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STATE OF CONNECTICUT v. TAJAH MCCLAIN

(AC 36791)

Alvord, Mullins and West, Js.

Argued September 24—officially released December 23, 2014

(Appeal from Superior Court, judicial district of

Fairfield, Kahn, J.)

Daniel J. Krisch, assigned counsel, for the appellant (defendant).

Katherine E. Donoghue, special deputy assistant

state’s attorney, with whom, on the brief, were John

C. Smriga, state’s attorney, and C. Robert Satti, Jr.,

supervisory assistant state’s attorney, for the appellee

(state).
Opinion

WEST, J. The defendant, Tajah McClain, appeals from

the judgment of conviction, rendered following a jury

trial, of murder with a firearm in violation of General

Statutes §§ 53a-54a (a) and 53-202k, assault in the first

degree with a firearm in violation of General Statutes

§§ 53a-59 (a) (5) and 53-202k, and carrying a pistol without a permit in violation of General Statutes § 29-35 (a).

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

improperly limited his cross-examination of an eyewitness, and (2) committed plain error by not instructing

the jury on the doctrine of consciousness of guilt. We

affirm the judgment of the court.

The jury reasonably could have found the following

facts. On July 17, 2010, a group of more than ten people

were drinking alcohol in the area known as ‘‘the X,’’

located behind the Greene Homes Housing Complex in

Bridgeport. Shortly before 5:22 a.m., the victim, Eldwin

Barrios,1 was sitting on a crate when all of a sudden

the defendant and at least two other men jumped on

him, and started punching and kicking him. The victim

kept asking them why they were hitting him, but no

one answered. The defendantthen was passed a chrome

or silver handgun and he fired one shot, intended for

the victim. The bullet, however, struck one of the other

men in the back of the leg. The man who had just been

shot yelled, ‘‘you shot me, you shot me, why you shot

me,’’ to which the defendant replied, ‘‘my bad.’’ As this

was happening, the victim got up and tried to run away,

but the defendant fired several shots at him. Three of

the defendant’s shots hit the victim—one in the leg,

one in the arm, and one in the torso—at which point,

the victim fell to the ground and died.

The defendant was arrested three days after the murder. Following a jury trial, the defendant was convicted

and sentenced to a total effective sentence of sixty-five

years incarceration. This appeal followed. Additional

facts will be set forth as necessary.

I

The defendant’s initial claim is that the court violated

his right pursuant to the sixth amendment to the United

States constitution to confront witnesses against him

by improperly limiting his cross-examination of an eyewitness, Eduardo Martorony. The defendant argues that

the court improperly precluded him from cross-examining Martorony about the benefits derived from the witness protection program. Specifically, where he was

living while in the program—a hotel, motel, or apartment, and how the state paid for his food, housing, and

expenses—cash, check, or otherwise. He argues that

this limitation prevented the jury from accurately

assessing Martorony’s credibility. We disagree.

The following additional facts, which the jury reasonably could have found, are relevantto this claim. Martor-
ony had lived in the Greene Homes Housing Complex

since 1992 and was still living there in July, 2010. He

was seated about fifteen to twenty feet away from the

victim at the time the fight started, and testified at trial,

on behalf of the state, as to what he witnessed. In

an attempt to undermine Martorony’s credibility, the

defendant cross-examined him extensively about the

criminal charges he had pending against him at the

time of trial, whether he hoped those charges would

be dropped in exchange for his testimony, whether he

desired not to go to jail, and how much alcohol he had

to drink on the night of the shooting.

The defendant also asked Martorony several questions about his participation in the witness protection

program. Prior to being in the program, Martorony had

been unemployed for nine years and was living off a

monthly social security check. While in the witness

protection program, however, the state was paying for

his food, housing, and other expenses amounting to at

least seven hundred and fifty dollars. The court limited

the defendant’s cross-examination to only some of the

details of the witness protection program. Specifically,

the court did not allow the defendant to question Martorony regarding the form of the payments provided by

the state and where he was living while in the program.

After the jury exited the courtroom, the court stated

forthe record the substance of a prior sidebar conversation, and noted: ‘‘I permitted [defense counsel] to crossexamine [Martorony] on whether his lodging is paid for

[by the state], whether his expenses are paid for [by

the state] and the amount of that. What I am not going

to permit and would not permit [defense counsel] to do

is to ask any witness in the witness protection program

what type of lodging they’re being provided specifically

and how they’re being supported; whether it’s cash payments, et cetera. So all the questions that I did not

permit and sustained the state’s objections [to] were

questions that would lead to disclosures that, in this

court’s view, would compromise the integrity of the

witness protection program and the security of the individuals. . . . [Defense counsel is] still permitted to

cross-examine [witnesses] on the amount and how

much the state is spending and what . . . is being paid

for, just not the how, where and when necessarily.’’

The court stated that allowing the defendant to ask

whether Martorony was in a hotel or apartment could

endanger the witness: ‘‘[Disclosing that information]

will limit the areas in which somebody could search

for a potential individual. So in the court’s view, that

would certainly provide some information as to where

to locate the person, and it could potentially also have

a chilling effect on the witness. [I]n the court’s view,

the defense’s ability to inquire into . . . what is being

paid for and what benefits are received . . . is sufficient to elicit the type of testimony that the defense

would need to cross-examine relating to the witness’
. . . motive, bias, [and] ability to lie . . . whether it’s

a house, apartment or hotel room, in this court’s view,

is not so significant that it would diminish the impact

of the cross-examination. And the risk of potentially

disclosing where somebody’s location is, in this court’s

view, is far too great, and the probative value of that

level of detail, in this court’s view, does not outweigh

the general interest of the state authorities in insuring

the integrity of the program.’’

We begin our review of the defendant’s first claim

by setting forth the governing legal principles. ‘‘The

general rule is that restrictions on the scope of crossexamination are within the sound discretion of the trial

judge . . . but this discretion comes into play only

after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment. . . . We

must, therefore, conduct a two-step analysis, determining first whether the cross-examination permitted to

defense counsel comported with sixth amendment standards . . . and second, whether the trial court abused

its discretion in restricting the scope of that cross-examination.’’ (Citations omitted; internal quotation marks

omitted.) State v. Reeves, 57 Conn. App. 337, 346, 748

A.2d 357 (2000).

‘‘The primary interest secured by confrontation is the

right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’

motivation in testifying. . . . Cross-examination to

elicit facts tending to show motive, interest, bias and

prejudice is a matter of right and may not be unduly

restricted. . . . In order to comport with the constitutional standards embodied in the confrontation clause,

the trial court must allow a defendant to expose to the

jury facts from which [the] jurors, as the sole triers of

fact and credibility, could appropriately draw inferences relating to the reliability of the witness. . . .

‘‘In determining whether a defendant’s right of crossexamination has been unduly restricted, we consider

the nature of the excluded inquiry, whether the field

of inquiry was adequately covered by other questions

that were allowed, and the overall quality of the crossexamination viewed in relation to the issues actually

litigated at trial. . . . [T]he denial of all meaningful

cross-examination into a legitimate area of inquiry fails

to comport with constitutional standards underthe confrontation clause.’’ (Citations omitted; internal quotation marks omitted.) State v. Santiago, 224 Conn. 325,

331, 618 A.2d 32 (1992).

‘‘[T]he confrontation clause does not [however] suspend the rules of evidence to give the defendant the

right to engage in unrestricted cross-examination. . . .

To the contrary, [t]he [c]onfrontation [c]lause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever

way, and to whatever extent, the defense might wish.’’
(Citations omitted; internal quotation marks omitted.)

State v. Davis, 298 Conn. 1, 9–10, 1 A.3d 76 (2010).

‘‘The trial court has wide discretion to determine the

relevancy of evidence and the scope of cross-examination. . . . Thus, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling[s]

[on these bases] . . . . In determining whether there

has been an abuse of discretion, the ultimate issue is

whether the court . . . reasonably [could have] conclude[d] as it did.’’(Citations omitted; internal quotation

marks omitted.) Id., 11.

With these standards in mind, we conclude that the

defendant’s cross-examination of Martorony satisfied

constitutional requirements and, further, that the court

did not abuse its discretion in limiting the questioning

as it did. A review of the record discloses that the

defendant was given ample opportunity to cross-examine Martorony regarding his bias and motives for testifying. The defendant elicited a considerable amount of

information to aid the jury in assessing Martorony’s

credibility, including testimony about the fact that he

hoped that the pending charges against him would be

dropped in exchange for his testimony. We, therefore,

conclude that the jury was given sufficient facts from

which it could determine the reliability of Martorony’s

testimony, and, as a result, the cross-examination met

the constitutional standard. See State v. Santiago,

supra, 224 Conn. 331. The court also allowed the defendant to ask a number of questions about Martorony’s

participation in the witness protection program, including what the state paid for, how long he was receiving

benefits from the state, and how much money he had

received from the state. The court only limited the

defendant’s questioning about two specific aspects of

the witness protection program—the type of lodging

and the form of payment. Neither aspect was essential

to a determination of Martorony’s credibility in light of

the other evidence elicited. On the basis of our review

of the record and briefs, we cannot say that the court

abused its discretion in ruling as it did. The court properly exercised its discretion in balancing the probative

value of the evidence againstthe state’s interest in insuring the integrity of the witness protection program and

the security of its participants.

II

The defendant’s second claim is that the court

‘‘worked a serious and manifest injustice’’ by not

instructing the jury on consciousness of guilt. (Internal

quotation marks omitted.) The defendant concedes that

he did not preserve this issue at trial by requesting such

an instruction, but, nevertheless, he now seeks review

under the plain error doctrine.2 We conclude that the

defendant asserted a valid waiver before the court that

precludes the application of the plain error doctrine

on appeal.
The following additional facts are relevant. On the

first day of trial, the court provided counsel with a copy

of the proposed jury instructions, indicated it received

requests to charge from both parties, and stated it would

review each accordingly. On the sixth day of trial, the

court and counsel discussed the upcoming charge conference and issues relating to the jury instructions. The

state reminded the court that it had requested a consciousness of guilt instruction.3 The court asked the

state to identify the evidence that supported giving that

proposed instruction, and the state explained that it

intended to contradict the testimony of the defendant’s

alibi witness, his sister, who claimed the defendant was

living with her on Ogden Street in Bridgeport for the

six months prior to, and on the night of, the murder.

To do so, the state proffered thatit planned to introduce,

through one of its witnesses, the defendant’s uniform

arrest report, which was created three days after the

murder and indicated that the defendant had told the

police that he was homeless at the time. The state also

proffered to call another witness, who later testified

that, three months before the murder, the defendant

said he was living on Wood Avenue in Bridgeport.

Defense counsel did not object to the state’s arguments,

and responded, ‘‘No, Your Honor,’’ when the court

asked if there was anything further from either side

relating to the instructions.

On the next day of trial, the court stated that it would

not give the state’s requested instruction, provided

counsel with a copy of the proposed instructions, and

asked if counsel were ready to proceed. Defense counsel did not take exception to the court’s decision not

to charge on consciousness of guilt.

During its rebuttal case, the state introduced the uniform arrest report into evidence and elicited testimony

related thereto. Defense counsel did not object. The

state also elicited testimony that, three months before

the murder, the defendant stated he was living on Wood

Avenue. Defense counsel did not object. After the state

rested its rebuttal case, the court held a charge conference on the record. There was no further discussion

about the consciousness of guilt instruction, and, when

the court asked if there was ‘‘[a]nything further on the

instructions,’’ defense counsel responded, ‘‘No, Your

Honor.’’

The parties proceeded to give closing arguments, during which defense counsel argued that a discrepancy

between a witness’ description of the shooter and the

defendant’s height and weight, as reflected in the uniform arrest report, in conjunction with his alibi, proved

that he was not the shooter. The state addressed the

defendant’s alibi claim in its rebuttal argument. Specifically, the state argued: ‘‘The defendant is arrested for

a crime, and you’ll see the [uniform arrest report] that

you have, what he was arrested for; it was a murder.
And at the time that he’s arrested, he tells the police

that he was homeless. Now, why would he tell the police

he was homeless; you have a right to consider that. Can

you use that as circumstantial evidence of a consciousness of guilt. Think about it. If I tell them I’m living

[on] Ogden Street, they’re gonna be able to go over and

find out the truth in this case. If you’re thinking about

this yourself; just yourself thinking about things.’’

Defense counsel did not object to this argument. Following closing arguments, the court instructed the jury,

and the charge did not include an instruction on consciousness of guilt. The court then asked counsel if

either side had any issues with the charge, and both

stated they did not. The defendant now claims that it

was plain error for the court to have omitted an instruction on consciousness of guilt. We conclude that the

defendant waived this claim.

‘‘Connecticut courts have consistently held that when

a party fails to raise in the trial court the constitutional

claim presented on appeal and affirmatively acquiesces

to the trial court’s order, that party waives any such

claim. . . . The reason that [an] objection must be

raised at trial is to afford the court an opportunity to

correct an allegedly improper ruling or procedure. . . .

We do not look with favor on parties requesting, or

agreeing to, an instruction or a procedure to be followed, and later claiming that that act was improper.

. . . [A] defendant may not pursue one course of action

at trial for tactical reasons and later on appeal argue

that the path he rejected should now be open to him

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

quotation marks omitted.) State v. Rosado, 147 Conn.

App. 688, 701–702, 83 A.3d 351, cert. denied, 311 Conn.

928, 86 A.3d 1058 (2014); see also Mozell v. Commissioner of Correction, 291 Conn. 62, 71, 967 A.2d 41

(2009) (‘‘[w]hen a party consents to or expresses satisfaction with an issue at trial, claims arising from that

issue are deemed waived and may not be reviewed on

appeal’’ [internal quotation marks omitted]). ‘‘[A] valid

waiver . . . thwarts plain error review of a claim. [The]

Plain Error Rule may only be invoked in instances of

forfeited-but-reversible error . . . and cannot be used

for the purpose of revoking an otherwise valid waiver.

This is so because if there has been a valid waiver,

there is no error for us to correct.’’ (Internal quotation

marks omitted.) State v. Rosado, supra, 702.

Our recent decision in Rosado guides our resolution

of this issue.4

In Rosado, we declined to find plain error

on the basis of the defendant’s claim that the trial court

erred by proceeding to take the jury’s verdict before

responding to the jury’s note requesting a clarifying

instruction because defense counselraised no objection

and affirmatively agreed with the court’s proposal to

proceed to the verdict. Id., 702–703, 704. We noted that:

‘‘Both our Supreme Court and this court have stated

the principle that, when a party abandons a claim or
argument before the trial court, that party waives the

right to appellate review of such claim because a contrary conclusion would result in an ambush of the trial

court . . . . When a party consents to or expresses

satisfaction with an issue at trial, claims arising from

that issue are deemed waived and may not be reviewed

on appeal.’’ (Internal quotation marks omitted.) Id., 701.

We then held: ‘‘Defense counsel . . . raised no objection [in the trial court] and, in fact, affirmatively agreed

to the court’s proposal. Permitting the defendant now

to seek reversal of his conviction due to the procedure

followed by the court, to which defense counsel

expressly assented at trial, would result in an ambuscade of the trial court.’’ Id., 703.

On the basis of our examination of the record, we

conclude that the representations of defense counsel

reflected acquiescence in the proposed jury instructions. Defense counsel raised no objection to the state’s

request for a consciousness of guilt instruction or to

the court’s denial of that request. Defense counsel

affirmatively represented that he did not have any concerns about the charge, and, in fact, used the evidence

introduced by the state to support his argument that

the defendant was not the shooter. The defendant,

therefore, waived any appellate issues connected to the

court’s decision not to provide the instruction. Accordingly, we conclude that the defendant’s waiver precludes the application of the plain error doctrine.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Although the defendant’s conviction of assault in the first degree with

a firearm was based on a different victim, for clarity we refer to Eldwin

Barrios as ‘‘the victim.’’

2 Although the defendant concedes that this claim is not reviewable under

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

State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011), he nonetheless

argues that a Kitchens’ waiver does not preclude the application of the plain

error doctrine. We acknowledge the tension in our appellate law as to

whether reversal for plain error is available for claims regarding jury instructions that are waived pursuant to Kitchens. See State v. Sanchez, 308 Conn.

64, 74–75 n.5, 60 A.3d 271 (2013); see also State v. Davis, 311 Conn. 468,

503 n.14, 88 A.3d 445 (2014) (Palmer, J., concurring). Because there is no

indication that a claim of this nature is precluded as a matter of law; see State

v. Webster, 308Conn. 43, 64, 60A.3d 259 (2013)(Rogers, C. J., concurring); we

address the defendant’s arguments.

3 The requested instruction read as follows: ‘‘When a person is on trial

for a criminal offense, it is proper to show his conduct, as well as any

declarations made by him, subsequent to the alleged criminal offense, which

may fairly have been influenced by that act. The state here claims that some

of the statements made by the defendant to the police were false.

‘‘If you find that the defendant did make material false statements to the

police in connection with the alleged crime, you may find that such false

statements tend to show a consciousness of guilt. In other words, from any

material statements made by the defendant subsequent to the criminal act

alleged, which are shown to be false, you may fairly infer consciousness of

guilt if you find such inference is reasonable.

‘‘Such statements when shown to be false may be circumstantial evidence

of guilt. If you find that the defendant’s acts or words show consciousness

of guilt, you may use that inference along with the other facts of the case

to determine whether he has been proven guilty of the crimes charged

beyond a reasonable doubt.’’

4 This appeal was originally filed in our Supreme Court. When the appeal
was transferred to this court, the defendant filed a motion requesting that

the court hear the appeal en banc because the court would need to overrule

Rosado to consider his request that we reverse the judgment for plain error.

The court denied the motion.