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STATE OF CONNECTICUT v.
JAYVELL WASHINGTON
(SC 20495)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
Convicted of the crimes of intentional manslaughter in the first degree with
a firearm, criminal possession of a pistol or revolver, and carrying a
pistol or revolver without a permit in connection with the shooting
death of the victim, the defendant appealed. The defendant had parked
his car in front of a gas station. The victim parked his car near the gas
station and then walked along the adjacent sidewalk directly toward
the defendant’s car. When the victim reached the defendant’s car, he
attempted to see through the car’s tinted windows. The driver’s side
door then opened, and both the defendant and the victim exchanged
gunfire. One of the defendant’s several shots at the victim proved to be
fatal. At trial, defense counsel claimed that the defendant had killed the
victim in self-defense. During the trial, the trial court heard arguments
from both parties, outside of the jury’s presence, regarding the admissibility of two recorded phone calls that the defendant had made to his
sister, L, from a holding cell on the morning after he was arrested. The
recordings captured conversations between the defendant, L, and two
male acquaintances, and certain portions arguably constituted adoptive
admissions that the defendant was parked in the car from which the
fatal gunshot was fired. The trial court ultimately determined that the
recordings were admissible. The jury returned its verdict in the early
afternoon on March 12, 2020. On that same date, at an unspecified time,
the chief court administrator of the Judicial Branch, in response to the
emerging COVID-19 pandemic, issued an order, providing that, with the
exception of jury trials currently in progress and certain criminal trials,
‘‘all jury trials, civil and criminal, are suspended for the next [thirty]
days.’’ At the defendant’s sentencing in August, 2020, the trial court
heard arguments on the defendant’s motion for a new trial, in which
he argued that a new trial was warranted in view of the prejudicial
impact that the pandemic had on jury deliberations. The defendant
specifically argued that the chief court administrator’s order in response
to the pandemic pressured the jurors to deliberate in a hurried fashion,
effectively abridging his constitutional right to a fair and impartial jury.
The trial court ultimately denied the defendant’s new trial motion. On
appeal from the judgment of conviction, held:
1. The record was inadequate to review the defendant’s unpreserved claim
that the trial court improperly admitted into evidence the recordings of
the phone calls that the defendant had made to L from his holding cell
after his arrest on the ground that the recordings contained evidence
of the defendant’s postarrest silence, in violation of Doyle v. Ohio (426
U.S. 610):
The successful assertion of a Doyle violation requires that the record
contain certain factual predicates, including an indication that the defendant’s postarrest silence was preceded by the receipt of warnings in
accordance with Miranda v. Arizona (
384 U.S. 436), there was nothing
in the record to confirm that the defendant did receive Miranda warnings
prior to the contested phone conversations, and, accordingly, the record
was devoid of a predicate necessary to assert a Doyle violation.
2. The trial court improperly instructed the jury on combat by agreement,
a statutory (§ 53a-19 (c) (3)) exception to self-defense, as there was
insufficient evidence presented at trial to warrant such an instruction,
but the error was harmless beyond a reasonable doubt:
This court’s review of the record revealed no evidence presented at trial
that would have allowed the jury to reasonably infer that the defendant
and the victim had engaged in combat by agreement, and, although the
state presented evidence to support its theory that the defendant and the
victim had a bad relationship, the existence of ill will between persons,
without more, is insufficient to warrant a combat by agreement instruction.
Moreover, the evidence presented at trial did not provide support for
even an implied agreement to engage in combat, as the record was devoid
of any indication that the victim or the defendant had been embroiled
in an ongoing controversy prior to the shooting, and it was unclear from
the record whether the defendant even knew that the victim was living
in Connecticut at the time of the incident.
Nevertheless, the trial court’s improper instruction on combat by agreement reasonably could not be said to have misled the jury, as the jury’s
verdict depended on a determination of whether it was the defendant
or the victim who pulled out his weapon and fired first, and, because the
verdict could be fairly read to indicate a choice between two inconsistent
versions of the shooting, namely, acceptance of the state’s version of
the shooting and rejection of the defendant’s claim of self-defense, the
principal factual issues to be decided by the jury were not dependent
on the subtleties of the law of self-defense for their proof.
3. This court either declined to review or rejected the defendant’s claims
that the prosecutor had committed certain improprieties during portions
of his closing argument, in violation of the defendant’s due process right
to a fair trial:
The record was inadequate to review the defendant’s claim that the
prosecutor’s reference, during closing argument, to the defendant’s
phone calls to L was improper on the ground that it drew attention to
the defendant’s post-Miranda silence, in violation of Doyle, this court
having previously concluded that there was nothing in the record to
indicate that the defendant had received Miranda warnings prior to his
placing of those phone calls.
There was no merit to the defendant’s claim that the prosecutor improperly had commented on facts not in evidence when, during closing argument, he stated that ‘‘the defendant had his gun out when he opened
[the] car door,’’ and that, ‘‘[i]f you go . . . frame by frame, you’ll see
that,’’ as these comments constituted a reasonable inference based on
the evidence presented at the trial.
The prosecutor’s comments, made during closing argument and in connection with his explanation of the combat by agreement exception to
self-defense, that ‘‘[the victim] appear[ed] to be a man walking [toward
the defendant’s car] with a purpose,’’ that the defendant and the victim
decided, ‘‘[t]oday was the day . . . that we end this,’’ and that ‘‘[w]e’re
going to do this right here, right now,’’ did not constitute prosecutorial
impropriety, as the trial court had concluded, albeit erroneously, that
the evidence warranted an instruction on combat by agreement, and the
prosecutor had the concomitant right to argue, and proceeded on the
reasonable assumption at that time, that combat by agreement between
the defendant and the victim was supported by the evidence.
4. This court declined to review the defendant’s claim that the trial court
improperly denied his motion for a new trial, which was based on his
claim that the COVID-19 pandemic had adversely affected the jurors’
deliberations by pressuring them to deliberate in a hurried fashion,
thereby depriving him of his right to a fair and impartial jury, as the
defendant failed to provide an adequate record for appellate review:
Although the jurors returned their verdict on the same day that the chief
court administrator issued the order suspending jury trials that were not
ongoing, the defendant presented no evidence that the order was issued
before the jurors returned their verdict or that the jurors were aware
of, or impacted by, that order, and there otherwise was no indication
that the jurors’ deliberations were impacted by the pandemic, generally,
or the suspension order, specifically.
Moreover, after the jurors returned their verdict, but before they were
discharged, the trial court explicitly asked the parties whether they would
like the court to ‘‘address the jury further,’’ and, at that point, if the
defendant or defense counsel believed that the jurors felt rushed to reach
a verdict in light of the pandemic, it was incumbent on counsel to timely
alert the trial court regarding that concern.
Argued April 28—officially released November 15, 2022
Procedural History
Two part substitute information charging the defendant, in the first part, with the crimes of murder, criminal possession of a pistol or revolver, and carrying a
pistol or revolver without a permit, and, in the second
part, with being a persistent felony offender, brought
to the Superior Court in the judicial district of Fairfield,
where the first part of the information was tried to the
jury before Hernandez, J.; verdict of guilty of the lesser
included offense of intentional manslaughter in the first
degree with a firearm, and of criminal possession of a
pistol or revolver and carrying a pistol or revolver without a permit; thereafter, the defendant was presented
to the court, Alexander, J., on a plea of nolo contendere
to the second part of the information; subsequently, the
court, Hernandez, J., rendered judgment of guilty in
accordance with the verdict and plea, from which the
defendant appealed. Affirmed.
Stephen A. Lebedevitch, for the appellant (defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Joseph T. Corradino,
state’s attorney, and Michael A. DeJoseph, supervisory
assistant state’s attorney, for the appellee (state).
Opinion
McDONALD, J. The defendant, Jayvell Washington,
appeals from the judgment of conviction, rendered after
a jury trial, of one count each of intentional manslaughter in the first degree with a firearm, criminal possession
of a pistol or revolver, and carrying a pistol or revolver
without a permit. On appeal, the defendant claims that
(1) the trial court erred when it in admitted into evidence recordings of phone calls that the defendant made
while incarcerated, thereby permitting the state to use
the defendant’s postarrest silence against him, (2) the
trial court erred when it instructed the jury regarding
adoptive admissions and combat by agreement, respectively, (3) the prosecutor committed improprieties during certain portions of his closing argument, and (4)
the trial court erred in denying the defendant’s motion
for a new trial, in light of fact that the COVID-19 pandemic impacted the jury’s deliberations.1 Although we
conclude that the majority of the defendant’s claims
are without merit, we agree with his contention that
the trial court improperly instructed the jury on combat
by agreement, as there was insufficient evidence presented at trial to warrant the instruction. We nevertheless conclude that the error was harmless and, accordingly, affirm the judgment of conviction.
The jury reasonably could have found the following
facts. In January, 2019, the defendant drove a blue Mini
Cooper to a Citgo gas station in Bridgeport. He parked
directly in front of the gas station, facing away from
the building and toward Reservoir Avenue. Video surveillance showed the defendant enter the gas station,
purchase some items, and return to the driver’s seat of
the Mini Cooper. No one other than the defendant
entered or exited the Mini Cooper while it was parked
at the gas station.
Shortly after the defendant returned to the vehicle,
the victim, Eugene Rogers, walked down Reservoir Avenue toward the gas station. The victim walked along
the sidewalk adjacent to the gas station and strode
directly toward the Mini Cooper. When he reached the
Mini Cooper, the victim stopped briefly and, from a few
feet away, attempted to see through the tinted windows
of the defendant’s car. The surveillance footage then
showed the driver’s side car door open. The victim drew
a gun from the waistband of his pants, and both the
defendant and the victim fired shots toward each other.
The victim fired one shot toward the defendant. The
defendant fired four shots at the victim, one of which
proved to be fatal. After the shots were fired, the defendant closed the door of the Mini Cooper and drove
away. He was later apprehended by law enforcement
in Bridgeport.
The defendant was charged with one count each of
murder, criminal possession of a pistol or revolver, and
carrying a pistol or revolver without a permit.2 At trial,
defense counsel advanced two theories of defense.
First, he argued that the defendant was not the shooter;
although defense counsel conceded that the defendant
was present at the Citgo gas station, in the Mini Cooper,
at the time of the shooting, defense counsel argued that
the state had failed to adduce sufficient evidence at
trial to prove the defendant’s identity as the shooter
beyond a reasonable doubt. Alternatively, defense counsel claimed that the defendant killed the victim in self-defense. The defendant was found guilty of the lesser
included offense of intentional manslaughter in the first
degree with a firearm, and of criminal possession of a
pistol or revolver and carrying a pistol or revolver without a permit. The trial court sentenced the defendant to
a total effective sentence of forty years of incarceration.
This appeal followed. Additional facts will be set forth
as necessary.
I
We first consider the defendant’s claim that the trial
court improperly admitted into evidence recordings of
phone calls that the defendant made to his sister, Lorvita Washington, from the holding area of the Bridgeport Police Department after his arrest, thereby permitting the state to use his postarrest silence during those
calls against him, in violation of Doyle v. Ohio, 426 U.S.
610,
96 S. Ct. 2240,
49 L. Ed. 2d 91 (1976).
The following additional facts are relevant to our
analysis. On the third day of trial, outside the presence
of the jury, the trial court heard arguments from both
parties regarding the admissibility of two recorded
phone calls that the defendant made to Lorvita from a
holding cell at the Bridgeport Police Department on the
morning after he had been arrested and booked. The
recordings of the phone calls captured conversations
between the defendant, Lorvita, and two male acquaintances. In the first call, Lorvita and one of the male
acquaintances informed the defendant that they were
watching video footage of the shooting as they were
speaking with him. Lorvita asked the defendant, ‘‘that
you in the car?’’ The defendant did not respond but
subsequently stated, ‘‘yeah, right?’’ Lorvita then laughed.
During the second call, while Lorvita and one of the
male acquaintances described the footage aloud to the
defendant—mentioning that the victim approached the
Mini Cooper on foot and looked into the car to see if
the defendant was in the car, and that the victim then
‘‘saw [the defendant] had it’’ and tried to run away—the
defendant intermittently repeated ‘‘yeah’’ and ‘‘right’’
throughout their description. The defendant did not
otherwise comment on Lorvita’s or the male acquaintance’s characterization of the shooting.
Defense counsel made a number of evidentiary objections to the admissibility of the phone call recordings;
he argued that the contents of the recordings were
irrelevant, their admission would be more prejudicial
than probative, and they contained inadmissible hearsay. In response, the prosecutor argued that the contested phone call recordings were admissible because
certain portions of the calls, particularly those in which
the defendant failed to deny that he was in the car from
which shots were fired that killed the victim, constituted adoptive admissions. Furthermore, in response
to defense counsel’s claim that the statements were
more prejudicial than probative, the prosecutor argued:
‘‘I am hard-pressed . . . to think of something that is
more probative than something that places the defendant not only at the scene of the crime, but [also] in
the car from which the shots that killed [the victim]
were fired.’’
The trial court agreed with the state. The court first
found that the statements were relevant. The court also
concluded that the statements constituted adoptive
admissions because ‘‘[t]he defendant does not deny that
[it was he in the Mini Cooper parked in the Citgo gas
station parking lot]. Ordinarily, when people are confronted with damaging information either about their
criminal involvement or reputation, they . . . generally tend to deny it. The defendant . . . does not deny
it . . . .’’ Finally, the court found that the recordings
of the phone calls were ‘‘highly probative, not only of
identification, which has been squarely placed at issue
by the defense in this case, but . . . [they also illuminate] the question of who fired [the] gun.’’ Accordingly,
the court denied the defendant’s motion in limine to
preclude the recordings of the phone calls.
On appeal, the defendant abandons his evidentiary
objections to the admission of the recordings. Instead,
for the first time, he argues that, in admitting the
recordings, the trial court violated Doyle, insofar as it
allowed the defendant’s postarrest silence to be used
against him as an adoptive admission.3 The state argues
that the record is inadequate to review the purported
Doyle violation. Specifically, the state argues that the
record is devoid of certain factual predicates necessary
to permit review of the defendant’s Doyle claim, namely,
that (1) the defendant had received his Miranda warnings4 before he made the phone calls at issue, and (2)
any pauses in the conversation were triggered by an
affirmative invocation of the defendant’s right to remain
silent. We agree with the state.
Although defense counsel objected to the admission
of the recordings at trial, the bases of his objection
were evidentiary in nature. Counsel did not raise a Doyle
violation at trial, and, therefore, the defendant seeks
review of this claim 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).
Under Golding, ‘‘a defendant can prevail on a claim of
constitutional error not preserved at trial only if all
of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the
claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis in original; footnote
omitted.) State v.
Golding, supra, 239–40; see In re
Yasiel R., supra, 781 (modifying third prong of Golding).
It is well settled that it is the defendant’s responsibility
to provide a record that is adequate for appellate review.
See State v.
Golding, supra, 240.
In Doyle v.
Ohio, supra,426 U.S. 610, the United
States Supreme Court held that the impeachment of a
defendant through evidence of his silence following his
arrest and receipt of Miranda warnings violates due
process. See
id., 611, 619. In reaching its conclusion,
the court in Doyle v.
Ohio, supra, 617–19, reasoned,
first, that ‘‘silence in the wake of Miranda warnings is
insolubly ambiguous and consequently of little probative value,’’ and, ‘‘[s]econd . . . [although] it is true
that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance
is implicit to any person who receives the warnings.’’
(Internal quotation marks omitted.) State v. Bell,
283
Conn. 748, 765,
931 A.2d 198 (2007); accord State v.
Patrick M.,
344 Conn. 565, 582,
280 A.3d 461 (2022). In
a subsequent case, the United States Supreme Court
went on to explain that ‘‘[t]he point of the Doyle holding
is that it is fundamentally unfair to promise an arrested
person that his silence will not be used against him and
thereafter to breach that promise by using the silence to
impeach his trial testimony.’’ Wainwright v. Greenfield,
474 U.S. 284, 292,
106 S. Ct. 634,
88 L. Ed. 2d 623 (1986).
Although Doyle explicitly prohibits impeachment of
a defendant with evidence of his post-Miranda silence,
this court has extended the Doyle rationale to conclude
that due process is also violated when the state uses
evidence of a defendant’s post-Miranda silence ‘‘as
affirmative proof at trial . . . .’’ (Emphasis added.)
State v. Plourde,
208 Conn. 455, 468,
545 A.2d 1071
(1988), cert. denied,
488 U.S. 1034,
109 S. Ct. 847,
102
L. Ed. 2d 979 (1989); accord State v. Montgomery,
254
Conn. 694, 714,
759 A.2d 995 (2000). ‘‘With respect to
post-Miranda warning[s] . . . silence does not mean
only muteness; it includes the statement of a desire to
remain silent, as well as of a desire to remain silent until
an attorney has been consulted.’’ (Internal quotation
marks omitted.) State v. Berube,
256 Conn. 742, 751,
775 A.2d 966 (2001).
In order to successfully assert a Doyle violation, the
record must contain certain factual predicates, including an indication that the defendant’s silence was pre-
ceded by the receipt of Miranda warnings. See, e.g.,
Wainwright v.
Greenfield, supra,474 U.S. 292 (‘‘[t]he
point of the Doyle holding is that it is fundamentally
unfair to promise an arrested person that his silence
will not be used against him and thereafter to breach
that promise by using the silence to impeach his trial
testimony’’). This is because the ‘‘use at trial of silence
prior to the receipt of Miranda warnings does not
violate due process.’’ (Emphasis in original.) State v.
Plourde, supra,208 Conn. 466. Indeed, in Fletcher v.
Weir,
455 U.S. 603, 607,
102 S. Ct. 1309,
71 L. Ed. 2d
490 (1982), ‘‘the United States Supreme Court held that
the absence of any indication in the record that the
silence of a defendant had been preceded by a Miranda
warning render[s] Doyle inapplicable . . . .’’ State v.
Leecan,
198 Conn. 517, 524–25,
504 A.2d 480, cert.
denied,
476 U.S. 1184,
106 S. Ct. 2922,
91 L. Ed. 2d 550
(1986); see also, e.g., State v.
Berube, supra, 256 Conn.
751–52 (when record was not clear as to whether defendant’s conversations with police transpired after or
before his arrest or receipt of Miranda warnings, this
court would not infer that defendant received Miranda
warnings prior to those conversations simply by virtue
of fact that he was in custody when he called his attorney); State v.
Leecan, supra, 531 (record did not indicate
that defendant ever received Miranda warnings, which
is necessary predicate for reliance on Doyle).
The defendant, in this case, contends that, when he
made the phone calls at issue, he ‘‘was in [police] custody . . . and had received his Miranda warnings
. . . .’’ There is nothing in the record, however, that
confirms that the defendant did, in fact, receive
Miranda warnings prior to the contested phone conversations.5 In State v.
Leecan, supra,198 Conn. 517, we
declined the defendant’s request to ‘‘take judicial notice
of the probability that at some point between his arrest
and his trial he would have been advised of his constitutional right to remain silent and told that his silence
could not be used against him.’’
Id., 531. Similarly, here,
in the absence of a record demonstrating the same, we
decline to infer that the defendant received Miranda
warnings prior to the time he made the phone calls at
issue. See, e.g., State v. Brunetti,
279 Conn. 39, 63,
901
A.2d 1 (2006) (‘‘[I]t is incumbent [on] the [defendant]
to take the necessary steps to sustain [his] burden of
providing an adequate record for appellate review. . . .
Our role is not to guess at possibilities . . . but to
review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court
. . . any decision made by us respecting [the defendant’s claims] would be entirely speculative.’’ (Internal
quotation marks omitted.)), cert. denied,
549 U.S. 1212,
127 S. Ct. 1328,
167 L. Ed. 2d 85 (2007).
Accordingly, because the record is devoid of a predicate necessary to assert a Doyle violation, we conclude
that the record is inadequate to review this unpreserved claim.
II
We turn next to the defendant’s claim of instructional
error. The defendant claims, among other things, that
the trial court erred in giving an instruction on combat
by agreement, as there was insufficient evidence adduced
at trial to support such a charge.6 Although we agree
with the defendant that the trial court erred when it
gave an instruction on combat by agreement, we conclude that its error was harmless beyond a reasonable doubt.
The following additional facts are relevant to our
analysis. During the charge conference, defense counsel
raised an exception to the trial court’s proposed instruction on illegal combat by agreement, arguing that there
was ‘‘no evidence in the record from which the jury
[could] draw such an inference.’’ The prosecutor disagreed, arguing that there was ‘‘ample . . . evidence
[from which] the jury [could] make that finding.’’ Specifically, the prosecutor contended that there was ‘‘testimony about a bad relationship between the defendant
and [the victim].’’
In discussing the matter, the trial court referenced
the testimony of Reimonund Figueroa, a friend of the
victim, who testified that he was with the victim the
morning before the shooting. Figueroa testified that the
victim drove him past the Citgo gas station, in a Volvo,
and that Figueroa saw the defendant’s Mini Cooper
parked at the gas station. The trial court inquired: ‘‘If
the jury were to believe . . . Figueroa that . . . [the
victim] drove through . . . the gas station, [the defendant] remained at the gas station, and then [the victim]
came back, and they exchanged gunfire, couldn’t . . .
somebody from that infer that they were sort of waiting
for each other, sort of a shoot-out at the O.K. Corral
situation?’’ Defense counsel conceded that, if the jury
accepted those facts, ‘‘that could be an inference
drawn.’’ The prosecutor went on to add: ‘‘[I]f [the jury]
could accept that [the victim] was driving [the] Volvo—
you have the Volvo come into the gas station, stop in
front of the blue Mini Cooper . . . leave [the gas station], and then [the victim] come back on foot. . . .
And then you have [the victim] walking with . . . a
purpose, [based] on that [surveillance footage], down
to the [Mini Cooper], doesn’t stop at the door to the
store, and [the jury] watches, in real time, [as] the car
door opens, and the shots go back and forth. So, I think,
based [on] the evidence [before] the jury . . . there’s
ample evidence to support a finding of combat by agreement . . . .’’ Defense counsel countered that ‘‘there
was no evidence put forward that [the defendant] had
any knowledge of the car that [the victim] might’ve
been driving, [and] there was no evidence put forth that
established that [the defendant] even knew that [the
victim] was in the state of Connecticut . . . .’’ Accordingly, defense counsel stood by the exception.
The next day, the trial court instructed the jury on
combat by agreement. Its charge provided in relevant
part: ‘‘The statute defining self-defense describes certain circumstances in which a person is not justified in
using any degree of physical force in self-defense
against another. One such circumstance is that a person
is not justified in using any degree of physical force
[on] another person in self-defense . . . when the
physical force is the product of an illegal combat by
agreement. Under this provision, it is not necessary that
there be a formal agreement. [An illegal combat by
agreement] may be inferred from the conduct of the
parties. To infer such an agreement, you must look at
all the circumstances leading up to and preceding the
event in question, as well as all of the other circumstances surrounding this event, itself, based on the
entire evidence and your own credibility assessments.
It is important to remember that the defendant has no
burden whatsoever to prove that his use of physical
force was not the product of a combat by agreement.
To the contrary, you may only reject his defense [of self-defense] on the basis of this statutory disqualification
if you find that the state has proved beyond a reasonable
doubt [that] the defendant and [the victim] had engaged
in combat by agreement.’’
On appeal, the defendant argues that the trial court
erred in instructing the jury on combat by agreement
because there was insufficient evidence adduced at trial
to warrant such a charge. The state disagrees, contending that there was sufficient evidence at trial to
permit ‘‘the jury to infer that the defendant and the
victim knew of each other’s presence at the Citgo [gas
station] and tacitly agreed to a shoot-out.’’ Alternatively,
the state argues, even if the trial court erred by
instructing the jury on combat by agreement, any error
was harmless.
The standard of review and relevant legal principles
are not in dispute. ‘‘A challenge to the validity of jury
instructions presents a question of law over which [we
have] plenary review.’’ (Internal quotation marks omitted.) State v. Collins, 299 Conn. 567, 599,
10 A.3d 1005,
cert. denied,
565 U.S. 908,
132 S. Ct. 314,
181 L. Ed. 2d
193 (2011).
‘‘An improper instruction on a defense, like an
improper instruction on an element of an offense, is of
constitutional dimension. . . . [T]he standard of
review to be applied to the defendant’s constitutional
claim is whether it is reasonably possible that the jury
was misled. . . . In determining whether the jury was
misled, [i]t is well established that [a] charge to the
jury is not to be critically dissected for the purpose of
discovering possible inaccuracies of statement, but it
is to be considered rather as to its probable effect [on]
the jury in guiding [it] to a correct verdict in the case.
. . . The test to be applied to any part of a charge is
whether the charge, considered as a whole, presents
the case to the jury so that no injustice will result.’’
(Internal quotation marks omitted.) State v. Amado,
254 Conn. 184, 194,
756 A.2d 274 (2000).
The instruction at issue in this case, combat by agreement, ‘‘is an exception that operates as a statutory disqualification from the justification defense of self-defense. A jury instruction regarding the combat by
agreement exception to self-defense is warranted when
the evidence is sufficient to support a reasonable inference that such a mutual combat occurred. . . . The
agreement required by . . . [General Statutes] § 53a-
19 (c) (3) need not be formal or express.’’ (Citation
omitted; internal quotation marks omitted.) State v.
O’Bryan,
318 Conn. 621, 637,
123 A.3d 398 (2015). ‘‘Such
an agreement may be tacit and inferred from the facts
and circumstances of the case.’’ Id.; see also, e.g., State
v. Montanez,
277 Conn. 735, 747–48,
894 A.2d 928 (2006)
(combat by agreement instruction was proper, despite
absence of direct evidence of agreement to fight, when
defendant’s friend urged victim to fight with defendant,
and that victim subsequently returned with his brother,
who offered to fight defendant’s friend ‘‘ ‘man-to-man’ ’’).
In analyzing this claim, we are mindful that ‘‘[t]he
[trial] court . . . has a duty not to submit to the jury,
in its charge, any issue [on] which the evidence would
not reasonably support a finding.’’ (Internal quotation
marks omitted.) State v. Beltran,
246 Conn. 268, 274,
717 A.2d 168 (1998). Accordingly, we review the entirety
of the evidence adduced at trial in order to determine
whether there had been a sufficient basis from which
the jury reasonably could have concluded that the
defendant and the victim had engaged in an illegal combat by agreement. See, e.g., State v. Whitford,
260 Conn.
610, 625,
799 A.2d 1034 (2002).
Our review of the record reveals that no evidence
presented at trial would have allowed the jury to reasonably infer that the defendant and the victim had engaged
in combat by agreement. The majority of the defense’s
evidence concerning the shooting centered on the theory that the defendant was not the shooter and was,
therefore, irrelevant to the justification of self-defense.
The only evidence presented to support the defendant’s
alternative theory of self-defense was the surveillance
footage, which, according to the defense, showed the
victim pulling out a gun first and pointing it toward
the Mini Cooper. Given the evidence presented by the
defense, the jury reasonably could not have determined
that the defendant and the victim had engaged in a
combat by agreement.
The state’s evidence, likewise, did not offer sufficient
support for the combat by agreement instruction.
Although the state presented evidence to support its
theory that there existed ‘‘bad blood’’ between the
defendant and the victim, the existence of ill will
between persons, without more, is insufficient to warrant a combat by agreement instruction. But cf. State
v. Silveira,
198 Conn. 454, 471,
503 A.2d 599 (1986)
(combat by agreement instruction was proper when,
among several other factors that would indicate implicit
agreement to combat—including testimony indicating
that altercation embroiled in front of bar between defendant’s group and bar patron, and, following altercation,
bar patron returned with friends who ‘‘converge[d] on
the defendant’s group, with the resulting acceleration of
hostilities’’—there existed history of violence between
defendant’s group and bar patron’s group).
The state nevertheless contends that its video and
testimonial evidence, along with additional footage presented by the defense—which established that, two
minutes after the defendant first arrived at the Citgo
gas station, the victim drove by in a blue Volvo while
the defendant was sitting in his parked Mini Cooper,
facing the road—combined with evidence of the victim’s swift walk toward the gas station and deliberate
stride toward the defendant’s car, somehow indicates
that the defendant and the victim ‘‘knew of each other’s
presence and implicitly agreed to illegal mutual combat
by gunfire.’’ We disagree.
Although our case law provides that an illegal combat
by agreement need not be express and ‘‘may be tacit
and inferred from the facts and circumstances of the
case’’; State v. O’Bryan, supra,
318 Conn. 637; the evidence presented at trial does not provide support for
even an implied agreement to combat in this case. The
record is devoid of any indication that the victim or the
defendant had been embroiled in an ongoing controversy prior to the shooting, a scenario which, in prior
cases, has led our appellate courts to conclude that
there was sufficient evidence to support a combat by
agreement instruction. See, e.g., State v.
Montanez,
supra, 277 Conn. 747–48; State v.
Silveira, supra,198
Conn. 471; State v. Morales,
172 Conn. App. 329, 344–45,
160 A.3d 383, cert. denied,
327 Conn. 988,
175 A.3d 1244
(2017); State v. Johnson,
53 Conn. App. 476, 481–82,
733 A.2d 852, cert. denied,
249 Conn. 929,
733 A.2d 849
(1999). In fact, it is even unclear whether the defendant
had knowledge of the fact that the victim was living in
Connecticut at the time of the incident, as the victim
had returned only months before the shooting, after
residing out of state for approximately eight years.
Accordingly, because our review of the record fails to
identify any evidence from which the jury reasonably
could find the existence of a combat by agreement, we
conclude that the trial court’s instruction was improper.
Having concluded that the trial court’s instruction on
illegal combat by agreement was improper, we turn to
the question of harmlessness. Our analysis of this issue
is largely controlled by our decision in State v. Quintana,
209 Conn. 34,
547 A.2d 534 (1988). In Quintana, we
concluded that the trial court’s instruction on self-defense, which misstated the law governing the duty
to retreat, was erroneous but nevertheless harmless.
See
id., 46. In conducting our harmlessness analysis,
we concluded that ‘‘the evidence presented to the jury
[could] fairly be said to center on the credibility of
[the defendant’s former girlfriend’s] . . . version of the
stabbing, measured against the credibility of [the testimony of a state’s witness] that an attempted robbery
was the motivating force behind the stabbing. The jury’s
verdict [could] fairly be read to indicate a choice
between these two inconsistent versions of the stabbing, a choice that accepted the version presented by
[the state’s witness] . . . and rejected the self-defense
version presented by [the defendant’s former girlfriend].’’
Id., 47. We further noted that ‘‘[t]he principal
factual issues, therefore, were not classically dependent
[on the subtleties of the law of self-defense] for their
proof, as is true in cases [in which] the principal factual
issue is the . . . [defendant’s subjective knowledge of
the availability of safe escape]’’; (internal quotation
marks omitted)
id., 47–48; and, accordingly, we concluded that the trial court’s erroneous instruction on
self-defense did not constitute reversible error.
Id., 48;
see also, e.g., State v.
Whitford, supra, 260 Conn. 628–29
(although trial court’s instruction on duty to retreat was
erroneous, it was nevertheless harmless because jury’s
verdict could fairly be read as credibility determination
that rejected defendant’s self-defense version of stabbing and accepted version presented by state, namely,
that defendant attacked victim of his own volition). In
short, an instructional error may be harmless when a
jury’s verdict hinges on a credibility determination,
rather than on the subtleties of the law on which the
trial court erroneously instructed the jury.
In this case, the defendant, who did not testify at
trial, sought to establish his self-defense claim solely
through the surveillance camera footage that captured
the shooting, claiming that the footage showed that the
victim fired first. The state, too, looked to the surveillance footage to disprove the defendant’s theory of self-defense, arguing that it showed that the defendant was
the initial aggressor. This footage, coupled with the
phone call from the holding cell in which the defendant
adoptively admitted a male acquaintance’s comment
that ‘‘[the victim] backed up when he seen you had it,’’
the state argued, supported its theory that the defendant
did not act in self-defense. Because the surveillance
camera was positioned at such an angle that it was
impossible to see who drew his weapon first, and there
was no eyewitness testimony presented to corroborate
either party’s account, the jury was ultimately faced
with determining, based on its interpretation of the
surveillance footage and phone recordings, whether it
was the defendant or the victim who pulled out his
weapon and fired first. Because, similar to Quintana,
the jury’s verdict could be fairly read to indicate a choice
between two inconsistent versions of the shooting, a
choice that accepted the version presented by the state
and rejected the self-defense theory presented by the
defendant, ‘‘[t]he principal factual issues . . . were not
classically dependent [on the subtleties of the law of
self-defense] for their proof . . . .’’ (Internal quotation
marks omitted.) State v.
Quintana, supra, 209 Conn. 47–
48.
In light of the foregoing, we conclude that the trial
court’s improper instruction on combat by agreement
reasonably cannot be said to have misled the jury.
Accordingly, we conclude that the trial court’s error
was harmless beyond a reasonable doubt.
III
We next address the defendant’s claim that the prosecutor committed improprieties during certain portions
of his closing argument, thereby depriving the defendant of his due process right to a fair trial.7 We disagree.
The following additional facts are relevant to our
resolution of this claim. During closing argument, the
prosecutor briefly explained that the state could defeat
the defendant’s claim of self-defense by disproving any
one of the four components that make up the defense.8
The prosecutor went on to argue, first, that the evidence
did not support that ‘‘the defendant had an actual belief
that the use of physical force was imminent.’’ See footnote 8 of this opinion. The prosecutor, referencing the
surveillance footage, asked the jury to look at ‘‘the
frame by frame.’’ This footage, together with the phone
call from the holding cell at the Bridgeport Police
Department in which the defendant adoptively admitted
a male acquaintance’s observation that ‘‘[the victim]
backed up when he seen you had it,’’ the prosecutor
argued, supported an ‘‘inference . . . [that] the defendant already had a gun out when he started opening
the door of the Mini Cooper.’’ The prosecutor went on
to argue that the same evidence disproved the second
component of the self-defense claim, namely, that the
defendant had a ‘‘reasonable belief’’ that physical force
was imminent. See footnote 8 of this opinion. The prosecutor specifically said: ‘‘[T]he evidence supports a finding that the defendant had his gun out when he opened
[the] car door. If you go . . . frame by frame, you’ll
see that.’’
Later, the prosecutor explained the various statutory
disqualifiers that preclude a finding of self-defense. One
such disqualifier, he explained, was combat by agreement. The prosecutor claimed that the evidence presented at trial indicated that the shooting was the result
of combat by agreement. The prosecutor argued in relevant part: ‘‘You look at that video, and you see [the
victim] coming down Reservoir Avenue. [The victim]
appears to be a man walking with a purpose, and he
doesn’t stop at the door to go into the store; he makes
a beeline right for that Mini Cooper . . . . [The victim]
looks into that car and, before he can pull, the car door
starts opening, and the shots start flying. . . . So, a
reasonable inference . . . is that the defendant and
[the victim] decided: ‘[T]oday was the day . . . that we
end this . . . . [W]e’re going to do this right here, right
now.’ . . . [A]nd the shots start flying.’’
Defense counsel did not object to the prosecutor’s
statements during trial. The defendant now claims, however, that three statements made during closing argument violated his due process right to a fair trial, insofar
as the prosecutor, in two instances, referred to facts
not in evidence and, in a third instance, drew attention
to the defendant’s post-Miranda silence, in violation of
Doyle. For the same reasons that we conclude that the
record is inadequate to review the defendant’s Doyle
claim; see part I of this opinion; we conclude that the
defendant’s prosecutorial impropriety claim alleging a
Doyle violation is also unreviewable. Accordingly, we
confine our analysis to the two remaining contested
portions of the prosecutor’s closing argument. The
defendant specifically takes issue with the following
statements made by the prosecutor: (1) ‘‘[T]he defendant had his gun out when he opened [the] car door.
If you go . . . frame by frame, you’ll see that.’’ And (2)
‘‘[the victim] appears to be a man walking with a purpose . . . . [T]he defendant and [the victim] decided:
‘[T]oday was the day . . . that we end this . . . .
[W]e’re going to do this right here, right now.’ . . .
[A]nd the shots start flying.’’
We begin with the applicable standard of review and
guiding legal principles. It is well established that ‘‘a
claim of prosecutorial impropriety, even in the absence
of an objection, has constitutional implications and
requires a due process analysis under State v. Williams,
204 Conn. 523, 535–40,
529 A.2d 653 (1987). . . . In
analyzing claims of prosecutorial 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 process right to a fair trial.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Gould,
290 Conn. 70, 77,
961 A.2d 975 (2009).
‘‘[P]rosecutorial [impropriety] of a constitutional
magnitude can occur in the course of closing arguments. . . . In determining whether such [impropriety]
has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate
argument and fair comment cannot be determined precisely by rule and line, and something must be allowed
for the zeal of counsel in the heat of argument. . . .
Thus, as the state’s advocate, a prosecutor may argue
the state’s case forcefully, [provided the argument is]
fair and based [on] the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Moreover,
[i]t does not follow . . . that every use of rhetorical
language or device [by the prosecutor] is improper.
. . . The occasional use of rhetorical devices is simply
fair argument. . . . 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.)
Id., 78–
79.
We have thoroughly reviewed the record and conclude that the prosecutor neither improperly characterized the evidence nor assumed facts not in evidence
but, instead, permissibly commented on the evidence
presented at trial and the reasonable inferences that
may be drawn therefrom.
With regard to the first contested portion of closing
argument, before he commented that ‘‘the defendant
had his gun out when he opened [the] car door,’’ and
that, ‘‘[i]f you go . . . frame by frame, you’ll see that,’’
the prosecutor recounted the surveillance footage,
which was shown to the jury multiple times over the
course of the trial. The prosecutor also mentioned the
phone call between the defendant, Lorvita, and the male
acquaintances while the defendant was in the holding
cell at the Bridgeport Police Department, during which
one of the male acquaintances commented, ‘‘[the victim] backed up when he seen you had it.’’ The totality
of the evidence, the prosecutor argued, supported an
‘‘inference . . . [that] the defendant already had a gun
out when he started opening the door of the Mini Cooper.’’ (Emphasis added.) The prosecutor then went on
to reiterate that, if the jurors looked at the footage
frame by frame, they would see just that, namely, that
‘‘the defendant had his gun out when he opened [the] car
door.’’ Because we conclude that this was a reasonable
inference based on evidence presented at trial, we conclude that this comment was not improper. See, e.g.,
State v. Courtney G.,
339 Conn. 328, 353,
260 A.3d 1152
(2021) (‘‘[I]t is not improper for the prosecutor to comment [on] the evidence presented at trial and to argue
the inferences that the jurors might draw therefrom
. . . . We must give the [jurors] the credit of being able
to differentiate between argument on the evidence and
attempts to persuade them to draw inferences in the
state’s favor, on one hand, and improper unsworn testimony, with the suggestion of secret knowledge, on the
other hand.’’ (Internal quotation marks omitted.)).
Subsequently, when explaining the statutory disqualifier of combat by agreement, the prosecutor commented that ‘‘[the victim] appears to be a man walking
with a purpose . . . . [T]he defendant and [the victim]
decided: ‘[T]oday was the day . . . that we end this
. . . . [W]e’re going to do this right here, right now.’
. . . [A]nd the shots start flying.’’ On appeal, the defendant argues that ‘‘[t]he record is devoid of any evidence
that would support this argument.’’ We agree with the
defendant that there was insufficient evidence adduced
at trial to warrant an instruction on combat by agreement. See part II of this opinion. Nevertheless, we simultaneously recognize that, at the time the prosecutor
made his closing argument, he reasonably assumed—
based on the proposed jury instructions, the conversation between him, defense counsel, and the trial court
during the charge conference, and the final instructions
that were provided to him and defense counsel prior
to the court’s instructions to the jury—that the trial
court would give a combat by agreement instruction.
See, e.g., State v. Fauci,
282 Conn. 23, 45,
917 A.2d 978
(2007) (when reviewing claims of prosecutorial impropriety, appellate court does not scrutinize each comment made by prosecutor in vacuum, but, rather, court
must review comments complained of in context of
entire trial). The prosecutor, drawing on the facts in
the record, argued that the evidence permitted the jury
to infer that the shooting was the result of an illegal
combat by agreement. In making this argument, the
prosecutor did not—as the defendant contends—
assume facts not in evidence but, rather, ‘‘comment[ed]
[on] the evidence presented at trial and . . . argue[d]
the inferences that the jurors might draw therefrom
. . . .’’ (Internal quotation marks omitted.) State v. Stevenson,
269 Conn. 563, 583,
849 A.2d 626 (2004).
The prosecutor’s argument was further informed by
the discussion between the trial court, the prosecutor,
and defense counsel during the charge conference,
which occurred the day prior. During that conversation,
the trial court inquired: ‘‘If the jury were to believe . . .
Figueroa that . . . [the victim] drove through . . . the
[Citgo] gas station, [the defendant] remained at the gas
station, and then [the victim] came back, and they
exchanged gunfire, couldn’t . . . somebody from that
infer that they were sort of waiting for each other, sort
of a shoot-out at the O.K. Corral situation?’’ Defense
counsel conceded that, if the jury accepted those facts,
‘‘that could be an inference drawn.’’ Although defense
counsel ultimately objected to the combat by agreement
instruction, initially, during the charge conference, he
conceded that, if the jury were to find certain facts—
the very facts the prosecutor argued in the contested
portion of his closing argument—an inference could be
drawn to support the notion that the defendant and the
victim had engaged in an illegal combat by agreement.
Given the ‘‘generous latitude’’ afforded to counsel during closing argument; (internal quotation marks omitted) State v.
Gould, supra,290 Conn. 78; coupled with
the well settled notion that a prosecutor may make
comments on the evidence adduced at trial and reason-
able inferences that may be drawn therefrom; see, e.g.,
State v. Courtney G., supra,
339 Conn. 353; State v. Stevenson, supra,
269 Conn. 583; we conclude that these comments did not constitute prosecutorial impropriety.
Although we acknowledge that this conclusion, on
the surface, appears in tension with our conclusion, in
part II of this opinion, that the trial court improperly
instructed the jury on combat by agreement, we cannot
conclude that the prosecutor’s statements during closing argument amounted to impropriety. The defendant’s
prosecutorial impropriety claim must be addressed in
context, which, in this case, includes the trial court’s
conclusion that the evidence warranted the charge on
combat by agreement. Given that the trial court concluded that the charge was proper, the prosecutor
plainly had the concomitant right to argue that it was
supported by the evidence. Given that the prosecutor
was arguing based on evidence admitted at trial and
his reasonable assumption, at the time, that the evidence was sufficient to support the combat by agreement instruction, we conclude that the prosecutor’s
comments during closing argument were not improper.
IV
Finally, we turn to the defendant’s claim that the trial
court erred in denying his motion for a new trial, in
which he alleged that the COVID-19 pandemic had
adversely affected the jury’s deliberations, thereby
depriving him of his right to a fair and impartial jury.
The following additional facts are relevant to our
resolution of this claim. The jury began its deliberations
on March 10, 2020, and returned its verdict on March
12, 2020, at 12:10 p.m. Before discharging the jury from
service, the trial court asked whether either party would
like the court to ‘‘address the jury further . . . .’’ Both
the prosecutor and defense counsel responded in the
negative. Sentencing was scheduled for April 24, 2020.
The COVID-19 pandemic ultimately delayed the
defendant’s sentencing. In response to the global pandemic, on March 10, 2020, Governor Ned Lamont
declared public health and civil preparedness emergencies throughout the state. As a result of Governor
Lamont’s declaration, on March 12, 2020, at an unspecified time, Judge Patrick L. Carroll III, the chief court
administrator of the Judicial Branch, issued a statement
to all Judicial Branch employees, stating in relevant
part: ‘‘With the exception of jury trials currently in
progress and criminal jury trials necessitated by the
filing and granting of a speedy trial motion, all jury
trials, civil and criminal, are suspended for the next
[thirty] days.’’ (Emphasis added.) Judge Carroll further
stated that, beginning on March 16, 2020, the courts
would be ‘‘scheduling and hearing only those matters
identified as ‘Priority 1 Business Functions.’ ’’ A similar
message was posted on the Judicial Branch website at
an unspecified time that same day.
On March 19, 2020, Governor Lamont issued Executive Order No. 7G, which provided in relevant part that,
‘‘in consultation with the Chief Court Administrator on
behalf of the Chief Justice of the Supreme Court and
the Judicial Branch, I have determined that there exists
a compelling state interest that courts conduct only
essential business in order to minimize the spread of
COVID-19 . . . .’’ Executive Order No. 7G (March 19,
2020). Governor Lamont went on to suspend ‘‘[noncritical] [c]ourt [o]perations and [a]ssociated [r]equirements.’’
Id.
Ultimately, the defendant’s sentencing occurred on
August 21, 2020. On that date, the trial court heard
arguments on the defendant’s motion for a new trial,
filed on July 6, 2020, in which he argued that a new
trial was warranted based on the prejudicial impact of
the COVID-19 pandemic on jury deliberations. Specifically, the defendant contended that ‘‘orders imposed
by the Judicial Branch and the Executive Branch in
response to the rapidly spreading virus during the jury’s
deliberations in this matter undoubtedly pressured the
jury to deliberate in a hurried fashion,’’ effectively
abridging his constitutional right to a fair and impartial
jury. The state did not file a written objection to the
defendant’s motion. During argument, however, the
prosecutor objected to the motion on a number of
grounds: first, that it was untimely; second, that the
defendant or his counsel should have, but failed to,
raise this issue during jury deliberations; third, that the
jury returned its verdict on March 12, 2020, the very
day that new trials were suspended, and there was no
indication, from the record, that the jury knew of the
suspension order; and, fourth, that the suspension order
only applied to new jury trials and exempted those, like
the defendant’s, that were already in progress.
The trial court denied the defendant’s motion for a
new trial. The court determined that the motion was
untimely. With respect to the substance of the motion,
the court found that there was ‘‘no evidence before
the court that the jury’s deliberations were in any way
impacted by the [March 12, 2020] order suspending
trials. In fact, it’s not even clear from the motion for a
new trial . . . at what time on March 12, 2020, [Judge
Carroll] issued his order suspending trials. Also, a plainfaced reading of the order, in the court’s view, does
not create a substantive or procedural right for [the
defendant] to have his trial suspended. Finally, throughout the trial, the court reminded the [jurors] not to read
any press coverage or any press [that] would in any
way impact their abilities to deliberate. . . . [T]he
court assumes that the [jurors] followed the court’s
instructions on avoiding any sort of press coverage.
And, if they had in any way been affected by [Judge
Carroll’s] declaration, I’m confident that they would
have brought it to the court’s attention. And, also, obviously, [because] there is no evidence that [the jurors’]
deliberations were in any [way] affected by [Judge Carroll’s] order, the motion for a new trial is denied.’’
On appeal to this court, the defendant argues that
the trial court improperly denied his motion for a new
trial. First, the defendant contends that, although his
motion was not filed within five days of the verdict, as
required by Practice Book § 42-54, we should nevertheless conclude that his motion was timely in light of the
fact that many statutory time limitations were suspended due to the COVID-19 pandemic. With respect
to the substance of the motion, the defendant further
contends that the pandemic impacted the ability of
jurors to be impartial during their deliberations and
their ability to focus on the trial, thereby violating his
constitutional right to a fair and impartial jury. The
state disagrees, arguing that the trial court properly
denied the defendant’s motion as untimely. Beyond that,
the state claims that the remainder of the defendant’s
arguments regarding the impacts of the COVID-19 pandemic on the jurors’ deliberative processes are unreviewable because the record is inadequate for review.
Assuming, without deciding, that the defendant’s
motion for a new trial was timely filed,9 we agree with
the state regarding the substance of the motion and
conclude that the record is inadequate to review this
claim. The defendant argues that ‘‘it would be naive to
believe that the jurors were unaware of what was going
on with the COVID-19 pandemic.’’ Notwithstanding that
assertion, the defendant concedes that the ‘‘record is
devoid of any evidence’’ indicating that jurors were
unfocused, worried, or rushed during their deliberations. He contends that, in general, ‘‘[t]here is no telling
how the jury was impacted by the news that was ever
present during the early stages of 2020.’’ This is precisely
the problem with the defendant’s argument; the defendant’s contention that the jury felt rushed to reach a
verdict in light of the COVID-19 pandemic is unsupported by the record. There is no indication, on the
record, that the jury’s deliberations were impacted, in
any way, by the COVID-19 pandemic, generally, or Judge
Carroll’s March 12, 2020 suspension order, specifically.
The jury had arrived at its verdict on March 12, 2020,
at 12:10 p.m., and, in denying the defendant’s motion
for a new trial, the trial court explicitly noted that the
defendant had presented no evidence regarding what
time on that date the suspension order was issued,
much less that the jury was aware of, or impacted by,
that order. Moreover, after the jury returned its verdict,
but before the jurors were discharged, the trial court
explicitly asked the parties whether they would like the
court to ‘‘address the jury further . . . .’’ At that point,
if the defendant or his counsel believed that the jurors
felt rushed to reach a verdict in light of the COVID-
19 pandemic, it was incumbent on defense counsel to
timely alert the court regarding this concern. See State
v. Taylor G.,
315 Conn. 734, 769,
110 A.3d 338 (2015)
(explaining that preservation requirements ‘‘serve to
alert the trial court to potential error while there is still
time for the court to act’’ (internal quotation marks
omitted)).
Without a record demonstrating that the jurors were
aware of, and impacted by, the nascent stage of the
global pandemic, there is no way of telling whether—
or to what extent—their deliberations were impacted.
As we have explained, as an appellate court, ‘‘[o]ur role
is not to guess at possibilities, but to review claims
based on a complete factual record developed by the
trial court. . . . Without the necessary factual and legal
conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claim]
would be entirely speculative.’’ (Internal quotation marks
omitted.) In re Azareon Y.,
309 Conn. 626, 633,
72 A.3d
1074 (2013).
Accordingly, we conclude that the defendant’s final
claim of error is unreviewable, as he has not provided
an adequate record for appellate review. See Practice
Book § 61-10 (a) (it is appellant’s burden to provide
adequate record for review).
The judgment is affirmed.
In this opinion the other justices concurred.
1
With respect to his constitutional claims, the defendant argues that the
trial court violated his rights under both the state and federal constitutions.
However, ‘‘[b]ecause the defendant has not provided an independent state
constitutional analysis asserting the existence of greater protection under
the state constitution, we analyze his [constitutional] claim[s] under the
assumption that his constitutional rights are coextensive under the state
and federal constitutions.’’ State v. Lewis, 333 Conn. 543, 569 n.14,
217 A.3d
576 (2019).
2
The defendant also pleaded no contest to a part B information charging
him with being a persistent felony offender. This charge is not at issue in
this appeal.
3
At the outset, we note that the defendant was not entirely silent when
speaking with Lorvita and the two male acquaintances. Rather, during both
phone calls, the defendant voluntarily conversed with Lorvita and the men
and, as we discussed, occasionally responded to their observations that he
shot the victim. Specifically, as we described, the defendant typically gave
brief, affirmative responses to any such observations or questions.
4
Miranda v. Arizona, 384 U.S. 436, 478–79,
86 S. Ct. 1602,
16 L. Ed. 2d
694 (1966).
5
We do not suggest that the police acted improperly and failed to provide
the defendant his Miranda warnings when they were required to. Rather,
the fatal flaw in the defendant’s claim is that he raises an unpreserved claim
pursuant to Golding and, therefore, bears the burden of providing this court
with an adequate record for review. See State v. Golding, supra,213 Conn.
240. Although the defendant provides several record cites in his brief that
he claims establish he was given Miranda warnings prior to the phone calls,
these record cites establish no such thing. Our careful review of the entire
record does not reveal if or when the defendant received his Miranda warnings.
6
The defendant also claims that the trial court erred in giving an instruction
on adoptive admissions, insofar as the court informed the jury that it was
permitted to use the defendant’s silence against him, in violation of Doyle.
After reviewing the entire record, including comments made by defense
counsel in response to questions posed by the trial court during the charge
conference, we conclude that the defendant waived this claim of error.
7
In his brief, the defendant raised an additional claim of prosecutorial
impropriety, claiming that the prosecutor improperly had elicited opinion
evidence regarding identification of the defendant from Lorvita, who was
not an eyewitness to the crime, in violation of State v. Finan, 275 Conn.
60,
881 A.2d 187 (2005), overruled by State v. Gore,
342 Conn. 129,
269 A.3d
1 (2022). At oral argument, the defendant abandoned this claim, in light of
our recent decisions in State v. Gore, supra, 148–49, and State v. Bruny,
342 Conn. 169,
269 A.3d 38 (2022).
8
‘‘For an act of violence to be justified as self-defense, (1) the defendant
must actually have believed that the victim was using or was about to
use physical force against him, (2) a reasonable person, viewing all the
circumstances from the defendant’s point of view, would have shared that
belief, (3) the defendant must actually have believed that the degree of force
he used was necessary for defending himself or herself, and (4) a reasonable
person, viewing all the circumstances from the defendant’s point of view,
also would have shared that belief.’’ State v. Mekoshvili, 344 Conn. 673, 676
n.1,
280 A.3d 388 (2022).
9
Practice Book §§ 42-53 and 42-54 provide that, within five days of the
jury’s verdict, a defendant may move for a new trial. In light of the COVID-
19 pandemic, the Rules Committee of the Superior Court temporarily suspended this requirement. The amended provision, adopted on June 26, 2020,
provides in relevant part: ‘‘[This] rule pertains to requiring the motion to
be filed within five days after a verdict. By suspending the rule for those
cases affected by the current situation, the court would be allowed to extend
the timing as it deems appropriate.’’ (Emphasis added.) Practice Book
§ E42-54. Although the note accompanying the rule stated that it would
‘‘take effect retroactively March 24, 2020,’’ we are mindful that trial courts
may have been inclined to review otherwise untimely motions in light of the
evolving and uncertain circumstances surrounding the COVID-19 pandemic.
