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*********************************************** 
STATE OF CONNECTICUT v. JOESENIER

RUIZ-PACHECO

(AC 39605)

Prescott, Elgo and Harper, Js.

Syllabus

Convicted of the crimes of assault in the first degree, attempt to commit

murder and conspiracy to commit assault in the first degree in connection with the stabbing of the victims, T and R, the defendant appealed.

He claimed, inter alia, that his conviction of two counts of assault in

the first degree as an accessory violated the double jeopardy clause and

that certain of the trial court’s jury instructions were improper. The

defendant and his brother, E, had left a nightclub and gone to an adjacent

parking lot, where the defendant punched his former girlfriend, M, in

the face and put her in a headlock. Thereafter, T punched the defendant,

who then released M from the headlock, and the defendant, E, T and

R began to fight. The defendant and E stabbed T multiple times, and

the defendant stabbed R two or three times. The defendant and E then

ran after R, and E stabbed R, who tumbled down a portion of grass.

The defendant then approached R and stabbed him. The state charged

the defendant with, inter alia, one count each of assault in the first

degree as a principal and an accessory as to the stabbings of T, and

one count each of assault in the first degree as a principal and an

accessory as to the stabbings of R. Held:

1. The defendant could not prevail on his unpreserved claim that his conviction of two counts each of assault in the first degree as a principal and

as an accessory violated his right against double jeopardy, and, thus,

that his conviction of the accessory counts should be vacated:

a. The acts of stabbing as to R were susceptible of separation into

distinct criminal acts for which the defendant could be punished without

offending principles of double jeopardy, as the jury reasonably could

have predicated its finding that the defendant committed assault as a

principal on the basis of the first or third of the stabbing incidents

involving R, each of which was completed by the defendant, there was

no doubt that the defendant’s stabbing of R after R left the initial brawl

was a criminal act that was distinct and separate from the stabbings

that the defendant and E initially inflicted on R, and the jury’s finding

that the defendant engaged in an assault as an accessory could have

been predicated on his having aided E in the second act of stabbing R;

moreover, the information contained four separate and distinct counts

for each assault charge, the state did not suggest to the jury that the

assault charges were alternative theories of liability, but presented evidence that the defendant and E stabbed each victim, and the state argued

that the evidence supported a finding that the defendant acted as an

accessory by being there with a knife.

b. The jury reasonably could have determined that the defendant was

guilty as a principal actor for the stab or stabs that he personally inflicted

on T and as an accessorial actor for intentionally aiding in the nearly

simultaneous stab or stabs that E inflicted on T; the jury was free to

resolve conflicting evidence by concluding that the defendant and E

stabbed T, and that the defendant was liable for assault in the first

degree on the basis of his stabbing of T and as an accessory for E’s

stabbing of T, which was a contemporaneous yet separate assault with

independent legal significance because the defendant had engaged in

conduct with the intent to aid E’s assault, and because the defendant’s

multiple punishments for assault as to each victim were not premised

on a single criminal act, but were based on distinct repetitions of the

same crime, the trial court was not constitutionally required to vacate

the defendant’s conviction of two counts of assault in the first degree

as an accessory.

2. The defendant could not prevail on his unpreserved claim that he was

deprived of a fair trial as a result of the trial court’s jury instructions

on attempted murder, which was based on his assertion that the court

misled the jury when it utilized the phrase, ‘‘engaged in anything,’’ in
three instances, read the full statutory definition of general and specific

intent, and failed to adequately define the substantial step element for

attempt: it was not reasonably possible that the instructions, when

viewed as a whole, misled the jury, as they adequately conveyed to the

jury that to find the defendant guilty, it must find that he had the specific

intent to cause death, the words, ‘‘engaged in anything,’’ as used by the

court did not affect the specific intent requirement in the applicable

statute (§ 53a-3 [11]) but, rather, referred to conduct that constituted a

substantial step toward the commission of the crime, and the court

explained that the jury did not need to concern itself with what general

intent meant; moreover, the court instructed the jury that a person acts

intentionally with respect to a result when his conscious objective is

to cause such a result, and, to the extent that the defendant claimed

that separate claims of error taken together deprived him of a fair

trial, our Supreme Court previously has rejected the cumulative error

approach regarding claims of instructional error.

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

court improperly instructed the jury on the defenses of self-defense and

defense of others, and on the lesser included offenses of assault in the

second degree and assault in the third degree, which was based on his

assertion that the court’s instructions on self-defense permitted the jury

to consider the lesser included offenses if the state failed to disprove

self-defense beyond a reasonable doubt: the defendant waived his right

to challenge the instructions, as he had a meaningful opportunity at

trial to review them, and he assented to them and expressed no concerns

regarding revisions to the charge or to the charge as given to the jury;

moreover, even if the instructions constituted obvious and undebatable

error, the defendant could not establish manifest injustice or fundamental unfairness pursuant to the plain error doctrine because the jury

returned a verdict of guilty on the charged offenses and not on any of

the lesser included offenses.

4. The defendant’s claim that multiple instances of prosecutorial impropriety

during closing arguments deprived him of a fair trial because they negatively impacted his claims of self-defense and third-party culpability

was unavailing:

a. The prosecutor’s argument that the defendant was the initial aggressor

due to his assault of S was based on the facts in evidence and, thus,

was not improper; the court instructed the jury regarding the state’s

burden to prove that the defendant was the initial aggressor in the

encounter with R and T, and the defendant failed to cite any law to

support his claim that he could be the initial aggressor only if he was

the first person to threaten or use force against T or R.

b. The prosecutor did not directly urge the jury to draw an adverse

inference by virtue of E’s absence or suggest that the defendant had the

burden to produce evidence in support of his defense; the prosecutor’s

reference to the lack of evidence for the defendant’s theory of the case,

which was that E was the initial aggressor, was not improper.

c. The prosecutor did not improperly appeal to the emotions of the

jurors when he referred to R and T as good Samaritans; the prosecutor’s

comments were based on reasonable inferences from the facts in evidence, and he utilized his closing arguments to explain the motivations

of R and T for approaching the defendant, and argued that the defendant

was the initial aggressor.

d. The prosecutor did not improperly make arguments based on facts

that were not in evidence when he argued that two witnesses saw the

defendant stab T, when he stated that the defendant was the brother

of a certain person who was referred to by a nickname, or when he

discussed the testimony of two police officers who had witnessed the

fight; the prosecutor’s statements were supported by testimony and

evidence, or were proper inferences drawn from the evidence, and even

if the prosecutor’s argument about the testimony of two police officers

who witnessed the fight was improper, the court’s cautionary instructions to the jury were sufficient to cure any harm to the defendant.

Argued November 28, 2017—officially released September 25, 2018

Procedural History

Substitute information charging the defendant with

four counts of the crime of assault in the first degree,

and two counts each of the crimes of attempt to commit
murder and conspiracy to commit assault in the first

degree, brought to the Superior Court in the judicial

district of Danbury and tried to the jury before Eschuk,

J.; verdict of guilty of four counts of assault in the first

degree, two counts of conspiracy to commit assault in

the first degree and one count of attempt to commit

murder; thereafter, the court vacated the verdict as to

one count of conspiracy to commit assault in the first

degree and rendered judgment in accordance with the

verdict, from which the defendant appealed. Affirmed.

Pamela S. Nagy, assistant public defender, for the

appellant (defendant).

Marjorie Allen Dauster, senior assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky

III, state’s attorney, Warren C. Murray, supervisory

assistant state’s attorney, and Laurie N. Feldman, special deputy assistant state’s attorney, for the appellee

(state).
Opinion

ELGO, J. The defendant, Joesenier Ruiz-Pacheco,

appeals from the judgment of conviction, rendered after

a jury trial, of two counts of assault in the first degree

as a principal in violation of General Statutes § 53a-59

(a) (1), two counts of assault in the first degree as an

accessory in violation of General Statutes §§ 53a-59 (a)

(1) and 53a-8, one count of attempt to commit murder

in violation of General Statutes § 53a-54, and one count

of conspiracy to commit assault in the first degree in

violation of General Statutes §§ 53a-59 (a) (1) and 53a48.1 On appeal, the defendant claims that (1) his conviction of the assault counts violates the double jeopardy

clause; (2) the jury instructions on attempted murder

were improper; (3) the court’s repeated instruction that

the jury should consider the lesser included offenses

even if the state failed to disprove self-defense on the

greater offenses misled the jury; and (4) he was

deprived of a fair trial due to prosecutorial improprieties that affected the critical issues of self-defense and

third-party culpability. We affirm the judgment of the

trial court.

The following facts, which the jury reasonably could

have found, and procedural history are relevant to the

defendant’s appeal. On November 30, 2012, the defendant went to El Milenio, a nightclub in Danbury, with

his brother, Eliezer, and his friends, Raymond Martinez

and Eiliana Martinez. A group of women, Dumilka

Adames, Samantha Medina, Petra Mendez, Carina

Amaro, and Rita Santos, also attended the nightclub.

At approximately 2 a.m. on December 1, 2012, the nightclub closed and the group of women walked to their

cars, which were parked in the adjacent C-Town grocery store parking lot. Kenneth Tucker, who had

attended a different nightclub, was waiting in the parking lot to meet up with the group of women. The defendant and his associates also walked to the C-Town

grocery store parking lot. Adames got into Santos’ car

with Tucker. Medina and Mendez got into Amaro’s car.

At some point, the defendant and Eliezer approached

Amaro’s car. Eliezer and Mendez exchanged words.

Medina, the defendant’s former girlfriend, got out of the

car and argued with him. The defendant then punched

Medina in the face and put her in a headlock. Other

people in the parking lot, including Tucker and Luis

Rodriguez, another bystander, saw the defendant put

Medina in a headlock. Medina yelled at the defendant

to let her go. Tucker punched the defendant, and the

defendant released Medina from the headlock. Tucker,

the defendant and Eliezer then immediately began to

fight with their fists. Rodriguez also entered the fray

after he saw the defendant hit Medina. At some point

during the fight, the defendant and Eliezer went to their

car to arm themselves; Eliezer obtained a knife for

himself from the car and handed a knife to the defen-
dant. Tucker and Rodriguez were unarmed. Throughout

the course of the fight in the parking lot, the defendant

and Eliezer stabbed Tucker multiple times. The defendant also stabbed Rodriguez two or three times. When

the defendant and Eliezer walked away, Rodriguez said

something to the brothers. In response, the defendant

and Eliezer ran after Rodriguez, and Eliezer stabbed

Rodriguez in the back. After Eliezer stabbed him, Rodriguez tumbled down a portion of grass between the

parking lot and the sidewalk. The defendant then

approached Rodriguez, who was in the street unable

to move as a result of his injuries, stabbed him in the

left side of the chest and said: ‘‘This is for hitting my

brother.’’ The defendant and Eliezer thereafter fled the

scene together in a vehicle. Two off-duty police officers

witnessed a portion of the fight and rendered medical

assistance to Rodriguez after he was stabbed. Rodriguez

sustained five stab wounds and Tucker sustained three

stab wounds.

The defendant was arrested later that night. The

police took the defendant’s statement in which the

defendant admitted that he ‘‘stabbed a person in selfdefense . . . .’’ The state charged the defendant with

two counts of assault in the first degree as a principal

in violation of § 53a-59 (a) (1), two counts of assault

in the first degree as an accessory in violation of §§ 53a59 (a) (1) and 53a-8, two counts of attempted murder

in violation of § 53a-54, and two counts of conspiracy

to commit first degree assault in violation of §§ 53a-59

(a) (1) and 53a-48. At trial, the state presented eyewitness testimony, including that of Mendez, Adames,

Tucker, Rodriguez, Liybin Fernandez, Officer Kristin

Lindstrom, and Officer David Dubord. Following a jury

trial, the defendant was found guilty on all counts

except for one count of attempted murder (count five),

and the jury’s guilty verdict on one count of conspiracy

to commit assault in the first degree (count eight) was

vacated at sentencing.2 This appeal followed.

I

The defendant first claims that his conviction of

assault in the first degree as a principal pursuant to

counts two and six of the information, and assault in

the first degree as an accessory pursuant to counts

three and seven of the information, violates his fifth and

fourteenth amendment right against double jeopardy.

Accordingly, he contends that his conviction of the two

counts of assault as an accessory should be vacated.

The state argues that because the defendant’s conviction of the four counts was based on different acts, his

double jeopardy rights were not violated. We agree with

the state.

The following additional facts are relevant to our

resolution of the defendant’s claim. The information

in the present case charged the defendant with four

separate counts of first degree assault. In relevant part,
the information contained one count each of assault in

the first degree as a principal and assault in the first

degree as an accessory with respect to the stabbing

injuries suffered by Rodriguez,3 and separate counts of

assault in the first degree as a principal and assault in

the first degree as an accessory with respect to the

stabbing injuries sustained by Tucker.4 The defendant

never sought a bill of particulars.

In discussing the nature of the charges in its closing

argument, the state argued that there were many possible combinations whenever there are at least two persons stabbing two victims and that multiple counts were

appropriate in this case ‘‘to accommodate all those situations.’’ The state argued that there was evidence that

both the defendant and his brother, Eliezer, armed

themselves with knives during the conflict and that both

victims were stabbed multiple times. According to the

prosecutor, the jury had the obligation of sorting out

the conflicting evidence presented and to determine

whether the defendant himself had stabbed both victims

or had helped his brother stab the victims ‘‘just by being

there with the knife himself.’’ The state did not expressly

rule out that some combination was also possible. In

fact, at no time did the state suggest to the jury that it

was proceeding on a theory of alternative liability or

that the jury was limited to finding the defendant guilty

either solely as a principal or solely as an accessory

with respect to the two victims.

In her closing argument, defense counsel also noted

the conflicting evidence that existed with respect to

who had stabbed each of the victims and argued that

it was the jury’s duty to reach a determination on the

basis of the evidence before it. The defense theory was

that it was Eliezer who stabbed the victims, not the

defendant, but that if the jury found otherwise, it should

still find the defendant not guilty because he had acted

in self-defense or in defense of others. At no point did

the defense argue to the jury that if it found the defendant guilty of assaulting the victims as a principal, it

could not also find him guilty of acting as an accessory.

In its instructions to the jury regarding the charges

against the defendant, the court told the jury that the

defendant was ‘‘entitled to and must be given by you

a separate and independent determination of whether

he’s guilty or not guilty as to each of the counts’’

charged, and that ‘‘[e]ach of the counts charged is a

separate crime.’’ The defendant did not object to the

instruction given by the court or ask for clarification

about whether he potentially could be found guilty on

all counts or whether certain counts were pleaded only

in the alternative.

With that background in mind, we address the reviewability of the defendant’s claim. The defendant acknowledges that he failed to raise any double jeopardy claim

before the trial court and, thus, seeks review of his
claim pursuant to State v. Golding, 213 Conn. 233, 567

A.2d 823 (1989). Golding provides that ‘‘[a] defendant

can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are

met: (1) the record is adequate to review the alleged

claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3)

the alleged constitutional violation . . . exists and

. . . deprived the defendant of a fair trial; and (4) if

subject to harmless error analysis, the state has failed to

demonstrate harmlessness of the alleged constitutional

violation beyond a reasonable doubt. In the absence of

any one of these conditions, the defendant’s claim will

fail.’’ (Emphasis omitted; footnote omitted.) Id., 239–40;

see In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188

(2015) (modifying third prong of Golding). We conclude

that the first two prongs of the Golding test have been

met because the record before us is adequate to review

the defendant’s claim and a double jeopardy claim

raises an issue of constitutional magnitude. See State

v. Estrada, 71 Conn. App. 344, 357, 802 A.2d 873, cert.

denied, 261 Conn. 934, 806 A.2d 1068 (2002). We, thus,

direct our attention to the third prong and whether the

defendant’s claimed double jeopardy violation exists.

Before turning to our discussion of the law relative

to the defendant’s double jeopardy claim, it is important

to emphasize what the defendant is not claiming. He is

not claiming that there was insufficient evidence from

which the jury could find him guilty, either as a principal

or as an accessory, of assaulting the two victims with

the intent to cause serious bodily injury. In other words,

he has not argued that there was insufficient evidence

from which the jury could conclude that he stabbed

the two victims and that he engaged in conduct with

the intent to aid Eliezer in Eliezer’s assault of each of

the victims. The claim he makes on appeal is simply

that it is constitutionally impermissible under the facts

of this case to allow his conviction of multiple counts

of assault as to each victim to stand because, in his

view, doing so would result in his being punished twice

for the same act.

‘‘A defendant’s double jeopardy claim presents a

question of law, over which our review is plenary. . . .

The double jeopardy clause of the fifth amendment to

the United States constitution provides: [N]or shall any

person be subject for the same offense to be twice put

in jeopardy of life or limb. The double jeopardy clause

[applies] to the states through the due process clause

of the fourteenth amendment. . . . This constitutional

guarantee prohibits not only multiple trials for the same

offense, but also multiple punishments for the same

offense in a single trial.’’ (Internal quotation marks omitted.) State v. Porter, 328 Conn. 648, 654–55, 182 A.3d

625 (2018).5

In analyzing a double jeopardy claim arising in the
context of a single trial, we apply a well established

two step process. ‘‘First, the charges must arise out of

the same act or transaction. Second, it must be determined whether the charged crimes are the same

offense. Multiple punishments are forbidden only if

both conditions are met.’’ (Internal quotation marks

omitted.) State v. Bernacki, 307 Conn. 1, 9, 52 A.3d 605

(2012), cert. denied, 569 U.S. 918, 133 S. Ct. 1804, 185

L. Ed. 2d 811 (2013).

In State v. Porter, supra, 328 Conn. 648, our Supreme

Court clarified the type of evidence an appellate court

should consider in applying this two step process. In

evaluating the first step, i.e., whether the charges arise

out of the same act or transaction, ‘‘we look to the

evidence at trial and to the state’s theory of the case

. . . in addition to the information against the defendant, as amplified by the bill of particulars. . . . If it

is determined that the charges arise out of the same

act or transaction, then the court proceeds to step two,

where it must be determined whether the charged

crimes are the same offense. . . . [In considering the]

second step . . . we look only to the information and

bill of particulars—as opposed to the evidence presented at trial . . . . Because double jeopardy attaches

only if both steps are satisfied . . . a determination

that the offenses did not stem from the same act or

transaction renders analysis under the second step

unnecessary. (Citations omitted; emphasis added;

internal quotation marks omitted.) Id., 662. Because we

conclude in the present case that the defendant’s double

jeopardy claim founders on the first step of the analysis,

it is unnecessary to consider whether the charged

crimes are the same offense under the rubric set forth

in Blockburger v. United States, 284 U.S. 299, 52 S. Ct.

180, 76 L. Ed. 306 (1932).

‘‘[D]istinct repetitions of a prohibited act, however

closely they may follow each other . . . may be punished as separate crimes without offending the double

jeopardy clause. . . . The same transaction, in other

words, may constitute separate and distinct crimes

where it is susceptible of separation into parts, each

of which in itself constitutes a completed offense. . . .

[T]he test is not whether the criminal intent is one

and the same and inspiring the whole transaction, but

whether separate acts have been committed with the

requisite criminal intent and are such as are made

punishable by the [statute].’’ (Emphasis altered; internal quotation marks omitted.) State v. Brown, 299 Conn.

640, 652, 11 A.3d 663 (2011). Accordingly, although the

counts in an information may rely on factual allegations

arising from one overarching criminal event, if it is

possible to isolate distinct acts that occurred during that

event that constitute separate and severable criminal

offenses, prosecution of those offenses will not implicate double jeopardy. ‘‘[A]n appellate court reviewing

an unpreserved claim of double jeopardy must examine
the evidence to determine whether the alleged transaction logically can encompass separate acts, which in

turn form the basis of separate convictions.’’ State v.

Porter, 167 Conn. App. 281, 290–91, 142 A.3d 1216

(2016), aff’d, 328 Conn. 648, 182 A.3d 625 (2018).

By way of example, in Brown, the defendant and

several coconspirators participated in a scheme to rob

a suspected drug dealer that ended with that dealer

being killed by the defendant. State v. Brown, supra, 299

Conn. 644–46. The defendant was convicted of felony

murder and murder, which were merged prior to sentencing, and robbery in the first degree, attempt to

commit robbery in the first degree, conspiracy to commit robbery in the first degree, and other crimes related

to the use of a firearm. Id., 646. On appeal, the defendant

raised an unpreserved double jeopardy claim, arguing

that his conviction of both robbery and attempted robbery arose out of the same transaction, and, therefore,

his sentence for attempted robbery should be vacated.

Id., 650. The court disagreed because the evidence presented at trial showed that acts constituting an

attempted robbery reasonably could be isolated from

other acts constituting a separate robbery and, therefore, punishing the defendant for both crimes did not

violate the constitution. Id., 654.

Specifically, the court concluded that the jury reasonably could have found, on the basis of the evidence

presented, that the attempted robbery had occurred

when the victim was first confronted in his car by the

defendant’s three coconspirators, one of whom pointed

a gun at his head. Id., 653. Following a struggle for

control of the gun, the victim escaped and began to run

down the street. Id. The court found that the actions

up to that point constituted a completed attempted

robbery. Id. The defendant, who had run after the victim

when he escaped from the car, was able to catch him

when the victim tripped and fell. The defendant then

shot the victim in the head and went through the victim’s

pockets, which the court viewed as constituting a separate and distinct act of robbery. Thus, the court concluded that in the course of the single criminal

conspiracy, the defendant had participated in two separate and severable crimes that happened close together

in both time and physical proximity—an attempted robbery as an accessory and a robbery acting as the principal. Id., 653–54.

The double jeopardy analysis in the present case is,

at least at first blush, complicated by the fact that all

the stabbing injuries to the victims occurred within a

very short duration of each other, and that the defendant was charged with having committed an assault of

each of the victims and as an accessory to an assault

of each of the victims by Eliezer. It is true that ‘‘[t]his

state . . . long ago adopted the rule that there is no

practical significance in being labeled an accessory or
a principal for the purpose of determining criminal

responsibility. . . . Under the modern approach, a person is legally accountable for the conduct of another

when he is an accomplice of the other person in the

commission of the crime. . . . [T]here is no such crime

as being an accessory . . . . The accessory statute

merely provides alternate means by which a substantive

crime may be committed.’’ (Citations omitted; internal

quotation marks omitted.) State v. Correa, 241 Conn.

322, 340–41, 696 A.2d 944 (1997).

Section 53a-8 (a) provides in relevant part that ‘‘[a]

person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person

to engage in conduct which constitutes an offense shall

be criminally liable for such conduct . . . .’’ To intentionally aid someone means to be ‘‘more than a mere

inactive companion’’; (internal quotation marks omitted) State v. Harris, 32 Conn. App. 831, 841, 632 A.2d

50 (1993), appeal dismissed, 230 Conn. 347, 644 A.2d

911 (1994); but ‘‘to do something purposely’’ in order

to ‘‘support, help, assist or strengthen’’ them. (Internal

quotation marks omitted.) Id., 841 n.10. Although accessorial liability for an assault cannot be based solely on

a person’s presence at the scene, if there is evidence

that the person was not merely a witness but also participated in the assault, a reasonable inference may be

drawn that the participation aided the principal assailant by, for example, preventing the victim from more

easily escaping the fight or by making the victim more

vulnerable to the principal assailant’s assault. See State

v. Raynor, 175 Conn. App. 409, 431, 167 A.3d 1076 (in

challenge by defendant to sufficiency of evidence supporting conviction of first degree assault as accessory,

court concluded jury reasonably could have inferred

from evidence of defendant’s presence at brawl with

gun and participation in physical beating of victim prior

to his shooting that defendant aided principal by preventing victim from leaving area and helping immobile

victim before he was shot), cert. granted on other

grounds, 327 Conn. 969, 173 A.3d 952 (2017).

Although it is indisputable that a defendant could not

be punished for acting as both a principal and accessory

in the commission of a single criminal act, the prohibition against double jeopardy is not always automatically

violated simply because of contemporaneous convictions of the same offense as both a principal and as an

accessory. If, for example, a jury reasonably could find

on the basis of the evidence presented that each charged

offense was the result of a distinct act of independent

legal significance—one committed as a principal and

another as an accessory—double jeopardy is not implicated. Because the defendant in the present case was

convicted on separate counts of assaulting each of the

victims both as a principal and as an accessory, we

look to the evidence and the state’s theory of the case
to determine whether the jury could have reasonably

concluded that separate acts underlie each conviction

or whether the defendant is being twice punished for

the same act.

A

We first consider whether, with respect to the convictions arising out of the stabbing injuries to Rodriguez,

the defendant has demonstrated that the jury could not

reasonably have concluded that two distinct acts of

criminal conduct were committed that would support

its findings of guilt on separate counts alleging first

degree assault as a principal and first degree assault

as an accessory. We conclude that the defendant has

failed to meet this burden.

The evidence at trial reasonably can be construed as

establishing at least three separate stabbing incidents

involving Rodriguez. First, during the fracas that ensued

after Rodriguez intervened to stop the altercation

between the defendant and Medina, the defendant

stabbed Rodriguez. Second, Eliezer, who also was

armed with a knife, then stabbed Rodriguez in the back.

Third, after Rodriguez tried to leave the initial skirmish,

the defendant pursued Rodriguez into the street and

stabbed him again.

The jury, thus, reasonably could have predicated its

finding that the defendant committed assault in the first

degree as a principal either on the basis of the first or

third of these stabbing incidents, each of which was

completed by the defendant himself. Even if the defendant were able to convince us that the relatively simultaneous stabbings of Rodriguez by the defendant and

Eliezer during the initial outbreak of violence should

be treated a single act for purposes of double jeopardy,

an argument that we reject for reasons we discuss in

addressing the injuries to Tucker, there is no doubt that

the subsequent stabbing of Rodriguez by the defendant

that occurred after Rodriguez left the initial brawl was

a criminal act distinct and separate from the stabbings

initially inflicted on Rodriguez by the defendant and

his brother.

Furthermore, the jury’s finding that the defendant

engaged in an assault in the first degree as an accessory

could have been predicated on his having aided Eliezer

in the second act of stabbing Rodriguez. The jury reasonably could have concluded that the defendant aided

and encouraged Eliezer’s assault of Rodriguez in any

number of ways, including by helping Eliezer to arm

himself with a knife and through his own participation

in the fight, making it easier for Eliezer to wound Rodriguez.6 See id. (defendant’s participation in fight evinces

intent to aid perpetrator in assault and supports jury’s

finding of accessorial liability).

Moreover, as we previously stated, we consider the

state’s theory of the case in our analysis of whether the
alleged transaction logically can encompass separate

acts. See State v. Porter, supra, 328 Conn. 661. To the

extent that the defendant contends that the state presented the two charges of assault in the first degree as

a principal and an accessory as alternative theories of

liability, we reject that claim. The state argued that

both victims were stabbed multiple times and presented

evidence of both assailants stabbing each victim. The

state also argued that the evidence supported a finding

that the defendant acted as an accessory ‘‘just by being

there with the knife himself.’’ From the very beginning

of trial, the information contained four separate and

distinct counts for each charge. At no time did the state

suggest to the jury that the charges were alternative

theories of liability. Furthermore, the court’s jury

instruction regarding the four charges reiterated that

each charge was separate and distinct, rather than

charges in the alternative. Although the trial court did

not specifically articulate that the jury could deliver a

guilty verdict as to each of the charges, it did not preclude the jury from making such a finding. See State

v. King, 321 Conn. 135, 154, 136 A.3d 1210 (2016)

(‘‘[a]lthough . . . the trial court never explicitly

informed the jury that it could deliver a guilty verdict

on both charges, it also never instructed the jury that

it could find the defendant guilty only on one charge

but not the other’’).

In sum, we conclude with respect to the injuries

inflicted on Rodriguez that the acts of stabbing were

susceptible of separation into distinct criminal acts for

which the defendant could be punished without

offending principles of double jeopardy. See State v.

Brown, supra, 299 Conn. 654. Furthermore, such theory

comports with the state’s theory presented at trial. The

defendant has presented no legal precedent that would

compel an opposite conclusion. Accordingly, we reject

the defendant’s claim that his conviction of assault in

the first degree as an accessory, as charged in count

three of the information, should have been vacated by

the trial court because it violated double jeopardy principles.

B

We turn next to the evidence pertaining to the stabbing injuries inflicted on Tucker, which we acknowledge presents a closer case from a double jeopardy

perspective than the assault on Rodriguez because,

unlike Rodriguez, all three stabs inflicted on Tucker

occurred closer in both proximity and time. Nevertheless, on the basis of our review of the available evidence,

we conclude that the jury reasonably could have determined that the defendant was guilty both as a principal

actor for the stab or stabs that he personally inflicted

on Tucker and as an accessorial actor for intentionally

aiding the nearly simultaneous stab or stabs that Eliezer

directly inflicted on Tucker.
The defendant argues that if he had acted alone, he

could not have been convicted of separate counts of

assault on Tucker on the basis of each individual stab

that he inflicted during the short duration of the fight,

and that the same rationale should bar his conviction

for multiple stabs that were inflicted by himself and by

an accomplice. In making this argument, the defendant

relies on this court’s decision in State v. Nixon, 92 Conn.

App. 586, 597, 886 A.2d 475 (2005), in which we held

that the conviction of two counts of assault in the second degree arising out of multiple stab wounds inflicted

on a single victim during a continuous and uninterrupted attack violated the prohibition against double

jeopardy. Nixon did not address, however, the scenario

at issue here, in which more than one perpetrator each

assaulted a victim within close proximity in time and

space. We conclude that Nixon is not applicable to the

scenario presented in the present case.

The defendant argues that Nixon is still controlling

despite the fact that it involved only one criminal perpetrator. He does so by relying on the notion that courts

generally make no legal distinction between accessorial

liability and liability as a principal. See State v. Gamble,

119 Conn. App. 287, 297, 987 A.2d 1049, cert. denied,

295 Conn. 915, 950 A.2d 867 (2010). From that doctrinal

basis, he asserts that the presence of multiple assailants

should have no effect on the application of Nixon. This

argument, however, fails to recognize that multiple convictions for the same crime are permitted if they are

based on distinct acts that may be performed by more

than one person rather than the type of rapid succession

of multiple blows by a single perpetrator, on which

Nixon was decided.

It is particularly noteworthy that the defendant does

not argue that double jeopardy bars his conviction as

a principal for the stabbing of Tucker and as an accessory to the stabbing of Rodriguez, despite those stabbings also having quickly occurred within the context

of the same melee. The defendant thus seems tacitly

to acknowledge that he properly may be held criminally

liable for the actions of his accomplice against a separate victim. It would be illogical to conclude that he

would not be liable to the same degree simply on the

happenstance that his accomplice targets the same victim that he himself has just assaulted or is simultaneously assaulting. In short, we find the defendant’s

argument, which is based on his interpretation and conflation of Nixon and Gamble, unpersuasive.

This court having resolved that argument, the evidence before the jury was that Tucker was stabbed

multiple times during the initial fray. There was evidence that both the defendant and Eliezer were armed

with knives. The jury was free to resolve conflicting

evidence by concluding that Tucker’s injuries were not

inflicted by a single assailant, and that both the defen-
dant and Eliezer stabbed Tucker. Under such a scenario,

the jury reasonably could have found the defendant

liable for assault in the first degree on the basis of

his own stabbing of Tucker. Moreover, as it did with

Rodriguez, the jury also could have found the defendant

liable as an accessory for Eliezer’s stabbing of Tucker,

a contemporaneous yet separate assault with independent legal significance because the defendant engaged

in conduct with the intent to aid Eliezer’s assault.7

In

sum, because the defendant’s multiple punishments for

assault as to each victim were premised not on a single

criminal act but distinct repetitions of the same crime,

the court was not constitutionally required to vacate

his conviction of two counts of assault in the first degree

as an accessory. Because the defendant has not demonstrated that a double jeopardy violation exists, he cannot prevail under the third prong of Golding.

II

The defendant next claims that the court improperly

instructed the jury on attempted murder and consequently deprived him of a fair trial. The defendant contends that the court’s instructions on attempted murder

improperly permitted the jury to find him guilty if it

found that he had the general intent to fight with a knife

without also finding that he had the specific intent to

cause death. Specifically, the defendant argues that the

court misled the jury by utilizing the phrase ‘‘engaged

in anything’’ in three instances, reading the full statutory

definition of general and specific intent, and failing to

adequately define the substantial step element.

The defendant acknowledges that he did not file a

request to charge on attempted murder. Furthermore,

the defendant did not take exception to the trial court’s

instructions as given. Nevertheless, the defendant

argues that the unpreserved claim of instructional error

is reviewable under Golding because it implicates his

constitutional right to have the jury properly instructed

on all elements of an offense and the record is adequate

for review. See part I of this opinion. The state does

not dispute that the first two prongs of Golding have

been satisfied with respect to this claim, and the state

did not assert a waiver pursuant to State v. Kitchens,

299 Conn. 447, 482–83, 10 A.3d 942 (2011). We agree

because the record is adequate for review, and, when

intent is an element of a crime, a trial court’s failure

to instruct the jury properly with respect to intent implicates the due process rights of the accused. See, e.g.,

State v. DeJesus, 260 Conn. 466, 472–73, 797 A.2d 1101

(2002). We conclude, however, that the defendant cannot prevail under Golding’s third prong.

‘‘Our standard of review for claims of instructional

impropriety is well established. The principal function

of a jury charge is to assist the jury in applying the

law correctly to the facts which they might find to be

established . . . . When reviewing [a] challenged jury
instruction . . . we must adhere to the well settled rule

that a charge to the jury is to be considered in its entirety

. . . and judged by its total effect rather than by its

individual component parts. . . . [T]he test of a court’s

charge is . . . whether it fairly presents the case to

the jury in such a way that injustice is not done to either

party . . . . In this inquiry we focus on the substance

of the charge rather than the form of what was said

not only in light of the entire charge, but also within

the context of the entire trial. . . . Moreover, as to

unpreserved claims of constitutional error in jury

instructions, we have stated that under the third prong

of Golding, [a] defendant may prevail . . . only if . . .

it is reasonably possible that the jury was misled . . . .’’

(Internal quotation marks omitted.) State v. Lawrence,

282 Conn. 141, 179, 920 A.2d 236 (2007). ‘‘[I]ndividual

jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall

charge. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in

guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible

error. . . . Accordingly, [i]n reviewing a constitutional

challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether

it is reasonably possible that the instruction misled the

jury. . . . In other words, we must consider whether

the instructions [in totality] are sufficiently correct in

law, adapted to the issues and ample for the guidance

of the jury.’’ (Internal quotation marks omitted.) State

v. Hampton, 293 Conn. 435, 452–53, 988 A.2d 167 (2009).

It is well established that the charge of attempted

murder requires the state to prove beyond a reasonable

doubt that the defendant had the specific intent to cause

the death of another person.8 State v. Griggs, 288 Conn.

116, 130–31, 951 A.2d 531 (2008). We turn to a review

of the challenged jury instruction to determine whether

it is reasonably possible that the jury was misled.

The trial court instructed the jury on intent as follows:

‘‘The question of intent: Intent relates to the condition

of the mind of the person who commits the act, his or

her purpose in doing it. The law recognizes two types

of intent; general intent and specific intent, but each

of the crimes charged here are crimes of specific intent,

so you do not need to concern yourself with what general intent means.

‘‘Specific intent is the intent to achieve a specific

result. A person acts intentionally, with respect to a

result, when his or her conscious objective is to cause

such result. What the defendant intended is a question

of fact for you to determine.

‘‘A person acts intentionally with respect to a result

or to conduct described by a statute defining an offense,

when his conscious objective is to cause such a result

or . . . engage in such conduct.
‘‘In this case, you will note that there is in each count

an element which requires you to find that the state

has proven beyond a reasonable doubt that . . . the

defendant had the specific intent to do the thing

charged. . . .

‘‘The evidence of intent: What a person’s intention

was is usually a matter to be determined by inference.

No person is able to testify that he or she looked into

another’s mind and saw therein certain knowledge or

a certain purpose or intention to do harm to another.

‘‘Because direct evidence of the . . . defendant’s

state of mind is rarely available, intent is generally

proved by circumstantial evidence. The only way a jury

can ordinarily determine what a person’s intention was,

at any give[n] time, is by determining what the person’s

conduct was and what the circumstances were surrounding that conduct and from that infer what his or

her intention was.’’ (Emphasis added.)

The defendant claims that the court erred in using the

phrase ‘‘engage in anything’’ when it read the attempt

statute to the jury. The court instructed the jury as

follows: ‘‘The defendant is charged with two counts of

attempt to commit murder.

‘‘The mental state required for the commission of

the crime of murder is that the defendant specifically

intended to cause the death of another person.

‘‘The statute defining attempt reads in pertinent part

as follows: A person is guilty of an attempt to commit

a crime if, acting with the mental state required for the

commission of the crime, he intentionally engaged in

anything, which, under the circumstances, as he

believed them to be, was an act constituting a substantial step in a course of conduct planned to culminate

in his commission of the crime.

‘‘For you to find the defendant guilty of this charge,

the state must prove the following elements beyond a

reasonable doubt: Element number one, intent . . .

the first element is that the defendant had the kind of

mental intent required for the commission of the crime

of murder. The mental state required for the commission of murder is that the defendant specifically

intended to cause the death of another person. There

is no particular length of time necessary for the defendant to have formed the specific intent to kill. And, a

person acts intentionally with respect to a result, when

his conscious objective is to cause such a result.’’

(Emphasis added.)

In defining the second element of attempt, the court

instructed the jury using the contested language as follows: ‘‘Element number two . . . the second element

is that the defendant intentionally engaged in anything,

which, under the circumstances, as he believed them

to be, was an act constituting a substantial step in a
course of conduct planned to culminate in his commission of the crime. In other words, the state must prove

both intent and conduct beyond a reasonable doubt to

obtain a conviction.’’ (Emphasis added.) Finally, the

court summarized the elements utilizing the ‘‘engaged

in’’ phrase as follows: ‘‘So, to sum up, the charge of

attempt to commit murder, the state has to prove

beyond a reasonable doubt that the defendant had the

necessary . . . intent to commit the crime and that he

intentionally engaged in anything which constituted a

substantial step in the course of conduct planned to

culminate in his commission of the crime under the

circumstances, as he believed them to be.’’ (Emphasis added.)

On appeal, the defendant claims that the court

improperly comingled the language from both sections

of the attempt statute by utilizing the phrase ‘‘engaged

in’’ and not the phrase ‘‘did or omitted doing’’ from the

other subsection of the attempt statute. In the challenged jury instruction, the court utilized the ‘‘engaged

in anything’’ language, which the defendant claims is

related to the impermissible definition of general intent

found in § 53a-3 (11). In addition, the defendant claims

that the trial court’s recitation of the full definition of

intent in § 53a-3 (11) misled the jury. We disagree.

‘‘It is axiomatic that the definition of intent as provided in § 53a-3 (11)9 embraces both the specific intent

to cause a result and the general intent to engage in

proscribed conduct. It has become axiomatic, through

decisional law, that it is improper for a court to refer

in its instruction to the entire definitional language of

§ 53a-3 (11), including the intent to engage in conduct,

when the charge relates to a crime requiring only the

intent to cause a specific result.’’ (Footnote added.)

State v. Sivak, 84 Conn. App. 105, 110–11, 852 A.2d 812,

cert. denied, 271 Conn. 916, 859 A.2d 573 (2004). In

State v. Rivet, 99 Conn. App. 230, 232–33, 912 A.2d 1103,

cert. denied, 281 Conn. 923, 918 A.2d 274 (2007), this

court stated: ‘‘[I]n cases in which the entire definition

of intent was improperly read to the jury, the conviction

of the crime requiring specific intent almost always has

been upheld because a proper intent instruction was

also given. The erroneous instruction, therefore, was

not harmful beyond a reasonable doubt [in those

cases].’’ (Internal quotation marks omitted.) Compare

State v. Austin, 244 Conn. 226, 236, 710 A.2d 732 (1998)

(no reversible error when improper intent instruction

followed by numerous proper instructions on elements

of murder), and Moody v. Commissioner of Correction,

127 Conn. App. 293, 306, 14 A.3d 408 (no reversible

error when improper intent instruction followed by repetition of specific intent element of murder and assault),

cert. denied, 300 Conn. 943, 17 A.3d 478 (2011), with

State v. Lopes, 78 Conn. App. 264, 271–72, 826 A.2d

1238 (reversible error when improper intent instruction

given directly in regard to elements of attempt to com-
mit murder and not followed by numerous proper

instructions), cert. denied, 266 Conn. 902, 832 A.2d 66

(2003), and State v. DeBarros, 58 Conn. App. 673, 683,

755 A.2d 303 (reversible error when improper intent

instruction not only given in initial and two supplemental charges but also referred to seven additional times),

cert. denied, 254 Conn. 931, 761 A.2d 756 (2000).

The defendant contends that the attempt instruction

failed to guide the jury on what constituted a substantial

step, and the omission of the language found in the

model jury instruction on the Judicial Branch website,10

coupled with the other improper instructions, seriously

misled the jurors because it allowed them to find the

defendant guilty of attempted murder on the basis of

his act of fighting with a knife, without determining

his true purpose. The state argues that the model jury

instruction language was not necessary in guiding the

jury, and that the instructions that the court gave properly required it to find that the defendant intended to

cause death and whether he intentionally engaged in

conduct that constituted a substantial step planned to

culminate in his commission of murder. We agree with

the state.

After reviewing the instructions in their entirety, we

are persuaded that the instructions adequately conveyed to the jury that to find the defendant guilty of

attempted murder, the jury must find that he had the

specific intent to cause death. Although the court gave

the full definition of intent as provided in § 53a-3 (11)

and used the phrase, ‘‘engage in anything,’’ at three

points in the charge, our review of the entire instruction

reveals that it is not reasonably possible that the instructions misled the jury. The words, ‘‘engaged in anything,’’

as used by the trial court in the charge on attempt

to commit murder did not affect the specific intent

requirement; rather, the language referred to conduct

constituting a substantial step toward the commission

of the crime. See State v. Pires, 122 Conn. App. 729,

745, 2 A.3d 914 (2010) (‘‘the words ‘engage in conduct’

refer not to the required intent but rather explain that

the person being aided by the accessory must be doing

the action that constitutes the crime, as opposed to

simply thinking about the criminal act or perhaps engaging in conduct other than the criminal act’’), aff’d, 310

Conn. 222, 77 A.3d 87 (2013).

Indeed, the trial court repeatedly told the jury that,

in order to find the defendant guilty, it must find that

he had the specific intent to cause death11 and explained

that the jury ‘‘[did] not need to concern [itself] with

what general intent means.’’ The court instructed the

jury twice that ‘‘[t]he mental state required for the commission of murder is that the defendant specifically

intended to cause the death of another person.’’ Moreover, the court instructed that ‘‘a person acts intentionally with respect to a result when his conscious
objective is to cause such result.’’ Additionally, to the

extent that the defendant claims that the separate

claims of error taken together deprived him of a fair

trial, we note that our Supreme Court has rejected the

cumulative error approach regarding claims of instructional error. State v. Tillman, 220 Conn. 487, 505, 600

A.2d 738 (1991) (‘‘[w]e decline to create a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts’’), cert.

denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d

876 (1992).

Viewing the instructions as a whole, we conclude

that the defendant cannot prevail on his claim of instructional impropriety with regard to his conviction of

attempted murder. Accordingly, the defendant’s claim

fails to satisfy the third prong of Golding, as he has not

established the existence of a constitutional violation

that deprived him of a fair trial.

III

The defendant also claims that the court misled the

jury by instructing the jurors on the defenses of selfdefense and defense of others, as well as on the lesser

included offenses of assault in the second degree and

assault in the third degree. More specifically, the defendant claims that the court committed reversible error

because its instructions on self-defense permitted the

jury to consider lesser included offenses if the state

failed to disprove self-defense beyond a reasonable

doubt. We disagree.

The defendant failed to preserve this claim at trial

and now seeks Golding review. See part I of this opinion. Unlike the prior claim of instructional error, however, the state argues that the defendant waived this

claim, pursuant to State v. Kitchens, supra, 299 Conn.

482–83, and, thus, is not entitled to review under Golding. We agree.

The following facts are necessary for the resolution

of this claim. The trial court provided a thirty-one page

draft of the proposed jury instructions to the defendant

and the state prior to the charging conference on July

29, 2015. Although the record does not identify the exact

date that the parties received the draft, the record is

clear that the parties had the draft overnight from July

29 to July 30, 2015. During the charging conference the

court discussed with counsel how to guide the jury

regarding the consideration of the numerous charges

and the lesser included offenses. The court’s proposed

instructions included explaining to the jury that it is

the jury’s choice as to what order it deliberates the

charges, except for the lesser included offenses, and

the court, during the charging conference, specifically

stated to the parties, ‘‘I am going to ask you to review

that, particularly.’’ The court also discussed with counsel the instructions on defense of others and self-
defense. The court stated that ‘‘[t]he self-defense and

defense of others, the draft . . . proposed by [the

state] . . . is tracked by the recommendation of the

proposed charges filed by the defense.’’ The discussion

included a suggestion about whether the court should

utilize ‘‘and/or,’’ or, ‘‘or,’’ or, ‘‘and,’’ in its instruction.

The defense suggested ‘‘and/or’’ and did not raise any

exceptions to the charge as proposed. At the end of

the charging conference, the court specifically

addressed the self-defense charge and inquired as to

whether the evidence indicated that the defendant

attacked in defense of another person.

The record indicates that the following morning, the

trial court gave a revised copy of the charge to counsel

and stated that ‘‘counsel and I had a charging conference here in this courtroom, and I had promised that

I would give to each attorney a copy of a revised charge,

following our discussions . . . . While the charges

remain very much the same in . . . substance, as the

ones that I previously presented to defense counsel

and the state, there have been some amendments and

alterations, and, obviously I will give you, each of you,

more time to consider the charges that I’ve proposed

to the jury, if you wish to do that. I anticipate that you

will take most of the morning to do the arguments;

however, you will have the luncheon recess and as

much time thereafter as you wish to review the

charges.’’ The court then reviewed the proposed

changes with counsel on the record. The court reviewed

how to guide the jury to consider the numerous charges

and the lesser included offenses. stating: ‘‘I’ve suggested

effectively that they should start on . . . count five, go

through that, consider whether the elements are . . .

proven; if they find that is the case, consider whether

the defense [of] self-defense applies and then continue.

In relation to the . . . other charges, I’ve added that

they must consider or can consider lesser included

offenses. So, I would appreciate it if . . . you let me

know if you need any time on that.’’ The jury was subsequently brought into the court, and the parties conducted closing arguments.

After the jury was dismissed for the luncheon recess,

the defense expressed an issue with one of the state’s

comments in the closing argument and requested a curative instruction. After the luncheon recess, the parties

confirmed that they had no other concerns regarding

the revised instructions, and the court discussed the

curative instruction requested by defense counsel. The

jury was summoned into the courtroom, and the court

read the instructions to the jury. The court specifically

asked if the parties had any exceptions to the charge,

and defense counsel specifically stated, ‘‘I don’t have

any exceptions.’’

‘‘It is well established in Connecticut that unpreserved claims of improper jury instructions are review-
able under Golding unless they have been induced or

implicitly waived. . . . The mechanism by which a

right may be waived . . . varies according to the right

at stake. . . . For certain fundamental rights, the

defendant must personally make an informed waiver.

. . . For other rights, however, waiver may be affected

by action of counsel . . . [including] the right of a

defendant to proper jury instructions. . . . 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

[under Golding]. . . . [W]hen the trial court provides

counsel with a copy of the proposed jury instructions,

allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the

instructions proposed or given, the defendant may be

deemed to have knowledge of any potential flaws

therein and to have waived implicitly the constitutional

right to challenge the instructions on direct appeal. . . .

[C]ounsel’s discussion of unrelated parts of the jury

charge at an on-the-record charge conference . . .

demonstrate[s] that counsel was sufficiently familiar

with the instructions to identify those portions of the

instructions with which [she] disagreed. [T]o the extent

that [she] selectively discussed certain portions of the

instructions but not others, one may presume that [she]

had knowledge of the portions that [she] did not discuss

and found them to be proper, thus waiving the defendant’s right to challenge them on direct appeal. . . .

Our Supreme Court has stated that it is sufficient to

show that defense counsel had a meaningful opportunity to review the proposed instructions if she was given

the opportunity to review them overnight.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Hall-Davis, 177 Conn. App. 211, 240–41, 172 A.3d 222,

cert. denied, 327 Conn. 987, 175 A.3d 43 (2017); see also

State v. Kitchens, supra, 299 Conn. 482–83.

Here, the defendant had a meaningful opportunity

to review the proposed jury instructions at issue and

assented to the instructions. The defendant had the

proposed instructions overnight on July 29, 2015, and

discussed the challenged instructions at length with the

court at the charging conference and in the morning

after the charging conference on July 30, 2015. The court

reviewed the revisions with counsel and specifically

requested that the parties review the revisions related

to the instructions challenged on appeal. The defendant

expressed no concerns regarding the revisions or the

charge as given to the jury.

Accordingly, we conclude that, under the present

circumstances, the defendant had a meaningful opportunity to review the jury instruction challenged on

appeal and waived his right to challenge the instruction

on appeal.
Alternatively, the defendant argues that this court

should review his waived claim under the plain error

doctrine. In State v. McClain, 324 Conn. 802, 812–15,

155 A.3d 209 (2017), our Supreme Court held that a

Kitchens waiver does not preclude appellate relief

under the plain error doctrine. See State v. Torres, 325

Conn. 919, 163 A.3d 618 (2017). Accordingly, we review

whether the defendant’s claim of instructional impropriety constitutes plain error requiring reversal of the

judgment.

A review of the record reveals the following additional relevant facts. The trial court instructed the jury

on the defense of self-defense and defense of others as

follows: ‘‘The evidence in this case raises the issues of

self-defense . . . and/or the defense of others. Selfdefense and/or the defense of others, applies to all of

the charges before you, as well as to lesser included

offenses of assault in the second degree, assault in the

third degree. . . . After you’ve considered all of the

evidence in this case, if you find that the state has

proven beyond a reasonable doubt each element of the

crime, you must go on to consider whether or not the

defendant acted in self-defense or defense of others. In

this case, you must consider self-defense or defense

of others in connection with—with each count of the

information and the lesser included offenses you may

consider.’’ Later in the charge, the court repeated the

instructions as to self-defense and suggested a way for

the jury to consider the charges.

Following the repetition of the self-defense and

defense of others instruction, the court instructed: ‘‘If

. . . you . . . find that the state has not . . . disproved beyond a reasonable doubt at least one of the

elements of the defense or has not proven one of the

statutory disqualifications, then on the strength of that

defense alone, you must find the defendant not guilty,

despite the fact that you have found the elements of the

crime proved beyond a reasonable doubt.’’ The court

continued to summarize an example for how to consider

the lesser charges: ‘‘In other words, you consider, for

example, assault in the first degree, only if you acquit

the defendant of that charge, either because you do not

find the state has proven the elements of that charge

beyond a reasonable doubt or you find the state has

failed to . . . disprove . . . the defenses of selfdefense and/or defense of others, and so that you acquit

the defendant on that charge, then you may consider

assault in the second degree; you’re going to go through

the same analysis for that lesser included offense, if

you acquit the defendant of that charge . . . you then

shall consider the charge of assault in the third degree.’’

The next day, the court reinstructed the jury about

how to deliberate and stated that ‘‘while I anticipate

that [your] findings in relation to self-defense and/or

the defense of others, will probably be the same in both
the substantive and the lesser included offenses, you

must include . . . that issue in your consideration of

each charge, if appropriate.’’

‘‘An appellate court addressing a claim of plain error

first must determine if the error is indeed plain in the

sense that it is patent [or] readily [discernible] on the

face of a factually adequate record, [and] also . . .

obvious in the sense of not debatable. . . . This determination clearly requires a review of the plain error

claim presented in light of the record. Although a complete record and an obvious error are prerequisites for

plain error review, they are not, of themselves, sufficient for its application. . . . [T]he plain error doctrine

is reserved for truly extraordinary situations [in which]

the existence of the error is so obvious that it affects

the fairness and integrity of and public confidence in

the judicial proceedings. . . . [I]n addition to examining the patent nature of the error, the reviewing court

must examine that error for the grievousness of its

consequences in order to determine whether reversal

under the plain error doctrine is appropriate. A party

cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice. . . . [Previously], we described the twopronged nature of the plain error doctrine: [An appellant] cannot prevail under [the plain error doctrine]

. . . unless he demonstrates that the claimed error is

both so clear and so harmful that a failure to reverse

the judgment would result in manifest injustice. . . .

‘‘It is axiomatic that, [t]he plain error doctrine . . .

is not . . . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes

in order to rectify a trial court ruling that, although

either not properly preserved or never raised at all in

the trial court, nonetheless requires reversal of the trial

court’s judgment . . . for reasons of policy. . . . Put

another way, plain error review is reserved for only

the most egregious errors. When an error of such a

magnitude exists, it necessitates reversal.’’ (Citations

omitted; emphasis omitted; internal quotation marks

omitted.) State v. McClain, supra, 324 Conn. 812–14.

The defendant claims that by its instructions, the

court expressly precluded the jury from considering

the defenses of defense of others and self-defense. The

defendant cites State v. Hinckley, 198 Conn. 77, 87–88,

502 A.2d 388 (1985), and argues that the trial court’s

error was ‘‘an example of an extraordinary [situation]

where the existence of the error is so obvious that it

affects the fairness and integrity of and public confidence in the judicial proceedings.’’12 The defendant also

argues that it was plain error for the trial court to

misstate the effect of the governing statute by telling

the jurors that acquittal on the basis of self-defense was

not a true acquittal.13 The state argues that it is not

reasonably possible that the instruction misled the jury,
and that any error did not result in manifest injustice

and is harmless beyond a reasonable doubt because

the defendant was convicted of the charged offenses.

We agree with the state.

Even if we assume arguendo that the instruction constituted obvious and undebatable error, the record does

not demonstrate manifest injustice and therefore does

not satisfy the second prong required for reversal of

the judgment pursuant to the plain error doctrine. See

State v. Blaine, 179 Conn. App. 499, 510, 180 A.3d 622,

cert. granted on other grounds, 328 Conn. 917, 181 A.3d

566 (2018). ‘‘Because [a] party cannot prevail under

plain error unless it has demonstrated that the failure

to grant relief will result in manifest injustice . . .

under the second prong of the analysis we must determine whether the consequences of the error are so

grievous as to be fundamentally unfair or manifestly

unjust.’’ (Citation omitted; internal quotation marks

omitted.) State v. Coward, 292 Conn. 296, 307, 972 A.2d

691 (2009).

Because the jury returned a verdict of guilty on the

charged offenses and not on any of the lesser included

offenses, the defendant cannot establish manifest injustice or fundamental unfairness.14

IV

The defendant’s final claim is that prosecutorial

impropriety deprived him of a fair trial because it negatively impacted his self-defense claim, as well as his

claim of third-party culpability. Specifically, the defendant alleges that the prosecutor improperly (1) misstated the law to the jurors; (2) distorted the burden

of proof; (3) appealed to the jurors’ emotions; and (4)

commented on facts not in evidence. With one minor

exception, we conclude that the prosecutor’s remarks

were not improper, and, thus, the defendant was not

deprived of a fair trial.

As a preliminary matter, we set forth the general

principles under which we review claims of prosecutorial impropriety. ‘‘In cases of unpreserved claims of

prosecutorial [impropriety] . . . it is unnecessary for

the defendant to seek to prevail under the specific

requirements of . . . Golding and, similarly, it is

unnecessary for a reviewing court to apply the fourpronged Golding test.’’ (Internal quotation marks omitted.) State v. Bermudez, 274 Conn. 581, 586–87, 876

A.2d 1162 (2005). Our Supreme Court has articulated

that ‘‘following a determination that prosecutorial

[impropriety] has occurred, regardless of whether it

was objected to, an appellate court must apply the

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

(1987)] factors to the entire trial.’’ State v. Bermudez,

supra, 587. ‘‘[W]hen a defendant raises on appeal a claim

that improper remarks by the prosecutor deprived the

defendant of his constitutional right to a fair trial, the
burden is on the defendant to show, not only that the

remarks were improper, but also that, considered in

light of the whole trial, the improprieties were so egregious that they amounted to a denial of due process.

. . . In analyzing whether the prosecutor’s comments

deprived the defendant of a fair trial, we generally determine, first, whether the [prosecutor] committed any

impropriety and, second, whether the impropriety or

improprieties deprived the defendant of a fair trial.’’

(Citation omitted; internal quotation marks omitted.)

State v. Felix R., 319 Conn. 1, 8–9, 124 A.3d 871 (2015).

When reviewing the propriety of a prosecutor’s statements, ‘‘we do not scrutinize each individual comment

in a vacuum but, rather, review the comments complained of in the context of the entire trial.’’ (Internal

quotation marks omitted.) Id., 9. ‘‘[Impropriety] is

[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 is a separate and distinct question . . . .’’

(Internal quotation marks omitted.) State v. James E.,

154 Conn. App. 795, 816, 112 A.3d 791 (2015).

‘‘[P]rosecutorial [impropriety] of a constitutional

magnitude can occur in the course of closing arguments. . . . In determining whether such [impropriety]

has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate

argument and fair comment cannot be determined precisely by rule and line, and something must be allowed

for the zeal of counsel in the heat of argument. . . .

[A]s the state’s advocate, a prosecutor may argue the

state’s case forcefully, [provided the argument is] fair

and based upon the facts in evidence and the reasonable

inferences to be drawn therefrom. . . . Nevertheless,

the prosecutor has a heightened duty to avoid argument

that strays from the evidence or diverts the jury’s attention from the facts of the case. . . . While the privilege

of counsel in addressing the jury should not be too

closely narrowed or unduly hampered, it must never

be used as a license to state, or to comment upon, or

to suggest an inference from, facts not in evidence, or

to present matters which the jury ha[s] no right to

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

Otto, 305 Conn. 51, 76–77, 43 A.3d 629 (2012).

We address each of the defendant’s claims of prosecutorial impropriety in turn.

A

The defendant first asserts that the prosecutor

improperly stated that the defendant was the initial

aggressor due to his assault of Medina. We are not persuaded.

During closing argument the prosecutor made the

following statement: ‘‘The first aggressive act was his.
When he first thrust his face into [Medina’s]—his hand

into [Medina’s] face, he started [the] brawl. Many witnesses described it as pushing her face, some of them

described it as punching her. Now, he was the catalyst

of the whole event, once he was the first to take physical

action against her. . . . The state’s point of view is that

[the] original act of aggression, by the defendant, caused

a chain of events, which resulted in these stabbings.

And, now he comes before you and he’s, sort of, just

making the argument that he has the right to use deadly

force, in a situation that he caused to occur; it doesn’t

seem to be reasonable, and I’m arguing that he was the

initial aggressor.’’

Although ‘‘prosecutors are not permitted to misstate

the law . . . because such statements are likely to

improperly mislead the jury’’; (citations omitted) State

v. Otto, supra, 305 Conn. 77; the prosecutor, however,

may argue the state’s case forcefully, provided that the

argument is fair, and based on the facts in evidence

and reasonable inferences drawn from that evidence.

State v. Bardliving, 109 Conn. App. 238, 253, 951 A.2d

615, cert. denied, 289 Conn. 924, 958 A.2d 153 (2008).

The defendant fails to cite any law that supports his

claim that the prosecutor’s argument was improper.15

The defendant claims that he could be the initial aggressor only if he was the first person to threaten or use

force against Tucker or Rodriguez and thus the prosecutor’s argument that he could be an initial aggressor

from his actions toward Medina was a misstatement of

the law.

At trial, the court instructed the jury regarding the

state’s burden to prove that the defendant was the initial

aggressor in the encounter with Rodriguez and Tucker.16

The state claims that the arguments at trial centered

around when the encounter began and that the defendant’s argument in closing arguments to the jury was

that Eliezer was the initial aggressor when he confronted Mendez. The state claims that its argument was

proper because ‘‘if a jury reasonably can find that a

defendant began a brawl by attacking one person, he

cannot claim that he was not the initial aggressor with

respect to other people swept into the brawl in defense

of that person.’’ We agree with the state.

In the absence of any law to the contrary, the prosecutor’s argument that the defendant was the initial aggressor was based on the facts in evidence and thus, was

not improper. The defendant has failed to establish

that the prosecutor’s remarks were improper, let alone

establish that such statements were so egregious that

they amounted to a denial of due process.

B

The defendant’s next claim of prosecutorial impropriety is that the prosecutor distorted the burden of proof

in his closing argument by suggesting to the jury that
a defendant has the burden to produce evidence in

support of his defense. In addition, the defendant claims

that the prosecutor’s argument violated our Supreme

Court’s holding in State v. Malave, 250 Conn. 722, 737

A.2d 442 (1999), cert. denied, 528 U.S. 1170, 120 S. Ct.

1195, 145 L. Ed. 2d 1099 (2000). We disagree.

‘‘In Malave, our Supreme Court abandoned the rule

enunciated in Secondino v. New Haven Gas Co., 147

Conn. 672, 165 A.2d 598 (1960), which had permitted

trial courts to instruct the jury that [t]he failure of a

party to produce a witness who is within his power to

produce and who would naturally have been produced

by him, permits the inference that the evidence of the

witness would be unfavorable to the party’s cause. . . .

Although the [c]ourt in Malave abandoned the Secondino rule, it did not prohibit counsel from making

appropriate comment, in closing arguments, about the

absence of a particular witness, insofar as that witness’

absence may reflect on the weakness of the opposing

party’s case. . . . The court did, however, prohibit

counsel from directly urging the jury to draw an adverse

inference by virtue of the witness’ absence. . . . Additionally, the court stated that [f]airness, however, dictates that a party who intends to comment on the

opposing party’s failure to call a certain witness must

so notify the court and the opposing party in advance

of closing arguments. Advance notice of such comment

is necessary because comment on the opposing party’s

failure to call a particular witness would be improper

if that witness were unavailable due to death, disappearance or otherwise. That notice will ensure that an

opposing party is afforded a fair opportunity to challenge the propriety of the missing witness comment in

light of the particular circumstances and factual record

of the case.’’ (Internal quotation marks omitted.) State

v. Grant, 154 Conn. App. 293, 325–26, 112 A.3d 175

(2014), cert. denied, 315 Conn. 928, 109 A.3d 923 (2015).

Defense counsel argued during her closing argument

that Eliezer was the initial aggressor when he confronted Mendez: ‘‘That’s the initial aggressor, not [the

defendant]; the initial aggressor in this case was Eliezer,

Eliezer coming over and confronting, leaving his car

and coming over to where the girls were and confronting either all the girls or [Mendez]. He’s the initial

aggressor.’’ During his rebuttal, the prosecutor stated:

‘‘You know, there was some talk about the initial aggressor, that Eliezer was the initial aggressor; there is no

testimony in this case that Eliezer ever struck [Mendez],

from no witness, anywhere. And, you remember [the

defendant’s] own expert testified yesterday, that words

are okay, words don’t require defense or force. So, that

altercation between Eliezer and [Mendez] was not a

physical altercation, so he couldn’t be the initial aggressor. The first one to be the initial aggressor is the one

to use force . . . . A lot of stuff or testimony or evidence was attributed to Eliezer in this case and what
he may have been doing or thinking. He never testified

in this case. I don’t know that all the evidence attributed to Eliezer during the rebuttal actually has a basis

in the facts.’’ (Emphasis added.)

The state argues that Malave does not apply because

the prosecutor did not make a missing witness argument and the prosecutor properly focused the jury on

a weakness in the defendant’s theory of the case. The

state contends that the prosecutor properly responded

to the defendant’s argument that Eliezer had been the

initial aggressor by pointing out the absence of evidence

that Eliezer had engaged in anything other than a verbal

altercation with Mendez.

Under the present circumstances, we conclude that

the prosecutor did not directly urge the jury to draw

an adverse inference by virtue of Eliezer’s absence,

thereby distorting the burden of proof, but argued

instead that there was no evidence to support defense

counsel’s claim that Eliezer was the initial aggressor.

See State v. Andrews, 313 Conn. 266, 307, 96 A.3d 1199

(2014) (holding that prosecutor’s comment, ‘‘[t]hey

have access to the state forensic lab, they can put on

witnesses if they want to from the lab,’’ was not

improper missing witness argument because prosecutor argued no evidence supported defendant’s claim

[emphasis omitted]). In Malave, our Supreme Court

held that ‘‘we do not prohibit counsel from making

appropriate comment, in closing arguments, about the

absence of a particular witness, insofar as that witness’

absence may reflect on the weakness of the opposing

party’s case. . . . [Such comment is allowed as] long

as counsel does not directly exhort the jury to draw an

adverse inference by virtue of the witness’ absence

. . . .’’ State v. Malave, supra, 250 Conn. 739. Accordingly, the prosecutor’s reference during rebuttal argument to the lack of evidence for the defendant’s theory

of the case, i.e., that Eliezer was the initial aggressor,

was not improper.

C

The defendant also claims that the prosecutor

improperly appealed to the emotions of the jurors by

referring to Tucker and Rodriguez as ‘‘good Samaritans.’’ We disagree. In closing arguments, the prosecutor stated that Tucker and Rodriguez ‘‘had the right to

come to [Medina’s] aid, they were merely defending a

third person, they merely used physical force, not

deadly force, they were acting as good Samaritans.’’

The prosecutor then stated that Rodriguez ‘‘was a good

Samaritan’’ and then asked the jury: ‘‘Isn’t that what

you want to see in a young man?’’

‘‘It has long been held that [a] prosecutor may not

appeal to the emotions, passions and prejudices of the

jurors. . . . When the prosecutor appeals to emotions,

he invites the jury to decide the case, not according to
a rational appraisal of the evidence, but on the basis

of powerful and irrelevant factors which are likely to

skew that appraisal. . . . Therefore, a prosecutor may

argue the state’s case forcefully, [but] such argument

must be fair and based upon the facts in evidence and

the reasonable inferences to be drawn therefrom. . . .

Nonetheless, closing arguments often have a rough and

tumble quality about them, [and] some leeway must be

afforded to the advocates in offering arguments to the

jury in final argument. [I]n addressing the jury, [c]ounsel

must be allowed a generous latitude in argument, as

the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the

heat of argument.’’ (Internal quotation marks omitted.)

State v. Patterson, 170 Conn. App. 768, 794, 156 A.3d

66, cert. denied, 325 Conn. 910, 158 A.3d 320 (2017).

Here, the prosecutor’s comments were based on reasonable inferences from facts in evidence and did not

invite the jury to decide the case on the basis of sympathy for Rodriguez and Tucker. The prosecutor utilized

his opportunity in closing arguments to explain the

motivations of Rodriguez and Tucker for approaching

the defendant and further argued that the defendant

was the initial aggressor. Accordingly, we conclude that

the prosecutor’s comments referring to the victims as

‘‘good Samaritans’’ were not improper.

D

The defendant’s final claim is that on three occasions

the prosecutor made arguments that were based on

facts not in evidence to suggest that the defendant

stabbed Tucker. We do not agree.

Before turning to a discussion of each of the alleged

improprieties, we first set forth the applicable law.

‘‘[T]he prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury’s

attention from the facts of the case. [The prosecutor]

is not only an officer of the court, like every attorney,

but is also a high public officer, representing the people

of the [s]tate, who seek[s] impartial justice for the guilty

as much as for the innocent. . . . By reason of his

office, he usually exercises great influence [over] jurors.

His conduct and language in the trial of cases in which

human life or liberty [is] at stake should be forceful, but

fair, because he represents the public interest, which

demands no victim and asks no conviction through the

aid of passion, prejudice, or resentment. If the accused

[is] guilty, he should [nonetheless] be convicted only

after a fair trial, conducted strictly according to the

sound and well-established rules [that] the laws prescribe. While the privilege of counsel in addressing the

jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or

to comment [on], or to suggest an inference from, facts

not in evidence, or to present matters [that] the jury
ha[s] no right to consider.’’ (Internal quotation marks

omitted.) State v. James E., supra, 154 Conn. App. 817.

‘‘In fulfilling his duties, a prosecutor must confine

the arguments to the evidence in the record. . . . Statements as to facts that have not been proven amount to

unsworn testimony that is not the subject of proper

closing argument. . . . Moreover, when a prosecutor

suggests a fact not in evidence, there is a risk that

the jury may conclude that he or she has independent

knowledge of facts that could not be presented to the

jury.’’ (Internal quotation marks omitted.) State v. Patterson, supra, 170 Conn. App. 789.

1

The defendant first contends that, during closing

argument, the prosecutor improperly argued that two

witnesses, Mendez and Adames, saw the defendant stab

Tucker, but the facts in evidence did not support that

statement. Specifically, the prosecutor argued: ‘‘[Mendez]: Eliezer started giving her a hard time. A lot of the

women that were in that group say it was Eliezer that

started first to be aggressive, verbally. [The defendant]

mushed her in the face and had her in a headlock. [The

defendant] struck [Medina] and she was two feet away.

She signed three statements that night, indicating that

[the defendant] stabbed [Tucker]. She can confirm that

[the defendant] stabbed [Tucker]. You can listen to the

testimony of witnesses; her testimony was short, give

a listen to her testimony if you so desire. It was very

crisp and, sort of, very confidently stated about what

she knows.

‘‘[Adames]: It started with Eliezer and [Mendez]. She

was present at the scene. She knows [Tucker] and [the

defendant], signed three statements that very night

identifying [the defendant] as the person who . . .

stabbed [Tucker], that very night. . . .

‘‘In court, she said she did not see the stabbing; however, she’s right there. She would know what occurred.

These girls know what occurred here.’’

Additionally, on rebuttal, the prosecutor read from

Adames’ testimony and stated: ‘‘So, there is some evidence, in which you can infer that [the defendant]

stabbed [Tucker].’’

The defendant argues that this argument was

improper because there was no evidence in the record

about the content of Mendez’ three signed statements

and no evidence that Mendez saw the defendant stab

Tucker. Further, the defendant argues that the prosecutor improperly argued that Adames knew what happened, when she explicitly denied seeing anything. In

response, the state argues that the prosecutor properly

summarized the testimony of each witness. The state

further argues that the prosecutor presented fair inferences that could be drawn from Adames and Mendez’ testimony.
We look to the testimony to determine whether the

prosecutor properly referred to facts in evidence. At

trial, Mendez testified that she provided three signed

statements to the police in which she described what

she observed on the night of the altercation.17 Mendez

also provided the following testimony about what she

saw when the defendant and Tucker interacted during

the fight: ‘‘I saw quick contact, I’m not able to say that

I saw the knife in [the defendant’s] hand, but I did see,

like, because we were, like, two feet away from each

other, and then [Tucker] picked up his pants to, like,

square up to fight, and [the defendant] came quick (demonstrating), boom, but I didn’t see anything in his hand

because it was so fast. . . . I don’t think he really felt

it, until afterward and that’s when he said, sis, I think,

he’s stabbing me, and then I picked up his sweater and

then I saw the blood . . . .’’ When asked if she saw

the defendant with a knife, Mendez responded, ‘‘I didn’t

see him with it in his hand, but I can confirm that it

was for sure him that stabbed [Tucker] because I was

two feet away from him and when I saw this fast movement, that’s approximately two minutes later, [Tucker]

told me that he got stabbed.’’

Adames also testified that she had given three statements to the police. Adames acknowledged that in all

three of her statements she indicated that the defendant

stabbed Tucker. On cross-examination, Adames testified that she did not see the defendant stab Tucker.18

When the prosecutor inquired on redirect if it was still

her position that the defendant stabbed Tucker, she

replied, ‘‘[y]eah.’’

A review of the record plainly shows that the prosecutor did not comment on, or suggest an inference from,

facts not in evidence, or present matters that the jury

had no right to consider. Accordingly, the defendant

has failed to establish that the prosecutor’s comments

were improper.

2

The defendant contends that the prosecutor argued

facts not in evidence when he stated: ‘‘Junito’s brother

is Joesenier.’’ The state argues that the comment was

made in the context of making an inference drawn from

other evidence. We agree with the state.

The prosecutor argued in closing argument: ‘‘Liybin

Fernandez, Liybin’s a tricky witness . . . . Both brothers had knives. Knives were retrieved from the motor

vehicle. There’s the Junito issue. Listen to the testimony

again from Liybin, if you so desire, and ask yourself:

did he just get the name inverted? . . . Eliezer, Junito,

remember, three of the girls say Eliezer was arguing,

they all say Eliezer started the verbal argument. Well,

if Eliezer is Junito, it would be accurate for Liybin to

say, well, yeah, Eliezer was arguing with the girls. Who

stabbed the black individual, he was asked that ques-
tion, he said, Junito’s brother. Junito’s brother stabbed

the black individual, Junito’s brother is Joesenier. . . .

So, you may want to relisten to his testimony again.’’

On the basis of our review of the record, there is

evidence that could give rise to a reasonable inference

that Junito’s brother is Joesenier. During Fernandez’

testimony, he was asked if Junito was in the courtroom.

In response, Fernandez stated, ‘‘[t]hat guy looks like

him,’’ and identified the defendant. Fernandez also testified, after refreshing his recollection with his prior

statement, that ‘‘Junito’s brother’’ stabbed Tucker.

Although there is conflicting evidence that Eliezer

was also nicknamed Junito,19 because there is sufficient

evidence in the record that could give rise to a reasonable inference that Junito is Eliezer and that, therefore,

Junito’s brother is the defendant, the prosecutor’s statement in his closing argument was proper.

3

The defendant last argues that the prosecutor

referred to facts not in evidence when discussing the

testimony of two police officers who witnessed the fight

and called 911. During rebuttal, the prosecutor stated,

‘‘[y]ou know, the indication was that we can rely on

the testimony of the trained police officers that saw it.

I would argue to you that those trained police officers

did not believe that this was a self-defense situation.’’

The defense objected to this portion of the state’s closing argument, and the court issued a curative instruction. The state does not contest that the statement was

improper, but argues that there is no prejudice from

this comment because the defense objected to this portion of the state’s closing argument and, after consulting

with both parties, the trial court issued a curative

instruction.

Even if we assume arguendo that the prosecutor’s

argument was improper, it is the defendant’s burden to

establish that the impropriety violated his due process

right to a fair trial.20 See State v. Jones, 320 Conn. 22,

37, 128 A.3d 431 (2015) (‘‘when a defendant raises on

appeal a claim that improper remarks by the prosecutor

deprived [him] of his constitutional right to a fair trial,

the burden is on the defendant to show, not only that

the remarks were improper, but also that, considered

in light of the whole trial, the improprieties were so

egregious that they amounted to a denial of due process’’ [internal quotation marks omitted]). As our

Supreme Court has articulated, the ‘‘determination of

whether any improper conduct by the state’s attorney

violated the defendant’s fair trial rights is predicated

on the factors set forth in State v. Williams, [supra,

204 Conn. 540], with due consideration of whether that

[impropriety] was objected to at trial. . . . These factors include the extent to which the [impropriety] was

invited by defense conduct or argument, the severity
of the [impropriety], the frequency of the [impropriety],

the centrality of the [impropriety] to the critical issues in

the case, the strength of the curative measures adopted,

and the strength of the state’s case.’’ (Citation omitted;

internal quotation marks omitted.) State v. Grant, 286

Conn. 499, 536–37, 944 A.2d 947, cert. denied, 555 U.S.

916, 129 S. Ct. 271, 172 L. Ed. 2d 200 (2008).

In applying the Williams factors, we determine

whether the claimed impropriety, the prosecutor’s

statement that the trained police officers ‘‘did not

believe that this was a self-defense situation,’’ violated

the defendant’s right to a fair trial. On the one hand,

there is no indication in the record that the claimed

impropriety was invited by either defense counsel or

his argument, and the statement directly implicates the

issue of self-defense. On the other hand, in light of the

remaining Williams factors, the defendant’s claim must

fail. The alleged impropriety occurred during only one

portion of the prosecutor’s rebuttal and cannot be characterized as frequent. Upon objection by defense counsel, most notably, the court promptly issued a

cautionary instruction, which specifically identified the

prosecutor’s remarks about the police officers’ beliefs

and stated that there was no evidence to that effect.21

It is well established that ‘‘a prompt cautionary instruction to the jury regarding improper prosecutorial

remarks obviates any possible harm to the defendant.’’

State v. Ubaldi, 190 Conn. 559, 563, 462 A.2d 1001, cert.

denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259

(1983). ‘‘In the absence of a showing that the jury failed

or declined to follow the court’s instructions, we presume that it heeded them.’’ (Internal quotation marks

omitted.) State v. Santiago, 269 Conn. 726, 762, 850

A.2d 199 (2004). The curative instructions make it

unlikely that the prosecutor’s comments were so prejudicial as to affect the outcome of the trial. Furthermore,

pursuant to the final Williams factor, the state’s case

against the defendant was strong, including the testimony of several eyewitnesses describing the assault,

and the defendant’s statement to the police admitting

that he stabbed someone and that he was present at the

time of the stabbing. In addition, the evidence included

a video of the fight in the parking lot in which several

eyewitnesses identified the defendant.

Upon consideration of the Williams factors, we conclude that the court’s instructions were sufficient to

cure any harm to the defendant and, accordingly, that

the defendant has failed to establish that the improper

comment deprived him of a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The defendant was also charged with and found not guilty of an additional

count of attempted murder in violation of § 53a-54, and he was convicted

of an additional count of conspiracy to commit first degree assault in violation of §§ 53a-59 (a) (1) and 53a-48 that was vacated by the trial court.

2 The defendant was sentenced to a term of sixteen years of imprisonment
on count one to be served concurrently with counts two through four. As

to count six, the defendant was sentenced to six years to serve and five

years of special parole, concurrent with count seven and consecutive to

counts one through four. The total effective sentence is twenty-two years

to serve, followed by five years of special parole.

3 Count two alleged that the defendant, ‘‘with the intent to cause serious

physical injury to another person or to a third person by means of a dangerous instrument, to wit: a knife, caused such injury to Luis Rodriguez. This

crime occurred on December 1, 2012 at approximately 2:17 a.m. in the

vicinity of 45 North Street, Danbury, CT in violation of [§] 53a-59 (a) (1).’’

Count three alleged that the defendant, ‘‘acting with the mental state

required for the offense charged, did solicit or request or command or

intentionally aid another person or persons in the assault upon Luis Rodriguez and that during the commission of said assault, Luis Rodriguez suffered

serious physical injury with a dangerous instrument, to wit: a knife. This

crime occurred on December 1, 2012 at approximately 2:17 a.m. in the

vicinity of 45 North Street, Danbury, CT in violation of [§] 53a-8 and § 53a59 (a) (1).’’

4 Count six alleged that the defendant, ‘‘with the intent to cause serious

physical injury to another person or to a third person by means of a dangerous instrument, to wit: a knife, caused such injury to Kenneth Tucker. This

crime occurred on December 1, 2012 at approximately 2:17 a.m. in the

vicinity of 45 North Street, Danbury, CT in violation of [§] 53a-59 (a) (1).’’

Count seven alleged that the defendant, ‘‘acting with the mental state

required for the offense charged, did solicit or request or command or

intentionally aid another person or persons in the assault upon Kenneth

Tucker and that during the commission of said assault, Kenneth Tucker

suffered serious physical injury with a dangerous instrument, to wit: a knife.

This crime occurred on December 1, 2012 at approximately 2:17 a.m. in the

vicinity of 45 North Street, Danbury, CT in violation of [§] 53a-8 and § 53a59 (a) (1).’’

5 Although our state constitution does not include a similar double jeopardy provision, our Supreme Court has held that the due process guarantees

found in article first, § 8, of the Connecticut constitution embody the protection afforded under the federal constitution. See State v. Michael J., 274

Conn. 321, 350–51, 875 A.2d 510 (2005).

6 We reiterate that the defendant has not argued that there was insufficient

evidence to conclude that he acted as an accessory, and, therefore, it is

unnecessary for us to marshal all of the evidence that would support the

jury’s finding of accessorial liability in this case. Furthermore, our resolution

of this matter should not be interpreted as holding that the defendant’s own

act of stabbing Rodriguez would, without more, be sufficient to demonstrate

an intention to aid, thereby warranting accessorial liability. Rather, it was

the totality of the defendant’s actions, including helping to arm Eliezer and

his active participation in the brawl, that demonstrate his intent to aid.

7 As we noted in part I A of this opinion, the state’s theory of the case

comports with a finding of two separate and distinct charges of assault in

the first degree.

8 General Statutes § 53a-54a (a), defining murder, provides in relevant

part: ‘‘A person is guilty of murder when, with intent to cause the death of

another person, he causes the death of such person . . . .’’

General Statutes § 53a-49 (a), defining criminal attempt, provides: ‘‘A

person is guilty of an attempt to commit a crime if, acting with the kind of

mental state required for commission of the crime, he: (1) Intentionally

engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits

to do anything which, under the circumstances as he believes them to be,

is an act or omission constituting a substantial step in a course of conduct

planned to culminate in his commission of the crime.’’

9 General Statutes § 53a-3 (11) provides: ‘‘A person acts ‘intentionally’ with

respect to a result or to conduct described by a statute defining an offense

when his conscious objective is to cause such result or to engage in such

conduct . . . .’’

10 The defendant claims that the trial court erred by failing to include the

following language from the Connecticut Criminal Jury Instructions: ‘‘To

be a substantial step, the conduct must be strongly corroborative of the

defendant’s criminal purpose. The act or acts must constitute more than

mere preparation. The defendant’s conduct must be at least the start of a

line of conduct that will lead naturally to the commission of a crime. In

other words, it must appear to the defendant that it was at least possible
that the crime could be committed if (he/she) continued on (his/her) course

of conduct.’’ (Footnote omitted.) Connecticut Judicial Branch Criminal Jury

Instructions 3.2-2, Attempt—§ 53a-49 (a) (2) (element 2) (revised to December 1, 2007), available at https://www.jud.ct.gov/ji/Criminal/Criminal.pdf

(last visited September 20, 2018).

11 As previously stated, the court instructed the jury that ‘‘there is in each

count an element which requires you to find that the state has proven beyond

a reasonable doubt that the . . . defendant had the specific intent to do

the thing charged.’’

12 The defendant also claims that the court’s instructions in response to

a jury question about third-party culpability also contributed to the court’s

error. On the second day of deliberations, the jury had a question on the

third-party culpability instructions, and the court discussed with counsel a

proposed instruction in response to the question. The court, the state, and

defense counsel collaborated and agreed on an appropriate instruction to

answer the jury’s question. After discussing the instruction off the record,

the court went back on the record to state the complete proposed instruction.

The defendant and the state assented to the proposed instruction. We reject

the defendant’s argument, as it has no merit.

13 As we stated in part II of this opinion, to the extent that the defendant

claims the cumulative effect of the instructional improprieties constituted

plain error, we reject such an argument. See State v. Tillman supra, 220

Conn. 505.

14 Our Supreme Court in State v. Hall, 213 Conn. 579, 589, 569 A.2d 534

(1990), determined that a defendant was entitled to a jury instruction on

self-defense for the lesser included offense of manslaughter in the second

degree. There, the trial court had instructed the jury that the defense of

self-defense was applicable to only murder and intentional manslaughter in

the first degree. Id., 583–84. Our Supreme Court held, however, that even

though the trial court failed to give the self-defense instruction for manslaughter in the second degree, it was not reasonably possible that the jury

was misled and stated that ‘‘the jury’s verdict of guilty on the offense of

manslaughter in the first degree was necessarily a rejection of the defense

of self-defense. Since the elements of self-defense as applied to manslaughter

in the second degree would have been the same as those applied to manslaughter in the first degree, the defendant would not have benefited by an

instruction that the defense was applicable to manslaughter in the second

degree.’’ Id., 589.

15 The defendant cites State v. Singleton, 292 Conn. 734, 763, 974 A.2d 679

(2009), for the proposition that he could not be the initial aggressor by his

act of hitting Medina. In Singleton, our Supreme Court concluded that ‘‘the

trial court’s instructions that ‘[t]he initial aggressor is the person who first

acts in such a manner that creates a reasonable belief in another person’s

mind that physical force is about to be used upon that other person’ and

that ‘[t]he first person to use physical force is not necessarily the initial

aggressor’ were entirely consistent with the law and thus were proper.’’ Id.

Our Supreme Court’s holding in Singleton did not restrict the prosecutor

in the present case from arguing that the defendant was the initial aggressor.

16 The court instructed the jury with respect to initial aggressor as follows:

‘‘Another circumstance in which a person is not justified in using any degree

of physical force in . . . self-defense against another is when he is the

initial aggressor in the encounter with the other person and does not both

withdraw from the encounter and effectively communicate his intent to do

so, before using the physical force at issue in this case.’’

17 The following colloquy occurred between Mendez and the prosecutor:

‘‘[Mendez]: . . . Um, so we, like, everybody was, like, trying to separate

the fight and then, I guess, that’s when [Tucker], like, he was preparing

himself to fight, because he was going to defend [Medina]. And at that

moment, I saw a quick movement, between [Tucker] and [the defendant],

I wasn’t too sure and then [Tucker] told me that he got stabbed. . . .

‘‘[The Prosecutor]: Okay. How far away were you from [Tucker] when

that happened?

‘‘[Mendez]: Maybe, like, two feet away.

‘‘[The Prosecutor]: And, did you indicate that in all of your statements,

that you saw that?

‘‘[Mendez]: Yes, sir.’’

18 The following colloquy occurred between Adames and defense counsel:

‘‘[Defense Counsel]: Okay. But you didn’t actually see [Tucker] get stabbed,

did you?

‘‘[Adames]: No, I didn’t see him get stabbed.’’
19 Contrary to Fernandez’ testimony, the defendant’s father, Eliezer Ruiz,

Sr., testified that his son, Eliezer, had a nickname of Junito.

20 Absent this final claim of the prosecutor’s improper reference to facts

not in evidence, namely, the fact that the police officers did not believe this

was a self-defense situation, all of the prosecutor’s comments were proper.

The due process analysis need not consider the comments which we have

already determined were proper. See State v. Luster, 279 Conn. 414, 442,

902 A.2d 636 (2006).

21 The court issued the following cautionary instruction: ‘‘Before I start,

however, you heard the final arguments of counsel, and I had advised you

earlier on that that’s not evidence and that insofar as any inferences counsel

requests you to draw, they must be based on the evidence that you’ve heard.

. . . So, for example, [the prosecutor] indicated [his] opinion that he could

argue to you that the police officers didn’t believe this was a self-defense

issue. There was no evidence as to what the officers believed, as far as that

particular issue is concerned. It may be that if you were to hear the whole

of the evidence, you could draw the inference, but it is not for counsel to

draw that for you.

‘‘So, with that having been said, please, understand the limitations on

final argument; it’s not evidence, it should not include the opinions of the

attorneys, and it should . . . only be based on evidence, and you are the

finders of fact and the only finders of fact, in this case.’’