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*********************************************** 
STATE OF CONNECTICUT v. ROBERT A. CANE

(AC 40657)

Alvord, Moll and Flynn, Js.

Syllabus

Convicted of the crimes of criminal possession of a firearm, criminal possession of ammunition and possession of a controlled substance with intent

to sell, the defendant appealed to this court, claiming, inter alia, that

the trial court improperly denied his motion to suppress certain evidence

and improperly granted the state’s motion to join two separate cases

against him for trial. The defendant had been charged, in one of the cases,

with kidnapping and assault in connection with his alleged conduct with

two women, D and P, at his home. The jury found him not guilty of all

charges in that case. The police had conducted surveillance of the

defendant’s home and wanted to speak to him outside of the home

because it was reported that he had a firearm when the kidnappings

and assaults were alleged to have occurred. While one officer was

speaking with the defendant on a phone, the defendant went outside

of his home several times and walked near one of his cars that was

parked in the driveway before reentering the home. The police saw the

car’s lights flash and heard its engine run. The defendant told the officer

on the phone that he had the keys to the car but had not started it

remotely. After several hours of no contact with the police, the defendant

came outside of his home again and walked toward a fence that bordered

his property where he was arrested. The police then conducted a protective sweep of the home. The next day, pursuant to search warrants, the

police seized various items from the defendant’s home and car that

included weapons, ammunition, marijuana and other drug related materials. Held:

1. The defendant could not prevail on his claim that the trial court erroneously denied his motion to suppress the evidence that the police seized

from his home and car:

a. The warrantless search of the defendant’s home after he was arrested

and in police custody constituted a justifiable, protective sweep of the

home in light of specific, articulable facts that supported a reasonable

belief by the police that a third party who posed a danger to those on

the arrest scene was inside the home where firearms were believed to

be present; the police reported that they saw movement within the home

and that there were multiple cars on the defendant’s property, there

had been a report of a serious assault of D and P that allegedly occurred

in the home within the prior twenty-four to thirty-six hours, D and P

had reported that the defendant had guns in the house and had people

watch the house, and, in light of the defendant’s behavior, the police

were entitled to discredit his statements that no one was in the home

and that he did not possess weapons or start the car in his driveway.

b. This court found unavailing the defendant’s unpreserved claims that

he was constructively seized by the police and that they lacked probable

cause to search his car: there was no way to know whether a violation

of constitutional magnitude in fact had occurred, as the record was

insufficient to determine whether the police ordered the defendant to

exit his home when they first attempted to make contact with him or

how many officers surrounded the home at the time that the constructive

entry into the home allegedly occurred; moreover, the information that

the police affiants provided in their search warrant application supported

a determination that probable cause existed to search the defendant’s

vehicle, as the affiants’ averments that they observed the defendant

walk back and forth to the vehicle and heard it being locked or unlocked

supported reasonable inferences that he had access to the vehicle when

the police observed his movements or prior to their arrival, and that

the defendant may have moved evidence from the home to the vehicle,

and the defendant’s reliance on trial testimony to support his assertion

that the police lacked probable cause to search the car because no

officer saw him open it or any of its hatches was unavailing, as only

information that was before the issuing judge at the time the warrant
was signed could be considered in determining whether the warrant

was based on probable cause.

2. The trial court did not commit plain error when it granted the state’s

motion for joinder, as the defendant, personally and through counsel,

expressly stated that he had no objection to joinder; even if the defendant’s waiver of his claim concerning joinder did not preclude him from

prevailing under the plain error doctrine, he could not demonstrate that

the claimed error was so clear and harmful that a failure to reverse the

judgment would result in manifest injustice, because even though the

defendant claimed that joinder prevented him from testifying concerning

the firearms charges but that he had reason not to testify with respect

to the assault and kidnapping counts, he did not move to sever the

informations or indicate that he wanted to testify concerning some

counts of the informations but not others, even when the court canvassed

him regarding his decision not to testify.

3. The defendant could not prevail on his unpreserved claim of judicial bias,

which was based on his assertion that the trial court, in its pretrial

memorandum of decision on his motion to suppress, had found him

guilty of the kidnapping and assault charges prior to any evidence when

it referred to D and P as victims and then considered those charges

in sentencing him, the record not having supported the defendant’s

contention that the court considered the kidnapping and assault charges

when it sentenced him; although the court mentioned the kidnapping

and assault charges when it summarized the events that led to the

discovery of the firearms, ammunition and marijuana, it had referred

to those charges as the ‘‘original allegations’’ and thereafter focused on

the events that occurred on the day of the defendant’s arrest, its reference to the defendant as violent was done in the context of reviewing

his criminal history, not with respect to the kidnapping and assault

charges, and, therefore, because the record did not provide a basis for

the defendant’s claim of judicial bias, there was no manifest injustice that

warranted reversal of the judgment pursuant to the plain error doctrine.

Argued April 10—officially released September 24, 2019

Procedural History

Two substitute informations charging the defendant,

in the first case, with four counts of the crime of kidnapping in the first degree, two counts each of the crimes

of kidnapping in the first degree with a firearm, assault

in the first degree and intimidation of a witness, and

with one count of the crime of assault in the second

degree, and, in the second case, with three counts of

the crime of criminal possession of ammunition, two

counts of the crime of criminal possession of a firearm,

and with one count each of the crimes of criminal possession of a pistol or revolver, possession of a controlled substance with intent to sell, operation of a drug

factory and possession of a controlled substance with

intent to sell within 1500 feet of a school, brought to

the Superior Court in the judicial district of New Britain,

geographical area number fifteen, where the court, Keegan, J., granted the state’s motion for joinder; thereafter, the court denied the defendant’s motion to suppress certain evidence; subsequently, the matter was

tried to the jury; thereafter, the state filed a substitute

information in the second case, charging the defendant

with three counts of the crime of criminal possession

of ammunition, two counts of the crime of criminal

possession of a firearm, and one count each of the

crimes of possession of a controlled substance with

intent to sell and possession of a controlled substance

with intent to sell within 1500 feet of a school; verdict

of guilty of three counts of criminal possession of
ammunition, two counts of criminal possession of a

firearm, and one count each of possession of a controlled substance with intent to sell and possession of

a controlled substance with intent to sell within 1500

feet of a school; subsequently, the court granted the

defendant’s motion for a judgment of acquittal as to

the charge of possession of a controlled substance with

intent to sell within 1500 feet of a school and rendered

judgment in accordance with the verdict, from which

the defendant appealed to this court. Affirmed.

Daniel M. Erwin, for the appellant (defendant).

Michele C. Lukban, senior assistant state’s attorney,

with whom, on the brief, were Brian Preleski, state’s

attorney, and Helen J. McLellan, senior assistant state’s

attorney, for the appellee (state).
Opinion

ALVORD, J. The defendant, Robert A. Cane, appeals

from the judgment of conviction, rendered following a

jury trial, of two counts of criminal possession of a

firearm in violation of General Statutes § 53a-217 (a)

(1), three counts of criminal possession of ammunition

in violation of General Statutes § 53a-217 (a) (1), and

one count of possession of a controlled substance with

intent to sell in violation of General Statutes § 21a-277

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

(1) erroneously denied his motion to suppress evidence

that was obtained in violation of his right to be free

from unreasonable searches and seizures, (2) improperly granted the state’s motion for joinder of the two

separate cases against him for trial, and (3) demonstrated judicial bias, thereby violating his right to due

process. We affirm the judgment of the trial court.

The jury reasonably could have found the following

facts. On October 7, 2013, the New Britain Police

Department received a complaint that the defendant

had kidnapped and assaulted two women, D and P, at

his home, located at 830 Slater Road in New Britain,

during the weekend of October 5 and 6, 2013. D’s son

reported that D was in the intensive care unit at the

Hospital of Central Connecticut in New Britain as a

result of her injuries.

At approximately 3:30 p.m. on October 7, 2013, as the

police began to investigate these allegations, Michael

Steele and Kyle Lamontagne, two plainclothes detectives with the New Britain Police Department, went

to the defendant’s home. They conducted surveillance

from an unmarked police vehicle parked across the

street from the defendant’s home in order to determine

whether the defendant was at his home and to secure

the premises. At approximately 4 p.m., Karl Mordasiewicz, also a detective with the New Britain Police

Department, relieved Detective Steele from his position

in the unmarked vehicle. Detectives Lamontagne and

Mordasiewicz eventually left the vehicle and began to

surveil the defendant’s home from the rear porch of a

neighboring property.2

Additional police officers arrived shortly thereafter.

The police wanted to speak to the defendant about the

kidnapping and assault allegations and, because the

defendant was reported to have had a firearm when

the kidnappings and assaults were alleged to have

occurred, they wanted to speak to the defendant outside

of his home. Arthur Powers, Jr., a sergeant with the

New Britain Police Department, who had known the

defendant since the 1970s, called the defendant’s cell

phone number to try to encourage him to speak voluntarily with the officers.3

While Sergeant Powers was on the phone with the

defendant, Detectives Lamontagne and Mordasiewicz
watched the defendant exit his home several times,4

walk in the area near his Cadillac, and reenter his home.

At one point, Detectives Lamontagne and Mordasiewicz

observed the lights on the Cadillac flash and heard the

engine run for approximately fifteen seconds. Sergeant

Powers asked the defendant if he had started the Cadillac, and the defendant responded that, although he had

the keys, he had not started the car remotely. The defendant eventually walked toward the fence that bordered

his property, at which time he was arrested.5 After

arresting the defendant, the police conducted a protective sweep of the defendant’s home.

The next day, on October 8, 2013, the police applied

for a search and seizure warrant pertaining to the defendant’s residence. The search warrant was issued at noon

and executed at approximately 12:55 p.m. On the first

floor of the defendant’s home, the police found a rifle,

which was located in a closet, and glassine bags, which

were found in the kitchen. In a bedroom on the second

floor of the defendant’s home, the police found three

boxes of Blazer Brass brand ammunition, a gun holster,

a gun cleaning kit, a ‘‘loader’’ that assists with loading

ammunition into a magazine for a firearm, and a plastic

bag containing ten shotgun shells. In addition, the police

found a metal box containing various types of ammunition in the closet of that bedroom. In a different bedroom also on the second floor of the defendant’s home,

the police found a small amount of marijuana, various

lighting and power sources, and a scale. In the attic,

the police found a large bag, which weighed approximately ten pounds, containing marijuana, sticks and

stems of marijuana plants, cardboard material, and soil.

The police did not locate all of the evidence they

had been seeking in the defendant’s home, including a

firearm and clothing associated with the kidnapping

and assault allegations. Therefore, later that same day,

the police applied for a search warrant pertaining to a

Cadillac owned by the defendant. Although there had

been several additional vehicles on the defendant’s

property, the police applied for a search warrant only

with respect to the Cadillac because the police had

observed the defendant walking in the area of that vehicle, and it had been the vehicle that appeared to have

been remotely started. The warrant was issued and

executed that evening. Inside a bag in the trunk of the

Cadillac, the police found a nine millimeter Smith and

Wesson handgun, two magazines loaded with ammunition, and a gun holster.

The state initially charged the defendant in two separate informations. In the first information, filed in

Docket No. CR-13-0270252-T, the defendant was

charged with two counts of kidnapping in the first

degree with a firearm in violation of General Statutes

§ 53a-92a (a), two counts of kidnapping in the first

degree in violation of General Statutes § 53a-92 (a) (2)
(A), two counts of kidnapping in the first degree in

violation of § 53a-92 (a) (2) (C), one count of assault

in the first degree in violation of General Statutes § 53a59 (a) (1), one count of assault in the first degree in

violation of § 53a-59 (a) (3), one count of assault in the

second degree in violation of General Statutes § 53a-60

(a) (2), and two counts of intimidation of a witness in

violation of General Statutes § 53a-151a (a) (2). In the

second information, filed in Docket No. CR-13-0270260-

S, the defendant was charged with two counts of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1), three counts of criminal possession of ammunition in violation of § 53a-217 (a) (1),

one count of possession of a controlled substance with

intent to sell in violation of § 21a-277 (b), and one count

of possession of a controlled substance with intent to

sell within 1500 feet of a school in violation of General

Statutes § 21a-278a (b) On September 29, 2016, the state

filed a motion for joinder of the two informations.6 At

a hearing on October 24, 2016, the defendant stated

that he had no objection to the joinder, and the court

granted the state’s motion.

A jury trial followed, at the conclusion of which the

jury acquitted the defendant of the charges set forth in

the first information and convicted him of the charges

set forth in the second information. The court accepted

the verdict but thereafter granted the defendant’s

motion for a judgment of acquittal as to the count of

possession of a controlled substance with intent to sell

within 1500 feet of a school. The court imposed a total

effective sentence of thirteen years of imprisonment.

This appeal followed. Additional facts and procedural

history will be set forth as necessary.

I

The defendant first claims that the court erroneously

denied his motion to suppress evidence that was

obtained in violation of his right to be free from unreasonable searches and seizures under the fourth amendment to the United States constitution7 and article first,

§ 7, of the Connecticut constitution.8 Specifically, he

argues that the evidence should have been suppressed

because (1) the police conducted an unlawful protective

sweep of his home, (2) he was constructively seized by

the police, and (3) the search warrant for his vehicle

was not supported by probable cause.

The following additional facts and procedural history

are relevant to our resolution of these claims. On October 8, 2013, Adam Rembisz, a detective with the New

Britain Police Department, and Michael Grossi, a sergeant with the New Britain Police Department (affiants), applied for a search and seizure warrant pertaining to the defendant’s residence. The affidavit in

support of the application for the search warrant

detailed the information that the police had received

with respect to the kidnapping and assault allegations.
In addition, it averred, in relevant part, that ‘‘a protective

sweep of the house was conducted and in plain view

a roll of duct tape, handcuffs, (2) laptop computers,

and (1) [iPad] was observed inside the living room. In

a second floor bedroom officers observed an ax handle,

baseball bat, and a cane.9

[Detective Kevin] Artruc also

observed a green leafed substance, which through his

past training, [he] believes to be marijuana.’’10 (Footnote added.)

As we previously have stated, the affiants applied for

a search warrant pertaining to the defendant’s vehicle

after they executed the search warrant pertaining to the

defendant’s home. The affidavit submitted in support

of the application for the second search warrant

averred, in addition to the information that had been

contained in the application for the first warrant, that:

‘‘[N]o handgun, yellow shirt, steel toe boots were

located as described by the victim, however during the

incident prior to [the defendant’s] being arrested he

was observed to walk back and forth to a black Cadillac,

bearing registration 137XHF. Responding officers heard

the alarm that is commonly sounded when the vehicle

is locked or unlocked with a remote as [the defendant]

walked to the vehicle. [Department of Motor Vehicle]

records show that the said vehicle is registered to the

defendant. . . . [The] affiants believe that [the defendant] could have brought evidence to the vehicle from

the crime scene within the home prior to surrendering

to the police as the handgun, dog collar, yellow shirt,

[and] steel toe boots were not located within the residence.’’

Prior to trial, the defendant filed a motion to suppress

‘‘all evidence obtained through warrantless searches of

his home and automobile on . . . October 7, 2013,’’ on

the grounds that (1) ‘‘there were no exigent circumstances or any other reasons’’ to support the protective

sweep, and the evidence would not be admissible under

the inevitable discovery doctrine, and (2) ‘‘there were

no exigent circumstances or any other reasons’’ to support the ‘‘warrantless search’’ of the defendant’s vehicle,

and the evidence would not be admissible under the

inevitable discovery doctrine.

In his memorandum of law in support of his motion,

the defendant argued that with respect to the protective

sweep, ‘‘there is no evidence . . . that the police had

any information whatsoever that there may have been

any other people inside [the defendant’s] home . . . .’’

As to the search of the defendant’s vehicle, the defendant argued that ‘‘[t]here were no ‘exigent circumstances’ that would have allowed the police to perform

the warrantless search of [the defendant’s] automobile.’’

On November 1 and 2, 2016, the court held a hearing

on the defendant’s motion to suppress. The court heard

testimony from the defendant and several members of
the New Britain Police Department. In addition, it

admitted into evidence photographs of the defendant’s

property, a recording of the phone conversation

between Sergeant Powers and the defendant, and copies of the search warrants, which included the warrant

applications and the affidavits supporting the applications.

At the hearing, the defendant argued that there was

no evidence that any other person was inside of the

defendant’s home to justify the protective sweep. The

defendant did not make any additional arguments with

respect to the search of the vehicle.

On November 3, 2016, the court issued its memorandum of decision denying the defendant’s motion to suppress. The court determined that (1) the protective

sweep was lawful and, even if it were not lawful, the

evidence would nonetheless be admissible pursuant to

the inevitable discovery doctrine, and (2) the search of

the defendant’s vehicle had been executed pursuant to

a search warrant.

The court made the following findings of fact in support of its determination: ‘‘On October 7, 2013, at

approximately 1:30 p.m., the New Britain police were

informed of a serious assault upon two women in a

home located at 830 Slater Road. Officer Mark DePinto

spoke with [D’s son], who relayed that his mother and

another woman were tied up, severely beaten and ultimately escaped from 830 Slater Road. [D’s son] also

relayed that his mother was currently in the hospital,

in the intensive care unit. The location of the second

female was unknown at this time. [D’s son] told DePinto

that the home belonged to the defendant . . . and that

[the defendant] had indicated he would engage in a

shootout with the police if they came to the house.

‘‘The New Britain police patrol division prepared a

plan of action: locate [the defendant], any witnesses,

the second female injured and present this to the detectives for follow-up investigation. Plainclothes detectives were assigned to surveil 830 Slater Road, and

other officers began to gather intelligence about [the

defendant]. In reviewing his criminal history, the

investigating officers learned [that the defendant] had

serious felony convictions and, in light of that information that a weapon was used during the assaults and

that [the defendant] possessed weapons in the house,

the special response team was also called to the scene.

At approximately 2:15 p.m., [Sergeant] Carlos Burgos

met with officers in an area near 830 Slater Road to

discuss potential scenarios and the safety concerns for

the neighbors in the area as well as for the

responding officers.

‘‘Photographs of the property confirm the testimony

describing the area. There was a brick, two-story dwelling with a steel fence around a portion of the front yard,
and enclosed part of the driveway, extending toward a

garage in the rear of the property. A gate across the

driveway was locked and from the street, a black car

could be seen. There was no contact with [the defendant] up to this time. Simultaneous to the surveillance,

other officers were gathering information and relaying

it to Burgos and others at the Slater Road address. After

5:30 p.m., the police learned that a former girlfriend

of [the defendant] had spoken to him, and the police

attempted to reach the defendant over the telephone.

The police then used sirens and other loud noises to

see if anyone in the house would respond. [The defendant] then exited his house. A home phone number for

[the defendant] was obtained, and verbal contact was

made first by a dispatch officer and then by [Sergeant]

Arthur Powers. Powers negotiated with [the defendant]

for over thirty-five minutes to comply with police directives to go to the fence in the front of the house and

speak with the police. The recording of the conversation

was entered as an exhibit during the hearing. [The

defendant] was angry, agitated and uncooperative with

both Powers and the police at the house. [The defendant] repeatedly used profane and discriminatory language, often shouting his tirades. He threatened to

loosen his dog upon the police officers and taunted the

police to shoot him. [The defendant] was distrustful of

the police. From the early moments of the recorded

conversation, [the defendant] demeaned and blamed

the two women victims.

‘‘On-scene officers observed [the defendant] pacing

the property, going in and out of the house and, at

one point, disrobing, purportedly to show [that] he was

unarmed. He was seen holding a knife. One officer

saw the rear taillights of the black automobile in the

driveway turn on, and when Powers asked him if he

turned the car on remotely, [the defendant] denied it.

Other officers observed movement inside the house at

multiple windows.

‘‘Other officers continued to seek information regarding the incident. DePinto learned from [the defendant’s]

former girlfriend that she had been to 830 Slater Road

over the preceding weekend and had seen the two

females, who were still present when she left. She also

indicated that [the defendant] was acting irrationally

and out of control. A written statement by [D’s son]

was taken from 5:15 to 5:50 p.m. There, the police

learned that [D] had told him that [the defendant] was

affiliated with the Outlaw motorcycle gang, he had guns

in the house and that he had people watching his house

when he wasn’t home. They also learned that items

of potential evidentiary value could be found within

the house.

‘‘At approximately 6:30 p.m., [the defendant]

approached the fence to speak with the police, and he

was seized by officers and arrested for breach of the
peace, threatening and interfering with the police. [Lieutenant John] Rodriguez made the decision to conduct

a protective sweep of the house. He wanted to ensure

that there were no victims inside the home, he wanted

to ensure that there was no one to endanger officers

on the scene, and he wanted to ensure that any evidence

would be secure. Within two to three minutes, the

sweep was concluded. A search warrant for 830 Slater

Road was secured on October 8, 2013, at noon; a search

warrant for the Cadillac was secured on the same day

at 5:17 p.m.’’11

A

The defendant first argues that the court erred in

denying his motion to suppress because the protective

sweep was unlawful. Specifically, he argues that the

police had ‘‘no basis to believe a third party was in the

home,’’ and, therefore, they lacked an articulable basis

on which to justify the protective sweep. We disagree.

The court, in its memorandum of decision denying

the defendant’s motion to suppress, determined that

the protective sweep was lawful. It found: ‘‘Based upon

all of the articulable facts and rational inferences known

to the New Britain police at the time of the defendant’s

apprehension, a reasonably prudent officer would conclude the following: a serious assault of two women

had occurred within the prior twenty-four to thirty-six

hours at 830 Slater Road. One victim was being treated

for serious injuries at the hospital. That victim told her

son that she was tied up, beaten, hit with a pistol and

physically degraded. She said that the defendant had

guns in the house and he had people [who] watched

his house. After several hours of no contact [between

the police and] the defendant while the home was under

surveillance, he exited the house. He was uncooperative

with the police, and his behavior was erratic, agitated

and at times bizarre. The defendant had a history of

felony convictions. Movement was seen within the

house and a car in the driveway was started, with the

defendant denying that he did it. Based upon the defendant’s behavior on scene, the police were within their

rights to disbelieve the defendant’s statements that he

possessed no weapons and no [that] one else was inside

the house.’’12

‘‘[T]he standard of review for a motion to suppress

is well settled. 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, [our

review is plenary, and] 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. Kendrick, 314 Conn. 212, 222, 100 A.3d 821

(2014). Accordingly, the trial court’s legal conclusion

regarding the applicability of the protective sweep doc-
trine is subject to plenary review. See id.; see also State

v. Spencer, 268 Conn. 575, 585, 848 A.2d 1183 (2004).

‘‘It is axiomatic that the police may not enter the

home without a warrant or consent, unless one of the

established exceptions to the warrant requirement is

met.’’ (Internal quotation marks omitted.) State v. Kendrick, supra, 314 Conn. 224. ‘‘All three exceptions [to

the warrant requirement], the exigent circumstances

doctrine, the protective sweep doctrine and the emergency doctrine, must be supported by a reasonable

belief that immediate action was necessary.’’ Id., 225.

‘‘The protective sweep doctrine . . . is rooted in the

investigative and crime control function of the police.

. . . As its name suggests, the purpose of the doctrine

is to allow police officers to take steps to assure themselves that the house in which a suspect is being, or

has just been, arrested is not harboring other persons

who are dangerous and who could unexpectedly launch

an attack.’’ (Internal quotation marks omitted.) Id., 229.

‘‘Recognizing the often competing interests of the individual’s expectation of privacy and the officers’ safety,

the court [in Maryland v. Buie, 494 U.S. 325, 327, 110

S. Ct. 1093, 108 L. Ed. 2d 276 (1990)] . . . determined

that there were two levels of protective sweeps. Concerning the first tier of protective sweeps, the court

concluded that as an incident to the arrest the officers

could, as a precautionary matter and without probable

cause or reasonable suspicion, look in closets and other

spaces immediately adjoining the place of arrest from

which an attack could be immediately launched. . . .

Concerning the second tier of protective sweeps, the

court concluded: Beyond that . . . we hold that there

must be articulable facts which, taken together with

the rational inferences from those facts, would warrant

a reasonably prudent officer in believing that the area

to be swept harbors an individual posing a danger to

those on the arrest scene.’’13 (Citation omitted; internal

quotation marks omitted). State v. Spencer, supra, 268

Conn. 588.

‘‘Although the United States Supreme Court never

has ruled on the constitutionality of a protective sweep

of a home, incident to an arrest occurring just outside

that home, the federal courts that have addressed the

issue uniformly have held that the reasoning of Buie

applies to that situation.’’ Id., 589.

In Spencer, our Supreme Court recognized ‘‘that Buie

was grounded in the principle that arresting officers

have an immediate interest in taking steps to assure

themselves that the house in which a suspect is being,

or has just been, arrested is not harboring other persons

who are dangerous and who could unexpectedly launch

an attack. . . . This important safety interest is not

diminished simply because the arrest has occurred just

outside of the home.’’ (Citation omitted; internal quotation marks omitted.) Id., 590; see also United States
v. Colbert, 76 F.3d 773, 776 (6th Cir. 1996) (‘‘in some

circumstances, an arrest taking place just outside a

home may pose an equally serious threat to the

arresting officers’’).14

Within the first tier of protective sweeps, arresting

officers can ‘‘as a precautionary matter and without

probable cause or reasonable suspicion, look in closets

and other spaces immediately adjoining the place of

arrest from which an attack could be immediately

launched.’’ Maryland v. Buie, supra, 494 U.S. 334. In

the present case, the defendant was arrested outside

of his home, near the fence line bordering his property.

Therefore, the defendant’s home cannot be characterized as a space ‘‘ ‘immediately adjoining’ ’’ the place of

the arrest. See State v. Spencer, supra, 268 Conn. 591.

We therefore must determine whether the search in the

present case was justifiable as a second tier protective sweep.

The second tier of protective sweeps under Buie

encompasses searches of areas beyond those spaces

immediately adjoining the place of arrest. To satisfy

the fourth amendment, a second tier protective sweep

must be supported by ‘‘articulable facts which, taken

together with the rational inferences from those facts,

would warrant a reasonably prudent officer in believing

that the area to be swept harbors an individual posing

a danger to those on the arrest scene.’’ Maryland v.

Buie, supra, 494 U.S. 334.15 In this case, because the

defendant was in custody, the focus of our inquiry is

‘‘whether the arresting officers reasonably believed that

someone else inside the [home] might pose a danger to

them. . . . In other words, we examine whether there

were specific and articulable facts showing that another

individual, who posed a danger to the officers or others,

was inside the apartment at the time of the arrest. . . .

Lack of information [concerning the presence of a third

party] cannot provide an articulable basis upon which

to justify a protective sweep.’’ (Citations omitted;

emphasis altered; internal quotation marks omitted.)

State v. Spencer, supra, 268 Conn. 593–94.

In the present case, the following facts are sufficiently

specific and articulable to support a reasonable belief

that the defendant’s home harbored a third party posing

a danger to those on the arrest scene. First, the police

reported that they saw movement within the defendant’s home.16 Second, the police reported that there

were multiple cars on the defendant’s property. Third,

it was reported that a car in the driveway was started,

and the defendant denied that he was the person who

started it. There had been a report of a serious assault

of two women that was alleged to have occurred within

the prior twenty-four to thirty-six hours at the defendant’s home. One of the women was reportedly being

treated for serious injuries and alleged that she was hit

with a pistol, indicating the presence of a handgun
inside the home that might be used by another individual within the home, thereby posing a danger to police

officers and others. In addition, the woman had

reported that the defendant had guns in the house and

that he had people who watched his house.17 The defendant’s behavior was erratic, agitated, and at times

bizarre. On the basis of the defendant’s behavior on the

scene, the court concluded that the police were within

their right to discredit the defendant’s statements that

he possessed no weapons and that no one else was

inside the house.

These facts are sufficiently specific and articulable

to support a reasonable belief that a third party was

inside of the home and, on the basis of the information

that had been provided to the police regarding the presence of firearms at the home, that the third party posed

a danger to those on the arrest scene. Accordingly, we

conclude, on the basis of the totality of all the facts

and the reasonable inferences drawn therefrom, that

the warrantless search of the defendant’s home was a

justifiable protective sweep under Buie.

B

The defendant concedes that his next two claims

with respect to his motion to suppress are unpreserved

and requests review pursuant to State v. Golding, 213

Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by

In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).

Generally, this court is not required to consider a claim

‘‘unless it was distinctly raised at the trial or arose

subsequent to the trial.’’ Practice Book § 60-5. It is well

established, however, that an unpreserved claim is

reviewable under Golding when ‘‘(1) the record is adequate to review the alleged claim of error; (2) the claim

is of constitutional magnitude alleging the violation of

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

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

the state has failed to demonstrate harmlessness of the

alleged constitutional violation beyond a reasonable

doubt.’’ (Footnote omitted.) State v. Golding, supra,

239–40. ‘‘The appellate tribunal is free to respond to

the defendant’s claim by focusing on whichever Golding

prong is most relevant. . . . [T]he inability to meet any

one prong requires a determination that the defendant’s

claim must fail.’’ (Citation omitted; internal quotation

marks omitted.) State v. Esquilin, 179 Conn. App. 461,

475, 179 A.3d 238 (2018).

1

The defendant claims that the police ‘‘laid siege to

his home, roused and summoned him with coercive

force, and constructively seized him’’ under the fourth

amendment to the United States constitution. He also

argues that ‘‘[t]his court should adopt a rule against

constructive entry’’ under our state constitution
‘‘regardless of [our analysis under] the fourth amendment.’’ The state maintains, inter alia, that the record

is inadequate for review of the defendant’s unpreserved

claim and, therefore, the claim fails to satisfy the first

prong of Golding. We agree with the state.

In United States v. Allen, 813 F.3d 76 (2d Cir. 2016),

the United States Court of Appeals for the Second Circuit explained the constructive entry doctrine: ‘‘Under

[the constructive entry] doctrine, when officers engage

in actions to coerce the occupant outside of the home,

they ‘[accomplish] the same thing’ and achieve the same

effect as an actual entry, and therefore trigger [the]

protections [of Payton v. New York, 445 U.S. 573, 100

S. Ct. 1371, 63 L. Ed. 2d 639 (1980)].’’18 United States

v. Allen, supra, 81. The court declined to apply the

constructive entry doctrine, but noted that courts

applying the doctrine ‘‘determine whether a nonexhaustive list of factors, such as the events immediately preceding or accompanying the order, the number

and location of officers, the nature and content of the

words used to transmit the command, and whether

police guns are holstered or brandished, constitute circumstances sufficient to trigger Payton . . . .’’ Id., 88.

In reviewing a claim of constructive entry, a court must

determine whether ‘‘[t]he police show of force and

authority was such that a reasonable person would have

believed he was not free to leave.’’ (Internal quotation

marks omitted.) United States v. Morgan, 743 F.2d 1158,

1164 (6th Cir. 1984), cert. denied, 471 U.S. 1061, 105 S.

Ct. 2126, 85 L. Ed. 2d 490 (1985).19

In the present case, the court found that ‘‘[a]fter 5:30

p.m. . . . the police attempted to reach the defendant

over the telephone. The police then used sirens and

other loud noises to see if anyone inside the house

would respond. [The defendant] then exited his house.’’

The court further found that the defendant was seized

by officers at approximately 6:30 p.m., when he was

placed under arrest for breach of the peace, threatening,

and interfering with the police. As we previously have

noted, the defendant did not argue before the trial court

that the police constructively entered the defendant’s

home. The trial court, therefore, did not make any additional factual findings with respect to the conduct of

the police when they first attempted to make contact

with the defendant and whether the police show of

force and authority was such that a reasonable person

would have believed he was not free to leave. It is

well established, however, that ‘‘when reviewing the

constitutionality of an alleged seizure, we must parse

the entire record, and not only the trial court’s express

findings.’’ State v. Edmonds, 323 Conn. 34, 64, 145 A.3d

861 (2016).

‘‘Our Supreme Court has clarified that [a] record is

not inadequate for Golding purposes because the trial

court has not reached a conclusion of law if the record
contains the factual predicates for making such a determination. . . . Nevertheless, [i]f the facts revealed by

the record are insufficient, unclear or ambiguous as to

whether a constitutional violation has occurred, we will

not attempt to supplement or reconstruct the record,

or to make factual determinations, in order to decide

the defendant’s claim.’’ (Citation omitted; internal quotation marks omitted.) State v. Morales, 164 Conn. App.

143, 167, 136 A.3d 278, cert. denied, 321 Conn. 916, 136

A.3d 1275 (2016).

In the present case, the record is insufficient to determine whether a constitutional violation has occurred.

First, the record is unclear as to whether the police

ordered the defendant to exit his home when they first

attempted to make contact with him.20 At the suppression hearing, the defendant and Sergeant Burgos

offered conflicting testimony. The defendant testified

that he ‘‘heard over the loudspeaker, Robert Cane, come

out of your house.’’ Sergeant Burgos, however, testified

that, before the defendant first exited the home, one

of the officers used audible sirens to make noise seeking

to alert anyone within the home. Sergeant Burgos did

not testify that a loudspeaker was used.

Second, the record is unclear as to how many police

officers surrounded the defendant’s home at the time

that the constructive entry is alleged to have occurred.21

Although several officers testified that they had been

present at 830 Slater Road, there had been no testimony

as to how many total officers were present and whether

those officers were in a location such that they would

have been visible to the defendant before he exited

his home.

In summary, the record is unclear with respect to

the factual predicates necessary to establish the defendant’s claim on appeal. See State v. Morales, supra, 164

Conn. App. 167 (‘‘[i]f the facts revealed by the record

are . . . unclear . . . as to whether a constitutional

violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual

determinations, in order to decide the defendant’s

claim’’ [internal quotation marks omitted]). In addition,

the state was not put on notice of this claim and, accordingly, was not given an opportunity to put on evidence

regarding this claim.22 See State v. Chemlen, 165 Conn.

App. 791, 814–15, 140 A.3d 347 (holding record inadequate for review under first prong of Golding because

state not put on notice of claim made on appeal and,

thus, not given opportunity to put on evidence regarding

claim, and because record did not contain adequate

facts and state prejudiced by lack of notice), cert.

denied, 322 Conn. 908, 140 A.3d 977 (2016). Because

there is an insufficient record in the present case, there

is no way to know whether a violation of constitutional

magnitude in fact has occurred. See State v. Brunetti,

279 Conn. 39, 55, 901 A.2d 1 (2006). The defendant’s
claim thus fails under the first prong of Golding.

23

2

The defendant next claims that the police lacked

probable cause to search his vehicle. Specifically, he

argues that ‘‘no officer saw the defendant open [the

vehicle],’’ and ‘‘[t]he idea that the defendant could

remotely place a pistol in the trunk of the car is not

remotely realistic.’’ We conclude that the defendant’s

claim fails to satisfy the third prong of Golding.

‘‘Certain well established legal principles guide our

analysis of this issue. Both the fourth amendment to

the United States constitution and article first, § 7, of

the state constitution require a showing of probable

cause prior to the issuance of a search warrant. Probable cause to search exists if . . . (1) there is probable

cause to believe that the particular items sought to be

seized are connected with criminal activity or will assist

in a particular apprehension or conviction . . . and (2)

there is probable cause to believe that the items sought

to be seized will be found in the place to be searched.

. . . Although [p]roof of probable cause requires less

than proof by a preponderance of the evidence . . .

[f]indings of probable cause do not lend themselves to

any uniform formula because probable cause is a fluid

concept—turning on the assessment of probabilities in

particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules. . . . Consequently, [i]n determining the existence of probable

cause to search, the issuing magistrate assesses all of

the information set forth in the warrant affidavit and

should make a practical, nontechnical decision whether

. . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.

. . . Probable cause, broadly defined, [comprises] such

facts as would reasonably persuade an impartial and

reasonable mind not merely to suspect or conjecture,

but to believe that criminal activity has occurred. . . .

In other words, because [t]he probable cause determination is, simply, an analysis of probabilities . . .

[p]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing

of such activity. By hypothesis, therefore, innocent

behavior frequently will provide the basis for a showing

of probable cause; to require otherwise would be to sub

silentio impose a drastically more rigorous definition

of probable cause than the security of our citizens’ . . .

demands. . . . In making a determination of probable

cause the relevant inquiry is not whether particular

conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of noncriminal

acts. . . .

‘‘Furthermore, because of our constitutional preference for a judicial determination of probable cause, and

mindful of the fact that [r]easonable minds may disagree

as to whether a particular [set of facts] establishes
probable cause . . . we evaluate the information contained in the affidavit in the light most favorable to

upholding the issuing judge’s probable cause finding.

. . . We therefore review the issuance of a warrant

with deference to the reasonable inferences that the

issuing judge could have and did draw . . . and we

will uphold the validity of [the] warrant . . . [if] the

affidavit at issue presented a substantial factual basis

for the magistrate’s conclusion that probable cause

existed. . . . Finally, [i]n determining whether the warrant was based [on] probable cause, we may consider

only the information that was actually before the issuing

judge at the time he or she signed the warrant, and the

reasonable inferences to be drawn therefrom.’’ (Citations omitted; internal quotation marks omitted.) State

v. Shields, 308 Conn. 678, 689–91, 69 A.3d 293 (2013),

cert. denied, 571 U.S. 1176, 134 S. Ct. 1040, 188 L. Ed.

2d 123 (2014).

We conclude that the information contained in the

affidavit supported the issuing judge’s determination

that probable cause existed to search the defendant’s

vehicle. The defendant takes issue only with the second

prong of the probable cause requirement, namely,

‘‘[whether] there is probable cause to believe that the

items sought to be seized will be found in the place

to be searched.’’ (Internal quotation marks omitted.)

Id., 689.

As we previously have noted, in the affidavit submitted in support of the application for the second search

warrant, the affiants averred: ‘‘[N]o handgun, yellow

shirt, steel toe boots were located as described by the

victim, however, during the incident prior to [the defendant] being arrested he was observed to walk back and

forth to a black Cadillac, bearing registration 137XHF.

Responding officers heard the alarm that is commonly

sounded when the vehicle is locked or unlocked with

a remote as [the defendant] walked to the vehicle. DMV

records show that the said vehicle is registered to the

defendant. . . . [The] affiants believe that [the defendant] could have brought evidence to the vehicle from

the crime scene within the home prior to surrendering

to the police as the handgun, dog collar, yellow shirt,

[and] steel toe boots were not located within the residence.’’

On appeal, the defendant, citing to the trial transcript,

argues: ‘‘Critically, no officer saw the defendant open

the Cadillac or any of its hatches.’’ As we previously

have stated, however, ‘‘[i]n determining whether the

warrant was based [on] probable cause, we may consider only the information that was actually before the

issuing judge at the time he or she signed the warrant,

and the reasonable inferences to be drawn therefrom.’’

(Emphasis added; internal quotation marks omitted.)

State v. Shields, supra, 308 Conn. 691; see also State v.

Holley, 324 Conn. 344, 353, 152 A.3d 532 (2016) (‘‘[i]n
evaluating whether the warrant was predicated on probable cause, a reviewing court may consider only the

information set forth in the four corners of the affidavit

that was presented to the issuing judge and the reasonable inferences to be drawn therefrom’’). Accordingly,

any trial testimony, or lack thereof, with respect to the

officers’ observations on October 7, 2013, is not to be

considered with respect to whether the search of the

defendant’s vehicle, executed pursuant to a warrant,

was supported by probable cause.

In their application for a search warrant, the affiants

averred that they observed the defendant walk back

and forth to the vehicle in question and that they heard

the sound of the vehicle being locked or unlocked as

the defendant walked to that vehicle. From this information, the issuing judge reasonably could have inferred

that the defendant had access to the vehicle either at

the time that they observed his movements or prior to

the officers’ arrival. The issuing judge, therefore, further

reasonably could have inferred that the defendant may

have moved the evidence that the police sought from

inside his home, where those items were last seen,24 to

the vehicle in question.

We conclude that the information set forth in the

affidavit supported the issuing judge’s determination

that probable cause existed to search the defendant’s

vehicle and, therefore, the search of the defendant’s

vehicle that resulted in the seizure of a firearm and

ammunition satisfies federal and state constitutional

standards. Accordingly, because the defendant has not

shown the existence of a constitutional violation that

deprived him of a fair trial, his claim fails under the

third prong of Golding.

II

The defendant next claims that the trial court abused

its discretion when it granted the state’s motion to join

the two informations for trial. Specifically, he argues

that joinder prevented him from testifying. The defendant concedes that he affirmatively waived any objection to the joinder and, therefore, requests that we

review his claim under the plain error doctrine. See

Practice Book § 60-5. We conclude that the defendant

cannot prevail under the plain error doctrine.

The following additional procedural history is relevant to this claim. At the hearing on the state’s motion

for joinder, the defendant, personally and through counsel, expressly stated that he had no objection to joinder.25 The court thereafter granted the state’s motion.

At trial, after the close of the state’s case, the court

canvassed the defendant as to whether he would testify

on his own behalf. The defendant elected not to testify.

During the canvass, the defendant stated that, although

he ‘‘personally . . . would like to [testify],’’ when ‘‘all

the pros and cons were laid out and what we’ve wit-
nessed so far in the trial,’’ he agreed with defense counsel that it was not in his best interest to testify.26 The

defendant did not thereafter move to sever the informations.27

We begin by setting forth the legal principles that

guide our analysis of this claim. ‘‘An appellate court

addressing a claim of plain error first must determine

if the error is indeed plain in the sense that it is patent

[or] readily [discernible] on the face of a factually adequate record, [and] also . . . obvious in the sense of

not debatable. . . . This determination clearly requires

a review of the plain error claim presented in light of

the record. Although a complete record and an obvious

error are prerequisites for plain error review, they are

not, of themselves, sufficient for its application.’’ (Internal quotation marks omitted.) State v. McClain, 324

Conn. 802, 812, 155 A.3d 209 (2017).

‘‘[T]he plain error doctrine is reserved for truly

extraordinary situations [in which] the existence of the

error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.

. . . [I]n addition to examining the patent nature of the

error, the reviewing court must examine that error for

the grievousness of its consequences in order to determine whether reversal under the plain error doctrine

is appropriate. A party cannot prevail under plain error

unless it has demonstrated that the failure to grant relief

will result in manifest injustice.’’ (Citation omitted;

internal quotation marks omitted.) Id.

An appellant ‘‘cannot prevail . . . unless he demonstrates that the claimed error is both so clear and so

harmful that a failure to reverse the judgment would

result in manifest injustice.’’ (Emphasis in original;

internal quotation marks omitted.) Id.; see also State v.

Coward, 292 Conn. 296, 307, 972 A.2d 691 (2009). ‘‘It is

axiomatic that, [t]he plain error doctrine . . . is not

. . . a rule of reviewability. It is a rule of reversibility.

That is, it is a doctrine that this court invokes in order

to rectify a trial court ruling that, although either not

properly preserved or never raised at all in the trial

court, nonetheless requires reversal of the trial court’s

judgment . . . for reasons of policy. . . . Put another

way, plain error review is reserved for only the most

egregious errors. When an error of such a magnitude

exists, it necessitates reversal.’’ (Citation omitted; internal quotation marks omitted.) State v. McClain, supra,

324 Conn. 813–14.

The defendant argues that although he affirmatively

waived any objection to the joinder, his claim is nevertheless reviewable under the plain error doctrine

because of our Supreme Court’s holding in State v.

McClain, supra, 324 Conn. 812. In McClain, our

Supreme Court held that a Kitchens waiver28 does not

preclude plain error review. Id.; see also State v. Juan

V., 191 Conn. App. 553, 571–75, A.3d (2019)
(reviewing claim for plain error that defendant had

waived pursuant to Kitchens).

In response, the state argues that ‘‘[t]he defendant’s

reliance on McClain is misplaced because in McClain,

our Supreme Court concluded that a ‘‘ ‘Kitchens

waiver,’ ’’ which refers to an implied waiver based on

counsel’s having had an opportunity to review proposed

jury instructions, does not preclude plain error review

. . . . Here, however, counsel and the defendant

explicitly stated that they had no objection to joinder.

As in [State v. Cancel, 149 Conn. App. 86, 102, 87 A.3d

618, cert. denied, 311 Conn. 954, 97 A.3d 985 (2014)],

these statements constitute an explicit waiver of any

claim challenging joinder and plain error review is not

appropriate.’’ (Citation omitted.) In Cancel, this court

rejected a claim that it was plain error for the trial court

to grant the state’s motion for joinder, reasoning that

the defendant had waived any claim regarding the joinder. This court concluded: ‘‘Because . . . the defendant waived any claim regarding the joinder of the cases

for trial, there is no error to correct. . . . [A] valid

waiver . . . thwarts plain error review of a claim.’’

(Citation omitted; internal quotation marks omitted.)

Id., 102–103.

Even if we were to read our Supreme Court’s holding

in McClain broadly to extend its application to the

circumstances of the present case, and thus assume

that the defendant’s waiver would not preclude him

from prevailing under the plain error doctrine, we conclude that the defendant cannot demonstrate that the

claimed error was ‘‘so clear and so harmful that a failure

to reverse the judgment would result in manifest injustice.’’ (Emphasis omitted; internal quotation marks

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

On appeal, the defendant argues that joinder prevented him from testifying.29 Specifically, he argues that

he had testimony to provide concerning the firearms

charges in the second information but that he had

‘‘ample reason not to testify with respect to the assault

and kidnapping counts’’ in the first information and,

therefore, joinder ‘‘caused substantial prejudice . . . .’’

We are not persuaded.

The defendant relies on State v. Perez, 322 Conn. 118,

139 A.3d 654 (2016), in support of his argument. In

Perez, our Supreme Court addressed the standard that

applies ‘‘when a criminal defendant contends that severance of the charges is necessary because he or she

wishes to testify as to some charges but not as to others.’’30 It held that ‘‘no need for a severance exists until

the defendant makes a convincing showing that he has

both important testimony to give concerning one count

and [a] strong need to refrain from testifying on the

other. In making such a showing, it is essential that the

defendant present enough information—regarding the

nature of the testimony he wishes to give on one count
and his reasons for not wishing to testify on the other—

to satisfy the court that the claim of prejudice is genuine

and to enable it intelligently to weigh the considerations

of economy and expedition in judicial administration

against the defendant’s interest in having a free choice

with respect to testifying.’’ (Internal quotation marks

omitted.) Id., 135–36.

In the present case, however, the defendant did not

move to sever the informations. He did not, at any point,

indicate that he wanted to testify concerning some of

the counts against him but not others, even when the

court canvassed him regarding his decision not to testify. The claimed error, therefore, was not ‘‘so clear and

so harmful that a failure to reverse the judgment would

result in manifest injustice.’’ (Emphasis omitted; internal quotation marks omitted.) State v. McClain, supra,

324 Conn. 812.31 Accordingly, joinder did not constitute

plain error.

III

Last, the defendant raises an unpreserved claim of

judicial bias. Specifically, he argues: ‘‘In this case, the

trial court adjudicated the accusers ‘victims’ in its

November 3, 2016 memorandum of decision on suppression—four days before evidence commenced and two

weeks before the defendant was acquitted of the allegations in which the trial court named the accusers ‘victims.’ This combined with the trial court’s sentencing

comments, in which it excoriated the defendant for

acts far beyond the scope of his convictions including

acquitted conduct, constitute[d] actual and apparent

bias at sentencing.’’ (Emphasis omitted.) We are not persuaded.

The following additional procedural history is relevant to this claim. In its memorandum of decision on

the defendant’s motion to suppress evidence, the court

referred to D and P as ‘‘victims.’’ Specifically, in its

memorandum of decision, the court found that ‘‘[f]rom

the early moments of the recorded conversation, [the

defendant] demeaned and blamed the two women victims.’’ In addition, in its determination with respect to

the protective sweep, the court found, in relevant part,

that ‘‘[b]ased upon all of the articulable facts and

rational inferences known to the New Britain police at

the time of the defendant’s apprehension, a reasonably

prudent officer would conclude the following: a serious

assault of two women had occurred within the prior

twenty-four to thirty-six hours at 830 Slater Road. One

victim was being treated for serious injuries at the hospital. That victim told her son that she was tied up,

beaten, hit with a pistol and physically degraded.’’

The defendant did not, at any point in time, move for

judicial disqualification or for a mistrial before the trial

court. At the conclusion of the trial, the defendant was

acquitted of the kidnapping and assault charges in
which D and P were alleged to have been victims.

At the defendant’s sentencing, the court summarized

the events leading up to the discovery of the firearms,

ammunition, and marijuana. It noted in relevant part:

‘‘The defendant’s interactions with the New Britain

police on the date in question showed a highly agitated

man, unwilling to interact with the police in any way

but the way he wanted. The original allegations of kidnapping, assault and weapons were such a serious

nature to the police, that’s all they had, and they were

trying to investigate it, but at the time that you interacted with them, Mr. Cane, you escalated the situation,

and it became extremely volatile and all of this was

because of your actions. You were manipulative with

the police on that day and you were invasive in your

communications. I believe that you were still high, likely

on the Oxycodone, given your addiction to those prescription medications.’’32 The court also noted that the

defendant’s mental health evaluations indicated that he

‘‘can be extremely manipulative and . . . highly critical of authority . . . .’’ Last, the court stated that ‘‘[t]his

entire case stems from [the defendant’s] poor choices.

His choice to escalate his prescription medication

addiction instead of seeking help, his choice to grow

marijuana and keep it in his house, his choice to keep

a nine millimeter handgun and enough ammunition for

who knows what, his choice to go out and invite two

unknown women into his home and engage in a drugfueled week of debauchery. . . . You have no one to

blame but yourself for the position that you find yourself

in today.’’

Immediately before imposing the defendant’s sentence, the court stated: ‘‘The sentence today is simply

punishment. You are a grown man who has had numerous contacts with the criminal justice system. Yes, you

finished probation, but you clearly learned nothing from

your experience and when you get into trouble, you do

it big. You are violent, you are dangerous and you cannot

make good decisions or learn from your actions. Society

needs to be protected from you, and this sentence will

hopefully make sure that you do not have a next big

crime.’’

On appeal, the defendant claims that the court’s reference to D and P as victims in its memorandum of decision on his motion to suppress, in addition to its statements at the sentencing hearing, demonstrate judicial

bias. The defendant concedes that he failed to preserve

this claim and now requests review pursuant to the

plain error doctrine; Practice Book § 60-5; or under

State v. Golding, supra, 213 Conn. 239–40.33

‘‘Accusations of judicial bias or misconduct implicate

the basic concepts of a fair trial. . . . It is a well settled

general rule [however] that courts will not review a

claim of judicial bias on appeal unless that claim was

properly presented to the trial court via a motion for
disqualification or a motion for mistrial. . . . Nevertheless, our Supreme Court has recognized that a claim of

judicial bias strikes at the very core of judicial integrity

and tends to undermine public confidence in the established judiciary. . . . No more elementary statement

concerning the judiciary can be made than that the

conduct of the trial judge must be characterized by the

highest degree of impartiality. If [the judge] departs

from this standard, he [or she] casts serious reflection

upon the system of which [the judge] is a part. . . .

‘‘In reviewing a claim of judicial bias, this court

employs a plain error standard of review. . . . The

standard to be employed is an objective one, not the

judge’s subjective view as to whether he or she can be

fair and impartial in hearing the case. . . . Any conduct

that would lead a reasonable [person] knowing all the

circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the

judge’s disqualification.’’ (Citations omitted; internal

quotation marks omitted.) State v. Carlos C., 165 Conn.

App. 195, 206–207, 138 A.3d 1090, cert. denied, 322 Conn.

906, 140 A.3d 977 (2016).

In the present case, the defendant argues that the

court displayed judicial bias34 because it first ‘‘found the

defendant guilty [of the kidnapping and assault charges]

prior to any evidence’’ by referring to D and P as victims

in its memorandum of decision,35 and subsequently considered the kidnapping and assault charges in sentencing the defendant. (Emphasis omitted.) The defendant

argues that, because he was acquitted of the kidnapping

and assault charges, the court was required to find that

the acquitted conduct had been proven by a preponderance of the evidence, pursuant to United States v. Watts,

519 U.S. 148, 156, 117 S. Ct. 633, 136 L. Ed. 2d 554

(1997),36 in order to be considered at the defendant’s

sentencing. Specifically, he contends that ‘‘the Watts

court considered whether a sentencing court could consider acquitted conduct when sentencing for counts of

[a] conviction (in a multicount indictment). . . . [T]he

court held that a district court could consider the acquitted conduct at sentencing if it found it proven by a

preponderance of the evidence.’’ (Citation omitted;

emphasis omitted.) The defendant further argues that

the court in the present case ‘‘was unable to impartially

adjudicate this sentencing fact’’ because it previously

had referred to D and P as victims in its memorandum

of decision on his motion to suppress.37

The record, however, does not support the defendant’s contention that the court considered the kidnapping and assault charges when it sentenced the defendant. Although the court had mentioned the kidnapping

and assault charges when it summarized the events

leading to the discovery of the firearms, ammunition,

and marijuana, it had referred to the kidnapping and

assault charges as the ‘‘original allegations’’ and there-
after focused on the events that occurred on October

7, 2013. In addition, although the court referred to the

defendant as ‘‘violent,’’ it had done so in the context

of reviewing the defendant’s criminal history. As we

previously have stated, the defendant had prior convictions of violent felony offenses, which were noted in

the defendant’s presentence investigation report. We

are not persuaded that the court’s comment referred

to the kidnapping and assault charges. The record,

therefore, does not provide a basis for the defendant’s

claim of judicial bias. Accordingly, because we conclude that the trial court did not display judicial bias,

there is no manifest injustice that warrants reversal of

the judgment pursuant to the plain error doctrine.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The jury also found the defendant guilty of one count of possession of

a controlled substance with intent to sell within 1500 feet of a school in

violation of General Statutes § 21a-278a (b). Prior to sentencing, however,

the trial court granted the defendant’s postverdict motion for a judgment

of acquittal as to that count. The jury acquitted the defendant of two counts

of kidnapping in the first degree with a firearm in violation of General

Statutes § 53a-92a (a), two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), two counts of kidnapping in

the first degree in violation of § 53a-92 (a) (2) (C), one count of assault in

the first degree in violation of General Statutes § 53a-59 (a) (1), one count

of assault in the first degree in violation of § 53a-59 (a) (3), one count of

assault in the second degree in violation of General Statutes § 53a-60 (a)

(2), and two counts of intimidation of a witness in violation of General

Statutes § 53a-151a (a) (2).

2 The neighbors had given the detectives permission to conduct their

surveillance from the porch.

3 The police had been attempting to contact Barbara Micucci, the defendant’s former girlfriend. At approximately 5 p.m., when Micucci learned that

the police wanted to speak to her, she called the defendant and said something to the effect of ‘‘what the ‘f’ is the New Britain police looking for me

for or wanting to talk to me . . . .’’ The defendant told her that he had no

idea and that he had been sleeping all day. Micucci then contacted the New

Britain Police Department and provided the defendant’s phone number.

4 At trial, no evidence had been presented with respect to what time

Sergeant Powers first spoke with the defendant. On appeal, the parties do

not dispute that the defendant’s phone conversation with Sergeant Powers

occurred after the defendant first exited his home. See part I B 1 of this

opinion.

5 The defendant was arrested on charges unrelated to this appeal. Specifically, he was arrested on charges of breach of the peace, threatening, and

interfering with the police that were based on his actions toward the police

during this encounter. See part I of this opinion. The state entered a nolle

prosequi as to each of those charges.

6 The state filed the motion for joinder on the ground that the evidence

in the two cases was cross admissible.

7

‘‘The right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be violated,

and no warrants shall issue, but upon probable cause, supported by oath

or affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.’’ U.S. Const., amend. IV.

8 Article first, § 7, of the Connecticut constitution provides: ‘‘The people

shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to

seize any person or things, shall issue without describing them as nearly

as may be, nor without probable cause supported by oath or affirmation.’’

9 These items had been evidence relevant to the kidnapping and assault

allegations.

10 Artruc, a detective with the New Britain Police Department, acknowledged that the affidavit in support of the search warrant application men-
tioned him observing marijuana during the protective sweep. Detective

Artruc testified, at both the suppression hearing and at trial, that he had

no recollection of being involved in the protective sweep. At trial, he

explained: ‘‘It is entirely possible that I was there on the [seventh of October],

but I don’t have a personal recollection of my involvement on the seventh.’’

11 The defendant does not challenge any of these factual findings.

12 The court went on to conclude that even if the protective sweep were not

lawful, the evidence was nonetheless admissible pursuant to the inevitable

discovery doctrine. It stated: ‘‘The credible evidence established that the

search warrant for the home had . . . begun at approximately 5:50 p.m. by

[Detective Raymond Grzegorzek], once [the complainant’s] statement was

completed. At that point, the police had a reasonable belief that a crime

had been committed and [that] evidence of it could be found within the

premises. . . . [T]he information supporting probable cause had been the

result of the information gathered in the hours prior to the defendant’s

arrest on the misdemeanor charges.’’ (Citations omitted.)

13 In State v. Kendrick, supra, 314 Conn. 212, our Supreme Court noted that

a protective sweep need not be conducted incident to an arrest: ‘‘Although

originally a protective sweep was defined as one made incident to a lawful

arrest . . . the scope has since been broadened so that the current rule is

that a law enforcement officer present in a home under lawful process

. . . may conduct a protective sweep when the officer possesses articulable

facts which, taken together with the rational inferences from those facts,

would warrant a reasonably prudent officer in believing that the area to be

swept harbors an individual posing a danger to those on the . . . scene.’’

(Citation omitted; emphasis altered; internal quotation marks omitted.) Id.,

229–30. Because the protective sweep in the present case was conducted

incident to an arrest, our analysis continues to be informed by the second

tier of protective sweeps as set forth in Spencer and Buie.

14 In State v. Spencer, supra, 268 Conn. 590, our Supreme Court cited to

United States v. Henry, 48 F.3d 1282 (D.C. Cir. 1995), in which the United

States Court of Appeals for the District of Columbia Circuit explained:

‘‘Although Buie concerned an arrest made in the home, the principles enunciated by the [United States] Supreme Court are fully applicable where, as

here, the arrest takes place just outside the residence. . . . That the police

arrested the defendant outside rather than inside his dwelling is relevant

to the question of whether they could reasonably fear an attack by someone

within it. The officers’ exact location, however, does not change the nature

of the appropriate inquiry: Did articulable facts exist that would lead a

reasonably prudent officer to believe a sweep was required to protect the

safety of those on the arrest scene?’’ (Citations omitted.) Id., 1284.

15 The defendant argues that for a protective sweep of a home incident

to an arrest that has occurred just outside of that home, we should apply

the test used by the United States Court of Appeals for the Second Circuit

in United States v. Oguns, 921 F.2d 442, 446 (2d Cir. 1990), because that

test was more recently applied by a court in the District of Connecticut, in

United States v. Butler, Docket No. 3:16 CR 123 (AWT), 2017 WL 4150466,

*4 (D. Conn. September 19, 2017).

Under Oguns, a protective sweep inside of a home incident to an arrest

outside of that home is permissible ‘‘if the arresting officers had (1) a

reasonable belief that third persons [were] inside, and (2) a reasonable

belief that the third persons [were] aware of the arrest outside the premises

so that they might destroy evidence, escape or jeopardize the safety of the

officers or the public.’’ (Internal quotation marks omitted.) United States

v. Oguns, supra, 921 F.2d 446. The defendant does not apply this test to the

facts of the present case or explain how applying this test would warrant

a different result. See id. (‘‘[a]lthough we articulated this standard before

Buie, we think it may be read consistently with the Supreme Court’s recent

holding concerning security sweeps’’).

In Spencer, our Supreme Court referenced the decision in Oguns. See

State v. Spencer, supra, 268 Conn. 589, 597. It nonetheless applied the test

set forth by the United States Supreme Court in Buie to a protective sweep

of a home incident to an arrest occurring just outside that home. Accordingly,

abiding by our Supreme Court’s precedent in Spencer, we apply the test set

forth in Buie.

16 Specifically, at the suppression hearing, Sergeant Burgos testified that

the police ‘‘were getting information [that] there was movement at the front

of the house and at the rear of the house at the same time.’’ Sergeant Burgos

explained that it was dark outside at that time and the lights were on inside

the defendant’s home, and he could therefore see silhouettes and movement
through the windows.

17 The police also had information that the defendant was involved in a

motorcycle gang.

18 In Payton v. New York, supra, 445 U.S. 576, the United States Supreme

Court held that the fourth amendment to the United States constitution

‘‘prohibits the police from making a warrantless and nonconsensual entry

into a suspect’s home in order to make a routine felony arrest.’’

19 The defendant relies on Morgan in support of his argument of constructive entry. In Morgan, ‘‘[n]ine police officers and several patrol cars

approached and surrounded the Morgan residence in the dark. The officer

in charge strategically positioned his car in the driveway in front of the

Morgan home blocking any movement of [the defendant’s] car. The police

then called for [the defendant] to come out of the house.’’ United States v.

Morgan, supra, 743 F.2d 1164. The court also noted that the police ‘‘flooded

the house with spotlights and summoned [the defendant] from his mother’s

home with the blaring call of a bullhorn.’’ Id., 1161. The United States Court

of Appeals for the Sixth Circuit determined that ‘‘[t]hese circumstances

surely amount to a show of official authority such that a reasonable person

would have believed he was not free to leave.’’ (Internal quotation marks

omitted.) Id., 1164. It therefore concluded that ‘‘the record provides ample

proof that, as a practical matter, [the defendant] was under arrest . . . as

soon as the police surrounded the Morgan home, and therefore, the arrest

violated Payton because no warrant had been secured.’’ (Citation omitted;

internal quotation marks omitted.) Id.

20 The essence of the defendant’s constructive entry claim is that the

coercive conduct of the police forced him to exit his home. As we previously

have stated, the defendant exited then reentered his home several times.

At oral argument before this court, the defendant clarified that his claim is

that the police constructively seized him when he first exited his home, after

the police surrounded his home and used their sirens to get his attention.

The record shows that the police placed only one phone call, which the

defendant did not answer, before he first exited his home. Therefore, the

defendant’s argument that the multiple phone calls by the police, including

his phone conversation with Sergeant Powers, which occurred after the

defendant first exited his home, are irrelevant to our analysis of his claim.

See footnote 4 of this opinion.

The defendant also argues that this was a ‘‘quintessential seizure’’ because

the police blocked off the street in front of the defendant’s home. We are

not persuaded. Although there had been testimony that the police blocked

off the defendant’s street, there was no evidence presented that it had been

blocked off in front of the defendant’s home. There is no evidence in the

record that the defendant saw, or could have seen, that the police blocked

off the street. Therefore, we cannot conclude that this police conduct constituted a ‘‘show of force and authority . . . such that a reasonable person

would have believed he was not free to leave.’’ (Internal quotation marks

omitted.) United States v. Morgan, supra, 743 F.2d 1164; see also State v.

Edmonds, supra, 323 Conn. 52.

21 The defendant argues that ‘‘[t]he record clearly establishes that no fewer

than seven armed officers surrounded the defendant’s home . . . .’’ This

argument, however, is not supported by the record. In addition, although

Sergeant Burgos testified that there were at least three officers directly in

front of the defendant’s home, and that the officers were displaying their

firearms, Sergeant Burgos did not explain when these three officers were

in front of the defendant’s home.

22 For example, as the state points out in its brief, if it had been put on

notice of the defendant’s claim, it could have adduced evidence from which

the court could conclude that the defendant exited his home voluntarily

and not as a result of police coercion.

23 The defendant further requests that we review his claim as plain error

under Practice Book § 60-5. We previously have held that ‘‘[b]ecause the

record is inadequate for review under Golding, it is also inadequate for

consideration under the plain error doctrine.’’ (Internal quotation marks

omitted.) State v. Leon, 159 Conn. App. 526, 536 n.9, 123 A.3d 136, cert.

denied, 319 Conn. 949, 125 A.3d 529 (2015). The defendant’s claim also fails,

therefore, under the plain error doctrine.

24 The affiants averred that a handgun, yellow shirt, and steel toe boots

had been items of interest with respect to the kidnapping and assault allegations, and that they had not been located inside the defendant’s home. The

affidavit contained information that D had been wearing a ‘‘construction

yellow colored t-shirt’’ during the alleged assault that occurred inside the
defendant’s home, during which the defendant had reportedly ‘‘pistolwhipped’’ D and P and kicked D in the stomach with steel toe boots.

25 At the hearing on the state’s motion for joinder, the following colloquy

took place between the court and defense counsel:

‘‘The Court: . . . You had no objection to the motion for joinder, is that

correct, [defense counsel]?

‘‘[Defense Counsel]: Yes, Your Honor. . . .

‘‘The Court: All right. So, this is something, I take it, you’ve discussed

with your client before today, is that right, [defense counsel]?

‘‘[Defense Counsel]: Yes, Your Honor.

‘‘The Court: Okay. And your client has no objection to the joining of these

two informations?

‘‘[Defense Counsel]: No, Your Honor.’’

The court then addressed the defendant directly, and the following colloquy occurred:

‘‘The Court: All right. Is that correct, sir, Mr. Cane, you have no objection?

‘‘[The Defendant]: Yes, Your Honor.’’

26 The court thought that the defendant was ‘‘hedging a little bit’’ and

reiterated that it was the defendant’s decision whether to testify. The defendant responded that he thought it was his decision ‘‘not to testify’’ on the

basis of ‘‘the advice of everyone concerned and what we’ve seen so far

presented by the prosecution.’’ When asked whether this decision was based

on his own free will, the defendant stated: ‘‘Yeah, after consultation with

my attorney and family, yes.’’ The defendant thereafter asked the court

whether he would ‘‘get a chance to say something’’ after ‘‘the prosecution

has their closing arguments . . . .’’ The court explained that he could only

do so if he were to testify. The defendant explained that he understood and

stated that his attorney’s cross-examination had made it ‘‘pretty clear’’ as

to why the jury should not believe the testimony presented. The court again

asked the defendant whether he understood that he was ‘‘giving up [his]

opportunity to testify before the jury,’’ and the defendant responded that

he did.

27 Pursuant to Practice Book § 41-18, ‘‘[i]f it appears that a defendant is

prejudiced by a joinder of offenses, the judicial authority may, upon its own

motion or the motion of the defendant, order separate trials of the counts

or provide whatever other relief justice may require.’’

28 In State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), our Supreme

Court ‘‘established a framework under which we review claims of waiver

of instructional error . . . . [T]he court emphasized that waiver involves

the idea of assent . . . and explained that implied waiver occurs when a

defendant had sufficient notice of, and accepted, the instruction proposed

or given by the trial court. . . . More specifically, the court held that when

the trial court provides counsel with a copy of the proposed jury instructions,

allows a meaningful opportunity for their review, solicits comments from

counsel regarding changes or modifications and counsel affirmatively

accepts the instructions proposed or given, the defendant may be deemed

to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal.’’

(Citations omitted; emphasis omitted; internal quotation marks omitted.)

State v. Ramon A. G., 190 Conn. App. 483, 500–501, 211 A.3d 82 (2019).

29 The defendant also argues that ‘‘joinder burdened [his] ability to plea

bargain.’’ The defendant cites to Lafler v. Cooper, 566 U.S. 156, 170, 132 S.

Ct. 1376, 182 L. Ed. 2d 398 (2012), for the proposition that ‘‘the reality [is]

that criminal justice today is for the most part a system of pleas, not a

system of trials.’’ In Lafler, however, the United States Supreme Court held

that a defendant is entitled to effective assistance of counsel during plea

negotiations. Id., 162. The issue in that case did not involve a defendant’s

right to plea bargain in the first instance, nor did it involve the effect of

joinder on the plea bargaining process. The defendant cites no legal authority

to support his proposition that joinder is improper if it impedes a defendant’s

‘‘ability to plea bargain.’’ We are, therefore, not persuaded by this argument.

30 Our Supreme Court explained that ‘‘joinder of unrelated criminal charges

can cause unfair prejudice when it embarrasses or confounds an accused

in making his defense. . . . For example, [p]rejudice may develop when

an accused wishes to testify on one but not the other of two joined offenses

which are clearly distinct in time, place and evidence.’’ (Citation omitted

internal quotation marks omitted.) State v. Perez, supra, 322 Conn. 134. It

further explained: ‘‘[B]ecause of the unfavorable appearance of testifying on

one charge while remaining silent on another, and the consequent pressure

to testify as to all or none, the defendant may be confronted with a dilemma:
whether, by remaining silent, to lose the benefit of vital testimony on one

count, rather than risk the prejudice (as to either or both counts) that would

result from testifying on the other.’’ (Internal quotation marks omitted.)

Id., 134–35.

31 In addition, the defendant cannot demonstrate that joinder resulted in

‘‘manifest injustice’’ necessitating reversal of the judgment pursuant to the

plain error doctrine. In the present case, the defendant argues that he ‘‘could

have testified to everything his counsel argued at closing.’’ Specifically, he

argues that he could have testified that ‘‘(1) he inherited the home from his

father; (2) it was cluttered; (3) the guns were his father’s; D and P were

stealing from him; (4) D drove his Cadillac on October 4; (5) she found the

gun in the house and was shopping it around pawn shops; [and] (6) he had

no idea the old [World War II] rifle was in the closet.’’ In response, the state

argues, inter alia, that ‘‘[i]t is unclear how this evidence would have been

more compelling if presented through his testimony [rather] than through

the testimony of other witnesses.’’ We agree with the state.

Although the defendant elected not to testify, evidence had been presented

at trial concerning each of these points. In addition, as the defendant himself

points out, defense counsel’s closing argument was based, in part, on this

evidence. Accordingly, there is no manifest injustice that warrants reversal

of the judgment pursuant to the plain error doctrine.

32 The defendant’s substance abuse was noted throughout his presentence

investigation report.

33 Because the record is adequate for review and the defendant’s claim is

of constitutional magnitude, we agree that the defendant is entitled to review

pursuant to State v. Golding, supra, 213 Conn. 239–40. For the reasons

we will discuss in this opinion, however, we conclude that the alleged

constitutional violation does not exist and that the record does not establish

that the trial court’s actions deprived him of a fair trial. See State v. Saturno,

322 Conn. 80, 102 n.20, 139 A.3d 629 (2016). Accordingly, we conclude that

the defendant’s claim fails to satisfy the third prong of Golding.

To the extent that the defendant’s claim is based on the appearance of

bias, in addition to actual bias, the claim is not reviewable under Golding

because it is not constitutional in nature. See State v. James R., 138 Conn.

App. 181, 203, 50 A.3d 936 (‘‘[I]nsofar as the claim is based on various

statements made by the court during the course of the trial, the claim

essentially is that the court appeared to be partial. We conclude that these

aspects of the claim are not reviewable under Golding because they are

not constitutional in nature.’’ [Emphasis in original.]), cert. denied, 307 Conn.

940, 56 A.3d 949 (2012); see also State v. Herbert, 99 Conn. App. 63, 68 n.7,

913 A.2d 443 (‘‘[t]he defendant’s claim of judicial bias based solely upon

the appearance of partiality, does not rise to the level of a constitutional

violation’’ [emphasis in original; internal quotation marks omitted]), cert.

denied, 281 Conn. 917, 917 A.2d 999 (2007).

34 The defendant claims that the court displayed both actual bias and

apparent bias, which he argues rises to the level of ‘‘presumptive’’ bias. In

support of his claim of presumptive bias, the defendant cites to several

cases from the United States Court of Appeals for the Fifth Circuit. These

cases provide that ‘‘presumptive bias [is] the one type of judicial bias other

than actual bias that requires recusal under the Due Process Clause. . . .

Presumptive bias occurs when a judge may not actually be biased, but has

the appearance of bias such that the probability of actual bias . . . is too

high to be constitutionally tolerable. . . . [A] judge’s failure to recuse constitutes presumptive bias in three situations: (1) when the judge has a direct

personal, substantial, and pecuniary interest in the outcome of the case, (2)

when [she] has been the target of personal abuse or criticism from the party

before [her], and (3) when [she] has the dual role of investigating and

adjudicating disputes and complaints.’’ (Citations omitted; internal quotation

marks omitted.) Richardson v. Quarterman, 537 F.3d 466, 475 (5th Cir.

2008), cert. denied, 555 U.S. 1173, 129 S. Ct. 1355, 173 L. Ed. 2d 589 (2009);

see also Buntion v. Quarterman, 524 F.3d 664, 672 (5th Cir. 2008), cert.

denied, 555 U.S. 1176, 129 S. Ct. 1306, 173 L. Ed. 2d 593 (2009); Bigby v.

Dretke, 402 F.3d 551, 558 (5th Cir.), cert. denied, 546 U.S. 900, 126 S. Ct.

239, 163 L. Ed. 2d 221 (2005). Like the defendant’s claim of actual bias, his

claim of presumptive bias is predicated on the court’s use of the kidnapping

and assault charges at his sentencing. Accordingly, for the reasons set forth

in this opinion, we reject the defendant’s claim of presumptive bias.

35 We first note that the trial court’s use of the term ‘‘victims’’ in its

memorandum of decision on the defendant’s motion to suppress was not

indicative of bias. In State v. Cortes, 276 Conn. 241, 249 n.4, 885 A.2d 153
(2005), the case cited by the defendant in support of his argument, the state

conceded that the trial court’s seventy-six references to the complainant as

the ‘‘victim’’ in its jury charge were improper. Our Supreme Court held that

‘‘references to the complainant as the ‘victim’ [are] inappropriate where the

very commission of a crime is at issue’’ because ‘‘the jury could have drawn

only one inference from its repeated use, namely, that the defendant had

committed a crime against the complainant.’’ Id. In the present case, the

court did not refer to D and P as victims in front of the jury. The reasoning

of the court in Cortes, therefore, is inapposite.

Moreover, we note that the defendant does not cite any legal authority

to support his proposition that a court’s use of the term ‘‘victim,’’ where

the defendant is subsequently tried by a jury, and not by the court, constitutes

an adjudication of a defendant’s guilt.

36 In Watts, the United States Supreme Court considered two cases in

which two panels of the United States Court of Appeals for the Ninth Circuit

held that sentencing courts could not consider the conduct underlying any

charges for which the defendants had been acquitted. United States v. Watts,

supra, 519 U.S. 149.

In the first case, the jury convicted the defendant of possessing cocaine

base with intent to distribute, but acquitted him of using a firearm in relation

to a drug offense. Id., 149–50. Despite the defendant’s acquittal on the

firearms count, the sentencing court found by a preponderance of the evidence that the defendant had possessed the guns in connection with the

drug offense. Id., 150. In calculating the defendant’s sentence, the sentencing

court therefore added two points to his base offense level under the federal

sentencing guidelines. Id. In the second case, the defendant was charged

with two counts of aiding and abetting possession with intent to distribute

cocaine on the basis of two separate drug transactions. The jury convicted

the defendant on the first count but acquitted her on the second count. Id.

The sentencing court found by a preponderance of the evidence that the

defendant had indeed been involved in the second transaction. Id., 150–51.

The sentencing court determined that the second sale was relevant conduct

under the federal sentencing guidelines and therefore calculated the defendant’s base offense level under the guidelines by aggregating the amounts

of both sales. Id., 151. The United States Court of Appeals for the Ninth

Circuit vacated the sentence in each case and held that a sentencing judge

may not, under any standard of proof, rely on conduct of which the defendant

was acquitted. Id., 150–51.

The United States Supreme Court held that, pursuant to 18 U.S.C. § 3661

and the federal sentencing guidelines, federal judges may consider conduct

underlying any charges for which the defendant was acquitted, so long as

that conduct has been proven by a preponderance of the evidence. Id., 157.

The court explained: ‘‘[A]n acquittal is not a finding of any fact. An acquittal

can only be an acknowledgment that the government failed to prove an

essential element of the offense beyond a reasonable doubt. Without specific

jury findings, no one can logically or realistically draw any factual finding

inferences . . . . Thus . . . the jury cannot be said to have necessarily

rejected any facts when it returns a general verdict of not guilty.’’ (Citations

omitted; internal quotation marks omitted.) Id., 155.

37 The defendant also argues that the court exhibited bias at sentencing

by (1) ‘‘fault[ing] the defendant for his anger at the police and demeaning

the accusers,’’ (2) ‘‘explicitly disregard[ing] mitigating evidence with respect

to the old Japanese rifle’’; see footnote 31 of this opinion; (3) ‘‘punish[ing]

the defendant for telling the police to leave his property,’’ (4) ‘‘claim[ing]

the defendant ‘[chose] to escalate his . . . addiction’ in spite of the fact

that addiction is a disease,’’ and (5) finding the defendant ‘‘to be violent in

the absence of violent crime convictions.’’ We are not persuaded.

First, there is nothing in the record to support the defendant’s argument

that the court punished the defendant for telling the police to leave his

property. Next, the defendant’s substance abuse, as well as his prior convictions of violent felony offenses, were noted in the defendant’s presentence

investigation report. The defendant’s demeanor, namely, his ‘‘anger at the

police and demeaning the accusers,’’ as well as his presentence investigation

report, are legitimate sentencing considerations. See State v. Elson, 311

Conn. 726, 782, 91 A.3d 862 (2014) (‘‘[t]he defendant’s demeanor, criminal

history, [and] presentence investigation report . . . remain legitimate sentencing considerations’’ [internal quotation marks omitted]).

Last, with respect to the defendant’s argument regarding the rifle, there

was evidence presented at trial that the defendant’s home, where the rifle

was found, had once belonged to his father, who died in 2007. There was
evidence presented that the rifle was a World War II surplus rifle and that

the defendant’s father was a veteran of World War II. Nevertheless, the jury

found the defendant guilty of criminal possession of a firearm with respect

to the rifle. The court was not, therefore, ‘‘explicitly disregard[ing] mitigating

evidence with respect to the old Japanese rifle,’’ but rather, sentencing the

defendant in accordance with the jury’s verdict.