State v. Knox ( 2020 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. RICKIE
LAMONT KNOX
(AC 41168)
(AC 41644)
Alvord, Alexander and Harper, Js.
Syllabus
Convicted, after a jury trial, of the crime of criminal possession of a firearm
in connection with the shooting death of the victim, and with being a
persistent serious felony offender, the defendant appealed to this court.
The victim and some friends argued outside a cafe with another group
that included the defendant. At some point, the defendant withdrew a
handgun. The victim appeared to reach for a gun in his waistband and
the defendant shot the victim, who fell to the ground injured. The victim
discharged his gun while on the ground. The defendant then fled the
scene with his gun. The victim later died as a result of his injuries.
Approximately one month after the incident, the defendant was arrested
and was briefly interviewed by a detective, B, before invoking his right
to counsel, ending the interview. The next day, the defendant informed
another officer that he wanted to speak with B. During this second
interview, B informed the defendant of his Miranda rights (384 U.S.
436). The defendant expressly stated that he understood and waived
these rights. During the course of the second interview, the defendant
admitted to being outside the cafe at the time of the shooting. Certain
statements made by the defendant during his second interview with B
were admitted into evidence. After a jury trial, the defendant was found
guilty of criminal possession of a firearm and tampering with physical
evidence and with being a persistent serious felony offender. Thereafter,
the trial court granted the defendant’s motion for judgment of acquittal
as to the charge of tampering with physical evidence, and the state, on
the granting of permission, appealed to this court. Held:
1. The trial court properly granted the defendant’s motion for a judgment
of acquittal with respect to the charge of tampering with physical evi-
dence, as no reasonable trier of fact could have found the defendant
guilty; the state presented insufficient evidence that the defendant
intended to impair the availability of his gun in a subsequent criminal
investigation, there having been no evidence regarding the defendant’s
intent, apart from the evidence that, after shooting the victim, the defen-
dant left the scene with the gun; moreover, the state’s claim that it could
rely on the defendant’s prior felony conviction to support a finding that
the defendant had removed the gun from the scene to avoid a charge of
criminal possession of a firearm and, therefore, tampered with physical
evidence, was unavailing, as evidence of that conviction had been admit-
ted by stipulation only for the limited purpose of establishing an element
of the crime of criminal possession of a firearm.
2. The defendant could not prevail on his claim that his statements made
to the police during the second interview should have been excluded
because he made an ambiguous request for counsel that required the
police to stop the interview and clarify this request pursuant to State
v. Purcell (331 Conn. 318); the defendant’s explanation to B that he had
changed his mind about speaking with the police because a lawyer had
not come to see him after the first interview and he felt ‘‘left for dead,’’
would not have caused a reasonable officer to construe that explanation
as an ambiguous request for counsel as that statement did not contain
any of the conditional or hedging terms that have been deemed ambigu-
ous or equivocal invocations of that right, and the defendant made no
clear and unequivocal request for an attorney; moreover, the conclusion
that the defendant’s explanation was not a request for counsel was
supported by the circumstances of the two interviews, including, at
outset of the second interview, the defendant’s indication that he did
not want to be recorded, his expressed concern for his safety, and
his reluctance to identify certain individuals involved in other criminal
activity, and, at the first interview, the defendant, who B knew to have
been involved in previous criminal matters, had unambiguously invoked
his right to counsel, which resulted in the termination of that interview.
3. The trial court did not abuse its discretion in making its evidentiary ruling
regarding the admission of certain portions of B’s interview with the
defendant: the court’s decision to admit only that portion of the interview
in which the defendant identified himself in a photograph taken from
a surveillance video on the night of the shooting and to not admit the
portion the defendant sought to introduce in which he identified another
man in the photograph as the shooter did not violate the applicable rule
(§ 1-5) of the Connecticut Code of Evidence because the evidence the
defendant sought to introduce did not change or alter the fact that he
identified himself as present at the scene and would not demonstrate
that the portion of the interview that was introduced had been taken
out of context; moreover, the defendant failed to establish that the
court’s evidentiary rulings violated his constitutional rights to due pro-
cess and to present a complete defense.
Argued September 9—officially released November 24, 2020
Procedural History
Two part substitute information charging the defen-
dant, in the first part, with the crimes of murder, crimi-
nal possession of a firearm, and tampering with physical
evidence and, in the second part, with being a persistent
serious felony offender, brought to the Superior Court
in the judicial district of Waterbury, and tried to the
jury before Alander, J.; verdict of guilty of criminal
possession of a firearm, tampering with physical evi-
dence, and with being a persistent serious felony
offender; thereafter, the court granted the defendant’s
motion for a judgment of acquittal as to the charge of
tampering with physical evidence; subsequently, the
court, Alander, J., rendered judgment of guilty of crimi-
nal possession of a firearm and enhanced the defen-
dant’s sentence for being a persistent serious felony
offender, from which the state, on the granting of per-
mission, and the defendant filed separate appeals to
this court. Affirmed.
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Terence Mariani and Elena Palermo, senior
assistant state’s attorneys, for the appellant in Docket
No. AC 41168 (state).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Terence Mariani, senior assistant state’s attor-
ney, for the appellee in Docket No. AC 41644 (state).
Erica A. Barber, assigned counsel, for the appellant
in Docket No. AC 41644 and the appellee in Docket No.
AC 41168 (defendant).
Opinion
ALEXANDER, J. This case involves two separate
appeals. First, in the appeal in Docket No. AC 41168,
the state appeals from the decision of the trial court
granting the motion for judgment of acquittal filed by
the defendant, Rickie Lamont Knox, with respect to the
charge of tampering with physical evidence in violation
of General Statutes § 53a-155. The state contends that
sufficient evidence existed to support this conviction.
Second, in the appeal in Docket No. AC 41644, the
defendant appeals from the judgment of conviction,
rendered after a jury trial, of criminal possession of a
firearm in violation of General Statutes § 53a-217. The
defendant contends that his postarrest statements to
the police had been obtained following a violation of
the prophylactic rule created by our Supreme Court in
State v. Purcell, 331 Conn. 318, 203 A.3d 542 (2019),
and, therefore, should have been excluded from evi-
dence. The defendant also argues that the court abused
its discretion and violated his constitutional rights by
admitting into evidence certain inculpatory portions of
his police interview while excluding related contextual
portions. We affirm the judgment of the trial court.
The following facts, as the jury reasonably could have
found, and procedural history are necessary for the
resolution of these appeals. On October 17, 2015, Isaiah
James spent the day socializing with the decedent,
Anthony Crespo, at the decedent’s apartment. At some
point that night, two other individuals, Ismail Abdus-
Sabur and Timothy Minnifield, joined James and the
decedent. After consuming all of the alcohol at the
decedent’s apartment, the group walked to the Barley
Corn Cafe (cafe) around 1 a.m. on October 18, 2015.
James and the decedent attempted to enter the cafe
while the other two men, who were under the age of
twenty-one, waited outside. After being denied entry
into the cafe, James ‘‘bumped’’ into another man stand-
ing outside, and a brief verbal disagreement ensued.
James then walked over to Abdus-Sabur and Minnifield.
An individual, who the state argued was the defendant,
then placed his hand, positioned to resemble a gun,
to James’ head, and cautioned him to ‘‘[w]atch [his]
ass . . . .’’
After being threatened, James spoke with the dece-
dent. James turned around and realized that there was
‘‘a group of guys around [them].’’ The decedent began
to argue with this group. The defendant, standing
directly in front of the decedent, drew a handgun from
his waistband. The decedent appeared to reach for a
gun in his waistband. The defendant shot the decedent,
who fell to the ground, injured.1 The decedent dis-
charged his gun while on the ground. The defendant
then fled the scene.
Edward Bergin, the owner of the cafe, came outside
and was directed to the decedent, who remained on
the ground. Bergin overheard the decedent ask Edwin
Melendez to retrieve the decedent’s gun from under a
nearby parked motor vehicle. Melendez looked under
the motor vehicle, grabbed the decedent’s gun and
placed it in his vehicle. Bergin relayed this information
regarding the relocating of the decedent’s gun to Brian
Brunelli, a Waterbury police officer who had been dis-
patched to the cafe.
Brunelli observed a small hole in the center of the
decedent’s chest. The decedent’s gun was recovered
from Melendez’ vehicle. While on the ground outside
of the cafe, the decedent informed Brunelli that he could
neither breathe nor feel his legs. Medical personnel
transported the decedent to the hospital, where he died
soon thereafter.2
Joe Rainone, a Waterbury police lieutenant, pro-
cessed the crime scene where the police recovered
three firearm cartridges: a fired nine millimeter car-
tridge, an unfired .45 caliber cartridge, and a fired .45
caliber cartridge, which later testing revealed had been
discharged from the decedent’s gun.3 On the basis of
the evidence at the crime scene, the police concluded
that two different guns had been used in the shooting
outside of the cafe, and that the decedent had fired one
shot during the altercation.
After an investigation, the police arrested the defen-
dant approximately one month later. Recorded police
interviews with the defendant occurred on November
20 and 21, 2015. At the start of the trial, the state filed
an information charging the defendant with murder in
violation of General Statutes § 53a-54, criminal posses-
sion of a firearm in violation of § 53a-217, carrying a
pistol without a permit in violation of General Statutes
§ 29-35 and tampering with physical evidence in viola-
tion of § 53a-155. At the conclusion of the trial, the
state withdrew the charge of carrying a pistol without
a permit and filed a new long form information charging
the defendant with the crimes of murder, criminal pos-
session of a firearm and tampering with physical evi-
dence. The jury returned not guilty verdicts on the mur-
der charge and certain lesser included offenses,4 and a
guilty verdict on the criminal possession of a firearm
and tampering with physical evidence charges.
Following the jury’s verdict, the court granted the
defendant’s motion for a judgment of acquittal with
respect to the charge of tampering with physical evi-
dence. The court concluded that the state had failed
to present sufficient evidence that the defendant had
removed his gun from the crime scene with the intent
to hinder a criminal investigation. The court then pro-
ceeded to the state’s part B information and the jury
found the defendant guilty of being a persistent serious
felony offender. See General Statutes § 53a-40 (c). On
February 9, 2018, the court imposed a total effective
sentence of twenty years incarceration. These
appeals followed.
I
In the appeal in Docket No. AC 41168, the state claims
that the court improperly granted the defendant’s
motion for judgment of acquittal with respect to the
charge of tampering with physical evidence. Specifi-
cally, the state contends that it had produced sufficient
evidence that the defendant had removed his gun from
the crime scene with the intent to impair its availability
in a criminal investigation by a law enforcement agency.
We disagree.
The state charged the defendant with tampering with
physical evidence in violation of § 53a-155 (a) (1) by
fleeing from the crime scene with his gun.5 On October
2, 2017, the defendant filed a motion seeking, in part,
to dismiss the tampering charge. On October 17, 2017,
the court heard arguments on this motion. The court
denied that portion of the defendant’s motion to dismiss
‘‘in essence’’ but noted that the defendant could raise
arguments relating to the tampering with physical evi-
dence charge at a later time.
Before the conclusion of the state’s case, the parties
stipulated that the defendant had been convicted of a
felony prior to the events of October 18, 2015. As a
result of this stipulation, the court instructed the jury6
that the evidence of the prior conviction had been
admitted for the limited purpose of establishing one of
the elements of criminal possession of a firearm7 and
was not to be used for any other purpose. The court
subsequently reiterated the limited purpose of the evi-
dence of the defendant’s prior felony conviction during
its final instructions to the jury.8
On October 31, 2017, after the conclusion of the evi-
dentiary phase of the trial, the defendant filed a motion
for judgment of acquittal. See Practice Book § 42-40.
The defendant asserted that the state had failed to pro-
duce evidence that he ‘‘altered, destroyed, concealed
or removed a firearm with the purpose to impair its
availability in a criminal investigation or official pro-
ceeding.’’ During oral argument on the defendant’s
motion, the prosecutor noted that the requisite intent
for tampering with physical evidence could be inferred
from both the defendant’s flight from the scene and the
fact that, given his prior felony conviction, the defen-
dant knew that possession of a firearm constituted evi-
dence of criminal possession of a firearm. After hearing
from the parties, the court reserved judgment on the
motion until after the jury verdict. See Practice Book
§ 42-42.9
On November 6, 2017, the jury found the defendant
guilty of criminal possession of a firearm and tampering
with physical evidence. After excusing the jury, the
court heard further argument from the parties regarding
the defendant’s motion for judgment of acquittal. At
the outset, the court questioned whether the state had
met its burden with respect to the tampering with physi-
cal evidence charge. The court inquired whether, under
these facts, where there had been a ‘‘shootout and a
valid claim of self-defense [and] where [the state had
claimed that the defendant] had a duty to retreat,’’ the
defendant’s flight from the scene with his gun was suffi-
cient for the jury to find that he had intended to impair
the criminal investigation. The prosecutor responded
that the jury could have found that the defendant had
a dual intent in that he wanted to flee the scene and
prevent the police from gaining possession of his
firearm.
The court then rendered its oral decision on the
motion for judgment of acquittal. ‘‘My view is [that] the
only evidence from which a jury could infer an intent
to remove the gun to impair a criminal investigation is
his flight from the scene. Under the circumstances of
this case, where there was inarguably a shootout, where
the [decedent] fired his weapon, and the defendant fled
the scene claiming self-defense and the state argued a
duty to retreat, looking at all those circumstances, I
conclude a jury could not reasonably find that the state
has proven beyond a reasonable doubt that he took the
gun with him to impair its availability in a subsequent
criminal investigation. So for those reasons, I’m going
to grant the motion for judgment of acquittal.’’
Two days later, the state filed a motion for permission
to appeal the granting of the defendant’s judgment for
motion of acquittal. See General Statutes § 54-96; Prac-
tice Book § 61-6 (b).10 The court granted the state’s
motion for permission to appeal on November 28, 2017.
See generally State v. Richard P., 179 Conn. App. 676,
678 n.1, 181 A.3d 107 (trial court granted state permis-
sion to appeal), cert. denied, 328 Conn. 924, 181 A.3d
567 (2018); State v. Brundage, 148 Conn. App. 550, 552,
87 A.3d 582 (2014) (same), aff’d, 320 Conn. 740, 135
A.3d 697 (2016).
We begin with the relevant legal principles and our
standard of review. A motion for a judgment of acquittal
must be granted if the evidence would not reasonably
permit a finding of guilt. State v. Nival, 42 Conn. App.
307, 308, 678 A.2d 1008 (1996); see also State v. Greene,
186 Conn. App. 534, 549, 200 A.3d 213 (2018). In ruling
on such a motion, ‘‘the trial court must determine
whether a rational trier of fact could find the crime
proven beyond a reasonable doubt.’’ State v. Nival,
supra, 309.
In the present case, the court concluded that the state
had failed to prove, beyond a reasonable doubt, that
the defendant removed the gun from the crime scene
with the intent to impair its availability in a subsequent
criminal investigation. ‘‘In reviewing a sufficiency of
the evidence claim, 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 reason-
ably drawn therefrom the [trier 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 consistent with the defendant’s innocence. . . .
The trier may draw whatever inferences from the evi-
dence or facts established by the evidence it deems to
be reasonable and logical. . . .
‘‘The trial court should not set a verdict aside where
there was some evidence upon which the jury could
reasonably have based its verdict . . . . A jury can rely
on both circumstantial and direct evidence when mak-
ing its verdict. There is no legal distinction between
direct and circumstantial evidence so far as probative
force is concerned. . . . Because direct evidence of the
accused’s state of mind is rarely available . . . intent
is often inferred from conduct . . . and from the cumu-
lative effect of the circumstantial evidence and the
rational inferences drawn therefrom.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Mark,
170 Conn. App. 241, 249–51, 154 A.3d 564, cert. denied,
324 Conn. 927, 155 A.3d 1269 (2017); see also State v.
Greene, supra, 186 Conn. App. 549–50.
We now turn to the statutory language of the crime
of tampering with physical evidence. See, e.g., State v.
Pommer, 110 Conn. App. 608, 613, 955 A.2d 637 (review
of any claim that evidence was insufficient to prove
violation of criminal statute necessarily includes con-
sideration of skeletal requirement of necessary ele-
ments that charged statute requires to be proved), cert.
denied, 289 Conn. 951, 961 A.2d 418 (2008). Section 53a-
155 (a) provides in relevant part: ‘‘A person is guilty
of tampering with or fabricating physical evidence if,
believing that a criminal investigation conducted by a
law enforcement agency or an official proceeding is
pending, or about to be instituted, such person: (1)
Alters, destroys, conceals or removes any record, docu-
ment or thing with purpose to impair its verity or avail-
ability in such criminal investigation or official proceed-
ing . . . .’’11 Our Supreme Court has set forth the
elements of this crime. ‘‘The state . . . must establish
that the defendant (1) believed that an official proceed-
ing [or criminal investigation] was pending or about to
be instituted, (2) discarded the evidence at issue, and
(3) acted with the intent to prevent the use of the evi-
dence at an official proceeding [or criminal investiga-
tion].’’ (Emphasis added.) State v. Jordan, 314 Conn.
354, 377, 102 A.3d 1 (2014); see also State v. Mark,
supra, 170 Conn. App. 251.
On appeal, the state argues that the evidence was
sufficient to prove that the defendant removed the gun
from the crime scene with the intent to impair its avail-
ability in the subsequent police investigation. It further
contends that the jury could have inferred that the
defendant, cognizant of his prior felony conviction,
removed the gun for the purpose of avoiding the charge
of criminal possession of a firearm. The defendant
counters that his prior felony conviction had been
admitted into evidence for the limited purpose of estab-
lishing an element of the crime of criminal possession
of a firearm and could not be used for any other pur-
pose. We agree with the defendant.
A brief review of the relevant case law will facilitate
our analysis. In State v. Foreshaw, 214 Conn. 540, 542–
43, 572 A.2d 1006 (1990), the defendant shot and killed
the victim and then fled in her car. The police arrested
the defendant a short time later and found a bullet on
the floor of her vehicle. Id., 543. The defendant stated
that she had thrown her gun out of the car window,
and efforts to retrieve it proved to be unsuccessful. Id.
At her criminal trial, the defendant admitted that she
had discarded the gun while driving away from the site
of the shooting ‘‘so that she would not be caught with
it.’’ Id. The jury found her guilty of murder, carrying a
pistol without a permit, and tampering with physical
evidence. Id., 541.
On appeal, the defendant challenged the sufficiency
of the evidence with respect to the tampering with
physical evidence charge. Id., 549. Although the defen-
dant in Foreshaw did not focus on whether she had
discarded the gun with the intent to make it unavailable
for the subsequent official proceeding; see id., 550–51;
our Supreme Court noted that she had testified to dis-
carding the gun ‘‘so that she would not be caught with
it.’’ Id., 550. Thus, in Foreshaw, the defendant’s own
words provided evidence of her intent with respect to
the unavailability of the gun in the subsequent pro-
ceeding.
In State v. Jordan, supra, 314 Conn. 354, our Supreme
Court clarified certain aspects of its decision in Fore-
shaw. In Jordan, a witness observed an individual pull
‘‘aggressively’’ on the locked door of a closed bank
while wearing a jacket, ski mask and gloves. Id., 358–59.
After hearing the witness’ report on his radio, a nearby
police officer observed a likely suspect and called out
to him. Id., 359. The suspect took off running. Id. During
the ensuing chase, the suspect removed and discarded
several items of clothing, including his jacket,
sweatshirt, mask and gloves. Id., 359–60. The police
eventually located and arrested the defendant, who was
charged with various criminal offenses. Id., 360–63. The
defendant was convicted of attempt to commit robbery
in the third degree, conspiracy to commit robbery in
the third degree and tampering with physical evidence.
Id., 358.
On appeal, the defendant claimed that the evidence
was insufficient to support his conviction of tampering
with physical evidence. Id., 376. In addressing the defen-
dant’s contention that Foreshaw had been decided
incorrectly, our Supreme Court observed that § 53a-
155 applies to some, but not all, attempts to discard
evidence that occur during a police investigation. Id.,
382.12 Furthermore, it noted that ‘‘it is not the existence
of an investigation that is key but, rather, whether the
defendant believes an official proceeding is pending or
probable. . . . This analysis ensures that the focus of
the inquiry is on the culpability of the actor, rather than
on external factors wholly unrelated to [the actor’s]
purpose of subverting the administration of justice.’’
(Internal quotation marks omitted.) Id., 383.
In Jordan, our Supreme Court determined that the
jury could not reasonably have concluded that, at the
time the defendant discarded the evidence, he believed
that an official proceeding against him was probable.
Id., 385. ‘‘Instead, the only reasonable inference from
the facts . . . is that the defendant discarded his cloth-
ing to prevent its use in an investigation in order to
escape detection and avoid being arrested by the pursu-
ing police officer. There is no evidence that when the
defendant discarded the clothing he believed that the
police officer had any information, other than the cloth-
ing, linking him to the attempted bank robbery.’’ Id.,
388–89.
Unlike in Jordan, here, the removal of evidence for
the purpose of impairing its availability in a criminal
investigation by law enforcement falls within the ambit
of § 53a-155. See note 12 of this opinion. Nevertheless,
the state failed to produce any evidence that, at the time
the defendant departed the crime scene, he removed
the gun with the intent to impair its availability in a
subsequent criminal investigation. Cf. State v. Mark,
supra, 170 Conn. App. 254 (witness testified that defen-
dant was nervous and had wanted to return to crime
scene to dispose of rock used to kill victim). The evi-
dence indicates that the defendant shot the decedent,
who fell to the ground and returned fire. The defendant
then left the scene. There is no additional evidence that,
when he left the scene of the shooting, the defendant
took the gun with the intent to prevent its use in the
subsequent police investigation.
The state argues that, in addition to his flight from
the scene of the shooting, the jury could have relied
on the defendant’s prior felony conviction to satisfy the
element that he had removed the gun with the intent
to impair its availability in an investigation by law
enforcement. The state maintains that the evidence of
the defendant’s flight, combined with his prior felony
conviction, supported a finding that the defendant had
removed the gun from the scene to avoid a charge of
criminal possession of a firearm, and therefore tam-
pered with physical evidence.
The state’s argument, however, overlooks the limited
purpose for which the defendant’s prior felony convic-
tion had been admitted into evidence. The parties and
the court addressed the admissibility of the defendant’s
prior felony conviction. The court indicated that it
would provide the jury with ‘‘a cautionary instruction
. . . that the felony conviction is only to be used for
that count [of criminal possession of a firearm] and
for no other. It’s not to be used to infer bad character
or criminal propensity on the part of the defendant.’’
(Emphasis added.) When the parties’ stipulation regard-
ing the defendant’s prior felony conviction was admit-
ted into evidence and read to the jury, the court limited
its use to the charge of criminal possession of a firearm.
The court repeated that limitation during its charge to
the jury. At no point did the state object to the limited
purpose for which the evidence of the defendant’s prior
felony conviction could be used.
‘‘Evidence which is offered and admitted for a limited
purpose only, and the facts found from such evidence,
cannot be used for another and totally different pur-
pose. O’Hara v. Hartford Oil Heating Co., 106 Conn.
468, 473, 138 A. 438 (1927).’’ (Internal quotation marks
omitted.) Access Agency, Inc. v. Second Consolidated
Blimpie Connecticut Realty, Inc., 174 Conn. App. 218,
229, 165 A.3d 174 (2017); see also Damick v. Planning &
Zoning Commission, 158 Conn. 78, 80–81, 256 A.2d 428(1969) (when court used evidence and testimony for
purposes beyond limited ones for which it had permit-
ted admission into evidence, such misuse was imper-
missible); see generally Conn. Code Evid. § 1-4. Given
the state’s agreement to use the defendant’s prior felony
conviction only for a limited purpose, we reject its
efforts to now apply that evidence to the tampering with
physical evidence charge.13 We conclude, therefore, that
the state presented insufficient evidence regarding the
defendant’s intent when he departed from the scene of
the shooting. The evidence regarding his prior felony
conviction could not be used to establish the element
of intent in the tampering with physical evidence
charge. For these reasons, we conclude that no reason-
able trier of fact could have found the defendant guilty
of this charge, and the trial court properly granted the
defendant’s motion for judgment of acquittal as to the
charge of tampering with physical evidence.
II
In the appeal in Docket No. AC 41644, the defendant
claims that his statements to the police had been
obtained after a violation of the prophylactic rule estab-
lished by our Supreme Court in State v. Purcell, supra,
331 Conn. 318, and, therefore, the court should have
excluded his statements from evidence. The defendant
also contends that the court abused its discretion and
violated his constitutional rights by admitting into evi-
dence certain inculpatory portions of his police inter-
view and excluding related contextual portions. The
state counters, inter alia, that the defendant did not
make an ambiguous request for counsel during his inter-
view with the police and, therefore, the Purcell rule did
not apply. Additionally, the state maintains that the
court did not abuse its discretion or violate the defen-
dant’s constitutional rights with respect to its rulings
regarding the admissibility of portions of the defen-
dant’s police interview. We agree with the state.
On November 20, 2015, approximately one month
after the shooting, the police took the defendant into
custody pursuant to an arrest warrant. The defendant
was arrested in New Haven and then transported to
Waterbury. During a brief custodial interview in the
detective bureau, the defendant unambiguously
asserted his right to have a lawyer present, and Stephen
Brownell, a Waterbury police detective, ended the
interview.
The defendant remained in custody overnight at the
Waterbury police station. The next day, he informed
Ricardo Viera, a Waterbury police officer, that he
wanted to speak with Brownell. The defendant’s affir-
mative request was relayed to Brownell, who returned
to the police station to speak with the defendant on
November 21, 2015. During this second interview,
Brownell informed the defendant of his Miranda
rights.14 The defendant expressly stated that he under-
stood and waived these rights. During the course of
this second interview, the defendant admitted to being
outside the cafe at the time of the shooting.
On October 2, 2017, the defendant filed a motion to
suppress the statements he made to law enforcement
officers. The defendant claimed that these statements
were made (1) without a valid waiver of his state and
federal rights against self-incrimination, (2) involun-
tarily, in violation of state and federal rights to due
process and (3) in violation of his right to counsel. The
defendant filed a memorandum of law in support of the
motion to suppress approximately two weeks later.
On October 17, 2017, the court held a hearing on the
defendant’s motion to suppress. For purposes of the
hearing, the state conceded that the defendant was in
custody and subject to interrogation. The parties also
agreed to focus on the November 21, 2015 interview.
The court indicated that it had watched the video
recordings of both interviews. After hearing from the
state’s witnesses, the court orally denied the defen-
dant’s motion to suppress.
The court found that the defendant had asserted his
right to have counsel present during the first interview,15
at which time Brownell terminated the interrogation.16
The next day, the defendant affirmatively requested to
speak to Brownell, which led to the second interview.
The court expressly found that, during the second inter-
view, the defendant was informed of, understood and
waived his Miranda rights. The court noted that, during
the second interview, the defendant had expressed dis-
satisfaction that a lawyer had not come to see him
following the conclusion of the first interview. The
court, relying on Edwards v. Arizona, 451 U.S. 477, 101
S. Ct. 1880, 68 L. Ed. 2d 378 (1981), concluded that the
defendant had initiated further communication with the
police,17 and then had knowingly, intelligently and vol-
untarily waived his Miranda rights. Accordingly, it
denied the defendant’s motion to suppress.
On the last day of the state’s case, the prosecutor,
outside the presence of the jury, sought to have portions
of the video recording of the defendant’s second inter-
view admitted into evidence. Defense counsel, who had
not been provided with advance notice of the specific
excerpts the state sought to have admitted, noted that
he likely would ask that certain additional portions
also be admitted into evidence to provide the jury with
context. After viewing the state’s proffer, defense coun-
sel offered several video clips for admission into evi-
dence. The court admitted only the excerpt of the inter-
view offered by the state, in which the defendant
admitted to being present outside of the cafe on the
night of the shooting.
A
The defendant first claims that his statements to the
police during his second interview violated the prophy-
lactic rule set forth by our Supreme Court in State v.
Purcell, supra, 331 Conn. 318, and, therefore, the court
should have excluded the statements from evidence.
The defendant argues that he made an equivocal or
ambiguous request for counsel at the beginning of the
second interview and therefore the police should have
confined any further questioning to narrow inquiries
designed to clarify the defendant’s desire for counsel,
as required by Purcell. The state counters that the defen-
dant’s remarks did not constitute an ambiguous request
for counsel, and, therefore, the police’s subsequent
questioning was not limited to a clarification of the
desire for counsel, and that any error was harmless
beyond a reasonable doubt. After a careful review of
the record and our Supreme Court’s decision in Purcell,
we conclude that the defendant’s comment did not
amount to an equivocal or ambiguous request for coun-
sel, and, therefore, the defendant’s claim fails.
The following additional facts are necessary for our
analysis. Brownell first interviewed the defendant on
November 20, 2015. This interview occurred after the
defendant’s arrest and transportation from New Haven
to Waterbury. At the outset, Brownell informed the
defendant that, before discussing the incident that had
led to his arrest, the defendant had to be made aware
of, and waive, certain rights.18 The defendant stated that
he was willing to talk to Brownell, but requested that
he be permitted to telephone his father. After further
conversation, Brownell again attempted to provide the
defendant with his Miranda rights. After reading some
of the Miranda rights aloud, the defendant again
requested to make a telephone call. The defendant
repeated that he was willing to speak with Brownell
and added that he wanted a lawyer present.19 Brownell
asked if the defendant would prefer to have a lawyer
and the defendant responded: ‘‘I’d rather have a lawyer
present.’’ At this point, Brownell ceased the interroga-
tion of the defendant.
The next day, the defendant reinitiated communica-
tion with the police by affirmatively requesting to speak
with Brownell, whom he described as the detective
‘‘controlling the case.’’ After returning to the police sta-
tion, Brownell commenced the second interview by
attempting to obtain the defendant’s waiver of his
Miranda rights. The defendant repeatedly expressed
his concerns about being recorded and for his safety.
After about fifteen minutes, the following colloquy
occurred:
‘‘[Brownell]: Who did you, who did you reach out
earlier to . . . say that you wanted to speak with me
again? Did you reach out to somebody?
‘‘[The Defendant]: Ye—couple of people.
‘‘[Brownell]: Who was it? Officers downstairs?
‘‘[The Defendant]: Mhhm.
‘‘[Brownell]: Were they wearing like blue uniforms,
like uniformed officers wear? Was that down in the cell
block? You just—what did you say to them, that you
wanted to speak with who?
‘‘[The Defendant]: The controlling officer, that’s all.
‘‘[Brownell]: What’s that?
‘‘[The Defendant]: The controlling officer.
‘‘[Brownell]: One of the controlling officers? Did you
ask to speak with detectives from yesterday? Anything
like that?
‘‘[The Defendant]: Yeah, I said controlling the case.
‘‘[Brownell]: Controlling the case?
‘‘[The Defendant]: Cuz I just want to know like—
it ain’t—
‘‘[Brownell]: Okay. So you reached out to them cor-
rect? Is that fair to say, that you said you wanted to
come back up here and speak with us? Okay. What
changed your mind from yesterday when you said you
didn’t want to speak with us? Did you have some time
to think about things?
’’[The Defendant]: When the lawyer ain’t come see
me—
’’[Brownell]: No?
‘‘[The Defendant]: The lawyer ain’t come see me, so
now I feel like I’m being left for dead, like—
’’[Brownell]: Shitty feeling.
‘‘[The Defendant]: Especially when I ain’t—ain’t noth-
ing going—besides somebody probably saying some-
thing—I did something—like that’s . . . .’’ (Emphasis
added.)
After the defendant explained why he had changed
his mind, Brownell made efforts to read to the defen-
dant his Miranda rights. He also explained the various
ways in which they could discuss the incident, as well
as the parameters of such a discussion. After several
attempts, Brownell read the defendant his rights. The
defendant verbally acknowledged that he understood
them and waived these rights. Brownell then proceeded
to interview the defendant about the shooting at the
cafe. Subsequently, in denying the defendant’s motion
to suppress, the court found that he had knowingly,
intelligently and voluntarily waived his rights during
the second interview.20
On appeal, the defendant contends that his response
to Brownell’s inquiry as to why he had changed his
mind about speaking with the police constituted an
equivocal or ambiguous request for counsel to be pres-
ent at the second interview. At the time of the motion
to suppress, and for purposes of the defendant’s federal
constitutional rights, this issue was controlled by Davis
v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L.
Ed. 2d 362 (1994). In that case, the United States
Supreme Court noted the rule that requires the police
to cease questioning a suspect after counsel has been
requested until either a lawyer is actually present or
the suspect reinitiates the conversation with law
enforcement. Id., 458; see also State v. Purcell, supra,
331 Conn. 331. ‘‘The applicability of the rigid prophylac-
tic rule . . . requires courts to determine whether the
accused actually invoked his right to counsel. . . . [I]f
a suspect makes a reference to an attorney that is ambig-
uous or equivocal in that a reasonable officer in light
of the circumstances would have understood only that
the suspect might be invoking the right to counsel, our
precedents do not require the cessation of the ques-
tioning.’’ (Citations omitted; emphasis in original; inter-
nal quotation marks omitted.) Davis v. United States,
supra, 458–59. Stated differently, ‘‘the suspect must
unambiguously request counsel. . . . Although a sus-
pect need not speak with the discrimination of an
Oxford don . . . he must articulate his desire to have
counsel present sufficiently clearly that a reasonable
police officer in the circumstances would understand
the statement to be a request for an attorney.’’ (Citations
omitted; internal quotation marks omitted.) Id., 459.
ever, our Supreme Court issued its decision in State v.
Purcell, supra, 331 Conn. 318. In that case, the defendant
made the following statements during a custodial inter-
rogation: ‘‘See, if my lawyer was here . . . then . . .
we could talk. That’s, you know, that’s it. . . . I’m sup-
posed to have my lawyer here. You know that.’’ (Internal
quotation marks omitted.) Id., 334. On appeal, our
Supreme Court concluded that these statements ‘‘were
not the type of expression necessary under Davis to
require interrogation to cease’’ as they did not constitute
an unambiguous request for counsel. Id., 341.
The court then considered whether article first, § 8,
of the Connecticut constitution required the police to
stop and clarify an ambiguous or equivocal request for
the presence of counsel. Id. Specifically, the court
described the issue as ‘‘whether to adopt an additional
layer of prophylaxis to prevent a significant risk of
deprivation of those vital constitutional rights protected
under Miranda.’’ Id., 342. Our Supreme Court observed
that it had ‘‘endorsed the stop and clarify rule and fol-
lowed it for more than a decade prior to Davis. See
State v. Anderson, 209 Conn. 622, 627–28, 553 A.2d 589(1989); State v. Barrett, [205 Conn. 437, 448, 534 A.2d
219 (1987)]; State v. Acquin, [187 Conn. 647, 674–75,
448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S.
Ct. 3570, 77 L. Ed. 2d 1411 (1983)].’’ State v. Purcell,
supra, 331 Conn. 347. Ultimately, the court concluded
that the standard set forth in Davis failed to safeguard
adequately the right to counsel during a custodial inter-
rogation under our state constitution. Id., 361–62. ‘‘We
therefore hold that, consistent with our precedent and
the majority rule that governed prior to Davis, our state
constitution requires that, if a suspect makes an equivo-
cal statement that arguably can be construed as a
request for counsel, interrogation must cease except
for narrow questions designed to clarify the earlier
statement and the suspect’s desire for counsel. . . .
Interrogators confronted with such a situation alterna-
tively may inform the defendant that they understand
his statement(s) to mean that he does not wish to speak
with them without counsel present and that they will
terminate the interrogation. In either case, if the defen-
dant thereafter clearly and unequivocally expresses a
desire to continue without counsel present, the interro-
gation may resume.’’ (Citation omitted; emphasis
added; internal quotation marks omitted.) Id., 362. As
a corollary to this rule, however, if the suspect makes
statements that cannot be construed as a request for
counsel, then the interrogation may continue, subject
to any other applicable constitutional limitations.
The trial in the present case predated our Supreme
Court’s decision in Purcell. Nevertheless, the parties
agree, and we concur, that because this appeal was
pending when Purcell was released on March 29, 2019,
the new rule set forth therein applies to this matter.
See State v. Dickson, 322 Conn. 410, 450, 141 A.3d 810(2016) (new constitutional rules of criminal procedure
must be applied in future trials and cases pending on
direct review), cert. denied, U.S. , 137 S. Ct.
2263, 198 L. Ed. 2d 713 (2017); Morrison v. Sentence
Review Division, 84 Conn. App. 345, 351 n.6, 853 A.2d
638 (same), cert. denied, 272 Conn. 908, 863 A.2d 701(2004).
The dispositive question, therefore, is whether the
exchange between the defendant and Brownell consti-
tuted an ambiguous or equivocal request so as to trigger
the requirement of Purcell that any further questioning
was limited to clarifying whether the defendant, in fact,
wanted to have an attorney present.
We are mindful that ‘‘[i]nvocation [of the right to
counsel] and waiver [of said right] are entirely different
inquiries . . . .’’ (Internal quotation marks omitted.)
State v. Rollins, 245 Conn. 700, 704, 714 A.2d 1217(1998); see also State v. Barrett, supra, 205 Conn. 440–41
(noting analysis comprised of whether defendant had
in fact invoked right to counsel and whether he had
waived right to counsel). In Davis v. United States,
supra, 512 U.S. 459, the United States Supreme Court
identified the test for an ambiguous or equivocal invoca-
tion of the right to counsel as whether the defendant’s
reference to an attorney would lead a reasonable offi-
cer, under the circumstances, to understand that the
defendant might be requesting counsel. See also State v.
Purcell, supra, 331 Conn. 333 (noting test from majority
opinion in Davis). Indeed, in considering the facts of
Purcell under the federal constitution, our Supreme
Court specifically recognized that a reasonable police
officer could have interpreted the defendant’s state-
ments as the invocation of the right to counsel, but that
his statements were reasonably amenable to a different
interpretation. Id., 339–40. We therefore will consider
whether, under the circumstances, a reasonable officer
could have interpreted the defendant’s exchange with
Brownell during the second interview as an invocation
of the right to counsel. See id., 333–39; see also State
v. Anonymous, 240 Conn. 708, 722–23, 694 A.2d 766(1997).
After the defendant had reinitiated communication
with the police, Brownell conducted the second inter-
view. Brownell informed the defendant that they had
to ‘‘go over’’ his rights. The defendant indicated that he
did not want to be recorded, and he wanted to regain his
freedom. The two men also addressed the defendant’s
concern for his safety and his reluctance to identify
certain individuals.21 After further discussion, the defen-
dant stated that he had changed his mind about speak-
ing to Brownell because a lawyer had not come to see
him and that he had felt ‘‘left for dead . . . .’’ Brownell
responded with ‘‘[s]hitty feeling.’’ After further discus-
sion, the defendant was read his rights, which he
acknowledged and waived.
After a careful consideration of the facts and circum-
stances, we conclude that the defendant’s explanation
as to why he had changed his mind about speaking with
Brownell did not constitute an ambiguous or equivocal
request for counsel. Our Supreme Court has observed
‘‘that not every reference to an attorney during custodial
interrogation is an invocation of the right to counsel.’’
State v. Shifflett, 199 Conn. 718, 737, 508 A.2d 748 (1986);
see also State v. Wilson, 199 Conn. 417, 443, 513 A.2d
620 (1986) (fleeting reference to attorney, considered
in context, may not amount to invocation of right to
counsel depending on circumstances), overruled in part
on other grounds by State v. McCoy, 331 Conn. 561,
586–87, 206 A.3d 725 (2019). Here, the defendant
explained to Brownell that he changed his mind and
agreed to speak with him about the shooting because
‘‘the lawyer ain’t come see me . . . .’’ A statement made
by a suspect in a custodial interrogation, even con-
taining the word ‘‘attorney’’ or ‘‘lawyer,’’ need not neces-
sarily fall within the sphere of a request, clear or ambig-
uous, for counsel. Indisputably, the statement at issue
did not constitute an ‘‘affirmative statement of present
intent,’’ which has been held to constitute a clear,
unequivocal invocation of the right to counsel. State v.
Purcell, supra, 331 Conn. 334–35. More importantly, it
did not contain one or more conditional or hedging
terms relating to the desire to have counsel present,
which have been deemed ambiguous or equivocal invo-
cations of that right. Id., 335–36.
Our conclusion that the defendant’s explanation for
speaking to the police would not cause a reasonable
officer to construe it as an ambiguous request for coun-
sel is supported by the circumstances of the two inter-
views. At the outset of the second interview, the defen-
dant indicated that he did not want to be recorded and
was worried about his safety. The defendant expressed
his reluctance to provide names of individuals to
Brownell and inquired as to whether other law enforce-
ment agencies had been involved in this matter. Those
agitations caused him to interrupt Brownell’s efforts to
read the defendant his Miranda rights. Prior to his
explanation for changing his mind, which occurred
approximately fifteen minutes into the second inter-
view, the defendant said nothing that could remotely
be construed as a request for counsel. Further, the
defendant, who Brownell knew to have been involved in
previous criminal matters, unambiguously had invoked
his right to counsel the previous day which resulted in
the termination of the first interview. Given the circum-
stances and the language used by the defendant during
his second exchange with Brownell explaining his rea-
son for choosing to speak about the shooting, there
was nothing that would have alerted a reasonable offi-
cer that the defendant was requesting counsel. Accord-
ingly, we conclude that his Purcell claim must fail.
B
The defendant next claims that the court abused its
discretion and violated his constitutional rights by
admitting into evidence certain inculpatory portions of
his statement while excluding related contextual por-
tions. Specifically, he argues that ‘‘the court permitted
the prosecution to create a misleading impression for
the jury by allowing the state to introduce inculpatory
portions of the defendant’s statements while omitting
portions wherein he denied involvement in the shooting
incident.’’ The defendant further claims to have suffered
both evidentiary and constitutional harm and therefore
is entitled to a new trial. We are not persuaded by the
defendant’s claims.
The following additional facts are necessary for the
resolution of these claims. On October 27, 2017, the
prosecutor informed the court of his intention to offer
portions of the defendant’s recorded interview with
Brownell for admission into evidence. The first portion
contained Brownell showing the defendant a photo-
graph from the surveillance video taken outside of the
cafe on the night of the shooting and the defendant
identifying himself in the photograph. The state also
sought to have this photograph admitted into evidence.
Defense counsel objected to the state’s proffer and
argued that additional portions of the recording should
be admitted into evidence. These portions included the
defendant’s identification of the shooter as a man
dressed in all white clothing.
The court noted that defense counsel sought to have
these additional portions of the defendant’s interview
with Brownell admitted into evidence pursuant to § 1-5
of the Connecticut Code of Evidence.22 Defense counsel
explained that the defendant’s acknowledgment of his
presence outside of the cafe at time of the shooting
would be taken out of context by the jury if his identifi-
cation of the shooter as the man dressed in all white
clothing also was not admitted into evidence. The court
noted that the defendant’s ‘‘motivation as to why he’s
putting himself at the scene is not necessary to under-
stand [the fact that he has identified himself as being
present] at the scene.’’23 Defense counsel conceded that,
in the portion of the video that the state sought to have
admitted into evidence, the defendant had identified
himself in the photograph taken at the scene on the
night of the shooting. After hearing further argument,
the court declined to admit into evidence the additional
portions of the recorded interview of the defendant
by Brownell.
The court informed the parties that it would admit
into evidence a twenty-three second portion of the
defendant’s recorded interview with Brownell. During
this excerpt, identified as exhibit 62A, Brownell showed
the defendant a photograph and asked if he was
depicted in that photograph. The defendant examined
the photograph and responded in the affirmative.
Brownell then inquired whether the defendant was
‘‘next to the dude in white?’’ The defendant again
responded in the affirmative.
Brownell testified that he had interviewed the defen-
dant for approximately three hours on November 21,
2015. He further stated that this interview had been
audio and video recorded. The court admitted into evi-
dence the short clip of the police interview conducted
by Brownell, identified as exhibit 62A, and it was played
for the jury. The court also admitted into evidence the
photograph that Brownell showed to the defendant dur-
ing the second interrogation.
Following the jury verdict, the defendant filed a
motion for a new trial on November 13, 2017. Therein,
the defendant again claimed that the admission of
exhibit 62A was misleading and prejudicial. The court
denied the defendant’s motion for a new trial.
On appeal, the defendant claims both evidentiary and
constitutional error with respect to the court’s ruling
regarding exhibit 62A. With respect to the former claim,
the defendant contends that the court abused its discre-
tion in admitting exhibit 62A and in excluding the por-
tions of the police interview in which he identified the
shooter as the man dressed in all white in violation of
§ 1-5 of the Connecticut Code of Evidence.
Before addressing the specifics of this claim, we set
forth our standard of review. ‘‘To the extent a trial
court’s [ruling regarding] admission of evidence is
based on an interpretation of the [Connecticut] Code
of Evidence, our standard of review is plenary. For
example, whether a challenged statement properly may
be classified as hearsay and whether a hearsay excep-
tion properly is identified are legal questions demanding
plenary review. They require determinations about
which reasonable minds may not differ; there is no
judgment call by the trial court . . . . We review the
trial court’s decision to admit evidence, if premised on
a correct view of the law, however, for an abuse of
discretion.’’ (Internal quotation marks omitted.) State
v. Norman P., 169 Conn. App. 616, 628, 151 A.3d 877(2016), aff’d, 329 Conn. 440, 186 A.3d 1143 (2018); see
also State v. Rivera, Conn. , , A.3d
(2020).
In the present case, the issue is whether the court
properly admitted and excluded the various portions of
the police interview pursuant to § 1-5 of the Connecticut
Code of Evidence and therefore we apply the abuse of
discretion standard of review. Pursuant to that stan-
dard, ‘‘[t]he trial court’s ruling on evidentiary matters
will be overturned only upon a showing of a clear abuse
of the court’s discretion. . . . We will make every rea-
sonable presumption in favor of upholding the trial
court’s ruling . . . and . . . upset it [only] for a mani-
fest abuse of discretion.’’ (Internal quotation marks
omitted.) State v. Brett B., 186 Conn. App. 563, 600, 200
A.3d 706 (2018), cert. denied, 330 Conn. 961, 199 A.3d
560 (2019); see also State v. Garcia, 299 Conn. 39, 56–57,
7 A.3d 355 (2010).
Section 1-5 (b) of the Connecticut Code of Evidence
‘‘applies to statements, and its purpose is to ensure that
statements placed in evidence are not taken out of
context. . . . This purpose also demarcates the rule’s
boundaries; a party seeking to introduce selected state-
ments under the rule must show that those statements
are, in fact, relevant to, and within the context of, an
opponent’s offer and, therefore, are part of a single
conversation. . . . State v. Castonguay, 218 Conn. 486,
497, 590 A.2d 901 (1991). . . . [This] rule logically
extends to written and recorded statements. Thus, like
subsection (a), subsection (b)’s use of the word state-
ment includes oral, written and recorded statements.
In addition, because the other part of the statement is
introduced under subsection (b) for the purpose of
putting the first part into context, the other part need
not be independently admissible. Conn. Code Evid. § 1-
5, commentary, subsection (b) . . . .’’ (Internal quota-
tion marks omitted.) Cousins v. Nelson, 87 Conn. App.
611, 617–18, 866 A.2d 620 (2005); see generally C. Tait &
E. Prescott, Connecticut Evidence (5th Ed. 2014)
§ 1.28.2, pp. 89–90.
In State v. Norman P., supra, 329 Conn. 459, our
Supreme Court defined the term ‘‘context’’ as ‘‘[t]he
weaving together of words in language . . . [t]he part
or parts of a written or spoken passage preceding or
following a particular word or group of words and so
intimately associated with them as to throw light upon
their meaning . . . .’’ (Emphasis in original; internal
quotation marks omitted.) It also set forth the following
analytical pathway to determine whether a statement
had been taken out of context so as to require the
admission into evidence of the relevant additional sec-
tions. ‘‘In accordance with these principles, when a
portion of a statement introduced by a party has been
taken out of context such that it distorts the meaning
of the entire statement and could mislead the jury, § 1-
5 (b) of the Connecticut Code of Evidence requires that
the relevant remainder be admitted . . . . We have
relied on a useful inquiry in determining whether § 1-
5 (b) requires the admission of a remainder of a state-
ment: does the remainder ‘alter the context’ of the
already introduced portion of the statement? State v.
Castonguay, [supra, 218 Conn. 497]. The nature of the
question suggests a practical approach to applying § 1-
5 (b): identify which portions of the statement were
initially introduced into evidence, set forth the argu-
ment of the party proffering the remainder as to how
the partial introduction distorts the meaning of the
whole, then juxtapose that initial offering with the
remainder. If the addition of the remainder would alter
the meaning of the initial offering—or, in other words,
would demonstrate that the initial portion was taken
out of context—then § 1-5 (b) requires that the remain-
der be admitted into evidence. This court followed pre-
cisely this approach in [State v. Jackson, 257 Conn.
198, 214, 777 A.2d 591 (2001)], in which the court first
considered which portions of the statement had been
admitted, identified the defendant’s argument as to why
the remainder was necessary to provide context, then
juxtaposed the initial offering with the remainder of
the statement and concluded that the original portions
had not distorted the meaning of the entire statement.’’
State v. Norman P., supra, 329 Conn. 460.
Applying this analysis to the facts of the present case,
we conclude that the court did not abuse its discretion
with respect to its evidentiary rulings. Here, the court
determined that in exhibit 62A the defendant identified
himself in the photograph during his interview with
Brownell. The additional information that the defendant
sought to have introduced into evidence included the
defendant’s identification of the man in all white as the
shooter. The evidence proffered did not change or alter
the fact that the defendant had made this self-identifica-
tion that placed him at the scene of the shooting. Stated
differently, the defendant’s identification of the individ-
ual in white clothing was not so intimately associated
so as to ‘‘throw light’’ on the fact that the defendant
identified himself in the photograph of the outside of
the cafe on the night of the shooting. See State v. Nor-
man P., supra, 329 Conn. 459. The defendant’s eviden-
tiary claims, therefore, must fail.
The defendant also alludes to claims of constitutional
error regarding the court’s admission of exhibit 62A and
its exclusion of the evidence proffered by the defendant.
Specifically, he asserts that the court’s rulings
amounted to violations of due process and the right to
present a complete defense. After a careful review of
the defendant’s brief, we conclude that he has failed to
establish violations of his constitutional rights. Having
determined that the court properly admitted exhibit
62A into evidence and that § 1-5 of the Connecticut
Code of Evidence did not require the admission of the
evidence offered by the defendant regarding his identifi-
cation of the man dressed in white as the shooter, the
defendant’s declarations of constitutional error do not
persuade us that constitutional violations occurred.
The judgment is affirmed.
In this opinion the other judges concurred.
1
During the autopsy, a single nine millimeter bullet was removed from
the decedent’s back.
2
James Gill, the forensic pathologist who performed the October 19, 2015
autopsy of the decedent, testified that the cause of death was a gunshot
wound to the trunk of the torso. Gill further opined that the decedent would
have been able to fire his gun after sustaining this gunshot wound.
3
Rainone explained to the jury that a cartridge is often called a ‘‘live
round’’ and consists of the canister, gun powder and the bullet.
4
The court charged the jury on the lesser included offenses of manslaugh-
ter in the first degree with a firearm in violation of General Statutes § 53a-
55a, manslaughter in the second degree with a firearm in violation of General
Statutes § 53a-56a and criminally negligent homicide in violation of General
Statutes § 53a-58.
5
The operative information charged the defendant as follows: ‘‘AND FUR-
THER THAT THE SAID [defendant] did commit the crime of TAMPERING
WITH PHYSICAL EVIDENCE in violation of . . . § 53a-155 (a) (1) in that
on or about October 18, 2015, at approximately 1:13 a.m., at or near [the cafe],
that said [defendant] did, believing that a criminal investigation conducted
by a law enforcement agency was about to be instituted, remove a thing
with purpose to impair its availability in such criminal investigation; to wit
[the defendant] fled the scene of the shooting with the gun he used to kill
[the decedent].’’
6
Specifically, the court instructed the jury as follows: ‘‘Ladies and gentle-
man, I’ll be giving full instructions as of the close of evidence, but as you
just heard, the state has offered evidence that the defendant has been
previously convicted of a felony. That evidence is not being admitted to
show that the defendant has bad character or propensity to commit crimes.
It’s been admitted for a limited purpose only, that limited purpose is to
establish an element of the crime of criminal possession of a firearm. And
you’re to use it for that purpose only. And I’ll be providing you with additional
instructions later in my charge to you.’’
7
General Statutes § 53a-217 (a) provides in relevant part: ‘‘A person is
guilty of criminal possession of a firearm . . . when such person possesses
a firearm . . . and (1) had been convicted of a felony committed prior to,
on or after October 1, 2013 . . . .’’ See generally State v. Harris, 183 Conn.
App. 865, 871 n.9, 193 A.3d 1223, cert. denied, 330 Conn. 918, 193 A.3d
1213 (2018).
8
The court instructed the jury as follows: ‘‘You will recall that some
testimony and evidence were admitted during the course of this trial for a
limited purpose only. Any testimony or evidence which I identified as being
received for a limited purpose, you will consider only as it relates to the
limited issue for which it was allowed. You shall not consider such testimony
and evidence in finding any other facts or as to any other issue.
***
‘‘Any evidence in this case that the defendant has previously been con-
victed of a felony has been admitted for a limited purpose, that purpose
being to establish the second essential element of this offense. The evidence
may not be used for any other purpose.’’ (Emphasis added.)
9
Practice Book § 42-42 provides that ‘‘[i]f the motion [for judgment of
acquittal] is made at the close of all the evidence in a jury case, the judicial
authority may reserve decision on the motion, submit the case to the jury,
and decide the motion either before the jury returns a verdict or after it
returns a verdict of guilty or after it is discharged without having returned
a verdict.’’
10
General Statutes § 54-96 provides: ‘‘Appeals from the ruling and deci-
sions of the Superior Court, upon all questions of law arising on the trial
of criminal cases, may be taken by the state, with the permission of the
presiding judge, to the Supreme Court or to the Appellate Court, in the same
manner and to the same effect as if made by the accused.’’
Practice Book § 61-6 (b) provides in relevant part: ‘‘The state, with permis-
sion of the presiding judge of the trial court and as provided by law, may
appeal from a final judgment.’’
11
Effective October 1, 2015, ‘‘[§] 53a-155 was amended . . . to add that
one may be guilty of tampering during a criminal investigation or when a
criminal proceeding is about to commence.’’ State v. Stephenson, 187 Conn.
App. 20, 33 n.9, 201 A.3d 427, cert. granted on other grounds, 331 Conn.
914, 204 A.3d 702 (2019); see also State v. Mark, supra, 170 Conn. App. 243 n.2.
12
Our Supreme Court’s decision in State v. Jordan, supra, 314 Conn. 354,
was released on November 4, 2014, approximately eleven months before
§ 53a-155 was amended to include criminal investigations.
13
In its reply brief, the state relies on State v. Gradzik, 193 Conn. 35, 475
A.2d 269 (1984). In that case, the defendant had been convicted of burglary
in the third degree and, on appeal, challenged the sufficiency of the evidence
that he entered the building. Id., 36. At the close of the state’s evidence, he
moved for a judgment of acquittal on the basis that the state had failed to
prove that the defendant entered the cellar door of the building. Id., 37. The
court denied the defendant’s motion. Id. In its charge, the court instructed
that in order to find the defendant guilty, the jury had to find that the
defendant had entered the cellar. Id., 37–38.
On appeal, the defendant claimed that the court’s charge had ‘‘narrowed
the issue to entry into the cellar [and because] proof of the defendant’s
presence in the hatchway is not sufficient for conviction,’’ his conviction
could not stand. Id., 38. Our Supreme Court first noted that, contrary to the
trial court’s instructions to the jury, the defendant’s presence in the hatchway
was sufficient for a conviction of burglary in the third degree. Id. It then
explained: ‘‘The trial court cannot by its instruction change the nature of
the crime charged in the information. . . . The substituted information
charged the defendant with burglary in the third degree which could have
been proved by the defendant’s unlawful entry into the hatchway. Though
the instruction incorrectly limited the proof necessary for a conviction, on
review of a sufficiency of the evidence claim this court looks to see if the
evidence supports the verdict on the crime charged. As discussed earlier,
we hold that it does.’’ (Citation omitted.) Id., 38–39.
We conclude that State v. Gradzik, supra, 193 Conn. 35, is distinguishable
from the present case. In Gradzik, our Supreme Court concluded that the
trial court’s erroneous instruction could not limit the elements of the crime
of burglary in the third degree so as to require the state to prove entry into
the cellar. The evidence of the defendant’s entry into the hatchway was
sufficient to support his conviction, despite that improper instruction by
the court. In the present case, the agreement of the parties limited the use
the defendant’s prior felony conviction and the court instructed the jury
accordingly. The state’s reliance on Gradzik, therefore, is misplaced.
14
Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
15
In Miranda v. Arizona, supra, 384 U.S. 469–73, the United States
Supreme Court held that ‘‘a suspect subject to custodial interrogation has
the right to consult with an attorney and to have counsel present during
questioning, and that the police must explain this right to him before ques-
tioning begins.’’ (Internal quotation marks omitted.) State v. Purcell, supra,
331 Conn. 330; see also State v. Anonymous, 240 Conn. 708, 720–21, 694
A.2d 766 (1997) (right of accused to have attorney present during custodial
interrogation constitutes prophylactic rule to protect constitutional rights).
16
In Smith v. Illinois, 469 U.S. 91, 98, 105 S. Ct. 490, 83 L. Ed. 2d 488(1984), the United States Supreme Court acknowledged the ‘‘bright-line
rule that all questioning must cease after an accused requests counsel.’’
(Emphasis in original; internal quotation marks omitted.) See also State v.
Purcell, supra, 331 Conn. 331; State v. Rollins, 245 Conn. 700, 704–706, 714
A.2d 1217 (1998); see generally annot., 83 A.L.R. 4th 454 § 2 [a] (1991).
17
‘‘We further hold that an accused . . . having expressed his desire to
deal with the police only through counsel, is not subject to further interroga-
tion by the authorities until counsel has been made available to him, unless
the accused himself initiates further communication, exchanges, or con-
versations with the police.’’ (Emphasis added.) Edwards v. Arizona, supra,
451 U.S. 484–85; see also State v. Hafford, 252 Conn. 274, 290, 746 A.2d 150(after suspect requests counsel, further conversations between police and
suspect do not violate Miranda if initiated by suspect), cert. denied, 531
U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000); State v. Mercer, 208 Conn.
52, 67–68, 544 A.2d 611 (1988) (same).
18
For example, Brownell stated: ‘‘But if we wanna talk about the incident,
if you wanna know why you’re here, the things that happened, what I know,
what people have been saying about you, at the bare minimum you have
to understand these rights, you gotta read them out loud, and say that you
understand them and you wanna speak with me.’’
19
Specifically, the defendant stated: ‘‘Yes, I do [want to speak with
Brownell], but I want to make a phone call, and my father and—and my
girl, have her bring a lawyer—can I speak with you with a lawyer?’’
20
During the hearing on the defendant’s motion to suppress, defense
counsel argued that the police had a legal obligation ‘‘to explain to [the
defendant] the fact he need not sit here feeling like he’s left for dead, that
arrangement can, in fact, be made to secure an attorney here and now. And
not just this nebulous, you know, this if you can’t one will be provided to
you, but explaining. A guy who has expressed, doesn’t have one, wants one
and is feeling left for dead—and frustrated . . . .’’
21
During the argument on the motion to suppress, the court noted: ‘‘I,
having viewed the videotape, I agree with [the prosecutor] that the hemming
and hawing was not about [the defendant’s] concern about whether he was
waiving his rights, it’s whether it was being recorded, whether someone
else would find out what he was saying to the police because he had some
desire to give information about other criminal activity he was aware of
and he didn’t want those people to know that he was talking to the police,
that it was not in any way an uncertainty in his mind as to whether he
wanted to talk to the police, but whether there would be a record of what
he said, you know, written or recorded record of what he said to the police
and I so find.’’
22
Section 1-5 (b) of the Connecticut Code of Evidence provides: ‘‘When
a statement is introduced by a party, another party may introduce any other
part of the statement, whether or not otherwise admissible, that the court
determines, considering the context of the first part of the statement, ought
in fairness to be considered with it.’’
23
The court also indicated that defense counsel was attempting to mini-
mize the effect of the defendant’s self-identification.