Date: 12-14-2015

Case Style: State Of Connecticut v. Shelvonn Jones

Case Number: •SC19097, SC19098

Judge: Palmer

Court: Supreme Court of Connecticut

Plaintiff's Attorney: Mitchell S. Brody, Stephen J. Sedensky III, David Holzbach

Defendant's Attorney: James Streeto, Assistant Public Defender

Description: The state and the defendant, Shelvonn
Jones, appeal from the judgment of the Appellate Court,
which reversed the judgment of conviction, rendered
after a jury trial, of assault in the second degree in
violation of General Statutes § 53a-60 (a) (2). See State
v. Jones, 139 Conn. App. 469, 470, 487, 56 A.3d 724
(2012). The state claims that the Appellate Court
improperly concluded that the defendant was denied
his right to a fair trial due to certain alleged improprieties
that the senior assistant state’s attorney (prosecutor)
committed during his cross-examination of the
defendant and in closing argument. The defendant
claims that the Appellate Court incorrectly concluded
that the trial court properly had denied his motion to
suppress evidence of the knife that was used in the
commission of the assault. The defendant also raises a
claim that the Appellate Court did not address, namely,
that the trial court improperly instructed the jury on
the initial aggressor exception to self-defense. Because
we agree with the state’s claim and reject the defendant’s
claims, we reverse the judgment of the Appellate
Court and remand the case to that court with direction
to affirm the judgment of the trial court.
The following evidence was adduced by the state at
trial. On May 20, 2009, the fifty-three year old victim,
George Harris, who resided on New Street in the city
of Danbury with his sister and niece, arrived home
from work and saw the thirty-two year old defendant
standing in his driveway, arguing with Harris’ sister,
Mary Ann Harrison, and Larry Johnson, a private security
guard employed by Harrison. Johnson told the
defendant to leave the property, but the defendant
would not do so. Harris turned to his niece and asked
whether the defendant was the man she previously had
told to stay off their property, and she responded in
the affirmative. Harris then reiterated Johnson’s directive
that the defendant leave the property immediately.
As the defendant was leaving, he turned to Harris and
stated, ‘‘I’ll get you.’’
On June 9, 2009, at approximately 6 p.m., Harris was
walking home from work on Kennedy Avenue in Danbury
when the defendant approached him in front of
the bus station, displayed a knife,1 and said, ‘‘[w]hat’s
up, Old School?’’ Harris was frightened by the defendant’s
gesture and kept walking.
About one hour after arriving home, Harris decided
to go for a bike ride. While riding down Beaver Street
in Danbury, he saw a man walking toward him. As the
man got closer, Harris realized that it was the defendant.
Harris was still upset about their earlier encounter and
stopped his bicycle to ask the defendant, ‘‘what the
problem was.’’ As Harris approached him, however,
the defendant began swinging the knife at him ‘‘like a
wild man.’’
Harris tried to run away, but the defendant pursued
him and slashed his back. Harris jumped back on his
bicycle, but, instead of heading home, which would
have required Harris to pedal uphill with his back
exposed to the defendant, he rode the bicycle downhill
into the defendant, knocking him to the ground. He
then jumped off of the bicycle and was able to subdue
the defendant by pulling the defendant’s sweatshirt over
his arms and head. By this time, traffic in the street
had backed up, and a number of drivers were blowing
their horns and using their cell phones to call the police.
Harris, who never had previously been in any trouble
with the law, feared being arrested, so he released the
defendant and ran home.
Officers Michael Reo and David Williams of the Danbury
Police Department, who were the first officers to
arrive on the scene, found the defendant standing in the
roadway, visibly intoxicated. The defendant informed
them that he had been in the neighborhood looking
for some marijuana when a man approached him on a
bicycle and asked if he could change a $50 bill. The
defendant told the police that he handed the man two
$20 bills but then was unable to find any smaller bills,
so he asked the man to return the two $20 bills. The
man refused, and the two men tussled until they heard
the sound of police sirens, at which point the man ran
off with the defendant’s money. After relating his story,
the defendant asked the officers if they would drive
him home. Reo agreed to give the defendant a ride
because he considered the defendant to be the victim
of a crime and because the defendant was intoxicated.
Meanwhile, when Harris arrived home, he realized
that he had sustained serious cuts to his chest and back.
After consulting with his sister, Harris decided to call
the police. The responding officer summoned paramedics
to transport Harris to the hospital, where he received
eighteen stitches in his chest and several in his back.
The responding officer also broadcast the defendant’s
name over the police radio system, identifying him as
Harris’ assailant. When Reo heard the broadcast, he
returned to the defendant’s residence and placed him
under arrest.
Officer Matthew Georgoulis of the Danbury Police
Department assisted in arresting the defendant.
According to Georgoulis, before placing the defendant
into the back of his vehicle, Georgoulis performed a
routine pat down of the defendant for weapons but did
not have him empty his pockets. Later, while leading
the defendant into the police station, Georgoulis
noticed the defendant glance back at the vehicle, which
struck Georgoulis as suspicious. Georgoulis further
stated that he subsequently searched the backseat of his
vehicle and discovered a small plastic baggie containing
marijuana under the seat. Georgoulis testified that the
baggie had not been there when he inspected the vehicle
prior to his shift, and no one had ridden in the backseat
before the defendant had done so.
The defendant was charged with attempt to commit
assault in the first degree in violation of General Statutes
§§ 53a-59 (a) (1) and 53a-49 (a) (2), assault in the
second degree in violation of § 53a-60 (a) (2), and possession
of marijuana in violation of General Statutes
§ 21a-279 (c). At trial, the defendant testified in his
own defense and provided the following account of
his encounters with Harris. On the night in question,
approximately one hour before the altercation, the
defendant was standing on Spring Street in Danbury
when Harris approached him and asked if he had any
crack cocaine for sale. The defendant told Harris that
he was not a drug dealer and ‘‘to get the ‘F’ out of here,’’
which, according to the defendant, angered Harris. The
defendant testified that he had never laid eyes on Harris
before that moment but previously had ‘‘bumped heads’’
with members of Harris’ family and was acquainted
with Johnson, the private security guard who worked
for Harris’ sister. The defendant also testified that he
did not display a knife during his initial encounter
with Harris.
Approximately one hour later, the defendant was
walking up Beaver Street in an extremely intoxicated
state when he saw Harris coming toward him on a
bicycle. According to the defendant, Harris stopped and
commented about ‘‘the situation’’ between them earlier
that evening, to which the defendant replied, ‘‘I apologize
man, I want no problems . . . .’’ The defendant
testified that Harris then asked him if he had change
for a $50 bill because he needed it to buy some crack
cocaine. The defendant stated that he handed Harris
two $20 bills and, while searching his pockets for additional
change, saw Harris place the two $20 bills in his
pocket. A tussle ensued, and Harris threw his bicycle
at the defendant, which caused the defendant to fall to
the ground. When the defendant stood up, he pulled a
knife out of his pocket and told Harris, ‘‘listen, I don’t
want no problems, just leave me alone, you got the
money, go about your business.’’ The defendant stated
that it was never his intention to harm Harris with the
knife, only to scare him away, and that he had no idea
how Harris received the cuts to his chest and back. The
defendant surmised that Harris might have sustained
the wounds when the two men were scuffling on the
ground. According to the defendant, shortly after the
fight started, drivers began to blow their horns. When
the defendant turned to look at them, Harris rushed
toward him, knocked him to the ground and subdued
him by pulling his sweatshirt over his head. Throughout
the struggle, the defendant held tightly to the knife so
that Harris could not take it away and use it against
him, which he believed Harris was trying to do. The
defendant denied ever telling the police that he was in
the area to buy marijuana. The defendant also denied
ever being on Kennedy Avenue or anywhere near the
bus station on the evening in question, as Harris had testified.
After the defense rested its case, Harris was recalled
by the state as a rebuttal witness and stated that, contrary
to the defendant’s assertions, he did not seek
to purchase drugs from the defendant on the night in
question. Harris also explained that he had not taken
any illegal drugs since graduating from high school,
explaining that his former employer of thirty years,
Kimberly-Clark Corporation, had a mandatory drug testing
policy. The state also called Harrison and Johnson
as rebuttal witnesses. Both of them testified, contrary
to the defendant’s testimony that he had never seen
Harris before the night of the altercation, that the defendant
had threatened Harris approximately one month
before the encounter in Harris’ driveway. In closing
arguments, both the prosecutor and defense counsel
maintained that the assault charges boiled down to a
credibility contest between the defendant and Harris
that required the jury to determine which one of them
was telling the truth about the circumstances surrounding
their altercation. In particular, the prosecutor
argued that the defendant had fabricated the story about
the larceny and Harris’ purported attempt to purchase
drugs from him because the police had arrived before
the defendant could flee the scene, and he needed to
explain his presence there. Defense counsel, on the
other hand, asserted that the jury should discredit Harris’
testimony that he was not a drug user and that he
just happened to encounter the defendant while Harris
was riding his bicycle. Counsel further argued, among
other things, that a normal person would not ride his
bicycle through a ‘‘drug infested’’ area and that Harris’
real reason for being there was to buy drugs and to
confront the defendant about his refusal to sell him
drugs earlier that evening. The jury subsequently found
the defendant not guilty of attempt to commit assault
in the first degree and possession of marijuana but
found him guilty of assault in the second degree. Thereafter,
the trial court rendered judgment in accordance
with the verdict and sentenced the defendant to a prison
term of four years and nine months.
On appeal to the Appellate Court, the defendant
claimed, inter alia, that the prosecutor violated the proscription,
first articulated by this court in State v. Singh,
259 Conn. 693, 793 A.2d 226 (2002), against asking a
witness ‘‘to characterize another witness’ testimony as
a lie, mistaken or wrong.’’ Id., 712. In support of this
claim, the defendant identified three questions posed
by the prosecutor on cross-examination that compelled
the defendant to comment on the veracity of Harris and
certain police officers. The three questions were: (1)
‘‘[A]ll this testimony from . . . Harris then about the
bus stop; that was a lie?’’ (2) ‘‘And all the police officers’
testimony [about the robbery] is a lie?’’ (3) ‘‘So, what
Officer Georgoulis testified to today [about finding marijuana
in the backseat of his police car] is all false?’’
In addition, during closing argument, the prosecutor
paraphrased the defendant’s answer when the defendant
was asked whether he had told the police that he
was trying to buy marijuana prior to the altercation as,
‘‘I never said that; the police are lying apparently.’’ The
state conceded that the challenged questions and closing
argument were improper under Singh but argued
that they were not so prejudicial as to deprive the defendant
of a fair trial.
The Appellate Court accepted the state’s concession
of impropriety but disagreed with its claim that the
improprieties were harmless. See State v. Jones, supra,
139 Conn. App. 475–77. In reaching its determination,
the Appellate Court applied the six factors set forth in
State v. Williams, 204 Conn. 523, 540, 529 A.2d 653
(1987), for determining whether the prosecutorial
improprieties were sufficiently serious as to amount to
a denial of due process.2 See State v. Jones, supra,
477–85. The Appellate Court reasoned that, although the
improprieties at issue were not pervasive and defense
counsel had not objected to any of them; see id., 477–78,
482; the improprieties were severe because the prosecutor
had compelled the defendant to comment on the
veracity of Harris and the police officers; see id., 478–79;
the improprieties bore directly on the central issue in
the case, namely, the defendant’s credibility versus that
of the state’s witnesses; id., 480–81; the state’s case was
not particularly strong; id., 482; the improprieties were
not invited by the defense; id.; and no curative instructions
were given. Id. The Appellate Court observed that
when these same Williams factors were present in
other cases involving a violation of Singh; see, e.g.,
State v. Ceballos, 266 Conn. 364, 414–15, 832 A.2d 14
(2003); this court had concluded that the defendants in
those cases had been denied their right to a fair trial.
See State v. Jones, supra, 483–84.
In light of its determination that the defendant was
entitled to a new trial due to the Singh violations, the
Appellate Court did not address the defendant’s claims
that the prosecutor had engaged in several other
instances of impropriety and that the trial court improperly
had instructed the jury on the initial aggressor
exception to self-defense. Id., 471 n.2, 477. Because the
issue was likely to arise again at a retrial, however, the
Appellate Court did consider the defendant’s contention
that the trial court improperly had denied his motion
to suppress evidence of the knife that he had used in
his altercation with Harris. Id., 470–71. The Appellate
Court rejected this claim, concluding that the record
supported the trial court’s finding that the defendant
had voluntarily surrendered the knife to Reo prior to
getting into the police car for a ride home and that the
police did not exceed the scope of that initial consent.
Id., 485–86. The state’s and the defendant’s certified
appeals followed.3
On appeal, the state claims that the Appellate Court
incorrectly concluded that the defendant was substantially
prejudiced by the improprieties at issue in this
case. Specifically, the state argues that the Appellate
Court’s analysis of the prejudicial effect of the improprieties
was seriously flawed because that court (1) failed
to consider that two of the improprieties were directed
at the drug charge and thus were unlikely to have prejudiced
the defendant in view of the fact that the jury
had found him not guilty of that charge, (2) never considered
the reduced prejudicial effect of the ‘‘were they
lying’’ questions in a case that presents a ‘‘pure credibility
contest’’ between a defendant and the state’s witness,
and (3) mistakenly assumed that such improprieties
jeopardized the jurors’ understanding of the
state’s burden of proof in all cases.
In his appeal, the defendant claims that the trial
court’s charge to the jury improperly broadened the
initial aggressor doctrine and deprived him of his right
to assert a defense of self-defense in that it failed to
instruct the jury (1) to analyze Harris’ perceptions from
the perspective of a reasonable person, and (2) that a
person cannot become an initial aggressor on the basis
of words alone. The defendant also claims that the
Appellate Court was incorrect in concluding that the
trial court properly denied his motion to suppress the
knife that he had used in his altercation with Harris.
I
STATE’S APPEAL
We first address the state’s claim that the Appellate
Court incorrectly concluded that prosecutorial improprieties
deprived the defendant of a fair trial. Before
addressing the merits of this claim, we set forth the
standard of review and legal principles governing claims
of prosecutorial impropriety. ‘‘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. . . . To determine
whether the defendant was deprived of his due process
right to a fair trial, we must determine whether the sum
total of [the prosecutor’s] improprieties rendered the
defendant’s [trial] fundamentally unfair . . . . The
question of whether the defendant has been prejudiced
by prosecutorial [impropriety], therefore, depends on
whether there is a reasonable likelihood that the jury’s
verdict would have been different absent the sum total
of the improprieties.’’ (Internal quotation marks omitted.)
State v. Gould, 290 Conn. 70, 77–78, 961 A.2d 975
(2009). Accordingly, it is not the prosecutorial improprieties
themselves but, rather, the nature and extent of
the prejudice resulting therefrom that determines
whether a defendant is entitled to a new trial. See id.
In State v. Singh, supra, 259 Conn. 693, this court
held, in accordance with the majority rule in other jurisdictions,
‘‘that it is improper to ask a witness to comment
on another witness’ veracity.’’ Id., 706. ‘‘Several
reasons underlie the prohibition on [asking] such questions.
First, it is well established that determinations
of credibility are for the jury, and not for witnesses.
. . . Consequently, questions that ask a defendant to
comment on another witness’ veracity invade the province
of the jury. . . . Moreover, [a]s a general rule,
[such] questions have no probative value and are
improper and argumentative because they do nothing
to assist the jury in assessing witness credibility in its
fact-finding mission and in determining the ultimate
issue of guilt or innocence.’’ (Citations omitted; internal
quotation marks omitted.) Id., 707–708.
‘‘Second, questions of this sort also create the risk
that the jury may conclude that, in order to [find] the
defendant [not guilty], it [first] must find that the witness
has lied. . . . This risk is especially acute when
the witness is a government agent in a criminal case.
. . . A witness’ testimony, however, can be unconvincing
or wholly or partially incorrect for a number of
reasons without any deliberate misrepresentation being
involved . . . such as [in cases involving] misrecollection,
failure of recollection or other innocent reason[s].’’
(Citations omitted; internal quotation marks omitted.)
Id., 708.
‘‘Similarly, courts have long admonished prosecutors
to avoid statements to the effect that if the defendant
is innocent, the jury must conclude that witnesses have
lied. . . . The reason for this restriction is that [t]his
form of argument . . . involves a distortion of the government’s
burden of proof. . . . Moreover, like the
problem inherent in asking a defendant to comment
on the veracity of another witness, such arguments
preclude the possibility that the witness’ testimony conflicts
with that of the defendant for a reason other than
deceit.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) Id., 709–10; see also State v.
Emmett, 839 P.2d 781, 787 (Utah 1992) (asking defendant
to comment on another witness’ veracity is unfairly
prejudicial because it suggests that ‘‘[the] witness is
committing perjury even though there are other explanations
for the inconsistency . . . [and such questioning]
puts the defendant in the untenable position
of commenting on the character and motivations of
another witness who may appear sympathetic to the
jury’’).
In light of the state’s concession that the prosecutor
violated Singh first by asking the defendant to comment
on the veracity of other witnesses and then by referring
to the defendant’s response to one of those questions
in closing argument, we need only determine whether
these improprieties deprived the defendant of a fair
trial. In addressing this question, we focus on the factors
set forth in State v. Williams, supra, 204 Conn. 540; see
footnote 2 of this opinion; namely, the extent to which
the improprieties were invited by the defense, the severity
and frequency of the improprieties and their centrality
to the critical issues in the case, and the strength
both of the state’s case and of any curative measures
taken by the court.
We further note that, ‘‘[r]egardless of whether the
defendant has objected to an . . . [impropriety], a
reviewing court must apply [these] . . . factors to the
entire trial, because there is no way to determine
whether the defendant was deprived of his right to a
fair trial unless the [impropriety] is viewed in light of
the entire trial.’’ (Internal quotation marks omitted.)
State v. Maguire, 310 Conn. 535, 560, 78 A.3d 828 (2013).
‘‘This does not mean, however, that the absence of an
objection at trial does not play a significant role in the
application of the [foregoing] factors. To the contrary,
the determination of whether a new trial or proceeding
is warranted depends, in part, on whether defense counsel
has made a timely objection to any [incident] of the
prosecutor’s improper [conduct]. When defense counsel
does not object, request a curative instruction or
move for a mistrial, he presumably does not view the
alleged impropriety as prejudicial enough to jeopardize
seriously the defendant’s right to a fair trial.’’ (Internal
quotation marks omitted.) Id., 560–61.
Finally, ‘‘when a defendant raises on appeal a claim
that improper remarks by the prosecutor deprived [him]
of his constitutional right to a fair trial, the burden is
on the defendant to show, not only that the remarks
were improper, but also that, considered in light of the
whole trial, the improprieties were so egregious that
they amounted to a denial of due process.’’4 State v.
Payne, 303 Conn. 538, 562–63, 34 A.3d 370 (2012). It
is also well established that, when there are multiple
charges in a case, the reviewing court must consider the
effect of the prosecutorial impropriety on each charge
separately because, ‘‘[d]epending on the outcome of
the analysis, the conviction on some charges may be
allowed to stand, while others may be reversed.’’ State
v. Spencer, 275 Conn. 171, 182, 881 A.2d 209 (2005).
Applying the foregoing principles to the present case,
we agree with the state that the Appellate Court incorrectly
determined that the Singh violations deprived
the defendant of a fair trial. We reach this conclusion
for several reasons. First, in considering the severity
of such improprieties, we accord considerable weight
to the fact that defense counsel did not object to any
of those improprieties, a strong indicator that counsel
did not perceive them as seriously jeopardizing the
defendant’s fair trial rights. See, e.g., State v. Ceballos,
supra, 266 Conn. 414 (emphasizing ‘‘that counsel’s failure
to object at trial, while not by itself fatal to a defendant’s
claim, frequently will indicate on appellate
review that the challenged comments [did] not rise to
the magnitude of constitutional error’’ [emphasis omitted]);
see also State v. Warholic, 278 Conn. 354, 402,
897 A.2d 569 (2006) (defendant who fails to object to
improper remarks bears significant responsibility for
fact that alleged improprieties went uncured). Second,
and more important, as the Appellate Court observed,
the improprieties at issue were neither pervasive nor
confined to a discrete portion of the trial; State v. Jones,
supra, 139 Conn. App. 482; but, rather, consisted of
four remarks spread over the course of a five day trial.
Moreover, although defense counsel sought no curative
measures, the trial court, both at the commencement
and at the conclusion of the trial, instructed the jury
that the ‘‘testimony of a police officer is entitled to no
special or exclusive weight merely because it comes
from a police official,’’ and that the jurors therefore
‘‘must determine the credibility of police officers in the
same way as you would any other witness[es] . . . .’’5
These instructions, which the jury is presumed to have
followed, would have ameliorated the harmful effect of
all but one of the improprieties.
Perhaps the most significant reason why the defendant
in the present case was not unduly prejudiced by
the prosecutor’s Singh violations is that two of them—
arguably the two most serious violations because they
pitted the defendant’s credibility directly against that
of the police—were not directed at the assault charge
but, rather, at the drug charge, which resulted in an
acquittal. Specifically, on cross-examination, the prosecutor
asked the defendant, ‘‘[s]o, what Officer Georgoulis
testified to today [about finding marijuana in the
backseat of his police car] is all false?’’ The defendant
responded: ‘‘Yes, sir.’’6 Relatedly, in his closing argument,
the prosecutor paraphrased the defendant’s
denial that he had told the police that he was trying to
buy marijuana on the night of the altercation as, ‘‘I never
said that; the police are lying apparently.’’7 Because the
jury found the defendant not guilty of the drug charge,
however, those two improprieties could not have prejudiced
the defendant unduly with respect to that charge.
Cf. State v. Ciullo, 314 Conn. 28, 60, 100 A.3d 779 (2014)
(‘‘[e]ven if all of the statements had affected a determination
of credibility, the defendant was acquitted of
some of the charges against him, clearly demonstrating
the jurors’ ability to filter out the allegedly improper
statements and make independent assessments of credibility’’).
Nor can we conclude that those improprieties prejudiced
the defendant with respect to the assault charge
because it is undisputed that no police officer provided
material testimony with respect to that charge. See
State v. Spencer, supra, 275 Conn. 182 (reviewing court
must consider prejudicial impact of impropriety on each
individual charge). As we previously noted, by the time
the police arrived at the scene of the altercation, the
fight between the defendant and Harris had already
ended. The officers’ testimony regarding the altercation,
therefore, was limited to repeating what the defendant
had told them when they arrived, namely, that he had
just been robbed by a man on a bicycle who had asked
him to make change for a $50 bill. In considering the
evidence related to the assault charge, therefore, the
jury never was required to reconcile the defendant’s
testimony with the contradictory testimony of any
police officer, a paramount concern under Singh.8
Indeed, if anything, we believe that the officers’ testimony
would have bolstered the defendant’s testimony
by demonstrating that the defendant’s account of the
altercation remained consistent over time.9
For this reason, we also conclude that the third Singh
violation, which ostensibly did pit the defendant’s testimony
against that of the police officers with respect to
the assault charge, did not prejudice the defendant.
During cross-examination, the prosecutor asked the
defendant whether ‘‘all of the police officers’ testimony
[contradicting everything about the larceny] is a lie?’’10
The prosecutor apparently was referring to the defendant’s
testimony that the altercation began when Harris
stole $40 from him. The defendant responded, ‘‘I didn’t
say that. What part of their testimony?’’ The defendant
was understandably confused by the prosecutor’s question
because, as we have explained, the officers’ testimony
about the assault and the alleged larceny did
not in any way conflict with that of the defendant’s
testimony, a fact that could not have been lost on the
jury. In light of the foregoing, we cannot discern how
the prosecutor’s question, improper though it may have
been, prejudiced the defendant with respect to the
assault charge.11
Indeed, the principal reason why a prosecutor may
not ask a defendant about the truthfulness of an officer’s
contradictory testimony is to reduce the risk that the
jury will resolve material conflicts between the testimony
of the defendant and the officer in favor of the
state, out of a concern that to do otherwise would
reflect adversely on the honesty of the officer. See, e.g.,
State v. Singh, supra, 259 Conn. 708–709. It is axiomatic,
however, that, when, as in the present case, the jury is
not required to resolve any such conflict, the harm that
might otherwise ensue from such a question will be
significantly reduced if not completely avoided. Furthermore,
this court has never had a case in which a
Singh violation, standing alone, was deemed sufficiently
egregious to entitle the defendant to a new trial.
Rather, in every case in which a defendant has claimed
that the prosecutor improperly asked him to characterize
another witness’ testimony as a lie, mistaken or
wrong, including Singh itself, it was the cumulative
effect of the Singh violation and the other prosecutorial
improprieties that ultimately was deemed to entitle the
defendant to a new trial.12 See, e.g., State v. Ceballos,
supra, 266 Conn. 390–93 (prosecutor’s repeated reference
to religion and possible divine consequences that
awaited defendant as result of his actions was inflammatory
and improperly invaded province of jury); State
v. Singh, supra, 710–18 (prosecutor improperly conveyed
his personal views regarding evidence, referred
to facts not in evidence, and argued that, to find defendant
not guilty, jury must find that five government
witnesses had lied).
We turn, therefore, to the final impropriety, which,
as the state acknowledges, was potentially prejudicial
to the defendant because it compelled him to comment
on Harris’ veracity. As we previously indicated, immediately
before the prosecutor questioned the defendant
as to whether the officers had lied about the robbery,
he also asked him: ‘‘Now, all this testimony from . . .
Harris then about the bus stop; that was a lie?’’ The
prosecutor apparently was referring to Harris’ testimony
that, approximately one hour before the altercation,
as he was coming home from work, the defendant
had approached him in front of the bus station and
displayed a knife. The defendant denied ever having
been near the bus station on the night in question and
called Harris’ testimony to the contrary a lie. He maintained,
rather, that the first time he saw Harris was on
Spring Street, when Harris approached him and asked
to buy drugs. We agree with the state that, under the
circumstances of this case, which required the jury to
decide whether the defendant or Harris was telling the
truth, questioning the defendant directly about whether
Harris had lied during his testimony was necessarily
harmless.
In reaching our determination, we acknowledge that
the state’s case against the defendant was not particularly
strong insofar as it turned entirely on Harris’ testimony.
13 We also recognize that the risk that a defendant
will be prejudiced by a Singh violation may be especially
acute when the state’s case is founded on the
credibility of its witnesses. Cf. State v. Alexander, 254
Conn. 290, 305, 755 A.2d 868 (2000) (prosecutorial
vouching ‘‘is especially significant . . . [when] the
credibility of the victim and the defendant comprise[s]
the principal issue of the case’’). As the present case
demonstrates, however, that general proposition is not
a universal truth. In a case that pits the testimony of
the defendant against that of the victim, such that the
victim’s version of events is directly at odds with the
defendant’s account of the facts, and there is no way to
reconcile their conflicting testimony except to conclude
that one of them is lying, it is unlikely that asking the
defendant directly whether the victim is lying ever could
be so prejudicial as to amount to a denial of due process.
Cf. State v. Fauci, 282 Conn. 23, 39, 917 A.2d 978 (2007)
(‘‘in a case that essentially reduces to which of two
conflicting stories is true, it may be reasonable to infer,
and thus to argue, that one of the two sides is lying’’
[internal quotation marks omitted]). To be sure, as we
explained in State v. Singh, supra, 259 Conn. 707–10,
such questioning is never appropriate, and we consistently
have declined the state’s invitation to carve out
an exception to the prohibition against ‘‘are they lying’’
questions in cases involving pure credibility contests.
We have done so, however, not because we disagreed
with the underlying rationale for such an exception but,
rather, because of the difficulty of determining, in the
midst of trial, whether the case presents a pure credibility
contest or whether the testimonial discrepancies
between the two witnesses may be explained by reasons
other than perjury or deceit. See, e.g., State v. Ciullo,
supra, 314 Conn. 46 n.14 (‘‘[a] determination of a ‘pure
credibility case’ is an inquiry that may be answered
differently depending on the point of view of the inquiring
party’’); State v. Singh, supra, 711 (‘‘[i]t would be
unwise . . . to make the application of this exception
predicated on such a difficult distinction, which is relegated
properly to the jury’’).
Our refusal to adopt the exception advanced by the
defendant, however, does not preclude us from
acknowledging the logic that underlies that proposed
exception in determining whether the defendant was
prejudiced by the prosecutor’s questioning, an inquiry
that, under Williams and its progeny, is separate and
distinct from the issue of whether the questioning was
improper in the first place. Indeed, because Williams
requires that we determine whether the prosecutorial
impropriety prejudiced the defendant by evaluating the
impropriety in the context of the entire trial, we must
consider whether it was possible for the jury to reconcile
the testimony of the defendant and Harris without
concluding that one of them was lying. When, as in the
present case, it is not possible to do so, there is no
reasonable possibility that asking the defendant
whether the victim testified truthfully would render the
trial so unfair as to rise to the level of a due process
violation because, in such circumstances, the risks that
ordinarily attend such a question simply are not present.
For example, asking the defendant in the present case
whether Harris was lying could not have led the jurors
to overlook the various, possible, innocent reasons for
discrediting Harris’ testimony because the evidence and
the parties’ arguments did not allow for any such reasons.
Moreover, there was no likelihood that the question
invaded the province of the jury or reduced or
distorted the state’s burden of proof because, in order to
decide the case, the jury itself was required to determine
which of the two witnesses, Harris or the defendant,
was lying. Thus, the answer that the defendant gave in
response to the prosecutor’s improper ‘‘is he lying’’
question, although irrelevant, could not have caused
the defendant undue harm.14
Of course, we do not condone questioning in violation
of Singh, even when, in light of the facts, the jury necessarily
must determine whether the defendant or another
witness is lying. In addition, as we previously noted;
see footnote 12 of this opinion; Singh violations may
be so serious, either standing alone or in combination
with other improprieties, as to require a new trial. For
the reasons that we previously discussed, however, the
violations in the present case did not so taint the defendant’s
trial as to render it fundamentally unfair. We
therefore conclude that the Appellate Court incorrectly
determined that the improprieties deprived the defendant
of his right to due process.15
II
DEFENDANT’S APPEAL
A
Instructions on Initial Aggressor
Exception to Self-Defense
We next address the defendant’s claim that the Appellate
Court’s judgment may be affirmed on the alternative
ground that the trial court improperly instructed the
jury on the initial aggressor exception to self-defense.16
According to the defendant, the trial court’s instruction
misled the jury by failing to clarify that the jury could
not find that the defendant was the initial aggressor on
the basis of words alone, and by suggesting that the jury
could find that the defendant was the initial aggressor
if it found that Harris subjectively believed that the
defendant intended to use physical force against him,
even if that belief was not reasonable. We agree with
the state that there is no reasonable possibility that the
jury was misled by the challenged instructions.17
The following additional facts and procedural history
are relevant to this claim. The defendant timely filed a
request to charge that included instructions on selfdefense
and the initial aggressor exception but not on
the definition of initial aggressor. The state requested
that the trial court instruct the jury on the initial aggressor
exception consistent with the model instruction
available on the Judicial Branch website.18 During the
trial court’s final charge to the jury, after explaining
general principles governing the use of force in selfdefense,
the court gave an instruction on the initial
aggressor exception that was identical to the model
instruction in all relevant respects. In relevant part, the
trial court instructed the jury: ‘‘[T]he state can prove
that the defendant was not justified in using physical
force in self-defense by proving beyond a reasonable
doubt that he was the initial aggressor in this encounter
with . . . Harris and that he neither withdrew from
that encounter nor effectively communicated his intent
to do so before using physical force against . . . Harris.
To . . . prove that the defendant was the initial
aggressor in this encounter with . . . Harris, the state
need not prove that the defendant was the first person
to use physical force in that encounter. The initial
aggressor can be the first person who threatened to
use physical force or even the first person who appeared
to threaten the imminent use of physical force under
[the] circumstances. . . . The defendant has no burden
whatsoever to prove that he was not the initial aggressor
or that he withdrew from the encounter and communicated
his intent to do so before he used physical force
against . . . Harris. To the contrary, you may only
reject his defense on the basis of the statutory disqualification
if you find that the state has proved beyond a
reasonable doubt that he was the initial aggressor, did
not withdraw from the encounter, and did not communicate
his intent to withdraw before using physical force.’’
On appeal, the defendant claims that the trial court’s
instruction that ‘‘[t]he initial aggressor can be . . . the
first person who appeared to threaten the imminent
use of physical force’’ did not clarify that the jury could
not find that the defendant was the initial aggressor on
the basis of words alone. The defendant contends that
the jury may have found that he was the initial aggressor
on the basis of mere words because there was evidence
that the defendant verbally threatened Harris on two
occasions prior to the altercation that led to the assault
charge. First, there was testimony from several witnesses
that, when Harris ordered the defendant to leave
his property several weeks before the altercation, the
defendant looked at Harris and said ‘‘I’ll get you.’’ Second,
when the defendant saw Harris on Kennedy Avenue
prior to the assault, he displayed a knife and said,
‘‘[w]hat’s up, Old School?’’ According to the defendant,
the trial court’s failure to expressly instruct the jury
that it could not find that he was the initial aggressor
solely on the basis of a verbal threat allowed the jury
to credit his version of the events surrounding the altercation
in its entirety, but the jury nevertheless found
him guilty of the assault because it determined that he
was the initial aggressor on the basis of these earlier
verbal threats. In a similar vein, the defendant also
contends that the trial court’s instruction failed to convey
to the jury that it could find that he was the initial
aggressor only if Harris had a reasonable belief that
the defendant was about to use physical force. The
defendant maintains that the jury may have rejected
his self-defense claim on the ground that, due to the
previous encounters in which the defendant had threatened
Harris, Harris subjectively believed that the defendant
intended to attack him, even if that belief was not
a reasonable one.
Before discussing the merits of the defendant’s
claims, we briefly set forth the legal principles that
govern our review. ‘‘A fundamental element of due process
is the right of a defendant charged with a crime
to establish a defense. . . . This fundamental constitutional
right includes proper jury instructions on the
elements of self-defense so that the jury may ascertain
whether the state has met its burden of proving beyond
a reasonable doubt that the assault was not justified.’’
(Citations omitted; internal quotation marks omitted.)
State v. Jimenez, 228 Conn. 335, 339, 636 A.2d 782
(1994). Thus, ‘‘[a]n improper instruction on a defense,
like an improper instruction on an element of an
offense, is of constitutional dimension.’’ (Internal quotation
marks omitted.) State v. Singleton, 292 Conn. 734,
745, 974 A.2d 679 (2009). ‘‘It is well established that a
defect in a jury charge which raises a constitutional
question is reversible error if it is reasonably possible
that, considering the charge as a whole, the jury was
misled.’’ (Internal quotation marks omitted.) State v.
Fields, 302 Conn. 236, 245, 24 A.3d 1243 (2011). In evaluating
a claim of instructional impropriety, however, ‘‘we
must view the court’s jury instructions as a whole, without
focusing unduly on one isolated aspect of the
charge. . . . In determining whether a jury instruction
is improper, the charge . . . 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.’’ (Citation omitted; internal
quotation marks omitted.) State v. Carrion, 313 Conn.
823, 845, 100 A.3d 361 (2014). Finally, because a challenge
to the validity of a jury instruction presents a
question of law, we exercise plenary review. E.g., State
v. Singleton, supra, 746.
General Statutes § 53a-19 (c) provides in relevant part
that ‘‘a person is not justified in using physical force
when . . . (2) he is the initial aggressor, except that
his use of physical force upon another person under
such circumstances is justifiable if he withdraws from
the encounter and effectively communicates to such
other person his intent to do so, but such other person
notwithstanding continues or threatens the use of physical
force . . . .’’ Although the term ‘‘initial aggressor’’
is not defined by statute, in State v. Jimenez, supra,
228 Conn. 335, we stated that ‘‘[i]t is not the law . . .
that the person who first uses physical force is necessarily
the initial aggressor under § 53a-19 (c) (2).’’ Id., 340.
Rather, ‘‘§ 53a-19 contemplates that a person may
respond with physical force to a reasonably perceived
threat of physical force without becoming the initial
aggressor and forfeiting the defense of self-defense.
Otherwise, in order to avoid being labeled the aggressor,
a person would have to stand by meekly and wait until
an assailant struck the first blow before responding.’’
Id., 341. Thus, we have approved of instructions defining
initial aggressor as ‘‘the person who first acts in such
a manner that creates a reasonable belief in another
person’s mind that physical force is about to be used
[on] that other person . . . .’’ (Internal quotation marks
omitted.) State v. Singleton, supra, 292 Conn. 763.
With respect to the nature of the conduct required
to create a reasonably perceived threat of physical
force, we previously have indicated that the mere use
of offensive words, without more, is insufficient to qualify
a defendant as the initial aggressor. See, e.g., State
v. Whitford, 260 Conn. 610, 621, 799 A.2d 1034 (2002)
(‘‘the discussion of a subject as to which animus existed
between the parties . . . does not by itself make . . .
[one] the aggressor’’ [internal quotation marks omitted]),
quoting State v. Corchado, 188 Conn. 653, 667
n.15, 453 A.2d 427 (1982). This is consistent with the
well established principle that the use of physical force
in defense of oneself is justified only if the person claiming
self-defense honestly and reasonably believes that
an attack is imminent. See, e.g., State v. Lewis, 220
Conn. 602, 620, 600 A.2d 1330 (1991) (‘‘[t]he defense of
self-defense does not encompass a preemptive strike’’);
State v. Peters, 40 Conn. App. 805, 814–15, 673 A.2d
1158 (‘‘the defendant must entertain an honest belief
that the other person is using or is about to use physical
force, and the defendant’s decision to use defensive
force must be based on this sincere belief as opposed
to anger, malice or revenge’’), cert. denied, 237 Conn.
925, 677 A.2d 949 (1996).
For several reasons, we are not persuaded that there
is any reasonable possibility that the trial court’s
instruction on the initial aggressor exception misled
the jury to the detriment of the defendant’s self-defense
claim. First, as we recently explained in addressing the
identical contention in State v. Revels, 313 Conn. 762,
785, 99 A.3d 1130 (2014), when assessing whether an
instruction adequately conveyed to the jury the principles
governing the initial aggressor exception, we must
look to the entirety of the court’s self-defense instruction.
In Revels, we observed that, ‘‘[a]t other points in
the court’s instructions relating to self-defense, the
court properly and thoroughly explained that in order
for a defendant to claim that he has acted in selfdefense,
the defendant’s belief that the other actor is
about to use physical force must be a reasonable one.’’
Id. We further explained that ‘‘[t]he court’s definition
of ‘initial aggressor’ must be understood therefore to
incorporate the notion that only actions that reasonably
appear to threaten the imminent use of physical force
will make the defendant an initial aggressor.’’19 (Emphasis
in original.) Id. In the present case, the trial court
repeatedly explained the principle that one cannot use
physical force against another unless his subjective
belief that that person is about to use physical force
against him was reasonable under the circumstances.
In addition, the trial court, in instructing the jury that
the determination of whether the defendant acted in
self-defense did not require that Harris actually
intended to use physical force, but only that the defendant
perceived that Harris was about to use physical
force, again explained that the defendant’s perception
regarding the threat of force must have been reasonable.
In view of the fact that the trial court thoroughly
instructed the jury regarding the subjective-objective
inquiry with respect to the use of force in self-defense,
the court’s instruction that the initial aggressor may be
‘‘the first person who appeared to threaten the imminent
use of physical force’’ must be understood to have incorporated
the reasonableness requirement.
Moreover, contrary to the defendant’s contention, the
jury could not have credited his testimony regarding
the altercation and still have found him guilty of the
assault. As the state observes, the trial court instructed
the jury that it should consider self-defense only if it
first determined that the state had ‘‘prove[n] beyond a
reasonable doubt each element of [the] crime . . . . If
you find that the . . . state has been able to prove
beyond a reasonable doubt each and every element
necessary, you then move onto the issue of selfdefense.’’
With respect to the elements of assault in the
second degree; see General Statutes § 53a-60 (a) (2);
the trial court instructed the jury that, in order to find
the defendant guilty of that crime, it had to find that
he ‘‘had the specific intent to cause physical injury to
. . . Harris, [that he] did cause physical injury to . . .
Harris, and [that he] caused the injury by means of
a dangerous instrument . . . .’’ Thus, before the jury
considered whether the state proved that the defendant
had not acted in self-defense, it first must have found
that he intentionally caused physical injury to Harris
with the knife.
Only Harris’ testimony, however, provided the jury
with an account by which it reasonably could have
found that the defendant intentionally caused physical
injury to Harris. As we previously indicated, Harris testified
that, when he saw the defendant on Beaver Street,
he got off his bicycle and approached him to ask ‘‘what
the problem was.’’ Harris further testified that the defendant
immediately started swinging the knife ‘‘like a wild
man’’ and that, as he ran away, the defendant pursued
him and cut him across the lower back.20 Finally, Harris
testified that he knocked the defendant down by riding
his bicycle into him and that the defendant continued
to slash at him with the knife until Harris was able to
subdue him.
The defendant, in stark contrast, testified that he did
not intentionally cut or stab Harris with the knife. He
explained, rather, that, after Harris knocked him down
with the bicycle, the defendant removed the knife from
his pocket only to discourage Harris from attacking him,
and that he must have accidentally cut Harris during the
ensuing scuffle. This testimony, therefore, would not
have supported a finding that the defendant intentionally
caused physical injury to Harris, as required under
§ 53a-60 (a) (2). Thus, if the jury had credited the defendant’s
testimony, it could not have found that he was
the initial aggressor because the jury would not have
reached his self-defense claim in the first instance.
Finally, because Harris’ testimony provided the only
factual basis for the jury’s verdict, we must presume
that the jury credited that testimony with respect to the
assault.21 In view of Harris’ testimony that the defendant
intentionally assaulted him after chasing him and swinging
the knife in his direction almost immediately after
they encountered each other on Beaver Street, there is
no reasonable possibility that the defendant was prejudiced
by the fact that the jury was not instructed that
words alone cannot support an initial aggressor finding.
Finally, nothing in the state’s closing argument suggested
to the jury that it could find that the defendant
was the initial aggressor on the basis of his previous
verbal threats, and, in fact, neither party referred to
the initial aggressor principle at any time during their
respective closing arguments. See State v. Singleton,
supra, 292 Conn. 763–64 (court did not improperly fail
to instruct jury that person cannot be initial aggressor
on basis of words alone when neither state nor defendant
indicated during closing argument that it could
find defendant was initial aggressor on that basis). In
addressing the jury during his initial closing argument,
the prosecutor attempted to counter the defendant’s
testimony that he accidentally cut Harris during the
scuffle. The prosecutor referred to the previous incident
at Harrison’s property several weeks prior to the assault
and argued that ‘‘[t]his wasn’t somebody who made a
mistake. [The defendant] wanted to hurt . . . Harris’’
because he was angry about their previous encounter.
The prosecutor then argued that the defendant’s claim
that he accidentally cut Harris during the struggle did
not make sense, noting that the defendant’s testimony
suggested that ‘‘[t]he cut on [Harris’] back [occurred]
somehow while . . . Harris is holding [the defendant’s]
hands’’ and that ‘‘[t]he cut across the chest is,
apparently, self-inflicted by . . . Harris holding [the
defendant’s] hands and, apparently, ripping the knife
clean across him with [the defendant] holding the knife.
. . . You’re not [going to] do that to yourself; you can’t
do that to yourself. There had to be some force behind
that, such as a swing and a slash, not [an] impalement
as [the defendant] would like to describe it.’’
For his part, defense counsel argued to the jury that
the defendant displayed the knife in an effort to ward
off Harris’ attack because the defendant ‘‘felt . . . that
he was being overpowered’’ and that he accidentally
cut Harris during the struggle. Defense counsel argued
that, after the defendant displayed the knife, Harris
‘‘lunge[d] at [the defendant] and [grabbed the defendant]
by both hands . . . so [the defendant did] not
have any control over his own hands.’’ Counsel maintained
that the evidence regarding Harris’ injuries, as
well as Harris’ lack of defensive wounds, supported the
defendant’s claim that he cut Harris accidentally during
the struggle, explaining that ‘‘[i]t’s all very plausible
how these injuries have occurred. Harris [did not] know
. . . that he was hit; [the defendant did not] know that
he cut him.’’ In rebuttal closing argument, the prosecutor
did not assert that the defendant was the initial
aggressor because he previously had threatened Harris.
Rather, the prosecutor focused exclusively on the physical
altercation in attempting to rebut the defendant’s
testimony that he was too intoxicated to flee or to
defend himself without the knife.
Thus, although the defendant is correct in the
abstract that, as a matter of law, the jury could not
have determined that he was the initial aggressor solely
on the basis of his utterance of certain words or solely
on the basis of Harris’ subjective fear that the defendant
was intent on attacking him, we previously have recognized
that ‘‘[t]he mere fact that the defendant properly
cites to a proposition of law related to the claim of
self-defense . . . does not entitle him to an instruction
thereon.’’ State v. Whitford, supra, 260 Conn. 621–22.
Rather, ‘‘[a]s long as [the instructions] are correct in
law, adapted to the issues and sufficient for the guidance
of the jury . . . we will not view the instructions
as improper.’’ (Internal quotation marks omitted.) State
v. Baltas, 311 Conn. 786, 809, 91 A.3d 384 (2014). In the
present case, it is apparent that the jury rejected the
only testimony from which it reasonably could have
found that the defendant was the initial aggressor predicated
solely on his previous verbal threats or on Harris’
subjective but unreasonable belief that the defendant
intended to use physical force against him as evidenced
by those threats. Rather, as we discussed previously,
Harris’ testimony regarding the assault—which is the
only version of the incident that supports the jury’s
verdict on that charge—establishes that the defendant
charged at Harris while the defendant was swinging
the knife in Harris’ direction almost as soon as Harris
approached the defendant on Beaver Street. In such
circumstances, where the jury credited Harris’ testimony
characterizing the defendant’s attack against him
as wholly unprovoked, there is no reasonable possibility
that the jury found that the defendant was the initial
aggressor on the basis of the verbal threats he made
during their previous encounters. Accordingly, there
also is no reasonable possibility that the jury was misled
by the challenged instruction.
B
Motion to Suppress
The defendant next challenges the Appellate Court’s
conclusion that the trial court properly denied his
motion to suppress evidence of the knife that he used
during the assault. The defendant claims that the seizure
of the knife violated the fourth amendment to the United
States constitution.22 We are not persuaded.
The following facts and procedural history are relevant
to this claim. At the hearing on the defendant’s
motion to suppress, Officer Reo testified that he and
Officer Williams responded to reports of criminal activity
in the area of Beaver Street and Rose Street in
Danbury at approximately 7:30 p.m. on the night in
question. Upon arriving at the scene, the officers
encountered the defendant in the street, and the defendant
reported, inter alia, that another man had taken
money from him. The defendant also provided a
description of the alleged perpetrator. The officers canvassed
the area and detained several potential suspects,
but the defendant did not identify any of them as the
perpetrator. The defendant then asked the officers for
a ride home, and Reo accommodated the defendant’s
request because, at that point in time, he considered
the defendant to be a victim, and he did not want the
defendant, who appeared to be intoxicated, to walk
home. Reo informed the defendant that, in accordance
with Danbury Police Department procedure, he would
have to be patted down before entering the police car
to ensure that he did not have any weapons on him.
The defendant then informed Reo that he had a knife
in his pocket, and he voluntarily handed it to Reo, who
placed it in the glove compartment of his police car.
Reo testified that, when they arrived at the defendant’s
home, he was uncomfortable giving the knife back to
the defendant due to the fact that he was intoxicated.
Reo therefore told the defendant that he would hold
the knife for safekeeping and that the defendant could
retrieve it at police headquarters when he was sober.
Shortly after dropping the defendant off at his home,
Reo heard a broadcast over the police radio system
indicating that the defendant had been involved in an
assault in the area of Beaver Street and Rose Street,
and that a knife had been used in the assault. Reo, along
with several other officers, returned to the defendant’s
home and took him into custody. At that point, Reo
considered the knife to be evidence of the assault and,
upon returning to headquarters, processed the knife as
evidence. Reo testified that, according to police
records, the knife was logged into evidence at 11:20
p.m. that evening.
Prior to trial, the defendant filed a motion to suppress
the knife as the product of an unreasonable, and therefore
unconstitutional, seizure. The defense conceded
that Reo properly seized the knife before allowing him
to enter the police cruiser and that Reo properly
retained the knife for safekeeping when he dropped the
defendant off at his home. The defense maintained,
however, that, once the police considered the knife to
be evidence of the assault, they were required to obtain
a warrant before retaining the knife as evidence, and
that the failure to do so rendered the seizure unreasonable.
The trial court denied the motion to suppress,
concluding that Reo properly seized the knife before
allowing the defendant into the police cruiser because
‘‘the police had an interest in protecting their wellbeing’’
while giving the defendant a ride home, the
defendant consented to the seizure by voluntarily handing
the knife over, and ‘‘the scope of that consent was
not abused or exceeded . . . .’’ On appeal following
the defendant’s conviction, the Appellate Court rejected
the defendant’s claim of a constitutional violation, concluding
that ‘‘[t]he [trial] court found that the defendant
consented and handed the knife over voluntarily, and
that the police did not exceed the scope of that consent,’’
and, further, that ‘‘[t]he record supports this finding,
which is not clearly erroneous.’’ State v. Jones,
supra, 139 Conn. App. 486.
On appeal to this court, the defendant challenges
the Appellate Court’s determination that the trial court
properly denied his motion to suppress on the ground
that he consented to the continued retention of the
knife by the police. Specifically, the defendant contends
that the safekeeping rationale for maintaining temporary
possession of the knife did not justify its continued,
warrantless retention by the police for use as evidence
against him in his criminal case. According to the defendant,
the initial justification for the seizure expired
when the police decided to retain the knife for an investigatory
or evidentiary purpose, and, because no exception
to the warrant requirement is applicable under the
facts presented, the retention of the knife as evidence
constituted an unreasonable seizure in violation of the
fourth amendment, thereby requiring its suppression.
The state argues that the seizure was reasonable
because the knife was lawfully in the possession of
the police at the time they obtained probable cause to
believe that it was used in the assault. Although we
agree with the defendant that the initial temporary seizure
of the knife for safety reasons did not alone justify
its further retention for evidentiary purposes, we also
conclude that such retention was reasonable because
the police had probable cause to believe that the defendant
used the knife in the commission of the assault.
The following well settled legal principles govern our
review of the defendant’s claim. ‘‘[T]he standard of
review for a motion to suppress is well settled. A finding
of fact will not be disturbed unless it is clearly erroneous
in view of the evidence and pleadings in the whole
record . . . . [W]hen a question of fact is essential to
the outcome of a particular legal determination that
implicates a defendant’s constitutional rights, [however]
. . . our customary deference to the trial court’s
factual findings is tempered by a scrupulous examination
of the record to ascertain that the trial court’s
factual findings are supported by substantial evidence.
. . . [When] the legal conclusions of the court are challenged,
[our review is plenary, and] we must determine
whether they are legally and logically correct and
whether they find support in the facts [found by the
trial court] . . . .’’ (Internal quotation marks omitted.)
State v. Jackson, 304 Conn. 383, 394, 40 A.3d 290 (2012).
‘‘The fourth amendment to the United States constitution,
made applicable to the states through the [due
process clause of the] fourteenth amendment, prohibits
unreasonable searches and seizures by government
agents.’’ State v. Eady, 249 Conn. 431, 436, 733 A.2d
112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L.
Ed. 2d 428 (1999). ‘‘A seizure of property occurs when
there is some meaningful interference with an individual’s
possessory interests in that property. . . . If a seizure
has occurred, then the court must engage in a
complex inquiry to determine whether that seizure was
reasonable. . . .
‘‘With regard to the reasonableness requirement, [i]n
the ordinary case, the [United States Supreme] Court
has viewed a seizure of personal property as per se
unreasonable within the meaning of the [f]ourth
[a]mendment unless it is accomplished pursuant to a
judicial warrant issued upon probable cause and particularly
describing the items to be seized. . . . The . . .
[c]ourt has nonetheless made it clear that there are
exceptions to the warrant requirement. When faced
with special law enforcement needs, diminished expectations
of privacy, minimal intrusions, or the like, the
[c]ourt has found that certain general, or individual,
circumstances may render a warrantless search or seizure
reasonable.’’ (Citations omitted; internal quotation
marks omitted.) Fleming v. Bridgeport, 284 Conn. 502,
520–21, 935 A.2d 126 (2007).
As we discussed previously, the defendant contends
that, although the initial temporary seizure of the knife
for safekeeping was reasonable, and therefore lawful,
the seizure became unreasonable for fourth amendment
purposes when the police thereafter retained the knife
as evidence of the assault without obtaining a warrant.
Although implicitly acknowledging that the defendant’s
consent did not extend beyond the next morning, at
which time the defendant presumably had become
sober,23 the state argues that the seizure was reasonable
because the police had probable cause to believe that
the knife was used in the assault. Thus, we must decide
whether the police, having lawfully seized personal
property without a warrant on a temporary basis for
a noninvestigatory purpose and having subsequently
developed, while the item was still in their possession,
probable cause to believe that it is evidence of a crime,
are required to obtain a warrant if they wish to retain
the item as evidence.
As the parties acknowledge, there is little case law
addressing the issue of whether it is reasonable for
police to extend a temporary, warrantless seizure of
personal property on the basis of a justification that
differs from that on which the initial seizure was
founded. In other contexts, however, the United States
Supreme Court has recognized ‘‘the rule that if, while
lawfully engaged in an activity in a particular place,
police officers perceive a suspicious object, they may
seize it immediately.’’ Texas v. Brown, 460 U.S. 730,
739, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983) (opinion
announcing judgment). As the state observes, one context
in which this general rule applies is the plain view
exception to the warrant requirement, which recognizes
that, ‘‘under certain circumstances the police may seize
evidence in plain view without a warrant.’’ Coolidge v.
New Hampshire, 403 U.S. 443, 465, 91 S. Ct. 2022, 29
L. Ed. 2d 564 (1971) (plurality opinion). Under the plain
view exception, ‘‘[t]he warrantless seizure of contraband
that is in plain view is reasonable under the fourth
amendment if two requirements are met: (1) the initial
intrusion that enabled the police to view the items
seized must have been lawful; and (2) the police must
have had probable cause to believe that these items
were contraband or stolen goods.’’ (Internal quotation
marks omitted.) State v. Eady, supra, 249 Conn. 437.
Although the plain view exception generally arises
when the police inadvertently discover contraband during
the course of a lawful search, the United States
Supreme Court has indicated that the nature of the
activity that leads to the discovery of the item is constitutionally
insignificant, as long as the police involvement
in that activity itself satisfies the requirements
of the fourth amendment. Thus, ‘‘plain view provides
grounds for seizure of an item when an officer’s access
to an object has some prior justification under the
[f]ourth [a]mendment. Plain view is perhaps better
understood, therefore, not as an independent exception
to the [w]arrant [c]lause, but simply as an extension of
whatever the prior justification for an officer’s access
to an object may be.’’ (Emphasis added; footnote omitted;
internal quotation marks omitted.) Texas v. Brown,
supra, 460 U.S. 738–39 (opinion announcing judgment).
‘‘The principle is grounded on the recognition that when
a police officer has observed an object in plain view,
the owner’s remaining interests in the object are merely
those of possession and ownership . . . .’’ (Citation
omitted; internal quotation marks omitted.) Id., 739
(opinion announcing judgment). In other words, if
police have lawful access to an item that they reasonably
believe constitutes evidence of criminal activity,
and, in light of the circumstances presented, the defendant
has no reasonable expectation of privacy in the
item, the police may seize it without obtaining a warrant.
See, e.g., United States v. Jacobsen, 466 U.S. 109,
121–22, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984) (‘‘it is
constitutionally reasonable for law enforcement officials
to seize ‘effects’ that cannot support a justifiable
expectation of privacy without a warrant’’).
Relying on this principle, courts have concluded that
the warrantless seizure of personal property founded
on probable cause was reasonable in a variety of circumstances
in which the police had lawful access to
the property in question. For example, ‘‘it is . . . well
settled that objects such as weapons or contraband
found in a public place may be seized by the police
without a warrant. The seizure of property in plain view
involves no invasion of privacy and is presumptively
reasonable, assuming that there is probable cause to
associate the property with criminal activity.’’ Payton
v. New York, 445 U.S. 573, 586–87, 100 S. Ct. 1371, 63 L.
Ed. 2d 639 (1980). Courts also have upheld warrantless
seizures predicated on probable cause when evidence
is observed during the course of a routine traffic stop;
see, e.g., Texas v. Brown, supra, 460 U.S. 739–44 (opinion
announcing judgment) (warrantless seizure of balloon
containing heroin during routine driver’s license
check was deemed to be lawful because officer had
probable cause to believe balloon contained narcotics);
United States v. Spoerke, 568 F.3d 1236, 1249 (11th
Cir. 2009) (warrantless seizure of homemade explosive
devices from car during traffic stop was lawful because
devices were in plain view); when government agents
inspect the contents of a package following a search by
employees of a private common carrier; United States
v. Jacobsen, supra, 466 U.S. 120–22 (warrant was not
necessary to seize contents of package searched by
employees of private common carrier because federal
agents had probable cause to believe package contained
narcotics); and when a law enforcement officer engages
in legitimate questioning during a Terry24 stop. See, e.g.,
United States v. Jones, 187 F.3d 210, 219–21 (1st Cir.
1999) (warrantless seizure of counterfeit currency discovered
during Terry stop after suspect removed it
from pocket was justified because seizure was based
on probable cause).
Contrary to the defendant’s contention, this principle
is no less applicable when the initial intrusion pursuant
to which the police gained access to the contraband in
question is not investigatory in nature. For example,
this court previously has concluded that ‘‘evidence of
crimes . . . when observed in plain view by fire officials
who are lawfully present on the premises, also
may be seized without a warrant.’’ State v. Eady, supra,
249 Conn. 438; see also United States v. Green, 474
F.2d 1385, 1389–90 (5th Cir.), cert. denied, 414 U.S. 829,
94 S. Ct. 55, 38 L. Ed. 2d 63 (1973). Similarly, police
may seize contraband that they observe while acting
pursuant to their community caretaking function or
while rendering aid to a person in distress. See, e.g.,
United States v. Johnson, 410 F.3d 137, 141–42, 144–45
(4th Cir.) (seizure of gun was upheld when officer acting
pursuant to community caretaking function found gun
while searching glove compartment for identification
after finding defendant unresponsive in vehicle), cert.
denied, 546 U.S. 952, 126 S. Ct. 461, 163 L. Ed. 2d 250
(2005); State v. Kuskowski, 200 Conn. 82, 84–85, 510
A.2d 172 (1986) (police officer properly seized narcotics
in plain view after observing them while assisting defendant
who was passed out in vehicle with propane torch
burning in his lap).
In State v. Lane, 328 N.C. 598, 403 S.E.2d 267, cert.
denied, 502 U.S. 915, 112 S. Ct. 319, 116 L. Ed. 2d 261
(1991), the Supreme Court of North Carolina applied
this principle in a factual context similar to the present
case. In Lane, the police responded to a report of a
suicide threat and found the defendant, Albert Lee Lane,
armed with a pistol. Id., 603. The police spoke with Lane,
who voluntarily gave the pistol and its ammunition to
the police. Id., 603, 611. While the police still had possession
of the pistol, they obtained probable cause to
believe that Lane was involved in a murder and that
the pistol was the murder weapon. See id., 611. Lane
sought to suppress the pistol and ammunition, contending
that, although he consented to the initial seizure
when the police responded to the report of a suicide
threat, the seizure became unreasonable when the
police retained the pistol and ammunition as evidence
of the murder. See id., 610–11. On appeal, the Supreme
Court of North Carolina upheld the trial court’s decision
not to suppress the pistol and ammunition, concluding
that, ‘‘since the pistol and ammunition were already
lawfully in the possession of the police officer, he was
not required to return [them] to the owner [because
there was] probable cause to retain [them].’’ Id., 611;
see also 4 W. LaFave, Search and Seizure (5th Ed. 2012)
§ 8.1 (c), pp. 58–61 (‘‘a consent to a seizure can be
withdrawn by requesting return of the seized article,
which however need not be complied with if there is
then probable cause to retain it as evidence’’ [emphasis
added; footnote omitted]).
As the foregoing demonstrates, when police have lawful
access to an item for which they have probable
cause to believe is evidence of a crime, it is not unreasonable
for them to seize that item without a warrant,
and this principle applies equally when the police have
access to the item in question due to an antecedent
seizure rather than a search.25 As we discussed previously,
there is no dispute, for purposes of this appeal,
that Reo lawfully had the knife in his possession when
he heard the broadcast indicating that the defendant
was wanted in connection with the assault. The question,
then, is whether Reo had probable cause to justify
retaining the knife as evidence.26
‘‘Probable cause, broadly defined, [comprises] such
facts as would reasonably persuade an impartial and
reasonable mind not merely to suspect or conjecture,
but to believe that criminal activity has occurred. . . .
In other words, because [t]he probable cause determination
is, simply, an analysis of probabilities . . .
[p]robable cause requires only a probability or substantial
chance of criminal activity, not an actual showing
of such activity.’’ (Citations omitted; internal quotation
marks omitted.) State v. Shields, 308 Conn. 678, 690,
69 A.3d 293 (2013), cert. denied, U.S. , 134 S.
Ct. 1040, 188 L. Ed. 2d 123 (2014). On the basis of Reo’s
testimony at the hearing on the defendant’s motion to
suppress, it is evident that the facts were more than
sufficient to lead a reasonable person to believe that
the knife was evidence of a crime. When Reo responded
to the area of Beaver Street and Rose Street, he found
that the defendant was ‘‘irritated’’ and ‘‘appeared to be
intoxicated . . . .’’ The defendant eventually asked for
a ride home, at which time the defendant informed Reo
that he had a knife in his pocket, which he voluntarily
handed to Reo. After dropping the defendant off at his
home, Reo heard a broadcast over the police radio
system indicating that the defendant was wanted for
an assault with a knife in the area of Beaver Street and
Rose Street, the same location at which Reo originally
encountered the defendant. At that time, Reo had sufficient
information to believe that the knife was used in
the assault, and he was justified in retaining the knife
as evidence. Accordingly, the trial court properly denied
the defendant’s motion to suppress.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
affirm the judgment of the trial court.
In this opinion ROGERS, C. J., and ZARELLA,
ESPINOSA and ROBINSON, Js., concurred.
1 The defendant apparently used a box cutter containing a razor blade.
In the interest of simplicity, we refer to the box cutter as a knife.
2 In Williams, we identified the following six factors that courts should
consider in determining whether prosecutorial impropriety deprived a defendant
of a fair trial: (1) the extent to which the impropriety was invited by
defense conduct or argument; (2) the severity of the impropriety; (3) the
frequency of the impropriety; (4) the centrality of the impropriety to the
critical issues in the case; (5) whether any curative measures were taken
by the trial court; and (6) the strength of the state’s case. State v. Williams,
supra, 204 Conn. 540.
3 We granted the state’s petition for certification to appeal, limited to
the following issue: ‘‘Did the Appellate Court properly determine that the
prosecutor’s improprieties during cross-examination and final argument violated
the defendant’s due process rights?’’ State v. Jones, 307 Conn. 957, 59
A.3d 1192 (2013).
We granted the defendant’s petition for certification to appeal, limited to
the following issue: ‘‘Did the Appellate Court properly affirm the trial court’s
denial of the defendant’s motion to suppress?’’ State v. Jones, 307 Conn.
958, 59 A.3d 1192 (2013).
After we granted the parties’ petitions for certification to appeal, the
defendant filed a preliminary statement of the issues pursuant to Practice
Book § 63-4 (a) (1), expressing his intention to present a claim, as an alternative
ground for affirmance, that the trial court improperly had instructed
the jury on the initial aggressor exception to self-defense.
4 The dissent asserts that the defendant has established that the improprieties
at issue in the present case violated his ‘‘right to testify and present a
defense,’’ in violation of the fifth, sixth and fourteenth amendments to the
United States constitution, and, as a consequence, the state bears the burden
of establishing that the improprieties were harmless beyond a reasonable
doubt. See, e.g., State v. Payne, 303 Conn. 538, 562–63, 34 A.3d 370 (2012)
(explaining that, when improper remarks by prosecutor implicate defendant’s
due process rights, defendant must prove that remarks were both
improper and harmful, but that, upon showing by defendant that prosecutor’s
improper remarks violate specifically enumerated constitutional right,
such as defendant’s right to remain silent or to present defense, burden
falls on state to establish harmlessness beyond reasonable doubt). In support
of this assertion, the dissent explains that the improprieties in the present
case so ‘‘weaken[ed]’’ the defendant’s credibility as to constitute an unconstitutional
‘‘impinge[ment]’’ on his right to testify in his own defense. The
dissent, however, cites no case law or other support for this conclusory
assertion, and, to our knowledge, no court ever has concluded that a violation
of Singh infringes impermissibly on an accused’s constitutional right to
testify. Because the sole issue we must decide is whether the improprieties
amounted to a deprivation of due process, the defendant bears the burden
of establishing that they were so serious as to render his trial fundamentally
unfair.
5 Specifically, the trial court instructed the jury at the commencement of
trial as follows: ‘‘Now, your function as the jury is to determine the facts.
You are the sole and exclusive judges of the facts, and you alone determine
the weight and effect, the value of the evidence, as well as the credibility
of the witnesses. You must weigh the testimony of all witnesses who appear
before you, and you alone are to determine whether to believe any witness
and the extent to which any witness should be believed.
* * *
‘‘Now, police officers will testify in this case. You must determine the
credibility of police officers in the same way as you would any other witness[
es], and testimony of a police officer is entitled to no special or exclusive
weight merely because it comes from a police official. You should recall
his or her demeanor on the stand, the manner of testifying, and weigh and
balance it just as carefully as you would the testimony of any other witness.
You should neither believe nor disbelieve the testimony of a police official
simply because he or she is, in fact, a police officer.’’
At the conclusion of the trial, the trial court reiterated the role of the jury
in assessing the credibility of police officers, stating: ‘‘You are entitled to
. . . accept any testimony which you believe to be true and to reject, either
wholly or in part, the testimony of any witness you believe has testified
untruthfully or erroneously. The credit that you will give to the testimony
offered is, as I have told you, something which you alone must determine.
* * *
‘‘As you will recall, there was testimony here from police officers. The
testimony of a police officer is entitled to no special [or] exclusive credibility
merely because it comes from a police officer. A police officer who takes
the witness stand subjects his testimony to the same tests that any other
witness does. You should not automatically believe or disbelieve them merely
because they are police officers. . . . You should weigh their testimony
just as you would that of any other witness[es].’’
6 The prosecutor cross-examined the defendant as follows:
‘‘Q. . . . [I]t’s your testimony that you didn’t have any marijuana?
‘‘A. No, sir, I did not have any marijuana.
‘‘Q. So, what Officer Georgoulis testified to today is all false?
‘‘A. Yes, sir.’’
7 During closing argument, the prosecutor stated as follows: ‘‘I ask you
to . . . look at the way these witnesses testified; think about whether or
not any of them have reasons to alter their testimony or falsely testify before
the court. The officers have nothing to gain. . . . Harris is not go[ing] [to]
gain anything. He’s not trying to avoid any kind of criminal charges; none
[was] ever filed because the police found there weren’t any to be charged
. . . . What we do have is [the defendant], who has every reason in the
world not to want to agree with . . . the correct factual scenario. . . . So,
he started concocting his version of the events, and his version became a
robbery where he’s the victim . . . .
‘‘[The defendant], before he was able to create this story, even told Officer
Reo, ‘I was in the area to buy marijuana.’ Ooh, now that’s a bad statement
when, two hours later, the police are arresting him, and, all of a sudden,
he’s got a bag of marijuana in his pocket. . . . Things are unraveling; one
story won’t work now. So, what’s the answer; the answer is, I never said
that; the police are lying apparently.
‘‘[The defendant] then has to explain, hmmm, how I’m gonna, you know,
how I’m gonna say I couldn’t just turn around and run away from . . .
Harris, who was coming after me.’’
8 We note that the dissent, in reaching a contrary determination, adopts
the conclusion of the Appellate Court that three of the four Singh violations
were especially harmful because, in those instances, ‘‘the defendant was
compelled to comment directly on the veracity of police witnesses’’; State
v. Jones, supra, 139 Conn. App. 478; and ‘‘[the] risk [that Singh violations
pose] is especially acute when the witness is a government agent in a criminal
case. . . . Indeed, Connecticut courts routinely instruct juries that they
should evaluate the credibility of a police officer in the same way that they
evaluate the testimony of any other witness . . . no doubt to check the
heightened credibility that government agents are afforded by some jurors.’’
(Citation omitted; internal quotation marks omitted.) Id. As the state maintains,
however, the Appellate Court failed to distinguish between the assault
and the drug charges and, as a result, failed to consider what, if any, prejudicial
effect the improprieties relating to the drug charge had on the assault
charge, as it was required to do in assessing harmfulness. Indeed, neither
the Appellate Court nor the dissent offers an explanation as to why Singh’s
concern regarding the heightened credibility that jurors may afford police
officers bears any relevance at all in a case, like the present one, in which
the police provided no material testimony with respect to the charge of
which the defendant was convicted.
9 The dissent asserts that we are ‘‘missing the point’’ in concluding that
the Singh violations were necessarily harmless insofar as they related to
the police testimony because the purpose of that improper questioning was
to undermine the defendant’s credibility generally. Whatever the intent of
the prosecutor, however, the issue that we must address is whether that
questioning was, in fact, harmful. The questioning pertaining to the police
testimony was demonstrably not harmful because, as we have explained,
the jury verdict of not guilty on the drug charge reflects the fact that, the
Singh violations notwithstanding, the jury refused to credit the testimony
of the police officers over that of the defendant. In such circumstances, the
potential for harm that a Singh violation creates simply is not realized.
10 The following is the relevant portion of the prosecutor’s cross-examination
of the defendant:
‘‘Q. . . . [D]id . . . Harris ask you for change so that he could get narcotics?
‘‘A. Yes, he did.
‘‘Q. This is after you told him to ‘F’ off in front of the grocery store earlier
that night?
‘‘A. Yes, it is.
‘‘Q. Now, all this testimony from . . . Harris then about the bus stop;
that was a lie?
‘‘A. Yes, it was.
‘‘Q. And, all the police officers’ testimony is a lie?
‘‘A. I didn’t say that. What part of their testimony?
‘‘Q. The part of the testimony that contradicts everything about a robbery.
. . . [I]sn’t it true that your whole story is made up to fit the fact that you
were caught by the police before you could get away from the scene?
* * *
‘‘A. No, that’s not true.’’
11 Indeed, a review of the record suggests that the prosecutor may have
misspoken or been momentarily confused when he posed the question. The
defendant obviously was confused by the question because he asked what
the prosecutor was talking about and flatly denied ever having said or
suggested that the officers had lied about the larceny.
12 Of course, we do not foreclose the possibility that, in a particular case,
Singh violations alone would result in sufficient prejudice to the defendant
to warrant a new trial.
13 Thus, the Singh violations pertained to a central issue in the case. In
addition, there is nothing in the record to suggest that those violations were
invited by defense counsel.
14 The dissent indicates that we have failed to consider the cumulative
effect of the Singh violations in evaluating whether the defendant was
harmed by those violations. We have done no such thing. If we appear to
have ‘‘parse[d] [the] improprieties by the charge,’’ as the dissent alleges, it
is only because we are required to consider the effect of the Singh violations
on the individual charges; see State v. Spencer, supra, 275 Conn. 182; and
because the present case presents the unusual scenario in which the jury
found the defendant not guilty of the charge that was associated with the
most serious Singh violations, a fact that we must accord significant weight
in evaluating whether the improprieties as a whole deprived the defendant
of a fair trial.
We note, moreover, that ‘‘are they lying’’ questions are prohibited not
because they are so inherently prejudicial as to always require a new trial;
they are barred, rather, to reduce the risk of the occurrence of specific
harms, such as dilution of the state’s burden of proof. See, e.g., State v.
Singh, supra, 259 Conn. 707–10 (identifying risks attendant to asking witness
to comment on veracity of other witnesses). Rather than explain why we
are mistaken in our conclusion that, for reasons unique to the present case,
none of those harms is implicated, the dissent appears to take the position
that simply asking a defendant whether another witness has lied always
will be harmful in a case that pits the defendant’s testimony against that of
another witness, even if the witness on whose veracity the defendant is
asked to opine provided no material testimony in the case. For example,
the dissent states that, ‘‘if we consider these questions improper and have
clearly stated that prohibition so that prosecutors, who are officers of the
court, know that they are improper, we must hold such officers of the
court accountable,’’ and that, ‘‘on three separate occasions, the prosecutor
deliberately violated Singh by explicitly asking the defendant to comment
on the veracity of other witnesses . . . .’’ In taking such a position, the
dissent misapplies Singh by improperly conflating the issue of whether an
impropriety occurred with the separate and distinct issue of whether that
impropriety deprived the defendant of a fair trial. Furthermore, in seeking
to hold the prosecutor accountable for the Singh violations by reversing
the judgment of conviction, the dissent contravenes the well established
rule that ‘‘[t]he fairness of the trial and not the culpability of the prosecutor
is the standard for analyzing the constitutional due process claims of criminal
defendants alleging prosecutorial [impropriety].’’ (Internal quotation marks
omitted.) State v. Paul B., 315 Conn. 19, 36, 105 A.3d 130 (2014).
Finally, the dissent asserts that we have ‘‘essentially overrule[d]’’ Singh
in light of our determination that any possible prejudice that might inure
to a defendant by virtue of a Singh violation is minimal when, as in the
present case, either the defendant or the witness on whose credibility the
defendant has been asked to comment is, in fact, lying. On the contrary,
we expressly reaffirm Singh’s prohibition against ‘‘are they lying’’ questions.
We simply conclude that, under the circumstances of this case, in which
the defendant’s sole claim with respect to the assault charge was that Harris
was untruthful, asking the defendant directly whether the victim was lying,
although improper, gave rise to no material harm.
15 The defendant raises several additional claims of prosecutorial impropriety
that the Appellate Court declined to address; see State v. Jones, supra,
139 Conn. App. 477; none of which is persuasive. For example, the defendant
contends that it was improper for the prosecutor to argue that, when the
police arrived on the scene, the defendant had to concoct a story about a
robbery in order to divert suspicion away from him. The defendant also
contends that it was improper for the prosecutor to argue that the state’s
witnesses had nothing to gain from testifying untruthfully whereas the defendant
had everything to gain from doing so. As we previously have explained,
however, ‘‘in a case that essentially reduces to which of two conflicting
stories is true, it may be reasonable to infer, and thus to argue, that one of
the two sides is lying.’’ (Internal quotation marks omitted.) State v. Ciullo,
supra, 314 Conn. 52. As we also have stated previously, it is not improper
for a prosecutor to argue that the victim and the police had no reason to
lie whereas the defendant did when, as in the present case, the argument
merely underscores an inference that the jury readily could have drawn
entirely on its own. See State v. Stevenson, 269 Conn. 563, 584–86, 849
A.2d 626 (2004). The defendant further argues that the prosecutor was
unnecessarily sarcastic and ‘‘made veiled assertions against [the defendant’s]
character’’ by arguing, among other things, that the defendant, by his own
admission, frequents an area ‘‘known for drug activity’’ with ‘‘large sums of
money’’ just to ‘‘hang out’’ and ‘‘apparently, is a very nice person who is
willing to make change for people in a drug area . . . . He’s even so trusting
as to be willing to hand that person the money while he looks for the rest
of the change . . . .’’ Although this court neither encourages nor condones
the use of sarcasm because its needless or excessive use may improperly
influence the jury; see, e.g., State v. Salamon, 287 Conn. 509, 564, 949 A.2d
1092 (2008); we do not believe that the remarks at issue exceeded the
bounds of fair argument. We conclude, rather, that the prosecutor simply
was urging the jury to draw an inference supported by the evidence, namely,
that the defendant’s account of the circumstances surrounding the assault
was manifestly unbelievable. Cf. State v. Stevenson, supra, 584 (prosecutor’s
remark during closing argument describing defendant’s explanation as
‘‘ ‘totally unbelievable’ ’’ was ‘‘a comment on the evidence presented at trial,
and it posited a reasonable inference that the jury itself could have drawn’’).
Finally, the defendant contends that, on several occasions, the prosecutor
argued facts that were not in evidence. For example, the defendant claims
that the prosecutor improperly argued: ‘‘If [Harris is] a drug user, wouldn’t
he know where to get the drugs from? Would he walk up to somebody, a
stranger such as [the defendant], and say, hey, can I buy crack cocaine?
We know . . . Harris is not a drug user. He did in high school, and he
admitted that to everybody right there on the stand, yep, high school; [he]
tried marijuana. But . . . Harris also has proof that he hasn’t been using
marijuana or any other drug since then. Thirty-one years with Kimberly-
Clark [Corporation], which has a drug policy testing program; he’s clear.’’
We reject this claim because the prosecutor’s argument was adequately
rooted in the evidence. Although it is true, as the defendant asserts, that
the state presented no direct proof, apart from Harris’ own testimony, that
Harris had not used drugs in more than thirty years, it is clear that the
‘‘proof’’ to which the prosecutor referred was, in fact, Harris’ testimony
concerning his former employer’s mandatory drug testing policy, which
Harris had cited as the reason he did not use drugs. If the jurors had credited
this testimony, as they were free to do, they reasonably could have found
that Harris was not a drug user and that the defendant’s assertions to the
contrary were false.
16 The Appellate Court did not address this claim because it concluded
that the defendant was entitled to a new trial on the basis of his prosecutorial
impropriety claims. See State v. Jones, supra, 139 Conn. App. 471 n.2. After
we granted the state’s petition for certification, the defendant filed a statement
pursuant to Practice Book § 63-4 (a) (1) indicating that he intended
to present his instructional claim as an alternative ground for affirmance.
17 The defendant contends that he preserved this claim for appellate review
by virtue of the jury instructions that the defense requested in the trial
court, and the state does not contest this assertion.
18 See Connecticut Criminal Jury Instructions § 2.8-2 (B), available at
https://www.jud.ct.gov/JI/criminal/part2/2.8-2.htm#B (last visited December
4, 2015).
19 We recognize that, because the defendant in Revels claimed that the
trial court’s instruction was plain error; State v. Revels, supra, 313 Conn.
782–83; this court’s review of his claim arguably was more limited than our
review under the plenary standard that applies in the present case. See id.,
783–84. We nevertheless rely on our reasoning in Revels because our analysis
therein with respect to the issue of whether the trial court’s instruction
misled the jury is no less applicable to our consideration of the instructions
in the present case.
20 We disagree with the defendant’s contention that Harris’ testimony was
equivocal on this point. As the state observes, Harris clearly and unequivocally
testified that the defendant started attacking him almost immediately
after he approached him on Beaver Street.
21 As we explained previously; see part I of this opinion; the defendant’s
testimony concerning his altercation with Harris was diametrically opposed
to Harris’ testimony about that encounter. Consequently, the jury was
required to decide which one was telling the truth and which one was not,
and the jury obviously credited the testimony of Harris over that of the
defendant. Although it is theoretically possible that the jury did not credit
all of Harris’ testimony with respect to the precise manner in which the
assault occurred, there is nothing in the record to suggest that the jury did
not credit his testimony in all material respects.
22 The fourth amendment to the United States constitution provides: ‘‘The
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, supported by oath or affirmation,
and particularly describing the place to be searched, and the persons
or things to be seized.’’
The defendant also makes a claim under article first, § 7, of the Connecticut
constitution. He does not contend, however, that article first, § 7, provides
broader protection than the fourth amendment under the circumstances
presented, and, in fact, he has not separately briefed and analyzed his
state constitutional claim. Accordingly, we address the defendant’s federal
constitutional claim only. See, e.g., In re Kevin K., 299 Conn. 107, 126 n.11,
7 A.3d 898 (2010) (deeming state constitutional claim abandoned because
it was not separately briefed and analyzed).
23 In doing so, the state also implicitly acknowledges that the trial court
and the Appellate Court incorrectly concluded that the police did not exceed
the scope of the defendant’s initial consent when, without obtaining a warrant,
they retained the knife as evidence in connection with his assault
against Harris. We agree with the state that the defendant’s consent to
temporarily turning over the knife to the police for safekeeping does not
extend to the state’s retention of the knife for use as evidence against him.
24 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In
Terry, the United States Supreme Court concluded that police officers may
briefly detain an individual if they have reasonable and articulable suspicion
to believe that he is involved in criminal activity. See id., 22.
25 In support of his contrary contention, the defendant relies on cases in
which courts have indicated that a warrant is required when the subsequent
search or seizure involves a greater intrusion on the defendant’s privacy
interests. See, e.g., Reedy v. Evanson, 615 F.3d 197, 227–30 (3d Cir. 2010)
(plaintiff agreed to have her blood tested ‘‘for the purpose of evaluating the
extent of her injuries and risk of disease from a sexual assault, and for the
purpose of gathering physical evidence to prosecute her assailant,’’ but
police violated her fourth amendment rights by conducting additional drug
testing for investigative purposes because that testing fell outside scope of
her consent, and plaintiff ‘‘indisputably had a reasonable expectation of
privacy in her blood when it was drawn, and she did nothing to forfeit that
expectation’’), cert. denied, 562 U.S. 1256, 131 S. Ct. 1571, 179 L. Ed. 2d 474
(2011); cf. State v. Jackson, supra, 304 Conn. 404 (New Haven police obtained
defendant’s clothing from New York City police and subjected it to DNA
testing, but no fourth amendment violation occurred because ‘‘the mere
transfer of the defendant’s lawfully seized clothes . . . did not result in any
greater intrusion into the defendant’s privacy than had occurred during the
initial lawful seizure, and the New Haven police obtained a search warrant
before they subjected the clothes to forensic testing’’). In the present case,
the mere retention of the knife involved no further intrusion into the defendant’s
privacy interests than did the initial seizure, and no forensic testing
was conducted on the knife that would have brought this case within the
ambit of the cases on which the defendant relies.
26 Although the trial court did not address the issue of whether the police
had probable cause, we may do so on appeal because whether a set of facts
is sufficient to satisfy the probable cause standard is subject to plenary
review; e.g., State v. Johnson, 286 Conn. 427, 433, 944 A.2d 297, cert. denied,
555 U.S. 883, 129 S. Ct. 236, 172 L. Ed. 2d 144 (2008); and the record of the
motion to suppress contains undisputed facts sufficient for our consideration
of that issue. Cf. State v. Torres, 230 Conn. 372, 379, 380, 645 A.2d 529 (1994)
(addressing unpreserved claim that police lacked reasonable suspicion to
justify canine sniff of automobile because ‘‘the question of whether reasonable
and articulable suspicion arises from an underlying set of facts is a
legal conclusion that, if made by a trial court, is subject to plenary review,’’
and ‘‘the record contain[ed] undisputed facts sufficient to [address that
claim]’’). We further note that, for present purposes, the defendant does
not contend that the record is inadequate for our resolution of this issue.

Outcome: The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.

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