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*********************************************** 
STATE OF CONNECTICUT v. ROBERT B.*

(AC 42423)

Lavine, Prescott and Moll, Js.

Syllabus

Convicted of the crimes of unlawful restraint in the first degree and breach

of the peace in the second degree in connection with an incident involving his former wife, T, and their two sons, the defendant appealed to

this court. He claimed that he was denied his constitutional right to a

fair trial and that the trial court erred by not instructing the jury on a

certain lesser included offense. Held:

1. The defendant could not prevail on his claim that his rights to due process

and a fair trial were violated when T testified on cross-examination as

to his prior bad acts and arrests, his claim being unpreserved and not

of constitutional magnitude: the claim was not reviewable because the

defendant failed to preserve it at trial by either moving to strike the

testimony at issue or seeking a curative instruction; moreover, the defendant’s claim was not of constitutional magnitude, and, therefore, not

reviewable under the second prong of State v. Golding (213 Conn. 233),

the admission of evidence of a defendant’s other crimes being controlled

by the law of evidence, not principles of constitutional law.

2. The defendant could not prevail on his claim that he was denied a fair

trial due to prosecutorial impropriety in that one of the two prosecutors

who represented the state objected during his cross-examination of a

witness despite not having conducted the direct examination of that

witness, the claimed error having not constituted prosecutorial impropriety; our rule of practice (§ 5-4), on which the defendant based his claim,

concerns the examination or cross-examination of a single witness by

counsel for one party, and there is nothing explicit in the rule regarding

whether one counsel alone is required to object to opposing counsel’s

examination of a witness.

3. The defendant could not prevail on his claim that the trial court erred

by failing to instruct the jury on the lesser included offense of unlawful

restraint in the second degree, his claim being unpreserved, as it was

waived; the defendant did not submit a request to charge, ask the court

to include an instruction on that lesser included offense after he had

reviewed the court’s proposed charge, or take an exception to the charge

as given, and therefore acquiesced in the charge and waived the right

to raise the claim on appeal.

Argued June 29—officially released October 6, 2020

Procedural History

Substitute information charging the defendant with

the crimes of unlawful restraint in the first degree and

breach of the peace in the second degree, brought to

the Superior Court in the judicial district of StamfordNorwalk, geographical area number one, and tried to

the jury before Blawie, J.; verdict and judgment of

guilty, from which the defendant appealed to this

court. Affirmed.

Michael J. Tortora, for the appellant (defendant).

James M. Ralls, senior assistant state’s attorney, with

whom, on the brief, were Richard J. Colangelo, Jr.,

former state’s attorney, and Michael Nemec, deputy

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

LAVINE, J. The defendant, Robert B.,1 appeals from

the judgment of conviction, rendered after a jury trial,

of unlawful restraint in the first degree in violation of

General Statutes § 53a-95 and breach of the peace in

the second degree in violation of General Statutes § 53a181 (a) (1). On appeal, the defendant claims that (1)

he was denied his constitutional right to a fair trial

when a witness repeatedly testified about the defendant’s prior bad acts and arrests, (2) the court erred

by not instructing the jury on the lesser included offense

of unlawful restraint in the second degree, and (3) he

was denied a fair trial due to prosecutorial impropriety

because one of the two prosecutors who represented

the state objected during the defendant’s cross-examination of a witness despite not having conducted the

direct examination of that witness. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. The

defendant and his former wife, T, were divorced in 2003.

They have two sons, P and D, who were nineteen and

sixteen, respectively, at the time of the underlying incident. On the morning of August 12, 2017, T and the

sons (collectively, victims) were leaving the office of a

Stamford dentist by the rear stairs. They saw a man

wearing a hat and sunglasses, facing away from them,

standing at the bottom of the stairs, blocking their way.

When the victims reached the bottom of the stairs, the

man grabbed D’s arm and stated: ‘‘Happy Birthday . . .

we got to go to court.’’2 The victims then recognized

the defendant. T instructed the sons to get into her car.

Before they could do so, the defendant grabbed D from

behind, held him around the neck and stomach, and

dragged him toward his vehicle, which was parked in

front of the building. T and P yelled for the defendant

to stop and tried to pull D from the defendant’s grasp.

D struggled to free himself. His shoes came off and his

feet were dragged on the ground as he was pulled by

the defendant. A dental patient who noticed the incident

went into the dentist’s office and asked someone to

called 911. The defendant put his cell phone in T’s face

and stated that he was recording her.

T pulled the defendant’s sunglasses from his face and

threw them into the street. P blocked the defendant

from putting D into his car. A third party came from a

nearby business and pushed the defendant away from

D, who was able to run across the street away from

the defendant. The defendant got into his vehicle and

drove away. After the police arrived, the victims went

to the police department and gave written statements.

Members of the Stamford Police Department investigated the incident and arrested the defendant pursuant

to a warrant on August 18, 2017.3 He was charged in a
long form information with unlawful restraint in the

first degree and breach of the peace in the second

degree.4 The defendant, who represented himself,

pleaded not guilty and elected to be tried by a jury. The

presentation of evidence commenced on September 20,

2018. On September 24, 2018, the jury found the defendant guilty of both charges. The court sentenced the

defendant to eighteen months of incarceration on the

unlawful restraint conviction and six months of incarceration on the breach of the peace conviction, to be

served concurrently, for a total effective sentence of

eighteen months in prison and a $5000 fine. The defendant appealed.

I

The defendant first claims that his rights to due process and a fair trial were violated when a witness, T,

testified on cross-examination as to the defendant’s

prior bad acts and arrests. The defendant’s claim fails

because it is unpreserved and is not of constitutional

magnitude.

The following facts are relevant to the defendant’s

claim. The state called T to testify about the August

12, 2017 incident. On cross-examination, the defendant

questioned T in such a way that he elicited the testimony

about which he now complains, claiming that the testimony violated his constitutional right not to have evidence of his prior bad acts placed before the jury.5 The

defendant argues that ‘‘[a]t no time during the trial did

the trial court ever instruct [T] to stop making such

improper statements nor did [the court strike] the evidence from the record or give a curative instruction.’’6

To support his claim, the defendant relies on State v.

Ferrone, 97 Conn. 258, 116 A. 336 (1922). See id., 266

(‘‘[e]vidence tending to show the commission of other

crime on the part of the accused, or facts disclosing

his bad character or repute, are not material or relevant

to the charge against the accused, and should never be

permitted to be introduced; for its purpose can be none

other than to prejudice the jury against the accused,

and hence to deny him the fair trial which the law

guarantees him of being proven guilty of the crime with

which he stands charged by evidence which our law

accepts’’). The defendant also relies on cases in which

our appellate courts have addressed the propriety of

the state’s having introduced a defendant’s prior misconduct. See, e.g., State v. Nash, 278 Conn. 620, 655–60,

899 A.2d 1 (2006) (rationale of rule is to guard against

use of prior misconduct merely to show evil disposition

of accused); State v. Boykin, 74 Conn. App. 679, 682–89,

813 A.2d 143 (remark’s lack of specificity did not

unfairly prejudice defendant), cert. denied, 263 Conn.

901, 819 A.2d 837 (2003).

In response, the state argues that there was no error

because the defendant, not the state, elicited T’s testimony at issue during his cross-examination of her.7 See
footnote 5 of this opinion. More significantly, however,

the state contends that the claim is evidentiary in nature,

not constitutional, and therefore, is not reviewable

because the defendant failed to move to strike T’s testimony and thus preserve the claim for appellate review.

We agree that the claim is not reviewable because the

defendant failed to preserve it at trial by either moving

to strike the testimony or seeking a curative

instruction.8

‘‘[T]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled.

This court is not bound to consider claims of law not

made at the trial. . . . In order to preserve an evidentiary ruling for review, trial counsel must object properly. . . . In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise

the trial court of the precise nature of the objection

and its real purpose, in order to form an adequate basis

for a reviewable ruling.’’ (Internal quotation marks omitted.) State v. Jorge P., 308 Conn. 740, 753, 66 A.3d

869 (2013).

The defendant requests, if we determine that the

claim is not preserved, that we review it pursuant to

State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823

(1989), as modified by In re Yasiel R., 317 Conn. 773,

781, 120 A.3d 1188 (2015). A defendant can prevail on

an unpreserved claim under Golding if four conditions

are met: (1) the record is adequate for review, (2) the

claim is of constitutional magnitude alleging the violation of a fundamental right, (3) the ‘‘violation . . .

exists and . . . deprived’’ the defendant of a fair trial,

and (4) if subject to harmless error analysis, the state

failed to demonstrate the harmlessness of the error

beyond a reasonable doubt. See State v. Golding, supra,

239–40. ‘‘[T]he first two [prongs of Golding] involve a

determination [as to] whether the claim is reviewable;

the second two . . . involve a determination [as to]

whether the defendant may prevail.’’ (Internal quotation

marks omitted.) State v. Whitford, 260 Conn. 610, 621,

799 A.2d 1034 (2002). The defendant’s claim is not

reviewable because it is not of constitutional magnitude.

Generally, ‘‘evidence of the commission of other

crimes or specific acts of misconduct is inadmissible

to prove that a defendant is guilty of the crime charged

against him.’’ State v. Talton, 197 Conn. 280, 289, 497

A.2d 35 (1985). The admission of evidence of a defendant’s other crimes is controlled by the law of evidence,

not principles of constitutional law. See State v. Gardner, 297 Conn. 58, 65, 1 A.3d 1 (2010) (erroneous introduction of prior misconduct evidence involves claim

arising under state law and does not involve constitutional right). Because the defendant’s unpreserved

claim is an evidentiary one, it is not of constitutional

magnitude. He, therefore, is not entitled to review pur-
suant to Golding.

II

The defendant’s second claim is that the court erred

by failing to instruct the jury on the lesser included

offense of unlawful restraint in the second degree.9 The

defendant cannot prevail on the claim because it is

unpreserved.

The following facts are relevant to the defendant’s

claim. On September 20, 2018, immediately prior to the

swearing in of the jurors, the court, the defendant and

the prosecutors discussed a variety of matters related

to the trial. The court asked the defendant whether

there was anything that he wished to say. The defendant

represented that the last time he was in court with the

prosecutors, Steven Weiss and Michael Nemac, Weiss

mentioned that he wanted ‘‘to drop the unlawful

restraint in the first down to unlawful restraint in the

second.’’ The defendant was concerned that the state

was adding an additional charge against him. The court

understood the defendant’s concern and explained that

the state could not add an additional charge at that

time. Nemec then addressed the court: ‘‘The state would

ask—at the time we discuss the charge to the jury, the

state is going to be asking for—I think this is what [the

defendant] is referring to. I did bring it up with Judge

White. Just—I wanted it on the record I’m providing

notice that the state would be asking for unlawful

restraint in the second degree as a lesser included

offense. We’d be asking Your Honor for—at the time

of charging that that charge be included.’’

The court explained the lesser included defense doctrine to the defendant. The court then stated: ‘‘So I

understand your point and then we can have additional

discussions about this as the—when the time comes,

but the state should be prepared to submit a properly

drafted request to charge, especially for the benefit of

[the] self-represented party as to what you’re discussing. And I’ve only given you very preliminary discussion of it. I have not made a ruling on whether a

lesser included offense is proper, but in light of what

the state said, that’s sort of what I’m telling you.’’

(Emphasis added.)

During the presentation of evidence, the defendant

placed into evidence the incident report from the Stamford Police Department listing the offenses committed

as breach of the peace in the second degree and unlawful restraint in the second degree. At the conclusion of

evidence, the court inquired of the state whether it

would be seeking a lesser included offense instruction

with respect to the charge of unlawful restraint in the

second degree as it had previously indicated. The state

responded that it would file a request to charge on

Monday, September 24, 2018. The court stated that it

would take up the matter during a charge conference.
On Monday, when the court asked the state whether it

was proceeding on any lesser included offense, the state

answered that it was not. The court stated that it was

a two count information, as drafted.

During the charge conference, the court discussed

the procedures for summation and informed the defendant that he could not make any argument regarding

plea offers because they were not in evidence. But,

because the police incident report that the defendant

had put into evidence stated the offense was unlawful

restraint in the second degree, the defendant could

argue that crime. See footnote 3 of this opinion. The

court provided the parties with copies of its proposed

charge, which it reviewed with the defendant and the

prosecutors and solicited comments from them.10 Notably, the defendant did not file a request to charge, and

he did not request that the court instruct the jury on

the lesser included offense of unlawful restraint in the

second degree. During the state’s final argument,

Nemec argued that the jury should find the defendant

guilty of unlawful restraint in the first degree, explicitly

discussing the elements of that crime. Nemec did not

mention unlawful restraint in the second degree. When

the defendant presented his final argument, he did not

mention unlawful restraint in the second degree. The

court instructed the jury only on unlawful restraint in

the first degree and breach of the peace in the second

degree. The defendant took no exception to the instruction as given by the court.

On appeal, the defendant claims that the state ‘‘clearly

and unequivocally placed the defendant on notice that

the lesser included charge of unlawful restraint in the

second degree would be charged.’’ He argues that,

although he did not take an exception to the charge,

the record does not indicate that he acquiesced to the

charge as he was ‘‘under the impression [that] he could

argue it during closing and therefore, it cannot be concluded that [he] abandoned his request.’’11 The state

argues that the claim is unpreserved and, therefore, the

defendant is not entitled to review of it. We conclude

that the defendant waived his right to appellate review

of his claim of instructional error.

In Connecticut, ‘‘unpreserved claims of improper jury

instructions are reviewable under [State v. Golding,

supra, 213 Conn. 239–40] unless they have been . . .

implicitly waived.’’ State v. Kitchens, 299 Conn. 447,

468, 10 A.3d 942 (2011). ‘‘[W]aiver is an intentional relinquishment or abandonment of a known right or privilege. . . . It involves the idea of assent, and assent is

an act of understanding. . . . The rule is applicable

that no one shall be permitted to deny that he intended

the natural consequences of his acts and conduct. . . .

In order to waive a claim of law it is not necessary . . .

that a party be certain of the correctness of the claim

and its legal efficacy. It is enough if he knows of the
existence of the claim and of its reasonably possible

efficacy. . . . Connecticut courts have consistently

held that when a party fails to raise in the trial court the

constitutional claim present on appeal and affirmatively

acquiesces to the trial court’s order, that party waives

any such claim [under Golding].’’ (Citation omitted;

internal quotation marks omitted.) Id., 469.

Implied waiver may be found when counsel fails ‘‘to

take exception or object to the instructions together

with (1) acquiescence in, or expressed satisfaction with,

the instructions following an opportunity to review

them, or (2) references at trial to the underlying issue

consistent with acceptance of the instructions ultimately given.’’ Id., 469–70. The rationale for the implied

waiver rule is that ‘‘[t]o allow [a] defendant to seek

reversal [after] . . . his trial strategy has failed would

amount to allowing him to . . . ambush the state [and

the trial court] with that claim on appeal.’’ (Internal

quotation marks omitted.) Id., 470.

In the present case, the defendant did not submit a

request to charge, ask the court to include an instruction

on the lesser included offense of unlawful restraint in

the second degree after he had reviewed the court’s

proposed charge, or take an exception to the charge

as given. The defendant therefore acquiesced in the

charge and waived the right to raise the claim on appeal.

The defendant’s instructional claim therefore is not

reviewable.

III

The defendant’s third claim is that he was denied a

fair trial due to prosecutorial impropriety because one

of the two prosecutors who represented the state

objected during the defendant’s cross-examination of

a witness despite not having conducted the direct examination of that witness. We disagree.

We begin with the well-known standard of review

for claims of prosecutorial impropriety. ‘‘In analyzing

claims of prosecutorial impropriety, we engage in a two

step analytical process. . . . The two steps are separate and distinct. . . . We first examine whether prosecutorial impropriety occurred. . . . Second, if an

impropriety exists, we then examine whether it

deprived the defendant of his due process right to a

fair trial. . . . In other words, an impropriety is an

impropriety, regardless of its ultimate effect on the fairness of the trial. Whether that impropriety was harmful

and thus caused or contributed to a due process violation involves a separate and distinct inquiry.’’ (Internal

quotation marks omitted.) State v. Pernell, 194 Conn.

App. 394, 403, 221 A.3d 457, cert. denied, 334 Conn.

910, 221 A.3d 44 (2019). If we first determine that an

impropriety exists, we then apply the factors set forth

in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653

(1987). Because we conclude that there was no prosecu-
torial impropriety as claimed by the defendant, we need

not address the Williams factors.

The defendant grounds his claim of prosecutorial

impropriety in the following facts, about which there

is no dispute. Prosecutors Nemec and Weiss represented the state at trial. The defendant has assumed

that Nemec was the lead counsel as he called all of the

state’s witnesses and conducted the direct examination

of each of them. Nemec also made the state’s final

argument. During the defendant’s cross-examination of

the state’s witnesses, however, Weiss voiced objections

to the defendant’s questions. Also, both Nemec and

Weiss responded to questions from the court throughout trial. The defendant acknowledges that it is common

practice for a party to have lead counsel and a second

chair, but that it was fundamentally unfair for both

Nemec and Weiss to ‘‘flip flop’’ as to who was doing the

examination and who was objecting during his crossexamination of the witnesses whom Nemec called and

examined. The defendant claims that he was prejudiced

by having to defend himself against not one, but two,

prosecutors at the same time. Although the defendant

never objected to the prosecutor’s ‘‘flip flop,’’ he claims

on appeal that the court should have stopped the ‘‘flip

flop’’ from happening and issued a warning to the prosecutors. The defendant also claims that had Weiss’ objections not been sustained by the court, he would have

been able to present further evidence through crossexamination that would have led the ‘‘jury to think differently.’’12

The defendant bases his claim on Practice Book § 5-

4. Section 5-4 provides: ‘‘The counsel who commences

the examination of a witness, either in chief or on crossexamination, must alone conduct it; and no associate

counsel will be permitted to interrogate the witness,

except by permission of the judicial authority.’’13

‘‘The interpretative construction of the rules of practice is to be governed by the same principles as those

regulating statutory interpretation. . . . The interpretation and application of a statute, and thus a Practice

Book provision, involves a question of law over which

our review is plenary. . . . In seeking to determine

[the] meaning [of a statute or rule of practice, we] . . .

first . . . consider the text of the statute [or rule] itself

and its relationship to other statutes [or rules]. . . . If,

after examining such text and considering such relationship, the meaning of such text is plain and unambiguous

and does not yield absurd or unworkable results, extratextual evidence . . . shall not be considered.’’ (Internal quotation marks omitted.) Deutsche Bank National

Trust Co. v. Fraboni, 182 Conn. App. 811, 818–21, 191

A.3d 247 (2018). ‘‘We recognize that terms [used] are

to be assigned their ordinary meaning, unless context

dictates otherwise. . . . Put differently, we follow the

clear meaning of unambiguous rules, because
[a]lthough we are directed to interpret liberally the rules

of practice, that liberal construction applies only to

situations in which a strict adherence to them [will]

work surprise or injustice.’’ (Internal quotation marks

omitted.) Id., 822.

Practice Book § 5-4 concerns the examination or

cross-examination of a single witness by counsel for

one party. Counsel who commences the examination or

cross-examination alone must conduct it; no associate

counsel may conduct the examination without permission of the judicial authority. There is nothing explicit

in § 5-4 regarding whether one counsel alone is required

to object to opposing counsel’s examination of a witness. Considering all of the circumstances present, we

do not conclude that the claimed error constitutes prosecutorial impropriety, although we do not approve of

the practice engaged in by the prosecutors and discourage its use in the future. See, e.g., State v. Bermudez,

195 Conn. App. 780, 824, 228 A.3d 96 (not every misstep

by prosecutor amounts to impropriety), cert. granted

on other grounds, 335 Conn. 908, 227 A.3d 521 (2020);

State v. Roberts, 158 Conn. App. 144, 152, 118 A.3d 631

(2015) (same).

The judgment is affirmed.

In this opinion the other judges concurred.

* In accordance with our policy of protecting the privacy interests of the

victims of family violence, we decline to identify the victims or others

through whom the victims’ identities may be ascertained. See General Statutes § 54-86e.

Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)

(2018); we decline to identify any party protected or sought to be protected

under a protective order or a restraining order that was issued or applied

for, or others through whom that party’s identity may be ascertained.

1 The defendant represented himself at the criminal trial but was represented by counsel at sentencing and on appeal.

2 Although the defendant and T were divorced in 2003, they apparently

have had a contentious and litigious relationship since that time and the

sons allegedly are estranged from the defendant. The record, however, does

not disclose why the defendant acted as he did on August 12, 2017.

3 The offenses listed on the Stamford Police Department incident report

were breach of the peace in the second degree and unlawful restraint in

the second degree.

4 Count one of the information charged the defendant with unlawful

restraint in the first degree, in that ‘‘in the city of Stamford, on [or] about

August 12, 2017, [the defendant] did restrain another person, [D], under

[circumstances] which did expose that person to a substantial risk of physical injury in violation of [§] 53a-95 (a) of the . . . General Statutes.’’

Count two of the information charged the defendant with breach of the

peace in the second degree, in that ‘‘in the city of Stamford, on [or] about

August 12, 2017, [the defendant] with intent to cause inconvenience, annoyance and alarm, and recklessly creating a risk thereof, such person did

engage in fighting and in violent, tumultuous, and threatening behavior in a

public place, in violation of [§] 53a-181 (a) (1) of the . . . General Statutes.’’

5 As examples of the testimony about which he complains, the defendant

included the following portions of his cross-examination of T in his brief:

‘‘[The Defendant]: Okay. Okay. So . . . when you came out of the dentist

office, you walked into the parking lot?

‘‘[T]: When I came out of the dentist office, I opened the door and there

were the stairs and there [you were] blocking them.

‘‘[The Defendant]: Blocking the stairs?

‘‘[T]: That’s correct.

‘‘[The Defendant]: So you were stuck on the stairs?

‘‘[T]: Your body was to the right. There’s three stairs down exactly. Your
body was right at the bottom of the third step. And immediately I started

panicking when I realized it was you because you had—

‘‘[The Defendant]: Why did you panic?

‘‘[T]: —glasses and—

‘‘[The Defendant]: Why did you panic again?

‘‘[T]: Because we have—you’ve been estranged from the kids since you

were last arrested when [P] was twelve years old and you picked him up

intoxicated at the police station—

‘‘[The Defendant]: Estranged—excuse me, Your Honor. Just—

‘‘The Court: Sustained.

‘‘[T]: —and they—and you haven’t seen the—

‘‘The Court: Ma’am—ma’am.

‘‘[The Defendant]: Ma’am.

‘‘The Court: I sustained the objection.

* * *

‘‘[The Defendant]: You mentioned the word blocking.

‘‘[T]: I’m very fearful of you and your body . . . .

‘‘[The Defendant]: And why are you very fearful?

‘‘[T]: Because you’ve done nothing but harass me and the children for

years—

‘‘[The Defendant]: Well, I’m sorry, how did I harass you?

‘‘[T]: —and we have nothing but protective orders against you for the

past twelve years.

‘‘[The Defendant]: She’s rambling on—

‘‘The Court: Stop. All right.

* * *

‘‘[The Defendant]: So why, prior to the incident, did you not want to allow

the parenting time with the minor child to occur?

‘‘[T]: I was going to court for supervised visits because [the defendant]

was arrested when my son . . . was twelve years old at an exchange at

the police department. He showed up drunk and he asked the workers there

if they had green cards to be working there. . . .

‘‘[The Defendant]: Wait, wait, wait. You’re rambling on. Your Honor, we

just asked her—

‘‘The Court: Stop. Stop ma’am. Ma’am.

‘‘[T]: I’m sorry.

‘‘The Court: All right. You asked a question, but again, we have to focus

on the events of August 12, 2017.

* * *

‘‘[The Defendant]: And prior to that, did you give the children up on a

weekly basis like you’re supposed to? . . .

‘‘[T]: The children were always given to you . . . before you got drunk

and arrested. And [P] was twelve years old and I went to court for supervised

visits, which we fought about for six years. . . .

‘‘[The Defendant]: You keep mentioning this drunk thing. All right. Do

you have any . . . proof that there—

‘‘[T]: You were—yes. It’s in the evidence that you were—you went to jail

for sixty days.

‘‘[The Defendant]: Excuse me, Your Honor.

‘‘[T]: You were false reporting—

‘‘The Court: Ma’am—ma’am, excuse me. Ladies and gentlemen, I’m going

to ask you to step out while we take this up.

* * *

‘‘[The Defendant]: Why do you tell the minor child that he doesn’t have

to listen to his father?

‘‘[T]: Because you’re unsafe. We’ve had protective orders against you for

the past twelve years. I was told by a judge you need [a] psychiatric evaluation

before you even could have supervised visitation with the children. And

we’ve been nothing but scared for the past eight years with nothing but

protective orders against you. . . .

‘‘[The Defendant]: So why doesn’t the child have to listen to their

father again?

‘‘[T]: He has a psychiatric problem. We’ve had protective orders against

him . . . .’’

6 The record discloses that at one point during the defendant’s crossexamination of T, the court stopped the examination and excused the jury.

The court stated to the defendant: ‘‘Sir, you have to keep the questioning

focused on the events of August 12, 2017. . . . I get the fact this was a

contentious divorce, but [these are] irrelevant questions and answers. Again,

I don’t want this trial to get off track. The focus has to remain on the events
of August 12, 2017, not whether or not something happened with [D’s] older

brother, [P], when he was twelve. That’s not relevant to what’s going on in

this trial, and I don’t want that to become the focus of this trial.

‘‘So the questioning has to be more relevant and your answer—you can

wait till you finish the question, ma’am, to decide whether or not—but it

just should be in response to either a question from [Assistant State’s]

Attorney Nemec or a question from [the defendant]. But volunteering information about past incidences or arrests or—again . . . .’’

7

‘‘So long as the answer is clearly responsive to the question asked, the

questioner may not later secure a reversal on the basis of invited error,’’

and this includes those answers that are ‘‘not phrased in language the

defendant would have preferred . . . .’’ (Internal quotation marks omitted.)

State v. Smith, 212 Conn. 593, 611, 563 A.2d 671 (1989); see also State v.

Holley, 327 Conn. 576, 621, 175 A.3d 514 (2018) (court properly declined to

strike answer that was responsive to question asked).

8

In his brief, the defendant argues that he preserved his claim because

he objected to T’s use of the word ‘‘estranged.’’ The state argues that the

defendant did not preserve his claim because the defendant did not ‘‘ ‘distinctly raise’ ’’ or state the basis of his objection to put the court on notice.

See Practice Book § 60-5. Although the court sustained the defendant’s

objection, the record is unclear as to the basis of the defendant’s objection.

Therefore, it was not properly preserved.

9 The state charged the defendant in a long form information with violation

of § 53a-95 (a), unlawful restraint in the first degree. General Statutes § 53a95a (a) provides: ‘‘A person is guilty of unlawful restraint in the first degree

when he restrains another person under circumstances which expose such

other person to a substantial risk of physical injury.’’

General Statutes § 53a-96 (a), unlawful restraint in the second degree,

provides: ‘‘A person is guilty of unlawful restraint in the second degree

when he restrains another person.’’

10 The defendant objected to a portion of the breach of the peace instruction, but that instruction is not at issue on appeal.

11 The defendant also contends, pursuant to State v. Whistnant, 179 Conn.

576, 588, 427 A.2d 414 (1980), that the court erred by failing sua sponte to

instruct the jury on the lesser included offense of unlawful restraint in the

second degree. Under Whistnant, ‘‘a lesser included offense instruction

should be given when: (1) an appropriate instruction is requested by either

the state or the defendant; (2) it is not possible to commit the greater

offense, in the manner described in the information or bill of particulars,

without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their

proofs, which justifies conviction of the lesser offense; and (4) the proof

on the element or elements which differentiate the lesser offense from the

offense charged is sufficiently in dispute to permit the jury consistently to

find the defendant innocent of the greater offense but guilty of the lesser.’’

(Internal quotation marks omitted.) State v. Rudd, 62 Conn. App. 702, 706,

773 A.2d 370 (2001). The defendant’s contention is predicated on the police

incident report that he placed into evidence charging him with unlawful

restraint in the second degree. Even though the court advised the defendant

that he could argue the evidence regarding the affidavit and information,

the transcript of the defendant’s final argument discloses that he made no

such argument.

12 The defendant did not identify what evidence he was prevented from

presenting due to Weiss’ objections and how ‘‘the jury [would have

thought] differently.’’

13 See also Practice Book § 5-8 (‘‘[n]o more than one counsel on each side

shall be heard on any question of evidence . . . without permission of

judicial authority’’); E. Prescott, Tait’s Handbook of Connecticut Evidence

(6th Ed. 2019) § 6.14, p. 344 (direct examination).