State v. Rios

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STATE OF CONNECTICUT v. ALBERTO RIOS

(AC 36987)

DiPentima, C. J., and Prescott and Gruendel, Js.

Argued September 19, 2016—officially released February 28, 2017

(Appeal from Superior Court, judicial district of

Fairfield, Kahn, J.)

Mary A. Beattie, assigned counsel, for the appel-

lant (defendant).

Mitchell S. Brody, senior assistant state’s attorney,

with whom, on the brief, were John C. Smriga, state’s

attorney, and Pamela J. Esposito, senior assistant

state’s attorney, for the appellee (state).

Opinion

PRESCOTT, J. The defendant, Alberto Rios, appeals

from the judgment of conviction, rendered after a jury

trial, of assault in the first degree in violation of General

Statutes § 53a-59 (a) (1), assault in the second degree

in violation of General Statutes § 53a-60 (a) (2), and

three counts of reckless endangerment in the first

degree in violation of General Statutes § 53a-63 (a).1 On

appeal, the defendant claims that (1) the trial court

improperly denied his motion to set aside the verdict

and for a new trial because the jury’s verdict on several

counts was legally inconsistent, and he was not afforded

sufficient notice of the charges brought against him,

(2) the trial court improperly permitted the state to

question the defendant about the credibility of another

witness and the defendant’s tattoos, (3) the trial court

improperly instructed the jury regarding the scope of

his duty to retreat before engaging in self-defense, (4)

prosecutorial improprieties during the trial deprived

him of due process, and (5) this court should exercise its

supervisory authority over the administration of justice

and order a new trial because of the prosecutor’s alleged

pattern of improper conduct in this case and other

cases. We affirm the judgment of the trial court.

The jury reasonably could have found the following

facts. During the spring of 2013, Edwin Nunez lived

with his girlfriend, Jessica Sanchez (Jessica), in her

apartment near the corner of Washington Avenue and

Coleman Street in Bridgeport. Jessica and her sister,

Erica Sanchez (Erica), had known the defendant since

childhood, and Erica and the defendant had previously

dated. The defendant lived on Olive Street in Bridgeport.

The defendant lived in the same neighborhood as Lucy

Lucasio, the mother of Jessica and Erica, who knew

the defendant because he had dated Erica.

On April 22, 2013, the defendant sent Nunez a threat-

ening message via Facebook. Prior to receiving this

message, Nunez did not know the defendant. Although

the message did not contain the defendant’s name, the

message was accompanied by a photograph of the

defendant. In the message and in subsequent messages

between Nunez and the defendant, the defendant threat-

ened to harm Nunez and indicated that he previously

had assaulted Erica and members of her family, had

set Lucasio’s house on fire, and had accused Erica of

cheating on him.

Nunez asked Erica about the messages, and she iden-

tified the defendant as the true sender of them. Nunez

also was aware that there was ‘‘bad blood’’ between

Erica’s family and the defendant. As a result of these

messages, which also disparaged Jessica, Nunez con-

cluded that he had to ‘‘stick up’’ for Jessica and wanted

to call the defendant’s ‘‘bluff.’’ Accordingly, he arranged

to meet the defendant near the corner of Washington

Avenue and Coleman Street, but did not take the defen-

dant’s threats seriously because, in his view, people

often ‘‘say stuff on the Internet, and they don’t mean

it.’’ Shortly before going outside to meet the defendant,

Nunez received a call from Erica in which she indicated

that she had just received a threat from the defendant.

Nunez left his apartment in the middle of the day to

meet the defendant at the street corner, but did not

take a weapon with him. Nunez observed the defendant,

alone in his vehicle, drive by him, after which Nunez

immediately received a Facebook message on his phone

from the defendant, asking him: ‘‘What are you doing

out in the open? I like to get away with crime.’’ Shortly

thereafter, Jessica joined Nunez outside on the sidewalk

near Washington Avenue.

Five or ten minutes later, the defendant returned in

his vehicle, this time accompanied by a passenger who

was later identified as Robert McDougall. Although

Nunez had temporarily turned his back to the street,

Jessica observed the defendant accelerate his car

toward them. The defendant drove the vehicle directly

at Nunez and Jessica while accelerating, striking them

both. Nunez was propelled onto the hood of the car,

off its windshield, and against a wall. Following the

crash, the defendant and McDougall exited the vehicle.

McDougall fled the scene, but the defendant immedi-

ately approached Nunez, got on top of him, and began

punching him in the face. Jessica, who was not as seri-

ously injured as Nunez, pulled the defendant off of

Nunez. The defendant left the scene on foot before the

police arrived.

Both Jessica and Nunez were taken to the hospital.

Jessica received four stiches to mend a laceration on

her lip. Nunez had surgery to repair a broken arm and

leg, and never fully regained mobility in his arm and

leg due to the serious trauma to his limbs.

The defendant was arrested and ultimately charged

in a five count amended information as follows. In count

one, the defendant was charged with assault in the

first degree by using his motor vehicle, a dangerous

instrument, to strike Nunez with the intent to cause

serious physical injury to him in violation of § 53a-59

(a) (1). In count two, the defendant was charged with

assault in the second degree arising from the same

conduct as alleged in count one, the difference being

that, with the intent to cause serious physical injuries

to Nunez, he caused serious physical injury to Jessica

in violation of § 53a-60 (a) (2). In counts three, four,

and five, the defendant was charged with reckless

endangerment in the first degree for engaging in unspec-

ified reckless conduct with extreme indifference to

human life, which created a risk of serious injury to

Jessica, Nunez, and McDougall, respectively, in viola-

tion of § 53a-63 (a).

At trial, the defendant testified that he drove toward

Nunez in self-defense. He asserted that it had been

Nunez who had threatened him, and that, as he

approached Nunez and Jessica, he observed Nunez

reaching into his coat toward his waistband for what

he believed was a gun. The defendant testified that he

believed that he was going to ‘‘get shot’’ and that he

instinctively attempted to protect himself by driving the

car toward Nunez.

The jury returned a verdict of guilty on all five counts.2

This appeal followed. Additional facts and procedural

history will be set forth later as necessary to address

the specific claims of the defendant.

I

The defendant first claims that the court improperly

denied his motion to set aside the verdict and for a new

trial. The defendant’s claim on appeal is twofold. First,

he argues that the verdict on counts one, two, and

four is legally inconsistent. Specifically, the defendant

argues that the jury’s necessary conclusion that he had

engaged in an intentional assault of Nunez and Jessica

as charged in counts one and two, is legally inconsistent

with its conclusion that he recklessly engaged in con-

duct that created a risk of serious physical injury to

Nunez, as charged in count four of the amended infor-

mation. In response, the state argues that the verdict

is not legally inconsistent because a ‘‘plausible theory’’

exists under which the jury reasonably could have

found the defendant guilty of all three offenses. The

state’s ‘‘plausible theory’’ is that the defendant’s convic-

tion on counts one and two was based on his conduct in

steering his automobile directly into Nunez and Jessica,

whereas his conviction on count four was based upon

his postcrash conduct during which the defendant

exited the vehicle and proceeded to punch Nunez in

the face while he lay on the ground already seriously

injured.

Second, the defendant argues on appeal that he

lacked constitutionally sufficient notice of the charges

of which he could be convicted because the state’s

theory of the case at trial was never that he acted

recklessly in harming the victims but, instead, that he

was on a ‘‘hunting mission’’ and intended to assault

Nunez. The state counters that its theory of the case

was not limited to the defendant’s intentional assault

but, instead, included a theory that the defendant, after

he had intentionally assaulted Nunez and Jessica, reck-

lessly engaged in conduct that created a risk of serious

harm to Nunez by exiting his vehicle and punching

Nunez. For the reasons subsequently set forth, we dis-

agree with the defendant’s assertions.

The following facts and procedural history are rele-

vant to these claims. At trial, the state called Nunez to

testify, and he described the defendant’s conduct prior

to and after the defendant crashed into him and Jessica

with his vehicle. Specifically, Nunez testified that he

was ‘‘flipped over’’ by a speeding vehicle driven by

the defendant and ‘‘landed near the building’’ he was

standing by with Jessica. After Nunez landed, he heard

Jessica ‘‘screaming’’ and then witnessed the defendant

approach him. Nunez stated that the defendant got on

top of him and struck him with his fists while he lay

seriously injured from being struck by the defendant’s

vehicle. In addition to Nunez’ testimony, other evidence

was introduced that described the defendant’s post-

crash conduct, including the testimony of Jan Zolotov,

an eyewitness, who described the event in similar

terms.3

Following the conclusion of trial, the defendant filed

a motion to set aside the verdict and for a new trial.

In support of his motion, the defendant argued that the

verdict on counts one and two required proof of a men-

tal state legally inconsistent with that required to find

him guilty on count four. Specifically, the defendant

argued that his conviction under counts one and two

is legally inconsistent with the conviction under count

four because the first two counts required the jury to

conclude that his conscious objective was to cause

serious physical injury to Nunez, while count four

required the jury to conclude that the defendant reck-

lessly engaged in conduct that created a risk of serious

physical injury to Nunez. To support his inconsistent

verdict claim, the defendant argued that the state’s the-

ory of the case was that he was on a ‘‘hunting mission’’

and that the evidence presented at trial tended to show

only that he intended to cause serious physical injury

to Nunez.

In response, the state argued that the jury plausibly

could have found that the defendant possessed distinct

mental states before and after the vehicle crash. Specifi-

cally, the state argued that the jury could have found

that the defendant intended to cause serious physical

injury to Nunez when the defendant drove his vehicle

into Nunez, and that the defendant was reckless in

creating a risk of serious physical injury to Nunez when

the defendant exited the vehicle after the crash and

began striking Nunez with his fists. Additionally, the

state claimed that the prosecutor ‘‘never argued a fac-

tual basis for [first degree] reckless endangerment’’ and

that the jury was ‘‘free’’ to come to such conclusions

on the basis of the ‘‘evidence available’’ to it.

On May 15, 2014, the trial court denied the defendant’s

motion to set aside the verdict and for a new trial. The

court agreed with the state that the evidence introduced

at trial supported a ‘‘rational theory’’ of both intentional

assault and reckless endangerment, and that the defen-

dant reasonably could have possessed ‘‘different mental

states as to different results.’’ The court pointed to the

defendant’s testimony that after he crashed into Nunez,

he exited his vehicle, jumped on Nunez, and struck him

with his fists, disregarding the serious physical injuries

that Nunez had already suffered.

Before turning to the merits of the defendant’s claims

on appeal, it is important to review some recent devel-

opments in the law of inconsistent verdicts and to dis-

cuss how the timing of these developments affected

the defendant’s presentation of his claim to the trial

court that the verdict as to certain of the counts in this

case was legally inconsistent.

At the time the defendant moved to set aside the

verdict on the ground that it was legally inconsistent,

he relied heavily upon this court’s decision in State v.

King, 149 Conn. App. 361, 87 A.3d 1193 (2014), rev’d,

321 Conn. 135, 136 A.3d 1210 (2016). In King, the defen-

dant was tried on two counts of assault in the first

degree in violation of § 53a-59 (a) (1) and (3). State v.

King, 321 Conn. 135, 137, 136 A.3d 1210 (2016). The

first count alleged that the defendant intentionally had

stabbed the victim. Id., 137–39. The second count

alleged that he recklessly engaged in conduct under

circumstances evincing an extreme indifference to

human life and thereby caused serious physical injuries

to the victim. Id.

At trial, the jury in King was presented with evidence

regarding the underlying criminal conduct that

occurred in two phases. Id., 142. The jury first heard

evidence of a dispute between the defendant and Kyle

Neri over an unpaid loan at the victim’s home. Id., 138,

142–43. As the dispute escalated, the defendant grabbed

a knife and began swinging it at Neri. Id., 138, 143.

The victim intervened in the dispute and attempted to

remove the knife from the defendant’s grasp, but was

struck by the knife and injured. Id., 139. Later, the jury

was presented with an account of the defendant’s subse-

quent conduct; id., 143–44; in which the defendant threw

the victim up against a wall and stabbed her ‘‘at least

three times with a steak knife.’’ Id., 144.

The trial court in King denied a motion to set aside

the verdict on the ground that it was legally inconsis-

tent. Id., 139. The defendant appealed to this court, and

we reversed the judgment of conviction on the ground

that the verdict was legally inconsistent. State v. King,

supra, 149 Conn. App. 363.

In doing so, this court held that a proper assessment

of whether a verdict is legally inconsistent must be

conducted in light of the state’s theory of the case.

Specifically, this court stated that ‘‘[i]n determining

whether a verdict is legally and logically inconsistent

. . . a reviewing court must also consider the way in

which the state presented the case to the jury.’’ Id., 371.

This court then analyzed the record and concluded that

the state pursued the charges against the defendant as

alternative theories of liability, that is, as one substan-

tive criminal offense that was committed either reck-

lessly or intentionally. Id., 373. As a result, this court

concluded that the judgment of conviction on both

counts violated ‘‘the defendant’s due process rights to

fair notice of the charges against him . . . .’’ Id., 375.

Relying in part on our decision in King, the defendant

in the present case presented a single claim to the court

in his motion to set aside the verdict: The verdict on

counts one and two was legally inconsistent with the

verdict on count four. That single claim, however,

appeared to employ the analytical framework set forth

in this court’s decision in King because it rested, in part,

on a subsidiary assertion that the state, by amending the

information before trial, had abandoned its reliance

upon the defendant’s postcrash conduct as a factual

basis of guilt and, therefore, should not be permitted to

argue on appeal that the verdict was legally consistent

because of the defendant’s postcrash conduct. In so

doing, however, the defendant did not raise a separate

claim that his due process right to notice of the charges

against him had been violated because he had been

convicted of having engaged in conduct with which he

had not been charged.

After the defendant filed his principal brief in this

court, our Supreme Court reversed this court’s decision

in State v. King, supra, 149 Conn. App. 361. See State

v. King, supra, 321 Conn. 148. Specifically, our Supreme

Court clarified that a defendant’s claim that a verdict

is legally inconsistent is conceptually distinct from a

claim that the state altered its theory of the case after

the verdict; id., 148–49; which is more properly charac-

terized as a separate due process claim. Id. The Supreme

Court concluded that these are ‘‘ultimately separate

issues and reviewing courts should evaluate them as

such.’’ Id., 148. The court emphasized that the resolution

of a claim that a verdict is legally inconsistent should

not be resolved by reference to the state’s theory of

the case but, instead, by examining the elements of

the charges at issue to determine whether there is any

plausible view of the evidence that would render the

verdict legally consistent. Id., 140–41. Thus, in order

to address the defendant’s arguments properly in the

present case, we separate and analyze the two argu-

ments independently pursuant to the direction of our

Supreme Court in King.

A

We first turn to whether there was ‘‘any plausible

theory’’; id., 141; under which the jury reasonably could

have concluded that the defendant was guilty of all

crimes charged under counts one, two, and four without

creating a legal inconsistency. The defendant argues

that there is no plausible theory under which the jury

could have found him guilty of both intentional assault

in counts one and two and reckless endangerment in

count four because the requisite mental states for those

charges are legally inconsistent, and are based upon

the same criminal conduct and result. In response, the

state argues that the defendant’s conduct gave rise to

two separate crimes whereby the defendant acted inten-

tionally and recklessly at different times, and with

respect to different results. We agree with the state.

The following legal principles guide our decision. A

legally inconsistent conviction exists when ‘‘a convic-

tion of one offense requires a finding that negates an

essential element of another offense of which the defen-

dant also has been convicted.’’ State v. Nash, 316 Conn.

651, 659, 114 A.3d 128 (2015). ‘‘When confronted with

such a claim we carefully examine the elements of both

offenses.’’ State v. King, supra, 321 Conn. 140. ‘‘In exam-

ining a claim of legal inconsistency, we must closely

examine the record to determine whether there is any

plausible theory under which the jury reasonably could

have found the defendant guilty of both offenses. . . .

Additionally, in determining whether two mental states

are mutually exclusive, the court must consider each

mental state as it relates to the particular result

described by the statute.’’ (Citation omitted; internal

quotation marks omitted.) Id., 140–41. The determina-

tion of whether the defendant’s conviction is legally

inconsistent is a question of law, over which we exer-

cise plenary review. Id., 141.

Here, the defendant argues that there is no ‘‘plausible

theory’’ under which the jury could have found him

guilty of both intentional assault and reckless endanger-

ment. Specifically, the defendant argues that his con-

duct amounted to one continuous act, and that his

conviction on counts one, two, and four required the

jury to find that he simultaneously acted intentionally

and recklessly ‘‘with regard to the same victim, the

same act, and the same result.’’

The defendant argues that the facts before us are

analogous to those set forth in State v. King, 216 Conn.

585, 583 A.2d 896 (1990), a 1990 decision of our Supreme

Court that is not to be confused with its 2016 decision

in State v. King, supra, 321 Conn. 135. The defendant

in State v. King, supra, 216 Conn. 586, was charged

with and found guilty of the crimes of assault in the

first degree in violation of § 53a-59 (a) (3), arson in the

first degree in violation of General Statutes § 53a-111

(a) (2), and attempt to commit murder in violation of

General Statutes §§ 53a-49 and 53a-54a (a). The defen-

dant’s conviction arose from an incident that occurred

while serving a prison sentence at the Bridgeport Com-

munity Correctional Center. Id., 588. In the early morn-

ing of June 20, 1988, a fire broke out in one of the cells

that caused serious harm to the cell’s occupant. Id. It

was later discovered that, prior to the fire, the defendant

and the victim had been in a dispute, and that the defen-

dant started the fire to harm the victim following that

dispute. Id.

Following his conviction, the defendant claimed on

appeal that the trial court improperly denied his motion

for a new trial because it should not have instructed

the jury that it could find him guilty of both attempted

murder and assault (reckless) in the first degree. Id.,

592. Our Supreme Court agreed, vacating the conviction

of assault in the first degree and attempted murder,

and ordering a new trial. Id., 603–604.

Our Supreme Court explained that in order for the

jury to find the defendant guilty of attempted murder,

it must have concluded that the ‘‘defendant acted with

the intent to cause the death of the victim.’’ (Footnote

omitted.) Id., 593. ‘‘On the other hand, the jury’s verdict

of guilty on the count of assault [reckless] necessitated a

finding that the defendant acted recklessly, and thereby

created a risk of death to the victim.’’ (Emphasis in

original; footnote omitted.) Id. Our Supreme Court rec-

ognized that ‘‘[t]o return verdicts of guilty for both

attempted murder and assault in the first degree [reck-

less] . . . the jury would have had to find that the

defendant simultaneously acted intentionally and reck-

lessly with regard to the same act and the same result,

i.e., the injury to the victim.’’ Id. The defendant’s convic-

tions were overturned because ‘‘the transgression that

caused the victim’s injuries was either intentional or

reckless; it could not, at one and the same time, be

both.’’ Id., 594.

We acknowledge that the defendant before us was

convicted of crimes that, like those in State v. King,

supra, 216 Conn. 585, possess mutually exclusive men-

tal states, but disagree that the facts of that case are

analogous to those before us. The primary distinction

between the present facts and those in State v. King,

supra, 585, is that the jury here was presented with

evidence of two separate criminal acts. Although it is

undisputed that an individual cannot simultaneously

act intentionally and recklessly, that notion is limited

to the same criminal conduct and result. See id., 594

(explaining that a single act cannot both be intentional

and reckless). The defendant in King committed a sin-

gle criminal act when he started a fire within the cell

that caused harm to the victim. Id., 588. The opposite

is true here, as the jury reasonably could have con-

cluded that the defendant’s conduct amounted to two

distinct criminal acts in which he possessed otherwise

mutually exclusive mental states.

Instead, the present case is more analogous to the

later King (2016) decision, the facts of which we have

discussed previously. See State v. King, supra, 321

Conn. 135, the facts of which we have discussed pre-

viously. In King (2016), our Supreme Court clarified

that, under certain circumstances, a jury reasonably

could conclude that a criminal defendant can possess

otherwise mutually exclusive mental states throughout

the course of temporally related but separate criminal

acts. Id., 144. Specifically, the jury in that case could

have found that the defendant ‘‘was guilty of both

crimes by stabbing the victim while recklessly swinging

the knife at Neri and then intentionally stabbing the

victim after she intervened and the defendant threw

her against the wall.’’ Id. Our Supreme Court further

reasoned that ‘‘a defendant may be convicted of crimes

that require differing mental states, so long as those

states relate to different criminal results.’’ Id., 145; see

also State v. Nash, supra, 316 Conn. 666 (affirming the

defendant’s conviction ‘‘because the two mental states

required to commit the offenses relate to different

results’’).

In the present case, with respect to the defendant’s

conviction of assault as charged in counts one and

two, evidence was presented at trial that sufficiently

described a plausible theory whereby the jury reason-

ably could have concluded that the defendant, who had

been seeking to initiate a physical confrontation with

Nunez, committed the crimes of (1) assault in the first

degree pursuant to § 53a-59 (a) (1)4 by intentionally

striking Nunez with his vehicle with the intent to cause

him serious physical injuries; (2) assault in the second

degree pursuant to § 53a-60 (a) (2),5 by causing serious

physical injury to Jessica by striking her with his vehicle

with the intent to cause serious physical injuries to

Nunez; and (3) reckless endangerment in the first

degree pursuant to § 53a-63 by exiting his vehicle fol-

lowing the crash and striking an already seriously

injured Nunez with his fists, thereby creating a risk of

exacerbating those injuries. Even though the defen-

dant’s acts here were temporally related, the jury rea-

sonably could have concluded that the defendant was

guilty of intentionally assaulting Nunez and Jessica, and

reckless endangerment by discrete acts throughout the

entire course of conduct described to the jury.

We, therefore, conclude that a plausible theory exists

whereby the jury reasonably could have concluded that

the defendant’s conduct amounted to separate criminal

acts. Accordingly, the defendant’s conviction of assault

and reckless endangerment under counts one, two, and

four is not legally inconsistent.

B

We next consider whether the defendant received

constitutionally sufficient notice of the charges brought

against him. The defendant argues that he was not

afforded such notice, in part because the state aban-

doned charges relating to the defendant’s postcrash

conduct by amending, on the eve of trial, the original

information. Specifically, the defendant argues that the

state proceeded at trial solely on a theory that he acted

intentionally because he was on a ‘‘hunting mission.’’

We disagree.

Before turning to the merits of this claim, we note

that, because the defendant did not raise this due pro-

cess claim as a separate and distinct claim to the trial

court, we arguably are not bound to consider it. Practice

Book § 60-5; Travelers Casualty & Surety Co. of

America v. Netherlands Ins. Co., 312 Conn. 714, 761,

95 A.3d 1031 (2014). In this case, however, we elect to

review the defendant’s due process claims for several

reasons.

First, the defendant presented his inconsistent ver-

dict and due process claims to the trial court as one

claim, on the basis of the existing structural framework

used by this court in State v. King, supra, 149 Conn.

App. 361. Although that framework was subsequently

rejected by our Supreme Court, it would be unfair to

penalize the defendant by declining review of his due

process claim for structuring it on the basis of applica-

ble law at that time.

Second, although the defendant’s due process claim

was not raised independently from his inconsistent ver-

dict claim, the essence of the claim actually was pre-

sented to and decided by the trial court. Specifically,

the trial court understood and rejected the defendant’s

argument that he somehow lacked notice of the charges

against him because the state’s theory of the case post-

verdict was different from the manner in which it was

presented to the jury. Accordingly, affording this claim

review on appeal will not result in trial by ambuscade

or be unfair to the trial court or the opposing party. See

State v. Elson, 311 Conn. 726, 749, 91 A.3d 862 (2014).

Third, although the Supreme Court’s decision in State

v. King, supra, 321 Conn. 135, was not released until

after the state had filed its appellee brief, the state

devoted several pages in its brief to the defendant’s

argument that the state had altered its theory of the

case. Finally, our consideration of this claim is appro-

priate because we decide it adversely to the defendant,

and the state is, therefore, not prejudiced by its review.

See State v. Gaines, 257 Conn. 695, 713 n.13, 778 A.2d

919 (2001).

The following additional facts and procedural history

are relevant to the defendant’s due process claim. Prior

to the eve of trial, the defendant had been charged in

an eight count information dated May 16, 2013. The

first five counts of the original information were almost

identical to the amended information filed on January

26, 2014, upon which the state ultimately proceeded to

trial. In the original information, however, count one

charged the defendant with assault in the first degree

in that the ‘‘[defendant], with intent to cause serious

physical injury to one Jessica Sanchez, did cause seri-

ous physical injury to the said Jessica Sanchez with a

dangerous instrument, to wit: a motor vehicle . . . .’’

In the amended information, the state altered count one

to allege a charge of an intentional assault of Nunez

and amended count two to allege an assault of Jessica

under a theory of transferred intent, i.e., with the intent

to cause serious physical injuries to Nunez, he caused

serious physical injury to Jessica.

The original information also contained three addi-

tional counts that were deleted from the amended infor-

mation upon which the case was tried. In count six,

the state had charged the defendant with assault in the

third degree, alleging that the defendant, with the intent

to cause physical injury to Nunez, caused physical

injury to Nunez. In count seven, the state had charged

the defendant with threatening in the second degree,

alleging that the defendant had physically threatened

Jessica at or near Washington Avenue and Coleman

Street with the intent to place her in fear of imminent

serious physical injury. In count eight, the state had

charged the defendant with threatening in the second

degree, alleging that the defendant had physically

threatened Nunez at or near Washington Avenue and

Coleman Street with the intent to place him in fear

of imminent serious physical injury. The state did not

explain at the time it filed the amended information

any of its reasons for dropping counts six, seven, and

eight. Further, the state did not discuss whether the

remaining charges were exclusively applicable to the

defendant’s conduct in striking Nunez and Jessica with

his vehicle.

At the time the state filed its amended information,

the court stated that it understood that the state had

amended the information to clarify ‘‘in count two that

it’s charging [the defendant] with intent to cause physi-

cal injury to Edwin Nunez, [he caused] physical injury

to [Jessica], by means of a dangerous weapon.’’ The

court proceeded to ask the defendant if he waived a

reading of the information and advisement of rights,

to which he responded, through his counsel, in the

affirmative, and entered pro forma pleas of not guilty.

As noted previously, the defendant moved the court

to set aside the verdict and for a new trial following

the verdict. The defendant argued in support of that

motion that his conscious objective to cause serious

physical harm to Nunez as charged in counts one and

two was legally inconsistent with the mental state of

recklessness required to be convicted under count four.

The defendant supported his argument by claiming that

all of the charged counts implicated the same criminal

conduct and the same victim throughout a nonbifur-

cated and ‘‘fast-moving event.’’ Further, the defendant

claimed that the state’s theory of the case was that he

was on a ‘‘hunting mission,’’ and that, collectively, the

evidence tended to support only a theory of intentional

assault. In response, the state argued that the jury was

free to find the defendant guilty on all counts on the

basis of the evidence presented at trial and the charges

brought against the defendant in the information.

With respect to the defendant’s argument that the

state was not pursuing charges relating to the defen-

dant’s postcrash conduct, the court asked the following:

‘‘[Y]ou’re not claiming like the State v. King [supra, 149

Conn. App. 361] case that your client or you had no

notice that the state was pursuing charges that were

both intentional and reckless. You’re not claiming that

in this case, are you?’’ The court immediately followed

that question with a more pointed question, asking

whether the defendant and counsel ‘‘knew what the

charges were,’’ to which defense counsel responded,

‘‘[o]f course.’’

On May 15, 2014, the court denied the defendant’s

motion. In denying that motion, the court reasoned

that the defendant was ‘‘well aware that the state was

pursuing the different and separate offenses,’’ and that

he had sufficient notice of the charges brought

against him.

The following principles guide our analyses. ‘‘A fun-

damental tenet of our due process jurisprudence is that

[i]t is as much a violation of due process to send an

accused to prison following conviction of a charge on

which he was never tried as it would be to convict him

upon a charge that was never made. . . . Accordingly,

the United States Supreme Court has explained that

[t]o uphold a conviction on a charge that was neither

alleged in an indictment nor presented to a jury at trial

offends the most basic notions of due process. Few

constitutional principles are more firmly established

than a defendant’s right to be heard on the specific

charges of which he is accused. . . . Reviewing courts,

therefore, cannot affirm a criminal conviction based on

a theory of guilt that was never presented to the jury

in the underlying trial. . . .

‘‘Principles of due process do not allow the state, on

appeal, to rely on a theory of the case that was never

presented at trial. . . . Although we recognize that the

finder of fact may consider all of the evidence properly

before it, in order for us to uphold the state’s theory

of the case on appeal, that theory must have been not

merely before the jury due to an incidental reference,

but as part of a coherent theory of guilt that, upon

[review of] the principal stages of trial, can be character-

ized as having been presented in a focused or otherwise

cognizable sense. . . . Essentially, the state may not

pursue one course of action at trial and later, on appeal,

argue that a path [it] rejected should now be open

to [it] . . . . To rule otherwise would permit trial by

ambuscade. . . . Accordingly, on appeal, the state may

not construe evidence adduced at trial to support an

entirely different theory of guilt than the one that the

state argued at trial. . . . Whether a defendant has

received constitutionally sufficient notice of the

charges of which he was convicted may be determined

by a review of the relevant charging document, the

theory on which the case was tried and submitted to

the jury, and the trial court’s jury instructions regarding

the charges.’’ (Citations omitted; emphasis added; inter-

nal quotation marks omitted.) State v. King, supra, 321

Conn. 148–50.

We first examine the state’s amended information

upon which the case was tried. It is well established

that an information provides notice to the defendant

of the charges of which he may be convicted. See State

v. James, 247 Conn. 662, 679, 725 A.2d 316 (1999); State

v. Tanzella, 226 Conn. 601, 608, 628 A.2d 973 (1993);

State v. Spigarolo, 210 Conn. 359, 382, 556 A.2d 112,

cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed.

2d 312 (1989); see also Practice Book § 36-13 (‘‘[t]he

information shall state for each count the official or

customary citation of the statute, rule, regulation, or

other provision of law which the defendant is alleged

to have violated’’).

The state’s amended information charged the defen-

dant with multiple counts of intentional assault and

reckless endangerment, and did not in any way suggest

that they represented alternative theories of liability or

that the state did not intend to present all charges to

the jury for consideration. The amended information

contains five separate counts—one for each offense.

Nothing in the amended information explicitly or

implicitly indicates that the state intended to prosecute

count four as an alternative to criminal liability under

counts one and two.

Importantly, if the defendant had been unclear of the

charges brought against him, nothing precluded him

from filing a motion for a bill of particulars pursuant

to Practice Book § 41-20. See State v. King, supra, 321

Conn. 151. Furthermore, if the defendant truly had

believed at the time of trial that certain charges had

been brought only as alternative theories of guilty, he

presumably would have requested an instruction from

the court explaining to the jury that it could not find

him guilty of reckless endangerment as to Nunez if it

concluded that he was guilty of counts one or two.6

The defendant did not pursue either of these measures

to resolve any potential confusion he may have had

with respect to the charged offenses. Thus, the state’s

amended information tends to suggest that the defen-

dant was on notice that count four sought to impose

criminal liability on him for conduct that was distinct

from counts one and two.

We next examine the evidence that the state intro-

duced at trial. In that regard, it is clear that the state

introduced evidence that the defendant intentionally

assaulted Nunez by crashing his vehicle into him and

Jessica, and also that he subsequently exited his vehicle

and engaged in conduct that risked causing further seri-

ous physical injury to Nunez. Thus, the state introduced

evidence that supported all charges listed in the

amended information.

Like in King (2016), it is true that the state in the

present case did not present its evidence in a manner

that necessarily delineated the charges to which spe-

cific evidence or testimony related. Our Supreme Court

in King (2016) recognized, however, that a prosecutor’s

failure to do so ‘‘is not equivalent to a prosecutor who

does specify the evidence underlying a charge and then

subsequently adopts a different evidentiary justification

for that charge.’’ Id., 153. Here, as in King (2016), the

state did not take any action while presenting its case

that would have induced the defendant to refrain from

defending against all of the evidence or to believe that

the evidence related only to one charge or another.

Instead, the state presented evidence of the defendant’s

entire encounter, which, as previously discussed, evi-

denced two independent criminal acts.

In determining the state’s theory of the case, examina-

tion of the state’s closing argument is also an important

consideration. See id., 154–55. The manner in which

the prosecutor conducted the state’s closing argument

also did not suggest that the state had intended to prose-

cute any of the charges as alternatives to each other.

Unlike the situation in State v. King, supra, 321 Conn.

155–56, the prosecutor here did not make any state-

ments, ambiguous or otherwise, that could reasonably

be construed as framing certain charges in the disjunc-

tive. It is true that the prosecutor spent the bulk of her

argument on analyzing the defendant’s conduct that

formed the bases of the two counts of intentional

assault. Indeed, it is likely that the state focused on

those charges because they were the most serious

charges and the defendant had raised the justification

of self-defense arising out of his factual contention that

he intentionally had crashed his car into Nunez in order

to avoid being shot.

It is not true, however, that the prosecutor ignored

the defendant’s postcrash conduct or the reckless

endangerment charges during her closing argument.

During her closing argument, the prosecutor conveyed

to the jury that ‘‘[t]he other thing you have to conclude

is that [the defendant] immediately got out of the car

and assaulted Edwin Nunez.’’7 If the state was proceed-

ing, as the defendant argues, solely on a theory that

he was on a ‘‘hunting mission,’’ it would have been

unnecessary for the state to prove or for the jury to

conclude that he assaulted Nunez after he got out of

the car in order to find the defendant guilty on the first

two counts of the information.

Finally, the court’s charge to the jury supports a con-

clusion that the defendant had adequate notice that he

could be convicted on the first two counts and count

four of the information. In its charge to the jury, the

court never stated or implied that any of the charges

were brought against the defendant in the alternative

or that the jury should consider count four only if it

had found the defendant not guilty on counts one and

two. Instead, the court charged the jury on all counts

contained in the amended information and stated that

it was the jury’s ‘‘duty to consider each count separately

in deciding the guilt or nonguilt of the defendant.’’

Importantly, the court stated that ‘‘the determination

of one count or charge or one part of the charging

document does not automatically make the defendant

guilty or not guilty of any other count or charge.’’

Our review of the court’s instructions reveals that

the court clearly conveyed to the jury that there were

five counts listed in the amended information and that

the jury was obligated to come to a verdict on each of

the five counts. Counsel had the opportunity to object

to the court’s instructions or request that the court

clarify, but did not. Thus, the court’s instructions amply

suggest that the defendant had notice of all the charges

the jury was to consider.

Finally, we address the defendant’s argument that

he lacked adequate notice of the charges against him

because the state, by amending the information on the

eve of trial, abandoned counts relating to his postcrash

conduct, and, thus, the theory of the case had changed

following his conviction. We disagree for two reasons.

First, the defendant’s assertion that the state, by with-

drawing counts six through eight of the original infor-

mation, intended to abandon reliance on the

defendant’s postcrash conduct is speculative at best

because it is premised on an assumption that those

counts sought to impose criminal liability on the defen-

dant for his postcrash conduct. None of the withdrawn

counts, however, explicitly referred to postcrash con-

duct as the factual basis for the crime alleged therein.

Instead, these counts, similar to counts three through

five, merely stated that the defendant committed the

crime charged in that specific count by engaging in

conduct that constituted the elements of the offenses

at the specified date and time at the location of Washing-

ton Avenue and Coleman Street. Thus, we are unwilling

to infer, as the defendant invites us to do, that the state

intended to abandon its reliance on postcrash conduct

by withdrawing counts six, seven, and eight because

they were vaguely worded and did not explicitly rely

on postcrash conduct. Each of these counts could be

construed to impose liability on the defendant for

unspecified conduct he committed before he exited his

vehicle. Indeed, the state may have chosen to withdraw

these counts because, in its view, they implicated con-

duct that was already covered by the remaining charges,

or in order to reduce any confusion for the jury regard-

ing what alleged conduct related to which charge.8

Second, the state did not provide any reasons as to

why it was withdrawing the counts and, thus, did not

induce the defendant to believe that it had abandoned

any reliance on his postcrash conduct as a basis for

criminal liability in the case. To the extent that the

withdrawal of these counts raised such an inference in

the defendant’s mind, he could have requested that the

court require the state to provide its reasons for with-

drawing the counts.

Moreover, we disagree with the defendant’s assertion

in his reply brief that a colloquy between the court and

his counsel at the hearing on the defendant’s motion

to set aside the verdict demonstrates that the state had

abandoned, prior to trial, any reliance on his postcrash

conduct. During argument, defense counsel stated that

his understanding was that ‘‘the state had originally

charged [the defendant] with assault and threatening

for [the] postcrash event. And, as I understood, the

state’s theory of the case was that the state did not

pursue those charges and was not pursuing the events

that happened postcrash.’’ The prosecutor did not

affirmatively respond to this assertion, but did generally

argue that the state had not changed its theory of the

case.

The defendant argues that because the state did not

affirmatively disagree with defense counsel’s state-

ment, the state conceded that it had abandoned prior

to trial a theory of liability relating to the defendant’s

postcrash conduct. We are unwilling to imply such a

significant concession from the state’s failure to

respond to one of the many assertions defense counsel

made during argument on the motion to set aside the

verdict. The state never affirmatively conveyed that it

agreed with defense counsel’s assertion and was not

given an opportunity to respond to it before the court

denied the motion. According, this argument lacks

merit.

In sum, after our review of the amended information,

the evidence introduced at trial, the state’s closing argu-

ment, and the court’s charge to the jury, we conclude

that the defendant had sufficient notice of the charges

brought against him, and that he could be convicted of

all charged offenses, including for conduct he commit-

ted after intentionally crashing his vehicle into Nunez

and Jessica. Accordingly, the defendant’s due process

rights were not violated.

II

The defendant next claims that the trial court made

two improper evidentiary rulings. First, he claims that

the court improperly allowed the prosecutor to question

the defendant on the credibility of another witness.

Second, he claims that the court improperly admitted

evidence regarding his tattoos. We conclude that the

court improperly permitted the state to question the

defendant regarding the credibility of another witness.

We also assume, without deciding, that the court

improperly admitted evidence of the defendant’s tat-

toos. Nevertheless, we conclude that neither ruling con-

stituted harmful error.

As a preliminary matter, we set forth our standard

of review. ‘‘We review the trial court’s decision to admit

evidence, if premised on a correct view of the law . . .

for an abuse of discretion. . . . It is axiomatic that

[t]he trial court’s ruling on the admissibility of evidence

is entitled to great deference. . . . In this regard, the

trial court is vested with wide discretion in determining

the admissibility of evidence . . . . Accordingly, [t]he

trial court’s ruling on evidentiary matters will be over-

turned only upon a showing of a clear abuse of the

court’s discretion. . . . Furthermore, [i]n determining

whether there has been an abuse of discretion, every

reasonable presumption should be made in favor of the

correctness of the trial court’s ruling, and we will upset

that ruling only for a manifest abuse of discretion.’’

(Citation omitted; internal quotation marks omitted.)

State v. Popeleski, 291 Conn. 769, 774, 970 A.2d 108

(2009). ‘‘Even when a trial court’s evidentiary ruling is

deemed to be improper, we must determine whether

that ruling was so harmful as to require a new trial.

. . . In other words, an evidentiary ruling will result in a

new trial only if the ruling was both wrong and harmful.’’

(Internal quotation marks omitted.) State v. Abreu, 106

Conn. App. 278, 283, 941 A.2d 974, cert. denied, 286

Conn. 919, 946 A.2d 1249 (2008).

A

First, the defendant contends that the court improp-

erly permitted the prosecutor to ask the defendant

whether another witness had lied when testifying. In

response, the state concedes that at least one of the

questions that it asked was improper, but argues that

the defendant has not satisfied his burden of demonstra-

ting any harmful error. We agree that the defendant has

not met his burden to establish harmful error.

The following facts are relevant to our resolution

of this claim. Zolotov, an eyewitness, agreed with the

prosecutor that Nunez and Jessica were standing ‘‘idly’’

when they were struck by the defendant’s car. The

defendant later testified that Nunez signaled the defen-

dant, and later motioned toward his waist, for what

the defendant believed to be a firearm. The following

colloquy occurred between the state and the defendant

during its cross-examination of him in which he dis-

cussed Zolotov’s testimony:

‘‘[The Prosecutor]: And so when Mr. Zolotov sat there

and said that they were just standing there when your

car came and careened into them, that was incorrect?

‘‘[Defense Counsel]: Objection, Your Honor.

‘‘The Court: Overruled. . . .

‘‘[The Defendant]: Can you please state that again?

‘‘[The Prosecutor]: I said, when Mr. Zolotov, the man

with the Russian accent, you—

‘‘[The Defendant]: Yes.

‘‘[The Prosecutor]: —remember him? So, when he

sat there and told this jury that the two people on the

corner were minding their own business and your car

came and crashed into them, that was incorrect?

‘‘[The Defendant]: That he also said that he saw my

car speed up, so, obviously, when—

‘‘[The Prosecutor]: No, sir. Sir—

‘‘[The Defendant]: —he saw my car, his eyes were

not on the two people.

‘‘[The Prosecutor]: Sir, was it incorrect?

‘‘[The Defendant]: Yes, it was incorrect.

‘‘[The Prosecutor]: So, do you believe that he purpose-

fully sat there and mischaracterized the event?

‘‘[The Defendant]: I believe he was mistaken.’’

It is well established that questions seeking a witness’

opinion regarding the veracity of another witness are

barred. State v. Singh, 259 Conn. 693, 706, 793 A.2d 226

(2002). The underlying basis for such a rule is to prohibit

a fact witness from invading the jury’s exclusive func-

tion to determine the credibility of witnesses. Id., 707.

‘‘[Q]uestions of this sort . . . create the risk that the

jury may conclude that, in order to acquit the defendant,

it must find that the witness has lied.’’ Id., 708. This

prohibition includes questions that ask whether another

witness is lying, mistaken, wrong, or incorrect. Id., 712.

We turn then to whether the defendant has established

that he was harmed by this colloquy between the prose-

cutor and the defendant.9

‘‘[T]he proper standard for determining whether an

erroneous evidentiary ruling is harmless [is] whether

the jury’s verdict was substantially swayed by the error.

. . . In applying this standard, which expressly requires

the reviewing court to consider the effect of the errone-

ous ruling on the jury’s decision, an appellate court may

conclude that a nonconstitutional error is harmless only

when it has a fair assurance that the error did not

substantially affect the verdict. . . . In reviewing the

case, we consider a number of factors, namely, the

overall strength of the state’s case, the impact of the

improperly admitted or excluded evidence on the trier

of fact . . . and the presence of other evidence corrob-

orating or contradicting the point for which the evi-

dence was offered.’’ (Citations omitted; internal

quotation marks omitted.) State v. Calabrese, 279 Conn.

393, 411–12, 902 A.2d 1044 (2006). It is the defendant’s

burden to show that any errors were harmful. State v.

Eleck, 314 Conn. 123, 129, 100 A.3d 817 (2014).

Our Supreme Court ‘‘has never had a case in which

a Singh violation, standing alone, was deemed suffi-

ciently egregious to entitle the defendant to a new trial.

Rather, in every case in which a defendant has claimed

that the prosecutor improperly asked him to character-

ize another witness’ testimony as a lie, mistaken or

wrong . . . it was the cumulative effect of the Singh

violation and the other prosecutorial improprieties that

ultimately was deemed to entitle the defendant to a

new trial.’’ (Emphasis added.) State v. Jones, 320 Conn.

22, 43–44, 128 A.3d 431 (2015).

For several reasons, we conclude that the defendant

was not harmed by the court’s ruling that permitted the

state to cross-examine him on the veracity of Zolotov’s

testimony that Nunez and Jessica were standing idly

prior to being struck by the defendant’s vehicle. Import-

antly, the defendant’s testimony did not implicate a core

justification for the Singh rule because it did not force

the jury to find him not guilty only if it first concluded

that Zolotov had lied about what he had seen. In fact,

the defendant ultimately rejected the notion that Zolo-

tov had purposefully mischaracterized the event and,

instead, testified that Zolotov had simply been mis-

taken. Thus, the jury could have concluded that the

defendant was not guilty by crediting his version of the

events—that Zolotov was merely mistaken—without

concluding that Zolotov had intentionally lied.

Second, as a factual matter, there was little, if any,

direct conflict between Zolotov’s testimony and the

defendant’s testimony on the critical question regarding

whether Nunez had engaged in any threatening conduct

on the street corner giving rise to the defendant’s right

to exercise self-defense. As our Supreme Court has

stated, ‘‘[i]t is axiomatic . . . that [if] . . . the jury is

not required to resolve any such conflict, the harm that

might otherwise ensue from such a question will be

significantly reduced if not completely avoided.’’

(Emphasis in original.) Id., 43. Zolotov conceded that

his attention was diverted away from Nunez before

the crash occurred because he had looked toward the

defendant’s vehicle. Indeed, defense counsel argued to

the jury that Zolotov could not have ‘‘been watching

Mr. Nunez and [Jessica] at the same time he was watch-

ing the red light, and at the same time he’s watching

[the defendant’s] car.’’ Thus, Zolotov’s testimony was

in large part consistent with the defendant’s testimony

that Zolotov may not have observed Nunez’ allegedly

threatening conduct because his attention had been

diverted. Accordingly, any harm by the question was

minimized if not avoided altogether.

Third, because Zolotov was a lay witness and not a

law enforcement officer, the prosecutor’s question did

not implicate another core concern recognized by the

Singh rule: ‘‘[T]he principal reason why a prosecutor

may not ask a defendant about the truthfulness of an

officer’s contradictory testimony is to reduce the risk

that the jury will resolve material conflicts between the

testimony of the defendant and the officer in favor of

the state, out of a concern that to do otherwise would

reflect adversely on the honesty of the officer.’’ State

v. Jones, supra, 320 Conn. 43.

Fourth, the court emphasized in its instructions that

the jury remained the sole arbiter of any witness’ testi-

mony. Specifically, the court charged the jury that it

‘‘should size up the witness, then make your own judg-

ment as to their credibility and decide what portion

. . . all, some or none . . . of any particular . . . wit-

ness’ testimony you will believe.’’ We presume that the

jury here followed the court’s instructions, as nothing

in the record indicates otherwise. State v. Mucha, 137

Conn. App. 173, 196, 47 A.3d 931, cert. denied, 307 Conn.

912, 53 A.3d 998 (2012).

Finally, the overall strength of the state’s case leads

us to conclude that any Singh violations were not harm-

ful. The principal disputed issue in this case was not

whether the defendant struck Nunez and Jessica with

his vehicle, and then exited his vehicle and punched

Nunez in the face. These facts were largely unchal-

lenged and admitted in large measure by the defendant

during his testimony. Instead, the disputed issue was

whether the defendant’s actions were justified because

he properly acted in self-defense.

‘‘It is well settled that a jury’s evaluation of a claim

of self-defense has both subjective and objective ele-

ments. . . . In evaluating a claim of self-defense, a trier

of fact must first examine the danger that a defendant

claims he faced. It is clear that here [t]he statute focuses

on the [defendant] claiming self-defense. It focuses on

what he reasonably believes under the circumstances

. . . . The jury must view the situation from the per-

spective of the defendant. . . . The defendant’s belief

[however] ultimately must be found to be reasonable.’’

(Citations omitted; emphasis in original; internal quota-

tion marks omitted.) State v. Peters, 40 Conn. App. 805,

816, 673 A.2d 1158, cert. denied, 237 Conn. 925, 677

A.2d 949 (1996).

The state presented compelling evidence that the

defendant sought out a confrontation with Nunez,

expressed an intention to harm him, and then hunted

him down on the street. The defendant’s actions after

striking Nunez and Jessica with his vehicle are strongly

corroborative that he had intended to assault Nunez

all along and was not acting in self-defense. From the

defendant’s conduct in exiting his vehicle and assaulting

Nunez further, the jury was highly likely to conclude

that the defendant’s action in striking Nunez with his

car was not in reaction to Nunez reaching for a weapon,

which did not occur because Nunez was unarmed. If

the defendant had truly acted in self-defense, there

would have been no need to further attack Nunez, who

lay seriously injured on the ground.

In light of these considerations, we conclude that the

defendant has not met his burden to demonstrate that

any Singh violations were harmful. Accordingly, we

reject this claim.

B

The defendant next claims that the court improperly

allowed the state to question him regarding his tattoos.

Specifically, the defendant argues that evidence of his

tattoos was irrelevant and that the probative value of

it did not outweigh its prejudicial effect. Even if we

assume, without deciding, that the court’s ruling was

improper, we conclude that the defendant has failed to

demonstrate that he was harmed by the admission of

the tattoo evidence.

The following additional facts are relevant to this

claim. At trial, the defendant testified on direct examina-

tion that he drove his car into Nunez as an act of self-

defense because he believed that Nunez would shoot

him after he saw Nunez reach toward his waistband

for what he believed was a gun. The defendant further

testified that he believed Nunez possessed a firearm

because he had seen a Facebook photograph of Nunez

holding a firearm. Additionally, the defendant testified

that he had learned from others that Nunez was a dan-

gerous person. On cross-examination, the defendant

admitted that he did not know whether the gun Nunez

held in the Facebook photograph was real or not. None-

theless, the defendant stated that he believed the gun

depicted in the photograph was real on the basis of

what he had learned about Nunez.

Following the defendant’s testimony that he feared

Nunez, the following colloquy occurred between the

state and the defendant during its cross-examination

of him:

‘‘[The Prosecutor]: And you’re a scaredy-cat; is that

what your testimony is?

‘‘[The Defendant]: Absolutely. I would be, I think

being afraid of a gun is something human.

‘‘[The Prosecutor]: Is [it true] that you have tattoos

all over your body, sir?

‘‘[Defense Counsel]: Objection, Your Honor.

‘‘[The Prosecutor]: Sidebar?

‘‘(The court and counsel conferred at the sidebar.)

‘‘[The Prosecutor]: May I continue, Your Honor?

‘‘The Court: Yes, the objection is overruled in part

and sustained in part . . . per the instructions at side-

bar. . . .

‘‘[The Prosecutor]: Isn’t it true, sir, you have a tattoo

around your collarbone that says, Let him hate so long

as they fear?

‘‘[The Defendant]: Yes, I do.

‘‘[The Prosecutor]: And isn’t it true, sir, you have a

tattoo on your arm, [that says], hate, love and love,

hate, with a skull in the middle?

‘‘[The Defendant]: Yes, a skull with a cross.’’

The court later clarified, outside the presence of the

jury, its ruling relating to the objection made by the

defendant. The court stated in relevant part: ‘‘[T]here

was an objection to—I believe the first objections and

first sidebar related to the tattoos, the state’s wanting

to introduce evidence of the tattoos. I looked at . . .

the booking pictures of the tattoos. The state indicated

at sidebar that it was not going to introduce the actual

booking photos, but that it would ask the defendant if

he had these tattoos, and if he denied it then they would

seek to introduce the booking photos. There were sev-

eral tattoos and the state’s claim was that . . . they

were relevant, that the defendant had opened the door

based on his testimony that he was fearful, and that he

had done research relating to the . . . alleged victim,

and in response to the questions on direct as well as

. . . leaving the jury with the impression that he was

a—well, these were the state’s words, not the court’s—

a scaredy-cat. The court indicated [at sidebar] that it

was relevant, given the line of questioning. The objec-

tion . . . was that they were prejudicial and not rele-

vant. The court ruled that it would allow only three of

the tattoos—the ones that related to hate, love, love,

hate, and, let them hate [so] long as they fear. That

went to whether this defendant reasonably was fearful

for his life under the circumstances as this case

unfolded.’’

As a preliminary matter, we note that the state con-

ceded at oral argument before this court that, had the

defendant not ‘‘opened the door’’ to his character by

agreeing with the prosecutor that he was a ‘‘scaredy-

cat,’’ evidence of the defendant’s tattoos would have

been otherwise inadmissible.

Under the doctrine of opening the door, evidence

that otherwise would be inadmissible is admissible for

the limited purpose of rebutting testimony once the

witness ‘‘opened the door . . . .’’ State v. Brown, 309

Conn. 469, 479, 72 A.3d 48 (2013). In essence, the under-

lying purpose of the doctrine of opening the door is to

prevent a defendant from introducing irrefutable, self-

serving evidence.10 Id. Although we have serious doubts

that the defendant ‘‘opened the door’’ to this evidence

regarding his character by agreeing that he was a ‘‘scar-

edy-cat’’ in response to the state’s single, sarcastic ques-

tion on cross-examination about guns, we need not

decide whether the court’s ruling was improper

because, even if it was, the defendant has failed to

persuade us that this evidence substantially swayed the

jury’s verdict.

The legal principles we rely upon in determining

whether an erroneous evidentiary ruling is harmless

are set forth in part II A of this opinion. See State v.

Calabrese, supra, 279 Conn. 411–12. After reviewing the

entire record, we conclude for several reasons that the

tattoo evidence was unlikely to have substantially

swayed the jury’s verdict.

First, as we discussed in analyzing the defendant’s

other evidentiary claim, the state’s case was strong,

including its tendency to disprove the defendant’s claim

of self-defense. The evidence presented to the jury

strongly supported the state’s claim that the defendant

sought out a confrontation with Nunez, motivated by

the defendant’s strong animosity and conflict with Jes-

sica and other members of her family, and Nunez’ rela-

tionship with them. The defendant expressed an

intention to harm Nunez and then hunted him down

on the street as the initial aggressor. The defendant’s

subjective lack of fear of Nunez was primarily estab-

lished, not by the defendant’s vague pronouncements

on his tattoos, but in part by the evidence that showed

that the defendant did not exhibit any fear of Nunez

when he initially drove by him and sent him a Facebook

message asking, ‘‘[w]hat are you doing out in the open?

I like to get away with crime.’’

The state’s evidence disproving the objective reason-

ableness of any subjective fear the defendant allegedly

may have had, even if he actually saw Nunez reaching

toward his waist, was also strong. The jury properly

was instructed that ‘‘before a defendant uses physical

force upon another person to defend himself, he must

have two reasonable beliefs. . . . [T]he first is a rea-

sonable belief that physical force is about to be used

upon him. The second is a reasonable belief that the

degree of force he is using to defend himself from what

he believes to be an imminent force is necessary for

that purpose.’’

The defendant conceded that he never saw Nunez

display a gun and that he merely saw him reaching

into his coat. Even if the jury believed the defendant’s

testimony that he previously had seen a photograph of

Nunez holding a firearm, the jury was likely to conclude

that it was not objectively reasonable to believe that

Nunez was about to shoot at him without, at the least,

actually seeing a gun. Moreover, at the time he claims

he saw Nunez reaching into his coat, the defendant was

in the relative safety of his moving vehicle and had

ample opportunity to steer his vehicle away from

Nunez. Thus, the evidence strongly suggested that the

defendant’s belief that he must use deadly force was

objectively unreasonable. The tattoo evidence had little

or no bearing on the questions.

Second, we disagree with the defendant’s contention

that the tattoo evidence was so unduly prejudicial that

it substantially swayed the jury’s verdict. Specifically,

the defendant contends that the evidence of the tattoos

was unduly prejudicial because jurors were likely to

conclude that because he has tattoos, he is a bad person

and is likely to have a propensity to engage in criminal

behavior. We are not persuaded.

Evidence is unduly prejudicial if, among other things,

it may ‘‘unduly arouse the [jurors’] emotions, hostility

or sympathy . . . .’’ (Internal quotation marks omit-

ted.) State v. Hill, 307 Conn. 689, 698, 59 A.3d 196 (2013).

In this regard, we note that the defendant never asked

the court to give the jury a limiting instruction to reduce

the risk that the jury would misuse the evidence as

tending to show his general propensity to engage in

criminal conduct.

Tattoos have become ubiquitous in modern society,

and acceptance of tattoos by those who do not have

one has risen substantially.11 Numerous courts have

upheld the admission of tattoo evidence after weighing

the probative value of the evidence versus its prejudicial

effects; see, e.g., United States v. Boswell, 772 F.3d 469,

476–78 (7th Cir. 2014) (tattoo of revolver on defendant’s

neck), cert. denied, U.S. , 135 S. Ct. 1721, 191

L. Ed. 2d 690 (2015); or concluded that, even if tattoo

evidence was improperly admitted, its admission was

not so prejudicial as to warrant a new trial. See, e.g.,

United States v. Smith, 348 Fed. Appx. 636, 638–39 (2d

Cir. 2009) (harmless error to admit tattoo depicting the

‘‘skull, arms, and ribcage of a skeleton firing a weapon,

with shell cases being ejected from the gun, flame com-

ing out of the barrel, and the words ‘D’EVILS WITHIN’

printed above’’), cert. denied, 559 U.S. 930, 130 S. Ct.

1310, 175 L. Ed. 2d 1106 (2010); United States v. New-

som, 452 F.3d 593, 603–605 (6th Cir. 2006) (harmless

error to admit evidence of defendant’s tattoos depicting

guns and referencing ‘‘ ‘thug life’ ’’).12

The defendant cites, and our research has found, only

one case in which an appellate court has concluded that

improperly admitted tattoo evidence was so prejudicial

that it warranted a new trial. See United States v.

Thomas, 321 F.3d 627, 637 (7th Cir. 2003). Thomas,

however, is distinguishable on several grounds.

The defendant in Thomas was convicted of posses-

sion of a firearm by a convicted felon and simple posses-

sion of crack cocaine, on the basis of testimony by an

eyewitness that the defendant pointed a gun at her and

later threw the weapon in some nearby bushes. Id.,

629–30. At trial, the court improperly admitted (1) a

photograph of a tattoo on the defendant’s arm depicting

two crossed revolvers and (2) evidence of the fact that

the defendant had twice been convicted of illegal pos-

session of a firearm. Id., 635.

On appeal, the United States Court of Appeals for

the Seventh Circuit concluded that the erroneous

admission of the tattoo evidence and the convictions

were not harmless error. Id., 637. In reaching that con-

clusion, the court stressed that the government’s case

was weak because it relied upon a theory of construc-

tive possession of the firearm in light of the fact that

the weapon was not found in the defendant’s posses-

sion. Id., 636. More importantly, the court relied on the

risk that the gun tattoo evidence would be misused by

the jury as direct evidence of the defendant’s propensity

to possess firearms, rather than as a mere propensity

to engage in bad acts generally. Id., 632. In combination

with the improperly admitted prior gun possession con-

victions, the court concluded that the risk that the jury

used the evidence for the improper purpose of finding

that the defendant’s propensity to possess firearms was

high and that admission of that evidence was harmful.13

Id., 636. Finally, we note that, unlike the situation in

the present case, the burden was on the government

to prove that the evidentiary errors were harmless. Id.,

635; see Fed. R. Crim. P. 52 (a).

In the present case, the defendant’s tattoos did not

relate directly to the specific crimes with which he was

charged. Thus, the risk is more attenuated in this case

than in Thomas that the jury misused the tattoo evi-

dence as evidence of a propensity to engage in the

specific crimes of assault and reckless endangerment.

With this understanding, and in light of the overall

strength of the state’s evidence in the present case and

the differing burdens of persuasion with respect to

harmful error, we decline to follow the reasoning in

Thomas.

In conclusion, the defendant’s tattoos were not a

central part of the state’s case, and admission of that

evidence alone could not have substantially swayed the

jury’s decision. Cf. State v. Calabrese, supra, 279 Conn.

411–12. Independent of the tattoo evidence, the state

presented strong evidence demonstrating that the

defendant had set out to attack Nunez and tending to

disprove the defendant’s asserted claim of self-defense

by showing that he did not subjectively fear Nunez

and that any fear the defendant may have had was

objectively unreasonable. Accordingly, even if we

assume the tattoo evidence was admitted improperly

into evidence, the defendant has failed to persuade us

that any error was harmful.

III

The defendant next claims that the trial court improp-

erly instructed the jury regarding his duty to retreat.

Specifically, the defendant argues that the court’s

charge was improper because it instructed the jury to

determine whether his knowledge or belief that he

could not retreat in complete safety was objectively

reasonable. The defendant acknowledges that his claim

is unpreserved and seeks to prevail pursuant to State

v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989);

see In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188

(2015) (modifying third condition of Golding); or, in

the alternative, the plain error doctrine. See Practice

Book § 60-5.

The state concedes that the court’s instruction was

improper because it ‘‘failed to properly apprise the

jurors of the subjective component of the duty to retreat

test.’’ The state, however, argues that the defendant

waived his challenge to the court’s instructions under

State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942

(2011), and thus is not entitled to Golding or plain

error review. We agree with the state that the defendant

cannot prevail on this claim.

The following procedural history is relevant to our

resolution of this claim. On January 29, 2014, the court

provided both parties a draft of its proposed jury

instructions, which contained the court’s instruction on

the duty to retreat. The following day, the court held

a charging conference on the record and solicited com-

ments from the parties after it extensively reviewed the

instructions with the parties.

During the charging conference, the court directed

the parties to the section of the written instructions

that contained the challenged duty to retreat instruc-

tions and asked the parties whether they had any com-

ments or objections.14 The defendant did not object or

suggest any changes to the court’s instructions. Simi-

larly, the defendant did not object to the instructions

when the challenged language was read to the jury.

Our Supreme Court concluded in Kitchens that

‘‘when the trial court provides counsel with a copy

of the proposed jury instructions, allows a meaningful

opportunity for their review, solicits comments from

counsel regarding changes or modifications and coun-

sel affirmatively accepts the instructions proposed or

given, the defendant may be deemed to have knowledge

of any potential flaws therein and to have waived implic-

itly the constitutional right to challenge the instructions

on direct appeal.’’ Id. Recently, in State v. Bellamy, 323

Conn. 400, 439, 147 A.3d 655 (2016), our Supreme Court

declined to overturn the rule that unpreserved instruc-

tional claims are waived under Kitchens. See also State

v. Herring, 323 Conn. 526, 528, 147 A.3d 653 (2016).

Here, the court furnished to the parties a copy of its

draft of the proposed jury charge, which included the

challenged language, one day in advance of the charging

conference and, thus, provided the defendant a mean-

ingful opportunity to review it. The defendant also did

not submit a request to charge on this topic. Further-

more, prior to closing arguments, the court held a charg-

ing conference at which the court reviewed the

proposed charge page by page and solicited comments

and objections from both parties. The defendant raised

no objection to the charge. The defendant also did not

object when the court gave the charge to the jury. In

our view, the defendant had ample opportunity to object

to the challenged duty to retreat instruction but did

not. Accordingly, the defendant waived his instructional

claim under Kitchens and, thus, cannot prevail under

Golding.15

Alternatively, the defendant requests that this court

review his unpreserved claim under the plain error doc-

trine. A party may prevail under the doctrine of plain

error only in ‘‘truly extraordinary situations [in which]

the existence of the error is so obvious that it affects

the fairness and integrity of and public confidence in

the judicial proceedings. . . . Thus, in addition to

examining the patent nature of the error, the reviewing

court must examine that error for the grievousness of

its consequences in order to determine whether reversal

under the plain error doctrine is appropriate. A party

cannot prevail under plain error unless it has demon-

strated that the failure to grant relief will result in mani-

fest injustice. . . . In State v. Fagan, [280 Conn. 69,

87, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269,

127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007)], we described

the two-pronged nature of the plain error doctrine: [An

appellant] cannot prevail under [the plain error doc-

trine] . . . unless he demonstrates that the claimed

error is both so clear and so harmful that a failure to

reverse the judgment would result in manifest injus-

tice.’’ (Citations omitted; emphasis omitted; internal

quotation marks omitted.) State v. Myers, 290 Conn.

278, 287–88, 963 A.2d 11 (2009).

Our Supreme Court has recently recognized that

‘‘there appears to be some tension in our appellate case

law as to whether reversal on the basis of plain error

could be available in cases where the alleged error is

causally connected to the defendant’s own behavior. In

Mozell v. Commissioner of Correction, 291 Conn. 62,

70, 967 A.2d 41 (2009), this court held that where the

defendant, personally and through counsel, had

expressly waived his right to trial, reversal for plain

error was not appropriate because if there has been a

valid waiver, there is no error for us to correct. . . .

In other cases, this court has addressed a claim of plain

error despite a finding of waiver or induced error, but

nonetheless has relied in part on the defendant’s action

as a basis for concluding that the defendant had not

demonstrated the manifest injustice or prejudice

required to prevail under the plain error doctrine.’’

(Citation omitted; internal quotation marks omitted.)

State v. Darryl W., 303 Conn. 353, 371–72 n.17, 33 A.3d

239 (2012); see also State v. Kitchens, supra, 299 Conn.

474 n.18 (‘‘a valid waiver precludes a finding that a

jury instruction constitutes plain error because a valid

waiver means that there is no error to correct’’); State

v. Bialowas, 160 Conn. App. 417, 430, 125 A.3d 642

(2015) (‘‘waiver thwarts a finding that plain error

exists’’).

In Bellamy, our Supreme Court did not resolve the

question of whether waiver under Kitchens precludes

relief under the plain error doctrine: ‘‘We . . . decline

to address the parties’ arguments regarding the effect

of Kitchens on plain error review because it is the

subject of a pending appeal before this court. See State

v. McClain, 319 Conn. 902, 122 A.3d 637 (2015) (granting

certification to review issue of whether ‘the Appellate

Court properly determine[d] that an implied waiver of

a claim of instructional error that satisfies [Kitchens]

also forecloses plain error review’ [citation omitted]).’’

State v. Bellamy, supra, 323 Conn. 433 n.22.

Nevertheless, even if we were to assume, without

deciding, that the defendant’s waiver under Kitchens

would not preclude him from prevailing under the plain

error doctrine, we conclude that the defendant cannot

demonstrate that the claimed instructional error was

‘‘so clear, obvious and indisputable to warrant the

extraordinary remedy of reversal.’’ See State v. Elias

V., 168 Conn. App. 321, 338, 147 A.3d 1102 (concluding,

but not deciding, that even if the defendant’s waiver

under Kitchens would not preclude him from seeking

relief under the plain error doctrine, the claimed error

did not warrant reversal), cert. denied, 323 Conn. 938,

A.3d (2016).

Our Supreme Court held in State v. Ash, 231 Conn.

484, 492, 651 A.2d 247 (1994), that General Statutes

§ 53a-19 (b), which governs the duty to retreat, requires

the finder of fact, in deciding whether the state had

disproven self-defense beyond a reasonable doubt, to

ascertain whether the defendant had actual knowledge

regarding his ability to retreat in complete safety. In

other words, the duty to retreat contains a subjective

component. Id.; see also State v. Amado, 254 Conn. 184,

194, 756 A.2d 274 (2000); State v. Montanez, 71 Conn.

App. 246, 263, 801 A.2d 868, cert. denied, 261 Conn. 935,

806 A.2d 1069 (2002).

Here, the initial portion of the court’s instructions

stated properly that the state must prove that the defen-

dant ‘‘knows that he can avoid the necessity of using

[deadly physical] force with complete safety by

retreating.’’ The court repeated this requirement a sec-

ond time. In defining the concept of knowledge, the

court made clear that it was referring to actual knowl-

edge by stating that a ‘‘person acts knowingly with

respect to a circumstance . . . when he is aware that

such circumstance exists.’’ (Emphasis added.) Thus,

the court’s instructions, at least initially, appropriately

informed the jury of the necessity to consider the sub-

jective belief of the defendant, that is, whether he had

actual knowledge that he could retreat in complete

safety.

Later in the instruction, however, the court may have

muddied the waters somewhat with respect to the

knowledge component of the duty to retreat when it

attempted to explain to the jury that such knowledge

is typically established only ‘‘through an inference from

other proven facts and circumstances.’’ In attempting

to explain that any such inferences that may be drawn

must be reasonable, the court stated: ‘‘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 force by making

that completely safe retreat.’’

We agree with both the defendant and the state that

this sentence, like portions of the instructions in Ash,

risked diluting the jury’s understanding of the need to

ascertain whether the defendant had actual knowledge

that he could retreat in complete safety. If this claim

of instructional error had been properly preserved at

trial, we would then proceed to analyze whether, in

light of the court’s entire instructions and the evidence

presented to the jury, it was reasonably possible that

the jury was misled by the inclusion of this single sen-

tence.16 In our view, such a claim would present a

close question.

Importantly, however, this instructional error was

not preserved at trial and, in fact, was waived pursuant

to Kitchens. Instead, application of the plain error doc-

trine requires us to ask whether any error by the court

was ‘‘ ‘so clear, obvious and indisputable as to warrant

the extraordinary remedy of reversal’ ’’ because it

would result in manifest injustice. State v. Darryl W.,

supra, 303 Conn. 373. Because it is a close question

whether the court’s instructions misled the jury in this

case, we conclude that the defendant has fallen far

short of his burden to establish that he is entitled to

relief pursuant to the plain error doctrine.17

IV

The defendant next claims that the state deprived

him of due process by committing various acts of prose-

cutorial impropriety. In particular, the defendant con-

tends that the prosecutor improperly (1) asked the

defendant to comment on Zolotov’s credibility and

relied upon his answers in closing arguments, (2) com-

pared the defendant’s actions to those of a mentally ill

person, (3) repeatedly used the phrase ‘‘hunting mis-

sion’’ to describe the defendant’s actions, (4) mischarac-

terized the defendant’s testimony, and (5) relied upon

and misused the defendant’s tattoo evidence. We

address each in turn.

We begin our review of the defendant’s claim by

setting forth the applicable standard of review and guid-

ing legal principles. ‘‘In analyzing claims of prosecu-

torial impropriety, we engage in a two step process.

. . . First, we must determine whether any impropriety

in fact occurred; second, we must examine whether

that impropriety, or the cumulative effect of multiple

improprieties, deprived the defendant of his due pro-

cess right to a fair trial. . . . To determine whether the

defendant was deprived of his due process right to a

fair trial, we must determine whether the sum total of

[the prosecutor’s] improprieties rendered the defen-

dant’s [trial] fundamentally unfair . . . . The question

of whether the defendant has been prejudiced by prose-

cutorial [impropriety], therefore, depends on whether

there is a reasonable likelihood that the jury’s verdict

would have been different absent the sum total of the

improprieties.’’ (Internal quotation marks omitted.)

State v. Gould, 290 Conn. 70, 77–78, 961 A.2d 975 (2009).

‘‘Accordingly, it is not the prosecutorial improprieties

themselves but, rather, the nature and extent of the

prejudice resulting therefrom that determines whether

a defendant is entitled to a new trial.’’ State v. Jones,

supra, 320 Conn. 34–35.

‘‘To determine whether any improper conduct by the

[prosecutor] violated the defendant’s fair trial rights is

predicated on the factors set forth in State v. Williams

[204 Conn. 523, 540, 529 A.2d 653 (1987)], with due

consideration of whether that misconduct was objected

to at trial. . . . These factors include the extent to

which the [impropriety] was invited by defense conduct

or argument . . . the severity of the [impropriety] . . .

the frequency of the [impropriety] . . . the centrality

of the [impropriety] to the critical issues in the case

. . . the strength of the curative measures adopted

. . . and the strength of the state’s case.’’ (Internal quo-

tation marks omitted.) State v. Devito, 159 Conn. App.

560, 573, 124 A.3d 14, cert. denied, 319 Conn. 947, 125

A.3d 1012 (2015).

A

The defendant first argues that the prosecutor com-

mitted impropriety by cross-examining the defendant

regarding Zolotov’s credibility and later referring to that

testimony during closing argument. We agree, for the

reasons stated in part II A of this opinion, that the

prosecutor committed an impropriety by asking the

defendant to comment about the veracity of another

witness’ testimony in violation of rule set forth in State

v. Singh, supra, 259 Conn. 706. We, however, conclude

that because the court permitted the state to pursue

this line of inquiry, the prosecutor did not commit an

impropriety by referring to the defendant’s answers

during closing argument.18

Our Supreme Court has held that ‘‘[a]rguing on the

basis of evidence explicitly admitted . . . cannot con-

stitute prosecutorial [impropriety].’’ State v. Rowe, 279

Conn. 139, 152, 900 A.2d 1276 (2006). ‘‘[O]nce the testi-

mony [at issue] was in evidence, the prosecutor [is]

permitted to use it during [closing] argument . . . .’’

(Citation omitted.) State v. Cromety, 102 Conn. App.

425, 434, 925 A.2d 1133, cert. denied, 284 Conn. 913,

931 A.2d 932 (2007); see also State v. Devito, supra, 159

Conn. App. 575. The court here admitted the defendant’s

testimony into evidence, thus, the prosecutor was enti-

tled to rely upon the court’s ruling and discuss the

evidence in her closing argument.

Furthermore, the prosecutor’s closing argument also

did not in any way mischaracterize the defendant’s testi-

mony or otherwise use his testimony in an improper

way. See State v. Otto, 305 Conn. 51, 76–81, 43 A.3d 629

(2012). During its closing argument, the state’s only

reference to the defendant’s opinion regarding Zolotov’s

testimony was to convey to the jury that Zolotov

remained a credible witness. The state sought to explain

to the jury that the defendant’s assertion that Zolotov

was somehow an unreliable witness was implausible.

Accordingly, the prosecutor’s comments during closing

argument regarding the defendant’s opinion of Zolotov’s

credibility does not constitute impropriety.

B

The defendant next argues that the prosecutor

improperly attacked his competency during the state’s

closing argument. Specifically, the defendant argues

that the state impermissibly characterized his actions

as ‘‘akin to that of a mentally ill person . . . .’’ We

disagree.

During the state’s closing argument, the prosecutor

made several statements in an attempt to disprove that

the defendant was reasonably fearful with respect to

his asserted claim of self-defense. The defendant claims

that the following constituted prosecutorial impropri-

ety: ‘‘[The defendant] told you he believed that his life

was in imminent danger at the moment he saw Edwin

Nunez flagging him down on the corner. And let’s pre-

tend for a moment that for whatever reason, you’ve

decided that . . . he really believed that. . . . Was

that a reasonable, rational belief? . . . And the state

would argue to you it never could have been. Therefore

you must reject . . . his claim of [self-defense], and

here’s why. We don’t live in the wild west, ladies and

gentlemen. . . . This isn’t TV; this is the real world and

we have real laws. And we have real expectations of

safety as the citizens of the state. And perhaps I am

wrong, perhaps you believe it is reasonable that one

text message sent to you two days prior should give

you the right . . . to go on some paranoid investiga-

tion, some irrational investigation, leading to some irra-

tional belief that now this person is trying to kill you,

with no other evidence than one text message.’’

The prosecutor later argued that ‘‘[t]here’s no evi-

dence that the police were out to get [the defendant].

So, again, if the . . . law were to excuse the conduct

of the defendant, then this is what the law would be

saying. Or it would be saying that, you know, it might

be a paranoid delusion, it might be irrational, but as

long as you thought your life was in danger, you go

ahead and you take your car and you run down whoever

you think is trying to get you. . . . [N]o one can deny

that after he hit him with the car, the defendant got out

and beat up Edwin Nunez. This person that he’s so

afraid of, he goes over to him and beats him up. Is that

self-defense? When you’re kicking the guy on the ground

with a broken arm and a broken leg, is that self-defense?

No. Afraid he’s going to shoot him through the car, like

some video game? Again, it has to be a reasonable and

rational belief. . . . You could believe it all day, if you

want, that your life was in danger, but if it was an

irrational belief, if it was an unreasonable belief, the

law does not excuse it. The law does not allow us to

act as [irrational] people, committing random acts of

violence because we have some paranoid, irrational

belief that it’s necessary to protect ourselves, necessary

to put all these other people’s lives in danger.’’

We disagree with the defendant’s assertion that the

prosecutor attacked his ‘‘competency’’ or suggested

that he is mentally ill by describing the defendant as

‘‘paranoid,’’ ‘‘delusion[al],’’ and ‘‘irrational,’’ during the

state’s closing argument. ‘‘[A]s the state’s advocate, a

prosecutor may argue the state’s case forcefully, [pro-

vided the argument is] fair and based upon the facts in

evidence and the reasonable inferences to be drawn

therefrom. . . . Nevertheless, the prosecutor has a

heightened duty to avoid argument that strays from the

evidence or diverts the jury’s attention from the facts

of the case.’’ (Internal quotation marks omitted.) State

v. Otto, supra, 305 Conn. 76. Our law is well settled that

‘‘[the prosecutor’s] conduct and language in the trial of

cases in which human life or liberty [is] at stake should

be forceful, but fair, because he [or she] represents the

public interest, which demands no victim and asks no

conviction through the aid of passion, prejudice or

resentment. . . . That is not to say, however, that every

use of rhetorical language or device [by the prosecutor]

is improper. . . . The occasional use of rhetorical

devices is simply fair argument. . . . The state’s attor-

ney should not be put in [a] rhetorical straitjacket

. . . .’’ (Citations omitted; internal quotation marks

omitted.) State v. Wilson, 308 Conn. 412, 435, 64 A.3d

91 (2013).

When read in the context of this case, the state used

those words as a rhetorical device to assert that the

defendant’s conduct, at best, was undertaken in

response to an unreasonable fear that his life was in

danger. Simply put, the state conveyed to the jury that

its position, with respect to the defendant’s asserted

claim of self-defense, was that his belief was unrea-

sonable.

The prosecutor supported that position by explaining

to the jury that a claim of self-defense does not excuse

acts of violence in response to an ‘‘irrational’’ or ‘‘delu-

sion[al]’’ subjective fear of danger. Nothing in the state’s

closing argument or the record suggests that the prose-

cutor attacked the defendant’s mental competency, but

instead the prosecutor described the importance of the

requirement that a defendant’s action must be reason-

able when acting in self-defense. Importantly, the prose-

cutor did not improperly divert the jury from the facts

in evidence, but instead focused the jury’s attention

on a hotly disputed question of fact. Accordingly, the

prosecutor’s statements were not improper.

C

Next, the defendant argues that the prosecutor com-

mitted impropriety when she used the phrase ‘‘hunting

mission’’ twice to describe the defendant’s conduct. He

further argues that the prosecutor’s use of that phrase

improperly connected gun violence caused by mental

illness. We disagree.

The challenged statements by the prosecutor argued

are: ‘‘Now, the state would argue that if you look at all

the evidence in the case, this was a hunting mission.

. . . In this case, the way the law of self-defense works,

is, even if you buy that the defendant was not on a

hunting mission. . . . Even if you believe that at that

moment the defendant honestly believed that he was

in fear for his life, was that belief reasonable . . . [?]’’

As noted in the foregoing, ‘‘a prosecutor may argue

the state’s case forcefully’’ so long as that argument is

fair and based on facts in evidence and the reasonable

inferences to be drawn therefrom. State v. Otto, supra,

305 Conn. 76. ‘‘Although a state’s attorney may argue

that the evidence proves the defendant guilty, he may

not stigmatize the defendant by the use of epithets

which characterize him as guilty before an adjudication

of guilt.’’ State v. Williams, supra, 204 Conn. 545–46.

On the basis of our review of the record, the prosecu-

tor’s use of the phrase ‘‘hunting mission’’ was reason-

ably based upon evidence presented at trial.

Part of the state’s theory at trial was that the defen-

dant had used social media to stoke an ongoing conflict

with Nunez, arranged to confront Nunez on the street

and then intentionally assaulted him by driving a vehicle

into him. In an effort to persuade the jury of the defen-

dant’s conscious objective to physically harm Nunez,

the prosecutor described his conduct as a ‘‘hunting

mission.’’ In our view, describing the defendant’s overall

course of conduct as a ‘‘hunting mission’’ was a reason-

able rhetorical device and was based upon the evi-

dence.19 We also simply do not understand how the

state’s use of the phrase ‘‘hunting mission’’ created an

improper connection between gun violence and mental

illness. The state drew no such connection, and the use

of the phrase, ‘‘hunting,’’ does not necessarily invoke

gun violence, particularly here, where a gun was not

used by anyone. Accordingly, we conclude that the

state’s use of the phrase ‘‘hunting mission’’ did not con-

stitute impropriety.

D

The defendant next argues that the prosecutor mis-

characterized the defendant’s testimony during the

state’s closing argument. Specifically, he argues that

the prosecutor committed impropriety when she stated

that he testified that he ‘‘was reasonably in fear of

imminent harm.’’ We disagree that the prosecutor’s

remark was improper.

The prosecutor’s statement, in context was: ‘‘[I]f

motivation is a basis for incredibility, ladies and gentle-

men, who’s more motivated than the defendant, who,

by the way, is the only witness [who] sat here and

listened to all the evidence and testified last, after he

got to hear everybody’s story? So, what does that tell

you about how he crafted the testimony that he crafted,

using, interestingly enough, legal terms during his testi-

mony. I was reasonably in fear of imminent harm.

Something like that. There’s nothing wrong with that;

I’m just saying . . . if we’re judging credibility on how

a person testifies, their demeanor during their testi-

mony, what they say, as the defense has asked you to

do with [Nunez] . . . what’s good for the goose is good

for the gander.’’ (Emphasis added.)

It is well established that ‘‘[a] prosecutor . . . may

not . . . inject extraneous issues into the case that

divert the jury from its duty to decide the case on the

evidence. . . . A prosecutor, in fulfilling his duties,

must confine himself to the evidence in the record. . . .

[A] lawyer shall not . . . [a]ssert his personal knowl-

edge of the facts in issue, except when testifying as a

witness. . . . Statements as to facts that have not been

proven amount to unsworn testimony, which is not the

subject of proper closing argument.’’ (Citation omitted;

internal quotation marks omitted.) State v. Moore, 293

Conn. 781, 809, 981 A.2d 1030 (2009), cert. denied, 560

U.S. 954, 130 S. Ct. 3386, 177 L. Ed. 2d 306 (2010).

We conclude that the prosecutor did not mischarac-

terize, at least in any intentional or substantial sense,

the defendant’s testimony. During the state’s closing

argument, the prosecutor argued that the defendant

testified that he ‘‘was reasonably in fear of imminent

harm . . . [s]omething like that.’’ (Emphasis added.)

Although the defendant actually testified that he ‘‘went

in [Nunez’] direction in fear for my life,’’ the prosecu-

tor’s use of the qualifier, ‘‘something like that,’’ when

recounting that testimony makes clear she was not

attempting to mislead the jury into believing that those

were the precise words used by the defendant in his

testimony. Moreover, the state began its closing argu-

ment with an admonition to the jury that it is the jury’s

recollection of the evidence that controls, not the state’s

recollection that matters.

Finally, it is important to remember that, although the

prosecutor could have expressed herself with greater

precision, we cannot say that her argument constituted

impropriety, particularly in light of her qualifying

remark. ‘‘[W]e are mindful . . . that closing arguments

of counsel . . . are seldom carefully constructed in

toto before the event; improvisation frequently results

in syntax left imperfect and meaning less than crystal

clear.’’ (Internal quotation marks omitted.) State v. Wil-

liams, 102 Conn. App. 168, 197, 926 A.2d 7, cert. denied,

284 Conn. 906, 931 A.2d 267 (2007).

Instead, the prosecutor’s primary point, in context,

was to suggest that the defendant had witnessed the

prior testimony admitted throughout the trial before he

testified and that he had the opportunity to conform his

testimony to the evidence and the law. The challenged

statement, at its heart, was not intended to persuade

the jury to accept facts not in evidence, but instead

sought to attack the motivations of the defendant to

craft his testimony in a self-serving manner. Thus, the

prosecutor’s statements during closing argument were

not improper.

E

Finally, the defendant argues that the prosecutor

improperly used and misused the defendant’s tattoo

evidence. We disagree.

Notwithstanding our assumption in part II B of this

opinion that the court improperly admitted the defen-

dant’s tattoo evidence, we repeat that ‘‘[a]rguing on

the basis of evidence explicitly admitted . . . cannot

constitute prosecutorial [impropriety].’’ State v. Rowe,

supra, 279 Conn. 152. Accordingly, we conclude that

the prosecutor’s reference in closing argument to the

admitted tattoo evidence was not improper.

F

We briefly turn then to the question of whether the

sole instance of prosecutorial impropriety identified in

this case, specifically, the prosecutor’s questions asking

the defendant to opine on the credibility of another

witness, deprived the defendant of a fair trial. In part

II A of this opinion, we concluded that the trial court’s

improper evidentiary ruling permitting this inquiry did

not constitute harmful error for a multitude of reasons.

Those same reasons are applicable here with respect

to the defendant’s claim of prosecutorial impropriety

and we need not repeat them.

The judgment is affirmed.20

In this opinion the other judges concurred.

1

The court sentenced the defendant to a total effective term of imprison-

ment of twenty years, execution suspended after fourteen years, and five

years of probation.

2

The jury was instructed on counts one and two to consider certain lesser

included offenses if it found the defendant not guilty on either count.

3

On the day of the assault, Zolotov was in his vehicle while stopped at

a red traffic signal located near the area where the defendant drove his

vehicle into Nunez and Jessica.

4

General Statutes § 53a-59 (a) provides in relevant part: ‘‘A person is

guilty of assault in the first degree when . . . (1) [w]ith intent to cause

serious physical injury to another person, he causes such injury to such

person or to a third person by means of a deadly weapon or a dangerous

instrument . . . .’’

5

General Statutes § 53a-60 (a) provides in relevant part: ‘‘A person is

guilty of assault in the second degree when . . . (2) with intent to cause

physical injury to another person, the actor causes such injury to such

person or to a third person by means of a deadly weapon or a dangerous

instrument other than by means of the discharge of a firearm . . . .’’

We note that although § 53a-60 has been amended since the events at

issue in this appeal, those amendments are not relevant here. We therefore

refer to the current revision of § 53a-60 as codified in the 2016 supplement

to the General Statutes.

6

Prior to closing arguments on January 30, 2014, the court gave the parties

an opportunity to read the proposed jury instructions. The court proceeded

to review the entire proposed jury instructions page by page. For each of

the challenged counts—counts one, two, and four—defense counsel raised

no objection.

7

The prosecutor further stated that ‘‘[r]eckless endangerment is merely

[that the defendant] did an act that was so out of the ordinary, with extreme

indifference to human life, that by [his] actions [the defendant] had abso-

lutely no regard for the safety of the persons involved.’’ The prosecutor

argued that ‘‘the actions of [the defendant] constituted an extreme indiffer-

ence to human life, with reckless disregard for whether or not he could

cause serious physical injury to either [McDougall], [Jessica] or [Nunez].’’

8

It is not unusual or an unwise practice for the state to file, close to the

time of trial, a substituted information reducing the number of offenses

charged or changing the particular crimes charged because the prosecutor

who is assigned to try the case has done a substantial amount of trial

preparation and has a more precise grasp of the evidence that the state

intends to offer at trial.

9

We note that the defendant objected to the first question, but did not

object to the subsequent questions, including the most objectionable ques-

tion, which asked him whether Zolotov had intentionally mischaracterized

the evidence. Our Supreme Court has held that an objection to a question

does not relieve a party from the obligation to object to similar subsequent

questions; Sears v. Curtis, 147 Conn. 311, 313, 160 A.2d 742 (1960); unless

the court has granted a continuing or running objection to that line of

inquiry; Putnam, Coffin & Burr, Inc. v. Halpern, 154 Conn. 507, 512–13,

227 A.2d 83 (1967); or unless the prior ruling indicated that later objections

would be futile. Cf. State v. Spencer, 198 Conn. 506, 512, 503 A.2d 1165

(1986). Any appellate claim arising from the subsequent questions, therefore,

arguably is unpreserved. The state, however, does not argue that we should

decline to review this claim, and we elect to do so in light of our ultimate

conclusion that the defendant has not demonstrated the harmfulness of

any error.

10

‘‘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, supra, 309 Conn. 479.

11

In support of this assertion, we take judicial notice of a recent Harris

poll that reveals that 29 percent of adults in the United States have at least

one tattoo, and 69 percent of those individuals have two or more tattoos.

See The Harris Poll, ‘‘The Harris Poll #12, February 10, 2016,’’ (last modified

February 10, 2016), available at http://www.theharrispoll.com/health-and-

life/Tattoo Takeover.html (last visited February 17, 2017) (copy contained

in the file of this case in the Appellate Court clerk’s office); see also State

v. Santiago, 318 Conn. 1, 127, 122 A.3d 1 (appellate courts permitted to

take notice of extra-record materials, including scientific and sociological

studies). Less than half of the surveyed individuals who do not have a tattoo

believe that those with tattoos are ‘‘more rebellious.’’ The Harris Poll, supra.

12

See also United States v. Quintero, 1991 U.S. App. LEXIS 10446, *8 (9th

Cir. May 15, 1991) (‘‘[w]e do not believe that all tattoos, as a general matter,

create juror prejudice sufficient to violate a defendant’s right to a fair trial’’)

(decision without published opinion, 933 F.2d 1017 [9th Cir. 1991]).

13

We also note that Thomas was decided in 2003, when negative societal

attitudes about tattoos may have been more prevalent.

14

The challenged duty to retreat instruction provides in relevant part: ‘‘A

person is not justified in using deadly 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 the defendant to retreat instead

of using deadly 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. . . . The term complete safety as used in [the] statute [that governs

the duty to retreat, General Statutes § 53a-19] means, without any injury

to the defendant whatever. A person acts knowingly with respect to a

circumstance described in a statute when he is aware that such circumstance

exists. . . . Ordinarily, knowledge can be established only through an infer-

ence from other proven facts and circumstances. 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. The determinative question is whether the circum-

stances in the particular case form a basis for a sound inference as to the

knowledge of the defendant in the circumstances under inquiry.’’ (Empha-

sis added.)

15

‘‘Under Golding, a defendant may prevail on an unpreserved claim only

if the following conditions are met: (1) the record is adequate to review the

alleged claim of error; (2) the claim is of constitutional magnitude alleging

the violation of a fundamental right; (3) the alleged constitutional violation

. . . exists and . . . deprived the defendant of a fair trial; and (4) if subject

to harmless error analysis, the state has failed to demonstrate harmlessness

of the alleged constitutional violation beyond a reasonable doubt.’’ (Internal

quotation marks omitted.) State v. Wright, 319 Conn. 684, 688, 127 A.3d 147

(2015). ‘‘[T]he first two [prongs of Golding] involve a determination [as to]

whether the claim is reviewable; the second two . . . involve a determina-

tion [as to] whether the defendant may prevail.’’ (Internal quotation marks

omitted.) State v. LaBrec, 270 Conn. 548, 555, 854 A.2d 1 (2004).

Although the record is adequate to review and the defendant claims he

was deprived of his constitutional right of due process, he cannot prevail

under Golding. ‘‘[A] constitutional claim that has been waived does not

satisfy the third prong of the Golding test because, in such circumstances,

we simply cannot conclude that injustice [has been] done to either party

. . . .’’ (Internal quotation marks omitted.) State v. Kitchens, supra, 299

Conn. 467. Thus, in light of the defendant’s waiver under Kitchens, the

defendant cannot prevail under Golding.

16

The claim of instructional error in State v. Ash, 33 Conn. App. 782, 795,

638 A.2d 633, rev’d on other grounds, 231 Conn. 484, 651 A.2d 247 (1994),

had been preserved by the defendant ‘‘by filing a proper request to charge

with respect to the issue of self-defense . . . .’’

17

The defendant also requests that this court grant him relief on this issue

through an exercise of its supervisory power over the administration of

justice. ‘‘Supervisory powers are exercised to direct trial courts to adopt

judicial procedures that will address matters that are of utmost seriousness,

not only for the integrity of a particular trial but also for the perceived

fairness of the judicial system as a whole.’’ (Internal quotation marks omit-

ted.) State v. Elson, supra, 311 Conn. 764–65. The circumstances of this

case are not sufficiently serious to warrant exercise of our supervisory

powers, and, thus, we decline the defendant’s request.

18

During the state’s closing argument, the prosecutor argued in relevant

part: ‘‘Edwin Nunez did not flag anybody down because Jan Zolotov would

have seen it. And the defendant’s theory that Jan Zolotov looked away and

never saw Edwin Nunez flagging him down makes no sense because Jan

Zolotov said he didn’t look away, he just noticed a car speeding. Until he

noticed a car speeding, he saw the people on the corner. And if you are to

listen to the way the defendant tells you the story, he didn’t speed up until

he was flagged by Edwin Nunez. Do you understand what I am saying? So,

that chronology, that flow, those two sets of facts have to be reconciled by

you, the jury.’’

The prosecutor later argued: ‘‘If you can find evidence in this case, a

reason, to say that Jan Zolotov was an incomplete fact witness because he

did not have a good look at this particular incident, I challenge you to make

that decision based on the evidence or lack of evidence in the case. How

the defendant has characterized Jan Zolotov as an unreliable eyewitness

. . . it’s pulled out of the air, it’s speculation.’’

19

Even if it were improper, the phrase was only used twice and ‘‘does

not rise to the level of continuous use of invective [that] would have the

improper effect of appealing to the emotions and prejudices of the jurors.’’

(Internal quotation marks omitted.) State v. Medrano, 308 Conn. 604, 616,

65 A.3d 503 (2013).

20

We note that the defendant requests, in the alternative, that this court

exercise its supervisory power over the administration of justice to reverse

his conviction on the basis of a pattern of prosecutorial impropriety by this

prosecutor. In light of our preceding resolution of the alleged improprieties,

we decline the defendant’s request to exercise our supervisory power.

Accordingly, we decline to reverse the defendant’s conviction.