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STATE OF CONNECTICUT v. TIREA JACKSON

(AC 35294)

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

Argued November 22, 2013—officially released May 20, 2014

(Appeal from Superior Court, judicial district of

Fairfield, Thim, J.)

John L. Cordani, Jr., assigned counsel, for the appellant (defendant).

Robin S. Schwartz, special deputy assistant state’s

attorney, with whom, on the brief, were John C. Smriga,

state’s attorney, and Margaret E. Kelley, senior assistant state’s attorney, for the appellee (state).
Opinion

KELLER, J. The defendant, Tirea Jackson, appeals

from the judgment of conviction, rendered after a jury

trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), and assault in

the first degree in violation of General Statutes § 53a59 (a) (1). Also, the defendant appeals from the judgment of conviction,rendered after a court trial, of criminal possession of a firearm in violation of General

Statutes § 53a-217 (a). The defendant claims that (1)

the trial court improperly admitted into evidence a letter

that had not been authenticated; (2) the court improperly admitted certain uncharged misconduct evidence,

namely, testimony that he had sold illegal drugs to the

victim prior to the events at issue; (3) evidence of statements made by an anonymous witness violated his confrontation clause rights; (4) the court improperly

admitted evidence related to recorded prison telephone

conversations of his in violation of his confrontation

clause rights; and (5) the prosecutor deprived him of

his right to due process by introducing evidence that

he invoked his right to remain silent after he had been

advised of his Miranda rights.1 We affirm the judgment

of the trial court.

The jury reasonably could have found the following

facts. On November 20, 2011, at or about 4 p.m., the

victim, Maria Guadalupe Upchurch, was in Bridgeport

to visit with her stepfather, who lived in Marina Village.

While walking to her stepfather’s residence, the victim

was approached by the defendant and his girlfriend,

Shaneeka Durham. The victim knew the defendant and

Durham well. On several occasions, beginning in the

summer of 2011, the victim bought illegal drugs from

the defendant, including heroin and marijuana. She considered the defendant a friend. Approximately one week

earlier, the victim purchased marijuana from the defendant. The defendant and Durham accused the victim

of paying for the marijuana with a counterfeit $10 bill.

To assuage the defendant, the victim gave him a $10

bill that she had in her pocket. She then proceeded to

walk away.

As the victim walked away, she felt something behind

her. She turned to find the defendant pointing a shotgun,

which was wrapped in a garbage bag, at her head. The

defendant smirked at the victim and said, ‘‘I’m going

to shoot you, [b]itch, you’re dead . . . .’’ The victim

put her hand up, and the defendant discharged the shotgun in close proximity to her head, causing substantial

injury to the right side of her face, her right eye, and her

right hand. The victim fell to the ground. The defendant

stood above her, raised his shotgun, and said that if

she ‘‘said anything’’ she was ‘‘gonna be done.’’ While

the victim lay injured on the ground, the defendant

walked away from the scene. Thereafter, the victim

crawled to her stepfather’s residence, where she sum-
moned police and medical assistance. The victim told

the police that the defendant, whom she identified as

‘‘Real,’’ was the shooter.

After the jury returned its finding of guilt with regard

to the charges of attempt to commit murder and assault

in the first degree, the court addressed the criminal

possession of a firearm count. Referring to the evidence

presented during the trial as well as evidence related

to the defendant’s criminal history, the court found that

the defendant, a convicted felon, possessed a firearm

at the time of the commission of the crime. Accordingly,

the court found the defendant guilty of criminal possession of a firearm as charged. Following a sentencing

hearing, the court imposed a total effective sentence

of twenty years imprisonment. This appeal followed.

Additional facts will be set forth as necessary.

I

First, we address the defendant’s claim that the court

improperly admitted into evidence a letter that had not

been authenticated. We disagree.

The following additional facts are relevant to this

claim. During its case-in-chief, the state presented testimony from Unique Lopez. Lopez testified that, in 2011,

she lived in Marina Village in Bridgeport and that she

was familiar with a person she identified as ‘‘Rell.’’ She

said she knew ‘‘Rell’’ by way of his former girlfriend,

Latoya Murray. During Lopez’ testimony, she identified

the defendant as the man she knew as ‘‘Rell.’’

Lopez testified that, approximately one week following the shooting involving the victim, she spoke with

the police. Specifically, she testified that she was asked

by the police about her familiarity with ‘‘Rell,’’ and that,

among other things, she indicated to the police that she

knew him by way of his former girlfriend; that he ‘‘used

to hang out at Marina Village;’’ and that he had given her

his telephone number, which she shared with the police.

Thereafter, the prosecutor asked Lopez whether she

had received any letters from the defendant. Lopez

replied that she had received four such letters. Lopez

testified that she read the first letter before discarding

it, but that she had marked the other letters with the

notation, ‘‘return to sender.’’ Outside of the presence

of the jury, the state marked a handwritten letter and

an envelope with handwritten markings as exhibits for

identification purposes.

The letter is dated October 5, 2012, and states in

relevant part: ‘‘Pay for me[.] Dear Unique[.] Unique

what’s going on with u and Rod. Well I went to court

and I started picking out jury and I think they want u

show up in court but don’t go ok you can’t get in trouble

for that. Ur name was on my paper and they trying to

make you come and go on the stand. They don’t have

no evidence on me at all[.] The day I go to court 10-

11-12 and maybe Monday is unreason ur [wrapped] in
this[.] U told the investigat[ors] I be with her baby dad.

Don’t be [scared] ever things going be ok it going be

over real soon if see my baby mom stay low because

her mom said some bulshit to investigat[ors] when they

call her house in Stamford[.] Im trying come home

please do this keep it real[.] Tell A-V I said whatup I

hope the kid[s] doing good[.] Tell Latoya bulshitting

ass when I come home I’m not fucking with u and u

shited on me and we friends[.] Tell her what kill me

make me stronger[.] I know she got a man that fuck

up you did not write. You did not write the 10 month

I was here at all. Everybody gave me there ass to kiss.

Know I can shake the dirt off my shoulder LOL one

love ps Hope see you soon/Booker[.]’’ The envelope is

addressed to Lopez and the return address is from

‘‘Tirea Jackson 259678#, 1106 North Ave., BCC Bpt Ct

06604 CONN. 37A1-10 Cell.’’ The envelope bears a postmark stamp from Stamford on October 4, 2012.

By way of an offer of proof, which occurred on the

first day of trial, October 10, 2012, Lopez testified that

she had received these items at her home within the

preceding few days. She informed an inspector in the

prosecutor’s office that she had received a letter from

the defendant, and provided the letter and the envelope

to the prosecutor. She testified that the letter arrived

in a sealed envelope and that she believed the letter

was from ‘‘Rell.’’ Lopez testified that she did not know

a person by the name of ‘‘Booker,’’ and that she did

not know if any of the letters at issue, despite bearing

the defendant’s return address, truly were from the

defendant because she ‘‘[was] just going by what the

envelope says.’’

The defendant’s attorney argued that the evidence did

not demonstrate that either the letter or the envelope

originated from the defendant. The defendant’s attorney

noted that the letter was not signed by the defendant

and that Lopez was unable to do more than speculate

as to its origin. The defendant’s attorney argued, as

well, that the letter was ‘‘highly prejudicial’’ to the

defense. The prosecutor asserted that the envelope bore

the defendant’s name and return address; the letter was

mailed to Lopez’ home; the letter was dated October 5,

2012, and referred to the status of the present trial,

specifically, jury selection; and the letter referred to

Lopez’ anticipated appearance at trial. On the basis of

the foregoing, the prosecutor argued that the issue of

whether the defendant had authored the letter was a

question of fact for the jury.

After hearing the offer of proof, the court agreed with

the state. The court stated: ‘‘We have the return address

on the envelope, we have the address on the envelope

. . . addressed to the witness [who] received it sealed,

and opened it and brought it in to [the prosecutor’s

office] and said this is a letter I received. The letter

refers to the jury selection process. You know, I think
there’s sufficient indicia of authorship, so the objection

is overruled. It’s up to the jury to decide in the end.’’

During her subsequent testimony before the jury,

Lopez stated that she recognized the letter and the

envelope as having been from the defendant, that she

had received them three or four days earlier and that,

after contacting the prosecutor’s office, she brought

them with her to court that day. Lopez was asked how

she knew that the letter was from the defendant. She

testified that it was mailed to her home, in a sealed

envelope, and that the envelope bore the defendant’s

name and return address. The letter was published to

the jury. The state relied on the letter as evidence that

the defendant had contacted Lopez and had asked her

not to testify.2

The defendant does not claim that the letter was

not relevant to an issue before the jury. Rather, the

defendant claims that the letter was not authenticated

because there was insufficient evidence to support a

finding that it was ‘‘authored by or at least coming

from or otherwise connected to [the defendant].’’ The

defendant argues that although the court relied on the

fact that the envelope bore his return address at prison

and that the letter referred to facts concerning the trial,

his address and the facts about jury selection were

public information, not information that could have

come only from him. The defendant argues that there

is no support for the proposition that letters mailed in

sealed envelopes that bear return addresses are selfauthenticating. Furthermore, the defendant asserts that

an examination of the letter readily gives rise to questions as to its authenticity. For example, the defendant

argues that the word ‘‘Booker’’ appears at the conclusion of the letter, only the envelope bears the defendant’s real name, the handwriting on the envelope ‘‘is

manifestly different from that on the letter,’’ the date

on the letter is one day after the postmark date on the

envelope, and, although the letter bears a Bridgeport

return address, it appears to have been postmarked in

Stamford. The defendant asserts that the admission of

the letter constituted reversible error.

‘‘To the extent [that] a trial court’s admission of evidence is based on an interpretation of the Code of

Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be

classified as hearsay and whether a hearsay exception

properly is identified are legal questions demanding

plenary review. . . . We review the trial court’s decision to admit [or exclude] evidence, if premised on

a correct view of the law, however, for an abuse of

discretion. . . . In determining whether there has been

an abuse of discretion, the ultimate issue is whether

the court . . . reasonably [could have] conclude[d] as

it did.’’ (Citations omitted; internal quotation marks

omitted.) State v. Davis, 298 Conn. 1, 10–11, 1 A.3d 76
(2010). Here, there is no argument or indication that the

court misinterpreted the law. Accordingly, we examine

whether the court properly applied the relevant evidentiary principles to the evidence at issue.

‘‘The requirement of authentication as a condition

precedent to admissibility is satisfied by evidence sufficient to support a finding that the offered evidence is

what its proponent claims it to be.’’ Conn. Code Evid.

§ 9-1 (a). ‘‘It is well established that [a]uthentication is

. . . a necessary preliminary to the introduction of

most writings in evidence. . . . In general, a writing

may be authenticated by a number of methods, including direct testimony or circumstantial evidence. . . .

Both courts and commentators have noted that the

showing of authenticity is not on a par with the more

technical evidentiary rules that govern admissibility,

such as hearsay exceptions, competency and privilege.

. . . Rather, there need only be a prima facie showing

of authenticity to the court. . . . Once a prima facie

showing of authorship is made to the court, the evidence, as long as it is otherwise admissible, goes to the

jury, which will ultimately determine its authenticity.’’

(Internal quotation marks omitted.) State v. Garcia, 299

Conn. 39, 57–58, 7 A.3d 355 (2010); see also State v.

Rosado, 52 Conn. App. 408, 426–27, 726 A.2d 1177 (1999)

(authentication requirement satisfied when there is sufficient information to establish that letter had been

written pursuant to defendant’s consent or authorization).

We agree with the state that there was a prima facie

showing that the letter was what the state claimed it

to be, namely, a letter sent from the defendant to Lopez.

The state made a showing that the letter arrived in a

sealed envelope that was addressed to Lopez and bore

the defendant’s name, inmate number and return

address in prison. The envelope was postmarked on a

date in which the defendant was incarcerated. Lopez,

who knew the defendant and had received other letters

from him prior to receiving the letter at issue, was

familiar with the contents of the letter and testified as

to her belief that the defendant sent the letter to her.

This is significant because the contents of the letter

were not limited to an impersonal request that Lopez

not testify, but dealt with other intimate matters that

the finder of fact readily could infer would not widely

be known outside of the relationship of the defendant

and Lopez. Additionally, the contents of the letter

revealed information about the prosecution of the

state’s case that would have been known by the defendant and, as the state correctly asserts, would likely

have been known only by persons with intimate knowledge of trial matters, such as the defendant.3 Specifically, the letter referred to jury selection as well as

Lopez being a potential witness for the state.

In State v. John L., 85 Conn. App. 291, 298–302, 856
A.2d 1032, cert. denied, 272 Conn. 903, 863 A.2d 695

(2004), this court rejected a claim that a trial court

improperly had admitted into evidence two letters that

were retrieved from a defendant’s computer. It was not

in dispute that the letters were not handwritten, the

letters were not signed by the defendant, and that others

with access to the defendant’s computer could have

written the letters or altered the date on the letters.

Id., 300. This court, relying on the proposition that in

authenticating the letters the state could rely on circumstantial evidence, including the content of the letters

and the circumstances surrounding their discovery, all

of which supported a finding that they were authored

by the defendant, upheld their admission into evidence.

Id., 302. As in John L., there was ample circumstantial

evidence to support a finding that the letter at issue in

the present case, though not signed by the defendant,

was sent by him to Lopez.

As discussed previously, the defendant points to facts

that weigh against a finding that the letter originated

from him or that it was sent on his behalf. These arguments mirrorthe tenor and substance of the defendant’s

cross-examination of Lopez concerning the letter as

well as the closing arguments made by the defense

during trial. The defendant’s arguments against a finding that the letter constituted consciousness of guilt

evidence were fodder for the jury’s consideration, but

they merely related to the weight of the evidence rather

than its admissibility. The state, in proffering the letter,

was not obliged to demonstrate beyond any doubt that

the letter originated from the defendant. ‘‘The proponent need only advance evidence sufficient to support

a finding thatthe proffered evidence is whatit is claimed

to be. Once this prima facie showing is made, the evidence may be admitted and the ultimate determination

of authenticity rests with the fact finder. . . . [C]ompliance with Section 9-1 (a) does not automatically guarantee that the fact finder will accept the proffered

evidence as genuine. The opposing party may still offer

evidence to discredit the proponent’s prima facie showing.’’ (Internal quotation marks omitted.) Conn. Code

Evid. § 9-1 (a), commentary.

The gist of the defendant’s claim is that the state

failed to produce compelling evidence that the defendant authored the letter orthat it was sent on his behalf.

Presumably, this evidence would relate to the circumstances surrounding the writing of the letter. By couching his claim against authentication in such terms, the

defendant urges us to place a nearly insurmountable

barrierto the admission of such documents, forit would

require the presentation of evidence that, one readily

may presume, typically would be known only to the

author of the writing. Our law, instead, permits such

writings to be authenticated by means of direct and

circumstantial evidence. Here, the written words on the

envelope and the letter, as well as the circumstances
surrounding them, supported a finding that the letter

was what the state claimed it to be. Accordingly, we

conclude that the court’s ruling reflected a sound exercise of its discretion.

II

Next, the defendant argues that the court improperly

admitted certain uncharged evidence, namely, testimony that he had sold illegal drugs to the victim prior

to the events at issue. We disagree.

The record reveals the following relevant facts. After

the court granted the defendant’s motion for notice

of uncharged misconduct evidence, the state provided

notice to the defendant and the court that, among other

evidence, it intended to introduce evidence that the

defendant sold marijuana to the victim. The defendant’s

attorney stated: ‘‘Your Honor, we simply state for the

record . . . I think it’s prejudicial to the defendant.’’

The court stated that it had reviewed the arrest warrant

and that the evidence was relevant to the issue of the

victim’s ability to identify the defendant as the perpetrator of the offense. The court stated: ‘‘I believe it will

explain how it is that the witness knows the defendant,

so I believe it’s admissible. We may have an objection

later on but—okay. . . . [L]et’s proceed.’’ Thereafter,

neither party addressed the court further regarding

this evidence.

During the state’s case-in-chief, the state elicited evidence that the defendant had sold illegal drugs to the

victim. The prosecutor asked the victim ‘‘what type of

interaction [she had] with the defendant in the summer

of 2011?’’ The victim testified that on several occasions

beginning in the summer of 2011, she ‘‘had bought

drugs’’ from the defendant and that they became ‘‘like

associates, friends . . . .’’ The prosecutor asked the

victim what kind of drugs she had purchased, to which

the victim replied that she had bought marijuana and

heroin from the defendant. The victim testified that, in

the beginning of this relationship, she typically bought

illegal drugs from the defendant, in Marina Village, two

or three times each week, but ‘‘then it broke down to

probably once or twice a week.’’ The victim testified

that she purchased $10 in marijuana from the defendant

approximately one week prior to the events at issue

and, as stated previously in this opinion, the incident

was precipitated by a dispute over the form of payment.

Evidence of the defendant’s drug selling was presented during the examination of other witnesses, as

well. Durham testified that she and the defendant knew

the victim, in part, because the victim purchased ‘‘weed

and crack’’ from the defendant. Officer Luis Pomales,

a first responder to the crime scene on November 20,

2011, testified that the victim stated to him that, prior

to the shooting, the defendant accused her of giving

him a counterfeit $10 bill during a marijuana purchase
that occurred one week earlier. Pomales said that,

according to the victim, the defendant demanded

payment.

The defense attempted to cast doubt on the victim’s

identification of the defendant as the perpetrator of the

crime. During closing argument,the prosecutorreferred

to the fact that the state bore the burden of demonstrating that the defendant was the perpetrator. In argument, the prosecutor discussed the evidence of the

defendant’s drug selling conduct and, consistent with

that evidence,referred to the defendant as a drug seller.4

On appeal, the defendant argues that evidence that

he sold drugs should have been excluded because it

‘‘severely prejudiced’’ the defense, the court did not

deliver an instruction limiting the jury’s consideration

of this uncharged misconduct evidence, the state elicited and used this evidence only to attack his character,

the state adequately could have demonstrated the basis

of the victim’s ability to identify him as the perpetrator

of the crime without referring to his drug dealing, and

‘‘the court should have understood the state’s specious

ploy and excluded the specific evidence that [he] met

with [the victim] to deal drugs.’’ (Emphasis in original.)

Furthermore, the defendant argues that the state’s disclosure of the uncharged misconduct evidence was

untimely and should have been excluded on that

ground.

Although the defendant states in his brief that the

court admitted the evidence ‘‘over defense objection,’’

the brief does not specify the nature of that objection.

The defense did not file a pretrial motion in limine to

preclude the evidence. Beyond the statement of the

defendant’s attorney, prior to the presentation of evidence, that the evidence of the defendant’s sale of marijuana to the victim was ‘‘prejudicial,’’ an issue

concerning which the court contemplated hearing a

further objection during the course of the trial, the

defense did not voice any objection to the state’s inquiries into the defendant’s drug selling conduct, the testimonial evidence concerning such conduct, orthe state’s

arguments concerning such conduct. There was no

objection that was based on the timeliness of the state’s

disclosure of uncharged misconduct evidence. There

was no objection on this ground to the content of the

state’s closing argument.5 There was no objection to

the court’s failure to deliver a limiting instruction with

regard to the evidence at issue or its failure to curtail

the state’s inquiries or argument. Consequently, the only

ruling occasioned by the defense with regard to this

evidence occurred priorto the presentation of evidence,

when the court found that the victim’s anticipated testimony as to her purchases of illegal drugs from the

defendant was relevant to evaluating her identification

of the defendant.

In most circumstances, ‘‘[w]e do not review claims
raised for the first time on appeal.’’ State v. Williams,

146 Conn. App. 114, 144, 75 A.3d 668, cert. granted on

other grounds, 310 Conn. 959, 82 A.3d 626 (2013). Here,

the defendant does not invoke any type of extraordinary

review for the aspects of his claim that were not preserved at trial. ‘‘When a party raises a claim for the first

time on appeal, our review of the claim is limited to

review under either the plain error doctrine as provided

by Practice Book § 60-5, or the doctrine set forth in

State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823

(1989). . . . This court often has noted that it is not

appropriate to engage in a level of review that is not

requested. . . . When the parties have neither briefed

nor argued plain error [or Golding review], we will not

afford such review.’’ (Internal quotation marks omitted.) State v. Patterson, 143 Conn. App. 804, 808, 70

A.3d 198, cert. denied, 310 Conn. 913, 76 A.3d 630 (2013).

At trial, the defendant’s attorney asserted merely that

evidence that the defendant sold marijuana to the victim

was ‘‘prejudicial.’’ As a preliminary matter, this general

comment is unavailing on its face because ‘‘all adverse

evidence is prejudicial to the defense.’’ State v. VanAllen, 140 Conn. App. 689, 697, 59 A.3d 888, cert. denied,

308 Conn. 921, 62 A.3d 1134 (2013). To the extent that

the statement fairly may be said to have apprised the

court of an objection on the ground of unfair prejudice;

see Conn. Code Evid. § 4-3 (‘‘[r]elevant evidence may

be excluded if its probative value is outweighed by the

danger of unfair prejudice’’ [emphasis added]); we are

not persuaded that the court improperly concluded that

the evidence was not unfairly prejudicial to the defense.

‘‘In evaluating whether the court properly ruled that

the uncharged misconduct evidence was admissible,

we look to the evidence presented to the court at the

time it made that ruling. See State v. Harris, 32 Conn.

App. 476, 481 n.4, 629 A.2d 1166 (‘[w]e are bound to

evaluate the propriety of the trial court’s rulings on the

basis of the facts known to the court at the time of

its rulings’), cert. denied, 227 Conn. 928, 632 A.2d 706

(1993).’’ (Footnote omitted.) State v. Allen, 140 Conn.

App. 423, 434, 59 A.3d 351, cert. denied, 308 Conn. 934,

66 A.3d 497 (2013).

At the time it made its ruling, the court had reviewed

the arrest warrant. As reflected in the court file, the

application for an arrest warrant included an affidavit

in which a police officer averred that the police had

information from the victim that the shooting was incident to a dispute concerning the allegedly counterfeit

$10 bill that the victim gave to the defendant incident

to her purchase of marijuana from him. As stated previously, the prosecutor, in disclosing the uncharged

misconduct evidence, indicated simply that the state

intended to present evidence that the defendant sold

marijuana to the victim. The court concluded that the

evidence was admissible because it was relevant to
the issue of identity, but the court suggested that the

defendant could raise further objections related to the

evidence during the trial.

We already have set forth the standard of review for

evidentiary claims in part I of this opinion. Turning to

the law concerning uncharged misconduct, we observe

that ‘‘[e]vidence of other crimes, wrongs or acts of a

person is inadmissible to prove the bad character or

criminal tendencies of that person.’’ Conn. Code Evid.

§ 4-5 (a). ‘‘Evidence of other crimes, wrongs or acts of

a person is admissible for purposes . . . such as to

prove intent, identity, malice, motive, common plan or

scheme, absence of mistake or accident, knowledge, a

system of criminal activity, or an element of the crime,

orto corroborate crucial prosecution testimony.’’ Conn.

Code Evid. § 4-5 (b).

The court reasonably determined that evidence that

the defendant sold marijuana to the victim was highly

probative of the disputed factual issue of identity. This

evidence was not tangential to the state’s theory of the

case, but integral to the crime; the evidence strongly

supported a finding that the victim accurately identified

the defendant as the perpetrator. Certainly, because the

evidence demonstrated that the defendant was engaged

in illegal conduct, it tended to cast him in a negative

light. Yet, given the high degree of probative value of

the evidence, we are persuaded that the court, at the

early stage of the proceeding at which it was asked to

considerthe admissibility of the evidence, did not abuse

its discretion by permitting the state to introduce it.

Although the defendant, before this court, raises a number of nuanced arguments against the admission of the

evidence, he failed to accept the court’s invitation to

revisit the issue at trial and, thus, did not raise any of

those concerns there.

III

Next, the defendant claims forthe first time on appeal

that evidence of statements made by an anonymous

witness violated his confrontation clause rights. We

conclude that the defendant’s claim is unavailing.

During her testimony, the victim testified that the

gun used by the defendant during the events at issue

was in a plastic bag with tape wrapped around it. The

victim testified that she thought the bag containing the

gun was green, but that she was not sure because she

was focused on the defendant at the time. The victim

testified that the defendant was standing a few feet

away from her when he discharged his shotgun in close

proximity to her head, but she recalled looking at the

handle of the gun and the plastic wrapped around it.

The victim testified that she was not familiar with guns,

but she said the defendant used a large shotgun, one that

she testified was consistent with the shotgun ultimately

admitted into evidence, which was, at the time of her
testimony, marked for identification purposes as a

state’s exhibit.

The state presented testimony from Pomales, who,

as a first responder to the crime scene, spoke with

the victim and immediately began an investigation to

apprehend the shooter. Pomales testified that the victim

told him at the crime scene that the shooter brandished

a shotgun inside of a black garbage bag. Pomales

recalled that he was receiving information from the

victim at the time that she was receiving medical treatment in an ambulance at the crime scene. Pomales said

that he related the information that he learned from

the victim, including a description of the suspect, to

other police officers, including Sergeant Ronald Mercado. He related information as necessary by using his

radio handset.

Pomales testified that he remained at the crime scene

after the victim had been transported to the hospital.

Pomales stated that, after he went to an apartment that

the victim identified as being the place from which the

shooter emerged with the shotgun, Mercado informed

him that he had been in contact with an anonymous

tipster who ‘‘gav[e] him a description of a party that

the firearm was handed to’’ as well as an address of an

apartment in Marina Village where the shotgun was

located. Pomales said that on the basis of his training

and experience, ‘‘speedy information’’ of this nature is

relied on by the police. Upon arriving at the apartment,

the police were given consent to search. Incident to

their search, the police discovered and seized a shotgun

and a red towel that were concealed in a black garbage

bag in a closet. The police also discovered and seized

two live rounds, found in the garbage bag, as well as

a spent shell casing, found inside the shotgun itself.

Absent objection, the court admitted all of these items

into evidence.

Mercado testified that on the day of the shooting,

he traveled to the crime scene in Marina Village after

hearing a radio transmission concerning the shooting.

He said that ‘‘[a]t that point, I headed to that area along

with my men to canvass for a suspect of the shooting.’’

He said that when he arrived, emergency responders

still were tending to the victim and that he was ‘‘solely

focusing on trying to find a suspect who just committed

a shooting armed with a firearm.’’ He said he learned

a description of the victim and that, while patrolling

and looking for the shooter, he got an update from an

anonymous witness who told one of his officers ‘‘that

the suspect . . . [h]anded off the shotgun to a female,

who then, in turn, handed the shotgun off to a young

Hispanic male named Carlos.’’ Mercado related this

information to other police officers and indicated that,

‘‘at this point, we’re now looking for a young Hispanic

male who’s possibly armed with a shotgun.’’ He said

that one of his officers discovered the person for whom
they were searching, a Hispanic male named Juan Carlos Cardona, and then went to his residence, which was

close to the crime scene. At the residence, Mercado

spoke to Cardona’s mother, who gave consent to search

the residence. Later, the shotgun and plastic bag,

marked as exhibits at trial, were discovered in a closet

of the residence.

Cardona testified that he lived in Marina Village on

the date of the shooting, November 20, 2011. After he

heard gunshots, he walked outside of his residence to

investigate, at which time he encountered a black

female that he recognized from his neighborhood. At

her request, Cardona took possession of the black garbage bag and the shotgun, which were consistent with

the items marked as state’s exhibits at trial, and concealed them in a closet at his residence. He testified

that although he did not examine the items, he recognized from the weight and shape of the items that he

had been given a shotgun.

On appeal, the defendant emphasizes that the testimony of Pomales and Mercado was essential to demonstrate the chain of custody of the shotgun, which was

admitted into evidence. Also, the defendant emphasizes

that the evidence concerning the shotgun, including

evidence related to its condition and the types of cartridges used, played a prominent role in the state’s theory ofthe case. The defendant asserts thatthe testimony

of Pomales and Mercado concerning the anonymous

witness who provided information to the police was

inadmissible hearsay. The defendant correctly acknowledges that before the trial court he did not object to

this testimony. The defendant, claiming that the admission of the alleged hearsay statements of the anonymous witness, who did not testify at trial, violated his

sixth amendment right to confrontation, seeks review

under State v. Golding, supra, 213 Conn. 239–40, and,

in the alternative, asserts that the admission of the

testimony constituted plain error. See Practice Book

§ 60-5.

The state asserts that the invocation of Golding is

unavailing because (1) the defendant’s claim is evidentiary in nature;(2)ifthe claim is constitutional in nature,

the record is inadequate to review the issue of whether,

under Crawford v. Washington, 541 U.S. 36, 53–54, 124

S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the declarant’s

statements were testimonial in nature; and (3) if the

record is adequate to review the claim under Crawford,

the defendant’s rights were not violated because the

statements were not testimonial in nature. Finally, the

state asserts that any error in admitting the testimony

was harmless beyond a reasonable doubt. Because the

record reflects that any error in admitting the testimony

was harmless beyond a reasonable doubt, we conclude

that the defendant is unable to prevail under Golding.

Pursuant to Golding, ‘‘a defendant can prevail on a
claim of constitutional error not preserved at trial only

if all of the following conditions are met: (1) the record

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

the claim is of constitutional magnitude alleging the

violation of a fundamentalright;(3)the alleged constitutional violation clearly exists and clearly deprived the

defendant of a fair trial; and (4) if subject to harmless

error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond

a reasonable doubt. In the absence of any one of these

conditions, the defendant’s claim will fail. The appellate

tribunal is free, therefore, to respond to the defendant’s

claim by focusing on whichever condition is most relevant in the particular circumstances.’’ (Emphasis in

original; footnote omitted.) State v. Golding, supra, 213

Conn. 239–40.

‘‘The sixth amendment to the constitution of the

United States guarantees the right of an accused in a

criminal prosecution to be confronted with the witnesses against him. This right is secured for defendants

in state criminal proceedings. . . . It is well established that a violation of the defendant’s right to confront witnesses is subject to harmless error analysis

. . . and only if the error was not harmless may the

defendant prevail on his Golding claim. . . . The state

bears the burden of proving that the error is harmless

beyond a reasonable doubt. . . . [T]he test for

determining whether a constitutional [impropriety] is

harmless . . . is whether it appears beyond a reasonable doubt that the [impropriety] complained of did not

contribute to the verdict obtained.’’ (Citations omitted;

internal quotation marks omitted.) State v. Stovall, 142

Conn. App. 562, 581, 64 A.3d 819, cert. granted on other

grounds, 309 Conn. 917, 70 A.3d 40 (2013).

The defendant accurately states that the primary

import of the testimony at issue, concerning the statements ofthe anonymous witness who provided information to the police, was that it helped the state lay a

foundation for the admission of the shotgun and the

shotgun shells discovered by the police in Cardona’s

residence. As a preliminary matter, however, this testimony was not critical to the admission of the shotgun

evidence.6 There was testimony about the shooting and

the police discovery of the shotgun in Cardona’s residence, which was near the crime scene. As described

previously, the victim testified that the shotgun presented at trial was consistent with the shotgun that the

defendant pointed at her and discharged in the direction

of herface. Likewise, Cardona testified that the shotgun

and the bag in which it was concealed, presented as

trial exhibits, were consistent with the shotgun and bag

handed to him by a female at or about the time of the

shooting. This testimony made it reasonable for the

finder of fact to find that the gun was used by the

shooter and justified the admission of the evidence.
Moreover, the shotgun evidence was not critical to

the state’s case. The defendant was convicted of attempt

to commit murder, assault in the first degree, and criminal possession of a firearm. To obtain a conviction, the

state was not required to present the shotgun used by

the defendant in the commission of any of the offenses

or any physical evidence definitely proving that he possessed or used a shotgun at the time of the crimes. With

regard to attempt to commit murder, as charged, it was

sufficient for the state to present evidence that the

defendant, intending to cause the victim’s death, intentionally engaged in conduct that constituted a substantial step in a course of conduct planned to culminate

in the victim’s death. With regard to assault, as charged,

it was sufficient for the state to present evidence that

the defendant intended to cause serious physical injury

to the victim and that he caused such injury by means

of a shotgun. With regard to criminal possession of a

firearm, as charged, it was sufficient for the state to

present evidence thatthe defendant possessed a firearm

and that he previously had been convicted of the crime

of sale of narcotics.

The victim’s testimony was compelling evidence to

support a finding beyond a reasonable doubt that the

defendant possessed a shotgun on the date of the shooting and used it in such a manner that he committed the

offenses of attempt to commit murder and assault in

the first degree. The evidence strongly reflected that

the victim was familiar with the defendant prior to the

shooting and that she had an opportunity to observe

that he was the perpetrator. The defendant asserts that

‘‘[this court] can have no confidence that the jury would

have found intent to kill or intent to seriously injure

without [the admission of the shotgun].’’ Yet, the victim’s own testimony concerning the defendant’s conduct—her description of the shotgun and the manner

in which the defendant used it to inflict serious physical

injury to her—is highly probative of his criminal mental

state. The evidence concerning her injuries strongly

supported a finding that he used a shotgun precisely

in the violent manner described in her testimony.

Apart from the victim’s testimony concerning the

identification of the defendant as the perpetrator, Durham testified that the defendant, who was her ‘‘off and

on’’ boyfriend as well as the father of her child, sold

drugs to the victim and that he was at Marina Village

on November 20, 2011. Durham testified that the victim

and the defendant got into an argument that day, but

that she walked away from the scene.

Having reviewed the evidence presented in its

entirety, we are not persuaded that the evidence at

issue in the present claim had any effect on the outcome

of the trial. The statements of the anonymous witness

who provided information to the police were not essential to the admission of the shotgun evidence, and the
shotgun evidence was not essential to the state’s case.

Under these circumstances, any impropriety in the

admission of the evidence was harmless beyond a reasonable doubt. Accordingly, the claim fails under Golding’s fourth prong.7

IV

Next, the defendant claims that the court improperly

admitted evidence related to his recorded prison telephone conversations in violation of his confrontation

clause rights. We decline to review this unpreserved

claim.

The following additional facts are relevant to our

analysis of this claim. At trial, on the first day that

evidence was presented, the prosecutor stated that the

state intended to present uncharged misconduct evidence in the form of tape-recorded telephone conversations involving the defendant. The prosecutor stated

that these conversations were initiated by the defendant

in the ‘‘last couple of weeks’’ prior to trial, while he

was incarcerated awaiting trial. Further, the prosecutor

stated that the conversations ‘‘concern[ed] inducements for the complaining witness not to testify.’’ The

defendant’s attorney indicated that although he was in

possession of notes related to these recorded telephone

conversations, he wanted an opportunity to listen to

the recordings themselves. The court, noting that the

evidence appeared to be admissible, agreed to this

request.

The next day, the prosecutor indicated that, in the

presence ofthe jury during his examination of a witness,

he intended to play a recording of one telephone conversation that was recorded on September 12, 2012. The

defendant’s attorney objected on the specific grounds

of relevancy and hearsay. The defendant’s attorney

stated to the court that it was, in fact, the defendant’s

voice on the tape. He argued, however, that the defendant’s statements during the conversation did not tend

to reflect his consciousness of guilt and that the statements of a third party during the conversation constituted hearsay. Outside of the presence of the jury, the

court heard the recording. The prosecutor stated that

the recording reflected a conversation initiated by the

defendant from prison to his home and that, in the

conversation, a third party attempted to calm the defendant by telling him ‘‘that he found the girl and he’d

break her off $500 if she don’t go . . . .’’ The prosecutor

stated that the telephone call was made less than one

month prior to the trial and that descriptive references

to ‘‘the girl’’ in the conversation strongly supported a

finding that the conversation concerned the victim. The

prosecutor stated that this was strong evidence of the

defendant’s consciousness of guilt.

The court agreed with the state and overruled the

defendant’s objection. The court stated that it would
deliver a limiting instruction to the effect that the jury

was to consider the defendant’s statements solely as

evidence of consciousness of guilt. The court delivered

such an instruction at the time that it permitted the

state to play the recorded conversation, and itreiterated

the instruction in its charge.8 The prosecutor played

the recording during the testimony of David Lavery,

a telephone monitor employed by the Department of

Correction’s security division.

On appeal, the defendant neither reiterates the evidentiary objection raised at trial, one based on relevancy and hearsay, nor challenges the adequacy of the

court’s limiting instructions. Instead, the defendant

claims that the court improperly admitted the taped

conversation because the state did not provide an adequate foundation for the admission of the evidence. The

defendant argues that although the state attempted to

authenticate the recorded conversation by means of

Lavery’s testimony, Lavery did not actually record the

telephone conversation, but merely reviewed taped

conversations, purportedly of the defendant, that he

had requested from the defendant’s prison. The defendant goes on to assert that ‘‘the State should have produced the prison employee that actually taped [his

telephone] calls and gathered the tapes [of such

recorded conversations].’’ Thus, vaguely couching his

claim as one arising under the confrontation clause,

the defendant argues that ‘‘[he] was deprived of the

right to confront the true witness against him.’’

In summary fashion, the defendant asserts that he is

entitled to Golding review of this unpreserved claim.

The defendant’s Golding claim is unavailing because

his claim is not constitutional in nature. In essence,

the defendant argues that the state failed to present a

witness through which the taped conversation could

be authenticated properly. Before the trial court, the

defendant’s attorney stated to the trial court that the

evidence at issue was, in fact, a recording of the defendant. The defendant did not object to the evidence on

the ground of authentication, and he is precluded from

raising such an unpreserved evidentiary claim for the

first time on appeal. His claim that he was deprived of

the right to confront a hypothetically competent witness

who should have been called to testify by the state is

a veiled attempt to raise a claim related to authentication in the guise of a confrontation clause claim.9

Accordingly, we decline to review the claim under

Golding.

V

Finally, the defendant claims that the prosecutor

deprived him of his right to due process by introducing

evidence that he invoked his right to remain silent after

he had been advised of his Miranda rights. We disagree.

The following additional facts are relevant to this
claim. During the state’s case-in-chief, the state presented testimony from Sean Ronan, a detective with

the Bridgeport Police Department. Ronan was one of

the police officers who responded to the Marina Village

crime scene on November 20, 2011. Ronan testified

that, as part of his investigation, he interviewed the

defendant following his arrest. Responding to questions

about the course of the police investigation into the

shooting, Ronan testified that, prior to the interview at

police headquarters, he provided the defendant with a

written waiver of Miranda rights form. Ronan testified

that he read the provisions set forth on the form, and

that the defendant wrote his initials next to each provision and signed the form. The form was introduced into

evidence. One of the provisions on the form, read aloud

in court by Ronan, stated: ‘‘Now that I have been advised

of my rights and that I fully understand these rights, I

am willing to be interviewed and answer questions. I

do not wish the presence of an attorney at this time. I

am waiving these rights [freely] and voluntarily without

any fear, threat or promises being made to me.’’

The following colloquy between the prosecutor and

Ronan occurred:

‘‘Q. Now, after advising [the defendant] of his rights

and having him sign that, did you talk to him at all as

a result of him having waived those rights?

‘‘A. I asked him if he would talk to me about the

incident that happened in Marina Village.

‘‘Q. And what was [the defendant’s] response when

you said that to him?

‘‘A. He said, I don’t know what you’re talking about,

I’ve never been to Marina. I don’t hang around there.

‘‘Q. And did he mention anything about any type of

firearm or gun?

‘‘A. He said he never owned or shot a gun.

‘‘Q. And other than that information, did [the defendant] provide you with any additional information?

‘‘A. No, the next question I asked he refused to answer

and said, you know, we’ll go back upstairs.

‘‘Q. And did the interview terminate at that time?

‘‘A. Yes, ma’am.

‘‘Q. And have you had any further contact with the

defendant after that point?

‘‘A. None. No, ma’am.’’

During closing argument, the prosecutor referred to

the statements that the defendant made to Ronan following his arrest. The prosecutor argued in relevant

part: ‘‘You’re also going to hear an instruction about

statements, the defendant’s statements that can be considered by you, and I direct your attention to Detective
Sean Ronan, who testified yesterday, who, at the time

Detective Ronan met with the defendant afterthe arrest,

that the defendant [made] statements, I don’t know

what you’re talking about, I’ve never even been in

Marina Village and I’ve never owned or fired a gun. And

His Honoris going to talk to you about a concept known

as consciousness of guilt, and consciousness of guilt,

you may, if you chose to believe, consider statements

that were made of actions by the defendant if you decide

that they reflect a consciousness of guilt.’’ Immediately

thereafter, the prosecutor drew the jury’s attention to

evidence relevant to consciousness of guilt, specifically,

the letter received by Lopez that we discussed in part

I of this opinion, and the recorded telephone conversation that we discussed in part IV of this opinion.

At trial, the defendant’s attorney did not object to

the prosecutor’s inquiries of Ronan or the prosecutor’s

reference, made during closing argument, to the evidence of the statements made by the defendant to

Ronan during the post-Miranda interrogation. On

appeal, the defendant argues that, in violation of Doyle

v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 49 L. Ed. 2d

91 (1976), the prosecutor purposely elicited testimony

from Ronan during the state’s case-in-chief about his

invocation of his right to remain silent and, during closing argument, ‘‘cleverly ask[ed] the jury to consider that

only a guilty person would act to invoke his Miranda

rights and refuse to answer the police’s questions.’’ The

statements on which the defendant relies are set forth

previously. The defendant seeks Golding review of this

unpreserved claim that, he asserts, deprived him of

his due process right to a fair trial and, accordingly,

warrants the reversal of his conviction. The claim is

reviewable under Golding because the record discloses

the factual circumstances relevant to the defendant’s

claim and the claimed violation is of constitutional magnitude. See, e.g., State v. Boyd, 295 Conn. 707, 751, 992

A.2d 1071 (2010), cert. denied, U.S. , 131 S. Ct.

1474, 179 L. Ed. 2d 314 (2011); State v. Camacho, 92

Conn. App. 271, 279, 884 A.2d 1038 (2005), cert. denied,

276 Conn. 935, 891 A.2d 1 (2006).

Our Supreme Court has stated: ‘‘In Doyle [v. Ohio,

supra, 426 U.S. 610] . . . the United States Supreme

Court held that the impeachment of a defendantthrough

evidence of his silence following his arrest and receipt

of Miranda warnings violates due process. The court

based its holding [on] two considerations: First, it noted

that silence in the wake of Miranda warnings is insolubly ambiguous and consequently of little probative

value. Second and more important[ly], it observed that

while it is true that the Miranda warnings contain no

express assurance that silence will carry no penalty,

such assurance is implicit to any person who receives

the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to

allow the arrested person’s silence to be used to
impeach an explanation subsequently offered at trial.

. . . The court . . . reaffirmed Doyle’s reasoning in

Wainwright v. Greenfield, 474 U.S. 284, 290, 106 S. Ct.

634, 88 L. Ed. 2d 623 (1986), in which it held that the

defendant’s silence following his arrest and receipt of

Miranda warnings could not be used at trial to rebut

his defense of insanity. The court reasoned: The point

of the Doyle holding is that it is fundamentally unfair

to promise an arrested person that his silence will not

be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony. . . .

‘‘This court has recognized that it is also fundamentally unfair and a deprivation of due process for the

state to use evidence of the defendant’s post-Miranda

silence as affirmative proof of guilt . . . and has noted

that post-Miranda silence under Doyle does not mean

only muteness; it includes the statement of a desire to

remain silent, as well as of a desire to remain silent

until an attorney has been consulted. . . .

‘‘This court has also recognized that [r]eferences to

one’s invocation of the right to remain silent [are] not

always constitutionally impermissible . . . [and are]

allowed . . . in certain limited and exceptional circumstances. . . . Specifically, the state is permitted

some leeway in adducing evidence of the defendant’s

assertion of that right for purposes of demonstrating

the investigative effort made by the police and the

sequence of events as they unfolded . . . as long as

the evidence is not offered to impeach the testimony of

the defendant in any way.’’ (Citations omitted; internal

quotation marks omitted.) State v. Lockhart, 298 Conn.

537, 580–82, 4 A.3d 1176 (2010).

As set forth previously, the state presented Ronan’s

testimony in its case-in-chief that, during his interview

of the defendant, while the defendant was in police

custody and after he had been advised of and had

waived his Miranda rights, the defendant answered

some questions about the crime but refused to answer

other questions, thereby terminating the interview. The

record does not reflect that the prosecutor elicited evidence about how the defendant exercised his right to

terminate the interview or what question or questions

the defendant had declined to answer.

In arguing that a Doyle violation occurred, the defendant relies on State v. Montgomery, 254 Conn. 694,

710–16, 759 A.2d 995 (2000). In Montgomery, the state

presented evidence during its case-in-chief that the

defendant, prior to his arrest and while he was not in

police custody, spoke with the police after being

advised of his Miranda rights. Id., 710–12. The state

presented evidence that the defendant answered several questions about his involvement in a killing, but

at one point during the interview when he was asked

whether the victim’s death had been premeditated or
a crime of passion, ‘‘[he] did not respond verbally to

[the detective’s] question, but tears welled up in his

eyes, he began to shake and signaled for a nurse to

terminate the interview. The police then asked the

defendant no further questions.’’ Id., 712. Our Supreme

Court concluded that the introduction of this evidence

ran afoul of Doyle. Id., 715–16. The court held that ‘‘the

evidence adduced by the state regarding the defendant’s

refusal to answer any further questions was fundamentally unfair and thus in violation of his rights under the

fifth and fourteenth amendments to the United States

constitution.’’10 Id.

The state attempts to distinguish Montgomery on the

ground that, unlike the situation in Montgomery, the

record in the present case does not reflect that the state

presented evidence of how the defendant invoked his

right to remain silent or what question or questions the

defendant declined to answer. The state argues that the

present case is analogous to State v. Moye, 177 Conn.

487, 495–99, 418 A.2d 870, vacated and remanded on

other grounds, 444 U.S. 893, 100 S. Ct. 199, 62 L. Ed.

2d 129, on appeal after remand, 179 Conn. 761, 409 A.2d

149 (1979), in which our Supreme Court held that the

introduction of evidence by the state that a defendant,

on the advice of counsel, had terminated giving a postarrest statement to the police did not violate Doyle. In

reaching this conclusion, our Supreme Court reasoned

that, in Moye, the state presented this evidence of postarrest silence not for a constitutionally repugnant purpose—such as to impeach the defendant’s credibility

or to demonstrate his criminal liability—but to counter

the defendant’s unambiguous reliance on the unfinished

exculpatory statement he gave to the police, and ‘‘to

show the investigative effort made by the police and

the sequence of events as they unfolded . . . .’’ Id., 499.

In the present case, unlike Montgomery, the prosecutor did not elicit evidence concerning the manner in

which the defendant terminated the interview or what

question or questions the defendant declined to answer.

This is significant because the detailed information concerning the defendant’s exercise of his right to remain

silent in Montgomery tended to suggest that the line

of inquiry related to the crime caused the defendant

emotional pain because of his criminal culpability.

Thus, there was a risk in Montgomery that the manner

in which the defendant exercised his right to remain

silent provided a means by which the state could have

demonstrated his guilt because, essentially, it was evidence of silence in the face of accusation.

Here, the evidence related to the cessation of the

interview lacked such details, but appeared, instead, to

be part of the narrative of how the police investigation

proceeded, which is permissible under Moye. In the

present case, however, unlike the circumstances present in Moye, there was no logical reason why the state
should have presented the evidence related to the defendant’s invocation of his right to remain silent. Stated

otherwise, this case does not present the ‘‘ ‘limited and

exceptional circumstances’ ’’ in which courts have permitted references to a defendant’s silence. State v. Lockhart, supra, 298 Conn. 581. Although it may be said

that the state presented evidence that the defendant

terminated the interview and chose to remain silent, it

does not appear that this evidence was elicited. The

prosecutor did not ask Ronan to discuss the cessation

of the interview, but Ronan divulged the defendant’s

invocation of his right in response to the prosecutor’s

seemingly innocuous question about what information

the defendant had provided to the police during his

interview.11 Moreover, contrary to the defendant’s characterization of what occurred at trial, there is no indication that the state referred to the evidence that he

terminated the interview, either in questioning or argument. Thus, while we acknowledge that the state presented evidence that rarely is permissible, we do not

conclude that the state ran afoul of Doyle because there

is no indication in the record that the state either presented or utilized the evidence at issue, concerning the

defendant’s termination of the interview, for a forbidden purpose.

Even were we to conclude that the evidence presented by the state related to the defendant’s exercise

of his right to remain silent was fundamentally unfair

to the defendant, we readily conclude that any violation

of Doyle was harmless beyond a reasonable doubt.

‘‘Doyle violations are . . . subject to harmless error

analysis. . . . The harmless error doctrine is rooted in

the fundamental purpose of the criminal justice system,

namely, to convict the guilty and acquit the innocent.

. . . Therefore, whether an error is harmful depends

on its impact on the trier of fact and the result of the

case. . . . [B]efore a federal constitutional error can

be held harmless, the court must be able to declare a

belief that it was harmless beyond a reasonable doubt.

. . . The state bears the burden of demonstrating that

the constitutional error was harmless beyond a reasonable doubt. . . . That determination must be made in

light of the entire record [including the strength of the

state’s case without the evidence admitted in error].

. . .

‘‘A Doyle violation may, in a particular case, be so

insignificant that it is clear beyond a reasonable doubt

that the jury would have returned a guilty verdict without the impermissible question or comment upon a

defendant’s silence following a Miranda warning. Under

such circumstances, the state’s use of a defendant’s

[post-Miranda] silence does not constitute reversible

error. . . . The [error] has similarly been [found to be

harmless] where a prosecutor does not focus upon or

highlight the defendant’s silence in his cross-examination and closing remarks and where the prosecutor’s
comments do not strike at the jugular of the defendant’s

story. . . . The cases wherein the error has been found

to be prejudicial disclose repetitive references to the

defendant’s silence, reemphasis of the fact on closing

argument, and extensive, strongly-worded argument

suggesting a connection between the defendant’s

silence and his guilt.’’ (Internal quotation marks omitted.) State v. Bereis, 117 Conn. App. 360, 377–78, 978

A.2d 1122 (2009); see also State v. Brunetti, 279 Conn.

39, 84–85, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212,

127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007). ‘‘[W]hen there

is but a single reference at trial to the fact of defendant’s

silence, the reference is neither repeated nor linked

with defendant’s exculpatory story, and the exculpatory

story is transparently frivolous and evidence of guilt is

otherwise overwhelming, the reference to defendant’s

silence constitutes harmless error. . . . The [error] has

similarly been [found to be harmless] where a prosecutor does not focus upon or highlight the defendant’s

silence in his cross-examination and closing remarks

and where the prosecutor’s comments do not strike at

the jugular of the defendant’s story.’’(Citations omitted;

internal quotation marks omitted.) State v. Silano, 204

Conn. 769, 781, 529 A.2d 1283 (1987).

In the present case, the prosecutor did not focus

on or highlight the defendant’s silence in any manner.

Although Ronan testified that the defendant refused to

answer and terminated the interview, the prosecutor

merely asked if the interview had terminated at that

time. The defendant suggests that the prosecutor, during closing argument, attempted to link the defendant’s

silence with consciousness of guilt and, thus, referred

to the evidence for a forbidden purpose. We have

reviewed the relevant portion of the argument, set forth

previously, and it is unreasonable to afford the argument such a sinister interpretation. Without any reference to the fact that the defendant had terminated the

interview, the prosecutor merely referred to the statements that the defendant provided to Ronan. Certainly,

the prosecutor’s reference to this evidence was not

improper. The prosecutor then invited the jury to consider evidence of the defendant’s consciousness of guilt

and in so doing referred explicitly to evidence that was

admitted for that purpose.

In the present case, there were no references by the

state to the evidence at issue, concerning the defendant’s termination of the police interview. When the

court instructed the jury concerning consciousness of

guilt evidence, it did not refer to the evidence that

the defendant had terminated a police interview. The

evidence came in the form of an isolated response to

an innocuous question asked by the prosecutor related

to the police interview. The argument was not used for

an improper impeachment purpose because the defendant did not testify. Nor was the evidence linked to any

exculpatory story advanced by the defense. There was
no emphasis on this evidence and, as discussed previously, no attempt by the state to use the evidence as

proof that the defendant was criminally liable.

Furthermore, the case against the defendant was

strong. The state presented evidence that the defendant

discharged his shotgun in close proximity to the victim’s

head, thereby causing her injury. The victim, who was

familiar with the defendant, unambiguously identified

the defendant as the shooter both prior to and during

the trial. The defendant urges us to conclude that there

were reasons to doubt the victim’s overall strength as a

witness. Yet, there was evidence, apart from the victim’s

testimony, that the defendant was in Marina Village on

the day of the shooting as well as evidence, apart from

the victim’s testimony, that he was acquainted with the

victim and was, in fact, her drug supplier. This evidence

provided a strong basis on which the finder of fact

could conclude that the victim had not misidentified

the perpetrator, but correctly identified a person with

whom she was familiar.

In light of the evidence presented at trial, the isolated

nature of the evidence of the defendant’s silence, and

the fact that the prosecutor did not in any manner use

the evidence improperly, we conclude that any Doyle

violation in this case was harmless beyond a reasonable

doubt. Accordingly, we conclude that the defendant is

unable to prevail under the third and fourth prongs

of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

1 See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.

2d 694 (1966).

2 During closing argument, the prosecutor argued in relevant part: ‘‘And

I direct your attention, ladies and gentlemen, to a letter, state’s exhibit 4,

which was admitted when Miss Unique Lopez testified. A letter, ladies and

gentlemen, that was sent by this defendant to Miss Lopez as you were being

selected for a jury. A letter imploring Miss Lopez not to come and testify.’’

3 The record reflects that when the state filed its proposed list of witnesses

on October 1, 2012, it did not identify Lopez as a potential state’s witness.

Nor did the state identify Lopez as a potential state’s witness during jury

selection on October 1 and October 2, 2012. The defendant’s attorney identified a ‘‘Univa Lopez’’ as a potential defense witness during jury selection

on October 1, 2012, and a ‘‘Unika Lopez’’ as a potential defense witness

during jury selection on October 2, 2012. Between October 2, 2012, and

October 4, 2012, the date on which the letter at issue was postmarked, it

does not appear that the state disclosed publicly that it intended to call

Lopez as a witness. Thus, the state reasonably suggests that only persons

with intimate knowledge of trial matters would have been privy to the fact

that following jury selection and prior to October 4, 2012, the state had

decided to call Lopez as a witness and had made such disclosure to the

defense.

4 During the state’s initial closing argument, the prosecutor stated in relevant part: ‘‘We also have, ladies and gentlemen, fact, there’s been no evidence

to refute that the defendant during [the] time period from the summer of

2011 and up until November of 2011 was selling drugs in Marina Village.

How do we know that? We know that from Maria Guadalupe Upchurch,

who came in here and told you quite frankly that that’s how much she knew

the defendant. She knew the defendant from purchasing drugs over a several

month period. But we also know that from two other witnesses . . . that

weren’t directly harmed . . . by the defendant’s actions in this case. And

we know that by Unique Lopez, who came in here and reluctantly agreed
that when she spoke to the police approximately one week after [the crime

occurred] she did tell them that the defendant, she knew the person as Rell,

was a person who had been selling drugs in Marina Village. And we also

know that, ladies and gentlemen, through Shaneeka Durham, who is the

mother of the defendant’s child, who was with the defendant in Marina

Village on that day, on November 20, 2011. But she also through tears told

us that the defendant would sell drugs at that location. Fact. No evidence

to refute it whatsoever.’’

During the state’s rebuttal closing argument, the prosecutor discussed

factors related to an assessment of the victim’s credibility. The prosecutor

stated in relevant part: ‘‘She never got to her [step]father’s that day, at least

to help him. And so when you look at [her history of drug use], she doesn’t

deny that she used drugs before, she said she didn’t remember [if she had

used drugs the day prior to the shooting]. She’s a drug user; she came in

here and told you that, and that man is the drug seller, the drug seller who

sold those drugs to Maria Guadalupe.’’

5 Unpreserved prosecutorial impropriety claims are reviewable on appeal

under State v. Stevenson, 269 Conn. 563, 572–73, 849 A.2d 626 (2004). We

note that, although the defendant has labeled the prosecutor’s interrogation

of witnesses and closing arguments as an improper attempt to attack his

character, he does so merely in the context of his evidentiary claim. He has

not presented this court with a claim that prosecutorial impropriety deprived

him of his due process right to a fair trial. See State v. Williams, 204 Conn.

523, 540, 529 A.2d 653 (1987).

6 The record reveals that the shotgun and the shells found with the shotgun

were introduced during Pomales’ testimony. Pomales testified prior to Mercado and Cardona and, with regard to the anonymous witness, merely

testified that Mercado had been in contact ‘‘with an anonymous caller who

was giving him a description of a party that the firearm was handed to.’’

7 For the reasons set forth in the foregoing Golding analysis, we likewise

reject the defendant’s argument that plain error exists. In light of the strength

of the state’s case and the role that the evidence at issue played in the

context of the entire trial, we do not conclude that any error in its admission

warrants a reversal of the judgment.

8 During its charge, the court stated in relevant part: ‘‘I want to say a few

comments about the telephone call that was played [for] you. The recording

of a call allegedly made by the defendant was placed into evidence. The

recording may be considered only as it may show a consciousness of guilt

on the part of the defendant and for no other purpose. It is permissible in

a criminal case for the state to show that conduct or statements made by

a defendant after the time of an alleged offense were influenced by the

criminal act; that is, the conduct or statements show a consciousness of

guilt. Such statements do not raise a presumption of guilt. If you find the

defendant made statements that were influenced by the crimes, you may,

but are not required to, infer that he was acting from a guilty conscience.’’

9

In his brief, the defendant refers in general terms to ‘‘the testimonial

hearsay provided by Lavery,’’ but his claim in substance is that the state

failed to present a witness—unlike Lavery—who could have testified with

regard to the method by which his telephone conversations were recorded

and that such a failure deprived him of his right to confrontation.

10 Although the defendant does not rely on Montgomery for this aspect

of its holding, the court in Montgomery went on to conclude that the Doyle

violation was harmless beyond a reasonable doubt. State v. Montgomery,

supra, 254 Conn. 717–21.

11 In his principal appellate brief, the defendant suggests that the prosecutor deliberately introduced the evidence at issue, stating: ‘‘Indeed, the prosecutor knew that [the defendant] only answered two questions [during the

police interview], but proceeded to purposefully elicit additional testimony

that he refused to answer any further questions.’’ The defendant, without

referring to any evidence in the record, characterizes the prosecutor’s conductin this manner, but he does notraise a claim of prosecutorial impropriety

in this appeal.