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STATE OF CONNECTICUT v. TYRONE TARVER

(AC 38306)

Keller, Mullins and Pellegrino, Js.

Argued February 29—officially released June 21, 2016

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, White, J.)

Glenn W. Falk, assigned counsel, for the appellant

(defendant).

Kathryn W. Bare, assistant state’s attorney, with

whom, on the brief, were David I. Cohen, former state’s

attorney, and Joseph Valdes, senior assistant state’s

attorney, for the appellee (state).
Opinion

MULLINS, J. The defendant, Tyrone Tarver, appeals

from the judgment of conviction, rendered after a jury

trial, of felony murder in violation of General Statutes

§ 53a-54c, robbery in the first degree in violation of

General Statutes § 53a-134 (a) (2), and conspiracy to

commit robbery in the third degree in violation of General Statutes §§ 53a-48 and 53a-136 (a). On appeal, the

defendant raises two separate claims. First, he claims

that ‘‘the unauthorized ex parte excusal of a juror by

an unidentified person without notice and a hearing

violated [General Statutes] § 54-82h (c)1 and various

state and federal constitutional rights, including the

right to be present during jury selection to ensure an

impartial jury of one’s peers, and the right to a public

trial.’’ (Footnote added.) In his second claim, he alleges

that ‘‘the trial court abused its discretion in refusing to

rule on the motion in limine and in denying a mistrial

after [a] witness testified, just as defense counsel had

anticipated, that the defendant went to jail forrobbery.’’

We disagree with both claims, and, accordingly, affirm

the judgment of the trial court.

The jury reasonably could have found the following

facts. In late October, 2009, the defendant asked the

victim, Denny Alcantara, to give him some marijuana

without payment up front. The victim refused the defendant’s request. As a result of the victim refusing his

request for marijuana on credit, the defendant told his

friend Shari Johnson that he planned to set up a marijuana transaction with the victim so that he could rob

the victim.

Shortly thereafter, the defendant set in motion his

plan to rob the victim. Specifically, on November 4,

2009, the defendant arranged for the victim to meet him

and two of his friends, Darryl Bonds and Joshua McNeil,

at 62 Stillwater Avenue in Stamford, the home of

Anthony Lacrete. The victim arrived at the designated

location, retrieved six bags of marijuana that he had

stored at Lacrete’s apartment, and waited for the defendant on the front porch. Meanwhile, Ivania Collazo,

Bonds’ cousin, gave the defendant, Bonds, and McNeil

a ride to a parking lot on Stillwater Avenue.

While the victim waited on the porch for the defendant, Richard Patterson, a mutual acquaintance of the

defendant and the victim, walked by. Patterson stopped

and spoke briefly with the victim. After they conversed,

Patterson continued walking down the block, and he

encountered the defendant and his friends. Patterson

told them that the victim was awaiting them. Patterson

then telephoned the victim to tell him that the defendant

was on his way to meet him.

On arriving at the meeting point, the defendant and

at least one of his friends took from the victim the

marijuana, some cash, his cell phone, and the leather
jacket and gold chain he was wearing. In the process,

the victim was shot twice in the abdomen. The victim

died shortly thereafter. Cell phone call details and cell

tower location data placed the defendant at the scene

during the foregoing events.

The defendant, Bonds, and McNeil returned to Collazo’s car, which she drove away from the area. In the

car, as they discussed the events that had just unfolded,

Bonds said that the victim had marijuana and a cell

phone, and the defendant said that the victim had a

black leather jacket, a gold chain, and some money.

The defendant was wearing the victim’s leather jacket.

At a nearby store, McNeil left the car and Elvis Battista,

Collazo’s brother, got in. The defendant told Battista

that he had robbed the victim, specifying that he had

taken the leather jacket, the gold chain, the marijuana,

and some cash.

En route to Collazo’s apartment in Bridgeport, Bonds

received a call on the victim’s cell phone, which he

answered before throwing the phone out of the window.

The defendant and Bonds spent the night at Collazo’s

apartment, smoking the victim’s marijuana.

After a trial, on January 18, 2013, the jury returned

a verdict of guilty on all of the charges. Thereafter, the

court sentenced the defendant to a total effective term

of fifty years imprisonment and ten years special parole.

This appeal followed. Additional facts will be provided

as necessary.

I

The defendant claims that ‘‘the unauthorized ex parte

excusal of a juror by an unidentified person without

notice and a hearing violated . . . § 54-82h (c) and various state and federal constitutional rights, including the

right to be present during jury selection to ensure an

impartial jury of one’s peers, and the right to a public

trial.’’ Specifically, he contends that a ‘‘reversal [of his

conviction] is required since an unidentified person,

not the court, excused the juror, and the court did not

make a reliable, independent determination that the

juror could not perform her duty, as required by statute;

the defendant was deprived of his right to be present,

his right to individual voir dire, his right to be heard

by himself and by counsel, his right to due process of

law, and his right to a public trial; and the harm from

the statutory and constitutional violations must be presumed.’’ We disagree.

The following procedural history pertains to this

claim. Jury selection in the defendant’s trial occurred

over five days between November 28, 2012, and December 11, 2012. The parties selected a total of twelve

regular and four alternate jurors. In the course of selecting jurors, on December 4, 2012, venireperson E.A.2 was

selected as the seventh regular juror, and venireperson

L.C. was selected as the twelfth regular juror. By the
conclusion of jury selection, the defendant had not

exhausted all of his allotted peremptory challenges:

he had exercised thirteen of his allotment of sixteen

peremptory challenges and had three remaining.

Trial was set to begin on the morning of January 7,

2013, at approximately 10 a.m. As of 10:41 a.m. on that

date, however, three regular jurors, including L.C., and

one alternate juror had not yet reported to the courthouse. The court noted, in addition, that L.C. had

reported previously that he knew someone in the case.

The court stated that it therefore was going to bring

him in for voir dire when he arrived. The court then

asked the clerk to telephone the missing jurors.

Then, at approximately 11:29 a.m., the court stated:

‘‘The clerk has informed me that [E.A.] was released

downstairs in the jury assembly room. She claimed that

she has the flu and could not remain. And she is not

in the building. I don’t know who told her she could

leave. Nobody informed the court. So, the parties didn’t

get a chance to voir dire her. . . . [E.A.] was released,

and [L.C.] is the one who claims he knows somebody.’’

Defense counsel immediately stated: ‘‘Your honor

. . . I’m requesting that the court have the clerk call

[E.A.] back. We went through careful voir dire of [E.A.].

. . . She indicated that she was fully aware of this process [and] wanted to serve. She’s an African-American

lady and, while my client, under the guise of a jury of

his peers, that doesn’t mean people that are AfricanAmerican like he is or his same age, but I think the

panel benefits from a cross [section] of people. [E.A.]

was an African-American lady, sixty-five years old, and

seemed to be very well open to serving. And typically,

as in the case of State v. Apodaca [303 Conn. 378, 33

A.3d 224 (2012)] . . . if a jury member has an issue, it

was incumbent upon us to bring that person into the

courtroom, as I’m sure Your Honor probably adopts

that theory, voir dire the person . . . and make a determination.

‘‘I don’t know who in the building just let this person

go. It doesn’t sound like it’s above board. And, just

to make sure we’re beyond reproach and nothing is

questionable, I think the court—I’m asking the court

to have the clerk call that person back so we can at

least have that person brought into the courtroom.

Because as we stand here, no one, not even Your Honor,

knows who let her go and why . . . . There was some

representation that she might have had a cold. That’s

all we have so far. So, now we have a panel member

that’s just let go, and we ask that she be brought back.’’

Following defense counsel’s argument, the court asked

the prosecutor if he had anything to say, and he

responded: ‘‘No, Your Honor.’’

Then, the court brought in L.C. for voir dire, and,

following questioning, the prosecutor indicated that he
would like the juror released from duty, while defense

counsel stated that he would like the juror to remain

seated. The court ultimately determined that L.C.

should be released, and that it would pick an alternate

juror to replace him.

The court then took up the matter of E.A., stating

the following: ‘‘And let me just deal with the issue of

[E.A.] while we’re at it. Again, I didn’t give permission

for that juror to be released. I’m not sure who did give

permission. I take it, it was our jury clerk, and I’m told

that the juror represented that she had the flu and was

unable to serve. And I’m not going to delay the trial.

We have jurors waiting. We have witnesses. We’re ready

to proceed. So, we’re going to use the statutory procedure for choosing two of the alternates who will be

seated as regular jurors. I’m going to give them my

preliminary instructions, and we’re going to proceed

with the trial.’’

L.C. was brought back into the courtroom and

released from service. Two alternate jurors were then

chosen by the clerk by lot to be sworn in as regular

members of the jury. The court asked defense counsel if

he had anything else, to which he responded: ‘‘Nothing,

nothing.’’ The court then swore in the jury panel, after

which trial commenced at approximately 11:45 a.m.

A

We first address the defendant’s argument that the

court violated § 54-82h (c). ‘‘Our standard of review

for a trial court’s decision to excuse a juror is well

established. Section 54-82h (c) permits trial courts to

excuse a juror [i]f, at any time, any juror shall, for any

reason, become unable to further perform [his or her]

duty . . . . The power to excuse a juror under this

section is expressly premised on a finding of cause.

. . . Whether in the circumstances just cause exists to

excuse a juror is a matter within the discretion of the

. . . court. . . . State v. Apodaca, [supra, 303 Conn.

386]; see also State v. Cubano, 203 Conn. 81, 88–89, 523

A.2d 495 (1987) ([t]he trial court is vested with wide

discretion in determining the competency of jurors to

serve, and that judgment will not be disturbed absent a

showing of an abuse of discretion).’’ (Internal quotation

marks omitted.) State v. Gonzalez, 315 Conn. 564, 576,

109 A.3d 453, cert. denied, U.S. , 136 S. Ct. 84, 193

L. Ed. 2d 73 (2015). ‘‘We have recognized that unavailability due to illness may constitute cause to excuse a

juror.’’ Id., 583.

In this case, the defendant’s appeal suffers from a

misapprehension of the procedural history that must

be remedied before we properly can address his claims.

That misapprehension centers on precisely when E.A.

was excused from her jury service for purposes of § 54-

82h (c). The defendant argues that E.A. was improperly

excused from her jury service when the ‘‘unauthorized’’
person permitted her to leave the courthouse. In light

of the record, it is our view that, for purposes of § 54-

82h (c), E.A. was not excused from her jury service at

that point, but rather she was excused from jury service

after the court heard from counsel and decided to

replace her with an alternate.

We acknowledge that it was not the trial judge who

initially permitted E.A. to leave the courthouse. It was,

however, the trial judge who ultimately made the decision to excuse her from her jury service. Indeed, after

learning from the jury clerk that E.A. had been told she

could leave the court, the trial judge sought input from

the parties regarding how it should proceed. The defendant argued for the court to bring E.A. back. The court

certainly could have opted to do so. Given her reported

illness and the time that already had been lost that

morning, however, the court opted instead to excuse

her and then selected an alternate as required by § 54-

82h (c).

Therefore, although the court specifically noted, with

respect to E.A. initially being permitted to leave the

courthouse, that ‘‘I didn’t give permission for that juror

to be released,’’ the court did not simply select an alternate without giving the parties an opportunity to be

heard. After giving the parties that opportunity, the

court appears to have credited the report from the clerk

that E.A. had told someone that she was too ill to

remain. The court then effectively excused E.A. when

it announced its intent ‘‘to use the statutory procedure

for choosing two of the alternates who will be seated

as regular jurors.’’ Accordingly, E.A. was excused from

her service as a juror when the court did so after receiving input from the parties. With the point of E.A.’s excusal clarified, we now turn to the defendant’s

statutory claim.

Although the defendant’s statutory claim is not

entirely clear and seems to be inextricably intertwined

with his constitutional claims, he appears to be claiming

that the court violated § 54-82h (c) in the following

ways. First, he argues, the court did not make a reliable,

independent determination that E.A. could not perform

her duty because an unidentified person, not the court,

excused E.A. Second, he appears to argue that the statute requires the court to give the defendant notice and

hold a hearing to be able to make an informed decision

regarding a juror’s ability to serve before it may excuse

the juror. In essence, he appears to be claiming that

the court failed to exercise its discretion altogether

because the unidentified person, rather than the court,

actually excused E.A. Third, he argues that the statute

was violated because he was not permitted an opportunity to ask questions of E.A. or assess the credibility

of the person who excused her. We reject each of

these contentions.

As to the defendant’s first argument in support of
his statutory claim, that the court did not determine

independently that there was cause to excuse E.A., it

fails because, as we already have explained, it was in

fact the court, not an unidentified person, who excused

E.A. from jury service. The court accepted the representation that E.A. was ill. As we have noted, illness is

good cause to excuse a juror. State v. Gonzalez, supra,

315 Conn. 583.

Next, as to the defendant’s contention that E.A. was

excused without notice and a hearing, this too fails. The

record clearly demonstrates that after learning from a

member of the courthouse staff that E.A. reportedly

was suffering from the flu, the court held a discussion

on the record before deciding to replace her. Thus, after

announcing what it had learned from the clerk, the

court gave the parties an opportunity to be heard on

the matter. Defense counsel took that opportunity to

place on the record numerous objections to excusing

E.A. After hearing these objections, the court decided

to excuse E.A. and replace her with an alternate. The

court further explained that the trial already had been

delayed that morning, that witnesses were waiting, and

that it did not want to delay the start of trial any further.

Therefore, given the information that E.A. was ill and

having received input from both parties, the court properly exercised its discretion in deciding not to delay

the trial and to replace E.A. with an alternate.

Finally, to the extent that the defendant argues that

he was entitled personally or through counsel to assess

the credibility of E.A.’s excuse, neither § 54-82h (c) nor

the cases that have construed it require an opportunity

for the parties to question a juror before the court may

excuse her. See, e.g., id., 582–84 (court’s excusal and

replacement of juror who reported to court clerk by

telephone that she would be unavailable that day

because of medical condition was not abuse of discretion). Therefore, on the basis of the plain language of

the statute and Gonzalez, the defendant’s reliance on

State v. Apodaca, supra, 303 Conn. 384, for the proposition that the court must hold a hearing during which

the parties can question a juror, is misplaced.

In Apodaca, on the fifth day of evidence, at approximately 10:30 a.m., the trial court informed the parties

that a juror had reported to the caseflow coordinator

by telephone that she was suffering from the flu. Id.,

383. After hearing the parties’ positions on whether it

should dismiss the juror, the court deferred decision

on the matter. Id., 384. In the meantime, at the court’s

request, the caseflow coordinator telephoned the juror,

who reported that she was not sure when she would

feel well enough to return to jury duty. Id. Approximately one hour later, the court ‘‘reason[ed] that [the

juror] presently was ill, that the court was not optimistic

that she would be well enough by 2 p.m. to resume her

duties and that, even if she did return, [the juror] might
spread her illness to other jurors due to the close proximity that they shared. The court further reasoned that

a delay could result in the loss of other jurors because

the trial already had exceeded the estimated time frame

that had been given to the jury and protracted testimony

still lay ahead. Accordingly, the court ruled that it was

excusing [the juror] for the aforementioned reasons

and that an alternate juror would be selected by lot.’’

Id., 384–85.

Our Supreme Court held that the trial court’s decision

was ‘‘well founded, and therefore cannot be deemed

an abuse of discretion’’; id., 387; because ‘‘[t]he trial

court articulated the basis of its . . . decision to

excuse [the juror]: she was ill; unable to confirm when

she would be well enough to return, and still potentially

infectious; and a delay risked the loss of other jurors

due to the trial having already exceeded its projected

completion date.’’ Id., 386.

Unlike the defendant in this case, we do not read

Apodaca to require the trial court to conduct a credibility assessment of a juror’s report of illness as a prerequisite to finding cause to excuse the juror. Neither the

trial court nor the parties in Apodaca personally questioned the juror regarding her symptoms. After soliciting additional information through the caseflow

coordinator, the trial court based its decision to excuse

the juror on the potential delay that would arise from

the uncertain time of herreturn as well as the possibility

that, when she did return, she might be contagious.

Although the court in this case did not follow up with

E.A. to obtain more specific information regarding her

reported illness, it, like the trial court in Apodaca, based

its decision to excuse E.A. on proper considerations of

efficiency and the other jurors’ and witness’ time. Neither the clear language of § 54-82h (c) nor Apodaca

required more.

For the foregoing reasons, we do not conclude that

the court abused its discretion by crediting the report

of E.A.’s illness, deciding that it was not going to delay

any further the start of the trial in order to bring her

back to the courthouse, and determining accordingly

that there was cause to excuse her.

Even if we were to conclude that the court abused

its discretion when it excused E.A. and replaced her

with an alternate juror, the defendant has not shown

that he was harmed as a result. The defendant argues

that harm should be presumed. He also contends that,

even though harm should be presumed, he still has

demonstrated harm in this case because the unauthorized excusal of E.A. decreased the racial diversity of

the jury panel. We disagree.

This court has stated that a ‘‘violation [of § 52-84h

(c)] does not necessarily implicate the defendant’s constitutional rights and a reversal of conviction is not
automatic.’’ State v. Walton, 41 Conn. App. 831, 843,

678 A.2d 986 (1996); see also State v. LaBrec, 270 Conn.

548, 558, 854 A.2d 1 (2004)(‘‘the mechanisms for providing for and dismissing alternate jurors, and the circumstances under which they may be substituted forregular

jurors, do not implicate . . . constitutional rights’’

[internal quotation marks omitted]); State v. Williams,

231 Conn. 235, 244, 645 A.2d 999 (1994) (‘‘a violation

of § 54-82h [c] does not implicate the defendant’s constitutional rights’’), overruled in part on other grounds by

State v. Murray, 254 Conn. 472, 487 and n.9, 757 A.2d

578 (2000).

‘‘Rather, the defendant bears the burden of proving

that he was harmed by the substitution of the regular

juror with an alternate.’’ State v. Walton, supra, 41 Conn.

App. 843. The defendant must show ‘‘how the dismissal

of the juror created unfairness to the defendant.’’ State

v. Mills, 57 Conn. App. 356, 365, 748 A.2d 891 (2000);

see also State v. Bowens, 62 Conn. App. 148, 157, 773

A.2d 977 (‘‘even if the court had abused its discretion,

the defendant cannot show that the dismissal of [the

juror] resulted in any harm to him’’), cert. denied, 256

Conn. 907, 772 A.2d 600 (2001). In other words, the

defendant must show that ‘‘the rulings of the trial court

resulted in a jury that could not judge his guilt impartially.’’ (Internal quotation marks omitted.) State v.

Mills, supra, 364.

Although our case law is clear that the defendant

must prove that the substitution of a juror resulted in

harm, the defendant nevertheless argues that ‘‘[p]rejudice must be presumed under the circumstances of this

case . . . .’’ On the basis of numerous nonbinding

cases, he posits that because the excusal of E.A. took

place by a ‘‘secret proceeding’’ that excluded him from

a critical stage of the prosecution and produced no

record for review, this court must presume prejudice.

We disagree.

As we previously have discussed, the factual premise

of a secret proceeding on which the defendant’s argument rests is incorrect. In particular, although an

unnamed individual dismissed E.A. from the jury assembly room, E.A. was not excused from jury service until

the court subsequently determined that it would follow

the applicable statutory procedure for choosing an

alternate to replace her. The court did not make this

determination in secret; it decided to replace E.A. on

the record, after notifying counsel that E.A. reportedly

was ill and providing counsel with the opportunity to

present argument. The court then followed the proper

procedure for choosing an alternate by lot. As a result,

the nonbinding cases on which the defendant relies are

factually distinguishable. E.g., Scott v. State, 219 Ga.

App. 798, 799–800, 466 S.E.2d 678 (1996) (reversal

required where trial court, relying on jury foreperson’s

representation thatjuror had become ill during delibera-
tions, replaced ill juror without consulting counsel for

either party); Bruckshaw v. Frankford Hospital of Philadelphia, 619 Pa. 135, 154–55, 58 A.3d 102 (2012) (‘‘[t]he

removal of a presumptively competent juror, by a court

officer, without notice to the court, without notice to

the parties, and the substitution with the last alternate

juror [instead of the first, as required by statute] is so

inimical to the integrity of our jury system that the

presumption of prejudice arising therefrom is conclusive’’).

In addition to declining the defendant’s invitation to

presume harm under the circumstances of this case,

we conclude that the defendant has not demonstrated

that he was harmed by the replacement of E.A. with

an alternate juror. The defendant, who is African-American, argues that he was harmed by the loss of racial

diversity of the jury when E.A., an African-American

woman, was excused. This court previously has considered and rejected a similar argument.

In State v. Diaz, 94 Conn. App. 582, 588–89, 893 A.2d

495, cert. denied, 280 Conn. 901, 907 A.2d 91 (2006),

this court concluded that the defendant failed to demonstrate that he was harmed by a juror’s excusal when

he argued only that the dismissed juror was the lone

Hispanic juror and the defendant was Hispanic. See

also State v. Lane, 101 Conn. App. 540, 549–50, 922 A.2d

1107 (where African-American juror failed to appear

for trial at required time, court’s substitution of alternate was permissible, nondiscriminatory basis for

juror’s removal and did not violate defendant’s right to

equal protection or fair trial), cert. denied, 283 Conn.

910, 928 A.2d 538 (2007).

Here, as in Diaz, the defendant does not allege that

the remaining jurors were unable to judge his guilt

impartially. State v. Diaz, supra, 94 Conn. App. 589.

Indeed, ‘‘[a]lternate jurors, by statute, must have the

same qualifications and be selected in the same manner

as regular jurors.’’ State v. Williams, 108 Conn. App.

556, 566, 948 A.2d 1085 (2008). Additionally, by not

having exhausted his allotment of peremptory challenges, the defendant implicitly conveyed his acceptance of the alternate jurors available to replace E.A.

‘‘Unless all his peremptory challenges have been exercised before the completion of jury selection, it is presumed that no juror was permitted to serve whom the

defendant regarded as biased or unsuitable, although

he might have preferred others.’’ State v. Vitale, 190

Conn. 219, 225, 460 A.2d 961 (1983). Thus, in essence,

the court here simply substituted for one acceptable

juror another equally acceptable juror. Accordingly, the

defendant has not demonstrated that he was harmed

by the court’s substitution of an alternate for E.A.

Forthe foregoing reasons, we conclude that the court

did not violate § 54-82h (c) when, after learning that

E.A. reportedly was ill and holding a hearing, it excused
E.A. and replaced her with an alternate juror.

B

Next, we address the defendant’s argument, which

he asserts for the first time on appeal, that the court

violated various constitutional rights when it excused

E.A. and replaced her with an alternate. We conclude

that this unpreserved claim is unreviewable because,

despite the constitutional label he has affixed to this

claim, the defendant has failed to allege a claim of

constitutional magnitude.

The defendant claims on appeal that ‘‘the excusal of

the juror E.A. by a clerk or some other unauthorized

person outside of the courtroom violated . . . the following interrelated and overlapping constitutional

rights: the right to be present, the right to individual

voir dire, the right to be heard by the defendant himself

and by counsel, the right to due process of law, and

the right to a public trial.’’ Because the defendant concedes that he did notraise this claim at trial, we consider

his claim pursuant to State v. Golding, 213 Conn. 233,

239–40, 567 A.2d 823 (1989). ‘‘Under Golding, a defendant may prevail on an unpreserved claim only if the

following conditions are met: (1) the record is adequate

to review the alleged claim of error; (2) the claim is

of constitutional magnitude alleging the violation of a

fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the defendant of a

fair trial; and (4) if subject to harmless error analysis,

the state has failed to demonstrate harmlessness of the

alleged constitutional violation beyond a reasonable

doubt.’’ (Internal quotation marks omitted.) State v.

Wright, 319 Conn. 684, 688, 127 A.3d 147 (2015). ‘‘[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. LaBrec, supra, 270 Conn. 555.

The defendant’s unpreserved claim fails under the

second prong of Golding. ‘‘This court previously has

held . . . that the process for selecting and dismissing

alternate jurors, including § 54-82h (c), does not implicate constitutional rights.’’ State v. Alston, 272 Conn.

432, 456, 862 A.2d 817 (2005); see also State v. LaBrec,

supra, 270 Conn. 558–59 (Golding review of defendant’s

claim that trial court violated § 54-82h [c] unavailable

because claim was not of constitutional magnitude).

Although the record is adequate for review, the defendant’s claim, which is predicated on the court’s allegedly improper excusal and replacement of E.A., is not

of constitutional magnitude and, therefore, does not

warrant Golding review.3

II

The defendant next claims that ‘‘the trial court abused

its discretion in refusing to rule on the motion in limine
and in denying a mistrial after [a] witness testified, just

as defense counsel had anticipated, that the defendant

went to jail for robbery.’’ We disagree.

The following additional facts pertain to this claim.

The defendant filed a motion in limine in which he

sought an order prohibiting the state from introducing

evidence of his 2007 arrest and robbery charge.4 On

January 7, 2013, the court held a hearing on the motion.

At the hearing, it was undisputed that the defendant

had been convicted of the 2007 robbery charge. The

state represented that it did not intend to introduce any

evidence of the defendant’s robbery conviction during

its case-in-chief. The court then stated that it would

‘‘hold this motion in abeyance until such time as the

defense puts on a case and you decide to put [the

defendant] on the stand or somebody else. And it will

be relevant at that moment since the state just told me

it’s not going to put on evidence of . . . his prior robbery conviction in its case-in-chief.’’

Defense counsel expressed concern that certain witnesses who had talked about the defendant’s prior bad

acts at the defendant’s hearing on probable cause would

do so again at his trial. The courtreplied, ‘‘[i]f somebody

says something objectionable, object and I’ll hear your

objection. I don’t know what the witnesses are going

to say. I’m not even sure who all the witnesses are going

to be. I’m not going to anticipate something. I’m going

to wait until it happens.’’

Nevertheless, defense counsel then asked the court

to instruct the state to direct Johnson, one of the aforementioned witnesses at the probable cause hearing,5

not to mention the defendant’s robbery conviction in

her trial testimony. The court declined this invitation,

concluding the matter by stating that ‘‘the state’s attorney just told me he wasn’t going to ask or raise issues

about [the defendant’s] robbery conviction in the casein-chief. If somebody says something objectionable,

object.’’

At the defendant’s trial, Johnson testified during the

state’s case-in-chief. Twice during her testimony, Johnson referred to the defendant’s prior robbery conviction.6 After the first instance, which occurred on direct

examination, the defendant objected, and the court

excused the jury. Defense counsel then made an oral

motion for a mistrial, which the court denied. The court

solicited from defense counsel a suggestion for a curative instruction to the jury, indicating that in the absence

of a suggestion it would ‘‘tell the jury [to] ignore the

last statement that was made,’’ and would order the

statement stricken from the record. Defense counsel

declined to suggest a curative instruction. When the

jury returned to the courtroom, the court directed the

jurors to ignore Johnson’s mention of the defendant’s

robbery conviction.7
Thereafter, during a recess, defense counsel obtained

the court’s permission to reduce the motion for a mistrial to writing and submit it. The court then explained

the basis for its prior denial of the oral motion for a

mistrial—namely, the lack of detail that Johnson had

provided regarding the defendant’s prior conviction.

The court also noted that, in the absence of a suggested

curative instruction from the defendant, the court

‘‘thought it was better not to mention the statement

itself because all that would do is highlight it. And I

struck it from the record . . . .’’

Although after Johnson first mentioned the defendant’s prior conviction the court twice instructed her

not to volunteer any information beyond the call of

counsel’s questions,8

the court’s instructions proved

ineffective. During the state’s redirect examination,

Johnson unresponsively referred to the defendant having been released from jail. See footnote 6 of this opinion. Immediately thereafter, the court said ‘‘I’m going

to order that last comment stricken. Ignore it. Let’s

proceed.’’ Defense counsel then made a second oral

motion for a mistrial, which the court denied. In its

final instructions to the jury, the court directed jurors

not to consider evidence that had been stricken from

the record.

Our review of a trial court’s ruling on a motion in

limine is limited to determining whether the court properly exercised its discretion. ‘‘It is axiomatic that [t]he

trial court’s ruling on the admissibility of evidence is

entitled to great deference. . . . In this regard, the trial

court is vested with wide discretion in determining the

admissibility of evidence . . . . Accordingly, [t]he trial

court’s ruling on evidentiary matters will be overturned

only upon a showing of a clear abuse of the court’s

discretion. . . . [I]n determining whether there has

been an abuse of discretion, every reasonable presumption should be made in favor of the correctness of the

trial court’s ruling . . . .’’ (Internal quotation marks

omitted.) State v. Creech, 127 Conn. App. 489, 495, 14

A.3d 434, cert. denied, 301 Conn. 906, 17 A.3d 1045

(2011).

Our review of a court’s denial of a motion for a mistrial is similarly curtailed. ‘‘It is only when an abuse of

discretion is manifest or where an injustice appears to

have been done that a reversal will result from the trial

court’s exercise of discretion. . . .

‘‘[Although] the remedy of a mistrial is permitted

under the rules of practice, it is not favored. . . . If

curative action can obviate the prejudice, the drastic

remedy of a mistrial should be avoided. . . . The trial

court enjoys wide discretion in deciding whether a mistrial is warranted . . . and its evaluation as to events

occurring before the jury is to be accorded the highest

deference. . . . Every reasonable presumption will be
given in favor of the trial court’s ruling . . . because

the trial court, which has a firsthand impression of

the jury, is in the best position to evaluate the critical

question of whether the . . . jurors’ exposure has prejudiced a defendant.’’ (Internal quotation marks omitted.) State v. Anderson, 163 Conn. App. 783, 791, 134

A.3d 741, cert. denied, 321 Conn. 909, A.3d

(2016).

We turn first to the defendant’s claim that the court

abused its discretion by refusing to rule on his motion

in limine. The court characterized its action as holding

the motion in abeyance. We conclude that the court

reserved decision on the motion with regard to the

defendant’s request to preclude the state from offering

evidence regarding the prior robbery conviction9 when

it accepted the state’s representation that it was not

going to offer any such evidence in its case-in-chief,

ruling that the defendant would have to wait until

‘‘somebody says something objectionable’’ and then

object. We further conclude that the court’s reservation

of decision on the motion was a proper exercise of

its discretion. See Practice Book § 42-15 (court may

reserve decision on motion in limine).

The defendant argues that the foreseeability both of

the state calling Johnson as a witness and of Johnson’s

mentioning the defendant’s prior conviction, in light of

her divulgence of the same at the probable cause hearing, indicates that the court abused its discretion. Put

differently, he argues that the court vitiated the very

purpose of a good faith motion in limine, which is to

exclude anticipated evidence. For several reasons, we

disagree with the defendant that Johnson’s disclosures

were so foreseeable that the court’s failure to order

that she be warned against making them10 was arbitrary

or unreasonable.

At the hearing on the defendant’s motion in limine,

the state represented that it did not intend to offer

evidence of the defendant’s prior conviction during its

case-in-chief. Additionally, the mere fact that Johnson

would testify did not require the court to anticipate that

she would divulge the defendant’s criminal history; as

the court noted, in each instance Johnson’s disclosure

was wholly unresponsive to the prosecutor’s line of

questioning. Finally, we cannot say, in this case, that

an order to the prosecutor to warn Johnson against

making these disclosures would have been successful.

As the record reveals, the court’s two warnings to Johnson following the first disclosure proved ineffective:

shortly thereafter, she again mentioned that the defendant previously had been in jail. For these reasons, we

cannot say that the court’s election to reserve decision

on the defendant’s motion in limine was an abuse of discretion.

We next turn to the defendant’s claim that the court

abused its discretion by denying his motions for a mis-
trial. Again, the defendant argues that the court could

have avoided the harm to the defendant flowing from

Johnson’s reference to the defendant’s robbery conviction because it was foreseeable. Specifically, he argues

that the court and the state had ample time to warn

Johnson in advance not to refer to the conviction in

her trial testimony as she had done at the probable

cause hearing. The defendant also argues that he suffered prejudice because the jury readily could infer

that he had gone to jail for robbery in the recent past:

Contrary to the court’s characterization of Johnson’s

testimony as lacking in detail, the prejudice to the defendant was not minimized by the jury not knowing the

degree of the charged robbery, when it occurred, when

the defendant went to jail for it, and how much jail

time he received. We disagree.

As we already have noted, the giving of a curative

instruction, such as the court gave here, carries great

weight in our determination of whether the court’s

denial of a motion for mistrial was an abuse of discretion. See State v. Anderson, supra, 163 Conn. App. 791.

Here, after both of Johnson’s unresponsive disclosures

that the defendant had been convicted of robbery and

had previously been in jail, the court promptly gave the

jury a curative instruction directing jurors to ignore

each statement and informing them that each statement

would be stricken from the record. Additionally, in its

final instructions, the court instructed the jurors that

they were not to consider as evidence any testimony

that had been stricken from the record.

‘‘It is well established that, [i]n the absence of an

indication to the contrary, the jury is presumed to have

followed [the trial court’s] curative instructions. . . .

The burden is on the defendant to establish that, in the

context of the proceedings as a whole, the challenged

testimony was so prejudicial, notwithstanding the

court’s curative instructions, that the jury reasonably

cannot be presumed to have disregarded it.’’ (Citation

omitted; internal quotation marks omitted.) State v.

Nash, 278 Conn. 620, 659–60, 899 A.2d 1 (2006); see

also State v. Doehrer, 200 Conn. 642, 654, 513 A.2d 58

(1986) (‘‘[a]ny possible prejudice stemming from the

portion of the question that the jury did hear was cured

by the prompt curative instruction and the further

instruction given by the judge in his final charge’’); State

v. Williams, 64 Conn. App. 512, 539–40, 781 A.2d 325

(denial of motion for mistrial not abuse of discretion

where, immediately following prosecutor’s question

‘‘[d]o you recall [the defendant] going to jail back in

October of 1996?’’ court instructed jury to ‘‘[p]lease

ignore that, ladies and gentlemen’’ and directed prosecutor to discontinue line of questioning), cert. granted

on other grounds, 258 Conn. 911, 782 A.2d 1251 (2001)

(appeal dismissed April 24, 2003).

Here, the defendant has not carried his burden to
demonstrate that the prejudicial effect of Johnson’s

testimony exceeded the ameliorative effect of the

court’s curative instructions. Indeed, each curative

instruction that the court gave was carefully calculated

to mitigate any prejudice. As the court told defense

counsel, it had opted generally to direct jurors to ignore

Johnson’s foregoing statement rather than possibly to

highlight the statement by specifically mentioning it.

Although invited to suggest the language in which the

court should have couched the curative instruction,

‘‘[t]he defendant . . . neither submitted a request to

charge nor took exception to the court’s charge on this

point. He cannot now be heard to complain that the

trial court failed to cure any prejudice caused by [the

offending] remark.’’ State v. Moye, 199 Conn. 389, 396,

507 A.2d 1001 (1986)(where court gave curative instruction couched in general terms to avoid undue emphasis

on remark and defendant failed to suggest alternative

or object to court’s instruction, denial of motion for

mistrial was not abuse of discretion).11

Additionally, the state’s case against the defendant

was otherwise strong. The state presented ample evidence on the basis of which the jury reasonably could

have found that the defendant committed these crimes.

The robbery of the victim took place in the same manner

in which the defendant had told Johnson he planned

to carry it out. The testimony of numerous witnesses,

corroborated by cell phone evidence, placed the defendant at the scene during the events in question. Afterward, the defendant was wearing the victim’s leather

jacket and boasting of having taken the victim’s marijuana, cash, gold chain, and cell phone.

In sum, on the record before us, it does not appear

that an injustice has been done. The court acted within

its wide discretion in determining that its curative

instructions had so obviated any prejudice flowing from

Johnson’s remarks that a mistrial was unwarranted.

The judgment is affirmed.

In this opinion the other judges concurred.

1 General Statutes § 54-82h (c) provides in relevant part: ‘‘If, at any time,

any juror shall, for any reason, become unable to further perform the duty

of a juror, the court may excuse such juror and, if any juror is so excused

or dies, the court may order that an alternate juror who is designated by

lot to be drawn by the clerk shall become a part of the regular panel and

the trial or deliberation shall then proceed with appropriate instructions

from the court as though such juror had been a member of the regular panel

from the time when the trial or deliberation began. . . .’’

2 We refer to the jurors by initials to protect their legitimate privacy

interests. State v. Williams, 108 Conn. App. 556, 558 n.2, 948 A.2d 1085 (2008).

3 Additionally, the defendant’s claims that E.A. was excused off the record,

in secret, and outside his presence or the presence of counsel, in violation

of his constitutional rights, rest on the factual premise that E.A. was excused

when she was dismissed from the jury assembly room instead of when the

court decided to employ the statutory procedure to replace her. As we

previously have discussed in part I A of this opinion, this premise is incorrect.

After learning that E.A. had been dismissed from the jury assembly room,

the court excused her on the record, after giving counsel notice of her

reported illness and the opportunity to be heard.

4 The defendant also sought to preclude the state from introducing evi-
dence regarding his ‘‘previous involvement in a domestic violence case.’’

That portion of the motion in limine is not at issue in this appeal.

5 The defendant requested the same instruction with regard to Patterson,

another witness who had mentioned the defendant’s criminal history at the

probable cause hearing. Patterson did not mention the defendant’s prior

conviction in his trial testimony.

6

In the first instance, Johnson was testifying regarding her relationships

with the defendant and the victim. Johnson testified that the defendant, a

friend, had introduced her to the victim, ‘‘and he and I instantly hit it off.

I was just like oh he’s mad cool. We exchanged phone numbers and then

we became friends as well. And then later, [the defendant] went to jail for

robbery—’’

In the second instance, Johnson referred to the defendant having been

released from jail in the following exchange that occurred between the

prosecutor and Johnson:

‘‘Q. Okay. The timeline—when did [the defendant] live in your mother’s

house? Do you remember? Was it before November of 2009 or after?

‘‘A. Yeah. During the . . . duration of time when he just came home

from jail.’’

7 The court stated the following: ‘‘Okay, members of the jury, just before

you were excused a moment ago, the witness made a statement that was

unresponsive to the question that was asked. You are to ignore that statement. The statement is stricken from the record. Let’s proceed.’’

8 After denying the defendant’s first oral motion for a mistrial, the court

admonished Johnson outside the presence of the jury, stating ‘‘just don’t

volunteer things, okay?’’ Shortly thereafter, again outside the presence of

the jury, the court reiterated its admonition during the following exchange

among the court, the prosecutor, and Johnson:

‘‘The Court: [I] take it you had an opportunity to speak to your witness

about making voluntary statements regarding criminal conduct by this

defendant?

‘‘[The Prosecutor]: [S]he came in late this morning and I was unable to.

And the first time she responded to the subpoena was Monday morning. I

was remiss.

‘‘The Court: Okay. Well I think I indicated on the record before, ma’am,

if you’re asked a question about what [the defendant] said, you can say

what [the defendant] said but just don’t volunteer stuff that you’re not asked

about, all right?

‘‘The Witness: All right.’’

9 We note that the court did reserve decision on the motion in limine with

regard to the state’s use of the defendant’s prior conviction for impeachment

purposes ‘‘until such time as the defense puts on a case and you decide to

put [the defendant] on the stand. . . . And it will be relevant at that moment

since the state just told me it’s not going to put on evidence of . . . his

prior robbery conviction in its case-in-chief.’’ Because the defendant elected

not to testify, the state had no occasion to introduce impeachment evidence.

See State v. Crumpton, 202 Conn. 224, 230, 520 A.2d 226 (1987) (prior

conviction may be admissible if defendant testifies, putting credibility in

issue).

10 Insofar as the specific basis of the defendant’s claim on appeal is the

court’s denial of his request for an instruction to Johnson not to testify as

to the defendant’s robbery conviction, we note that the defendant did not

include this request in his written motion in limine but only requested it

orally at the hearing on that motion. The state argues that the court was

entitled to disregard the motion because it did not comply with Practice

Book § 42-15, which states that a motion in limine ‘‘shall be in writing . . . .’’

Nevertheless, the state neither objected to the defendant’s request on this

ground nor argues before this court that it was deprived of notice or otherwise prejudiced by the oral motion. Accordingly, we will consider the denial

of the defendant’s oralrequest as a basis forthis appeal. Cf. State v. Andrews,

313 Conn. 266, 273 n.4, 96 A.3d 1199 (2014) (rejecting defendant-appellant’s

claim that court should have denied state’s oral motion in limine summarily

as procedurally improper where defendant did not object to motion on

procedural grounds or claim on appeal that he was deprived of adequate

notice to respond or otherwise was harmed, and cited no authority).

11 We note briefly the defendant’s argument that the court’s denial of his

motions for a mistrial was an abuse of discretion because Johnson referred

to ‘‘the specific legal consequences attendant to [the defendant’s prior]

conduct.’’ State v. Nash, supra, 278 Conn. 659. In Nash, one of our Supreme

Court’s reasons for affirming the trial court’s denial of the defendant’s motion

for mistrial was that ‘‘the allegedly improper statement . . . that [the witness] knew the defendant ‘from previous related police intervention in the
area in the past’ is vague as to whether the defendant had engaged in any

misconduct to prompt the police intervention. [The witness’] statement

conceivably could have been a reference to a situation in which the defendant

had been a victim, a witness or an innocent bystander.’’ Id., 658. In particular,

the statement ‘‘[did] not reference explicitly a notorious criminal past . . .

specific facts concerning improper conduct by the defendant [or] the specific

legal consequences attendant to such conduct.’’ (Citation omitted.) Id.,

658–59.

Although the court in Nash observed that the absence of these references

weighed in favor of concluding that the court properly had denied the motion

for a mistrial in that case, Nash does not stand for the proposition that the

presence of any such reference requires a mistrial. Furthermore, in the

present case, as in Nash, ‘‘[t]o the extent that the jury arguably could have

interpreted the isolated statement to mean that the defendant had engaged

in prior misconduct . . . and thus it potentially could have relied on that

statement as improper propensity evidence, it is significant that the trial

court provided a curative instruction to the jury.’’ Id., 659. Accordingly, the

defendant’s reliance on Nash is misplaced.