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

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. JOHNNY MARTINEZ

(AC 38788)

DiPentima, C. J., and Keller and Calmar, Js.

Argued October 18, 2016—officially released March 28, 2017

(Appeal from Superior Court, judicial district of

Waterbury, Crawford, J.)
Steven B. Rasile, assigned counsel, for the appellant (defendant).

Melissa L. Streeto, senior assistant state’s attorney,

with whom, on the brief, were Maureen Platt, state’s

attorney, and Cynthia S. Serafini and Terence Mariani,

senior assistant state’s attorneys, for the appellee

(state).
Opinion

KELLER, J. The defendant, Johnny Martinez, appeals

from the judgment of conviction rendered by the trial

court, following a jury trial, of felony murderin violation

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

in violation of General Statutes § 53a-134 (a) (1), robbery in the first degree in violation of General Statutes

§ 53a-134 (a) (3), conspiracy to commit robbery in the

first degree in violation of General Statutes §§ 53a-48

(a) and 53a-134 (a), and tampering with evidence in

violation of General Statutes (Rev. to 2010) § 53a-155

(a) (1).1 The defendant claims that the court (1) violated

his right to present a defense by prohibiting him from

presenting evidence concerning an altercation that took

place in the hours prior to the events at issue, (2) violated his right to cross-examination by limiting the

scope of his cross-examination of a state’s witness, (3)

improperly instructed the jury with respect to accessorial liability in the course of its instructions concerning

the murder count, (4) improperly failed to comply with

the jury’s request to have certain testimony played back,

and (5) improperly denied his request to suppress a

written statement that he provided to the police. We

dismiss the appeal with respect to the third claim, and

with respect to the remainder of the appeal, we affirm

the judgment of the trial court.

On the basis of the evidence presented at trial,2

the

jury reasonably could have found the following facts.

Shortly after 4 a.m., on November 2, 2010, the victim,

Arnaldo Gonzalez, left his residence on Savings Street

in Waterbury and began walking to an election polling

station on Washington Street, where he was scheduled

to report at 5 a.m. to work as a bilingual interpreter.

When the victim left his residence, he was carrying a

black backpack.

The victim made his way to Baldwin Street when an

automobile being driven by Manuel Vasquez, and in

which the defendant, Michael Mark,3 and Anthony Garcia were passengers, drove by him. The four men in

the automobile were on their way to purchase liquor

at a ‘‘bootleg house’’ at which liquor was sold ‘‘after

hours,’’ when bars and package stores were not open

for business. Mark observed the victim and commented

aloud that he intended to rob him.4

Vasquez parked the automobile along Baldwin Street,

nearthe bootleg house. Before going to purchase liquor,

Vasquez cautioned Mark not to do anything ‘‘stupid.’’

The defendant and Mark then exited the automobile

and proceeded on foot in the victim’s direction. Garcia

remained in the automobile.

The defendant and Mark followed the victim

intending to rob him. As they got closer to the victim,

Mark picked up a hard object, perhaps a brick or a

rock, from the ground. Mark ran toward the victim from
behind while the defendantran into the street to prevent

the victim from fleeing from them. Mark struck the

victim in the back of the head with the hard object.

The victim did not have time to react, but immediately

fell to the ground. Mark repeatedly struck the victim,

who was lying face down on the ground. When the

defendant, wearing white sneakers, came upon the victim, he stomped on the victim’s head, causing blood to

transfer onto one of his sneakers. Mark left the victim

while in possession of the victim’s backpack.

When Vasquez returned to the automobile a short

time later, Garcia informed him that he thought that

the defendant and Mark had gone ‘‘up the street’’ to

‘‘rob’’ the victim. Vasquez drove a short distance before

he observed the defendant and Mark running in a southerly direction, on opposite sides of the street, near the

intersection of Baldwin and Galivan Streets. Vasquez

stopped the automobile to permit both men to get inside

of it. Mark remained in possession of the victim’s backpack. Mark was ‘‘bugging out,’’ looking at his hands,

and he stated three times that he had killed the victim.

The defendant stated that Mark had hit the victim ‘‘ ‘in

the head over and over again.’ ’’ Also, the defendant

stated that he had kicked the victim. The victim, who

sustained multiple skull fractures and brain hemorrhaging, died as a result of blunt force trauma to his head

that was consistent with being hit with a hard object

such as a rock and being kicked with a shod foot.

Vasquez drove the men to the defendant’s residence

on Second Avenue. There, in the kitchen, Mark referred

to the manner in which he had struck the victim in the

head; he imitated the cracking sound that he had heard

during his assault of the victim.5 The defendant and

Garcia rummaged through the items in the victim’s

backpack, which included several items that the victim,

a diabetic, used to care for himself. The commotion

caused the defendant’s sister-in-law, Joan Ruiz, to come

to the kitchen. Ruiz asked the defendant about the

appearance of blood on one of his sneakers, to which

the defendant replied that they had ‘‘jumped a crackhead’’ who owed them money and that he had ‘‘kicked

him in the head.’’ Later, after Ruiz learned from the

defendant that Mark had killed someone, Ruiz told

everyone to leave and to remove the victim’s backpack

from her residence.

After Ruiz observed the blood on the defendant’s

sneaker, he went to a bathroom and cleaned the blood

off of the sneaker. The defendant concealed the backpack by tossing it on the roof of a neighbor’s garage.

In the hours following the murder, the defendant

appeared to be crying and he stated that ‘‘he couldn’t

believe that he kicked the guy.’’

Additional facts will be set forth as necessary.

I
First, the defendant claims that the court violated

his right to present a defense by prohibiting him from

presenting evidence concerning an altercation that took

place in the hours prior to the events at issue. Although

we agree that the court erroneously ruled as it did,

we conclude that the error was harmless beyond a

reasonable doubt.

The following procedural history provides necessary

context for our analysis of the defendant’s claim. At

trial, the state presented evidence that, following the

victim’s murder, blood was present on one of the defendant’s sneakers. The defense attempted to demonstrate

that the blood was not the victim’s blood, but that it

was the blood of a third party with whom the defendant

had been involved in a physical altercation in the hours

prior to the victim’s murder.

During his direct examination by the state at trial,

Garcia testified that, when he, the defendant, Vasquez,

and Mark were at the residence on Second Avenue

following the victim’s murder, he observed blood on

one of the defendant’s sneakers. He recalled that, after

Ruiz asked the defendant why there was blood on his

sneaker, the defendant ‘‘went to clean it.’’ During the

defense’s cross-examination of Garcia, he was asked

about an event that occurred while he was with the

defendant, Vasquez, and Mark, in the hours prior to the

victim’s murder. The state objected to this inquiry and,

outside of the presence of the jury, the state argued

that it appeared that the defense was attempting to

elicit testimony concerning an event ‘‘where the four

individuals . . . got into a fight or a scuffle with somebody, that there was a dispute over the purchase of

either powdered or crack cocaine. That was where

[defense counsel] was trying to get with this particular

witness.’’6 The state argued that the inquiry was objectionable on the grounds that it was beyond the scope

of the state’s direct examination of Garcia and because

the evidence was not relevant to the events that transpired on Baldwin Street and resulted in the victim’s

death.

Defense counsel argued that the line of inquiry was

proper. First, he argued that the evidence was within

the scope of the state’s direct examination because the

state had elicited testimony from Garcia with respect

to events that transpired when the four men (the defendant, Vasquez, Garcia, and Mark) ‘‘got together’’ in the

hours prior to the murder. Second, the defendant’s

attorney argued that the evidence he was trying to elicit

would tend to demonstrate that, in the hours prior to

the murder, the defendant had kicked a third party (a

person he referred to as a ‘‘crackhead’’). He argued that

this evidence was ‘‘absolutely relevant’’ and ‘‘material

to the defense of the case’’ because it tended to demonstrate that the blood on the defendant’s sneaker was

not caused by his conduct with respect to the victim
in this case but that it resulted from the defendant’s

violent conduct in an unrelated incident. The defendant’s attorney told the court that the evidence was

relevant to demonstrate ‘‘[t]hat the [prior] incident

occurred and whether or not[Garcia] knows if the blood

[on the defendant’s sneaker] came from that incident,

as opposed to a later incident.’’

The court sustained the state’s objection in part. The

court ruled that the defense could inquire of Garcia as

to whether he knew the source of the blood on the

defendant’s sneaker but that ‘‘[a]ny details as to any

encounter concerning a crackhead, or however the person was referred to, those details are not essential to

determining whether or not he knew the source of the

blood on the shoe. Since what is relevant appears to

be . . . that he saw the defendant washing blood off

of his shoe, you may inquire as to whether he knew

about the source of that blood on his shoe. . . . [T]he

details concerning the prior encounter, that is not

allowed. . . . [Y]ou can inquire as to whether or not

he was present at a previous encounter and whether

or not he knows of . . . that encounter being the

source of the blood.’’ The court went on to explain: ‘‘The

details as to the encounter, as in there was somebody

talking about going to take something from a crackhead

and what they took and didn’t take, what is relevant to

this is . . . the source of the blood on the defendant’s

shoe. . . . You may inquire as to what he knows concerning the source of the blood, and that can be done

without the details of the encounter.’’ The court stated:

‘‘Here’s the question[s] that you will be permitted to

ask. Was there a prior altercation involving the four

individuals in the car? How long did that happen before

the encounter with [the victim]? And whether he saw

any blood on the defendant’s shoes from that altercation.’’

After the court’s ruling, the following colloquy

occurred between defense counsel and Garcia:

‘‘Q. [D]id an incident occur in the late evening hours

of November 1, orthe early morning hours of November

2, 2010, where you, [Vasquez, Mark, and the defendant]

had an altercation with a third party, not [the victim]?

‘‘A. Yes.

‘‘Q. Okay. Do you recall approximately how long from

that incident until you went to the bootlegger store,

approximately how long was that time frame?

‘‘A. It was a big time frame . . . probably like around

four hours, three, four hours.

‘‘Q. As a result of that altercation do you know

whether or not that was the source of the blood on [the

defendant’s] shoes that you saw at Second Avenue?

‘‘A. It could have been, but I don’t know.’’

During Garcia’s continued cross-examination by
defense counsel, the following colloquy occurred:

‘‘Q. [On Second Avenue] [s]omeone asked [the defendant] about where the blood came from, didn’t they?

‘‘A. Yes.

‘‘Q. And [the defendant] gave an answer to that,

didn’t he?

‘‘A. Yes.

‘‘Q. [He] said he kicked a crackhead, isn’t that true?

‘‘A. True.

‘‘Q. [The defendant] said he kicked a crackhead in

the head, correct?

‘‘A. True.

‘‘Q. At the time that statement was made do you know

whether or not [the victim] was a crackhead?

‘‘A. No.

‘‘Q. Do you have any reason to believe that he was

a drug user that evening?

‘‘A. No.’’

Following Garcia’s testimony and outside of the presence of the jury, defense counsel renewed his argument

that the court should have permitted him greaterleeway

to develop a factual basis concerning the prior physical

altercation involving the defendant and the third party.

The court, observing that its ruling would apply to the

defense’s examination of other witnesses, responded

by stating in relevant part: ‘‘The details as to that incident are irrelevant. I allowed what the court deemed

to be relevant: that there was an earlier incident, that

there was an altercation, that they were involved. You

were allowed to address your claim concerning whether

or not there was blood because there was a question

concerning . . . the defendant washing blood off of

his shoes.’’ The court further explained: ‘‘The fact that

there was something earlier, I’ve allowed. The time

frame between that and the incident involving [the victim] is allowed. And any questioning concerning any

blood from that incident versus any blood from the

later incident is allowed. The details that had been put

before the court on the record concerning who they

saw, what they did to him, who did what, I’m not going

to allow the details. Who owed what for drugs or who

owed money. I have ruled that portion of that incident

is not admissible.’’ The court then stated: ‘‘One of the

big problems is, the details concerning that [prior] incident are likely to be confusing and create other problems. But what I have ruled is relevant is that there

was an incident, that they were involved. There seems

to have been some altercation and you’re permitted to

question concerning whether or not there was blood

from that incident to explain the blood that [the defendant] was seen washing off [his sneaker].’’
The court had occasion to revisit its evidentiary ruling

during the testimony of Sonia Hernandez, who had

observed the victim’s lifeless body on Baldwin Street.

See footnote 5 of this opinion. During her direct examination by the state, Hernandez testified that in the early

morning of November 2, 2010, she was in a car with

Vasquez and Mark. As the car traveled down Baldwin

Street, Hernandez observed a male lying on the sidewalk, as well as blood. Hernandez stated that when she

brought this to Mark’s attention, he stated ‘‘ ‘[t]hat he

was just a crackhead. He deserved that. He owed [me]

money or something.’ ’’ Hernandez testified that Mark

then exited the automobile in the vicinity of the person

lying on the sidewalk and stated that he had to hide a

brick. Following this testimony, defense counsel argued

that Hernandez’ testimony, viewed in conjunction with

Garcia’s testimony, gave rise to an inference that the

defendant had kicked the victim. Thus, defense counsel

argued, the court should permit the defense to elicit

additional details with respect to the prior incident to

rebut this inference. Specifically, defense counsel

argued that the state had presented evidence that

tended to demonstrate that the victim in the present

case was the ‘‘crackhead’’ described by Garcia, but that

the court’s ruling unfairly precluded the defense from

demonstrating that there was another ‘‘actual crackhead incident’’ that did not involve the victim. The court

stated that Hernandez’ testimony, in which she stated

that Mark had referred to the victim as a ‘‘crackhead,’’

did not cause it to change its ruling with respect to the

parameters of defense counsel’s inquiries. The court

stated that its limitations did not preclude the defense

from eliciting facts that tended to demonstrate that the

blood on the defendant’s sneaker came from the prior

incident, not the incident on Baldwin Street involving

the victim. The court added that the evidence that the

defense sought to introduce had ‘‘a tendency to confuse

the jurors in terms of the actual details of a different

incident.’’

At trial, Vasquez testified with respect to the activities

of November 2, 2010. He stated in relevant part that,

when he returned to the automobile he was driving

after he made a purchase at the ‘‘after hours’’ liquor

store, he discovered only Garcia inside. Garcia told him

that the defendant and Mark had gone ‘‘up the street.’’

Vasquez testified that he drove south on Baldwin Street

until he observed the defendant and Mark running. He

stopped the automobile and both men got inside. Mark,

in possession of a black backpack, was ‘‘bugging out,’’

stating that he had ‘‘killed the guy.’’ Vasquez testified

that the defendant stated that he had ‘‘kicked him,’’ or

that he referred to the fact that he had kicked somebody. Vasquez stated that when he arrived at the residence on Second Avenue, he observed blood on the

defendant’s white Nike sneakers.
Also, Vasquez testified that ‘‘an incident’’ had

occurred in the hours prior to the incident on Baldwin

Street, prior to the time at which he went to the ‘‘after

hours’’ house to purchase liquor. He stated that he, the

defendant, Garcia, and Mark were present at that prior

incident. During recross-examination by defense counsel, the following colloquy with Vasquez occurred:

‘‘Q. [Y]ou testified on redirect [examination] regarding my client making some comment about kicking

someone, is that correct?

‘‘A. That’s correct.

‘‘Q. You have no knowledge who he was referring

to, correct?

‘‘A. Correct.

‘‘Q. It could have been the individual in the earlier

incident, is that correct?

‘‘A. Correct.’’

Ruiz, who is the defendant’s sister-in-law and Vasquez’ sister, testified that she observed the defendant,

Vasquez, Mark, and Garcia at her and the defendant’s

residence on Second Avenue in the early morning hours

of November 2, 2010. When she heard them come inside

the residence, she went downstairs and observed the

defendant and Garcia looking inside of a black backpack. The following colloquy between the prosecutor

and Ruiz occurred:

‘‘Q. Did you notice anything on either Mr. Garcia or

[the defendant]?

‘‘A. I noticed blood.

‘‘Q. On where?

‘‘A. On [the defendant’s] sneaker.

‘‘Q. Do you remember which sneaker it was?

‘‘A. No, I don’t.

‘‘Q. And can you describe it?

‘‘A. On the side of the sneaker.

‘‘Q. And what color was it?

‘‘A. Red.

‘‘Q. And did you inquire about that?

‘‘A. Yeah.

‘‘Q. What was the response that you got?

‘‘A. That he had kicked a crackhead that owed

them money.

‘‘Q. Okay. And who said that?

‘‘A. [The defendant].

‘‘Q. [H]e said what exactly?
‘‘A. That he had–they jumped a crackhead and he had

kicked him in the head and that he owed them money.’’

Ruiz proceeded to testify that there was ‘‘a lot of

blood’’ on the sneaker and that, following her comment

to the defendant, she observed him remove his sneaker

and clean it in a bathroom sink. Ruiz testified that she

also spoke with Mark, who told her that, using a rock,

he had killed a man. Specifically, Mark told Ruiz that

‘‘they had robbed a crackhead for the black backpack’’

and that this crime had transpired on Baldwin Street.

During cross-examination of Ruiz, defense counsel

revisited the issue of the bloody sneaker, as reflected

in the following colloquy:

‘‘Q. Now, at some point you ask [the defendant] about

something on his shoes, correct?

‘‘A. Yes.

‘‘Q. And he made a statement that you testified earlier,

they jumped a crackhead and he kicked him in the head

because he owed them money, is that correct?

‘‘A. Yes.

‘‘Q. Now, were you aware that earlier that evening,

[Mark, Garcia, the defendant and Vasquez] were

involved in another incident?

‘‘A. No.

‘‘Q. Did your brother[Vasquez] evertell you that there

was an incident that the four of them jumped someone

else earlier that evening?

‘‘A. No.

‘‘Q. Did [Mark] ever tell you that the four of them

jumped someone else earlier that evening?

‘‘A. No.

‘‘Q. Did [Garcia] tell you that the four of them jumped

someone else earlier that evening?

‘‘A. No.

‘‘Q. Do you have any idea where the blood on those

shoes came from?

‘‘A. No, I don’t.

‘‘Q. Do you know whether or not it came from that

other incident?

‘‘A. No.

‘‘Q. So your brother [Vasquez] never told you about

this prior incident?

‘‘A. No.’’

Once more, following Ruiz’ testimony, defense counsel expressed dissatisfaction with the court’s ruling that

precluded inquiry with respect to the details of the prior

incident. The defense paid particular attention to the
court’s ruling that limited inquiry with respect to Garcia.

Defense counsel’s arguments arose in the context of

the defense’s motion for the court to issue a capias

to compel the appearance of Garcia, who had been

subpoenaed by the defense to testify, but did not appear.

Specifically, during a lengthy exchange with the court,

defense counsel argued that additional details were necessary in light of statements attributed to the defendant,

in which he used the term ‘‘crackhead,’’ and Ruiz’ testimony that Mark appeared to have referred to the victim

as ‘‘a crackhead.’’ The court reaffirmed its prior ruling,

stating that the defendant was permitted to present

evidence, and had presented evidence, with respect to

when the prior incident had occurred, who was present

when it occurred, the fact that the prior incident

included an altercation, and whether the witnesses

knew if the blood seen on his sneaker was the result

of that prior incident. The court stated that it would

not permit the defense to elicit evidence with respect

to the attributes of the victim of the prior incident

(whether he was a ‘‘crackhead’’ or not) or with respect

to the motive forthat altercation because it did not view

such details as being relevant to the issue of whetherthe

blood on the defendant’s shoe was the result of his

conduct toward the victim on Baldwin Street.

The following day, the court heard further argument

with respect to the defendant’s motion for the court to

issue a capias to compel Garcia’s appearance. With

respect to why the defense wished to compel Garcia

to testify, defense counsel indicated that the defense

wished to recall Garcia for the purpose of rebutting the

inference, which could be drawn from the evidence

presented thus far in the case, that the defendant’s

references to kicking a crackhead were to the victim.

In a written offer of proof, the defense represented that

it would present testimony from Garcia that, during the

prior incident, Vasquez had attempted to sell crack to

a male third party described as ‘‘a crackhead’’ or ‘‘[a]

dopehead,’’ the third party took possession of the crack

and ran away, and that this led to ‘‘an altercation’’

involving the third party, Vasquez, Mark, Garcia, and

the defendant. Additionally, the defense intended to

present Garcia’s testimony that he did not have any

reason to believe that the victim in this case was a

crackhead. Further, defense counsel indicated that it

wished to present testimony of a similar nature from

the defendant and Vasquez during its case-in-chief, and

submitted an offer of proof in this regard that set forth

details concerning the altercation with the third party

in the prior incident. Once again, defense counsel

argued that, to dispel any confusion with respect to

the defendant’s statements following the murder(about

kicking a crackhead), it was imperative for the jury to

hear the foregoing testimony that the third party in the

prior incident, ‘‘the actual true source of the blood on

[the defendant’s] shoes,’’ was a crackhead.
In a lengthy ruling, the court reiterated in substance

its prior ruling with respect to the details of the prior

incident. The court stated that the reasons as to why

the prior incident occurred or why the defendant acted

the way he did in the prior incident were not relevant

to the issues before the jury. The court stated that ‘‘this

is not the place to adjudicate whether or not that person

[in the prior incident] was a crackhead.’’ The court

rejected the defendant’s argument that its ruling

infringed on his right to present a defense; the court

noted that the defendant was permitted to present evidence that the altercation occurred, when it occurred,

what he did during the altercation, and who was present

at the altercation. The court observed, as well, that the

defendant was free to testify with respect to what he

actually stated following the murder and what he did

during the altercation to explain the source of the blood

that had been observed on his sneaker. The court

observed that, although its earlier ruling had not precluded such inquiry, during cross-examination of prior

state witnesses, the defense had not explored the issue

of what the defendant did with respect to the third

party in the prior incident by, for example, inquiring as

to whether he had kicked the third party and whether

he had blood on his shoes immediately following the

prior incident. The court made clear that the defense

had ample opportunity to demonstrate that the defendant was involved in a prior incident and that the third

party involved in that incident was the source of the

blood on his sneaker, not the victim. The court stated

that such a theory of defense ‘‘has not been impeded

in any way.’’

Subsequently, the defendant testified. With respect

to his participation in the victim’s murder generally,

the defendant testified that he was in the automobile

being driven by Vasquez, in which he, Garcia, and Mark

were passengers, when Mark observed the victim and

stated that he intended to rob him. He testified that,

when Vasquez went into the ‘‘bootleg’’ house, Mark

exited the automobile and that he followed him in an

attempt to stop him.7 He recalled that Mark proceeded

in the victim’s direction, he bent down and then got

back up, and then he ‘‘took off like a rocket’’ toward

the victim. He continued to follow Mark and then he

heard ‘‘something hitting the ground hard.’’ Before he

and Mark got back into Vasquez’ automobile, he

observed a person lying on the ground. The defendant

said that Mark stated that he thought he had ‘‘ ‘just

killed that guy,’ ’’ and that he replied to Mark, ‘‘why’d

you have to do that?’’

The defendant testified that once the four men in his

group arrived at the residence on Second Avenue, Ruiz

asked him about his sneaker. He testified that he replied

that ‘‘we just had . . . a fight [with] somebody up the

block.’’ He stated that, he was talking about ‘‘[t]he inci-
dent before we went to the bootleg spot, the individual

there that we all . . . jumped basically.’’ He stated that,

in his comment to Ruiz, he was not referring to the

victim. According to the defendant, he proceeded to

clean the blood off of his sneakers in a bathroom.

During his redirect examination, defense counsel

elicited testimony from the defendant with respect to

the prior incident. The defendant testified that he, Vasquez, Mark, and Garcia were exiting the residence on

Second Avenue and walking toward an automobile

when Vasquez had a conversation with a third party.

The defendant testified that he, Mark, and Garcia either

were inside of the automobile or entering the automobile when Vasquez banged on a window and asked them

to help him. The three men exited the automobile and,

along with Vasquez, walked across Second Avenue and

confronted this third party by physically striking him.

The defendant testified that this occurred because the

third party had ‘‘done something to’’ his cousin, Vasquez. The defendant said that the third party was ‘‘a

good sized man,’’ who was approximately two inches

taller than him. He stated that he punched the third

party in the face with ‘‘one quick jab,’’ and then the third

party ran into the street. He stated that his associates

pursued the third party and, as they fought with him,

the third party fought back. The defendant testified that

using his right foot he kicked the third party in the face,

by the area of his nose and mouth, causing bleeding, and

that the blood subsequently observed on his sneaker

resulted from that conduct. He stated that, when he

saw blood on his sneakers, he stopped. The defendant

stated that after that incident occurred, he, Vasquez,

Mark, and Garcia ‘‘went back in the car and went to

the bootleg spot.’’ He stated that Vasquez used a certain

route to drive to the bootleg house because, at that

time, he was ‘‘riding around with drugs,’’ specifically,

crack cocaine.8

Following the verdict, the defendant filed a motion

for a new trial. One of the grounds raised was that

‘‘[t]he verdict of guilty rendered by the jury was the

result of the court’s decision to limit the defendant’s

ability to elicit testimony regarding the true source of

the blood on the defendant’s sneakers and properly

explain that the individual the defendant admitted to

kicking was, indeed, a crackhead and not the alleged

victim . . . .’’ In argument on the motion, defense

counsel stated that the defense was unfairly precluded

from demonstrating that the third party in the prior

incident was a crackhead and that this was made prejudicial by the state’s argument that the evidence of the

defendant’s statement that he kicked a crackhead

referred to the victim. In denying the motion as to this

ground, the court stated: ‘‘[T]here was testimony concerning the source of the blood. What the court had

indicated . . . was that whether or not the individual

in that first incident was a crackhead, that this was not
the place to adjudicate that. And whether or not he was

a crackhead didn’t matter. The fact is it was the jurors

who were going to decide if they believed that the

source of the blood on the shoe was from the first

incident or from the second incident. They made their

determination as to the source of the blood on the shoe.

And the defendant did testify, and as a matter of fact,

he also demonstrated how he kicked the individual in

the first incident.’’

On appeal,the defendant claims thatthe court erroneously prohibited him from presenting evidence concerning the prior incident, specifically, evidence ‘‘that the

prior incident victim was an identified and known

crackhead . . . .’’9 As he did before the trial court, he

argues that such evidence was relevant because it

‘‘made it more probable that [his] statement that he

kicked a crackhead in the head was in reference to

the prior incident and not, therefore, [the victim].’’ The

defendant argues that ‘‘the probative value [of the evidence] was not outweighed by its prejudice, as it (1)

would not unduly arouse the jury’s emotions, hostility,

or sympathy; (2) would not create a side issue that will

unduly distract the jury from the main issues; (3) would

not create or consume an undue amount of time; and

(4) involved no issue of surprise to either side.’’ Additionally, as he did before the trial court, the defendant

asserts that the court’s evidentiary ruling violated his

due process right to establish a defense.

Well established principles guide ourresolution ofthe

defendant’s claim. ‘‘The federal constitution require[s]

that criminal defendants be afforded a meaningful

opportunity to present a complete defense. . . . The

sixth amendment . . . [guarantees] the right to offer

the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to

present a defense, the right to present the defendant’s

version of the facts as well as the prosecution’s to the

jury so that it may decide where the truth lies. . . . The

defendant’s right to present a defense is not absolute,

however; [t]he right may, in appropriate cases, bow to

accommodate other legitimate interests in the criminal

trial process. . . . The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of

evidence.’’ (Citations omitted; internal quotation marks

omitted.) State v. Tilus, 157 Conn. App. 453, 474–75,

117 A.3d 920 (2015), appeal dismissed, 323 Conn. 784,

151 A.3d 387 (2016).

‘‘[A] defendant’s right to present a defense does not

include a right to present evidence that properly is

excluded under the rules of evidence. . . . The sixth

amendment to the United States constitution require[s]

that criminal defendants be afforded a meaningful

opportunity to present a complete defense. . . . The

defendant’s sixth amendment right, however, does not
require the trial court to forgo completely restraints on

the admissibility of evidence. . . . Generally, [a defendant] must comply with established rules of procedure

and evidence in exercising his rightto present a defense.

. . . A defendant, therefore, may introduce only relevant evidence, and, if the proffered evidence is not

relevant, its exclusion is proper and the defendant’s

right is not violated. . . .

‘‘Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue.

. . . One fact is relevant to another if in the common

course of events the existence of one, alone or with

other facts, renders the existence of the other either

more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and

visible connection between the evidentiary and principal facts that, all things considered, the former is not

worthy or safe to be admitted in the proof of the latter.

. . . The trial court has wide discretion to determine

the relevancy of evidence and [e]very reasonable presumption should be made in favor of the correctness

of the court’s ruling in determining whether there has

been an abuse of discretion. . . . [A]buse of discretion

exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to

vitiate logic, or has decided it based on improper or

irrelevant factors.’’ (Citations omitted; internal quotation marks omitted.) State v. Rivera, 169 Conn. App.

343, 379–80, 150 A.3d 244 (2016), cert. denied, 324 Conn.

905, A.3d (2017).

In general terms, the events that transpired during the

prior incident involving the defendant, Vasquez, Mark,

Garcia, and a third party, were not material to an understanding of the events surrounding the victim’s death.

In light of certain evidence presented by the state, however, the prior incident was relevant to the jury’s assessment of the state’s case. When the issue was raised

initially, defense counsel stressed that he wished to

introduce evidence concerning the prior incident in

order to explain the source of the blood that was

observed on the defendant’s sneaker following the victim’s death. The court’s ruling afforded the defendant

a full opportunity to attribute the source of the blood

to the prior incident, but it did not permit the defendant

to introduce evidence that the third party was known

to be a ‘‘crackhead.’’ The defendant availed himself of

this opportunity by presenting evidence with respect

to many details of the prior incident, including when it

occurred, what transpired, who was involved, and why

the defendant acted in the violent manner that he did.

The defendant presented ample evidence that he kicked

the third party in the head and that this conduct, motivated by his desire to help Vasquez, was the source of

the blood on his sneaker.

Throughout the trial, however, defense counsel also
made clear that the defense had a right to present evidence to provide necessary context for the defendant’s

statement that he had kicked a ‘‘crackhead.’’ It hardly

can be disputed that the state presented evidence of

the defendant’s highly incriminatory statement in this

regard as evidence that he had kicked the victim and,

thus, was criminally liable for his death. Although the

defendant, through his testimony, provided context for

the statement that he made to Ruiz and made clear that

he had not referred to the victim, additional evidence

with respect to whether the defendant and his associates referred to the third party as a ‘‘crackhead,’’ if

believed by the jury, would have made it less likely that

the defendant’s statement was an admission that he

had kicked the victim.

‘‘ ‘Relevant evidence,’ ’’ which is generally admissible,

‘‘means evidence having any tendency to make the existence of any fact that is material to the determination

of the proceeding more probable or less probable than

it would be without the evidence.’’ Conn. Code Evid.

§§ 4-1, 4-2. The proffered testimony from Garcia, Vasquez, and the defendant, that the third party was a

‘‘crackhead’’ and that the prior incident occurred incident to a botched drug sale by Vasquez to the third

party, tended to make it more likely than it would be

without that evidence that the defendant’s reference to

having kicked a ‘‘crackhead’’ referred to the third party.

It is clear from a review of the court’s many rulings

with respect to the matter that it determined that presenting the proffered evidence would have risked confusing the issues properly before the jury and creating

a factual dispute with regard to a collateral matter. We

recognize that ‘‘[r]elevant evidence may be excluded if

its probative value is outweighed by the danger of unfair

prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay,

waste of time or needless presentation of cumulative

evidence.’’ Conn. Code Evid. § 4-3. In light of the probative value of the evidence in terms of providing context

for the defendant’s incriminatory statement, we are not

persuaded that its probative value would have been

outweighed by a risk of confusing the jury with respect

to a collateral matter or that the presentation of the

evidence would have amounted to a waste of time.

The court’s ruling already had opened the door for the

defense to elicit a great deal of testimony concerning

the prior incident. In light of the other evidence, it is

difficult to see how permitting evidence with respect

to a few additional details concerning the alleged drug

deal involving the third party and Vasquez would have

unduly burdened or confused the jury in its proper

evaluation of the evidence and the issues before it.

Thus, we are persuaded that the court’s ruling reflected

an abuse of discretion. The ruling, which precluded the

defendant from presenting admissible evidence to rebut

an important aspect of the state’s case, infringed upon
his right to present a defense.

‘‘As with all improper evidentiary rulings of constitutional proportion, we now must consider whether the

exclusion of the evidence was harmless beyond a reasonable doubt. . . . Whether such error is harmless in

a particular case depends [on] a number of factors,

such as the importance of the witness’ testimony in the

prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating

or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise

permitted, and, of course, the overall strength of the

prosecution’s case. . . . Most importantly, we 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.’’ (Citation omitted; internal quotation marks omitted.) State v. Wright,

320 Conn. 781, 823–26, 135 A.3d 1 (2016). ‘‘An improper

evidentiary ruling is subject to harmless error analysis,

and if the impropriety is constitutional in nature the

state has the burden of proving that the error was harmless beyond a reasonable doubt.’’ State v. Ruocco, 151

Conn. App. 732, 751, 95 A.3d 573 (2014), aff’d, 322 Conn.

796, 144 A.3d 354 (2016).

As ourforegoing discussion reflects, there were many

other facts admitted into evidence concerning the prior

incident and assault on the third party. Even in the

absence of the proffered evidence that the defendant

and his associates had referred to the third party as a

‘‘crackhead,’’ it is highly likely that the jury would have

inferred from the facts in evidence that the third party

was engaged in illicit drug related activity with Vasquez.

Addressing the issue directly, the defendant testified

that in his statement to Ruiz, in which he referred to

having kicked a crackhead, he was referring to the third

party and not the victim. He went on to testify that he,

in fact, had kicked the third party and not the victim.

The defendant drew the very inference that he wanted

the jury to draw. This testimony was bolstered by the

evidence that Vasquez was in possession of crack

cocaine at the time of the prior incident and that the

third party had ‘‘done something to’’ Vasquez. Moreover,

there was no evidence that the victim in the present

case was a crack addict or that he owed money to

anyone. In fact, the evidence suggested that the defendant and his cohorts did not know the victim, but that

his murder was a tragic crime of opportunity. Against

this evidentiary backdrop, we are not persuaded that

the added details concerning the prior incident that the

court excluded from the evidence would have affected

the jury’s assessment of the defendant’s statement that

he had kicked a ‘‘crackhead,’’ let alone provided a tendency to influence the judgment of the jury.

In evaluating harm, we are mindful that the defendant
was afforded great latitude in exploring the prior incident and that, even absent the evidence at issue, he

was able to provide a great deal of context for his

statement to Ruiz. Also, we are persuaded by the

strength of the state’s case. The state presented ample

evidence that the defendant was present at the scene

of the crime and that he had an opportunity to commit

the crimes at issue. The state presented evidence that

the defendant confessed to his role in the crime, having

admitted that he, in fact, kicked the victim in the head

during Mark’s assault. His incriminatory statements

were bolstered by evidence from the crime scene, as

well as the defendant’s admission that he had blood on

his sneaker following the victim’s murder. Also, there

was evidence that the defendant was conscious of his

guilt by means of his expressions of regret for his role

in the crime, cleaning his sneaker, and secreting the

victim’s belongings. There was evidence that his statement to the police was motivated, in part, by a desire

on his part to ‘‘come clean’’ for his role in the victim’s

murder. In light of the foregoing evidence, we conclude

that the court’s evidentiary error was harmless beyond

a reasonable doubt.

II

Next, the defendant claims that the court violated

his right to cross-examination by limiting the scope of

his cross-examination of a state’s witness. We disagree.

By way of factual background, we observe that the

testimony of George Tirado, who was a detective with

the Waterbury Police Department at the time of the

events at issue, was a central part of the state’s case.

The state presented testimony that, on November 28,

2010, the defendant voluntarily spoke with Tirado and

provided a signed written statement to him in which

the defendant implicated himself in the crimes of which

he was convicted. As discussed previously in this opinion, at trial, the defendant disputed the accuracy of his

statement, asserting that several matters in the statement were untrue and that the statement did not completely reflect what he stated to Tirado. Also, Tirado

testified about what transpired during the interview and

what the defendant stated.

At the time of trial, the defense indicated that, pursuant to § 6-7 of the Connecticut Code of Evidence, it

intended to impeach Tirado, who was no longer a member of the Waterbury Police Department, by means of

his felony conviction on April 19, 2013, of one count of

conspiracy to make false statements to the Federal

Elections Commission and to defraud the United States.

Also, defense counsel stated that, under § 6-6 (b) of the

Connecticut Code of Evidence, the defense intended

to impeach Tirado by means of two ‘‘nonconviction

matters’’ that related to an assessment of his credibility.

With respect to the first matter, defense counsel stated

that it related to a scheme employed by Tirado, in his
business, by which he inflated an employee’s paycheck

by $500 per week and, subsequently, ‘‘received those

funds in cash or nonmonies that were not disclosed on

his tax return . . . .’’ When the court asked if this was

a fact or an allegation, defense counsel stated that he

had a good faith belief thatit was a fact. Defense counsel

stated: ‘‘The basis for my belief is that the federal government, in the investigation of Mr. Tirado, in that investigation they discerned and disclosed that Mr. Tirado

had conducted himself in this activity. As an attorney,

I was . . . one of the counsel for the codefendants, I

have personal knowledge of the information contained

therein.’’ Defense counsel went on to state that the

information was contained in a sentencing memorandum.

Defense counsel stated: ‘‘The other specific act of

misconduct is contained in the same document filed by

the government after the federal government did an

extensive investigation.’’ With respect to this misconduct, defense counsel stated that Tirado, who had an

ownership interest in a store that sold tobacco products, had instructed an employee to dilute the tobacco

product sold to customers, without notifying them, in

order to reap additional profits.

The prosecutorresponded that Tirado had challenged

the facts set forth in the sentencing memorandum on

which the defense relied. Defense counsel replied that

he had reviewed that filing by Tirado, but stood by the

government’s allegations. Defense counsel stated that,

although he had personal knowledge of certain facts,

he was bound by a court order not to disclose the

documents on which such knowledge was based.

Defense counsel argued that the two instances of misconduct were admissible to show a lack of veracity on

the part of Tirado. The court expressed its reservations

about permitting inquiry on the basis of allegations and

good faith beliefs, not adjudicated facts.

The court ruled that inquiry into Tirado’s conviction

was permitted by § 6-7 of the Connecticut Code of Evidence. With respect to the other misconduct, the court

stated: ‘‘[T]he basis for [counsel’s] good faith belief

comes from documents and/or information that cannot

be disclosed, so the court has no way of making an

assessment in terms of the basis for the good faith

belief. No one else is apprised of that information. . . .

It seems to be analogous to the presentence investigation report that’s in the state [practice], but there’s a

memorandum of sentencing . . . I believe the term you

used was memorandum of sentencing, and contained

in the memorandum of sentencing is the information

concerning the pay . . . and the instructions concerning how to dilute the tobacco came from recordings or

other information that cannot be disclosed.’’ The court

went on to observe that defense counsel recognized

that Tirado disputed what was in the sentencing report,
but did not have a copy of Tirado’s filing in this regard.

The court stated that, under these circumstances, it

would not permit the inquiry into the two acts of misconduct that did not result in a conviction.

During Tirado’s subsequent trial testimony, defense

counsel elicited that he was no longer a police officer

and that he had been convicted of conspiracy to make

a false statement to the Federal Elections Commission

and to defraud the United States. At length, defense

counsel cross-examined Tirado with respect to the

events that transpired when the defendant met with

him and provided a statement, as well as inquiring into

whether the statement contained Tirado’s version of

the facts and whether it was complete. During its

charge, the court drew the jury’s attention to the evidence that Tirado had been convicted of a crime. The

court instructed the jury that the ‘‘criminal record . . .

bears only on the witness’s credibility.’’

‘‘The legal standards governing the review of alleged

violations of a criminal defendant’s sixth amendment

right to cross-examine witnesses are well established.

The sixth amendmentto the [United States] constitution

guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The

primary interest secured by confrontation is the right

to cross-examination . . . . Indeed, if testimony of a

witness is to remain in the case as a basis for conviction,

the defendant must be afforded a reasonable opportunity to reveal any infirmities that cast doubt on the

reliability of that testimony. . . .

‘‘However, [a] defendant is . . . bound by the rules

of evidence in presenting a defense. . . . Although

exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights, the [federal] constitution does not require that a defendant be

permitted to present every piece of evidence he wishes.

. . . In analyzing the defendant’s claims, we first review

the trial court’s evidentiary rulings. Our standard of

review for evidentiary claims is well settled. To the

extent [that] a trial court’s admission of evidence is

based on an interpretation of the Code of Evidence,

our standard of review is plenary. . . . We review the

trial court’s decision to admit [or exclude] evidence, if

premised on a correct view of the law, however, for an

abuse of discretion.’’ (Citations omitted; internal quotation marks omitted.) State v. D’Amato, 163 Conn. App.

536, 553, 137 A.3d 38, cert. denied, 321 Conn. 909, 136

A.3d 643 (2016).

‘‘If, after reviewing the trial court’s evidentiary rulings, we conclude that the trial court properly excluded

the proffered evidence, then the defendant’s constitutional claims necessarily fail. . . . If, however, we conclude that the trial court improperly excluded certain

evidence, we will proceed to analyze [w]hether [the]

limitations on impeachment, including cross-examina-
tion, [were] so severe as to violate [the defendant’s

rights under] the confrontation clause of the sixth

amendment . . . .’’ (Citation omitted; internal quotation marks omitted.) State v. Davis, 298 Conn. 1, 11, 1

A.3d 76 (2010).

‘‘A witness may be asked, in good faith, about specific

instances of conduct of the witness, if probative of

the witness’ character for untruthfulness.’’ Conn. Code

Evid. § 6-6 (b)(1). ‘‘The right to cross-examine a witness

concerning specific acts of misconduct is limited in

three distinct ways. First, cross-examination may only

extend to specific acts of misconduct other than a felony conviction if those acts bear a special significance

upon the [issue] of veracity . . . . Second, [w]hether

to permit cross-examination as to particular acts of

misconduct . . . lies largely within the discretion of

the trial court. . . . Third, extrinsic evidence of such

acts is inadmissible. . . .

‘‘In order to comport with the constitutional standards embodied in the confrontation clause, the trial

court must allow a defendant to expose to the jury facts

from which [the] jurors, as the sole triers of fact and

credibility, could appropriately draw inferences relating

to the reliability of the witness. . . . We have emphasized in numerous decisions, however, that the confrontation clause does not give the defendant the right to

engage in unrestricted cross-examination. . . . A

defendant may elicit only relevant evidence through

cross-examination. . . . The court determines

whether the evidence sought on cross-examination is

relevant by determining whether that evidence renders

the existence of [other facts] either certain or more

probable.’’ (Citations omitted; internal quotation marks

omitted.) State v. Vere C., 152 Conn. App. 486, 504–505,

98 A.3d 884, cert. denied, 314 Conn. 944, 102 A.3d

1116 (2014).

Here, the court’s ruling to exclude the proffered

inquiry was based on its determination that the defense

had not made a sufficient showing to demonstrate that

the prior acts of misconduct were, in fact, material in

that they tended to demonstrate Tirado’s character for

untruthfulness. Defense counsel set forth the basis of

his good faith belief; the representations made by

defense counsel were based upon an unsubstantiated

sentencing memorandum in an unrelated proceeding.

Counsel’s representations reflected that the government’s allegations against Tirado had not been adjudicated to any extent, and, in fact, that they had been

challenged by Tirado and, thus, were unproven. The

court observed that counsel stated that, at that time,

he was unable to provide the court with a complete

basis for his good faith belief.10 Thus, beyond expressing

his personal belief in the accuracy of what appeared

in the memorandum, defense counsel set forth indeterminate proof with respect to his belief that Tirado had
been untruthful. Such indeterminate proof was a sound

basis upon which to exclude the inquiry. See State v.

Annulli, 309 Conn. 482, 496, 71 A.3d 530 (2013). The

defendant is unable to demonstrate that the court’s

evidentiary ruling reflected an abuse of discretion and,

thus, his constitutional claim fails.11

III

Next, the defendant claims that the court improperly

instructed the jury with respect to accessorial liability

in the course of its instructions concerning the murder

count. The state urges us to conclude that the claim is

not justiciable. We agree with the state.

‘‘Mootness raises the issue of a court’s subject matter

jurisdiction and is therefore appropriately considered

even when not raised by one of the parties. . . . Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a]

court’s subject matter jurisdiction. . . . We begin with

the four part test for justiciability established in State

v. Nardini, 187 Conn. 109, 445 A.2d 304 (1982). . . .

Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a

resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy

between or among the parties to the dispute . . . (2)

that the interests of the parties be adverse . . . (3) that

the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief

to the complainant. . . . [I]t is not the province of

appellate courts to decide moot questions, disconnected from the granting of actual relief or from the

determination of which no practical relief can follow.

. . . In determining mootness, the dispositive question

is whether a successful appeal would benefit the plaintiff or defendant in any way.’’ (Internal quotation marks

omitted.) Heisinger v. Dillon, 168 Conn. App. 467,

475–76 n.12, 147 A.3d 1123, cert. denied, 323 Conn.

940–41, 151 A.3d 387 (2016). ‘‘[J]usticiability comprises

several related doctrines, namely, standing, ripeness,

mootness and the political question doctrine, that implicates a court’s subject matter jurisdiction and its competency to adjudicate a particular matter. . . . A case

that is nonjusticiable must be dismissed for lack of

subject matter jurisdiction.’’ (Internal quotation marks

omitted.) Janulawicz v. Commissioner of Correction,

310 Conn. 265, 270, 77 A.3d 113 (2013).

The defendant’s claim of instructional error involves

the crime of murder. Although he was charged with

murder and found guilty of that crime by the jury, he

does not stand convicted of that crime because the

court vacated that conviction. See footnote 1 of this

opinion. Accordingly, there is no actual controversy

with respect to the claim, the matter is not capable of

being adjudicated by this court, and a determination of
the claim will not result in any practical relief to the

defendant. Accordingly, the claim is not justiciable and

we must dismiss this portion of the appeal.

IV

Next, the defendant claims that the court improperly

failed to comply with the jury’s request to have certain

testimony played back. We disagree.

The following additional facts underlie this claim.12

During jury deliberation, the jury sent a note to the

court with several questions. In responding to the jury’s

inquiries, the court stated: ‘‘[I]f you end up requesting

testimony, indicate if it’s the entire testimony, something on direct, something on cross. Just be specific.

The other thing, though, would be during the playback,

if whatever it is that you’re discussing, you hear the

answer and there isn’t any need for the rest of it, I’ll

ask the foreperson to raise his hand . . . so that we

know we’ve reached a point where whatever it is you

needed to resolve among yourselves has been

resolved.’’ Defense counsel affirmatively stated that it

did not have any objection to the court’s instruction.

Later that day, the jury sent a note to the court

requesting, as relevant to the present claim, playback

with respect to certain subjects testified to by Garcia,

Ruiz, and Vanessa Olivencia, a friend of Hernandez.13

The jury was summoned to the courtroom. While it was

listening to the playback of Ruiz’ testimony, the jury

indicated that it had heard enough, and the jurors signaled affirmatively when asked if ‘‘everyone [was] in

agreement that you’ve reached a point where whatever

the question you had has been answered.’’ While it was

listening to the playback of Olivencia’s testimony, the

jury indicated that it had heard enough. Again, when

the court asked the jury if its dispute had been resolved,

all jurors responded affirmatively. The record reflects

that the jury heard playback of Garcia’s testimony,14

but it does not reflect that the jury stopped playback

or that the court inquired with respect to that playback.

Outside of the presence of the jury, defense counsel

objected that, with respect to the playback of Garcia’s

testimony, the jury had heard only portions of his direct

examination by the state and not the defense’s crossexamination. Then, the courtroom clerk indicated on

the record: ‘‘As I brought the jurors back, they explained

to me that they misunderstood your question, did you

get what you needed. They got what they wanted from

the direct portion on that issue, but they did want to

hear the cross-examination.’’ The clerk stated that he

instructed the jurors to convey their concerns to the

court in a written note. Later that day, the jury sent a

note to the court stating: ‘‘Can we make sure we hear

direct and cross for each item.’’ The court had the courtroom clerk seek clarification from the jury, and the

court stated that the jurors had expressed their desire
to continue deliberations, that they did not wish to hear

further playback, and that they would send out a note

if anything was required. Before the court dismissed

the jury at the end of the day, the court, referring to

the earlier playback request, informed the jury that it

would be ready to play back the ‘‘remaining areas that

we didn’t reach,’’ and that the jury should ‘‘just let us

know’’ if and when it wanted to hear the playback the

next day.

The following morning, the jury resumed its deliberations. The jury sent a note to the court unrelated to its

earlier playback request. The court asked the parties if

they had resolved any issues with respect to locating

the playback requested the day prior, and the parties

agreed that this was now ready to be played for the

jury, as the court stated, ‘‘in the event they request it

again.’’ Later, defense counsel objected to the way that

the court addressed the jury’s request for playback the

prior day. Defense counsel stated that the court had

played only the direct examination testimonies of Garcia and Ruiz. Defense counsel argued that ‘‘no matter

what,’’ the jury should be required to hearthe remainder

of their testimony.

The court responded: ‘‘When the jurors came out, I

indicated to them that you two had agreed on identifying

what you believed were the portions in the transcript

that applied. I also indicated that if whatever it is that

they [wanted] hadn’t been resolved, if when they hear

the playback, if they got the answer they could indicate

such. There were certain points at which the foreperson

raised his hand, indicated they got what they were looking for. I inquired of all the jurors and they indicated

they agreed.

‘‘At the end of all of that, you did put on the record

that what was read . . . was the direct and redirect and

not the cross, that was then agreed to. And I indicated to

you that if they do request that they still need to have

the information from that note, then we will address

it. We were here after I discharged them yesterday, I

went through the listing of the areas where that may

be the issue. There was an agreement as to those places,

because whether or not you’re aware of it, there are

times when jurors have sent out a note and request

something, and before we could even get it set up, they

have said never mind.

‘‘So I would not assume what you have assumed,

because they said they’ve resumed. When I had the

clerk inquire, given the note indicating that they misunderstood my question, and that they were asking for

direct and cross. But I also had the clerk inquire and

they said they want to continue working. So as it stands

now, I will not treat it any differently than any note

where there’s been a request, and then the jurors have

continued deliberating, and they make a decision as to

whether or not they still need that information. We’ve
identified it in the event that they do, and then we’ll

take it from there, if they indicate that they actually do

need to revisit it.’’ After defense counsel disagreed with

the court’s statement that the parties had reached an

agreement with respect to matters that were played

back for the jury a day earlier, the court reiterated that

the jurors ‘‘will be the ones to determine whether or

not they’re confused and whether or not they have any

request concerning the initial request [for playback].’’

The record reflects that the jury did not request further playback. The jury sent the court a note that stated:

‘‘Based on the judge’s question, at this time we do not

need to hear the additional testimony that we

requested yesterday.’’

The defendant raised the issue once more among

several grounds raised in his motion for a new trial.

Defense counsel’s argument focused on what it perceived to be both unfairness in presenting only examination by the state as well as unreasonable delay in

locating requested playback. Defense counsel stated

that the jury had been ‘‘tainted’’ because it had not

heard the cross-examination testimony. In rejecting the

claim, the court stated: ‘‘So if I understand your argument then, what was improper was [that the jury] made

a request and during the time that it took to identify

where the information was to accommodate the

request, that somehow [the jury] shouldn’t have been

allowed to continue deliberating or somebody should

have said something to [the jury] about the time that

it was taking to locate [the requested playback]. And

then I did indicate to [the jurors] to alert the court

when they had the information they needed, and my

recollection is that during the initial playbacks they did

. . . when we had reached what they needed. They did

do so. And then the next day I indicated, given the

second request, that we had then located the remainder,

and they could then let the court know if they still

needed it, and they said they didn’t.’’15 Defense counsel

argued that the jury appeared to be ‘‘bewilder[ed]’’ by

what had transpired, but the court stated thatit interpreted the jury’s conduct as an indication that it no longer

needed to hear additional playback.

As he did before the trial court, the defendant argues

that the court ‘‘abused its discretion in the manner it

allowed the evidentiary read backs to occur’’ in that it

failed to provide the jury with the playback it requested,

presented the jury with a ‘‘skewed’’ playback of testimony, and ‘‘did nothing to act in a more expeditious

manner to try and rectify the problem that it had

created.’’

Practice Book § 42-26 provides: ‘‘If the jury afterretiring for deliberations requests a review of certain testimony, the jury shall be conducted to the courtroom.

Whenever the jury’s request is reasonable, the judicial

authority, after notice to and consultation with the pros-
ecuting authority and counsel for the defense, shall

have the requested parts of the testimony read to the

jury.’’16 ‘‘[T]he trial court has discretion to grant a jury’s

request to review testimony. . . . What portions of the

record, if any, will be submitted to the jury for [its]

consideration is a matter of sound judicial discretion.

. . . In determining whether the trial court has abused

its discretion, the unquestioned rule is that great weight

is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness . . . . [T]he exercise of [the trial court’s]

discretion will not constitute reversible error unless it

has clearly been abused or harmful prejudice appears

to have resulted.’’ (Citations omitted; footnote omitted;

internal quotation marks omitted.) State v. Cancel, 275

Conn. 1, 11–12, 878 A.2d 1103 (2005).

A somewhat similar claim was raised and rejected

by our Supreme Court in State v. Rivera, 223 Conn. 41,

612 A.2d 749 (1992).17 In Rivera, the defendant claimed

‘‘that it was unreasonable as a matter of law for the

jury to request, and the court to order, a replay of [a

witness’] direct examination but not her cross-examination. He further argues that once the jury requested to

rehear [another witness’] testimony, the trial court was

obligated to replay her cross-examination, despite the

jury’s withdrawal of its request prior to rehearing any

of her testimony.’’ Id., 48. In rejecting the claim, the

Supreme Court concluded ‘‘that the trial court acted

within its discretion when it allowed the jury to rehear

only that testimony that the jury indicated that it wished

to rehear. We cannot conclude, as the defendant seems

to advocate, that the trial court was required as a matter

of law to replay more of the witnesses’ testimony than

the jury believed it needed to rehear in order to reach

a verdict.’’ Id.; see also State v. Harris, 227 Conn. 751,

771, 631 A.2d 309 (1993) (‘‘[u]nless the court was convinced that an injustice would result, it was not, despite

any agreement, required to force the jury to listen to

what it did not want to hear’’).

Here, the judge explained the reason for any delay

in responding to the jury’s requests for playback. We

observe that the jury’s initial request related to several

subject matters and the testimony of several witnesses.

It appears that any delay was incident to the court

complying with the dictate of Practice Book § 42-26 to

respond to the playback request ‘‘after notice to and

consultation with the prosecuting authority and counsel

for the defense . . . .’’

In its initial instructions concerning playback, the

court instructed the jury to be specific in its request

for playback. It appears from the record that, at least

with respect to the playback of the testimony of Ruiz

and Olivencia, the court stopped the playback when,

on the basis of the jury’s communications, it believed

that the jury did not want additional playback. The
record does not reflect that such communication

occurred with respect to the playback of Garcia’s testimony.

When the court learned that the jury wished to hear

cross-examination testimony for these witnesses, it

immediately asked counsel to locate the portions of the

testimony at issue. Once these portions were identified,

the court communicated to the jury that it would continue the playback at the jury’s request. Thereafter, the

court learned that the jury wished to continue in its

deliberations. The court learned this through the jury’s

communications with the courtroom clerk as well as

the jury’s note indicating that it had determined that

the additional playback was not necessary.

There may have been a miscommunication between

the jury and the court with respect to the jury’s initial

request for playback. This appears to have been compounded by the jury’s conduct in stopping playback, as

it had been instructed to do when it believed that further

playback was no longer necessary. There is no indication, however, that the court attempted to disregard

the jury’s request or that it did not take immediate steps

to present the jury with what had been requested. Such

circumstances do not give rise to a claim of unfairness.

Moreover, before the jury reached its verdict, the court

communicated to the jury that it was ready to provide

additional playback. When the jury stated that it was

not necessary, the court, in its discretion, properly

viewed the matter as an abandoned request for playback. We are not persuaded that the court acted in

abuse of its discretion by failing to compel the jury to

listen to the additional playback in light of the jury’s

unambiguous communication that it did not need to

consider such playback, nor do the circumstances lead

us to conclude that an injustice resulted. Although the

defendant urges us to conclude that the court acted

unfairly, the record does not remotely suggest that the

court attempted to thwart the jury’s initial request. It

appears that the court complied with our rules of practice with respect to playback. Accordingly, we reject

the defendant’s claim.

V

Finally, the defendant claims that the court improperly denied his request to suppress a written statement

that he provided to the police.18 We disagree.

Priorto the commencement of the trial, the defendant

moved to suppress all oral and written statements concerning the present case that he had provided to the

Waterbury Police Department. The defendant argued,

inter alia, that his statements were provided without

the assistance of counsel during a custodial interrogation by the police, and that he was not advised of,

did not understand, and did not waive his rights under

Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966). He argued that any Miranda

advisement or claimed waiver occurred after his interrogation. Moreover, the defendant argued that his statements were not knowingly and voluntarily made, but

that any statements were the result of violent threats

made by Tirado. In opposition to the motion, the state

argued that the defendant was not in police custody at

the time that he provided his statements and that he

knowingly and voluntarily waived his Miranda rights

before making them.

The court held a hearing on the motion to suppress

during which it heard testimony from Tirado, Christopher Corbett, and David McKnight, all of whom were

officers with the Waterbury Police Department. The

court also heard testimony from the defendant and Bernard Barile, a psychologist who had examined the

defendant.

In its memorandum of decision denying the motion

to suppress, the court found the following facts: ‘‘[The

victim] was killed on November 2, 2010. The defendant’s

name came up during the investigation and Detective

Tirado went to a residence on Thanksgiving as he

wanted to talk to him. The defendant was not there

so Detective Tirado left his card with his name and

phone number.

‘‘The defendant called Detective Tirado on Friday,

the day after Thanksgiving, and again on Saturday

because he wanted to meet with Detective Tirado and

explain his version of events. On Sunday, November

28, 2010, the defendant went to the police department

at approximately 9 a.m., accompanied by his aunt and

uncle. He called Detective Tirado, who was at home,

to let him know he was at the police department.

‘‘Shortly before 11 a.m., Detective Tirado called Captain Corbett to come to the police department, since

Captain Corbett was supervising the investigation.

Detective Tirado also called Detective [Steve] Jeanetty

and asked him to take the defendant to an interview

room. Detective Tirado arrived at the police department

close to 11 a.m., and Captain Corbett arrived at approximately 12 noon.

‘‘Detective Tirado entered the interview room, introduced himself, and informed the defendant that he

would be talking to him about the night [the victim]

was killed. Detective Tirado then left the room and

retrieved the [Miranda] rights cards. He asked the

defendant if he wanted anything and the defendant said

he was all set. Detective Tirado advised the defendant

of his Miranda rights at 11:10 a.m.

‘‘The defendant was eager to talk to Detective Tirado

because he wanted to help solve the case. He believed

his version of the events of November 2, 2010, would

show his involvement and identify [Mark] as the person

who killed [the victim].
‘‘During the time at the police station, the defendant

was not handcuffed or placed in any restraints. Detective Tirado left the room three times and each time the

door was left open and no one else entered the room.

Detective McKnight, Detective Jeanetty, Captain Corbett, and Lieutenant [Frank Capozzi] were also present

in the detective bureau. Detective McKnight and Captain Corbett were in their offices and did not hear any

yelling or arguing from the interview room. Furthermore, Detective Tirado was not armed.

‘‘Prior to giving his version of events, the defendant

disclosed that he had completed the 11th grade, he

could read and write, and he communicated in English.

Detective Tirado had him read the rights form out loud

and he said he understood them.

‘‘Detective Tirado then asked what happened and the

defendant gave his version of what he did and what

Mark did on November 2, 2010. Detective Tirado had

the defendant explain and offer details. After approximately one hour, the defendant agreed to give a written statement.

‘‘At 12:01 p.m., prior to typing the statement, Detective Tirado again advised the defendant and he again

waived his rights. Detective Tirado then proceeded with

the typed statement. Detective Tirado stated that he had

the defendant read the statement and he had nothing to

add or to change so he got Captain Corbett and Detective McKnight to notarize and witness the defendant’s signature.

‘‘Captain Corbett had the defendant read a portion

of the statement. He stopped him when he was comfortable [that] the defendant could read, and had him initial

and sign it. Detective McKnight then signed as a witness.

Detective McKnight said he heard the defendant read

[aloud] without any problems. He did not stumble.

‘‘At the time of the interrogation, Detective Tirado

did not know the details ofthe killing untilthe defendant

provided them. The codefendant [Mark] had not yet

been interviewed. The defendant provided the information that implicated him in the death of [the victim].

The officers secured an arrest warrant and the defendant was placed under arrest.

‘‘Captain Corbett and Detective Tirado described the

defendant as well groomed, appropriately dressed, and

calm. No one detected any odor of alcohol and the

defendant said he had not taken any drugs.

‘‘While at the police department, the defendant did

not ask for a lawyer and he didn’t refuse to answer any

questions. To the contrary, he wanted to tell his version

of events because he believed he was identifying the

killer and he would not be held responsible for the

death [of the victim].

‘‘The defendant’s version of what happened at the
police department differs significantly from that of the

three officers who testified. He agrees he went there

voluntarily with his aunt and uncle to tell his version

of events, and he waited two hours for Detective Tirado.

He stated Detective Tirado took him to the interview

room, not Detective Jeanetty. He agreed Detective Tirado did leave the room and left the door open. He also

stated Detective Tirado was calm at first, then became

frustrated, threatened to slap him, called him a liar, and

moved his chair so close to him [that] their knees

touched.

‘‘The defendant also said [that] while Tirado was in

the room he tried to leave, and Tirado told him to sit

and threatened to get Detective McKnight to keep him

in the room. However, there was no attempt to leave

when Tirado left the room with the door open. The

defendant said he was a pretty big guy at the time and

he was much bigger than Detective Tirado. He also

stated [that] Detective Tirado took him out of the room

to a larger computer room and had him look at Google

Maps and photos of the deceased. Detective Tirado

testified [that] there is no need to take anyone out of

the room to look at Google Maps, as he can do so on

the computer in the room.

‘‘Detective McKnight, who was working at his desk

in the hallway outside the interview room, never saw

the defendant leave the room, but he did see Detective

Tirado come out a couple of times. The defendant

described the room and the location of a TV set he

saw. However, Detective McKnight stated the defendant

could not have seen a TV set because the view is blocked

by a pillar/columns in the center of the room.

‘‘Additionally, the defendant denied reading both

rights forms, initialing the forms and the statement, but

he did acknowledge his signature on each. Furthermore,

he stated [that] he signed all three at the same time at

the end of the statement. First he said he didn’t read

it, then he said Detective Tirado read it to him, and he

also said he never saw Detective McKnight or Captain

Corbett in the interview room.

‘‘To credit the defendant’s version of events would

require the court to discredit the testimony of Detective

Tirado, Detective McKnight, and Captain Corbett.’’

(Footnotes omitted.) The court went on to make findings with respect to Barile, who examined the defendant. Ultimately, the court found in relevant part: ‘‘The

testimony of Dr. Barile shows that any limitations the

defendant may have had [in terms of his intellectual

capacity] did not prevent him from knowingly, intelligently, and voluntarily waiving his Miranda rights.’’

After setting forth applicable law, the court concluded that the defendant was not in police custody.

In relevant part, the court stated: ‘‘In this case, on

Thanksgiving day, the defendant was informed by fam-
ily members that Detective Tirado wanted to talk to

him. The next day, Friday, and again on Saturday, the

defendant contacted Detective Tirado to try to meet

with him. On Sunday, he went to the police department,

accompanied by his aunt and uncle. He again called

Detective Tirado and waited two hours for his arrival

at the station. Detective Jeanetty took the defendant to

an interview room to wait for Detective Tirado.

‘‘When Detective Tirado arrived in the interview

room, he introduced himself and explained [that] officers had talked to several other people and [that] they

were looking for his side of the story, his version of

events the night [the victim] was killed. Detective Tirado then left the room and got the rights card and

waiver form.

‘‘The defendant was not placed in handcuffs or any

other restraints. Detective Tirado was unarmed and

. . . McKnight and Corbett were engrossed in their

work outside [of] the interview room. They did not enter

until needed to notarize and witness the defendant’s

signature, and there is no evidence either was armed.

The defendant’s aunt and uncle were in the police

department and the defendant was free to leave if he

wanted to do so. Furthermore, he had been advised he

could stop answering questions at any time.

‘‘The defendant gave an oral statement and then consented to give a written statement. He was again advised

prior to the written statement. The defendant was eager

to talk as he believed his version of events would identify [that] the codefendant [Mark] was the person who

killed [the victim].

‘‘Under the totality of these circumstances, the defendant was not in custody.’’

The court went on to conclude that, even if the defendant made his statement to the police while in police

custody, the police had administered Miranda warnings and the defendant had waived his rights prior to

the time that he was questioned. In relevant part, the

court found: ‘‘At the time the defendant gave the statement, he was twenty-five years old and had completed

the 11th grade. He said in the statement that he had

four children and at the hearing he stated [that] he

had six. He said he read the statement, didn’t read

the statement, and Detective Tirado read the statement

to him.

‘‘Detective Tirado gave the Miranda warnings shortly

after meeting the defendant as they both knew why he

was there. The defendant acknowledged [that] he has

a larceny conviction and had been arrested and booked

a number of times in New York. Tirado had no difficulty

communicating with the defendant and the defendant

knew what was going on. He could read and understand

English and his fifth grade teacher taught him to read

and gave him tricks to help with reading and compre-
hension. He expressed [that] he wanted to help find

the person who killed [the victim]. Detective Tirado

was unarmed and no one threatened the defendant or

made any promises to him. Furthermore, he was not

under the influence of alcohol or other drugs, or on

any medication. What the defendant described as

threats was not credible.

‘‘Dr. Barile’s testimony established [that] the defendant’s IQ was in the 80’s and the normal range is 90-

100. However, Dr. Barile also stated [that] he read the

[Miranda] warnings to the defendant, and he seemed

to understand them and the waiver of rights form. The

defendant did not have problems with reading or writing

English. Dr. Barile acknowledged this was his first evaluation of this type, but also concluded [that] the defendant was not susceptible or open to influence, had a

defensively narcissistic personality, and an attitude of

entitlement. Although the defendant said he had a head

injury, there was no evidence to support that claim.

‘‘The state has proved by a preponderance of the

evidence [that] the defendant voluntarily, knowingly,

and intelligently waived his right to remain silent.’’

On appeal, the defendant challenges the court’s conclusion that he was not in police custody at the time

that he made his statement to the police.19 Also, the

defendant challenges the court’s conclusion that his

statement was knowingly and voluntarily made. ‘‘Our

standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well

defined. A finding of fact will not be disturbed unless

it is clearly erroneous in view of the evidence and pleadings in the whole record . . . . [W]here the legal conclusions of the court are challenged, we must determine

whether they are legally and logically correct and

whether they find support in the facts set out in the

memorandum of decision . . . .’’ (Internal quotation

marks omitted.) State v. Clark, 255 Conn. 268, 279, 764

A.2d 1251 (2001).

‘‘Normally, [w]hen a suspect is taken into custody,

the Miranda warnings must be given before any interrogation takes place. . . . The primary purpose of the

Miranda warnings is to ensure that an accused is aware

of the constitutional right to remain silent before making statements to the police. . . . Two threshold conditions must be satisfied in order to invoke the warnings

constitutionally required by Miranda: (1)the defendant

must have been in custody; and (2) the defendant must

have been subjected to police interrogation. . . . The

defendant bears the burden of proving custodial interrogation.’’ (Internal quotation marks omitted.) State v.

Smith, 321 Conn. 278, 288, 138 A.3d 223 (2016). The

record reflects, and the state acknowledges, that the

defendant was subjected to police interrogation.

‘‘In order to establish that he was entitled to Miranda
warnings, a defendant must show that he was in custody

when he made the statements and that he made the

statements in response to police questioning. . . . In

assessing whether a person is in custody for purposes of

Miranda, the ultimate inquiry is whether a reasonable

person in the defendant’s position would believe that

there was a restraint on [his] freedom of movement of

the degree associated with a formal arrest. . . . Any

lesser restriction on a person’s freedom of action is not

significant enough to implicate the core fifth amendment concerns that Miranda sought to address. . . .

‘‘[We have] set forth the following nonexclusive list

of factors to be considered in determining whether a

suspect was in custody for purposes of Miranda: (1)

the nature, extent and duration of the questioning; (2)

whether the suspect was handcuffed or otherwise physically restrained; (3) whether officers explained that

the suspect was free to leave or not under arrest; (4)

who initiated the encounter; (5) the location of the

interview;(6)the length ofthe detention;(7)the number

of officers in the immediate vicinity of the questioning;

(8) whether the officers were armed; (9) whether the

officers displayed their weapons or used force of any

other kind before or during questioning; and (10) the

degree to which the suspect was isolated from friends,

family and the public.’’ (Citations omitted; internal quotation marks omitted.) State v. Arias, 322 Conn. 170,

177, 140 A.3d 200 (2016).

In his challenge to the court’s conclusion with respect

to custody, the defendant appears to rely merely on

his own version of what transpired during the police

interrogation. The defendant maintains that Tirado not

only threatened him but prevented him from leaving

the interrogation room. The court, however, found the

defendant’s version of events not to be credible. The

defendant ‘‘encourages [this] court to review the transcript to make its own determination of the reliability

of the witnesses, [and] in doing so, bear in mind that

Tirado was the only person convicted of a felony at the

time of their testimony.’’

The defendant has not demonstrated that the court’s

findings of fact are clearly erroneous on the basis of

the evidence and pleadings in the whole record. The

court’s findings with respect to what transpired during

the interrogation are supported by the testimony of the

police officers. To the extent that the defendant invites

us to reevaluate the credibility determination that was

central to the court’s decision, we decline to do so. ‘‘On

a motion to suppress, [i]t is the function of the trier to

determine the credibility of witnesses and the weight

to be given their testimony.’’ (Internal quotation marks

omitted.) State v. Douros, 90 Conn. App. 548, 554, 878

A.2d 399, cert. denied, 276 Conn. 914, 888 A.2d 85 (2005).

To the extent that the defendant also challenges the

court’s denial of his motion to suppress on the ground
that his statement was not voluntary, as he did at trial,

we observe that the court did not expressly address

this claim in its decision. Instead, the court concluded

that the defendant was not in custody and that he had

voluntarily waived his Miranda rights. Nonetheless, we

may dispose of the voluntariness claim on the ground

that the arguments in support of it reflect that it merely

is an invitation forthis court to reevaluate the credibility

determinations made by the trial court with respect to

his testimony as well as that of the police officers who

testified at the suppression hearing. Among other arguments, the defendant refers to portions of the officers’

testimony, which he deems to be contradictory, in an

attempt to demonstrate that the officers did not testify

truthfully. Additionally, the defendant urges us to interpret Barile’s testimony to require a finding that he had

‘‘significant intellectual limitations’’ that left him unable

to voluntarily make a statement after being ‘‘interrogated for nearly four hours by a hostile Tirado, who

was willing to threaten [him] to stop him from leaving.’’

‘‘The standard for voluntariness of a Miranda waiver

is the same as the standard for voluntariness of a confession. . . . Irrespective of Miranda . . . any use in a

criminal trial of an involuntary confession is a denial

of due process of law. . . . In order to be voluntary a

confession must be the product of an essentially free

and unconstrained choice by the maker. . . . [T]he test

of voluntariness is whether an examination of all the

circumstances discloses that the conduct of law

enforcement officials was such as to overbear [the

defendant’s] will to resist and bring about confessions

not freely self-determined . . . . Furthermore, the

scope of review is plenary on the ultimate question of

voluntariness, butthe trial court’s findings regarding the

circumstances surrounding the defendant’s questioning

and confession are findings of fact that will not be

overturned unless they are clearly erroneous.’’ (Citations omitted; internal quotation marks omitted.) State

v. Azukas, 278 Conn. 267, 289–90, 897 A.2d 554 (2006).

The court’s findings with respect to the defendant’s

Miranda waiver, therefore, are relevant to the present

claim with respect to the voluntariness of the confession. The court made clear findings that the police interview was not coercive. The defendant’s will was not

overborne. Instead, motivated by a desire to implicate

Mark in the victim’s murder, he knowingly and voluntarily sought Tirado for the purpose of making the statement that he did. The court found that the defendant

traveled to Connecticut to meet with Tirado, having

called him multiple times. The court found that the

defendant was calm and responsive to questioning, and

did not make any attempt to stop the interview. The

court found that the defendant, who read, spoke, and

understood English, was compliant in reviewing the

written statement and in signing it before a witness and

a notary. Put otherwise, the court plainly rejected the
defendant’s testimony that coercion or threats had

played a role in his confession. Moreover, the record

reflects thatthe court carefully consideredBarile’s testimony and reasonably found that the defendant did not

have an intellectual disability that impaired his ability

to voluntarily make a statement to the police. The defendant has not undermined our confidence in the correctness of the court’s findings, which are amply supported

by the testimony of the police officers. On the basis of

those findings, we conclude that the defendant’s confession was freely and voluntarily made.20

The appeal is dismissed with respect to the defendant’s claim that the jury was improperly instructed as

to the murder count; the judgment is affirmed in all

other respects.

In this opinion the other judges concurred.

1 Additionally, the jury found the defendant guilty of murder in violation

of General Statutes (Rev. to 2010) § 53a-54a (a). At the time of sentencing,

the court, pursuant to State v. Miranda, 145 Conn. App. 494, 508, 75 A.3d

742 (2013) (vacatur is proper remedy for double jeopardy violation caused

by cumulative homicide convictions arising from killing of single victim),

aff’d, 317 Conn. 741, 753–54, 120 A.3d 490 (2015), reasoned that it could not

properly impose a sentence with respect to the murder and felony murder

counts under which the defendant was found guilty. Accordingly, the court

vacated the defendant’s conviction of murder. With respect to the remaining

counts, the court imposed a total effective sentence of fifty years imprisonment, with a mandatory sentence of twenty-five years.

2

In addition to other evidence ofthe defendant’s criminal liability,the state

presented evidence that, on November 28, 2010, the defendant voluntarily

provided an incriminatory statement to the Waterbury Police Department.

Therein, the defendant admitted that he and an accomplice, Michael Mark,

pursued the victim for the purpose of robbing him, Mark struck the victim

in the head with a rock, the defendant ‘‘stomped on the [victim’s] head,’’

and Mark left the scene in possession of items taken from the victim, who

remained motionless on the ground following the attack.

3

In a separate trial, Mark was found guilty of murder, felony murder, two

counts of robbery in the first degree, conspiracy to commit robbery in the

first degree, and tampering with evidence. See State v. Mark, 170 Conn.

App. 241, 245, 247, A.3d , cert. denied, Conn. , A.3d

(2017).

4 With respect to his comments concerning the victim, there was evidence

that Mark stated, ‘‘I’m gonna rob that nigga,’’ and that he ‘‘was going to rob

his ass.’’ (Internal quotation marks omitted.)

5 Later, Vasquez drove Mark, Vanessa Vasquez and Sonia Hernandez to

the crime scene because Mark, believing that ‘‘it would be evidence,’’ wanted

to locate and hide the hard object that he used to kill the victim. At the

scene, Mark exited the automobile for the purpose of locating and hiding

the object at issue. Hernandez, upon observing the victim, became upset

and started screaming and crying.

6 Earlier, at a suppression hearing in this case related to the admissibility

of the defendant’s statement to the police, the defendant testified in relevant

part that, prior to the incident involving the victim on Baldwin Street, he

was involved in a physical altercation with a third party who had taken

drugs from Vasquez without paying for them. The defendant referred to the

third party as a ‘‘crackhead’’ and stated that, during the altercation that

also involved Vasquez, Mark, and Garcia, he had kicked this third party in

the head.

7 The state presented a signed, written statement that the defendant provided to the Waterbury Police Department several weeks following the

events at issue. The events described in the statement differed in several

respects from the defendant’s trial testimony. The defendant explained these

differences by denying that he made certain statements that appeared in

the written statement or by stating that other statements that he did make

did not appear in the statement. In particular, the defendant testified that,

contrary to what appeared in the statement, he told the police that the blood
on his sneakerresulted from the priorincident on Second Avenue. Moreover,

contrary to what appeared in the statement, the defendant denied that he

ever stated that he had kicked the victim.

The statementreflects that the defendant told the police that he voluntarily

followed Mark’s invitation to rob the victim because he had robbed people

in the past and did not ‘‘think much of it.’’ The statement reflects that Mark

struck the victim with a rock before ransacking him. The defendant stated

that he observed the victim lying motionless on the ground while Mark was

striking him in the head. The defendant stated that he ‘‘stomped on the

dude’s head. I only did that one time. I know he was down already, but it

was just a normal reaction.’’ He thought that Mark ‘‘was an asshole for

hitting [the victim] like that with the rock.’’ The statement reflected that,

after the four men left the scene, they went to the residence on Second

Avenue. At that time, the defendant was asked about blood on his white

Nike sneakers. He stated that he cleaned his sneakers in the bathroom.

8 The evidence concerning the alleged prior incident was a subject of the

parties’ closing arguments. As relevant to our discussion of this claim, we

note that during the state’s principal closing argument, the prosecutor

referred to the defendant’s written statement to the police, in which he

stated that he had kicked the victim in the head and later had cleaned blood

from his sneaker. Additionally, the prosecutor referred to the evidence that,

following the victim’s murder, the defendant stated to Ruiz that ‘‘he kicked

the crackhead in the head.’’

During the defense’s closing argument, defense counsel drew the jury’s

attention to the testimony concerning the alleged prior incident. Defense

counsel referred to the defendant’s testimony that, after he kicked the third

party, he saw blood and then left the scene. In relevant part, defense counsel

stated: ‘‘[Vasquez], when he mentions kicking . . . testified [that] it’s possible that [the blood on the defendant’s sneaker] came from that incident.

[Garcia] testified, it’s possible [that] the blood on that sneaker came from

that incident. [The defendant] told you unequivocally that’s exactly where

the blood came from in that incident.’’ Defense counsel directly addressed

the state’s argument that any references made by the defendant to having

kicked ‘‘a crackhead’’ referred to the prior incident and not the victim.

Defense counsel referred to the fact that there was evidence that the victim

did not have ‘‘crack in his system.’’ Defense counsel stated: ‘‘That we do

know is that the prior incident involved something that [Vasquez] did wrong.

It involved something that [Vasquez] had a problem with that guy. It involved

a guy who had crack cocaine on him, Manuel Vasquez. [The defendant] told

you, when I said I kicked a crackhead, it was the first guy. He came and

he showed you how he kicked the guy, the first guy, the one he said was

a crackhead. That’s the statement from Joan Ruiz. That’s the only statement

that anybody talks about at Second Avenue that [the defendant] makes.’’

Apparently suggesting that it was inconsistent with a finding that the defendant had kicked the victim, defense counsel went on to draw the jury’s

attention to Ruiz’ testimony that there was blood on only the side of the

defendant’s sneaker.

During the state’s rebuttal argument, the prosecutor referred to Garcia’s

testimony that the defendant told Ruiz ‘‘that he had kicked a crackhead in

the head.’’ Additionally, the prosecutor referred to Ruiz’ testimony that,

following the murder, Mark told her ‘‘that they had killed a crackhead and

took his backpack.’’

9 The state argues that this court should decline to review the defendant’s

claim because it is inadequately briefed. In support of this argument, the

state asserts that the defendant has violated Practice Book § 67-4 (d) (3)

by failing to include in his brief the complete factual and procedural history

underlying the claim, which included numerous discussions between the

court and counsel, as well as rulings made by the court. We agree with

the state that the defendant failed to provide this court with a complete

explication of the relevant arguments and rulings that were made at trial,

a failure that certainly was highlighted by the completeness of the state’s

brief. Despite this deficiency with respect to the presentation of the appeal,

the defendant’s brief included enough of a recitation and discussion of the

underlying facts and references to the record that we are able adequately

to ascertain the nature of the defendant’s claim and the rulings on which

it is based. Accordingly, we will review the claim.

10 It does not appear that counsel, at a later time, attempted to provide

additional support for his belief.

11 The defendant argues that the court’s error in restricting his crossexamination of Tirado ‘‘was further compounded when the court allowed
the [state] to solicit improper information regarding the defendant without

a good faith basis or without a proper legal basis.’’ Beyond observing that

the defendant has not provided any analysis for his claim of ‘‘compounded’’

error, we observe that, because the defendant has not adequately presented

to this court any claim of error with respect to a ruling permitting the state

to inquire with respect to specific instances of misconduct involving the

defendant, such a claim is not before us. See Practice Book § 67-4.

12 The state urges us to decline to review this claim on the ground that

the defendant has not adequately briefed the claim. The state argues that

the defendant’s recitation of facts in support of the claim does not satisfy

Practice Book § 67-4 (d) (5), that the defendant did not separately identify

and analyze the claim in compliance with Practice Book § 67-4 (d), but

incorporated his discussion and analysis of this claim with the claim we

addressed in part III of this opinion, and that the claim is inadequately

analyzed because the analysis does not surpass abstract assertion.

The defendant’s recitation of necessary facts and citations to the record

is not as complete as that provided by the state, and, inexplicably, the

defendant has intertwined this claim with the unrelated claim of instructional

error that we addressed in part III of this opinion. Making matters even

more confusing, the ‘‘Statement of the Issues’’ set forth in the defendant’s

brief does not refer either to his third claim or the present claim, but to a

prosecutorial impropriety claim that is not part of this appeal. Nonetheless,

from the defendant’s statement of the joint claim set forth in the table of

contents and in the body of the defendant’s brief, we are sufficiently able

to identify that the claim has been made. From the factual basis recited,

which, we observe for the second time in this opinion, is not as complete

as that provided by the state, we are able to discern the factual basis of

the claim. Also, guided by section headings in the brief, we are able to

identify those portions of the brief in which this claim is analyzed. Although

the analysis of the claim is conclusory in nature, it nevertheless includes

the defendant’s view of the relevant events that transpired at trial, and it

includes a standard of review and a discussion of case law that the defendant

believes is persuasive. Although the analysis of this claim does not exemplify

the spirit of our rules of practice, in light of the foregoing, we will reach

the merits of the claim.

13 The jury’s note in the present case is not entirely clear, an observation

which helps to explain any miscommunication between the jury and the

court with respect to playback. With respect to the witnesses at issue, the

note describes topics concerning which the jury wished to hear playback.

It appears that, with respect to the playback of the testimonies of Garcia

and Olivencia, the jury did not specify whether it desired playback of direct

examination, cross-examination, or both. With respect to Ruiz’ testimony,

the jury set forth the topics concerning which it wished to hear playback

and, nearby, wrote ‘‘entire testimony.’’

14 The jury note requested playback with respect to ‘‘what [Garcia] saw

from the time they parked until they get back to 2nd Ave[nue] [and] the

kitchen,’’ testimony from Garcia about the ‘‘Time Frame’’ of the ‘‘First Fight,’’

and testimony from Garcia about ‘‘going through the bag.’’

15 With respect to defense counsel’s argument that the court’s response

to the jury’s request for playback was not sufficiently prompt, the court

recognized that there had been a delay in responding to the various requests

by the jury because it ‘‘got each [of the attorneys] involved’’ in identifying

what had been requested and there was a disagreement concerning what

was necessary. The court stated that ‘‘it took a little time to reach an

agreement as to where in the testimony you agreed that that’s what the

jurors happened to be requesting.’’

16 In State v. Gould, 241 Conn. 1, 12, 695 A.2d 1022 (1997), our Supreme

Court stated that Practice Book § 42-26 ‘‘generally provides for the rereading

of testimony in open court under circumstances . . . in which the court

reporter must read back trial testimony from stenographic notes or locate

and play back a recorded voice tape of such testimony on a tape player.’’

17 We recognize that, in contrast with the jury’s request for playback in

the present case, in Rivera the jury explicitly requested playback of only

the witness’ direct examination. State v. Rivera, supra, 223 Conn. 48; see

also footnote 13 of this opinion.

18 The state argues, and we agree, that the defendant’s appellate claim

appears to pertain solely to the admissibility of his written confession.

Beyond discussing the circumstances surrounding the making of his written

statement, the defendant does not analyze any statements that he made

orally to Tirado, or Tirado’s testimony with respect to such oral statements.
Nonetheless, we observe that our analysis with respect to the issues of

custody and the voluntariness of the defendant’s confession apply with equal

force to the admissibility of the written confession and any related oral

statements made by the defendant during his police interview.

19 We will resolve the defendant’s challenge to the court’s conclusion with

respect to custody mindful that, even if the defendant could prevail with

respect to this conclusion, he would not necessarily be entitled to relief. In

this appeal, the defendant has not adequately raised a claim with respect

to the court’s conclusion that he waived his Miranda rights before he gave

his written statement to the police.

20 Having resolved the merits of the defendant’s claim, we observe that,

even if we were we to conclude that the court was required to suppress

the defendant’s written statement to the police, we would not overturn the

judgment from which he appeals. This is because, to a large extent, the

written statement was cumulative of other evidence that is not challenged

in this appeal, specifically, Tirado’s testimony that the defendant made many

incriminatory verbal statements to him during his interrogation, including

that he ‘‘stomp[ed] on the victim’s head’’ when he came upon Mark striking

the victim with a rock. See footnote 17 of this opinion.