabato, 321 Conn.
729, 747, 138 A.3d 895 (2016).
The following additional facts are necessary for our
discussion. The defendant and Wilma began dating in
late 2011. On August 9, 2014, she was with the defendant
until approximately 9 p.m. She did not learn of the
victim’s death until the next morning. On August 21,
2014, when she spoke with a police detective, Heitor
Teixeira, she did not reveal the threats made by the
defendant, or his desire and efforts to obtain a gun
on the night of the incident. She also agreed with the
prosecutor’s statement that the defendant ‘‘seemed just
fine’’ on that date. She subsequently informed the defen-
dant of this police interview.
After the incident but prior to the end of their relation-
ship, Wilma, who knew that the defendant had been
arrested and released on bail, made efforts not to be
seen with him. Wilma saw the defendant only about
three or four times after August, 2014. In January, 2015,
Wilma attended court proceedings to support the
mother of the victim.
In mid-January, 2015, over the course of several days,
the defendant sent Wilma a number of text messages,
which were entered into evidence. In the text messages
sent on January 14, 2015, the defendant expressed
regret and sorrow over the end of their relationship.6
Two days later, however, the content and tenor of the
text messages abruptly changed into insults and
threats.7 Wilma did not respond to these texts; instead,
she met with Teixeira on January 23, 2015.
On appeal, the defendant challenges only the intent
element of the tampering with a witness and intimidat-
ing a witness charges.8 ‘‘[D]irect evidence of the
accused’s state of mind is rarely available. . . . There-
fore, intent is often inferred from conduct . . . and
from the cumulative effect of the circumstantial evi-
dence and the rational inferences drawn therefrom.
. . . [A]ny such inference cannot be based on possibili-
ties, surmise or conjecture. . . . It is axiomatic, there-
fore, that [a]ny [inference] drawn must be rational and
founded upon the evidence.’’ (Internal quotation marks
omitted.) State v. Robert S., 179 Conn. App. 831, 836,
181 A.3d 568, cert. denied, 328 Conn. 933, 183 A.3d 1174
(2018); see also State v. Griffin, 184 Conn. App. 595,
615–16, 195 A.3d 723, cert. denied, 330 Conn. 941, 195
A.3d 692, 693 (2018); State v. O’Donnell, 174 Conn. App.
675, 687–88, 166 A.3d 646, cert. denied, 327 Conn. 956,
172 A.3d 205 (2017). ‘‘For example, intent may be
inferred from the events leading up to, and immediately
following, the conduct in question . . . the accused’s
physical acts and the general surrounding circum-
stances. . . . [W]hen a jury evaluates evidence of a
defendant’s intent, it properly rel[ies] on its common
sense, experience and knowledge of human nature in
drawing inferences and reaching conclusions of fact.’’
(Internal quotation marks omitted.) State v. Williams,
172 Conn. App. 820, 828, 162 A.3d 84, cert. denied, 326
Conn. 913, 173 A.3d 389 (2017). Additionally, ‘‘it is a
permissible, albeit not a necessary or mandatory, infer-
ence that a defendant intended the natural conse-
quences of his voluntary conduct.’’ (Emphasis in
original; internal quotation marks omitted.) State v.
Bennett-Gibson, supra, 84 Conn. App. 53.
The defendant argues that his ‘‘text messages had
nothing to do with any trial testimony Wilma might
have given. Rather, the threats pertained to her past
action of siding with [the victim’s] family and her
brother. The most that can be gleaned from the texts
was that he was threatening retaliation for her betrayal.
There simply is no indication that he was threatening
her to prevent her from testifying.’’ This interpretation
of evidence represents a conclusion that could have
been reached by the fact finder. Nevertheless, a reason-
able jury, in considering all of the evidence up to the
time the defendant sent the text messages to Wilma
and the surrounding circumstances, also could have
inferred that he had intended to prevent her from testi-
fying at his criminal trial. Thus, mindful of our limited
review; see State v. Bush, 325 Conn. 272, 304, 157 A.3d
586 (2017) (reviewing court does not sit as thirteenth
juror); the defendant’s sufficiency claim must fail.
The defendant sent the text messages to Wilma in
the time period after his arrest, but prior to his criminal
trial. Additionally, Wilma, following the end of her
romantic relationship with the defendant, had attended
court proceedings and supported the victim’s mother.
The defendant twice told Wilma to ‘‘[c]hoose wisely’’
and that the victim’s mother would not ‘‘be around’’ at
the conclusion of the proceedings. He referred to the
upcoming legal proceedings when he cautioned Wilma
that his attorney would ‘‘rip . . . y’all a new [a]sshole
. . . .’’ The defendant further stated that Wilma was
being ‘‘us[ed]’’ and that her decisions came with conse-
quences. He then accused Wilma of ‘‘playing both sides
of the fence’’ and that stated she had betrayed him,
despite his loyalty to her. Finally, he threatened her by
proclaiming that he was ‘‘standing on [her] corner
. . . .’’
Without resorting to speculation or conjecture, the
jury reasonably could have inferred that the defendant
intended to affect Wilma’s testimony in violation of
§§ 53a-151 (a) and 53a-151a (a). The state presented
evidence that the defendant, by telling Wilma to choose
between supporting him or the victim’s family, by refer-
encing their past romantic relationship and his loyalty
to her, and by threatening and insulting her, sought
either to prevent her from testifying or to induce her
to testify falsely. Moreover, on the night of the victim’s
death, the defendant had spoken with Wilma about
‘‘hurting others’’ and had attempted to obtain a gun.
The jury reasonably could have concluded that the
defendant wanted to prevent such evidence from being
heard at his criminal trial. We conclude, therefore, that
there was evidence supporting the jury’s conclusion
that he had the requisite mental state to violate §§ 53a-
151 (a) and 53a-151a (a).9 Accordingly, we conclude
that his claim of evidentiary insufficiency must fail.
II
The defendant next claims that the court improperly
permitted certain testimony from the medical examiner.
Specifically, he argues that the court erred by allowing
the medical examiner to testify that the manner of death
in this case was homicide because this conclusion was
not based on her medical expertise, but on information
she had received from the police. The state counters
that the court did not abuse its discretion in permitting
such testimony and that certain aspects of the defen-
dant’s claim are not properly before this court. We agree
with the state.
The following additional facts are necessary for our
discussion. The defendant filed a motion in limine dated
October 17, 2016, seeking to preclude certain testimony
from Susan Williams, a pathologist in the Office of the
Chief Medical Examiner, who had performed the
August 11, 2014 autopsy of the victim. The defendant
argued that on the date of the autopsy, Williams listed
the manner of death as ‘‘[c]ircumstances pending fur-
ther investigation.’’ On December 24, 2014, she
amended the manner of death to homicide. The defen-
dant contended that this amendment was based not on
Williams’ medical expertise but on the completion of
the police investigation, and, therefore, the jury would
not need her testimony on the manner of the victim’s
death, which was an ultimate issue in the case.
On October 18, 2016, the court heard argument on
the defendant’s motion in limine outside of the presence
of the jury. Defense counsel argued that Williams’ deter-
mination as to the manner of death was not based
on her medical expertise, and therefore her testimony
would not assist the jury. The state responded that
defense counsel had ‘‘gloss[ed] over’’ the portion of § 7-
3 of the Connecticut Code of Evidence, which provides
that ‘‘an expert witness may give an opinion that
embraces an ultimate issue where the trier of fact needs
expert assistance in deciding the issue.’’ The state also
noted that the medical examiner’s office had a statutory
duty to investigate the victim’s death,10 and to issue
a report11 and a death certificate.12 The state further
represented to the court that the report from the medi-
cal examiner’s office must classify the manner and
cause of death as (1) unable to determine, (2) acciden-
tal, (3) suicide, (4) natural or (5) homicide. After further
argument, defense counsel again claimed that Williams
had amended her classification to homicide on the basis
of the police investigation, and not her medical exper-
tise. Therefore, her testimony was not necessary to
explain the cause of death to the jury.
The court denied the motion in limine. It reasoned
that Williams had a statutory obligation to identify the
cause and the manner of death,13 and that defense coun-
sel could cross-examine Williams as to whether her
ultimate conclusion of homicide was based on the
police investigation. It also determined that the objec-
tion went to the weight, and not the admissibility, of
Williams’ testimony.
Williams testified later that day. At the outset of her
testimony, Williams indicated that she was board certi-
fied in, inter alia, forensic pathology, which is the medi-
cal specialty of determining the cause and manner of
death. She stated that the victim had died from his brain
injuries and that the manner of death was homicide.
During cross-examination, Williams testified that she
had a statutory obligation to provide both the cause of
death and the manner of death. Defense counsel posed
the following question to Williams: ‘‘And when you did
the autopsy on August 11, 2014, what was the manner
of death that you had concluded at that point in time?’’
Williams responded: ‘‘So, when the investigation is still
ongoing, we say circumstances pending further investi-
gation. . . . And that’s what I did in this case.’’ Williams
further explained that when a pedestrian is struck by
a motor vehicle, it could be an accident, or a suicide
or a homicide, depending on the particular facts and
circumstances of each particular incident. Williams
stated that the information she received from the police
investigation assisted with her decision to classify the
manner of death as a homicide. On redirect examina-
tion, Williams noted that, similar to a motor vehicle
incident, the manner of death from a single gunshot
could be a homicide, a suicide or an accident. Williams
further explained that pathologists would consider the
context of the events, as obtained by the police, to
assist in the determination of the manner of death.
We begin by setting forth our standard of review and
the relevant legal principles. ‘‘We review a trial court’s
decision [regarding the admission of] expert testimony
for an abuse of discretion. . . . We afford our trial
courts wide discretion in determining whether to admit
expert testimony and, unless the trial court’s decision
is unreasonable, made on untenable grounds . . . or
involves a clear misconception of the law, we will not
disturb its decision. . . . Although we afford trial
courts significant discretion, [w]here it clearly appears
that an expert witness is qualified to give an opinion,
the exclusion of his testimony may be found to be [an
abuse of discretion]. . . . To the extent the trial court
makes factual findings to support its decision, we will
accept those findings unless they are clearly improper.
. . . If we determine that a court acted improperly with
respect to the admissibility of expert testimony, we will
reverse the trial court’s judgment and grant a new trial
only if the impropriety was harmful to the appealing
party. . . .
‘‘We also note our standards for admitting expert
testimony. Expert testimony should be admitted when:
(1) the witness has a special skill or knowledge directly
applicable to a matter in issue, (2) that skill or knowl-
edge is not common to the average person, and (3)
the testimony would be helpful to the court or jury in
considering the issues. . . . [T]o render an expert opin-
ion the witness must be qualified to do so and there must
be a factual basis for the opinion.’’ (Internal quotation
marks omitted.) State v. Edwards, 325 Conn. 97, 123–24,
156 A.3d 506 (2017); see also State v. Beavers, 290 Conn.
386, 414, 963 A.2d 956 (2009); State v. Rivera, 169 Conn.
App. 343, 368, 150 A.3d 244 (2016), cert. denied, 324
Conn. 905, 152 A.3d 544 (2017); see generally Conn.
Code Evid. § 7-2.
On appeal, the defendant argues that Williams testi-
fied regarding the ultimate issue in the case, that is,
whether the defendant intentionally hit the victim with
the Avalanche or had done so accidently. ‘‘By testifying
that the death was a homicide, the expert [Williams]
gave her opinion that the state’s version of events was
correct without basing it on any expertise or specialized
knowledge.’’ He then directs us to § 7-3 (a) of the Con-
necticut Code of Evidence, which provides: ‘‘Testimony
in the form of an opinion is inadmissible if it embraces
an ultimate issue to be decided by the trier of fact,
except that, other than as provided in subsection (b),
an expert witness may give an opinion that embraces
an ultimate issue where the trier of fact needs expert
assistance in deciding the issue.’’ Put a different way,
the defendant contends that because Williams’ testi-
mony was not based on her medical knowledge and
training, but on information obtained from the police
investigation, her testimony regarding the manner of
the victim’s death did not provide the jury with expert
assistance with respect to that issue. Thus, he argues
that the general rule regarding the inadmissibility of
testimony that embraced the ultimate issue applied,
and the testimony should not have been permitted. In
support of this argument, the defendant cites out-of-
state authority.14 He further contends that he was
harmed as a result of this evidentiary impropriety. We
are not persuaded.
Section 7-3 of the Connecticut Code of Evidence
adopted the common-law rule that a witness’ opinion
on an ultimate issue in the case is inadmissible. State
v. Finan, 275 Conn. 60, 66, 881 A.2d 187 (2005); see
also C. Tait & E. Prescott, Connecticut Evidence (5th
Ed. 2014) § 7.17.2, pp. 486–87. ‘‘The common-law rule
protects the defendant’s right to have the jury determine
his guilt or innocence.’’ State v. Finan, supra, 66. The
ultimate issue in a case is one that ‘‘cannot reasonably
be separated from the essence of the matter to be
decided [by the trier of fact].’’ (Internal quotation marks
omitted.) Id.; see also State v. Favoccia, 306 Conn. 770,
786, 51 A.3d 1002 (2012).
Our law recognizes, however, that ‘‘[e]xperts can
sometimes give an opinion on an ultimate issue if the
trier, in order to make intelligent findings, needs expert
assistance on the precise question on which it must
pass.’’ C. Tait & E. Prescott, supra, § 7.17.3, p. 487; see
also Conn. Code Evid. § 7-3 (a) (‘‘an expert witness may
give an opinion that embraces an ultimate issue where
the trier of fact needs expert assistance in deciding the
issue’’); State v. Taylor G., 315 Conn. 734, 761, 110 A.3d
338 (2015); State v. Lamme, 19 Conn. App. 594, 603,
563 A.2d 1372 (1989), aff’d, 216 Conn. 172, 579 A.2d 484
(1990). In the present case, the defendant does not
challenge, as a general matter, the propriety of Williams’
expert testimony. Instead, the defendant contends that
her opinion was improper, under these facts and cir-
cumstances, because it was not based on her medical
expertise, but rather on information she had received
from the police investigation. Put differently, the defen-
dant claims that because Williams relied primarily on
police information, and not on her medical expertise
in reaching her conclusion that the manner of death
was a homicide, this testimony was not that of an expert
and thus inadmissible.
The defendant acknowledges that there are no Con-
necticut cases to support his claim, and relies on out-
of-state authority. For example, he directs us to State
v. Jamerson, 153 N.J. 318, 324, 708 A.2d 1183 (1998),
where the defendant, Charles L. Jamerson, was con-
victed of reckless manslaughter, in part on the basis of
his having operated a motor vehicle while under the
influence of alcohol. His strategy at trial was to show
that his conduct did not amount to recklessness and
that the victims’ vehicle had failed to stop at a stop
sign. Id. ‘‘The [s]tate introduced testimony through a
county medical examiner that [Jamerson] was
operating his vehicle in a reckless manner at the time
it collided with the decedent’s vehicle.’’ Id.
At the trial, the medical examiner, Claus Speth, was
qualified as a forensic pathologist, but not as an acci-
dent reconstructionist. Id., 330. Nevertheless, Speth
considered the facts and witnesses’ statements to con-
clude that Jamerson had caused the accident and had
driven under the influence of alcohol. Id. Speth also
determined, on the basis of witness statements and his
own personal observations, that there was no evidence
that the victims ‘‘ ‘had violated the stop sign,’ ’’ and
that Jamerson had operated his vehicle in violation of
numerous traffic laws. Id., 331–32. Finally, Speth per-
sonally interviewed a witness to the accident and con-
cluded that from her vantage point, she could not have
observed the stop sign that she claimed the victims had
failed to observe. Id., 333.
The New Jersey Supreme Court concluded that Speth
had been qualified only as an expert in forensic pathol-
ogy and, therefore, should not have been permitted to
testify as to matters that would be within the purview of
an accident reconstructionist. Id., 338–39. Additionally,
under these facts, the circumstances of the accident
were within the understanding of an average juror, and,
thus, expert testimony was improper. Id., 340–41.
Finally, Speth improperly commented on the credibility
of another witness. Id., 341.
The defendant also refers us to cases from other
jurisdictions that have established a general rule that
the opinion of a medical examiner is inadmissible when
the medical examiner relies primarily or largely on the
testimony of fact witnesses, such as police officers,
rather than on his or her medical knowledge, to reach
an opinion as to the manner of death. See, e.g., State
v. Sosnowicz, 229 Ariz. 90, 95, 270 P.3d 917 (App. 2012)
(medical examiner’s opinion that manner of death was
homicide and not accident was based on circumstances
as reported to him by police and not on his specialized
medical knowledge); State v. Tyler, 867 N.W.2d 136,
156 (Iowa 2015) (where medical examiner is too reliant
on witness statement or information obtained through
police investigation in forming opinions on cause or
manner of death, such opinions may not assist trier of
fact); State v. Vining, 645 A.2d 20, 20–21 (Me. 1994)
(medical examiner’s opinion of homicide was not prod-
uct of her expertise and was based solely on her discus-
sions with police investigators and thus amounted to
assessment of credibility and investigatory acumen of
police).
The present case is distinguishable from the sibling
authority cited in the defendant’s brief. At the outset,
we note that General Statutes § 19a-407 (c) specifically
grants access to the Office of the Chief Medical Exam-
iner to any object, writings or other articles of property
in the custody of any law enforcement office when
such items may be useful in determining the manner
of death.15 Upon such a request, such law enforcement
officials shall deliver the items and any reports of the
analysis of such items by law enforcement. See General
Statutes § 19a-407 (c). Thus, our statutes clearly con-
template and support Williams’ testimony that coopera-
tion and coordination between law enforcement and
the Office of the Chief Medical Examiner occur to deter-
mine the manner of death.
Next, the facts and circumstances of the present case
support a conclusion that Williams’ determination of
the victim’s manner of death was based on her medical
knowledge and expertise, and not solely or primarily
on the police reports. Williams conducted the autopsy
of the victim on August 11, 2014. She documented the
injuries suffered by the victim, including abrasions to
the left side of the head, forehead and left lower back,
bruising on the left lower back and left flank, skull
fractures, subarachnoid hemorrhage, signs of brain
injury, skin lacerations, and numerous fractures of both
scapula, the neck, lumbar vertebrae and the left femur.
Williams consulted with Dean Uphoff, a neuropatholo-
gist, regarding the injuries to the victim’s brain, and
reviewed the victim’s medical records from the hospital
regarding the efforts to save his life. It is clear, therefore,
that Williams’ ultimate conclusion as to the manner of
death was not made solely or largely on the basis of
the police reports, but rather on her medical knowledge,
training and experience.16 These facts stand in stark
contrast to those set forth in State v. Jamerson, supra,
153 N.J. 318. Accordingly, we conclude that the court
did not abuse its discretion in denying the motion in
limine and permitting Williams to testify as to the man-
ner of death.
III
Next, the defendant claims that the court abused its
discretion in admitting certain prior misconduct evi-
dence. Specifically, the defendant argues that the court
improperly admitted evidence that he (1) had damaged
cars in his neighborhood, (2) had challenged Wilma’s
father to a physical fight and (3) while intoxicated,
had thrown a bloody ice pack at hospital staff.17 The
defendant contends that this evidence was irrelevant,
and that its prejudicial impact outweighed its probative
value such that he was harmed, thereby necessitating
a new trial. The state counters that the court did not
abuse its discretion in admitting the challenged evi-
dence and that, in any event, such error was harmless.
We agree with the state that the court’s evidentiary
rulings did not constitute an abuse of discretion.
The following additional facts are necessary for our
review of this claim. During her direct examination,
Wilma testified that on the evening of August 9, 2014, the
defendant made threatening statements against various
individuals, including her brother, William. During
cross-examination, she indicated that during her Janu-
ary 23, 2015 interview with Detective Teixeira, she
stated that the defendant had threatened to kill her
and her father in addition to her brother and another
individual. She then explained that she had continued
her physical relationship with the defendant, despite
his verbal threats, until October, 2014, to protect herself,
her brother and her father.18
Prior to its redirect examination, the state made a
proffer as to certain misconduct evidence. Outside of
the presence of the jury, Wilma stated that, in May,
2014, the defendant said that ‘‘he was going to get even
for everything,’’ and had challenged her father to a phys-
ical fight. Second, Wilma testified that, in November,
2013, the defendant had used a baseball bat to damage
vehicles around Wilma’s house because he lost his wal-
let containing recently collected rent money. Third, she
indicated that, prior to August 9, 2014, the defendant
had threatened her five or six times when he was angry.
Finally, she stated that she did not go to the police after
hearing his August 9, 2014 threats because she ‘‘thought
. . . he would forget about it in the morning.’’
Defense counsel argued that breaking car windows
in November, 2013, was not relevant evidence. The state
claimed that during cross-examination, Wilma’s
‘‘motives and reason’’ were raised, and, therefore, the
incidents of the defendant’s prior misconduct were
‘‘highly probative and relevant.’’
The court then ruled: ‘‘All right. My ruling is that,
based on what I’ve heard from the proffer, while cer-
tainly the fact that he damaged windows of people’s
cars in the neighborhood, and that he had threatened
her father, agreed to—wanted to fight him, and her
knowledge of his temper all are probative of the issue
which defense opened up on cross-examination, the
entire cross-examination was designed to make this
witness appear to be lying about the threats the defen-
dant made on August 9th and what she observed on
August 9th as a fabrication after the fact. She was specif-
ically asked and pointed to her testimony—her state-
ments as to Detective Teixeira about she didn’t know
anything, and if she could make up a story, and her
reasons for not being up front with police. And she was
questioned extensively about what she told the police
the second time she met with Detective Teixeira and
why she wouldn’t. She was—specifically said, you
know, basically, you—someone threatens your father,
your brother, you, and you do nothing about it, all to
suggest that this is a fabrication, and that her motives
for not coming to the police are false. Therefore, the
door has been opened, and it is probative for the jury
to understand. And she was asked about the nature of
their relationship, why she maintained sexual relations
with the defendant. All of which go to her experience
with this defendant, her motives for doing what she did
when—and when she did it. And so for those reasons,
I will allow [it to come into evidence] . . . .
‘‘All of the cross-examination questions were
designed to paint this witness as lying; therefore, her
experience with the defendant directly relates to the
cross-examination of the witness and her reasons for
doing what she did. So, I will allow her testimony relat-
ing to the altercation with her father, that—that what
he stated, that he wanted to get even, her observations
about his temper, given the length of their relationship
and her reasons, as well as the fact that he smashed
windows. That he threatened her in the past goes to
the believability of why she would or would not have
gone to the police the day of August 9th. . . . And the
state ought to be entitled to ask her about that, since she
was extensively cross-examined about her credibility
as to why she did or did not tell the police the entire
story on August 21st when she met with them.’’
After a recess, the court summarized the basis for
its ruling and indicated that it would provide the jury
with a limiting instruction either prior to or at the con-
clusion of Wilma’s testimony. Defense counsel then
objected, arguing that the prejudicial effect of this evi-
dence far outweighed its probative value. In a dialogue
with defense counsel, the court noted that the cross-
examination of Wilma ‘‘was very broad, very extensive,
challenging her motivations, challenging her credibility
. . . . You questioned her about the nature of their
relationship and why it changed and when it changed
and why she did what she did, suggesting that she made
up the story. And therefore, because your cross-exami-
nation was so broad, it opened the door to her knowl-
edge of your client’s temper, and how he acts and reacts,
to come in. And for that reason, I find the evidence to
be—yes, it’s prejudicial, but it’s also highly probative
in light of the cross-examination. The probative value
far outweighs the prejudicial impact of this evidence.’’
After the jury returned, the state conducted its redi-
rect examination of Wilma. She first testified that the
defendant had a violent demeanor and a temper at
times. She iterated that prior to August 9, 2014, he had
threatened her five or six times. Wilma informed the
jury that in May, 2014, the defendant had challenged
her father to a fight. She further stated that in the year
prior to August 9, 2014, the defendant had told her
about an incident in which he damaged a number of
automobiles with a crowbar. He explained that he had
lost his wallet containing rents that had been paid to
him as the reason for this conduct. At the conclusion
of Wilma’s testimony, the court provided the jury with
a limiting instruction with respect to his conduct toward
Wilma’s father and the smashing of car windows.19
The defendant subsequently testified. He stated that
despite never shooting or owning a gun, he had wanted
to purchase one for protection. He further testified that,
with respect to his relationship with Wilma, they never
had a serious argument and that it was a ‘‘pleasant,
respectful [relationship] from both sides.’’ He also
stated that prior to January, 2015, he never verbally
threatened or physically abused her. The defendant
indicated that in January, 2015, he was very lonely and
depressed, drinking heavily, and had contemplated tak-
ing his own life. On January 16, 2015, after drinking
alcohol and feeling resentment toward Wilma for ‘‘dis-
appearing’’ from his life and choosing to ‘‘side’’ with
the victim’s family, the defendant sent her a series of
derogatory and insulting text messages. See footnotes
6 and 7 of this opinion.
Outside the presence of the jury, the state indicated
that it would cross-examine the defendant regarding
his smashing of car windows on November 2, 2013.
Additionally, the state intended to question the defen-
dant regarding an incident in March, 2014, where the
defendant, with drugs or alcohol in his system, was
taken to the hospital, threatened the staff, threw medi-
cal equipment and left before receiving treatment. The
court then noted that, in addition to these two incidents,
the state also planned to cross-examine the defendant
regarding his attempt to engage Wilma’s father in a
physical altercation.
After hearing argument, the court observed that dur-
ing his direct examination, the defendant had denied
threatening Wilma prior to the January, 2015 text mes-
sages, and that those text messages were a result of
his depression and use of alcohol following the end of
their relationship. ‘‘So, the impression that he left this
jury with is that his threatening behavior in the text
messages were fueled by a new approach in his life,
which is to drink his life away. By using the term, at
this point in my life, he’s trying to leave the jury with
the impression that his drinking and substance abuse
began after . . . August 9, 2014. When, in fact, a lot of
these incidents, and the ones that brought him to the
hospital, would suggest otherwise. So, given his testi-
mony about his conduct and his own self-serving state-
ment that prior to this time in his life, and only at this
point in his life, he started drinking. I think he’s opened
up the door to some of this history.’’
During cross-examination, the state questioned the
defendant about his smashing of car windows on
November 2, 2013. The defendant admitted that after
the car windows incident, he was taken to the hospital
and was ‘‘highly intoxicated . . . .’’ The state then
turned to the events of March 22, 2014, and introduced
into evidence the defendant’s medical records from that
night, his second visit to the hospital while intoxicated.
This exhibit provided that the defendant had arrived at
the emergency department of Bridgeport Hospital at
8:09 p.m. He claimed to have been assaulted and had a
laceration under his left eye. In the notes electronically
signed at 8:42 p.m., a registered nurse wrote that the
defendant had left without being treated by medical
personnel after ‘‘swearing’’ and throwing a ‘‘bloody ice
pack’’ at an employee due to a long wait. In his testi-
mony, the defendant seemed to deny complaining about
the wait time to be seen, as well as throwing the ice
pack.20
A
First, we consider the defendant’s arguments regard-
ing the November 2, 2013 incident involving his smash-
ing of car windows and his May, 2014 challenge to
physically fight Wilma’s father. The court ruled that
Wilma’s testimony regarding these two incidents was
relevant to and highly probative of her credibility,
namely, ‘‘why she would or would not have gone to
the police the day of August 9th.’’ The court further
indicated that defense counsel had opened the door in
his cross-examination of Wilma. The court specifically
noted defense counsel’s efforts to suggest that her rea-
sons for not going to the police on August 9, 2014, were
false. Defense counsel then argued that the prejudicial
impact of this evidence outweighed the probative value.
The court considered, and rejected this argument, con-
cluding that the probative value far outweighed the
prejudice.
1
The trial court appears to have permitted Wilma’s
testimony as to these two incidents as both prior mis-
conduct evidence21 and because defense counsel
opened the door to the prosecutor’s questioning as to
those incidents.22 See, e.g., State v. Zachary F., 151
Conn. App. 580, 584–85, 95 A.3d 563 (inadmissible prior
misconduct evidence may become admissible through
‘‘opening the door’’ doctrine), cert. denied, 314 Conn.
919, 100 A.3d 851 (2014). We emphasize that defense
counsel’s strategy during his cross-examination of
Wilma, in part, was to raise a question of credibility
in the minds of the members of the jury. Specifically,
defense counsel questioned Wilma as to why she would
continue to engage in sexual conduct with the defen-
dant after he had threatened her, her father and her
brother, and not report these threats to the police. Sim-
ply put, defense counsel attempted to persuade the jury
that Wilma was not a credible witness.
In State v. Estrella J.C., 169 Conn. App. 56, 95, 148
A.3d 594 (2016), we noted that § 4-5 (a) of the Connecti-
cut Code of Evidence prohibits the admission of evi-
dence of other crimes, wrongs or acts to prove the
bad character, propensity or criminal tendencies of a
person. Subsection (c) of that provision of our evidence
code provides in relevant part: ‘‘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, com-
mon 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 testi-
mony.’’ (Internal quotation marks omitted.) Id., 96.
We then noted that the official commentary to § 4-5
(c) provides in relevant part: ‘‘Admissibility of other
crimes, wrongs or acts evidence is contingent on satis-
fying the relevancy standards and balancing test set
forth in Sections 4-1 and 4-3, respectively. For other
crimes, wrongs or acts evidence to be admissible, the
court must determine that the evidence is probative of
one or more of the enumerated purposes for which it
is offered, and that its probative value outweighs its
prejudicial effect. . . . The purposes enumerated in
subsection (c) for which other crimes, wrongs or acts
evidence may be admitted are intended to be illustrative
rather than exhaustive. Neither subsection (a) nor sub-
section (c) precludes a court from recognizing other
appropriate purposes for which other crimes, wrongs or
acts evidence may be admitted, provided the evidence
is not introduced to prove a person’s bad character
or criminal tendencies, and the probative value of its
admission is not outweighed by any of the Section 4-3
balancing factors.’’ (Emphasis omitted; internal quota-
tion marks omitted.) Id.
Under the facts of that case, we then concluded that
the uncharged misconduct evidence was relevant to the
issue of the victim’s credibility. Id., 96–97. Specifically,
the victim’s credibility had been called into question as
a result of his testimony that he lied and stole. Id., 98.
The testimony that the defendant in that case had told
the victim to steal was properly used to rehabilitate the
victim’s credibility. Id.
In the present case, the court determined that
allowing Wilma to testify about the November 2, 2013
and May, 2014 incidents functioned as a proper means
to rehabilitate her credibility. Additionally, it concluded
that her testimony regarding these two incidents was
admissible pursuant to the opening the door doctrine
following defense counsel’s attack on her credibility.
We conclude that the court’s rulings that this evidence
was admissible as uncharged misconduct evidence or
admissible pursuant to the opening the door doctrine
did not constitute an abuse of discretion.
2
Next, we turn to the question of whether the prejudi-
cial impact of Wilma’s testimony regarding these two
incidents outweighed its probative value. Defense coun-
sel argued to the trial court that this evidence painted
‘‘the defendant as a bad person, [a] person who loses
their temper, [and it] far outweigh[ed] any probative
value . . . .’’ The court acknowledged that the chal-
lenged testimony was prejudicial. Nevertheless, the
court determined that his evidence was ‘‘highly proba-
tive in light of [Wilma’s] cross-examination’’ and that
any prejudice was ‘‘far’’ outweighed by its probative
value. The court also provided the jury with a limiting
instruction at the conclusion of Wilma’s testimony.
We are mindful that ‘‘[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 mate-
rial, and that its probative value significantly out-
weighed the prejudicial effect, and has instructed the
jury on the limited use of the evidence in order to
safeguard against misuse and to minimize the prejudi-
cial impact . . . we have found no abuse of 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 instructions, which serves to lessen
any prejudice resulting from the admission of such evi-
dence.’’ (Internal quotation marks omitted.) State v.
Morales, 164 Conn. App. 143, 180, 136 A.3d 278, cert.
denied, 321 Conn. 916, 136 A.3d 1275 (2016).
On appeal, the defendant maintains that the evidence
had ‘‘nominal’’ probative value. He ignores, however,
the court’s basis for determining the strong probative
value of this evidence—the prosecutor’s rebuttal of his
attack on Wilma’s credibility during cross-examination.
This evidence served to explain and put into context the
actions and testimony of Wilma, a significant witness
for the state. We are not persuaded that this evidence
improperly inflamed the emotions of the members of
the jury. See State v. Gonzalez, 167 Conn. App. 298,
310–11, 142 A.3d 1227, cert. denied, 323 Conn. 929, 149
A.3d 500 (2016). Attempting to engage Wilma’s father
in a physical altercation and smashing car windows are
less shocking in nature than driving a motor vehicle
into an individual, dragging that individual under the
vehicle or attempting to interfere with the testimony
of a witness. See, e.g., State v. Morales, supra, 164 Conn.
App. 181 (admission of evidence not unduly prejudicial
when prior acts of misconduct substantially less shock-
ing than crime charged); State v. Zubrowski, 101 Conn.
App. 379, 395–96, 921 A.2d 667 (2007) (court did not
abuse discretion in concluding that prejudicial impact
of testimony that defendant had been physically and
verbally abusive to his wife did not outweigh its proba-
tive value in light of nature of murder of wife by slashing
her throat), appeal dismissed, 289 Conn. 55, 956 A.2d
578 (2008), cert. denied, 555 U.S. 1216, 129 S. Ct. 1533,
173 L. Ed. 2d 663 (2009). Additionally, any prejudicial
effect was lessened by the court’s limiting instruction
given to the jury at the conclusion of Wilma’s testimony.
See State v. Zubrowski, supra, 396; see also State v.
Grant, 179 Conn. App. 81, 94, 178 A.3d 437, cert. denied,
328 Conn. 910, 178 A.3d 1041 (2018); State v. Morales,
supra, 181–82.
For these reasons, we conclude that the court did
not abuse its discretion in determining that the proba-
tive value of these two incidents outweighed their preju-
dicial impact. Affording every reasonable presumption
in favor of the court’s ruling, we conclude that the
defendant has not demonstrated a manifest abuse of
discretion or that an injustice resulted. See State v.
Collins, 299 Conn. 567, 592, 10 A.3d 1005, cert. denied,
565 U.S. 908, 132 S. Ct. 314, 181 L. Ed. 2d 193 (2011).
B
Finally, we consider the defendant’s arguments
regarding the March 22, 2014 incident at the hospital
where the intoxicated and belligerent defendant threw
a bloody ice pack at an employee working in the emer-
gency department. As we noted previously, the defen-
dant testified that, at the time he sent the offensive text
messages to Wilma, his life ‘‘was all screwed up.’’ He
stated that during that time period, he was unemployed,
had been forced to leave his home, Wilma had disap-
peared from his life, the holiday season had just ended,
and he had been portrayed as a ‘‘monster’’ by the media.
He claimed to be stressed, consuming an excessive
amount of alcohol and contemplating suicide. His testi-
mony conveyed the impression that the text messages
to Wilma constituted an atypical course of conduct for
him, a result of his mental state and alcohol con-
sumption.
After hearing argument, the court noted that the
defendant ‘‘left this jury with [the impression] that his
threatening behavior in the text messages [was] fueled
by a new approach in his life, which is to drink his life
away. By using the term, at this point in my life, he’s
trying to leave the jury with the impression that his
drinking . . . began after August—August 9, 2014.
When, in fact, a lot of these incidents, and the ones
that brought him to the hospital, would suggest other-
wise. So, given his testimony about his conduct and his
own self-serving statement that prior to this time in his
life, and only at this point in his life, he started drinking.
I think he’s opened the door to some of this history.’’
During cross-examination, the prosecutor questioned
the defendant briefly about his March 22, 2014 visit to
the emergency department at the hospital.23
We iterate that ‘‘a party who delves into a particular
subject during the examination of a witness cannot
object if the opposing party later questions the witness
on the same subject. . . . The party who initiates dis-
cussion on the issue is said to have opened the door
to rebuttal by the opposing party.’’ (Internal quotation
marks omitted.) State v. Frazier, 181 Conn. App. 1, 23,
185 A.3d 621, cert. denied, 328 Conn. 938, 184 A.3d
268 (2018).
During his testimony, the defendant provided the jury
with the impression that he sent the offensive text mes-
sages to Wilma only after he had become depressed
and started drinking heavily. In other words, he claimed
that only the combination of stressors and increased
alcohol consumption in January, 2015, resulted in send-
ing crude messages to Wilma. After this subject area
arose in direct examination, the state was free to pre-
sent evidence that the defendant previously had exhib-
ited similar behavior. On the basis of the defendant’s
direct examination, we cannot say that the court abused
its discretion in concluding that he had opened the door
to other incidents where he had consumed alcohol and
acted in such a manner.
Finally, we consider, and reject, the defendant’s argu-
ment that the prejudicial impact of the March 22, 2014
evidence outweighed its probative value. See State v.
Brown, 309 Conn. 469, 479, 72 A.3d 48 (2013). We note
that the state did not conduct a lengthy examination
regarding this evidence. See State v. Frazier, supra, 181
Conn. App. 25–26. Furthermore, we are not persuaded
that the jury’s hearing testimony and considering docu-
mentary evidence regarding the defendant’s conduct in
the emergency department constituted undue prejudice
given the facts and circumstances of this case. Accord-
ingly, we conclude that the defendant failed to establish
that the prejudicial effect of this evidence outweighed
its probative value. Therefore, this argument fails.
IV
Next, the defendant claims that the court abused its
discretion in admitting into evidence crude and vulgar
text messages he had sent to Wilma. Specifically, he
argues that the prejudicial impact of these ‘‘highly
inflammatory’’ text messages outweighed their proba-
tive value and that their improper admission was harm-
ful. The state counters that the court’s ruling did not
constitute an abuse of discretion and, in the alternative,
that any such error was harmless. We agree that the
court did not abuse its discretion in determining that
the probative value of the text messages outweighed
their prejudicial impact.
The following additional facts are necessary for our
discussion. Outside the presence of the jury, the court
noted the state’s intention to introduce into evidence
the text messages sent by the defendant to Wilma in
January, 2015. Defense counsel objected solely24 on the
ground that ‘‘the prejudicial value of some of these
text messages outweighs the probative value of them.’’
Specifically, he objected to the January 16, 2015 text
message at 9:23 p.m., the two text messages at 10:15
p.m., the text message at 10:28 p.m. and the text mes-
sage at 10:31 p.m. See footnote 7 of this opinion. The
court overruled defense counsel’s objections.25
We set forth the relevant legal principles and our
standard of review. ‘‘Although relevant, evidence may
be excluded by the trial court if the court determines
that the prejudicial effect of the evidence outweighs its
probative value. . . . Of course, [a]ll adverse evidence
is damaging to one’s case, but it is inadmissible only if it
creates undue prejudice so that it threatens an injustice
were it to be admitted. . . . 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. . . .
Reversal is required only whe[n] an abuse of discretion
is manifest or whe[n] injustice appears to have been
done.’’ (Internal quotation marks omitted.) State v.
Small, 180 Conn. App. 674, 683, 184 A.3d 816, cert.
denied, 328 Conn. 938, 184 A.3d 268 (2018); see also
State v. Bell, 113 Conn. App. 25, 45, 964 A.2d 568, cert.
denied, 291 Conn. 914, 969 A.2d 175 (2009). With respect
to the balancing of the probative value and prejudicial
impact, we indulge in every reasonable presumption in
favor of the ruling of the trial court. State v. Estrella
J.C., supra, 169 Conn. App. 99; see also State v. Kalil,
314 Conn. 529, 548, 107 A.3d 343 (2014); State v. Coc-
como, 302 Conn. 664, 671, 31 A.3d 1012 (2011).
‘‘There are situations where the potential prejudicial
effect of relevant evidence would suggest its exclusion.
These are: (1) where the facts offered may unduly
arouse the jury’s emotions, hostility or sympathy, (2)
where the proof and answering evidence it provokes
may create a side issue that will unduly distract the
jury from the main issues, (3) where the evidence
offered and the counterproof will consume an undue
amount of time, and (4) where the defendant, having no
reasonable ground to anticipate the evidence, is unfairly
surprised and unprepared to meet it.’’ State v. DeMatteo,
186 Conn. 696, 702–703, 443 A.2d 915 (1982); see also
State v. Gerald A., 183 Conn. App. 82, 108–109, 191 A.3d
1003, cert. denied, 330 Conn. 914, 193 A.3d 1210 (2018).
The defendant appears to focus this argument on the
first situation, that is, that these text messages, which
he claims painted him as a ‘‘loathsome person,’’ unduly
aroused the hostility and emotions of the jury. We con-
clude that the court did not abuse its discretion in
overruling the objection to the text messages on the
ground that the prejudicial impact outweighed their
probative value. We emphasize that ‘‘[p]rejudice is . . .
measured by . . . the impact of that which is extrane-
ous.’’ State v. DeMatteo, supra, 186 Conn. 703.
In the present case, the court determined, and
defense counsel did not contemporaneously challenge,
that the probative value of the text messages was
‘‘incredibly high and [outweighed] its prejudicial
impact.’’ Thus, the court properly balanced the proba-
tive value of the text messages against their prejudicial
impact. See, e.g., State v. Rosario, 99 Conn. App. 92,
105, 912 A.2d 1064, cert. denied, 281 Conn. 925, 918
A.2d 276 (2007). Specifically, the court noted that the
jury had heard the audio recording of the police inter-
view with the defendant in which he used similar
language.
Case law supports our conclusion. For example, in
State v. Joly, 219 Conn. 234, 248–49, 593 A.2d 96 (1991),
the defendant claimed, inter alia, that the trial court
should have excluded statements from a police detec-
tive recounting the defendant’s unsolicited remarks
made during the execution of a search and seizure war-
rant. The police detective testified that the statements
made by the defendant at his apartment regarding the
fifteen year old murder victim were made in a
‘‘remorseless tenor’’ and contained ‘‘expletives and sex-
ually explicit language.’’ Id., 254. Our Supreme Court
acknowledged that these aspects of the detective’s testi-
mony ‘‘unquestionably had the tendency adversely to
affect the jury’s attitude toward the defendant . . . .’’
Id. Furthermore, it noted that, had it been serving as
the trial court, it may well have determined that this
testimony was too prejudicial. Id. It ultimately con-
cluded, however, that the trial court had not abused
its broad discretion in performing the difficult task of
balancing the probative value against the prejudicial
impact. Id.; see also State v. Bush, 249 Conn. 423, 430–
31, 735 A.2d 778 (1999) (after careful review of record,
no reasonable possibility that epithets used by defen-
dant in conversations where he planned to threaten
witnesses unduly aroused jury’s emotions or unduly
distracted jury from main issue in case). Similarly, we
conclude in the present case that the court properly
considered the prejudicial effect of the defendant’s
crude language and did not abuse its discretion in
allowing the text messages to be admitted into
evidence.
V
Finally, the defendant claims that the court improp-
erly instructed the jury on self-defense, thereby vio-
lating his rights under the fifth, sixth and fourteenth
amendments to the United States constitution.26 Specifi-
cally, he argues that the court improperly (1) instructed
the jury on the initial aggressor and provocation excep-
tions to a claim of self-defense27 and (2) included an
objective standard in the portion of the instructions
explaining the statutory retreat exception to the use of
deadly physical force in self-defense.28 The state count-
ers that, with respect to the former, the court’s instruc-
tions were proper, and as to the latter, the court
committed harmless error in failing to convey the sub-
jective component of the duty to retreat in its instruc-
tions. We agree with the state.
We begin with our standard of review and the legal
principles relevant to a claim of constitutional error in
a jury instruction. ‘‘[I]ndividual jury instructions should
not be judged in artificial isolation . . . but must be
viewed in the context of the overall charge. . . . The
pertinent test is whether the charge, read in its entirety,
fairly presents the case to the jury in such a way that
injustice is not done to either party under the estab-
lished rules of law. . . . Thus, [t]he whole charge must
be considered from the standpoint of its effect on the
[jurors] in guiding them to the proper verdict . . . and
not critically dissected in a microscopic search for pos-
sible error. . . . Accordingly, [i]n reviewing a constitu-
tional challenge to the trial court’s instruction, we must
consider the jury charge as a whole to determine
whether it is reasonably possible that the instruction
misled the jury. . . . In other words, we must consider
whether the instructions [in totality] are sufficiently
correct in law, adapted to the issues and ample for the
guidance of the jury. . . . A challenge to the validity
of jury instructions presents a question of law over
which [we have] plenary review.’’ (Internal quotation
marks omitted.) State v. Newton, 330 Conn. 344, 359–60,
194 A.3d 272 (2018); State v. Si, 184 Conn. App. 402,
410, 194 A.3d 1266 (2018).
Next, we recite our Supreme Court’s ‘‘brief review
of the law of self-defense. Under our Penal Code, self-
defense, as defined in [General Statutes] § 53a-19 (a)
. . . is a defense, rather than an affirmative defense.
. . . Whereas an affirmative defense requires the defen-
dant to establish his claim by a preponderance of the
evidence, a properly raised defense places the burden
on the state to disprove the defendant’s claim beyond
a reasonable doubt. . . . Consequently, a defendant
has no burden of persuasion for a claim of self-defense;
he has only a burden of production. That is, he merely
is required to introduce sufficient evidence to warrant
presenting his claim of self-defense to the jury. . . .
Once the defendant has done so, it becomes the state’s
burden to disprove the defense beyond a reasonable
doubt.’’ (Internal quotation marks omitted.) State v.
O’Bryan, 318 Conn. 621, 631–32, 123 A.3d 398 (2015).
The following additional facts are necessary for our
discussion. During the first days of the trial, the court
observed, and the parties did not dispute, that self-
defense was not an issue in the proceedings. On October
19, 2016, the state called Christopher LaMaine, a Bridge-
port police lieutenant, as a witness. LaMaine testified
that he and other members of the police department
traveled to the defendant’s home on the morning of
August 10, 2014. Upon his arrival, LaMaine noticed dam-
age to the ‘‘front area and the driver’s side’’ of the
defendant’s Avalanche. The defendant invited the police
officers into his home shortly after 9 a.m. LaMaine and
Teixeira interviewed the defendant in his kitchen. The
defendant initially claimed to have been at his brother’s
home in Dayville at 10 p.m. the prior night, but he
eventually admitted that he had operated the Avalanche
in Bridgeport at that time.
During direct examination by the prosecutor,
LaMaine recounted the conversation he had with the
defendant regarding the physical condition of the Ava-
lanche:
‘‘A. . . . I asked him about the condition of his vehi-
cle the night before; if that damage had been there.
Initially, he told me that that damage was old, that it
occurred that April, about four months earlier. Then he
went on to tell me the story about how it had occurred.
And then later he changed his story.
‘‘Q. And the story changed to one—when he changed
his story, was it as to when it occurred or how it
occurred or both?
‘‘A. Both.
‘‘Q. Okay. And how did it change, please?
‘‘A. Well, he eventually told me that two people threw
rocks at his vehicle at the corner of Noble [Avenue]
and Jane [Street] that night before. This got into the
story where he said that he did strike the victim.’’
The prosecutor played the audio recording of
LaMaine’s interview with the defendant for the jury.
During cross-examination, LaMaine agreed with
defense counsel that the defendant had stated in the
interview that while at the corner of Noble Avenue and
Jane Street, ‘‘two kids ran up and threw what he called
boulders at his truck . . . .’’ LaMaine testified that at
the conclusion of the interview, he went to the corner
of Noble Avenue and Jane Street and found some rocks,
which were collected and processed as evidence.29
On October 20, 2016, the fourth day of the trial,
defense counsel informed the court that, in addition to
his claim that the death of the victim was the result
of an accident, he planned to pursue a claim of self-
defense.30 On October 24, 2016, the defendant testified
that he had wanted to purchase a gun on August 9,
2014, because William had threatened and harassed him
for ‘‘pretty much the whole summer [and] spring.’’ The
defendant claimed that William had driven by and
pointed a gun at him a few days prior to August 9, 2014.
He also stated that on the morning of August 9, 2014,
prior to the incident, there was no damage to the hood,
windshield or upper section of the door of the Ava-
lanche.
The defendant’s direct examination continued the
next day and he claimed that on the night of August 9,
2014, he stopped at a stop sign when he heard a ‘‘boom’’
and heard something hit the front door of the Ava-
lanche. On the basis of his clashes with people in the
neighborhood, including William, the defendant posited
that ‘‘somebody was shooting at [him].’’ After another
rock struck the windshield, the defendant, under the
assumption that he was being shot at and that his life
was in danger, sought to protect himself and escape
from the situation. The defendant testified that he
observed the victim and Griffin in the intersection.
Wanting to flee, the defendant drove off while in a
‘‘downward protected position.’’
After returning to his home, the defendant stated that
he assessed both his body and his vehicle for damage.
He returned to the scene to check if he had hit anyone.
The defendant assumed that ‘‘nothing serious [had] hap-
pened’’ and proceeded to his brother’s home in Dayville.
The defendant further testified that when he returned
to Bridgeport the next morning, his residence had been
ransacked. Almost immediately thereafter, police offi-
cers arrived, and he spoke with LaMaine and Teixeira.
The defendant iterated that he had heard two loud
noises before running into the victim and that he feared
for his life during this encounter.
After the parties rested, the court discussed the pro-
posed jury instructions on the record. Defense counsel
objected to the proposed instructions regarding the
provocation and initial aggressor exceptions to self-
defense, arguing that there was no evidence to support
such instructions. The court responded: ‘‘The evidence
of the initial aggressor or provocation is the testimony
of Justin Griffin, if they choose to believe it, that [the
defendant], about an hour earlier, drove down the street
with the lights off, revved up the engine and tried to
hit him with his car.’’31
Defense counsel responded that neither an initial
aggressor nor a provocation instruction was warranted
due to the one hour gap between these two incidents.
The prosecutor disagreed that this brief time period
necessitated a conclusion that the two incidents were
separate and distinct. Defense counsel again argued
that there was no evidence that Griffin and Tate had
thrown the rocks at the Avalanche because the defen-
dant had attempted to run them down earlier that eve-
ning. Defense counsel repeated that because of the one
hour time gap, neither exception applied.
The next day, prior to closing arguments and the
jury instructions, the court again addressed the jury
instructions: ‘‘And then the other issue was the defense
request that I not charge initial aggressor. [Defense
counsel] abandoned the claim as to provocation, but
insisted that initial aggressor was an error. And I
pointed out that—that I believed, certainly—and I
reviewed the testimony of Mr. Griffin, he talks about
an incident earlier that evening where the defendant
is—is at a stop sign with his lights out and just sitting
there for a few minutes, and then revs up the engine
and comes at them and swerves at them and they jump
onto the sidewalk to avoid being hit by his truck.32 So,
there was that incident . . . .
‘‘So, there are two very diverging theories here. The
state’s theory is there were no rocks and that this defen-
dant was the only aggressor, not just the initial aggres-
sor, but the only aggressor. And the defense theory
is that the—the victim and his friend were the initial
aggressors, or were throwing rocks at him and he acted
in self-defense. Both sides are entitled to argue to the
jury, but the evidence that the court heard would sug-
gest that there is an appropriate instruction for initial
aggressor.’’ (Footnote added.) The court then consid-
ered the defendant’s argument that there cannot be a
valid initial aggressor exception to self-defense when
a one hour time period existed between the first inci-
dent and the fatal one. On the basis of its research, the
court concluded that such a determination was reserved
for the jury.
Later that day, the court instructed the jury. The
court’s charge included instructions on the provocation
and initial aggressor exceptions to self-defense.33 The
court also instructed the jury on the duty to retreat
exception to the use of deadly physical force in self-
defense.34 See General Statutes § 53a-19 (b) (1).35 We
now turn to the defendant’s specific claims of instruc-
tional error.
A
The defendant first argues that the court improperly
instructed the jury on the initial aggressor and provoca-
tion exceptions to self-defense. Specifically, he con-
tends that there was no evidence to warrant instructing
the jury on these two exceptions to self-defense. He
also argues that the initial aggressor instruction was
improper because he had effectively withdrawn from
the initial incident. We are not persuaded by either of
these arguments.
The court’s proposed jury charge, dated October 24,
2016, contained instructions on the statutory excep-
tions of provocation and initial aggressor. The next
day, defense counsel objected to the inclusion of these
exceptions in the court’s instructions, thereby preserv-
ing the defendant’s claims for appellate review.36
Accordingly, we proceed to the merits of the defen-
dant’s claim.
We start with the relevant legal principles and our
standard of review. Our Supreme Court has stated that
when determining whether a party is entitled to a partic-
ular jury instruction, we must consider the evidence in
a light most favorable to providing that instruction.
State v. Bryan, 307 Conn. 823, 826, 60 A.3d 246 (2013).
‘‘If . . . the evidence would not reasonably support a
finding of the particular issue, the trial court has a duty
not to submit it to the jury. . . . Thus, a trial court
should instruct the jury in accordance with a party’s
request to charge [only] if the proposed instructions
are reasonably supported by the evidence.’’ (Internal
quotation marks omitted.) State v. Schovanec, 326 Conn.
310, 318–19, 163 A.3d 581 (2017); see also Bharrat v.
Commissioner of Correction, 167 Conn. App. 158, 169,
143 A.3d 1106 (party seeking certain instruction bears
initial burden of producing sufficient evidence and con-
versely, court has duty not to charge jury on issue for
which evidence would not reasonably support finding),
cert. denied, 323 Conn. 924, 149 A.3d 982 (2016); see
generally State v. Bryan, supra, 834–35.
The defendant focuses his appellate argument on the
length of time between the incidents on August 9, 2014.
Specifically, he claims that because approximately one
hour had elapsed, from the time he allegedly acceler-
ated his vehicle and drove it at the victim, Griffin and
Shuler with his lights off, and when he claimed that the
rocks were thrown at his Avalanche and drove it over
the victim, the evidence did not support a jury instruc-
tion on either the provocation or initial aggressor excep-
tions to self-defense. He also argues that, with respect
to the initial aggressor claim, the evidence demon-
strated that he withdrew from the encounter and effec-
tively communicated that withdrawal, thereby
defeating this exception to self-defense. See General
Statutes § 53a-19 (c) (2). We are not persuaded by
his arguments.
1
First, we consider the defendant’s contention that
the court improperly instructed the jury on the initial
aggressor exception to self-defense. ‘‘A defendant who
acts as an initial aggressor is not entitled to the protec-
tion of the defense of self-defense.’’ State v. Skelly, 124
Conn. App. 161, 167–68, 3 A.3d 1064, cert. denied, 299
Conn. 909, 10 A.3d 526 (2010); see also General Statutes
§ 53a-19 (c) (2); State v. Beltran, 246 Conn. 268, 276,
717 A.2d 168 (1998) (concept of initial aggressor is limi-
tation on what would otherwise constitute valid defense
of use of force in self-defense). An initial aggressor may,
however, avail himself of the defense of self-defense if
he withdraws from the encounter and effectively com-
municates to such other person his intent to do so.
State v. Pauling, 102 Conn. App. 556, 583, 925 A.2d
1200, cert. denied, 284 Conn. 924, 933 A.2d 727 (2007);
see also State v. Osimanti, 299 Conn. 1, 28–29, 6 A.3d
790 (2010) (initial aggressor must withdraw or abandon
conflict in such way that adversary is aware that he is
no longer in any danger from initial aggressor).
In State v. Jimenez, 228 Conn. 335, 340, 636 A.2d 782
(1994), our Supreme Court concluded that, under our
law, the first person to use physical force is not neces-
sarily the initial aggressor. ‘‘Read according to its plain
language, and as a whole, doubtlessly § 53a-19 contem-
plates that a person may respond with physical force to
a reasonably perceived threat of physical force without
becoming the initial aggressor and forfeiting the defense
of self-defense. Otherwise, in order to avoid being
labeled the aggressor, a person would have to stand by
meekly and wait until an assailant struck the first blow
before responding. If an assailant were intending to
employ deadly force or inflict great bodily harm, such
an interpretation of the statute would be extremely
dangerous to one’s health. Such a bizarre result could
not have been intended by the legislature.’’ Id., 341.
We are cognizant that the court had a duty not to
submit to the jury, in its charge, an issue upon which
the evidence would not reasonably support a finding.
State v. Whitford, 260 Conn. 610, 625, 799 A.2d 1034
(2002); State v. Wortham, 80 Conn. App. 635, 649, 836
A.2d 1231 (2003), cert. denied, 268 Conn. 901, 845 A.2d
406 (2004). Additionally, when the evidence warrants
an initial aggressor instruction, the question of whether
the defendant acted as an initial aggressor, and thus
was disentitled to the protection of the defense of self-
defense, is for the fact finder. See State v. Skelly, supra,
124 Conn. App. 168–70.
The state presented evidence that approximately one
hour prior to the fatal impact, the defendant, with his
headlights off, revved his engine and swerved his Ava-
lanche toward the victim, Griffin and Shuler, causing
them to jump onto the sidewalk for safety. On the basis
of this testimony, the jury reasonably could have found
that the defendant was the initial aggressor and, thus,
was not justified in using any physical force. See, e.g.,
State v. Pauling, supra, 102 Conn. App. 583–84 (court
properly provided initial aggressor instruction where
state presented evidence that defendant grabbed victim
first and began slapping her face). Moreover, the defen-
dant has not provided us, nor have we located, a case
from this jurisdiction holding that the passage of one
hour necessarily renders the initial aggressor exception
inapplicable. See, e.g., State v. Prioleau, 235 Conn. 274,
277–78, 292–94, 664 A.2d 743 (1995) (initial aggressor
instruction given where defendant and victim had
heated argument in November, 1991, when defendant
stated he would ‘‘get’’ the victim, who expressed fear
and concern that situation had escalated out of control,
and on December 1, 1991, defendant shot and killed
victim).
Likewise, we are not persuaded that the evidence
required a conclusion that the defendant had withdrawn
and communicated his intent to withdraw so that the
initial aggressor instruction was improper. See State v.
Diggs, 219 Conn. 295, 299, 592 A.2d 949 (1991) (‘‘[A]n
instruction as to the effect of an aggressor withdrawing
from an encounter and communicating the intent to
withdraw is only necessary where the particular factual
situation supports such an instruction. . . . Further,
the doctrine of communicated withdrawal may not be
invoked unless the aggressor’s intent to withdraw is
clearly made known to his victim. . . . In other words,
the initial aggressor must withdraw or abandon the
conflict in such a way that the fact of withdrawal is
perceived by his opponent, so that his adversary is
aware that he is no longer in any danger from the origi-
nal aggressor.’’ [Citations omitted; internal quotation
marks omitted.]). A reasonable jury could conclude that
the defendant had not communicated his withdrawal
so as to nullify the initial aggressor exception to self-
defense. We conclude, therefore, that the court’s
instructions on the initial aggressor exception to self-
defense were not improper.
2
Next, we consider the defendant’s contention that the
court improperly instructed the jury on the provocation
exception to self-defense. Section 53a-19 (c) provides
that ‘‘a person is not justified in using physical force
when (1) with intent to cause physical injury or death
to another person, he provokes the use of physical force
by such other person . . . .’’ See also State v. Corchado,
188 Conn. 653, 664, 453 A.2d 427 (1982); State v. Turner,
33 Conn. App. 616, 618, 637 A.2d 3 (1994).
The rationale for our rejection of the defendant’s
initial aggressor argument applies to his provocation
argument. We disagree that the act of swerving his
vehicle toward the victim, Griffin and Shuler was indis-
putably a separate incident and foreclosed the jury from
finding that it was done with the requisite intent for
provocation. There was evidence before the jury that
the defendant had targeted individuals for physical
harm, that he had taken steps in an attempt to purchase
a gun earlier that day, and that he sought revenge against
those in the neighborhood who allegedly had harassed
him. The state presented adequate evidence to warrant
a provocation instruction. Accordingly, we reject this
claim.
B
The defendant next argues that the court improperly
instructed the jury with respect to the retreat exception
to the use of deadly physical force. Specifically, he
contends that the court improperly used an objective
standard in defining the knowledge element. The state
agrees that this claim was preserved for appellate
review and that the challenged instruction failed to
convey properly the subjective standard of the duty
to retreat. It maintains, however, that the erroneous
instruction was harmless beyond a reasonable doubt.
We agree with the state.
A distinction exists between the use of nondeadly
physical force and deadly physical force in a case involv-
ing self-defense. See State v. Singleton, 292 Conn. 734,
747, 974 A.2d 679 (2009). The determination of whether
the use of deadly physical force in a case of self-defense
was warranted involves a subjective-objective inquiry.
See State v. Prioleau, supra, 235 Conn. 286–87; see also
State v. O’Bryan, supra, 318 Conn. 632–33; State v.
Reddick, 174 Conn. App. 536, 552–53, 166 A.3d 754, cert.
denied, 327 Conn. 921, 171 A.3d 58 (2017), cert. denied,
U.S. , 138 S. Ct. 1027, 200 L. Ed. 2d 285 (2018).
If the use of deadly physical force is appropriate, the
state still may defeat such a claim if it proves, beyond
a reasonable doubt, that the defendant knew that he
could retreat in complete safety. State v. Singleton,
supra, 747. Subsection (b) of § 53a-19 contains a subjec-
tive test that states that a defendant is not justified in
using deadly physical force in self-defense ‘‘if he . . .
knows that he . . . can avoid the necessity of using
such force with complete safety (1) by retreating
. . . .’’ See, e.g., State v. Ash, 231 Conn. 484, 494–95,
651 A.2d 247 (1994) (improper instruction where court’s
charge suggested that § 53a-19 permitted jury to mea-
sure defendant’s knowledge of ability to retreat
according to objective standard of reasonableness
rather than subjective standard of his actual knowl-
edge); State v. Carter, 48 Conn. App. 755, 769–70, 713
A.2d 255 (§ 53a-19 [b] requires recourse to retreat in lieu
of deadly physical force only when defendant himself
knows he can avoid necessity of using such force with
complete safety), cert. denied, 247 Conn. 901, 719 A.2d
905 (1998).
In the present case, the disputed issue is not whether
the use of deadly force was warranted but, rather,
whether the court properly instructed the jury on the
retreat exception to the use of deadly physical force in
self-defense. See General Statutes § 53a-19 (b). The
court initially used a subjective standard when it pro-
vided the jury with an instruction on the duty to
retreat.37 Thereafter, it used an objective standard of
reasonableness when it instructed the jury to consider
whether the defendant’s use of deadly physical force
was not justified on the basis of the opportunity to
retreat with complete safety.38 We agree with the parties
that the court’s inclusion of an objective standard
regarding the statutory duty to retreat was improper.
See State v. Rios, 171 Conn. App. 1, 49–50, 156 A.3d 18,
cert. denied, 325 Conn. 914, 159 A.3d 232 (2017).
Having concluded that the court’s instruction on the
duty to retreat was improper, we turn to the question
of harmlessness. See State v. Prioleau, supra, 235 Conn.
288. ‘‘If an improper jury instruction is of constitutional
magnitude, the burden is on the state to prove harm-
lessness beyond a reasonable doubt. . . . [A]n instruc-
tional constitutional error is harmless if there is no
reasonable possibility that the jury was misled. . . . In
performing harmless error analysis, we keep in mind
that [i]n determining whether it was indeed reasonably
possible that the jury was misled by the trial court’s
instructions, the charge to the jury is not to be critically
dissected for the purpose of discovering possible inac-
curacies of statement, but it is to be considered rather
as to its probable effect upon the jury in guiding [it] to
a correct verdict in the case. . . . The charge is to be
read as a whole and individual instructions are not to
be judged in artificial isolation from the overall charge.
. . . In other words, we must consider whether the
instructions [in totality] are sufficiently correct in law,
adapted to the issues and ample for the guidance of
the jury.’’ (Citations omitted; internal quotation marks
omitted.) State v. Anderson, 158 Conn. App. 315, 357,
118 A.3d 728, cert. granted on other grounds, 319 Conn.
907, 908, 123 A.3d 437, 438 (2015) (appeals withdrawn
May 4 and 5, 2016); see also State v. Flowers, 278 Conn.
533, 543–44, 898 A.2d 789 (2006); see generally State v.
Prioleau, supra, 288 (harmlessness of jury instruction
error gauged by reference to evidence and issues and
charge as whole).
We begin with our Supreme Court’s decision in State
v. Quintana, 209 Conn. 34, 547 A.2d 534 (1988). In that
case, the defendant stabbed the victim in the chest on
a sidewalk. Id., 36. The defendant’s former girlfriend
testified that two days after the stabbing, the defendant
had claimed that the stabbing was done in self-defense.
Id. The defendant’s friend, however, testified that the
defendant had stated that he killed the victim during
an attempted robbery. Id., 37.
On appeal, the defendant claimed, inter alia, that the
trial court improperly had instructed the jury on the
duty to retreat. Id., 44–45. The state conceded that the
court’s instruction was improper, but claimed that the
error was harmless. Id., 46. Our Supreme Court first
noted that ‘‘[t]he charge must be considered from the
standpoint of its effect on the jury in guiding [it] to a
proper verdict’’ and that the instruction, read as a whole,
‘‘presented the case to the jury in a manner so that
no injustice . . . result[ed].’’ (Internal quotation marks
omitted.) Id., 47. It then reasoned that the only evidence
of self-defense came from the testimony of the defen-
dant’s former girlfriend; this evidence, however, was
contradicted by the friend’s testimony of an intentional
killing following an attempted robbery. Id. ‘‘In this pos-
ture, then, the evidence presented to the jury can fairly
be said to center on the credibility of [the former girl-
friend’s] self-defense version of the stabbing, measured
against the credibility of [the friend’s] testimony that
an attempted robbery was the motivating force behind
the stabbing. The jury’s verdict can fairly be read to
indicate a choice between these two inconsistent ver-
sions of the stabbing, a choice that accepted the version
presented by [the friend’s] testimony and rejected the
self-defense version presented by [the former girl-
friend]. . . . The principal factual issues, therefore,
were not classically dependent upon [the subtleties of
the law of self-defense] for their proof, as is true in
cases where the principal factual issue is the . . .
[defendant’s subjective knowledge of the availability
of safe escape].’’ (Citation omitted; internal quotation
marks omitted.) Id., 47–48. As a result, our Supreme
Court concluded that the erroneous instruction on the
duty to retreat was harmless. Id., 48.
Applying the reasoning of Quintana, our Supreme
Court concluded that an improper instruction on the
duty to retreat was harmless in State v. Whitford, supra,
260 Conn. 610. In that case, the victim shared an apart-
ment with Bonnie Courchaine and Anna Holcomb. Id.,
612. The defendant arrived to renew his relationship
with Courchaine and to help ensure that the victim
moved out. Id. A few days after the defendant’s arrival,
the victim and Holcomb became embroiled in an argu-
ment which resulted in police intervention. Id., 613.
Responding officers asked Holcomb to leave the apart-
ment to defuse the situation. Id. After she returned,
Holcomb complained about the victim to the defendant.
Id. The defendant told the victim that he needed to
leave immediately; the victim, however, ignored the
comment and walked toward his bedroom. Id. The
defendant followed the victim and stabbed him twice
in the side. Id.
At trial, the defendant claimed self-defense. Id., 614–
15. The defendant testified that while Holcomb was in
her bedroom, he watched television with the victim.
Id., 615. The defendant further testified that he inquired
as to why the victim remained in the apartment when
he knew that Courchaine and Holcomb wanted him to
leave. Id. According to the defendant, the victim became
enraged and jumped on top of him. Id. The victim
choked the defendant while screaming at him. Id. The
defendant unsuccessfully attempted to remove the vic-
tim’s hands from his neck and then stabbed him. Id.
On appeal, the defendant argued, inter alia, that the
court improperly instructed the jury on the duty to
retreat because there was no evidence that retreat was
a viable option. Id., 624–25. Our Supreme Court agreed
that neither the defendant’s evidence39 nor the state’s
evidence40 warranted a retreat instruction, and, thus,
the instruction was improper. Id., 625–27.
The court in Whitford addressed the issue of harm-
lessness by discussing its decision in Quintana. Id.,
628. It stated: ‘‘The manner in which the present case
was tried is analogous to that of Quintana. The defen-
dant sought to establish his self-defense claim only
though his own testimony. The state, on the other hand,
presented evidence to suggest that the defendant
attacked the victim of his own volition in an attempt
forcibly to persuade him to vacate the apartment. The
state did not, however, introduce any evidence tending
directly to defeat the particular elements necessary to
establish the defendant’s claim of self-defense. Thus,
the jury here ultimately was faced with a credibility
contest between two inconsistent versions of the alter-
cation, as had been the jury in Quintana. The rule in
Quintana, therefore, applies with equal force to the
claimed instructional error now at issue . . . .’’ Id., 629;
but see State v. Ash, supra, 231 Conn. 498 (factually
distinguishable from Quintana because state’s case
hinged substantially on whether defendant failed to
retreat within meaning of § 53a-19).
In the present case, the issue of self-defense did not
arise until LaMaine’s testimony several days into the
trial. LaMaine recounted how the defendant initially
stated during the August 10, 2014 interview that the
damage to his Avalanche had occurred in April, 2014,
but later changed his story and claimed that the victim
and another individual actually caused it on August 9,
2014. The prosecutor played an audio recording of the
August 10, 2014 interview for the jury in which the
defendant claimed that the victim and another individ-
ual rapidly approached his vehicle and hurled boulders
at it. After hearing the impact of the boulders, the defen-
dant ‘‘hit the gas and hit the . . . [victim].’’ The defen-
dant specifically stated that after the impact of the
rocks, he ‘‘couldn’t hit reverse, [he] didn’t have time,
[he] wasn’t expecting [the victim] to do that.’’ The defen-
dant testified that when the boulders hit his Avalanche
on August 9, 2014, ‘‘everything happened very quickly’’
and that he ‘‘just reacted.’’ The defendant claimed that
he ‘‘consciously hit the gas to get out of there.’’ He also
stated that there was no time to determine whether he
could have backed up his vehicle.
After a careful review of the evidence presented at
the defendant’s trial, we are persuaded that this is not
a case classically dependent on the subtleties of the
law of self-defense. See State v. Quintana, supra, 209
Conn. 47–48. First, we note that the defendant did not
raise a claim of self-defense until several days into the
trial. Second, the jury was faced with conflicting and
inconsistent versions of the events of August 9, 2014,
namely, whether the defendant intended to kill the vic-
tim with the Avalanche or whether the victim’s death
was a result of an accident or self-defense. The self-
defense claim was established primarily through the
defendant’s August 10, 2014 interview with the police
and by his own testimony. In contrast, the state pre-
sented evidence that the defendant had hit the victim
with the truck intentionally. The jury, therefore, ulti-
mately was required to resolve a credibility contest
between the inconsistent versions of the events of
August 9, 2014, at the intersection of Noble Avenue and
Park Street. See State v. Whitford, supra, 260 Conn.
629; State v. Quintana, supra, 47–48. Finally, we note
that neither party presented much evidence, or dis-
cussed in detail, the retreat exception to self-defense.
For these reasons, we conclude that the improper
instruction reasonably cannot be said to have misled
the jury.
The judgments are affirmed.
In this opinion the other judges concurred.
1
The defendant was charged in three separate informations, which were
consolidated for trial. In the first information, docket number CR-XX-XXXXXXX-
T, the state charged the defendant with murder in violation of General
Statutes § 53a-54a (a), manslaughter in the first degree in violation of § 53a-
55 (a) (1), manslaughter in the first degree in violation of § 53a-55 (a) (3),
commission of a felony while on release in violation of General Statutes
§ 53a-40b (1), and commission of an offense while on release in violation
of § 53a-40b (2). In the second information, docket number CR-XX-XXXXXXX-
T, the state charged the defendant with tampering with a witness in violation
of § 53a-151 (a) and intimidating a witness in violation of § 53a-151a (a). In
the third information, docket number MV-14-652530-T, the state charged the
defendant with evading responsibility in the operation of a motor vehicle
in violation of § 14-224 (a). Prior to trial, the court granted the defendant’s
motion to dismiss the count that alleged that he had committed an offense
while on release. The jury found the defendant not guilty of murder, but
guilty of manslaughter in the first degree in violation of § 53a-55 (a) (1),
and the charges set forth in the second and third informations. The court
noted during the sentencing proceeding that the state chose not to pursue
the count alleging the commission of a felony while on release.
2
Wilma testified that she registered the Avalanche in her name, but that
the defendant was the person who drove it.
3
Some of the witnesses’ accounts varied as to the specific details of the
night of August 9, 2014. The resolution of such discrepancies is reserved
for the jury. See, e.g., State v. Vega, 181 Conn. App. 456, 491 n.12, 187 A.3d
424, cert. denied, 330 Conn. 928, 194 A.3d 777 (2018).
4
Susan Williams, a pathologist in the Office of the Chief Medical Examiner,
performed the autopsy of the victim and testified that the cause of the
victim’s death was blunt head, neck, torso and extremity trauma. She further
explained that, ‘‘basically, he died from his head injuries.’’
5
This damage included a cracked windshield and impact marks on the
hood of the Avalanche that appeared to have come from objects thrown at
the vehicle.
6
On January 14, 2015, at 10:04 p.m., the defendant sent the following
series of text messages to Wilma:
‘‘(1/3) I to this day don’t know Wilma don’t know what happened between
us but I want u to know dat I love u more than anything in this world.
There’s not a day that passes
‘‘(2/3) that I don’t think of u or [your son]. U were my best friend and all
I ever wanted was 2 grow old w u by my side. I can’t turn back time but I
can say dat I
‘‘(3/3) love u w all my heart n I never ment to hurt u. I hope u find the
happiness u deserve my cosita bella. U will always have a special place in
my heart.’’
7
On January 16, 2015, starting at 6:01 p.m. and ending at 10:46 p.m., the
defendant sent Wilma the following text messages:
‘‘[6:01 p.m.] Make sure u choose ur decision wisely! Janet [the victim’s
mother] n ur bro ain’t gonna be around when this is all over! Choose wisely
‘‘[9:23 p.m.] Since u n ur bro r so tight now. Ask him n Jessy [the girlfriend
of William] y her mom was sucking my dick every other night after u n
[your son] went home!
‘‘[9:25 p.m.] Janet was texting 4 months trying 2 fucking me. Ur a sucker
Wilma. I tried to explain 2 u da trash they were. Now u wanna play me.
‘‘[9:27 p.m.] [My attorney] gonna rip all y’all a new Asshole! [Emoji omitted]
‘‘[9:28 p.m.] Ur life is sad!
‘‘[9:35 p.m.] I dedicated my life 2 u. . . . U piece of shit! Fuck my truck!
U gonna find out wat Dennis Berrios is bout
‘‘[9:53 p.m.] There using u like the stupid Bitch dat u are! Keep my truck
Wilma. Tell them niggas were I’m at! Decisions come w consequences!
‘‘[9:57 p.m.] Ur a piece of shit! U never had my back u fucking weirdo!
U n ur bro will never beat me! I’m ready to die 4 this! Cunt
‘‘[10:15 p.m.] Ask Jessy y her mom don’t stop asking 2 SUCK MY DICK?
Ask her? U look like trash being next 2 them. I’m out here. . . where ur
people at! Let’s keep it real
‘‘[10:15 p.m.] Cunt
‘‘[10:16 p.m.] Fuck u Wilma. . . . U a ho playing both sides of da fence.
Y u got burnt
‘‘[10:25 p.m.] (1/3) I was there 4 u while ur fam shitted on u. U played
me this
‘‘[10:25 p.m.] (2/3) whole time! I thought u were my friend! Ur a piece of
shit like
‘‘[10:25 p.m.] (3/3) ur brother n ur father! [Emoji omitted]
‘‘[10:28 p.m.] Jessy mom used to watch u leave my house then would
suck n swallow my nut 4 hours. Ur brother wld make sure u dint notice!
‘‘[10:31 p.m.] I tried to tell u wat a piece of shit ur brother was. I stopped
it when I truly fell in love w u. Janet kept trying 2 SUCK MY DICK all da time.
‘‘[10:33 p.m.] U look like trash being next to them. . .but ur a Figueroa!
Dats wat y’all stand 4! Garbage
‘‘[10:42 p.m.] Ur a sucker like ur brother. . . . I’m out here. Wats good
lil nigga!
‘‘[10:43 p.m.] Wassup
‘‘[10:46 p.m.] U fucked up’’
On January 17, 2015, starting at 12:34 a.m. and ending at 12:46 a.m., the
defendant sent Wilma the following text messages:
‘‘[12:34 a.m.] I fucking hate u n will never 4get how u abandoned me. U
2 face piece of shit.
‘‘[12:36 a.m.] U played both sides of the fence. I fucking loved u n [your
son] w all my heart. U will pay 4 ur betrayal! Die motherfucker die. I’m
standing on ur corner!
‘‘[12:39 a.m.] Fucking suckas!
‘‘[12:41 a.m.] 2face slut
‘‘[12:46 a.m.] I put my dreams n future into our relationship! N u fucking
took advantage of my love! I fucking hate u Wilma’’
8
At the conclusion of the state’s case, the defendant moved for a judgment
of acquittal as to the charges of violating §§ 53a-151 (a) and 53a-151a (a).
Specifically, defense counsel stated: ‘‘I just move for judgment of acquittal
just on the general ground that the state has not met its burden of proof
regarding the elements of those offenses.’’ The court denied the defen-
dant’s motion.
The defendant correctly contends that even if we were to conclude that
he had failed to preserve this claim, he is entitled to review under State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re
Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). See, e.g., State v. Faust,
161 Conn. App. 149, 158–59, 127 A.3d 1028 (2015), cert. denied, 320 Conn.
914, 131 A.3d 252 (2016).
9
The defendant’s reliance on out-of-state authority is misplaced, as those
cases are factually distinguishable from the present appeal. See, e.g., State
v. Bailey, 346 Or. 551, 555–56, 213 P.3d 1240 (2009) (en banc) (Oregon
Supreme Court concluded that it was not reasonable ‘‘for a jury to con-
clude—and to conclude beyond a reasonable doubt—that, when [the] defen-
dant was warning his daughter against going through with the specific and
imminent action that she had threatened—going to the police—he also
specifically had in mind the remote-in-time prospect that she might be called
to testify in a criminal proceeding against him that could arise out of her
report to the police’’ [emphasis in original]).
10
General Statutes § 19a-406 (a) provides in relevant part: ‘‘The Chief
Medical Examiner shall investigate all human deaths in the following catego-
ries: (1) Violent deaths, whether apparently homicidal, suicidal, or acciden-
tal . . . .’’
11
See General Statutes § 19a-411 (a).
12
See General Statutes § 19a-409.
13
The Arizona Court of Appeals has explained that ‘‘[c]ause of death is
the disease or injury responsible for the lethal sequence of events. . . .
Manner of death explains how the cause of death arose.’’ (Citation omitted;
internal quotation marks omitted.) State v. Sosnowicz, 229 Ariz. 90, 94 n.4,
270 P.3d 917 (App. 2012); see also State v. Tyler, 867 N.W.2d 136, 155 (Iowa
2015) (Iowa administrative code defines cause of death as ‘‘the disease or
injury which sets in motion the chain of events which eventually result in
the death of a person’’ and manner of death as ‘‘the circumstances under
which the cause of death occurred’’ . . . [and] ‘‘may be specified as . . .
natural, accident, suicide, homicide, undetermined, or pending’’ [internal
quotation marks omitted]); State v. Vining, 645 A.2d 20, 20 (Me. 1994)
(medical examiner testified that manner of death refers to agent that causes
death, i.e., natural cause, accident, suicide or homicide).
14
Specifically, the defendant relies on the following cases: State v. Tyler,
867 N.W.2d 136, 156–57, 164–65 (Iowa 2015); State v. Vining, 645 A.2d 20,
20–21 (Me. 1994); Bond v. Commonwealth, 226 Va. 534, 311 S.E.2d 769
(1984); State v. Sosnowicz, 229 Ariz. 90, 270 P.3d 917 (App. 2012); and People
v. Eberle, 265 A.D. 2d 881, 882, 697 N.Y.S.2d 218 (1999).
15
General Statutes § 19a-407 (c) provides in relevant part: ‘‘In conducting
his investigation, the Chief Medical Examiner or his authorized representa-
tive shall have access to any objects, writings or other articles of property
in the custody of any law enforcement official which in the Chief Medical
Examiner’s opinion may be useful in establishing the cause or manner of
death. Upon the Chief Medical Examiner’s request, a law enforcement official
having custody of such articles shall deliver them to the Chief Medical
Examiner, along with copies of any reports of the analysis of such articles
by such law enforcement official. The Chief Medical Examiner shall analyze
such articles and return them to the official from whom they were
obtained. . . .’’
16
We acknowledge the following colloquy during the cross-examination
of Williams by the defendant’s counsel:
‘‘Q. Okay. So—so, it was about four months later that you put down in
your report that the manner was homicide?
‘‘A. Correct.
‘‘Q. All right. And obviously you were not a witness to what happened
that brought about [the victim’s] death, and a witness as far as being there,
is that fair to say?
‘‘A. That is.
‘‘Q. Okay. And so is it fair to say that in order to reach the conclusion as
to a manner of death that you had to reach, you waited until police continued
their investigation?
‘‘A. Correct.
‘‘Q. And it was based on whatever information you received from the
police that you ended up putting homicide down?
‘‘A. Right.’’
At first blush, Williams’ response could be read as an agreement that her
determination regarding the manner of the death in this case was based
solely on the information she had received from the police. Such a reading,
however, ignores her testimony regarding her examination of the victim’s
body and injuries and the assistance she received from Uphoff.
17
The defendant also raised a somewhat vague argument that the court
improperly admitted evidence that he had ‘‘threatened people . . . .’’ The
defendant did not object during Wilma’s direct examination testimony stating
that the defendant, on August 9, 2014, made threats against ‘‘Mike’’ and her
brother, William, and claimed that he would make ‘‘Janet [the victim’s
mother] pay.’’ Further, it was defense counsel, during cross-examination,
who mentioned that Wilma previously had told Detective Teixeira that the
defendant had threatened to kill her and her father. As a result, we decline
to review the nebulous claim that the court erred in admitting evidence that
the defendant had threatened ‘‘people . . . .’’
18
Specifically, the following colloquy occurred between defense counsel
and Wilma:
‘‘Q. And you weren’t concerned that there was a potential [that your child]
could be left without his mother and uncle and his grandfather?
‘‘A. That’s why I continued to see [the defendant]. I put myself in danger
because I thought if I saw him, I would know his every move.
‘‘Q. Okay. And did you think by continuing to have sex with him through
October, that was just part of your strategy in watching his every move?
‘‘A. Because I would keep him, you know, thinking that I was siding with
him, or on his side. I didn’t want to anger him more and cause more problems
in the neighborhood where he’s come out and hurt more people.’’
19
Specifically, the court instructed the jury: ‘‘Ladies and gentlemen, I’m
going to give you a limiting instruction. . . . The evidence that you just
heard relating to the defendant’s alleged conduct involving an incident with
this witness—this witness’ father and [the] incident relating to car windows
being smashed is being admitted for a limited purpose. It is offered by the
state to explain the witness’ state of mind. This is not being admitted to
prove the bad character of the defendant. You may consider such evidence
if you believe it and further find . . . that it reasonably and logically sup-
ports the issue for which it is being offered by the state. On the other hand,
if you do not believe such evidence, or even if you do, if you find that it
does not reasonably and logically support the issue for which it is being
offered by the state, namely, that the conduct relates to this witness’ state
of mind, then you may not consider that testimony for any other purpose.’’
20
The following colloquy occurred between the prosecutor and the
defendant:
‘‘Q. Did you deny that you swore and threw your bloody ice pack at
the [hospital employee], stating that the wait was too long; do you deny
saying that?
‘‘A. Yes, that specifically, yes.
‘‘Q. Yes or no—
‘‘A. Yes.’’
21
‘‘As a general rule, evidence of prior misconduct is inadmissible to prove
that a defendant is guilty of the crime of which he is accused. . . . Nor
can such evidence be used to suggest that the defendant has a bad character
or a propensity for criminal behavior. . . . [S]ee also Conn. Code Evid. § 4-
5 (a). In order to determine whether such evidence is admissible, we use
a two part test. First, the evidence must be relevant and material to at least
one of the circumstances encompassed by the exceptions. Second, the
probative value of [the prior misconduct] evidence must outweigh [its]
prejudicial effect . . . . The primary responsibility for making these deter-
minations rests with the trial court. We will make every reasonable presump-
tion in favor of upholding the trial court’s ruling, and only upset it for a
manifest abuse of discretion. . . .
‘‘Under the first prong of the test, the evidence must be relevant for
a purpose other than showing the defendant’s bad character or criminal
tendencies. . . . Recognized exceptions to this rule have permitted the
introduction of prior misconduct evidence 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 [c].’’ (Citation omitted;
footnote omitted; internal quotation marks omitted.) State v. Gerald A., 183
Conn. App. 82, 106–107, 191 A.3d 1003, cert. denied, 330 Conn. 914, 193 A.3d
1210 (2018); see also State v. Campbell, 328 Conn. 444, 517–18, 180 A.3d
882 (2018).
22
‘‘Generally, a party who delves into a particular subject during the
examination of a witness cannot object if the opposing party later questions
the witness on the same subject. . . . The party who initiates discussion
on the issue is said to have opened the door to rebuttal by the opposing
party. Even though the rebuttal evidence would ordinarily be inadmissible
on other grounds, the court may, in its discretion, allow it where the party
initiating inquiry has made unfair use of the evidence. . . . This rule oper-
ates to prevent a defendant from successfully excluding inadmissible prose-
cution evidence and then selectively introducing pieces of this evidence for
his own advantage, without allowing the prosecution to place the evidence
in its proper context. . . . The doctrine of opening the door cannot, of
course, be subverted into a rule for injection of prejudice. . . . The trial
court must carefully consider whether the circumstances of the case warrant
further inquiry into the subject matter, and should permit it only to the
extent necessary to remove any unfair prejudice which might otherwise
have ensued from the original evidence. . . . Thus, in making its determina-
tion, the trial court should balance the harm to the state in restricting the
inquiry with the prejudice suffered by the defendant in allowing the rebuttal.’’
(Internal quotation marks omitted.) State v. Brown, 309 Conn. 469, 479, 72
A.3d 48 (2013); see also C. Tait & E. Prescott, supra, § 1.32.3, p. 101.
23
After the defendant admitted that he went to the hospital on March 22,
2014, the following colloquy occurred between the prosecutor and the
defendant:
‘‘Q. Okay. And that while you were there, you were swearing and threw
your bloody ice pack at the hospital personnel, stating the wait was too
long; did you say that, yes or no?
‘‘A. No.
‘‘Q. You deny saying that?
‘‘A. Correct. . . .
‘‘Q. Are you denying that the following occurred, that you left without
being seen; you deny that occurred, sir?
‘‘A. No.
‘‘Q. Did you deny that you swore and threw your bloody ice pack . . .
stating that the wait was too long; do you deny saying that?
‘‘A. Yes, that specifically, yes.’’
24
On appeal, the defendant raised, for the first time, a claim that his text
messages ‘‘were totally irrelevant to the tampering and intimidating charges.’’
The state correctly asserts that this evidentiary claim is unpreserved and
thus unreviewable by this court. See State v. Jorge P., 308 Conn. 740, 747,
66 A.3d 869 (2013); State v. Gonzalez, 272 Conn. 515, 539–40, 864 A.2d 847
(2005). Accordingly, we decline to consider this claim.
25
Specifically, the court noted: ‘‘[The jury] just heard this defendant curse
at length and repeatedly in this statement to the police. So, if he’s willing
to use the word—the F word—repeatedly in front of the police, the fact
that he uses foul language to communicate with his girlfriend . . . all of
these messages are in context. He’s trying to intimidate her, threaten her,
and get her to change her testimony, and, even though the messages are
crude, it’s an attempt to get the witness to turn against her family and to
support him. . . . And yes, while it is prejudicial in terms of the language
that [he] uses, it’s not any language that [the jurors] haven’t heard from
this defendant, certainly, in his own words on [the audio recording of his
police interview].’’
26
Our Supreme Court has noted that ‘‘[a]n improper instruction on a
defense, like an improper instruction on an element of an offense, is of
constitutional dimension.’’ (Internal quotation marks omitted.) State v. Bry-
ant, 233 Conn. 1, 9, 658 A.2d 89 (1995).
27
General Statutes § 53a-19 (c) provides in relevant part: ‘‘[A] person is
not justified in using physical force when (1) with intent to cause physical
injury or death to another person, he provokes the use of physical force by
such other person, or (2) he is the initial aggressor, except that his use of
physical force upon another person under such circumstances is justifiable
if he withdraws from the encounter and effectively communicates to such
other person his intent to do so, but such other person notwithstanding
continues or threatens the use of physical force . . . .’’
28
See General Statutes § 53a-19 (b) (1).
29
Photographs of these ‘‘rocks’’ or ‘‘boulders’’ were admitted into evidence.
30
Although accident and self-defense are separate and inherently inconsis-
tent claims, our law recognizes the ability of a defendant to raise them as
alternative theories. See, e.g., State v. Singleton, 292 Conn. 734, 753 n.14,
974 A.2d 679 (2009).
31
The court’s reference to Griffin’s testimony appears to be mistaken.
Griffin testified that he was with the victim during the evening hours of
August 9, 2014. He also stated that approximately thirty minutes before the
fatality, he had been talking to a woman while walking to the victim’s home.
At this point, he observed the Avalanche as it proceeded past a stop sign
without stopping and with the headlights turned off. This incident occurred
at the intersection of Arctic Street and William Street. Griffin also indicated
that the victim was not with him at this time.
It was Shuler who testified that he was with the victim on the night of
August 9, 2014, in the area of Arctic Street and William Street. At that time
and location, he stated that he was with the victim and Griffin when the
defendant ‘‘hit the gas and swerved towards’’ the group of three, causing
them to jump onto the sidewalk.
32
The court’s statement actually refers to the testimony of Shuler, and
not Griffin. See footnote 31 of this opinion.
33
Specifically, the court instructed the jury: ‘‘In addition, the state can
defeat the defendant’s claim of self-defense by proving one of the statutory
disqualifications of self-defense. The statute defining self-defense describes
certain circumstances in which a person is not justified in using any degree
of physical force in self-defense against another.
‘‘One, provocation, § 53a-19 (c) (1). One such circumstance under which
a person is not justified in using any degree of physical force in self-defense
against another is when he provokes the other person to use physical force
against him. In order to provoke the use of physical force by another, it is
not enough that the defendant, by his conduct, elicited the use of physical
force by another. Rather, the defendant must mis—rather, the defendant
must have embarked upon such conduct with such—with the specific intent
to provoke the other into using physical force and intending to cause the
other physical injury or death.
‘‘The defendant must have specifically intended to provoke another into
using physical force, and then used force to defend himself from the ensuing
use of force by the person provoked. It is important to remember that the
defendant has no burden to prove that he did not provoke [the victim] into
using physical force against him. To the contrary, you may only reject his
defense on the basis of this—this statutory disqualification, if you find that
the state has proved beyond a reasonable doubt that the defendant provoked
the use of physical force by [the victim] against him.
‘‘Two, initial aggressor. Another circumstance under which a person is
not justified in using any degree of physical force in self-defense against
another is when he is the initial aggressor in the encounter with another
person, and he does not both withdraw from the encounter and effectively
communicate his intent to do so before using the physical force at issue in
the case. Under this provision, the state can prove that the defendant was
not justified in using physical force in self-defense by proving beyond a
reasonable doubt that he was the initial aggressor in his encounter with [the
victim]. And that he neither withdrew from that encounter, nor effectively
communicated his intent to do so before using physical force against [the
victim].
‘‘To prove that the defendant was the initial aggressor in his encounter
with [the victim], the state need not prove that the defendant was the first
person to use physical force in that encounter. The initial aggressor can be
the first person who threatened to use physical force or even the first
person who appeared to threaten the imminent use of physical force under
[the] circumstances.
‘‘It is important to remember that the defendant has no burden to prove
that he was not the initial aggressor or that he withdrew from the encounter
and communicated his intent to do so before he used physical force against
[the victim]. To the contrary, you may only reject his defense on the basis
of this—this—this statutory disqualification, if you find that the state had
proved beyond a reasonable doubt that the defendant was the initial aggres-
sor, did not withdraw from the encounter, and did not withdraw from the
encounter, and did not communicate his intent to withdraw before using
physical force.’’
34
The court instructed the jury: ‘‘Exception to [the] use of deadly physical
force, duty to retreat. In addition, the state can defeat the defendant’s claim
of self-defense by proving a statutory disqualification to the use of deadly
physical force. The statute defining self-defense describes a circumstances
in which a person is not justified in using deadly physical force in self-
defense of another. So, if you have found the defendant used deadly physical
force, you must consider this exception.
‘‘Duty to retreat, § 53a-19 (b) (1). A person is not justified in using deadly
physical force upon another person if he knows that he can avoid the
necessity of using such force with complete safety by retreating. This disqual-
ification requires a defendant to retreat instead of using deadly physical
force whenever two conditions are met. One, a complete safe retreat is, in
fact, available to him, and, two, he knows that he can avoid the necessity
of using deadly physical force by making that completely safe retreat. The
law stresses that self-defense cannot be retaliatory; it must be defensive
and not punitive.
‘‘The term complete safety, as used in this statute, means without any
injury to the defendant whatsoever. A person acts knowingly with respect
to a circumstance described in a statute when he is aware that such circum-
stance exists. A person acts knowingly with respect to a circumstance when
he is aware that it exists. Ordinarily, knowledge can be established only
through an inference from other proven facts and circumstances. The infer-
ence may be drawn if the circumstances are such that a reasonable person
of honest intention in the situation of the defendant would have concluded
that one could avoid the necessity of using deadly physical force by making
that completely safe retreat.
‘‘The determinative question is whether the circumstances in the particular
case form a basis for the sound inferences as to the knowledge of the
defendant in the circumstances under inquiry. It is important to remember
that the defendant has no burden whatsoever to prove that he could not
have retreated with complete safety or he didn’t know that a safe retreat
was possible before he used physical force against [the victim]. To the
contrary, you may only reject his defense on the basis of this statutory
disqualification if you find that the state has proved beyond a reasonable
doubt that he did know that he could retreat with complete safety. . . .
‘‘[Y]ou must find that the defendant did not act in self-defense if you find
that the state has proved beyond a reasonable doubt that, now I’m going
to cover the exceptions, one, the defendant provoked [the victim] into using
physical force against him, or, two, the defendant was the initial aggressor
in the encounter, or, three, the defendant had a duty to retreat from the
physical encounter because he knew he could do so with complete safety.’’
(Emphasis added.)
35
General Statutes § 53a-19 (b) provides in relevant part that ‘‘a person
is not justified in using deadly physical force upon another person if he or
she knows that he or she can avoid the necessity of using such force with
complete safety (1) by retreating . . . .’’
36
The state argues that the defendant’s claim as to the provocation instruc-
tion is not reviewable because his defense counsel remained silent when
the court stated that he had abandoned the challenge to that specific instruc-
tion. In support, the state directs us to State v. McCall, 62 Conn. App. 161,
166B, 780 A.2d 134, cert. denied, 258 Conn. 935, 785 A.2d 231 (2001), where
defense counsel agreed with the court’s ruling on a motion in limine regard-
ing the defendant’s prior misconduct. We declined to consider the appellate
claim that the court had improperly denied that motion, noting that ‘‘[a]ppel-
late courts do not review rulings that the defendant accepted or requested
at trial . . . .’’ (Internal quotation marks omitted.) Id.
In the present case, defense counsel did not expressly agree with the
court’s statement that he had abandoned the objection to the provocation
instruction. Additionally, as noted in his reply brief, the defendant challenged
the provocation instruction in his postverdict motion for a new trial, and
the court addressed it. Under these facts and circumstances, we conclude
that this claim is reviewable.
37
Specifically, the court instructed the jury: ‘‘A person is not justified in
using deadly physical force upon another person if he knows that he can
avoid the necessity of using such force with complete safety by retreating.
This disqualification requires a defendant to retreat instead of using deadly
physical force whenever two conditions are met. One, a completely safe
retreat is, in fact, available to him and, two, he knows that he can avoid
the necessity of using deadly physical force by making that completely
safe retreat. . . . A person acts knowingly with respect to a circumstance
described in a statute when is aware that such circumstance exists. A person
acts knowingly with respect to a circumstance when he is aware that it
exists.’’ (Emphasis added.)
38
Specifically, the court instructed the jury: ‘‘Ordinarily, knowledge can
be established only through an inference from other proven facts and circum-
stances. The inference may be drawn if the circumstances are such that a
reasonable person of honest intention in the situation of the defendant
would have concluded that one could avoid the necessity of using deadly
physical force by making that completely safe retreat.’’ (Emphasis added.)
39
Specifically, our Supreme Court explained: ‘‘The defendant’s evidence
concerning the stabbing consisted solely of his own testimony and was
factually inconsistent with an instruction regarding the duty to retreat.
According to the defendant, the victim jumped on top of him without warning
and began strangling him. The defendant testified that he attempted, unsuc-
cessfully, to free himself by removing the victim’s hands from his throat
prior to using the pocketknife. Given this factual scenario, the jury reason-
ably could not have determined that there existed any opportunity for the
defendant to retreat safely prior to using force.’’ State v. Whitford, supra,
260 Conn. 625–26.
40
Specifically, our Supreme Court stated: ‘‘The state, choosing affirma-
tively to advocate for the victim’s version of events, presented no evidence
tending directly to defeat the claim of self-defense. The state’s case was
thus presented largely through the testimony of the victim, who maintained
that the defendant, unprovoked, assaulted and stabbed him in his bedroom.
This factual scenario, however, does not even raise the issue of whether
the defendant was justified in using force. It therefore cannot form the basis
of an instruction on an exception to the claim of self-defense.’’ State v.
Whitford, supra, 260 Conn. 626.