******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and in the Connecticut Law Journal and bound volumes

of official reports are copyrighted by the Secretary of

the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

******************************************************
STATE OF CONNECTICUT v. MICHAEL

ROBERT PLACE

(AC 34113)

DiPentima, C. J., and Alvord and Harper, Js.

Argued May 19—officially released September 30, 2014
(Appeal from Superior Court, judicial district of

Windham, geographical area number eleven, Swords, J.)

Allison M. Near, assigned counsel, for the appellant (defendant).

Nancy L. Walker, special deputy assistant state’s

attorney, with whom, on the brief, were Patricia M.

Froehlich, state’s attorney, and Matthew A. Crockett,

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

DiPENTIMA, C. J. The defendant, Michael Robert

Place, appeals from two separate judgments of conviction arising out of two robberies, one committed at an

Xtra Mart convenience store in Putnam on July 17, 2008,

and the other at a branch office of Putnam Bank on

May 10, 2008. In docket number CR-08-0135945 (Xtra

Mart case), the defendant appeals from the judgment

of conviction, rendered after a jury trial, of robbery in

the first degree in violation of General Statutes § 53a134 (a) (3) and larceny in the sixth degree in violation

of General Statutes § 53a-125b. He claims that the trial

court erred in refusing him the opportunity to display

his tattoos to the jury without being subject to crossexamination by the state, in violation of his right to due

process and a fair trial.

The defendant also appeals from the judgment of

conviction in docket number CR-09-137439 (Putnam

Bank case), rendered after a jury trial, of larceny in the

second degree in violation of General Statutes § 53a123 and robbery in the second degree in violation of

General Statutes § 53a-135 (a) (2). With respect to that

judgment of conviction, the defendant claims that (1)

the court erred in failing to admit into evidence a photographic array depicting someone who resembled the

perpetrator, but who did not resemble the defendant,

(2) the court improperly denied his motion to strike

certain testimony from the state’s witness, Dr. Angela

Przech, a state forensic science examiner, who stated

that the defendant had a prior conviction in Massachusetts, and (3) the prosecutor engaged in impropriety by

eliciting testimony about the defendant’s prior conviction in contravention of the court’s pretrial orders. We

affirm the judgments of the trial court.

The following procedural history is relevant to both

appeals. The cases were tried separately, with the court,

Swords, J., presiding over both jury trials. In the Xtra

Mart case,the jury found the defendant guilty ofrobbery

in the first degree and larceny in the sixth degree. A

different jury found the defendant guilty in the Putnam

Bank case of larceny in the second degree and robbery

in the second degree. It acquitted him of robbery in the

first degree. On June 10, 2011, the court sentenced the

defendant on both verdicts. In the Xtra Mart case, the

court sentenced the defendant to twenty years incarceration on robbery in the first degree, which the court

merged with the lesser included offense of larceny in

the sixth degree. In the Putnam Bank case, the court

sentenced the defendant to twenty years incarceration.

The defendant received a total effective term of thirty

years incarceration. This appeal followed.1

I

XTRA MART CASE

The jury reasonably could have found the following
facts. Daniel Hartman, the third shift night clerk at the

Xtra Mart convenience store in Putnam, was working

on July 17, 2008. At 1:20 a.m., he was in the bathroom

gathering materials to mop the floor. When he heard

someone enter the store, he left the bathroom and saw

a Caucasian ‘‘[s]ix foot male, [with] dark hair, roughly

a hundred and sixty to a hundred and seventy-five

pounds, wearing gym shorts, [and] a T-shirt . . . .

[T]he rest of his face was covered . . . [by] a T-shirt

kind of turbaned around . . . his head and his face.’’2

Almost immediately upon entering, however, the defendant told Hartman that ‘‘this is a . . . robbery.’’ He

demanded money and when Hartman told the defendant

the money was in the cash register, he forced Hartman,

with a knife pressed against the back of his neck, to

retrieve the money. Within minutes, the defendant left

with approximately one hundred and twenty-five dollars. Hartman then called the police, and the defendant

was later arrested in connection with the crime.

In his testimony, Hartman did not describe the perpetrator as having any tattoos.3

In addition, the lack of

clarity in the state’s surveillance video made it such

that any tattoos on the perpetrator were not readily

visible. It is undisputed that the defendant has two

tattoos, one on his upper right arm and one between

his thumb and forefinger on his left hand. The state

entered into evidence photographs of those tattoos

taken the day after the robbery.

At trial, the defendant wanted to emphasize the fact

that, although he had visible tattoos on the day of the

robbery, Hartman did not mention any tattoos in his

description of the perpetrator. Defense counsel therefore informed the court that the defendant intended to

display his tattoos to the jury, without testifying.4 He

argued that this was proper because the defendant

would be exhibiting a static bodily condition and therefore he need not be put under oath or be subject to

cross-examination by the state. The state objected,

arguing: ‘‘It has been approximately two and [a] half

years since this incident. The defendant has had the

opportunity to alter or change the tattoo that he wants

to display. . . . I would expect to ask him questions

about whether he has altered it, what opportunities he’s

had to alter it, whether it has changed at all naturally.’’

After hearing both arguments and considering the

nature of tattoos, their ability to be altered, and the

length of time that had elapsed since the robbery, the

court held: ‘‘[T]he state is legitimately entitled to ask

him about the tattoos and its appearance today, and

question him about any alterations between the time

of the robbery and today, which is approximately two

and [a] half years. . . . [T]he defendant would need to

be under oath, and those questions and the answers

to those questions call into question the defendant’s

credibility. So, if the defendant did get on the [witness]
stand, did display the tattoo, and the state chose to

cross-examine him, then the state would also be permitted to use the robbery convictions5

to impeach his credibility.’’ (Footnote added.) On the basis of this ruling, the

defendant chose not to display his tattoos and therefore

was not subject to cross-examination by the state. The

jury thereafter found the defendant guilty of robbery

in the first degree and larceny in the sixth degree. This

appeal followed.

The defendant claims that the court’s ruling,requiring

that he subject himself to cross-examination if he chose

to display his tattoo to the jury, deprived him of his

rights to due process and a fair trial.6 We conclude that

this constitutional claim must fail because the court

properly precluded the defendant from displaying the

tattoos to the jury in accordance with the rules of evidence. State v. Annulli, 309 Conn. 482, 490, 71 A.3d 530

(2013); see also State v. Davis, 298 Conn. 1, 10, 1 A.3d

76 (2010); State v. Winot, 294 Conn. 753, 775–76, 988

A.2d 188 (2010).

‘‘In determining the relevancy and admissibility of

evidence, trial courts have broad discretion. . . . Our

standard of review of an evidentiary ruling is dependent

on whether the claim is of constitutional magnitude. If

the claim is of constitutional magnitude, the state has

the burden of proving the constitutional error was harmless beyond a reasonable doubt. . . . Otherwise, in

order to establish reversible error on an evidentiary

impropriety, the defendant must prove both an abuse

of discretion and a harm thatresulted from such abuse.’’

(Citations omitted; internal quotation marks omitted.)

State v. Swinton, 268 Conn. 781, 797–98, 847 A.2d

921 (2004).

The defendant and the state disagree as to whether

this claim is one of constitutional magnitude. The defendant states that ‘‘[s]ince the trial court would have only

permitted the defendant to testify at the cost of relinquishing his fifth amendment right not to testify, this

claim is of a constitutional magnitude.’’ He supports

his argument by citing State v. Asherman, 193 Conn.

695, 712–13, 478 A.2d 227 (1984), cert. denied, 470 U.S.

1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985), for the

proposition that the state may compel a defendant to

display a particular physical characteristic without violating the defendant’s right against self-incrimination.

He then compares that situation to the present, arguing

that the defendant has the same right to display a physical characteristic without being subject to cross-examination. He concludes that the court erred in denying

him such right, stating that the ‘‘court’s insistence that

[he] subject himself to cross-examination if he chose

to display his tattoos contravened well settled law and

deprived [him] of due process and a fair trial.’’

The state, however, argues that it ‘‘has found no Connecticut or United States SupremeCourt decisions hold-
ing that a defendant is constitutionally entitled to

exhibit bodily conditions without following the rules

of evidence . . . . [E]ven the cases the defendant cites

hold that a defendant must lay a proper evidentiary

foundation before displaying tattoos or other physical

characteristics.’’7 We agree with the state. There is no

established constitutional right to display a bodily condition without first laying a proper foundation. The

defendant, therefore, has the burden of proving that

the court abused its discretion in its evidentiary ruling

and that it resulted in harm.

In attempting to carry this burden, the defendant

claims that because the state put into evidence photographs of his tattoos, a proper evidentiary foundation

was laid to display them to the jury. To the contrary,

the state argues that the defendant failed to present

evidence from any source that the tattoos on his body

looked substantially the same as they did on the night

of the robbery, two and one-half years earlier. Thus,

according to the state, the court properly ruled that

the defendant could not display his tattoos to the jury

without laying a proper foundation. We agree with

the state.

‘‘An object connected with the commission of a crime

must be shown to be in substantially the same condition

as when the crime was committed before it can be

properly admitted into evidence. . . . The court has

broad discretion on this evidentiary issue, and its ruling

may not be overturned on appellate review except for

a clear abuse of discretion. . . . The [party offering

the evidence has the] burden . . . [of] showing that it

is reasonably probable that the substance has not been

changed in important respects . . . . The court must

consider the nature of the article, the circumstances

surrounding its preservation and custody and the likelihood of intermeddlers tampering with it.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Green, 55 Conn. App. 706, 713, 740 A.2d 450 (1999),

cert. denied, 252 Conn. 920, 744 A.2d 438, cert. denied,

529 U.S. 1136, 120 S. Ct. 2019, 146 L. Ed. 2d 966 (2000).

The defendant claims that a proper foundation was

laid for him to make a display to the jury because

(1) the photographs the state entered into evidence

depicted his tattoos the day after the robbery, and (2)

Hartman did not testify that the perpetrator had any

tattoos despite the fact that he ‘‘raised his right hand

to bring the knife to . . . Hartman’s face, which would

have exposed the prominent tattoo on [his] right arm.’’

He is mistaken. The defendant is required to show that

it is reasonably probable that the substance of his tattoos had not been changed in important respects.8 He

failed to present any evidence that these tattoos had

not been altered in the two and one-half years since the

robbery, and therefore failed to meet the foundational

requirements necessary for admitting such evidence.9
Accordingly, the court did not err in holding that the

defendant could not take the witness stand to display

his tattoos without being subject to cross-examination

by the state.

II

PUTNAM BANK CASE

We now turn our attention to the defendant’s appeal

in the Putnam Bank case. The jury reasonably could

have found the following facts. At about 4 p.m. on May

10, 2008, the defendant entered a Price Chopper supermarket in Putnam. Upon entering, the defendant walked

past the checkout area and headed toward the Putnam

Bank that was within the supermarket. He handed the

bank teller, Beth Girard, a note demanding cash. Girard

gave the defendant $200 ‘‘bait money’’ she was trained

to do in the event of a robbery. The defendant, unsatisfied with the amount of money he received, stated, ‘‘this

is not a . . . joke,’’ and demanded more money, this

time visibly showing a box cutter, wrapped in a tissue,

that he held in his hand. Girard complied with the defendant’s demand, and he left with approximately $2500

in cash. He left behind the demand note and the tissue,

however, and these items were later sent to the state

forensic laboratory.

After the state presented its evidence and the defense

rested, the jury found the defendant guilty of larceny

in the second degree and robbery in the second degree.

This appeal followed.

A

The defendant first argues that the court erred when

it failed to admit into evidence a photographic array

depicting someone who resembled the perpetrator, but

who the defendant argues did notresemble him. Assuming that there was error, we conclude that it was harmless beyond a reasonable doubt.

The following additional facts are relevant to our

review of the defendant’s claim. At trial, Girard testified

to a description of the perpetrator, explaining that he

was a white male with an average build and brown hair,

wearing a red sweatshirt and a green Boston Red Sox

hat. She also testified on cross-examination that, a few

weeks after the robbery, the police showed her a photographic array. She could not identify any one person

as the perpetrator, but testified that she ‘‘was trying to

give [the police] a better idea of what . . . his face

looked like. [She] said one looked like the eyes of the

robber[and] one had the facial feature.’’ During Girard’s

testimony, the defendant asked the court to admit the

photographic array as a full exhibit. The state objected

to that admission, arguing that the photographic array

was not relevant because Girard did not identify a particular person as the robber but identified a man with

facial features similar to those of the perpetrator.

Defense counsel responded that the photographic array
was relevant ‘‘to who [Girard] picked out as potentially

being the robber, [the] type of face.’’ After arguments,

the court held that the photographic array was not

relevant because it was ‘‘not a positive [identification]

with respect to that individual as the perpetrator.’’

The standard with regard to evidentiary claims is

well settled. ‘‘The trial court has wide discretion to

determine the relevancy of evidence . . . . Thus, [w]e

will make every reasonable presumption in favor of

upholding the trial court’s ruling[s] [on these bases]

. . . . In determining whether there has been an abuse

of discretion, the ultimate issue is whether the court

. . . reasonably [could have] conclude[d] as it did.’’

(Citations omitted; internal quotation marks omitted.)

State v. Davis, 298 Conn. 1, 11, 1 A.3d 76 (2010).

In the present case, we need not discuss whether the

court abused its discretion in declining to admit the

photographic array into evidence because any such

error was harmless. The defendant claims that the

court’s failure to admit the photographic array resulted

in a deprivation of his constitutional right to a fair trial

because if the ‘‘jury had before it a photograph of an

individual who resembled the perpetrator, and that individual bore no resemblance to the defendant, it could

have had a significant impact on its verdict.’’ Assuming,

without deciding, that his constitutional claim has

merit, we must determine whether that error was

harmless.

‘‘[T]he test for determining whether a constitutional

[error] is harmless . . . is whether it appears beyond

a reasonable doubt that the [error] complained of did

not contribute to the verdict obtained. . . . In addition,

[w]hen an [evidentiary] impropriety is of constitutional

proportions, the state bears the burden of proving that

the error was harmless beyond a reasonable doubt.

. . . [W]e must examine the impact of the evidence on

the trier of fact and the result of the trial. . . . If the

evidence may have had a tendency to influence the

judgment of the jury, it cannot be considered harmless.

. . . That determination must be made in light of the

entire record [including the strength of the state’s case

without the evidence admitted in error].’’ (Citations

omitted; internal quotation marks omitted.) State v. Wilson, 308 Conn. 412, 420–21, 64 A.3d 91 (2013).

After reviewing the record, we conclude beyond a

reasonable doubt that the error complained of did not

contribute to the verdict obtained and was therefore

harmless. Despite the exclusion of the photographic

array, the defendant elicited testimony to support his

misidentification defense from Girard and Kimberly

Bettencourt, the head teller who was working with

Girard and witnessed the robbery. Girard admitted that

she had given varying descriptions of the perpetrator,

and Bettencourt testified to a description of the perpetrator that conflicted with the defendant’s actual age
and some facial features. Excluding the photographic

array, therefore, did not bar the defendant from presenting his defense theory. In fact, it was cumulative

of other evidence of misidentification.

Furthermore, the record contains overwhelming evidence that it was the defendant who robbed Putnam

Bank on May 10, 2008. As set forth in more detail in

part II B of this opinion, the defendant could not be

excluded as a contributor to the DNA found on the

tissue that was left behind at the bank. Additionally,

still shots from the surveillance footage from the bank

were admitted into evidence, which gave the jury the

opportunity to compare the perpetrator’s features to

that of the defendant. Other evidence included the

demand note the perpetrator left behind at the bank,

which had his palm print on it. The demand note was

tested by John Pleckaitis, latent print examiner at the

Department of Public Safety’s division of scientific services forensic science laboratory. The demand note had

more than thirty characteristics matching those of the

defendant, and Pleckaitis therefore concluded that ‘‘the

two impressions originated from the same source.’’

Last, Dan Simonelli, an acquaintance of the defendant’s,

testified that the defendant came to his apartment on

the day of the robbery in an attempt to buy drugs from

a neighbor, but he was unable to do so because he did

not have any money. He further testified that about

fifteen or twenty minutes later, the defendant came

back to his apartment with ‘‘a bunch of money,’’ claiming that he ‘‘just cashed his tax return.’’

In reviewing this evidence, we conclude that if the

court erred in declining to admit the photographic array

into evidence, that error was harmless beyond a reasonable doubt. The defendant’s constitutional claim thus

fails.

B

The defendant next argues that the court erred in

denying his motion to strike allegedly prejudicial testimony from Przech, which he claims deprived him of a

fair trial. We disagree.

The following facts are relevant to the resolution of

this claim as well as the defendant’s subsequent claim of

prosecutorial impropriety. Prior to trial, the defendant

filed a motion in limine to preclude the state from mentioning that he was on probation. The court granted the

motion and instructed the state to inform its witnesses

‘‘that there shouldn’t be any gratuitous mention of the

defendant being on probation.’’

During trial, the state called Przech, a forensic science examiner at the state forensic laboratory. Przech

testified during direct examination that her laboratory

was responsible for determining the DNA composition

on the tissue that the perpetrator held during the robbery and that was left behind at the bank. From that
testing, a DNA profile was developed. Przech testified

that the DNA profile contained the DNA of two or more

people. She then compared the profile to the defendant’s DNA, where she found that the defendant ‘‘could

not be eliminated as a contributor to the DNA profile,’’

meaning that ‘‘there’s not enough information to completely include . . . [his] DNA profile in that profile,

but there’s not enough information there . . . to eliminate [him]. So, there’s genetic information that’s there,

but not all of it.’’ Specifically, she testified that ‘‘[t]he

expected frequency of individuals who could not be

eliminated as a contributor to that profile is less than

one in seven billion in the African-American population,

is approximately one in 900 million in the Caucasian

population, and approximately one in one billion in the

Hispanic population,’’ which means that there is an

extremely small number of individuals who could not

be eliminated from the profile.

On cross-examination, defense counsel probed

Przech on issues beyond the DNA profile. He asked

about her search in the state’s database of DNA profiles

of forensic samples and samples from convicted persons, CODIS, and which alleles10 are used in that search.

Przech testified that not every allele that is observed

is entered into the database but, rather, she enters only

those she determines would have investigative information. Defense counsel continued this line of questioning

in an attempt to show that the process was subjective.

Przech responded, however, that ‘‘our protocol and procedure is to put a profile into our database; a second

person looks at it and agrees with the entry, and if those

two people can’t come to an agreement, it would go to

the two CODIS . . . administrators . . . .’’ After

extensive questioning on different aspects of her analysis, defense counsel focused his queries on the population that is used in comparing the defendant’s DNA to

the DNA profile. Przech answered that the laboratory

generates a specific population from the world that is

tested and published.

On redirect, the state sought to rebut the idea that

the CODIS process was subjective and to clarify, for

the jury, the role of CODIS and its purpose. Przech

testified that ‘‘CODIS is a database of DNA profiles of

forensic samples and convicted offender samples from

. . . a Connecticut database and . . . a national database. . . . The purpose of the database is so that once

you’ve generated a forensic profile, you can enter it

into CODIS to search against other forensic profiles in

the state or nationally . . . .’’ When the state asked the

witness for her results in the present case, she testified

that ‘‘[t]here was a database hit to a convicted offender

in Massachusetts,’’ and identified the defendant as

that offender.

Defense counsel did not object during this testimony

but,rather, conducted recross-examination of her. After
Przech and the jury were excused, defense counsel

stated that the state’s question elicited an improper

response. He requested that the court strike the testimony that there ‘‘was a hit to a convicted offender in

Massachusetts and that . . . was [the defendant].’’ He

claimed that it was ‘‘in violation of the court’s earlier

rulings and an improper attempt to impeach [the defendant] before his taking the [witness] stand.’’ He further

contended, ‘‘I believe the testimony was clear that they

said there was a hit to a convicted offender, [the defendant], in Massachusetts. I don’t think that was appropriate, either question and answering, or answering. I’m

not sure [the state] anticipated that result. I’m sure [the

prosecutor] didn’t mean to elicit that testimony, but it

came out, and I don’t think it was proper under the

earlier rules of the court. . . . I would ask you to strike

that testimony.’’ The prosecutor responded: ‘‘[Defense]

[c]ounsel opened the door to this whole discussion. Not

a single time did [Przech] mention the CODIS word,

the database word, at all in her testimony. Counsel

brought it open, brought it up by talking about the

database and CODIS and testing and CODIS as to this

case. He opened the door. So, at this point the state

has no other choice other than to ask . . . her what

CODIS is and talk about the testing that was done in

the case because he brought it up in his cross-examination. . . . I had no intention of going into this . . .

area at all and I instructed . . . Przech not to mention

any sort of thing to do with CODIS.’’

The court ruled that it was ‘‘not going to strike the

testimony [be]cause . . . [defense counsel] did open

the door on anything to do with CODIS. I think that

[Przech’s] answer that it came back as a hit to a convicted offender was completely unanticipated by [the

prosecutor]. . . . I’m happy to instruct the jury that

they should ignore that testimony . . . of the statement that he’s a convicted offender and that they can’t

use that as part of their consideration as to whether or

not he’s guilty in this case. But, I mean, you already

know . . . that it’s going to highlight . . . that testimony . . . for the jury.’’ Defense counsel then

responded that he was ‘‘not [going to] ask for a jury

instruction . . . .’’11

‘‘Generally, a party who delves into a particular subject during the examination of a witness cannot object

if the opposing party later questions the witness on the

same subject. . . . The party who initiates discussion

on the issue is said to have opened the door to rebuttal

by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other

grounds, the court may, in its discretion, allow it where

the party initiating inquiry has made unfair use of the

evidence. . . . This rule operates to prevent a defendant from successfully excluding inadmissible prosecution evidence and then selectively introducing pieces

of this evidence for his own advantage, without allowing
the prosecution to place the evidence in its proper context. . . . The doctrine of opening the door cannot, of

course, be subverted into a rule for injection of prejudice. . . . The trial court must carefully consider

whether the circumstances of the case warrant further

inquiry into the subject matter, and should permit it only

to the extent necessary to remove any unfair prejudice

which might otherwise have ensued from the original

evidence. . . . Thus, in making its determination, the

trial court should balance the harm to the state in

restricting the inquiry with the prejudice suffered by

the defendant in allowing the rebuttal. . . . We review

for abuse of discretion the trial court’s determination

that a party has opened the doorto otherwise inadmissible rebuttal evidence.’’(Citation omitted; internal quotation marks omitted.) State v. Brown, 309 Conn. 469,

479–80, 72 A.3d 48 (2013).

The defendant admitted in his brief that ‘‘[b]y his

questioning, defense counsel was attempting to suggest

that the [CODIS] process had a subjective element,’’

but argued that ‘‘[t]he state’s decision to use this as an

opportunity to expose how the defendant’s information

ended up in that database was unnecessary, irrelevant,

and elicited forthe sole purpose ofidentifying the defendant as a convicted offender.’’ We disagree. Defense

counsel extensively questioned Przech about the process she employed in her preliminary search of CODIS,

which included questions about the selected population

that is used in comparing the defendant’s DNA to the

DNA profile. The defendant therefore opened the door

to the state’s follow-up questions about CODIS. The

prosecutor was then able to clarify for the jury its use

as an investigatory tool in identifying possible suspects

through its database; a database that contained the profiles of convicted offenders. It was only through this

questioning, and what the court found to be an unanticipated response by Przech, that the jury became aware

of the fact that the defendant was a convicted offender

in Massachusetts. Because defense counsel opened the

door to the prosecutor’s questions about CODIS, however, his line of questioning was permissible and

Przech’s response was not required to be stricken. ‘‘The

defendant cannot reap the benefits of inquiry into one

subject and expect the state’s questioning within the

same scope to be held impermissible.’’ State v. Brown,

131 Conn. App. 275, 287–88, 26 A.3d 674 (2011), aff’d,

309 Conn. 469, 72 A.3d 48 (2013). Accordingly, the court

did not abuse its discretion in denying the defendant’s

motion to strike.

C

Last, the defendant argues that the prosecutor

engaged in prosecutorial impropriety when he elicited

testimony from Przech that the defendant had been

convicted of a crime in Massachusetts.12 Specifically,

he claims that the state violated the court’s order to
exclude any reference to his being on probation. We

do not agree.

We begin our analysis by setting forth the applicable

law regarding claims of prosecutorial impropriety. ‘‘In

analyzing claims of prosecutorial impropriety, we

engage in a two step analytical process. . . . The two

steps are separate and distinct. . . . We first examine

whether prosecutorial impropriety occurred. . . . Second, if an impropriety exists, we then examine whether

it deprived the defendant of his due process right to

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

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

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

‘‘[T]he touchstone of due process analysis in cases

of alleged [harmful] prosecutorial [impropriety] is the

fairness of the trial, and not the culpability of the prosecutor. . . . The issue is whether the prosecutor’s

[actions at trial] so infected [it] with unfairness as to

make the resulting conviction a denial of due process.

. . . In determining whether the defendant was denied

a fair trial . . . we must view the prosecutor’s [actions]

in the context of the entire trial.’’ (Citations omitted;

internal quotation marks omitted.) State v. Fauci, 282

Conn. 23, 32, 917 A.2d 978 (2007).

‘‘To prove prosecutorial [impropriety], the defendant

must demonstrate substantial prejudice. . . . In order

to demonstrate this, the defendant must establish that

the trial as a whole was fundamentally unfair and that

the [impropriety] so infected the trial with unfairness

as to make the conviction a denial of due process. . . .

In weighing the significance of an instance of prosecutorial impropriety, a reviewing court must consider the

entire context of the trial, and [t]he question of whether

the defendant has been prejudiced by prosecutorial

[impropriety] . . . depends on whether there is a reasonable likelihood that the jury’s verdict would have

been different absent the sum total of the improprieties.’’ (Citation omitted; internal quotation marks omitted.) State v. Long, 293 Conn. 31, 37, 975 A.2d 660 (2009).

Our previous conclusion that defense counsel opened

the door to the prosecutor’s questioning controls our

conclusion as to this claim as well. We take the time

to note, however, that the defendant’s motion in limine,

which the court granted, specifically and solely

addressed the probationary status of the defendant. It

did not foreclose the prosecutor from asking about the

CODIS process and the databases that are used within

that process. The prosecutor did not, therefore, violate

the court’s order by questioning Przech about CODIS

and receiving an unanticipated response that referenced the defendant’s criminal history in Massachusetts.13 As a result, the prosecutor did not engage in

prosecutorial impropriety.
The judgments are affirmed.

In this opinion the other judges concurred.

1 The defendant filed one appeal from the judgments of conviction, listing

both docket numbers. Practice Book § 61-7.

2 Hartman also testified that, from the brief instance in which he saw the

‘‘scruff’’ on the perpetrator’s face, he believed the perpetrator was between

forty and forty-five years of age.

3 As the state notes, however, the defendant firmly placed his knife against

the back of Hartman’s neck and walked behind him. Moreover, the surveillance video depicted the perpetrator wearing a gray short sleeve shirt with

white material extending below the sleeves of the gray shirt, obscuring the

perpetrator’s upper arms.

4 The defendant believed that, despite photographs of his tattoos in evidence, the ‘‘actual publishing of his arm and his right arm and his left hand

to the jury would be the best evidence of the tattoos that he had on the

day this robbery allegedly occurred.’’

5 According to the state, these included an armed robbery conviction in

2003, two unarmed robbery convictions in June and December, 1995, and

two robbery convictions in July, 1985.

6 We note that the defendant did not argue to the trial court that its ruling

deprived him of the rights to due process and a fair trial. The defendant

raised his constitutional argument for the first time in his appellate brief.

It is a ‘‘bedrock principle of appellate jurisprudence that [reviewing courts]

generally will not review unpreserved claims made for the first time on

appeal.’’ (Internal quotation marks omitted.) State v. Elson, 311 Conn. 726,

743, 91 A.3d 862 (2014). In Elson, our Supreme Court further stated, ‘‘We

conclude, therefore, that to obtain review of an unpreserved claim pursuant

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

need only raise that claim in his main brief, wherein he must present a

record that is [adequate] for review and affirmatively [demonstrate] that his

claim is indeed a violation of a fundamental constitutional right.’’ (Internal

quotation marks omitted.) State v. Elson, supra, 754–55. We conclude that

the defendant’s brief satisfies the test set forth in Elson and therefore we

will review his unpreserved constitutional claim.

7 The defendant cites Schmerber v. California, 384 U.S. 757, 86 S. Ct.

1826, 16 L. Ed. 2d 908 (1966), arguing that the fifth amendment protects a

defendant from being compelled to testify or provide the state with testimonial evidence. The present case is in stark contrast, however, because it

was the defendant who wanted to display his tattoos, which was not asked

for or compelled by the state.

The other cases cited by the defendant are from other jurisdictions, and

are not the current state of the law in Connecticut. The only Connecticut

case cited by the defendant, State v. Sanchez, 128 Conn. App. 1, 10 n.6, 15

A.3d 1182 (2010), aff’d, 308 Conn. 64, 60 A.3d 271 (2013), did not analyze

whether the trial court erred in allowing the defendant to display his arm,

in a nontestimonial manner, to show that he did not have a tattoo. Rather,

the issue on appeal was whether the court erred in denying the defendant’s

motion to suppress evidence of a pretrial identification. Id., 6. This case

cannot, therefore, be used to support the defendant’s claim in the present appeal.

8

Instead, defense counsel only stated that once the defendant was on the

witness stand, the jury could ‘‘make its own determination as to whether

or not the tattoos had been manipulated or changed in some manner.’’ In

his brief, the defendant also argues that ‘‘[e]ven if the tattoos had been

altered in the intervening time period, it did not change the fact that the

defendant had tattoos at the time of the robbery and the perpetrator, by

[Hartman’s] description, did not.’’ Because the defendant is required to lay

a proper foundation before such evidence can be admitted, these arguments

are invalid.

9 The defendant also argued before the trial court that the display of his

tattoos is similar to a voice exemplar, which he claims is permitted in similar

circumstances. However, in State v. Watson, 47 Conn. App. 794, 796, 707

A.2d 1278 (1998), aff’d, 251 Conn. 220, 740 A.2d 832 (1999), the defendant

was involved in a robbery, in which the victims testified that the perpetrator

was a Hispanic male who spoke broken English. During trial, the defendant

wanted to give a voice exemplar, without appearing as a witness, to show

that he did not have an accent. On appeal, this court held that the trial court

did not abuse its discretion when it ruled that the defendant could not

demonstrate his voice to the jury without appearing as a witness.Id., 808–809.
It stated that ‘‘the matter of whether an act is testimonial or not bears on

whether a person may be compelled, consistent with his [f]ifth [a]mendment

right to avoid self-incrimination, to perform that act; but the fact that exhibition of a physical characteristic is not testimonial in nature, and hence may

be compelled at some stage, does not require its admissibility into evidence.’’

(Internal quotation marks omitted.) Id., 809. This court therefore determined

that the trial court had properly focused on whether the exemplar was

reliable, not on whether it was testimonial. We similarly conclude that

the trial court in the present case properly focused on the reliability and

evidentiary basis for displaying the tattoo, rather than its nontestimonial

nature.

10 ‘‘An allele is defined as one or two or more alternative forms of a gene.’’

(Internal quotation marks omitted.) State v. Pappas, 256 Conn. 854, 880 n.7,

776 A.2d 1091 (2001).

11 The state first argues that the trial court ‘‘functionally granted the motion

to strike when it offered to instruct the jury to ignore the testimony of a

‘hit to a convicted offender’ . . . and not rely on it in deliberations.’’ It

then states that when the defendant withdrew his request for a curative

instruction, he essentially withdrew his motion to strike as well. As a result,

the state claims that the defendant waived his right to pursue this issue on

appeal. We disagree.

We read the court’s ruling less broadly than the state does. After denying

the motion to strike on the ground that defense counsel had opened the

door as to the CODIS testimony, the court then offered to instruct the jury

that it was not to consider the defendant’s prior conviction in determining

whether he was guilty in this case. We conclude that by declining the offer

of curative instructions, the defendant did not waive his right to appeal

from the court’s denial of his motion to strike. Therefore, because the issue

was properly preserved and not waived, we determine whether the court

erred in denying the defendant’s motion.

12 The relevant facts are set forth in part II B of this opinion.

13 In fact, defense counsel even stated that ‘‘I’m sure [the prosecutor]

didn’t mean to elicit that testimony . . . .’’