STATE OF CONNECTICUT v. ZACHARY JAY ELSON
(AC 28007)
Bishop, Harper and Dupont, Js.
Argued December 10, 2008—officially released August 4, 2009*
The defendant‘s motion for reconsideration and reargument en banc was granted by this court on September 3, 2009.
Part V of this opinion has been superseded by State v. Elson, 125 Conn. App. 328, 9 A.3d 731 (2010).
The judgment is affirmed.
In this opinion the other judges concurred.
Timothy J. Sugrue, senior assistant state‘s attorney, with whom, on the brief, were Stephen J. Sedensky III, state‘s attorney, and Warren C. Murray, supervisory assistant state‘s attorney, for the appellee (state).
Opinion
HARPER, J. The defendant, Zachary Jay Elson, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of
On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On September 3, 2004, the female victim was a student enrolled at Western Connecticut State University. During the late afternoon, the victim was working on a project in an empty classroom at the university‘s Danbury campus. The defendant, who was not a student enrolled at the university, entered the classroom, pretending to search for a lost cellular telephone. The defendant spoke with the victim about the telephone; the victim told him that she had not seen it and suggested that he speak with campus police or the maintenance staff. The defendant lingered in the classroom, inquired about the victim‘s project and asked if he could
Several minutes after this encounter, the defendant returned to the classroom. The defendant stated that he had forgotten to look on the floor for his telephone. The victim remained seated while she worked but soon sensed the defendant approach her. The victim turned her attention to the defendant and observed him holding a knife near her neck. The victim grabbed the knife and tried to pull it away from the defendant. In the struggle that ensued, the victim fell to the floor and attempted to crawl away. The defendant pursued the victim. He positioned her so that she was lying on her back and then positioned himself on top of her. He straddled her such that each of his knees was on either side of her body and, as the victim continued to resist, punched the victim in her face with his fist. For a brief period of time, the defendant prevented the victim from fleeing. Ultimately, the victim freed herself from the defendant and obtained assistance from others on campus.
Several days into their investigation, police detectives located and questioned the defendant. The defendant initially told the detectives that he had never been to the campus and had a spotty recollection of his activities on September 3, 2004. After being informed that a female had sustained injuries that were not life threatening on that date at the university, the defendant stated: “I don‘t remember why I did it. I got angry.” He characterized what had occurred as “all a big mistake.”
In a written statement that the defendant voluntarily provided to the detectives, he admitted that he had driven to the campus on September 3, 2004, emptied garbage from his automobile and began walking to “see
The defendant recalled entering a classroom in which he observed a young female who was working on a sketch. He intended to initiate a conversation with her and recalled speaking with her. The defendant stated that when he began to walk away from her, the tip of a knife that he carried in the pocket of his pants poked his leg. According to the defendant, he removed the knife from his pocket, and, at that moment, the female turned to him, observed the knife and began yelling. The defendant stated that “everything went from a thick haze to a fearful blur” and that he “must have reached out to try to stop her but accidentally hurt her.” The defendant stated: “I remember an overpowering feeling of fear; things speeding by, and [I] punched her in her head—she had fallen, and in doing so, maybe knocked the knife out of my hand—I had to pick it up. I punched her again, and my hands were bloody, I never said a word. I think she whimpered when I had rushed to pick up the knife and ran.” The defendant stated that he returned to his automobile and quickly drove away from the scene. Following the incident, the defendant traveled to a fast-food restaurant where he washed the victim‘s blood off his hands. He also traveled to a highway rest stop where he changed his clothing and discarded the clothing and sneakers that he had worn during the attack in a nearby wooded area.
The victim sustained numerous physical injuries. Those injuries included lacerations on the fingers of her right hand; one of her fingers required surgery to
I
First, the defendant claims that, with regard to his assault conviction, the court improperly permitted the jury to find that his hands were dangerous instruments. We disagree.
The defendant posits that on the evidence presented at trial, it was reasonable for the jury to have found that he inflicted injury to the victim by the use of a knife and the use of his unclad hands. The defendant argues that the court‘s charge was ambiguous with regard to what constitutes a dangerous instrument and, consequently, that it reasonably was possible that the jury found that his hands were dangerous instruments for purposes of
The gist of the claim is that the court‘s instruction concerning the “dangerous instrument” element of
The defendant suggests that he preserved his claim for appellate review by means of his written request to charge. Several factors lead us to conclude otherwise. First, the defendant did not submit a requested instruction concerning
Second, the defendant did request an instruction for the lesser included offense of assault in the second degree in violation of
The defendant argues that if this court determines that his claim is not preserved, review under the doctrine enunciated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), is appropriate. The defendant asserts: “The court‘s failure to specify the ‘dangerous instrument’ resulted in the jury being misled as to the correct application of the term, and this mistake diluted the state‘s burden of proof on an essential element of the crime charged.” We will review the claim
“The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which [it] might find to be established. . . . When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety . . . and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court‘s charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party. . . . In this inquiry we focus on the substance of the charge rather than the form of what was said not only in light of the entire charge, but also within the context of the entire trial. . . . Moreover, as to unpreserved claims of constitutional error in jury instructions, we have stated that under the third prong of Golding, [a] defendant may prevail . . . only if . . . it is reasonably possible that the jury was misled . . . .” (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 179, 920 A.2d 236 (2007).
The defendant‘s claim rests on the proposition that the court‘s charge was ambiguous such that it is reasonably possible that the jury was led to believe that the defendant could have committed the crime solely with the use of his hands and not a knife. We conclude that it was not reasonably possible that the jury would have drawn such an interpretation from the court‘s charge. In instructing the jury on the elements of the crime of assault in the first degree, the court stated that one of
The court did not discuss the evidence relevant to the dangerous instrument portion of its instruction and, thus, did not convey expressly to the jury that it would have been permissible for it to find that the crime was committed by the defendant‘s use of his unclad hands or that the evidentiary basis for the charge was conduct involving the defendant‘s use of his hands.4
Our review of the court‘s instructions concerning other elements of the crime, however, reflects that the court conveyed to the jury that the evidentiary basis of the charge, and the subject of its instruction, was the defendant‘s use of a knife. The court instructed the jury that the state bore the burden of proving that the defendant intended to cause serious physical injury to
When reviewing claims of instructional error, this court does not examine individual instructions in artificial isolation but in light of the charge in its entirety. Likewise, we do not examine provisions from the
The state presented evidence that the defendant inflicted numerous injuries to the victim. The evidence supported a finding that the victim sustained a laceration on her chin, a laceration on her left arm, a laceration in the area of her left eye and lacerations to her fingers. The victim underwent a surgical procedure to repair a tendon in one of her fingers, and the lacerations resulted in scars. The victim also testified that she sustained bruises as a result of falling to the floor and being punched. There also was evidence that the victim experienced a substantial degree of pain and discomfort following the attack. The evidence as to the manner in which these injuries were inflicted consisted of the victim‘s testimony that she grabbed for the knife when she detected the defendant holding it to her neck, that she fell to the floor while attempting to pull the knife away and that when she was on the floor, the defendant flipped her on her back, straddled her and struck her in the face with his fist. The victim also testified that she hit her head on the tiled floor of the classroom when the defendant flipped her over. The victim also testified that when the defendant was holding the knife to her neck, she could not get away from him without sustaining a laceration. The victim testified that at the time the defendant punched her, he was not holding a knife. The victim also testified that she did not remember being punched anywhere except in the area of her mouth.
During closing argument, the defendant‘s attorney argued in relevant part that the defendant lacked the intent necessary for the commission of the crime. In arguing that the defendant did not intend to cause the victim‘s injuries, the defendant‘s attorney drew the jury‘s attention to injuries related to the defendant‘s use of a knife. He argued: “His Honor, I believe, will instruct you relating to . . . injuries with the knife accidentally while [the defendant] reached out toward the complainant. An accidental injury or unintended consequence occurs when an unexpected . . . result arises from an intended act.” Similarly, the defendant‘s attorney discussed the defense of intoxication in relation to the defendant‘s use of a knife. Counsel stated: “One might, in analyzing the evidence, draw the inference that . . . the intoxication did affect [the defendant‘s] ability to form the requisite intent. Others of you might well consider that I don‘t even have to go there; it appears to be an accident as far as the . . .
The court, in its charge, drew the jury‘s attention to the evidence of the defendant‘s use of a knife as a dangerous instrument. The court delivered a technically accurate instruction in defining dangerous instrument as “any instrument, article or substance, which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury.” The court did not explicitly or implicitly suggest that the defendant‘s unclad hands could constitute dangerous instruments. Additionally, the victim‘s injuries mainly consisted of lacerations to her hands, face and arm. A reasonable view of the evidence strongly supported a finding that the lacerations were caused during the victim‘s struggle to take the knife from the defendant and that they were caused by a knife, not the defendant‘s hands or any other object. Consequently, the parties, in argument as to the assault charge, focused on the defendant‘s use of a knife during the attack. Our review of the preceeding factors reflects the state‘s theory of the case, namely, that the defendant intended to and did inflict serious physical injury with a knife. For all of these reasons, we conclude that it was not reasonably possible that the court‘s instruction led the jury to consider the defendant‘s hands as dangerous instruments. Accordingly, the defendant has not demonstrated that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial; the claim fails under Golding‘s third prong.5
Next, the defendant claims that the court improperly admitted into evidence a knife that the state argued that he used during the attack. We disagree.
The following procedural history is relevant to the defendant‘s claim. During the state‘s case-in-chief, the state presented evidence concerning the defendant‘s use of a knife during the attack. The state also presented evidence that the police discovered a knife partially concealed on the floor of the defendant‘s automobile, beneath the driver‘s seat. The state moved for the admission of the knife as well as four photographs depicting the knife. The defendant objected to the admission of this evidence on the ground that the state had not laid a sufficient foundation in the evidence to demonstrate that the knife was relevant to any issue in the case. During argument as to these exhibits, the parties and the court agreed that there was a red substance, which resembled blood, on the knife. The state had not presented any evidence concerning this substance, and the defendant argued that the admission of the knife with the substance on it would raise the risk of the jury drawing impermissible inferences from the evidence. The defendant suggested that a similar knife be shown to the jury in place of the actual knife that had been seized by the police.
The court overruled the defendant‘s objection to the evidence. The court stated that the knife was relevant and that the defendant‘s arguments to the contrary pertained to the weight of the evidence, not its admissibility. The court, however, ruled that the exhibit must be redacted in some manner, such that the jury would not be made aware of the blood-like substance on the knife. Prior to closing arguments, the prosecutor and the defendant‘s attorney notified the court that they had reached an agreement as to the knife and a related
On appeal, the defendant reiterates the claim that he raised before the court concerning the relevance of the knife. The defendant argues that the state failed to lay an adequate foundation in the evidence to demonstrate that the knife admitted into evidence, or one like it, was used in the attack. The defendant argues that the knife admitted into evidence was a large carving knife and that the victim had testified that the defendant had used a smaller steak knife during the attack. The defendant also argues that there was evidence that he had told police that during the incident he had brandished a six inch knife, which he had removed from his pocket. The defendant argues that insofar as it was not clear whether he was referring to the length of the knife or the length of its blade, this statement did not support the admissibility of the large knife that the court admitted into evidence.7
At the time that the state offered the knife into evidence, it had presented the following evidence. The victim testified as to the manner in which the attack occurred, the lacerations she sustained during the attack and the defendant‘s use of a knife. She testified that she had observed the knife, describing it as a “dinner, steak-type knife with a serrated edge and a brown
handle.” Upon being shown a photograph of the knife, the victim testified that the knife depicted in the photograph was similar to the knife used during the attack.Matthew Reilly, a state police trooper, testified that the defendant‘s automobile had been seized by the police and taken to a police facility where he searched it. Reilly testified that he found the knife under the driver‘s seat of the defendant‘s automobile where it was partially obscured by a floor mat. Reilly described the knife as “a long serrated CUTCO brand knife, like a kitchen knife, something that . . . everybody has in their kitchen.” Reilly further described the knife as having a black handle made of a plastic-like material, with a blade measuring approximately seven inches.
David Edwards, a state police detective, testified that he and another detective had located and interviewed the defendant during their investigation of the reported crime. Edwards testified that the defendant told him that he had entered the classroom with a knife in his pocket. Edwards testified: “I asked [the defendant] to describe the knife. He said it was a CUTCO knife. It was six inches long, serrated edge with a black thermal resin handle.” Edwards testified that the defendant had voluntarily provided him with a handwritten statement of the events at issue. Edwards read from the statement, which was admitted into evidence. In the statement, the defendant recalled that prior to the assault, he had removed a CUTCO knife from his automobile and carried it in his pocket. The defendant recalled that during the struggle that ensued with the victim, he had dropped the knife. After the struggle his hands were bloody, and he “rushed to pick up the knife” and quickly left the scene. Edwards testified that he was unsure if the defendant‘s description of the knife being “six inches long” referred to the length of its blade or the total length of the knife.
The defendant‘s intent, the manner in which the assault occurred and the cause of the victim‘s injuries were material issues before the jury. The knife used by the defendant, which was integral to the assault charge, was highly relevant to the state‘s case because it shed light on these issues. The defendant does not dispute the foregoing but argues that the state failed to lay an adequate foundation in the evidence that the knife admitted into evidence had any connection to the crime.
The victim testified that a dinner or steak type of knife, with a serrated edge, was used by the defendant during the attack. More importantly, after being shown a photograph of the knife admitted into evidence, the victim testified that the knife admitted into evidence was similar to the one used during the attack. The jury reasonably could have inferred that as between the victim and the defendant, the defendant would have had a far greater degree of familiarity with the knife that he carried into the classroom on September 3, 2004. The defendant told the police that the knife that he carried into the classroom, in his pants pocket, was a CUTCO brand knife with a serrated edge and a black handle. The knife admitted into evidence met all three of these specific criteria.8
Additionally, there was evidence that the defendant went into the classroom with a knife that he had retrieved immediately beforehand from his automobile. The defendant returned to this same automobile immediately after the attack. It is reasonable to infer that the defendant, who quickly left the classroom after picking up the knife, returned to the automobile with the knife. In this regard, we are mindful that the evidence permitted a finding that the defendant took steps to
The description of the knife provided by both the victim and the defendant, the evidence of the defendant‘s activities on the day of the incident and the evidence of the location in which the knife was discovered by the police amply supported the court‘s determination that the knife was relevant evidence. The state, as the proponent of the evidence, needed only to demonstrate that the knife had a “tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.”
The defendant argues that several factors should lead us to a different conclusion with regard to his claim. First, he argues that the victim described the knife as a steak type of knife and that the knife admitted into evidence was a larger carving style knife.
Second, he argues that the knife admitted into evidence was far larger than the knife that the defendant described as being six inches long. Third, the defendant argues that the significance of the fact that the knife was found by the police in his automobile is lessened by evidence that the police found other knives in his automobile and that, prior to his arrest, he had been employed by the CUTCO cutlery company. These arguments are not persuasive in an analysis of the admissibility of this evidence; they are fodder for the consideration of the finder of fact. See Jewett v. Jewett, 265 Conn. 669, 680, 830 A.2d 193 (2003) (“[t]he fact that evidence is susceptible of different explanations
III
Next, the defendant claims that the court, in its jury charge, improperly commented on his interest in the outcome of the case, improperly commented on the state‘s interest in protecting innocent persons from being convicted of crimes and delivered an instruction on reasonable doubt that diluted the state‘s burden of proof. The defendant argues that when viewed in its entirety, the court‘s instruction misled the jury and infringed on his rights under the state and federal constitutions.9 We disagree.
We will address each aspect of the defendant‘s claim in turn. The following standard of review, however, applies to all three parts of the claim: “[I]n reviewing a constitutional challenge to the trial court‘s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. . . . The test is whether the charge as a whole presents the case to the jury so that no injustice will result. . . . We will reverse a conviction only if, in the context of the whole, there is a reasonable possibility that the jury was misled in reaching its verdict. . . . A jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether
A
The first part of the defendant‘s claim is that the court improperly commented on his interest in the outcome of the trial.10 During its charge, the court stated: “In this case, the defendant testified. An accused person, having taken the [witness] stand, stands before you just like any other witness. He is entitled to the same considerations and must have his testimony tested and measured by you by the same factors and standards as you would judge the testimony of any other witness. That necessarily involves a consideration of his interest in the verdict that you will render. Of course, you have no right to disregard his testimony or to disbelieve his testimony merely because he is accused of a crime. You will consider my earlier instructions on the general subject matter of credibility that obviously pertain to the defendant‘s testimony as well as the testimony of any other witness.”
The defendant acknowledges that our Supreme Court, in State v. Williams, 220 Conn. 385, 396-97, 599 A.2d 1053 (1991), rejected a constitutional challenge to similar instructional language. The court in Williams, relying on its precedent in State v. Mack, 197 Conn. 629, 500 A.2d 1303 (1985), and State v. Avcollie, 188 Conn. 626, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983), held that the trial court‘s reference to the defendant‘s interest in the outcome of the trial did not deprive him of a fair trial. State v. Williams, supra, 397. Having carefully reviewed the language at issue, the court in Williams reasoned: “The continual emphasis was that the jury was to evaluate the defendant‘s testimony in the same fashion as the testimony of the other witnesses. We have repeatedly approved the use of similar language and we do not find its use here unduly repetitive or transcending the bounds of evenhandedness.” Id.
Relying on Williams, we reject the defendant‘s challenge in the present case. In its charge, the court did not unduly emphasize the defendant‘s interest in the outcome of the trial. The clear import of the court‘s instruction was that the jury was to evaluate the defendant‘s testimony in the same fashion as the testimony of the other witnesses who testified during the trial. This result accords with other relevant decisions of this court that have followed Williams. See, e.g., State v. Smith, 65 Conn. App. 126, 143-44, 782 A.2d 175 (2001), rev‘d on other grounds, 262 Conn. 453, 815 A.2d 1216 (2003); State v. Maia, 48 Conn. App. 677, 688-90, 712 A.2d 956, cert. denied, 245 Conn. 918, 717 A.2d 236 (1998); State v. Tyson, 43 Conn. App. 61, 69, 682 A.2d 536, cert. denied, 239 Conn. 933, 683 A.2d 401 (1996); State v. Scarpiello, 40 Conn. App. 189, 212-15, 670 A.2d 856, cert. denied, 236 Conn. 921, 674 A.2d 1327 (1996).
In United States v. Gaines, 457 F.3d 238, 247 (2d Cir. 2006), the United States Court of Appeals for the Second Circuit expressed its “disapproval of a jury instruction highlighting a testifying defendant‘s deep personal interest in the outcome of a trial.” The court discussed the risk that such an instruction denigrated a defendant‘s testimony and directed that in future cases, district courts should not deliver such an instruction to juries. Id., 249. Relying on Gaines, the defendant urges us to “revisit” the prior decisions of our state courts that have upheld the constitutionality of instructions concerning a testifying defendant‘s interest in the outcome of the trial. “In general, we look to the federal courts for guidance in resolving issues of federal law. . . . Decisions of the Second Circuit Court of Appeals, although not binding on us, are particularly persuasive.” (Citations omitted.) Turner v. Frowein, 253 Conn. 312, 340-41, 752 A.2d 955 (2000). In contrast, it is axiomatic that this court, as an intermediate court of appeal, is bound by the decisions of our Supreme Court; we are not at liberty to contradict those decisions. Accordingly, insofar as Gaines may conflict with the Supreme Court precedent on which have relied, we decline the defendant‘s invitation to apply the rationale of Gaines to his claim.
B
The second part of the defendant‘s claim is that the court improperly commented on the state‘s interest in protecting innocent persons from being convicted of crimes, thereby diluting the state‘s burden of proof.11
In its charge, the court stated: “The defendant justly relies upon you to consider carefully all of the evidence and to find him not guilty if the facts and the law require such a verdict. The state, as well, does not want the conviction of an innocent person. The state is as much concerned in having an innocent person acquitted as in having a guilty person convicted. At the same time, the state does look to you to uphold the law and to render a verdict of guilty if the facts and law require that verdict.”
The defendant claims that the instruction tended to dilute the state‘s burden of proof because “it indicates that the state is only concerned with [avoiding the conviction of] an innocent person and . . . that the jury should be similarly concerned.” The defendant claims that because of the instruction, it was reasonably possible that the jury was misled as to his presumption of innocence and the state‘s burden of proof. This claim is constitutional in nature. See, e.g., State v. Schiappa, 248 Conn. 132, 168, 728 A.2d 466 (en banc) (treating as constitutional in nature claim that trial court deprived defendant of right to fair trial by stating that reasonable doubt standard made to protect innocent), cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999).
In his brief, the defendant argues that the court‘s instruction is materially similar to instructions criticized by our Supreme Court in State v. Schiappa, supra, 248 Conn. 170-71, and State v. Francis, 228 Conn. 118, 136 n.19, 635 A.2d 762 (1993). In Schiappa, the trial court, in its charge, discussed the presumption of innocence and the state‘s burden of proof beyond a reasonable doubt. State v. Schiappa, supra, 170. The court then stated: “But you must keep in mind that this rule
Initially, we observe that the instruction at issue in the present case is materially distinct from those challenged in Schiappa and Francis. Here, the court did not instruct the jury that any rule of law was designed to protect the innocent rather than the guilty. Instead, the court referred to the interest of the state in avoiding the conviction of innocent persons. It is less likely that the court‘s comments concerning the interest of the state, rather than the purpose of the law that governed the case and was binding on the jury, would tend to mislead the jury as to the legal principles that apply.
The challenged instruction in the present case is closer in nature to the instructions reviewed in State v. Lawrence, supra, 282 Conn. 180; State v. McCarthy, 105 Conn. App. 596, 621-25, 939 A.2d 1195, cert. denied, 286 Conn. 913, 944 A.2d 983 (2008); State v. Pauling,
C
Also, the defendant claims that the court‘s instruction on reasonable doubt deprived him of his due process right to a fair trial because it diluted the state‘s burden of proof.13 The court instructed the jury in relevant part: “The meaning of reasonable doubt can be arrived at by emphasizing the word ‘reasonable.’ It is not a surmise, a guess or mere conjecture. It is not a doubt suggested
“Proof beyond a reasonable doubt does not mean proof beyond all doubt. The law does not require absolute certainty on the part of the jury before it returns a verdict of guilty. The law requires that after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in the minds of the jurors, as reasonable men and women, a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.”
The defendant argues that the court‘s statement that reasonable doubt “is not a doubt suggested by counsel which is not warranted by the evidence” is substantively similar to the “ingenuity of counsel” instruction that our Supreme Court criticized in State v. Delvalle, 250 Conn. 466, 473-76, 736 A.2d 125 (1999). In that decision, our Supreme Court, invoking its supervisory authority over the administration of justice, directed trial courts to refrain from delivering an instruction stating that reasonable doubt was not a doubt suggested by the ingenuity of counsel. Id., 475-76. Nonetheless, the court in Delvalle rejected the constitutional challenge raised
Both our Supreme Court and this court have held that instructions nearly identical to those challenged here are not constitutionally infirm. See, e.g., State v. Betances, 265 Conn. 493, 511, 828 A.2d 1248 (2003) (“reasonable doubt is not a doubt suggested by counsel which is not warranted by the evidence” [internal quotation marks omitted]); State v. Alexander, 95 Conn. App. 154, 160, 895 A.2d 865 (“[i]t is not a doubt suggested by counsel, which is not warranted by the evidence” [internal quotation marks omitted]), cert. denied, 280 Conn. 909, 908 A.2d 539 (2006); State v. Flowers, 85 Conn. App. 681, 699, 858 A.2d 827 (2004) (“[reasonable doubt] is not a doubt suggested by counsel which is not warranted by the evidence” [internal quotation marks omitted]), rev‘d on other grounds, 278 Conn. 533, 898 A.2d 789 (2006); State v. Daniels, 83 Conn. App. 210, 224, 848 A.2d 1235 (“reasonable doubt is not a doubt suggested by counsel, which is not warranted by the evidence” [internal quotation marks omitted]), cert. denied, 270 Conn. 913, 853 A.2d 528 (2004); State v. Walsh, 67 Conn. App. 776, 795, 789 A.2d 1031 (“[reasonable doubt] is not a doubt suggested by counsel which is not warranted by the evidence” [internal quotation marks omitted]), cert. denied, 546” court=“Conn.” date=“2002“>260 Conn. 906, 795 A.2d 546 (2002). In accordance with this precedent, and having examined the challenged instruction in the context of the entire charge, we conclude that it is not reasonably possible that the court‘s instruction misled the jury. The court accurately conveyed to the jury the state‘s burden of proving its case beyond a reasonable doubt and, on numerous occasions during its charge, instructed the jury that the state‘s burden of proof applied to each element of the crimes at issue.14
We disagree with each aspect of the defendant‘s claim and conclude that the challenged instructions, either viewed individually or as a group, did not violate the defendant‘s right to a fair trial.
IV
Next, the defendant challenges the sufficiency of the evidence with regard to his conviction of assault in the first degree in violation of
“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we
“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . [T]he trier of fact may credit part of a witness’ testimony and reject other parts.” (Citation omitted; internal quotation marks omitted.) State v. Millan, 290 Conn. 816, 825, 966 A.2d 699 (2009).
We will address each part of the defendant‘s claim in turn. We note that at the close of the state‘s case-in-chief, the defendant moved for a judgment of acquittal. The defendant‘s motion encompassed both parts of the sufficiency of the evidence claim raised here. The court denied the defendant‘s motion. Thereafter, the defendant elected to testify. In accordance with the so-called “waiver rule,” our evaluation of the evidence will encompass not only the evidence presented during the state‘s case-in-chief but the defendant‘s testimony as well. See State v. Martin, 285 Conn. 135, 143 n.11, 939 A.2d 524, cert. denied, 555 U.S. 859, 129 S. Ct. 133, 172 L. Ed. 2d 101 (2008), after remand, 110 Conn. App. 171, 954 A.2d 256, cert. granted on other grounds, 289 Conn. 944, 959 A.2d 1010 (2008).
A
The defendant‘s first argument is that the evidence did not permit a finding that the victim sustained serious physical injury as a result of his use of a dangerous instrument.
We begin by noting that the jury reasonably could have found that the victim sustained lacerations to her right hand as a result of the defendant‘s use of a knife during the incident in the classroom. The defendant acknowledged that he caused injury to the victim‘s little finger on that hand by his use of a knife. The defendant also acknowledged that the knife constituted a dangerous instrument.
The victim testified to the manner in which she sustained the injury to her hand. The victim also testified that her hand injuries required stitches and that with regard to her little finger, she had to undergo surgery to reconnect a lacerated tendon that had retracted. The victim stated that she was anesthetized during this surgical procedure. The victim testified that she is right-handed and that at the time of trial, more than seventeen months after the incident in the classroom, she did not have full flexibility in her finger. The victim stated that she was unable to make a fist or to straighten her finger fully. Medical records reflected that the victim sustained lacerations, measuring two centimeters in length, to the fourth and fifth digits of her right hand and that
The defendant characterizes the victim‘s hand injury as “a cut to her little finger . . . .” He argues that the injury was not serious in nature because the state did not present expert testimony concerning the severity of the injury, its permanence or whether it caused any physical impairment. According to the defendant, the victim‘s testimony was insufficient to demonstrate the seriousness of the injury.
We are mindful that “[n]o bright line exists between physical injury and serious physical injury . . . .” State v. Nival, 42 Conn. App. 307, 309, 678 A.2d 1008 (1996). The jury heard the victim‘s testimony concerning the manner that the physical injury to her hand occurred as well as the dangerous instrument that the defendant used to inflict such injury. The jury also observed the scarring related to the injury. The victim also testified as to the medical treatment that she underwent to surgically repair her little finger, the impaired use of her hand as well as the scarring that resulted from the injury. It belies common sense to argue that the victim lacked firsthand knowledge about any of these matters concerning the appearance of and physical impairment to her hand. In light of the type of injury at issue, we are not convinced that expert testimony was necessary to prove this element of the crime. The evidence reasonably permitted a finding that the victim sustained an injury that had required surgical treatment, has left her with an impairment to the use of her dominant hand and has left her hand visibly scarred. Accordingly, we disagree with the defendant that the victim‘s testimony,
B
The defendant next argues that the evidence did not permit a finding that he acted with the requisite mental state for the commission of the crime.
Our review of the defendant‘s brief reflects that he invites us to view his conduct on September 3, 2004, through a very narrow lens and to draw inferences consistent with his innocence. The defendant argues that “[t]he only fact that the jury had at its disposal to infer that he intended to use the knife was the mere fact that he was holding it. . . . [I]t cannot be said that this bare fact creates an inference based in the record to sustain the verdict.” The defendant states that the victim grabbed for the knife he was holding and “initiated a struggle” with him. Also, in arguing that the evidence of intent was lacking, he posits that he was “significantly inebriated” at the time of the incident.
“[I]ntent is generally proven by circumstantial evidence because direct evidence of the accused‘s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . It is axiomatic that a factfinder may infer an intent to cause serious physical injury from circumstantial evidence such as the type of weapon used, the manner in which it was
We have examined all of the evidence relevant to the issue of intent; this includes the evidence of the defendant‘s conduct before, during and after the incident in the classroom. Considering the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have made the following findings. The defendant arrived on campus without any legitimate reason to be there. He wandered about the campus until he observed the female victim alone in a classroom. He interacted with the victim under the false premise of looking for a lost cellular telephone. The defendant wandered about the campus and entered the classroom while carrying a knife that was approximately twelve inches long. The defendant brandished the knife in close proximity to the victim after she communicated her desire to be left alone.
In the ensuing struggle, the victim attempted to take the knife away from the defendant in an obvious attempt to protect herself from harm. Immediately after the knife fell to the floor, the defendant did not cease his interaction with the victim, apologize for her injuries or otherwise attempt to diffuse the situation. Instead, the defendant proceeded to strike the victim violently, to position himself on top of her and to prevent her from fleeing the scene. The defendant thereafter fled the campus and took steps to conceal evidence tying him to the incident.
On the basis of these findings, amply supported by the evidence, the jury reasonably could have inferred that the defendant used the knife while intending to cause serious physical injury to the victim. Contrary to
Additionally, with regard to his mental state, the defendant argues that the state did not rebut his testimony that, at the time of the attack, he was “significantly inebriated” as a result of his consumption of vodka. There was ample evidence before the jury concerning the defendant‘s conduct on September 3, 2004. To the extent that the defendant suggests that the jury was bound to accept as true his testimony concerning his consumption of vodka on that date, as well as its effect on his mental state, the argument lacks any basis in the law. The jury, as trier of fact, was free to reject, in whole or in part, the defendant‘s testimony in this regard; see, e.g., State v. Kerr, 107 Conn. App. 413, 425, 945 A.2d 1004 (“[t]he trier is free to accept or reject, in whole or in part, the testimony offered by either party” [internal quotation marks omitted]), cert. denied, 287 Conn. 914, 950 A.2d 1290 (2008); and to draw reasonable inferences from the evidence concerning the defendant‘s mental state at the time of the commission of the crime. The defendant‘s trial counsel argued that evidence of the defendant‘s consumption of alcohol was relevant to the jury‘s evaluation of his mental state. During its charge, the court thoroughly instructed the jury to consider whether the defendant was under the
For the foregoing reasons, we reject both parts of the defendant‘s sufficiency of the evidence claim.
V
Finally, the defendant claims that the court deprived him of his right to due process when it considered improper factors at the time of sentencing.16 The defendant argues that the court improperly considered (1) the fact that he proceeded to trial rather than accepting a plea bargain offered by the state and (2) the knife that was a full exhibit at the trial. As stated in her concurring opinion, Judge Dupont would review the defendant‘s claim. Upon undertaking such review, Judge Dupont concludes that the defendant is not entitled to resentencing and, therefore, concurs in the result
The record reveals that the defendant did not raise either part of this claim before the trial court, either at the time of sentencing or thereafter. My review of the defendant‘s brief reflects that he has analyzed both parts of this claim as being constitutional in nature; he argued that the court‘s consideration of improper factors at the time of sentencing infringed on his due process right to a fair trial and requested that this court remand the case for resentencing. In his brief, the defendant neither acknowledged nor addressed the fact that this claim was not raised before the trial court. He did not ask this court to engage in a Golding analysis or to engage in any extraordinary level of review of this unpreserved claim.17 In its brief, the state, relying on the factors just mentioned, argued that the claim is not reviewable by this court. The state, explicitly arguing in the alternative, also analyzed the claim on its merits. The defendant, in his reply brief, asserted that although he did not cite or otherwise invoke the doctrine of State v. Golding, supra, 213 Conn. 239-40, in his main brief, he “did fully address entitlement to such relief” and that the state addressed the merits of his constitutional claim.18 Thereafter, in his reply brief, the defendant affirmatively requested review under Golding and argued that such review was appropriate.19
Our Supreme Court has noted that ”Golding is a narrow exception to the general rule that an appellate court will not entertain a claim that has not been raised in the trial court. The reason for this rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial—after it is too late for the trial court or the opposing party to address the claim—would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party. . . . Nevertheless, because constitutional claims implicate fundamental rights, it also would be unfair automatically and categorically to bar a defendant from raising a meritorious constitutional claim that warrants a new trial solely because the defendant failed to identify the violation at trial. Golding strikes an appropriate balance between these competing interests: the defendant may raise such a constitutional claim on appeal, and the appellate tribunal will review it, but only if the record is adequate for appellate review.” Id., 580-81.
The defendant included a footnote in his reply brief in which he set forth boilerplate language discussing this court‘s supervisory powers but did not analyze how or why such powers should be exercised under the circumstances of this appeal. This cursory request for an extraordinary level of relief fails on several grounds. First, the request was made for the first time in the defendant‘s reply brief. Second, the issue has not been adequately briefed in that the defendant has done little more than assert that such powers should be exercised with regard to this claim. Reasoned analysis, rather than abstract assertions, is necessary to avoid the abandonment of issues raised in a brief. See, e.g., State v. Griggs, supra, 283 Conn. 123 n.12.
Additionally, an affirmative request for review under the Golding doctrine must be contained in an appellant‘s main brief. “It is well settled that Golding cannot be raised for the first time by way of reply brief. See State v. McKenzie-Adams, 281 Conn. 486, 533 n.23, 915 A.2d 822 (‘a party may seek to prevail on unpreserved claims . . . if the claims are constitutional in nature, under Golding, if the party affirmatively requests and adequately briefs his entitlement to such review in his main brief‘), cert. denied, 552 U.S. 888, 128 S. Ct. 248, 169 L. Ed. 2d 148 (2007); Lebron v. Commissioner of Correction, 274 Conn. 507, 532, 876 A.2d 1178 (2005) (declining to review constitutional claims under Golding because habeas petitioner had not briefed entitlement to Golding until he filed reply brief); State v. Garvin, 242 Conn. 296, 312, 699 A.2d 921 (1997) (‘[t]he reply brief is not the proper vehicle in which to provide
Here, the defendant‘s main brief contains only an analysis of his claim, which is constitutional in nature. The defendant did not affirmatively request review under Golding or assert that his claim was not preserved for appellate review. The defendant analyzed his claim as though it were a preserved constitutional claim; he set forth the statements of the court at issue and argued that they violated his right to due process. Merely raising and analyzing a claim of constitutional magnitude, however, does not constitute an affirmative request for Golding review.20 Our Supreme Court‘s recent decision in In re Melody L., 290 Conn. 131, 962 A.2d 81 (2009), directly supports that proposition. In that case, an appellant raised and analyzed an unpreserved constitutional claim. Id., 154. Our Supreme Court
In the present case, the defendant neither mentioned nor requested Golding review in his main brief. I decline to engage in a level of review that was requested for the first time in the defendant‘s reply brief. Accordingly, I decline to review the defendant‘s unpreserved constitutional claim.
The judgment is affirmed.
In parts I, II, III and IV of this opinion, the other judges concurred. In part V of this opinion, DUPONT, J., concurred in the result.
DUPONT, J., concurring in part. I write separately because I respectfully disagree with the majority‘s decision, in part V of its opinion, to decline review of the claim by the defendant, Zachary Jay Elson, that the trial court considered improper factors when sentencing him, thereby depriving him of his constitutional due process rights.
The defendant in the present case has supplied a record adequate for review and has demonstrated that his claim is of constitutional magnitude, as the majority acknowledges. Accordingly, I believe that his claim is reviewable and should be examined under the third and fourth prongs of Golding to determine whether there is sufficient merit to the defendant‘s claim, such that the defendant should prevail.2
The third prong of Golding asks whether “the alleged constitutional violation clearly exists and clearly
“As a general matter, a trial court possesses, within statutorily prescribed limits, broad discretion in sentencing matters. On appeal, we will disturb a trial court‘s sentencing decision only if that discretion clearly has been abused. . . . In spite of that discretion, however, the [a]ugmentation of sentence based on a defendant‘s decision to stand on [his or her] right to put the [g]overnment to its proof rather than plead guilty is clearly improper. United States v. Araujo, 539 F.2d 287, 291-92 (2d Cir.), [cert. denied sub nom. Rivera v. United States], 429 U.S. 983, 97 S. Ct. 498, 50 L. Ed. 2d 593 (1976).” (Citation omitted; internal quotation marks omitted.) State v. Kelly, 256 Conn. 23, 80-81, 770 A.2d 908 (2001). Review of such claims “should be based on the totality of the circumstances [and] the burden of proof in such cases rests with the defendant.” Id., 82. Therefore, the remark in question must be viewed in the context of the entire sentencing hearing.
The court then discussed the victim‘s testimony, asserting that it “found the victim‘s testimony at trial entirely credible.” The court stated: “A person intends the natural consequences of his acts. . . . [The] defendant came about six inches away from killing this young woman or completely ruining her life . . . . As the state correctly points out, the victim was totally blameless. This is not a case in which the victim knew the defendant, provoked the defendant, enticed the defendant or did anything to threaten the defendant. The victim bears no part of the blame for this incident.
The court proceeded to discuss the defendant‘s defense of intoxication. The court stated: “Even if the defendant had drunk to an excess, there must be some deep-seated anger within the defendant that explains this act of rage and violence, which the state aptly points out appears to be part of a pattern. This, in my view, makes the defendant a dangerous person. One from whom the victim, [Western Connecticut State University] and society should be protected. . . . Furthermore, intoxication simply does not explain his statement to the police and his testimony in court that this was an accident. . . . [T]his was no accident. I do not believe the defendant‘s testimony that he just happened to get poked in the leg with his knife; that he just happened to pull the knife out at that time and that [the victim] just happened to turn around at that time. I believe the defendant gave a false explanation to the police, that he testified falsely in court and that he essentially obstructed justice in doing so. And this is an aggravating factor.”
Next, the court stated: “The probation report recommends lengthy incarceration. Perhaps lengthy is somewhat of an unclear term, but I think I know what that means, and I agree for all the reasons I‘ve stated. The defendant committed these crimes while he was out on bail on other felony charges. . . . A judge in Norwalk trusted the defendant and released him. The defendant abused that trust in the worst way. No judge has a crystal ball. We cannot tell for certain when we make bail decisions who will commit crimes while on bail
I believe that in this case, the totality of the circumstances surrounding the defendant‘s sentencing gives no indication that the court improperly augmented the defendant‘s sentence on the basis of his decision to stand trial. The context of the court‘s remark that “[i]f the defendant had been truly apologetic, he wouldn‘t have put the victim through the trial,” makes it clear that the court was merely expressing its doubt as to the sincerity of the defendant‘s apology to the victim. There is no evidence that the court considered the fact that the defendant caused the victim to endure the trial when it determined the length of his sentence. Therefore, the defendant cannot prevail on his claim because he has failed to demonstrate that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial, in satisfaction of the third prong of Golding.4 Because the defendant has not satisfied the third prong of Golding, there is no need to perform a harmless error analysis in conformance with the fourth prong of Golding. I agree with the majority‘s
BISHOP, J., concurring in part and dissenting in part. I agree with the majority‘s well reasoned analysis and its disposition of the claims of the defendant, Zachary Jay Elson, regarding the judgment of conviction. I write separately, however, because I believe the defendant‘s sentencing claim raises a troubling issue warranting resentencing. With respect to the state‘s claim that this issue has not been adequately preserved for review, I write separately from Judge Dupont because I reach the issue by following a different analytical path.
The state claims that we should not review the defendant‘s sentencing claim because the issue was unpreserved1 and he did not seek review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), in his initial brief. I agree with Judge Dupont that the failure of a party to cite to Golding need not invariably prevent review of a claim that is otherwise properly briefed.2 I
“Appellate courts possess an inherent supervisory authority over the administration of justice. . . . The standards that [are] set under this supervisory authority are not satisfied by observance of those minimal historic safeguards for securing trial by reason which are summarized as due process of law . . . . Rather, the standards are flexible and are to be determined in the interests of justice. . . . [O]ur supervisory authority [however] is not a form of free-floating justice, untethered to legal principle. . . . [T]he integrity of the judicial system serves as a unifying principle behind the seemingly disparate use of our supervisory powers. . . . [O]ur supervisory powers are invoked only in the rare circumstance where [the] traditional protections are inadequate to ensure the fair and just administration of the courts . . . .” (Internal quotation marks omitted.) State v. Mukhtaar, 253 Conn. 280, 290 n.11, 750 A.2d 1059 (2000); see also Practice Book §§ 60-1 and 60-2. Additionally, “[i]n certain instances, dictated by the interests of justice, we may, sua sponte, exercise our inherent supervisory power to review an unpreserved claim that has not been raised appropriately under the
I begin with the elementary principle that a defendant‘s right to trial is among the most cherished constitutional rights. As noted by the United States Supreme Court: “Although some are prone to overlook it, an accused‘s right to trial by a jury of his fellow citizens when charged with a serious criminal offense is unquestionably one of his most valuable and well-established
The record in the case at hand reveals that at sentencing, the trial court stated: “We‘ve all heard the defendant‘s apology. I don‘t know how sincere it is, but it is certainly unfortunate that it comes so late in the process. If the defendant had been truly apologetic, he wouldn‘t have put the victim through the trial. To a large extent it seems to me that the defendant‘s apology represents thinking of himself rather than the victim.”
The defendant claims that these comments reveal that the court improperly considered at sentencing his decision to go to trial and that his sentence improperly was elongated by this consideration.7 The defendant
As noted by Judge Dupont, our Supreme Court, in Kelly, adopted a “totality of the circumstances” test. Id., 82.9 Judge Dupont surveyed the circumstances of
In the present case, the court not only took into consideration that the defendant exercised his right to trial, but the court equated that choice with the absence of remorse. Although the teaching of Kelly is that we must assess all of the circumstances, no part of Kelly requires us to give equal weight to the factors considered by the court. Thus, as in this case, I believe that if it is apparent that the court impermissibly considered, as a factor, the defendant‘s exercise of a fundamental right as proof of lack of remorse, that factor alone sufficiently taints the sentencing process to warrant resentencing.
Clearly, a court may take a defendant‘s remorse or lack of it into consideration in imposing sentence. Our Supreme Court has stated: “Among the factors that may be considered by a court at a sentencing hearing are the defendant‘s demeanor and his lack of veracity and remorse as observed by the court during the course of the trial on the merits. See, e.g., United States v. Grayson, 438 U.S. 41, 47-48, 50-52, 98 S. Ct. 2610, 57 L. Ed.
Here, rather than assessing the sincerity of the defendant‘s remorse by reference to his demeanor as a witness or other behaviors, the court discounted his expression of remorse at sentencing on the basis of its timing, commenting that if he had been truly apologetic, the defendant would not have put the victim through a trial.10 In doing so, I believe that the court impermissibly conflated the question of remorse with the exercise of a fundamental constitutional right. In arriving at this conclusion, I do not suggest that it is always impermissible for a court to consider, as a sentencing factor, the impact on a victim of being required to testify at trial, but, here, the court went beyond that consideration to conclude that the defendant‘s exercise of a fundamental constitutional right, itself, demonstrated a lack of remorse.11 In making this determination, I believe, the
If a defendant‘s election for a trial can be considered, itself, as evidence of the absence of remorse, a significant sentencing factor, it does not take a leap of logic to conclude that such a determination by a sentencing court will have a chilling effect on a defendant‘s exercise of this most fundamental constitutional right. In a constitutional system, that result cannot be tolerated. Accordingly, I respectfully dissent from that portion of the majority opinion concerning the sentencing claim. I would remand the matter for resentencing. In all other respects, I concur.
IN RE ELYSA D. ET AL.*
(AC 29555)
DiPentima, Lavine and Hennessy, Js.
* In accordance with the spirit and intent of
Notes
Here, we disagree that the defendant either implicitly or explicitly waived any objection to the court‘s instruction. The defendant did not provide the court with a requested instruction for assault in the first degree in violation of
Additionally, the defendant‘s failures to request an instruction in accordance with the language that he claims should have been used in the charge and to object to the court‘s charge as given do not, under the circumstances of the present case, reflect the defendant‘s acquiescence in the charge as given. It is also noteworthy that at no time during the proceeding did the defendant argue that it would have been legally proper for the jury to find that his hands constituted dangerous instruments. For all of these reasons, we are not persuaded that the defendant waived any objection to the court‘s charge insofar as it relates to the present claim.
The state recommended a sentence of twenty years incarceration, five years mandatory minimum, for assault in the first degree; five years incarceration, consecutive, for unlawful restraint; and ten years incarceration, suspended, but consecutive to the other two counts, with five years probation, for committing an offense while out on bond. Although our Supreme Court has made it clear that Golding may not be invoked for the first time in a reply brief, the rationale behind those rulings is to prevent unfair surprise and to give the state the opportunity to respond fully to the defendant‘s claims. See State v. Garvin, 242 Conn. 296, 312, 699 A.2d 921 (1997); State v. Rosario, 113 Conn. App. 79, 93, 966 A.2d 249, cert. denied, 291 Conn. 912, 969 A.2d 176 (2009). In each of those cases, however, as in the present case, the defendant briefed the constitutional issue in his initial brief, and the state, properly and thoroughly, briefed both the reviewability issue and the merits of the constitutional issue, fairly putting the rationale for this line of cases into question.We carefully have reviewed the transcript of the proceedings at trial for arguments of a similar nature that were raised before the trial court. The defendant‘s attorney, during the lengthy argument concerning the admissibility of the knife, stated: “[T]he court should have concern as to offering something susceptible to either the argument or the mistaken impression that it would otherwise leave in the eyes of the jury. And all relating to the state not taking what would be . . . the appropriate steps prior to establishing a foundation to support that argument or inference.” The defendant‘s attorney, discussing the lack of evidence to demonstrate that the knife was used in the attack, stated: “[T]he mere presence of the knife would unfortunately create a significant chance of . . . the misdrawing of inferences by a jury.” Further, in discussing what he deemed to be the “risk” associated with the admission of the knife, the defendant‘s attorney explained his concern solely in terms of the possibility that the jury could infer, absent any support in the record, that the substance on the knife was blood. Addressing this concern, the court ruled that the substance adhering to the knife was not admissible.
“Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he or she desires it to go upon the record, before any discussion or argument is had. . . .” Practice Book § 5-5. On appeal, “[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .” Practice Book § 60-5. Our thorough review of the proceedings does not reveal that the defendant distinctly raised before the trial court the claim of prejudice that he raises in this appeal, and the court did not address such a claim in its ruling. The defendant did not characterize his claim as one of unfair prejudice but in terms of relevancy and the state‘s ability to argue fairly that the knife was used during the attack. “Appellate review of evidentiary rulings is ordinarily limited to the specific legal issue raised by the objection of trial counsel. . . . In other words, [o]nce an objection has been made and the grounds stated, a party is normally limited on appeal to raising the same objection on the same basis as stated at trial.” (Citation omitted; internal quotation marks omitted.) State v. Trotter, 69 Conn. App. 1, 10-11, 793 A.2d 1172, cert. denied, 260 Conn. 932, 799 A.2d 297 (2002). To consider a claim articulated for the first time on appeal would result in a trial by ambuscade of the trial judge. See State v. Prioleau, 235 Conn. 274, 311, 664 A.2d 743 (1995). We decline to review the claim of prejudice raised for the first time in this appeal and limit our consideration to the claim of evidentiary error articulated by defense counsel before the trial court.
The defendant was convicted of assault in the first degree and unlawful restraint in the first degree. He was found not guilty of attempt to commit assault in the first degree. He was also charged, in a part B information, with the commission of these crimes while out on bond for unrelated charges. He was sentenced on the assault conviction to a period of incarceration of twenty-five years, suspended after twenty years. On the unlawful restraint conviction he received a concurrent five year sentence. The total effective sentence of twenty-five years suspended after twenty years incarceration represented an enhancement of five years due to the part B conviction. Because Connecticut does not have sentencing guidelines and, to my knowl-edge, the judicial branch does not maintain comparative sentencing statis-tics, one can not say with any accuracy whether the substantial sentence received by the defendant is outside the norm.