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State v. Carlson
STATE OF CONNECTICUT v. KRISTOPHER CARLSON
(AC 45883)
Cradle, Seeley and Westbrook, Js.
Syllabus
Convicted, after a jury trial, of the crime of manslaughter in the first degree,
the defendant appealed to this court. Following an altercation in the
parking lot of a bar, the defendant chased the victim approximately
ninety feet and then stabbed the victim two times in the chest with a
knife. The defendant then ran to his vehicle and quickly drove away
from the scene. At trial, the defendant pursued the theory that the victim
was the initial aggressor and that he had killed the victim in self-defense.
At the state’s request and over the defendant’s objection, the trial court
provided a consciousness of guilt instruction to the jury. Held:
1. The defendant could not prevail on his claim that the trial court’s consciousness of guilt instruction implicated his constitutional right to due
process of law: in its instruction, the trial court emphasized that any
evidence of consciousness of guilt derived from the defendant’s flight
was circumstantial, which allowed for a permissive inference that did
not unconstitutionally dilute the state’s burden to disprove beyond a
reasonable doubt the elements of self-defense, including the duty to
retreat prior to using deadly physical force; moreover, the defendant
did not drive away from the bar until after he had chased the victim
and stabbed him in the chest two times and, as our Supreme Court
instructed in State v. Luster (279 Conn. 414), flight that occurs after a
defendant’s use of deadly force does not logically compel a conclusion
that the reason for the flight was self-defense nor does it entitle the
defendant to present such evidence without permitting the jury to consider other possible reasons for the flight.
2. The defendant failed to demonstrate that the consciousness of guilt
instruction violated his constitutional right not to testify as guaranteed
by the fifth amendment to the United States constitution: this court
concluded that the defendant’s claim was unpreserved because it was
entirely distinct from his objection that was stated on the record following the charge conference, namely, that the instruction diluted the state’s
burden to disprove self-defense, and he did not raise an exception on
the basis of his fifth amendment rights or on any other basis immediately
following the charge; moreover, the defendant could not prevail on his
unpreserved claim under State v. Golding (213 Conn. 233) because he
failed to demonstrate a violation of his constitutional right not to testify,
as the trial court unequivocally instructed the jury that it could draw
no unfavorable inferences from the defendant’s decision not to testify
and that, even if the jury did find that the defendant’s flight from the
scene and the washing of the clothes that he was wearing during the
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State v. Carlson
incident shortly thereafter were influenced by the criminal act, it could,
but was not required to, infer consciousness of guilt from those actions.
3. The trial court did not abuse its discretion in instructing the jury on
consciousness of guilt: although the defendant claimed that he fled the
scene due to fear of a continued threat from the victim, the record
demonstrated ample support for a consciousness of guilt instruction,
including evidence that the defendant’s flight occurred after he stabbed
the victim and watched him fall to the ground and his misstatements
to law enforcement, evidence that could have been relied on by the jury
to find that the defendant sought to avoid detection of or responsibility
for the crime and permitted an inference that he was acting from a
guilty conscience.
4. This court declined the defendant’s request to exercise its supervisory
authority to prohibit courts from providing consciousness of guilt
instructions to juries: our Supreme Court declined an identical request
in State v. Coward (292 Conn. 296), and the defendant failed to present
any authority that would allow this court to deviate from that precedent.
Argued February 8—officially released July 2, 2024
Procedural History
Information charging the defendant with the crime
of murder, brought to the Superior Court in the judicial
district of New Haven and tried to the jury before Vitale,
J.; verdict and judgment of guilty of the lesser included
offense of manslaughter in the first degree, from which
the defendant appealed to this court. Affirmed.
Erica A. Barber, assistant public defender, for the
appellant (defendant).
Danielle Koch, assistant state’s attorney, with whom,
on the brief, were John Doyle, state’s attorney, Seth
Garbarsky, supervisory assistant state’s attorney, and
Jason Germain, senior assistant state’s attorney, for
the appellee (state).
Opinion
SEELEY, J. The defendant, Kristopher Carlson,
appeals from the judgment of conviction, rendered following a jury trial, of manslaughter in the first degree
in violation of General Statutes § 53a-55 (a) (1). On
appeal, the defendant raises multiple claims concerning
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State v. Carlson
the trial court’s jury instructions on consciousness of
guilt.1 Specifically, the defendant claims that (1) the
instruction diluted the state’s burden to disprove the
elements of self-defense beyond a reasonable doubt,
(2) in a self-defense case, a consciousness of guilt
instruction improperly burdens the defendant to
explain his conduct in violation of his constitutional
right not to testify, (3) the instruction was unwarranted
based on the evidence presented at trial, (4) the jury
was misled by the instruction,2 and (5) this court should
exercise its supervisory powers and adopt a rule categorically prohibiting consciousness of guilt instructions. We conclude that the court did not err by giving
a consciousness of guilt instruction and decline to adopt
a rule prohibiting such an instruction. We affirm the
judgment of the trial court.
The jury reasonably could have found the following
facts. On the evening of January 16, 2021, the defendant
went to Corner Café, a bar in Wallingford, with his
father, David Carlson. At some point in the evening,
the defendant’s father left, but the defendant remained
at the bar. In addition to the defendant and other
1
We note that the defendant frames his appeal as consisting of one claim—
that the court erred in issuing the consciousness of guilt instruction—with
five separate supporting arguments. Upon a careful review of each of the
five issues raised by the defendant, however, it is clear that there are five
distinct claims being raised on appeal. ‘‘[A] claim is an entirely new legal
issue, whereas, [g]enerally speaking, an argument is a point or line of reasoning made in support of or in opposition to a particular claim.’’ (Internal
quotation marks omitted.) Markley v. State Elections Enforcement Commission, 339 Conn. 96, 105 n.9,
259 A.3d 1064 (2021). The grounds he has raised
are not interconnected arguments in support of one legal claim relevant to
the consciousness of guilt instruction but, rather, they are separate claims,
each of which posit an entirely different legal challenge to the issuance of
the instruction, as each one can be decided individually without affecting
our analysis of the defendant’s other claims. Accordingly, we address each
of the five grounds raised by the defendant in support of his appeal as
separate claims.
2
The defendant’s fourth claim is, in effect, a restatement of his first claim.
See footnote 14 of this opinion.
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State v. Carlson
patrons, present at the bar were Rebecca Souza, the
bartender; Jessica Falcone, a friend of Souza; Gene
DelGreco, a regular customer and an acquaintance of
both Souza and Falcone; and the victim, Ernest Cipolli
III, who was in a romantic relationship with Souza. The
bar had a closing time of 10 p.m. due to the COVID-19
restrictions in place at that time. At some time after
9:30 p.m., Souza announced ‘‘last call,’’ which signaled
to the patrons that the bar would be closing soon.
Around 10 p.m., Souza informed the remaining customers that it was closing time and asked them to leave the
premises. Some of the customers, including Falcone,
DelGreco, the defendant, and the victim, remained.
The victim was irritated with the defendant for his
continued presence at the bar, believing that the defendant had been flirting with Souza. The victim also
seemed irritated with Souza for not forcing the defendant to leave more promptly. As a result, there was a
verbal confrontation between the defendant and the
victim inside the bar, in the presence of Souza, Falcone,
and DelGreco, in which the victim approached the
defendant, asked him who he was and told him to leave
the bar. Souza told the victim to sit down and the defendant not to pay attention to the victim because he was
jealous. Nevertheless, the victim told the defendant to
leave, while pointing at the exit. A surveillance video
from inside the bar shows that, after this confrontation,
at approximately 10:03 p.m., DelGreco physically
escorted the defendant out of the bar. There was no
physical contact between the defendant and the victim
at that time.
After the defendant left the bar with DelGreco, Falcone subsequently went outside to the parking lot to
check on the defendant, who was seated in his vehicle.
He seemed annoyed and stated to Falcone that, if the
victim wanted to fight, he would ‘‘call [his] boys.’’ Thereafter, Falcone went back inside the bar. The victim,
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State v. Carlson
meanwhile, appeared agitated, stepped outside the bar
to smoke a cigarette at approximately 10:07 p.m. and
then went back inside, where he and Souza had an
‘‘emotional conversation.’’
At around 10:12 p.m., Falcone again went outside to
the parking lot of the bar where she met with DelGreco,
at which time the defendant was still inside his vehicle
in the parking lot. At approximately 10:16 p.m., the
victim exited the bar and walked over to the area of
the parking lot where DelGreco and Falcone were both
seated in their respective vehicles and were having a
conversation through their unrolled car windows. The
victim, Falcone, and DelGreco had a brief conversation,
during which Falcone observed that the victim seemed
agitated and informed the victim that she had told the
defendant to leave. The victim thereafter went back
inside the bar around 10:18 p.m.
At approximately 10:22 p.m., the victim exited the
bar a final time and approached the defendant’s vehicle.
Falcone and DelGreco were still engaged in a conversation through their unrolled car windows. Falcone, concerned about the potential for further conflict between
the victim and the defendant, exited her vehicle,
approached the defendant’s vehicle and stood next to
the victim. A surveillance video from outside the bar
shows that the victim banged on or punched the defendant’s vehicle at least once. DelGreco also exited his
vehicle and approached the defendant’s vehicle. A physical altercation followed, in which the defendant was
trying to open the door to his vehicle and the victim
kept pushing it shut.
Falcone, who had been attempting to deescalate the
altercation, observed the defendant lean over and grab
something from underneath the passenger seat in his
vehicle. Afraid that the defendant had a firearm, Falcone
told the victim, who was unarmed, that the defendant
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State v. Carlson
had a gun. The defendant, who actually was retrieving
a knife that he kept stored in his car, thereafter exited
his vehicle. Falcone and DelGreco attempted to separate the victim and the defendant, but the victim moved
toward the defendant and the defendant struck the victim in the arm.3
The victim then began running away from the defendant, who chased him approximately ninety feet toward
the door of the bar. The victim attempted to open the
door, but it was locked.4 The defendant caught up with
the victim at the door and stabbed him twice in the
chest with the knife.5 At the time the defendant stabbed
the victim, the victim had his hands in the air, which
is supported by the documented injuries to the victim’s
hands.6 The defendant then ran back to his vehicle and
quickly left the scene, driving over the curb at the edge
of the parking lot in the process. Thereafter, Falcone
banged on the bar door, and, after Souza opened it,
Falcone instructed Souza to call 911. Police and emergency medical personnel arrived shortly after and
attempted to administer aid to the victim. The medical
personnel transported the victim by ambulance to a
hospital where he died later that evening.
3
It is unclear, based upon the evidence, whether the victim was struck
with a fist or a knife at this point.
4
Souza testified that she locked the door because, as she was the only
employee working and was closing the bar for the night, she was supposed
to count the money and lock herself in with the register.
5
Chief Medical Examiner James Gill testified that the victim had suffered
two stab wounds to the left side of his chest, one of which was one and
one-eighth inches in length and the other of which was three and one-quarter
inches in length, both of which were fatal wounds.
6
James Gill, the chief medical examiner, noted that there were multiple
wounds to the victim’s hands, including a perforating stab wound and a
corresponding injury on the other side of the victim’s right hand, between
the third and fourth fingers, and multiple smaller lacerations on the palm
and fingers, as well as abrasions to the victim’s forearms. Dr. Gill further
testified that ‘‘it’s not unusual . . . to see people who are . . . stabbed to
death to have injuries on their hands or their forearms in . . . trying to
grab at a knife blade, for example.’’
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State v. Carlson
In the hours following the victim’s death, police officers went to the home of the defendant’s father in
Wallingford. The defendant’s father called the defendant, who agreed to come to the house and speak to the
officers. When he arrived, the defendant was wearing
different clothes from what he was wearing in the surveillance video obtained from the bar on the night of
the stabbing.7
The defendant agreed to an interview with the police
at the police station, which was recorded. In the interview, the defendant told the police that the victim had
been punching the driver’s side window of his car and
that he had to use a folding knife he kept in his vehicle
to defend himself from the victim. The defendant told
the police that he did not know where the knife was
but that it may have been left at the scene.8 The defendant also told the police that when he left the bar after
the stabbing he drove directly to his girlfriend’s house
in New Britain and that he left the clothes that he had
been wearing during the altercation at his girlfriend’s
house.
Tracking data later obtained from the defendant’s
cell phone showed that the defendant did not drive
directly to his girlfriend’s house in New Britain but,
instead, that he had first driven to his mother’s house
in Meriden, then to a house in New Britain, and finally
to his father’s house to speak with the police officers.
The day after the incident, the police obtained a search
warrant for the defendant’s mother’s house. During the
execution of the search warrant, the officers seized the
clothes and shoes that the defendant had been wearing
during the stabbing at the bar. The defendant’s clothes
were damp, smelled of detergent, and had been laid
7
The surveillance footage showed that the defendant was wearing a black
and white hooded jacket, a pair of jeans, and a pair of white sneakers.
8
No weapon was ever recovered from the scene.
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State v. Carlson
out on the bed by someone. The shoes appeared to
have been washed as well, but a ‘‘bloodlike stain’’
remained. The defendant was subsequently arrested
and charged with murder in violation of General Statutes § 53a-54a (a).
At trial, the defendant pursued the theory that the
victim was the initial aggressor and that he had killed
the victim in self-defense. After the close of evidence,
the parties participated in a charge conference with
the court that was held in chambers, which the court
memorialized on the record the following day. The state
had submitted a request for an instruction on consciousness of guilt, to which the defendant objected, arguing
that it would be ‘‘inappropriate in this case where the
defense is justification, it’s a self-defense case, there’s
an instruction of self-defense, to indicate that flight or
any other behavior is . . . evidence of consciousness
of guilt I think jumps over the issue of justification.’’9
The court, Vitale, J., overruled the defendant’s objection, stating that it ‘‘concluded that the record demonstrated sufficient evidence that had been introduced to
permit . . . that instruction be given. So, I want to
just note in connection with the claims [made by the
defendant] . . . that the evidence related to consciousness of guilt concerns not only what the state alleges
is flight from the scene, which I don’t think is disputed,
and then subsequently the washing of [the defendant’s]
clothes after the fact.
9
The court first provided counsel for both parties with draft copies of
the instructions on April 18, 2022, more than one month before the charge
conference. That copy of the charge, however, did not contain an instruction
on consciousness of guilt. On May 5, 2022, several weeks before the charge
conference, the court provided counsel with a revised set of preliminary
jury instructions, which did contain the consciousness of guilt instruction.
On May 24, 2022, the court provided counsel with the final set of jury
instructions. Therefore, counsel was aware, several weeks before the charge
conference, of the proposed instruction on consciousness of guilt.
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State v. Carlson
‘‘The court has carefully considered the Supreme
Court’s language in State v. Luster, 279 Conn. 414, [
902
A.2d 636 (2006)], which was a self-defense case, and
State v. Grajales . . . 181 Conn. App. 440, [
186 A.3d
1189], cert. denied,
329 Conn. 910, [
186 A.3d 707] (2018),
which involved another justification claim, that one
being defense [of] others.
‘‘In connection with this specific claim being raised
by the defendant . . . this court’s instruction on consciousness of guilt is consistent with language in Luster
and Grajales in that it allows a permissive inference
only. The court is mindful of the cautions suggested by
the Supreme Court in Luster in a self-defense situation.
The court concludes, though, after a thorough examination of the evidence presented in applying not only
Luster, but Grajales, which, as I said, involved a defense
of others claim by the defendant, that the instruction
is appropriate to provide in this case.’’
During their closing arguments, both the prosecutor
and defense counsel addressed whether certain evidence showed the defendant’s consciousness of guilt,
or whether there was an alternative explanation. The
prosecutor argued that ‘‘[t]he [defendant’s] actions after
[he] stabbed [the victim] shows a guilty conscience.
Now, the fact that he left the scene, drove in his car
and took off, indicated that he went . . . to see his
girlfriend, but actually went to his mother’s house and
the first thing he does . . . he goes to his mother’s
house and immediately starts cleaning up, wipes down
all the blood. And why is that important? Because he
tells the police officer[s] that there was no blood on
him, there was none, but he tried to wash out that DNA
and they found it from the clothes that he was wearing.
His sneakers include[d] little, small drops on his shoelace. That comes back and shows, again, [the defendant’s] consciousness of guilt in trying to get rid of
evidence after you committed a murder, not that he
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State v. Carlson
used self-defense.’’ In response, defense counsel argued
that ‘‘the state argued consciousness of guilt; he washed
his clothes, he changed his clothes, he didn’t tell the
detectives that the clothes were at his mom’s house,
he fled the scene. It’s not consciousness of guilt, it’s
consciousness of fear. It’s consciousness of the fact
that things went awful bad. Consciousness of the fact
that he was scared, he was scared he was in trouble,
he was scared that his mom was gonna get dragged
into this. It’s not consciousness of guilt.’’
In its final charge to the jury, the court gave the same
instruction on consciousness of guilt it previously had
shown to counsel. That instruction read: ‘‘In any criminal trial, it is permissible for the state to show that
conduct by a defendant after the time of the alleged
offense may have been influenced by the criminal act;
that is, the conduct shows a consciousness of guilt.
‘‘Flight, when unexplained, may indicate consciousness of guilt if the facts and the circumstances support
it. With regard to this issue, the state has offered evidence of the defendant’s alleged flight from the Corner
Café in Wallingford and the alleged cleansing of his
clothing following the events that . . . are the subject
of this trial. . . . It is of course for you to pass upon
the credibility of that evidence and to give to it the
weight you deem appropriate.
‘‘Whatever you find proven in this regard must have
been influenced by the criminal act and not by any
other reason. If you find that the defendant did engage
in such conduct following the commission of the crime
alleged, and also find that . . . the acts were influenced by the criminal act and not by any other reasons,
you may, but are not required to, infer from this evidence that the defendant was acting from a guilty conscience.
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State v. Carlson
‘‘First, you must determine whether the state has
proven any . . . such conduct. . . . If so, and if you
then find proven that the defendant did so in connection
with this crime, this does not raise a presumption of
guilt. It is circumstantial evidence and you may, or may
not, infer consciousness of guilt from it. . . . Let me
make this clear to you. It is up to you as judges of the
fact[s] to decide whether the state has proven any of
the alleged conduct, and if so, whether or not whatever
has been proven reflects a consciousness of guilt and
to consider such in your deliberations in conformity
with these instructions.’’ After the court charged the
jury, defense counsel did not take any exception with
respect to the consciousness of guilt instruction. The
jury subsequently found the defendant guilty of manslaughter in the first degree as a lesser offense included
within the crime of murder. The court imposed a sentence of sixteen years of incarceration. This appeal
followed. Additional facts and procedural history will
be set forth as necessary.
I
The defendant first claims that the consciousness of
guilt instruction improperly violated his constitutional
right to due process of law. Specifically, the defendant
argues that an instruction on flight is unconstitutional
in a case in which the defendant asserts a claim of self-defense because it dilutes the state’s burden to disprove
the elements of self-defense beyond a reasonable
doubt.10 The defendant further argues that, to ‘‘[assess]
10
As noted by our Supreme Court, ‘‘[u]nder our Penal Code, self-defense
. . . is a defense . . . rather than an affirmative defense. . . . Consequently, a defendant has no burden of persuasion for a claim of self-defense;
he has only a burden of production. That is, he merely is required to introduce
sufficient evidence to warrant presenting his claim of self-defense to the
jury. . . . Once the defendant has done so, it becomes the state’s burden
to disprove the defense beyond a reasonable doubt.’’ (Internal quotation
marks omitted.) State v. Singleton, 292 Conn. 734, 747,
974 A.2d 679 (2009).
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State v. Carlson
whether the state met [that] burden, the jury needed
to consider the defendant’s duty to retreat, i.e., whether
the state had proven that the defendant knew that he
could avoid using deadly physical force by retreating
from the threat.’’ The defendant asserts that he left the
scene of the altercation out of fear in an attempt ‘‘to
escape his aggressor,’’ not due to guilt, and that, therefore, his flight was consistent with his claim of self-defense. The defendant contends that, ‘‘[b]y emphasizing the possibility that the defendant’s retreat was motivated by something other than his fear, the court
improperly endorsed the prosecution’s version of the
events and [unconstitutionally] diluted the state’s burden of proof [regarding the defendant’s claim of self-defense].’’ The state responds that the consciousness
of guilt instruction did not implicate the defendant’s
due process rights, as it is a permissive inference, which
does not implicate the defendant’s due process rights
or shift the burden of proof from the state to the defendant. We agree with the state.
We begin by setting forth the appropriate standard
of review and the principles of law that guide our analysis of the defendant’s claim. ‘‘A challenge to the validity
of jury instructions presents a question of law over
which [we have] plenary review.’’ Pickering v. Rankin-Carle, 103 Conn. App. 11, 14,
926 A.2d 1065 (2007); see
also State v. Wilson, 209 Conn. App. 779, 807,
267 A.3d
958 (2022). ‘‘When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that
a charge to the jury is to be considered in its entirety
. . . and judged by its total effect rather than by its
individual component parts. . . . The pertinent test is
whether the charge, read in its entirety, fairly presents
the case to the jury in such a way that injustice is not
done to either party under the established rules of law.
. . . [It should] not [be] critically dissected in a microscopic search for possible error. . . . In this inquiry
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State v. Carlson
we focus on the substance of the charge rather than
the form of what was said not only in light of the entire
charge, but also within the context of the entire trial.’’
(Internal quotation marks omitted.) State v. Luster,
supra,279 Conn. 421; see also State v. Alston,
272 Conn.
432, 447,
862 A.2d 817 (2005). Furthermore, ‘‘[i]n
reviewing a constitutional challenge to the trial court’s
instruction, we must consider the jury charge as a whole
to determine whether it is reasonably possible that the
instruction misled the jury. . . . In other words, we
must consider whether the instructions [in totality] are
sufficiently correct in law, adapted to the issues and
ample for the guidance of the jury.’’ (Internal quotation
marks omitted.) State v. Haughwout, 339 Conn. 747,
770,
262 A.3d 791 (2021).
Generally, ‘‘a person is justified in using reasonable
physical force upon another person to defend himself
. . . from what he reasonably believes to be the use
or imminent use of physical force, and he may use such
degree of force which he reasonably believes to be
necessary for such purpose . . . .’’ General Statutes
§ 53a-19 (a). A person is not justified, however, ‘‘in using
deadly physical force upon another person if he or she
knows that he or she can avoid the necessity of using
such force with complete safety (1) by retreating,
except that the actor shall not be required to retreat if
he or she is in his or her dwelling . . . .’’ General Statutes § 53a-19 (b). ‘‘In other words, § 53a-19 (b) ‘requires
recourse to retreat in lieu of the use of physical force
only when the actor himself knows that he can avoid
the necessity of using such force with complete safety
. . . .’ ’’ State v. Hallowell, 61 Conn. App. 463, 469,
766
A.2d 950 (2001).
In the present case, the court provided a lengthy and
comprehensive instruction to the jury on the defendant’s claim of self-defense,11 including that a defendant
11
In the present case, the court instructed the jury that ‘‘our law defines
. . . self-defense as follows: A person is justified [in] using reasonable physi-
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State v. Carlson
has a legal duty to retreat prior to using deadly physical
force. The court instructed the jury that ‘‘[t]he state can
defeat the defendant’s claim of self-defense by proving
the statutory disqualification to the use of deadly physical force. The law describing self-defense describes a
circumstance in which a person is not justified in using
deadly physical force in self-defense against another.
‘‘Now, this exception applies only to the use of deadly
force. So, if you have found the defendant used deadly
physical force you must consider this exception, meaning the duty to retreat. . . . A person is not justified
in using deadly physical force upon another person if
he knows that he can avoid the necessity of using such
force with complete safety by retreating. . . . This disqualification requires a defendant to retreat instead of
using deadly physical force whenever two conditions
are met: First, that retreat was completely safe and, in
fact, available to him; and second, that the defendant
had actual knowledge that he could avoid the necessity
of deadly physical force by making the completely safe
retreat. Retreat does not mean movement in a particular
direction. It includes any steps the defendant could
have taken to remove himself from the confrontation
with complete safety.’’
Our Supreme Court has previously addressed the
question of whether a consciousness of guilt instruction
cal force upon another person to defend himself from what he reasonably
believes to be the use or imminent use of force, and he may use such degree
of force which he reasonably believes to be necessary for such purpose.
‘‘Deadly physical force may not be used unless the actor reasonably
believes that such other person is, one, using or about to use deadly physical
force, or, second, inflicting or about to inflict great bodily harm. By this
language, the law requires that, before a defendant can use physical force
upon another person to defend himself, he must have two reasonable beliefs.
The first is a reasonable belief that . . . physical force is then being used
or 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 ongoing . . . or imminent use of force is necessary for that purpose.’’
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State v. Carlson
impermissibly dilutes the state’s burden to disprove the
elements of the defendant’s self-defense claim in State
v. Luster, supra,279 Conn. 421. In Luster, the defendant
sought Golding12 review of his unpreserved claim challenging the trial court’s jury instruction on consciousness of guilt. Id., 420. Specifically, he argued, relying
on § 53a-19 (b) (1); id., 423; ‘‘that an instruction on flight
is unconstitutional in the context of a self-defense claim
because it allows the jury to presume guilt from the
defendant’s actions in fulfilling his legal duty to retreat,
which dilutes the state’s burden to disprove self-defense
beyond a reasonable doubt.’’ Id., 421. Our Supreme
Court declined to review the consciousness of guilt
instruction; id., 425; concluding that ‘‘consciousness of
guilt claims, including claims involving flight instructions, are not constitutional and, therefore, are not subject to Golding review.’’ Id., 421–22. The defendant in
Luster nevertheless argued that his case was distinguishable from that precedent because it involved a
claim of self-defense. Id., 423. He argued that
‘‘instructing the jury that it may use the same evidence
as circumstantial proof of the defendant’s guilt tends
to undermine the self-defense claim and unfairly dilutes
the state’s burden of proof.’’ (Emphasis omitted.) Id.
Our Supreme Court rejected that claim, stating:
‘‘[E]vidence of flight from the scene of a crime inherently is ambiguous. . . . That ambiguity does not render a flight instruction improper. . . . Moreover, we
conclude that the defendant’s reliance on § 53a-19 (b)
(1) in support of his claim is misplaced. The section of
the statute that pertains to the duty to retreat merely
allows the state to rebut a claim of self-defense by
showing that the defendant could have retreated safely
before using deadly force. It does not follow that a
defendant is statutorily or constitutionally entitled to
12
See State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989), as
modified by In re Yasiel R., 317 Conn. 773, 781,
120 A.3d 1188 (2015).
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use evidence of retreat after using deadly force to bolster a claim of self-defense without permitting the jury
to consider other possible reasons for the flight. As in
other contexts, evidence of flight after using deadly
force inherently is ambiguous and does not logically
compel a conclusion that the reason for the flight was
self-defense. Although it may be prudent, as a general
rule, for the trial court to use greater caution in giving
a consciousness of guilt instruction when a defendant
has claimed self-defense, we do not believe that such
instructions inherently are unconstitutional.’’ (Citations
omitted; emphasis in original.) Id., 423–24; see also State
v. Adams, 225 Conn. 270, 287–90,
623 A.2d 42 (1993)
(because consciousness of guilt instruction allowed
permissive inference, it did not implicate constitutional
right and, thus, claim that instruction unconstitutionally
diluted state’s burden of proof had no merit). In concluding that consciousness of guilt instructions do not
implicate a defendant’s constitutional rights with
respect to the state’s burden of proof, the court in Luster
stated further: ‘‘In [State v. Alston, supra,272 Conn.
448], we explained that ‘jury instructions that mandate
inferences adverse to a defendant may sufficiently
implicate constitutional rights to satisfy the second condition of Golding.’ . . . Such instructions may violate
the defendant’s due process rights by relieving the state
of its burden of proving every element of the crime
beyond a reasonable doubt. . . . Instructions that
allow a permissive inference do not, however, implicate
a defendant’s constitutional rights.’’ (Citations omitted;
emphasis in original.) State v. Luster, supra,279
Conn. 422.
In the present case, the defendant’s argument that
the instruction to the jury on consciousness of guilt
lessened the burden on the state to disprove the elements of self-defense is similar to the one that was
presented to and rejected by our Supreme Court in
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Luster. The instruction given by the court in the pres-
13
ent case emphasized that any evidence of consciousness of guilt derived from the defendant’s flight was
circumstantial and that the jury could, but was ‘‘not
required to, infer from th[at] evidence that the defendant was acting from a guilty conscience.’’ Because the
court’s instruction allowed for a permissive inference,
we conclude that the court’s consciousness of guilt
instruction did not unconstitutionally dilute the state’s
burden of proof. Moreover, the jury was able to view the
surveillance video that was introduced into evidence,
which showed that the defendant did not drive away
13
The defendant also argues that ‘‘[a] jury charge which addresses permissive presumptions of guilt favoring the prosecution, without acknowledging
competing inferences of innocence, violates the balance requirement and
undermines the defendant’s right to a fair trial.’’ This court previously has
held that courts are not required to provide a consciousness of innocence
instruction in addition to a consciousness of guilt instruction. See State v.
Seekins, 123 Conn. App. 220, 226,
1 A.3d 1089 (‘‘[t]his court repeatedly has
refused to apply the consciousness of innocence principle to jury instructions regarding a consciousness of guilt’’), cert. denied, 298 Conn. 927,
5
A.3d 487 (2010); see also State v. Holley,
90 Conn. App. 350, 365,
877 A.2d
872 (‘‘[e]ven in cases in which a defendant has explained his flight, an
instruction that flight is circumstantial evidence of guilt need not be accompanied by a discussion by the court of the benign explanations for flight
offered by the defendant’’), cert. denied, 275 Conn. 929,
883 A.2d 1249 (2005).
We further note that, notwithstanding the binding precedent rejecting the
necessity of a consciousness of innocence instruction, the instruction given
by the court in the present case did allow for the possibility that the defendant
fled the scene for reasons other than consciousness of guilt. The court
instructed the jury that, ‘‘[i]f you find that the defendant did engage in such
conduct following the commission of the crime alleged, and also find that
. . . the acts were influenced by the criminal act and not by any other
reasons, you may, but are not required to, infer from this evidence that the
defendant was acting from a guilty conscience.’’ (Emphasis added.) The
court’s instruction, therefore, permitted an inference of guilt only if the
jury rejected any other possible reason, including fear, for the defendant’s
conduct following the commission of the crime. Furthermore, as stated
previously in this opinion, defense counsel argued during his closing argument that the defendant’s relevant conduct following the stabbing was due
to fear, not consciousness of guilt. Accordingly, we conclude that the defendant’s right to a fair trial was not violated by the consciousness of guilt
instruction.
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State v. Carlson
from the bar until after he chased the victim to the
locked door of the bar and used deadly physical force
by stabbing the victim two times in the chest. Thus, the
evidence of flight in the present case concerned flight
that occurred after the use of deadly force. As our
Supreme Court instructs, such evidence ‘‘does not logically compel a conclusion that the reason for the flight
was self-defense’’; State v. Luster, supra,279 Conn. 424;
and a defendant is not ‘‘entitled to use evidence of
retreat after using deadly force to bolster a claim of self-defense without permitting the jury to consider other
possible reasons for the flight.’’ (Emphasis in original.)
Id. The defendant’s claim, therefore, fails.14
II
The defendant next claims that the consciousness of
guilt instruction violated his constitutional right not
14
The defendant’s fourth claim is that the consciousness of guilt instruction was improper because it ‘‘impermissibly alleviated the state of its obligation to disprove the defendant’s claim of self-defense’’ and that this claimed
error misled the jury. We conclude that this claim is, in effect, a restatement
of his first claim, which we have rejected in part I of this opinion. Moreover,
to the extent that the defendant is asserting that consciousness of guilt
instructions are improper in that they inherently mislead the jury and are
prejudicial and unfair to a defendant, we disagree. ‘‘[T]he decision to give
a consciousness of guilt instruction is left to the sound discretion of the
trial court.’’ (Internal quotation marks omitted.) State v. McClain, 324 Conn.
802, 820,
155 A.3d 209 (2017). ‘‘[T]he propriety of an instruction regarding
consciousness of guilt based upon flight goes to the question of the defendant’s state of mind. In other words, when a defendant has left the [scene]
following a crime, the question is: why did he do so? This requires an
assessment by the fact finder of the defendant’s motivations or reasons for
leaving the [scene]. If there is a reasonable view of the evidence that would
support an inference that he did so because he was guilty of the crime and
wanted to evade apprehension—even for a short period of time—then the
trial court is within its discretion in giving such an instruction because the
fact finder would be warranted in drawing that inference.’’ (Emphasis in
original.) State v. Scott, 270 Conn. 92, 105–106,
851 A.2d 291 (2004), cert.
denied, 544 U.S. 987,
125 S. Ct. 1861,
161 L. Ed. 2d 746 (2005). As we already
have concluded, the trial court in the present case acted within its discretion
in giving the consciousness of guilt instruction to the jury, which was supported by a reasonable view of the evidence in the record. The defendant’s
fourth claim, therefore, fails.
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to testify by improperly burdening him to explain his
conduct. Specifically, the defendant references the portion of the court’s instruction stating that ‘‘[f]light, when
unexplained, may indicate consciousness of guilt if the
facts and the circumstances support it’’ and argues that
such language ‘‘suggests that, in the absence of an explanation, flight shows guilt.’’ As a preliminary matter, we
conclude that this claim was not preserved for appeal.
In his principal appellate brief, the defendant seeks
review of any unpreserved claims pursuant to State v.
Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989),
as modified by In re Yasiel R., 317 Conn. 773, 781,
120
A.3d 1188 (2015).15 We conclude that the defendant has
failed to demonstrate a violation of his constitutional
right not to testify as guaranteed by the fifth amendment
to the United States constitution.
The following additional facts are relevant to our
determination that this claim is not preserved for review
on appeal. When defense counsel objected during the
charge conference, he stated: ‘‘My objection to the
instruction of consciousness of guilt is that the instruction is inappropriate in this case where the defense is
justification, it’s a self-defense case, there’s an instruction of self-defense, to indicate that flight or any other
behavior . . . is evidence of consciousness of guilt I
think jumps over the issue of justification. It is, I think,
indicative of an act and it’s up to the jury to decide if
that act equates with guilt or not, so to say that by . . .
15
‘‘Under Golding, a defendant can prevail on an unpreserved claim only
if all of the following conditions are met: (1) the record is adequate to
review the alleged claim of error; (2) the claim is of constitutional magnitude
alleging the violation of a fundamental right; (3) the alleged constitutional
violation . . . exists and . . . deprived the defendant of a fair trial; and
(4) if subject to harmless error analysis, the state has failed to demonstrate
harmlessness of the alleged constitutional violation beyond a reasonable
doubt.’’ (Emphasis in original; internal quotation marks omitted.) State v.
Christopher R., 222 Conn. App. 763, 771,
306 A.3d 1117 (2023), cert. denied,
348 Conn. 946,
308 A.3d 34 (2024).
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State v. Carlson
fleeing it’s consciousness of guilt suggests it’s not self-defense. So, I think there’s an incongruity there with
the instruction and the law as it applies to a justification
defense . . . .’’ At no time did defense counsel object
on the ground that the instruction implicated the defendant’s fifth amendment right not to testify. Furthermore,
defense counsel did not take any exception after the
court finished its instructions.16
‘‘An appellate court shall not be bound to consider
error as to the giving of, or the failure to give, an instruction [to the jury] unless the matter is covered by a
written request to charge or exception has been taken
by the party appealing immediately after the charge
is delivered. Counsel taking the exception shall state
distinctly the matter objected to and the ground of
exception. The exception shall be taken out of the hearing of the jury.’’ Practice Book § 42-16; see also State
v. Silva, 113 Conn. App. 488, 494–95,
966 A.2d 798 (2009)
(‘‘It is well settled . . . that a party may preserve for
appeal a claim that an instruction, which was proper
to give, was nonetheless defective either by: (1) submitting a written request to charge covering the matter; or
(2) taking an exception to the charge as given. . . .
Moreover, the submission of a request to charge covering the matter at issue preserves a claim that the trial
court improperly failed to give an instruction on that
matter. . . . In each of these instances, the trial court
16
After the court finished instructing the jury, the court stated: ‘‘I am
going to excuse you while I go over my instructions with the attorneys on the
record. The attorneys may have some suggestions regarding modifications
in the instructions. If that’s the case, you will be brought back in, you’ll be
given a brief supplemental instruction. So, I’m going to ask you now that,
while I am discussing this with the attorneys, that you please remain in the
jury deliberation room . . . .’’ Once the jury left the courtroom, the court
asked the prosecutor and defense counsel if either of them had anything
else they would like to put on the record, at which time defense counsel
replied, ‘‘No, Your Honor.’’
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has been put on notice and afforded a timely opportunity to remedy the error. . . . It does not follow, however, that a request to charge addressed to the subject
matter generally, but which omits an instruction on
a specific component, preserves a claim that the trial
court’s instruction regarding that component was
defective.’’ (Emphasis in original; internal quotation
marks omitted.)).
‘‘Our rules of practice require a party, as a prerequisite to appellate review, to distinctly raise its claim
before the trial court.’’ (Emphasis added.) Samuel v.
Hartford, 154 Conn. App. 138, 145,
105 A.3d 333 (2014).
The purpose of this requirement is to ‘‘plainly put the
trial court on notice as to the specific basis for [the
defendant’s] objection . . . .’’ (Citations omitted.)
State v. Coleman, 304 Conn. 161, 174,
37 A.3d 713 (2012).
‘‘Under either method [of submitting a written request
to charge or taking an exception to the charge as given],
some degree of specificity is required, as a general
request to charge or exception will not preserve specific
claims. . . . Thus, a claim concerning an improperly
delivered jury instruction will not be preserved for
appellate review by a request to charge that does not
address the specific component at issue . . . or by an
exception that fails to articulate the basis relied upon
on appeal with specificity.’’ (Internal quotation marks
omitted.) State v. Wilson, supra,209 Conn. App. 797.
Our Supreme Court has ‘‘held that the specific grounds
for an objection raised at trial are relevant to the preservation of a claim on appeal. . . . Accordingly, [our
Supreme Court has] explained that, to afford petitioners
on appeal an opportunity to raise different theories of
objection would ‘amount to ambush of the trial court’
because, ‘[h]ad specific objections been made at trial,
the court would have had the opportunity to alter [the
charge]’ or otherwise respond.’’ (Citations omitted;
emphasis added.) State v. Johnson, 288 Conn. 236, 287–
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88, 951 A.2d 1257 (2008); see also State v. Ramon A.
G., 336 Conn. 386, 396,
246 A.3d 481 (2020) (‘‘On the
basis of the record presently before us, we simply cannot conclude that the trial court and the state were
given fair notice of the fact that the defendant took
issue with this particular aspect of its instructions on
assault. . . . [T]he essence of the preservation requirement is that fair notice be given to the trial court of
the party’s view of the governing law and of any disagreement that the party may have had with the charge
actually given . . . .’’ (Citations omitted; emphasis
altered; internal quotation marks omitted.)). In other
words, if the ‘‘theory of [the] objection has changed
[on appeal], we [must] conclude that the claim is not
reviewable.’’ State v. Johnson, supra, 288.
In the present case, although the defendant asserts
in his appellate brief that his ‘‘claim[s] [were preserved]
by objecting and presenting related arguments,’’17 the
record shows that, after the court summarized the
charge conference that had been held in chambers,
defense counsel objected to the court’s proposed consciousness of guilt instruction on the basis of a single
ground, that is, that the instruction is not appropriate
in a self-defense case because ‘‘to indicate that flight
or any other behavior . . . is evidence of consciousness of guilt . . . suggests it’s not self-defense.’’ The
court responded by stating that it had ‘‘carefully considered [our] Supreme Court’s language in [State v. Luster,
supra,279 Conn. 414], and [State v.
Grajales, supra,181
Conn. App. 440], which involved another justification
claim, that one being defense of others. In connection
with this specific claim being raised by the defendant
. . . this court’s instruction on consciousness of guilt
is consistent with language in Luster and Grajales in
17
We note that, although the defendant filed a written request to charge
on May 3, 2022, it did not include any request related to a consciousness
of guilt or innocence instruction.
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State v. Carlson
that it allows a permissive inference only. The court is
mindful of the cautions suggested by the Supreme Court
in Luster in a self-defense situation.’’ It is clear from
the court’s response that it considered the defendant’s
objection to be based on a claim, pursuant to Grajales
and Luster, that the instruction diluted the state’s burden on retreat, and not as an objection to the instruction
on the basis that it violated the defendant’s fifth amendment right to remain silent. There was no assertion by
defense counsel that the instruction would impugn in
any way the defendant’s decision not to testify or that
the defendant’s decision not to testify would have been
impacted by the instruction. See State v. Lee, 138 Conn.
App. 420, 453,
52 A.3d 736 (2012) (in rejecting defendant’s claim that he properly raised concern about jury
instruction on conspiracy, this court noted that defense
counsel expressed concern about definition of conspiracy but not about instruction on intent elements of
conspiracy charges), rev’d in part on other grounds, 325
Conn. 339,
157 A.3d 651 (2017). Moreover, the defendant
failed to take an exception ‘‘immediately after the
charge [was] delivered.’’ Practice Book § 42-16; see also
State v. Payne, 121 Conn. App. 308, 318,
996 A.2d 302
(defendant failed to distinctly raise claim of instructional error at trial when neither precharge objection
nor postcharge exception included ground for objection), cert. denied, 297 Conn. 919,
996 A.2d 1193 (2010);
State v. Silva, supra,113 Conn. App. 495 (‘‘The defendant . . . did not object to the specific contents of the
charge . . . . Following the charge, defense counsel
indicated that she had no objection concerning the
instruction. The discussion of an instruction prior to
the charge does not preserve all aspects of the issue
for review. . . . We must therefore conclude that the
defendant failed to preserve . . . [her claim regarding
the jury charge].’’ (Citation omitted; emphasis added.)).
Because the defendant’s claim on appeal in the present
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State v. Carlson
case is entirely distinct from the defendant’s objection
as stated on the record following the charge conference,
and because the defendant did not raise an exception
on this basis or any other basis immediately following
the charge, we conclude that the claim was not preserved.
Nevertheless, we review this unpreserved claim
under Golding18 because the record is adequate for
review and the claim raised is of constitutional magnitude. We conclude, however, that the defendant cannot
prevail on his unpreserved claim under Golding
because he has failed to demonstrate a violation of his
constitutional right not to testify. The defendant argues
that a consciousness of guilt instruction violates his
constitutional right not to testify by improperly burdening him to explain his conduct. Specifically, the
defendant references the portion of the court’s instruction stating that ‘‘[f]light, when unexplained, may indicate consciousness of guilt if the facts and the circumstances support it,’’ and argues that such language
‘‘suggests that, in the absence of an explanation, flight
shows guilt.’’
We begin with the relevant constitutional principles.
The fifth amendment to the United States constitution
protects a defendant’s right not to testify and prohibits
comments on a defendant’s silence. See Griffin v. California, 380 U.S. 609, 614 n.5,
85 S. Ct. 1229,
14 L. Ed.
2d 106 (1965); State v. A. M.,
324 Conn. 190, 200,
152
A.3d 49 (2016). In State v. Holloway,
209 Conn. 636,
650,
553 A.2d 166, cert. denied,
490 U.S. 1071,
109 S.
Ct. 2078,
104 L. Ed. 2d 643 (1989), our Supreme Court
18
The state has not raised a claim that the defendant waived his challenge
to the court’s consciousness of guilt instruction pursuant to State v. Kitchens,
299 Conn. 447, 482–83,
10 A.3d 942 (2011). See State v. Thompson,
305 Conn.
806, 814 and n.11,
48 A.3d 640 (2012) (reviewing unpreserved challenge to
jury charge pursuant to Golding where state did not claim that defendant
waived challenge under Kitchens).
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State v. Carlson
addressed the question of whether a consciousness of
guilt instruction improperly burdens a defendant’s right
not to testify.19 The defendant in Holloway argued that
‘‘the trial court’s instructions to the jury that flight,
if unexplained, tends to prove consciousness of guilt
violated’’ his right not to testify. Id. Our Supreme Court
was not persuaded, concluding that, although a defendant has a right not to testify and ‘‘to have the jury
instructed that [it] may not draw any unfavorable inference against him for exercising that right . . . [w]e
need not close our eyes to the fact that every person
accused of crime is under some pressure to testify, lest
the jury, despite carefully framed instructions, draw an
unfavorable inference from his silence. . . . The flight
instruction given by the trial court is consistent with
our case law. We have stated: Flight, when unexplained,
tends to prove a consciousness of guilt. . . . Flight is
a form of circumstantial evidence. Generally speaking,
all that is required is that the evidence have relevance,
and the fact that ambiguities or explanations may exist
which tend to rebut an inference of guilt does not render
evidence of flight inadmissible but simply constitutes
a factor for the jury’s consideration.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Id., 651–52.
In the present case, the defendant’s claim is virtually
identical to the one that failed in Holloway, and no
part of the court’s instruction contravened our Supreme
Court’s decision in Holloway. The court in the present
case unequivocally instructed the jury that it could draw
no unfavorable inferences from the defendant’s decision not to testify when it stated that, ‘‘in this case, the
19
In Holloway, the defendant ‘‘neither requested an instruction on the
subject of flight nor objected or excepted to the charge as given.’’ State v.
Holloway, supra,209 Conn. 650. Nevertheless, our Supreme Court reviewed
his unpreserved claim that the instruction on flight violated his right not to
testify pursuant to State v. Evans, 165 Conn. 61, 70,
327 A.2d 576 (1973),
the precursor of Golding review. State v. Holloway, supra, 650–52.
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defendant has not testified. An accused person has the
option to testify or not to testify at the trial. He is under
no obligation to testify. He has a constitutional right
not to testify. You must draw no unfavorable inferences
from the defendant’s choice not to testify.’’ The court
further instructed the jury that it could, if it chose, draw
inferences as to the defendant’s consciousness of guilt
based on his conduct, but it also emphasized that the
evidence, namely, the defendant’s flight from the scene
and the washing of his clothes, did ‘‘not raise a presumption of guilt. It is circumstantial evidence, and you may,
or may not, infer consciousness of guilt from it.’’ The
court also instructed the jury to consider the defendant’s actions as they relate to consciousness of guilt
only insofar as they ‘‘were influenced by the criminal
act and not by any other reasons . . . .’’ The jury was
thus instructed that, even if it did find that the defendant’s actions were influenced by the criminal act, it
could, but was not required to, infer consciousness of
guilt from those actions. We conclude that the defendant has failed to demonstrate that the court’s flight
instruction violated his constitutional right not to testify. His second claim, therefore, fails under the third
prong of Golding.
We further conclude that the defendant’s alternative
request that this court reverse his judgment of conviction under the plain error doctrine20 is inadequately
20
Practice Book § 60-5 provides in relevant part: ‘‘The court shall not be
bound to consider a claim unless it was distinctly raised at the trial or arose
subsequent to the trial. The court may in the interests of justice notice plain
error not brought to the attention of the trial court. . . .’’
‘‘[T]he plain error doctrine . . . is not . . . a rule of reviewability. It is
a rule of reversibility. That is, it is a doctrine that this court invokes in order
to rectify a trial court ruling that, although either not properly preserved
or never raised at all in the trial court, nonetheless requires reversal of the
trial court’s judgment . . . for reasons of policy.’’ (Internal quotation marks
omitted.) State v. Jamison, 320 Conn. 589, 596,
134 A.3d 560 (2016). ‘‘An
appellate court addressing a claim of plain error first must determine if the
error is indeed plain in the sense that it is patent [or] readily [discernible]
on the face of a factually adequate record, [and] also . . . obvious in the
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State v. Carlson
briefed and therefore decline to reach the merits of that
request as well. The defendant makes a perfunctory
argument that we should review his claim under the
plain error doctrine but has failed to provide any analysis as to why his claim of a fifth amendment violation
constitutes plain error. Our Supreme Court has
explained that ‘‘[p]lain error review is reserved for truly
extraordinary situations where the existence of the
error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.
. . . [W]e will not review an underlying claim for plain
error unless the request for relief under that doctrine
has been adequately briefed. . . . A party claiming
plain error must engage in a separate analysis under that
doctrine to demonstrate that plain error has occurred
under the circumstances of [the] case. . . . Indeed, a
mere conclusory assertion of plain error is insufficient
to allow this court to reach the merits of an unpreserved
claim under that doctrine.’’ (Citations omitted; internal
quotation marks omitted.) Schoonmaker v. Lawrence
Brunoli, Inc., 265 Conn. 210, 266 n.69,
828 A.2d 64
(2003); see also State v. Rodriguez, 337 Conn. 175, 189
sense of not debatable. . . . This determination clearly requires a review
of the plain error claim presented in light of the record. Although a complete
record and an obvious error are prerequisites for plain error review, they
are not, of themselves, sufficient for its application. . . . [T]he plain error
doctrine is reserved for 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. . . . [I]n 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 demonstrated that the failure
to grant relief will result in manifest injustice. . . . [Previously], we
described the two-pronged nature of the plain error doctrine: [An appellant]
cannot prevail under [the plain error doctrine] . . . 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 injustice.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.) State v. McClain,
324 Conn. 802, 812,
155 A.3d 209 (2017).
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State v. Carlson
n.12, 252 A.3d 811 (2020). The defendant’s contention
that his claim is reviewable under the plain error doctrine, without any distinct analysis of how the alleged
violation of his fifth amendment right not to testify
constitutes plain error, is inadequately briefed, and,
therefore, we decline to review it.
III
The defendant’s third claim is that the evidence presented at trial did not warrant the court’s instructions
to the jury on consciousness of guilt. Specifically, the
defendant argues that, in the present case, in which
he did ‘‘not dispute his involvement in the crime and
cooperate[d] with law enforcement, it makes no sense
to give an instruction that implies his flight points to
his efforts to thwart the police investigation.’’ The
defendant further argues that there was insufficient
evidence as to ‘‘who washed [his] clothing or why’’ to
warrant a consciousness of guilt instruction. We disagree.
‘‘We review a trial court’s decision to give a consciousness of guilt instruction under an abuse of discretion standard.’’ (Internal quotation marks omitted.)
State v. Grajales, supra,181 Conn. App. 448. ‘‘[Consciousness of guilt] is relevant to show the conduct of
an accused, as well as any statement made by him
subsequent to an alleged criminal act, which may be
inferred to have been influenced by the criminal act.
. . . The state of mind which is characterized as guilty
consciousness or consciousness of guilt is strong evidence that the person is indeed guilty . . . and under
proper safeguards . . . is admissible evidence against
an accused. . . . Evidence that an accused has taken
some kind of evasive action to avoid detection for a
crime, such as flight, concealment of evidence, or a
false statement, is ordinarily the basis for a [jury] charge
on the inference of consciousness of guilt. . . .
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State v. Carlson
‘‘Undisputed evidence that a defendant acted because
of consciousness of guilt is not required before an
instruction is proper. Generally speaking, all that is
required is that the evidence have relevance, and the
fact that ambiguities or explanations may exist which
tend to rebut an inference of guilt does not render
evidence of flight inadmissible but simply constitutes
a factor for the jury’s consideration. . . . The fact that
the evidence might support an innocent explanation as
well as an inference of a consciousness of guilt does
not make an instruction on flight erroneous. . . .
Moreover, [t]he court [is] not required to enumerate
all the possible innocent explanations offered by the
defendant. . . . Once [relevant] evidence is admitted,
if it is sufficient for a jury to infer from it that the
defendant had a consciousness of guilt, it is proper for
the court to instruct the jury as to how it can use that
evidence. . . .
‘‘If there is a reasonable view of the evidence that
would support an inference that [the defendant has
taken some sort of evasive action to avoid detection
for a crime] because he was guilty of the crime and
wanted to evade apprehension—even for a short period
of time—then the trial court is within its discretion in
giving such an instruction . . . .’’ (Citations omitted;
internal quotation marks omitted.) State v. Marrero,
198 Conn. App. 90, 133–34,
234 A.3d 1 (2020), appeal
dismissed, 343 Conn. 468,
274 A.3d 865 (2022) (certification improvidently granted).
In the present case, the record demonstrates ample
support for a consciousness of guilt instruction. First, as
to flight, the jury viewed the surveillance video footage
from outside the bar and heard testimony that, after the
altercation in which the defendant stabbed the victim
multiple times and the victim was lying on the ground,
the defendant ran directly to his car and then exited
the parking lot at a rapid pace, driving over the curb.
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State v. Carlson
As this court has stated previously in addressing a
defendant’s flight from the scene of a crime as providing
support for a court’s instruction on consciousness of
guilt, ‘‘[n]o Connecticut appellate case . . . has held
that flight requires proof of more than departure from
the scene of the crime or a nefarious purpose for leaving. To the contrary, our case law addressing whether
there is sufficient evidence to support a consciousness
of guilt instruction on the basis of flight upholds the
proposition that the instruction is warranted even when
the evidence reveals little more than mere departure.’’
State v. Grajales, supra,181 Conn. App. 450; see also
State v. Adams, 36 Conn. App. 473, 481–82,
651 A.2d
747 (1994) (evidence that defendant got into his car
and left scene and police officer saw defendant rapidly
driving away was sufficient to support consciousness
of guilt instruction based on flight), appeal dismissed,
235 Conn. 473,
667 A.2d 796 (1995).
Behaviors other than flight that indicate that the
defendant sought ‘‘to avoid detection of a crime or
responsibility for a crime . . . are admissible as evidence reflecting a consciousness of guilt.’’ (Internal
quotation marks omitted.) State v. Pascal, 109 Conn.
App. 55, 72,
950 A.2d 566, cert. denied,
289 Conn. 917,
957 A.2d 880 (2008). For example, concealment of evidence or misstatements to law enforcement can also
be the basis for a consciousness of guilt instruction.
Id. As previously discussed in this opinion, the jury
heard evidence that, after the defendant drove away
from the crime scene, he then drove to his mother’s
house in Meriden and that he omitted this information
during his interview with the police. Instead, he told
the police that, after he left the bar, he went to his
girlfriend’s house in New Britain. The jury heard further
evidence that the clothes and shoes the defendant had
been wearing at the time of the stabbing were later
discovered at his mother’s house during the execution
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State v. Carlson
of the search warrant and that they appeared to have
been freshly washed, although bloodlike stains
remained on the interior heel area of one of his shoes.21
The standard for whether a consciousness of guilt
instruction is warranted is ‘‘whether there is a reasonable, and not a compelling, view of the evidence that
supports it.’’ State v. Grajales, supra,181 Conn. App.
455. The evidence was sufficient to support a finding
that, despite claiming that he fled due to fear of a continued threat from the victim, the defendant’s action of
hastily driving away from the bar after chasing the victim approximately ninety feet and cornering him by
the locked door to the bar and then stabbing him and
watching him fall to the ground, could be used by the
jury to determine that he was influenced by the criminal
act and permitted an inference that he was acting from
a guilty conscience. Likewise, the evidence also was
sufficient to support a finding that the defendant’s statement to the police that, when he left the bar, he went
to his girlfriend’s house in New Britain, and his failure
to inform the police that he first went to his mother’s
home in Meriden, was a misstatement made to conceal
the discovery of the clothing and shoes that he had
worn during the stabbing that were left at his mother’s
home and permitted the jury to infer that he misled the
police and attempted to conceal evidence because he
had a guilty conscience in relation to the stabbing.
Accordingly, on the basis of the evidence presented,
we conclude that the trial court did not abuse its discretion in instructing the jury on consciousness of guilt.
21
Although the defendant is correct that the record does not establish
who was responsible for the washing of the clothes, the fact that he was
not forthcoming with the police that he first drove to his mother’s home
and discarded his clothes and shoes at that location is what is relevant in
assessing the defendant’s consciousness of guilt. In other words, it is the
attempt to conceal evidence, not the specific act of washing the clothes,
that permits the jury to infer that the defendant’s actions constituted a guilty
conscience in relation to the stabbing.
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State v. Carlson
IV
Finally, the defendant requests that this court exercise its supervisory authority and adopt a rule prohibiting trial courts from providing consciousness of guilt
instructions to juries. The defendant argues that such
instructions are outdated and points to other jurisdictions that have abolished them.
We begin with the principles of law relating to the
exercise of our supervisory authority. Our Supreme
Court previously has stated that the use of supervisory
authority is appropriate in ‘‘ ‘exceptional circumstances’ ’’; In re Yasiel R., 317 Conn. 773, 791,
120 A.3d
1188 (2015); when the requesting party is ‘‘faced with
the loss of core fundamental rights . . . .’’ Id., 792.
Our Supreme Court previously considered an identical
request to abolish consciousness of guilt instructions
in State v. Coward, 292 Conn. 296,
972 A.2d 691 (2009).
In that case, an accomplice of the defendant testified
during the trial that ‘‘the defendant had asked him prior
to trial if [the accomplice] intended to testify against
the defendant, and [the defendant] also indicated to [the
accomplice] that he had written to [the accomplice’s]
mother asking her to tell [the accomplice] not to testify.’’
Id., 314. As a result of that testimony, the trial court
instructed the jury that the aforementioned ‘‘conduct
by the defendant may lead you to infer that [the defendant] was conscious of his guilt, and that his statements
and conduct were influenced by that consciousness. So
if you determine that the statements were made by [the
defendant], and that they tend to show a consciousness
of guilt . . . you may use that evidence, but you are
instructed that such conduct does not raise a presumption of guilt. It’s up to you, as judges of the facts, to
decide whether the statements or conduct of the defendant in fact reflects a consciousness of guilt, and consider that in your deliberations.’’ (Internal quotation
marks omitted.) Id.
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On appeal, our Supreme Court declined the defendant’s request to bar such instructions, concluding that,
‘‘[a]lthough [a]ppellate courts possess an inherent
supervisory authority over the administration of justice
. . . [that] authority . . . is not a form of free-floating
justice, untethered to legal principle. . . . Our supervisory powers are not a last bastion of hope for every
untenable appeal. They are an extraordinary remedy
to be invoked only when circumstances are such that
the issue at hand, while not rising to the level of a
constitutional violation, is nonetheless 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. . . . Constitutional, statutory and procedural limitations are generally adequate to protect the
rights of the defendant and the integrity of the judicial
system. Our supervisory powers are invoked only in
the rare circumstance where these traditional protections are inadequate to ensure the fair and just administration of the courts. . . . We repeatedly have refused
to exercise our supervisory authority to alter or to bar
similar consciousness of guilt instructions . . . . The
defendant has not presented us with a compelling reason to deviate from those conclusions and, accordingly,
we decline his invitation to exercise our supervisory
powers in the circumstances of the present case.’’ (Citations omitted; emphasis in original; internal quotation
marks omitted.) Id., 315–16.
‘‘[I]t is manifest to our hierarchical judicial system
that [our Supreme Court] has the final say on matters
of Connecticut law and that the Appellate Court and
Superior Court are bound by [that] precedent.’’ Stuart
v. Stuart, 297 Conn. 26, 45–46,
996 A.2d 259 (2010).
Because our Supreme Court already has declined an
identical request to exercise its supervisory authority
to prohibit consciousness of guilt instructions, and the
defendant has presented no authority that allows us to
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State v. Carlson
deviate from that precedent, we also decline to do so
in the present case.
The judgment is affirmed.
In this opinion the other judges concurred.
