State v. Hernandez Herrera

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State v. Hernandez Herrera

STATE OF CONNECTICUT v. MAYCOL F.
HERNANDEZ HERRERA
(AC 47891)
Cradle, C. J., and Westbrook and Wilson, Js.

Syllabus

Convicted of the crimes of sexual assault in the first degree, unlawful restraint
in the second degree, and failure to appear in the first degree, the petitioner
appealed to this court. During the trial, although a video recording and tran-
script of the victim’s statement to the police were marked for identification
only, they were included among the exhibits that were brought to the jury
room prior to the jury beginning its deliberations. On appeal, the defendant
claimed, inter alia, that the trial court improperly denied his motion to
suppress certain statements that he made to the police following his arrest
because the detective who interrogated him repeatedly made misrepresenta-
tions of fact that rendered his statements involuntary. Held:

The trial court did not abuse its discretion or violate the defendant’s right to
due process by denying his motion to suppress certain statements he made to
the police, as this court, having reviewed the totality of the circumstances
surrounding the defendant’s interrogation, concluded that the factual mis-
representations and other deceptive tactics used by one of the police officers
during the defendant’s interview did not render his statements to the police
involuntary and, thus, inadmissible as a matter of due process.

The trial court properly denied the defendant’s motion for a mistrial based
on the two exhibits marked for identification only that were inadvertently
submitted to the jury during its deliberations, as the court properly exer-
cised its discretion in conducting an inquiry into the potential issue of juror
misconduct pursuant to State v. Brown (235 Conn. 502), and the defendant
failed to demonstrate that his right to an impartial jury was violated.

Argued December 15, 2025—officially released June 16, 2026

Procedural History

Amended information charging the defendant with
the crimes of sexual assault in the first degree, unlawful
restraint in the second degree, and failure to appear in the
first degree, brought to the Superior Court in the judicial
district of Fairfield, where the court, Richards, J., denied
the defendant’s motion to suppress certain statements;
thereafter, the case was tried to the jury before Rich-
ards, J.; subsequently, the court denied the defendant’s
motion for a mistrial; verdict of guilty; thereafter, the
court, Richards, J., denied the defendant’s motions for
State v. Hernandez Herrera

a judgment of acquittal and for a new trial and rendered
judgment in accordance with the verdict, from which the
defendant appealed to this court. Affirmed.
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Nicholas Lee Scarlett, deputy assistant state’s attor-
ney, with whom, on the brief, was Joseph T. Corrandino,
state’s attorney, for the appellee (state).

Opinion

WESTBROOK, J. The defendant, Maycol F. Hernan-
dez Herrera, appeals from the judgment of conviction,
rendered after a jury trial, of sexual assault in the first
degree in violation of General Statutes § 53a-70 (a) (1)
and unlawful restraint in the second degree in violation
of General Statutes § 53a-96 (a).1 The defendant claims
that the trial court improperly (1) denied his motion to
suppress statements that he made to the police following
his arrest because the detective who interrogated him
repeatedly made misrepresentations of fact that rendered
his statements involuntary, and (2) denied his motion for
a mistrial in which he argued that certain exhibits marked
for identification only were inadvertently submitted to
the jury during deliberations. We reject the defendant’s
claims and affirm the judgment of the court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
review of the defendant’s claims. In 2019, when the
assault at issue occurred, the defendant was twenty-
two years old and lived and worked in Pennsylvania.
Two weekends per month, he travelled to Connecticut to
visit his two sons, who lived with their mother. When he
visited, he stayed at his mother’s home in Bridgeport.
His sister, M,2 also resided at the Bridgeport home. On
1
The defendant also was convicted of failure to appear in the first
degree in violation of General Statutes § 53a-172 (a) (1). The defendant
does not contest this conviction on appeal.
2
In accordance with our policy of protecting the privacy interests of
the victims of sexual abuse, we decline to identify the victim or others
State v. Hernandez Herrera

July 6, 2019, during one of the defendant’s visits, M
asked the defendant to drive her to and from a friend’s
fifteenth birthday party. The victim, K, who was a friend
of M from high school, also attended the party. When
the defendant went to the party to pick up M, he went
inside, where he met K. The defendant asked K for her
phone number, which she declined to give him, although
M later gave K’s phone number to the defendant. The
defendant gave M, K, and two others a ride home from
the party. Over the next few days, the defendant sent
text messages to K in which he asked her how old she was,
called her beautiful, and told her, “I like you a lot [baby].”
On July 13, 2019, M invited K to come over to her
house. When K arrived at M’s house around 2 p.m., she
and M first socialized in the living room. M later went
to her bedroom and subsequently invited K to join her.
When K entered the bedroom, she saw the defendant
lying on the bed with M sitting next to him. After a few
minutes, M asked K to sit on the bed between her and the
defendant. Once K sat down on the bed, the defendant
told M to leave. When M asked the defendant why, he
told her to “get out.” M left the room and closed the
bedroom door. Once M was gone, the defendant got on
top of K. K attempted to get up but was unable to do so
because the defendant was on top of her. The defendant
also placed a hand over K’s mouth. The defendant moved
K’s clothing aside and pulled his pants down. K told the
defendant to stop, and he responded that “he was [going
to] be the first and the last.” The defendant then put his
penis inside K’s vagina. After the defendant got off K,
she exited the bedroom and asked M to use the bathroom.
In the bathroom, K observed that she was bleeding from
her vagina and that there was blood on her underwear.
After K exited the bathroom, M told her that she should
leave the house because M’s mother would be home soon
through whom the victim’s identity may be ascertained. See General
Statutes § 54-86e.
State v. Hernandez Herrera

and “she would think ill of [K].” K left the house and
called a taxi to drive her home.
At home, K changed her clothes and put her under-
wear in a bag to prevent her mother from finding the
bloodstained underwear. A few hours later, K went to a
pharmacy and purchased an emergency contraceptive to
prevent any possibility of pregnancy. Sometime later,
K washed the underwear she was wearing at the time of
the assault.
Because K was concerned about her family’s immigra-
tion status and possible police involvement, she did not
immediately disclose the assault to her family. The fol-
lowing day, however, K told friends in Guatemala about
the assault. In December 2019, during a meeting with
a paralegal at an immigration law firm, K disclosed the
assault and told the paralegal that the assailant was her
friend’s brother. In January 2020, K also disclosed the
assault to her high school therapist. The therapist called
the police and K’s mother. Two police officers came to
the school to speak with K and, thereafter, initiated a
criminal investigation. In addition to providing the police
with a formal statement, K brought the underwear that
she had been wearing at the time of the assault to the
police. The police took photographs but did not have the
underwear forensically tested.
In January 2021, the Bridgeport police arrested and
charged the defendant with unlawfully restraining and
sexually assaulting K and transported him to the Bridge-
port police station. At the police station, the defendant
read and signed a written waiver of his Miranda rights.3
Detective Walberto Cotto, Jr., then conducted a video
recorded interview of the defendant. Although the
defendant primarily spoke Spanish, Cotto questioned
the defendant in English with another officer, Sergeant
Gil Valentin, present during the interview to translate
into Spanish any questions that the defendant did not
understand. Initially, the defendant denied knowing
3
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16
L. Ed. 2d 694 (1966).
State v. Hernandez Herrera

K and indicated that he had seen her only briefly at his
mother’s house on one occasion. Cotto showed the defen-
dant a photo of the underwear K had been wearing on the
day of the assault and indicated that the police would
be able to determine from the underwear whether she
had sexual intercourse. In fact, the police already had
decided not to test the underwear because K had washed
it. The defendant then admitted that he had been in M’s
bedroom with M when she had called K to join them, but
he claimed that he immediately left the bedroom when
K entered. Cotto responded by falsely claiming that M
had told the police that the defendant and K had been
alone in the bedroom. The defendant then claimed that,
when M left him and K alone in the bedroom, K had
pushed him onto the bed and kissed him but “[n]othing
happened.” After Cotto, again, falsely suggested that
K’s underwear was being tested, the defendant admitted
to having sexual intercourse with K and having put his
hand on her face. The defendant’s interview lasted for
approximately fifty minutes.
Prior to trial, the defendant filed a motion to suppress
his statements to the police on the ground that he had
not knowingly and intelligently waived his Miranda
rights prior to giving his statement. At a hearing on
the motion, defense counsel further argued that the
defendant’s waiver and subsequent statements were
the result of the coercive environment, which included
Cotto and Valentin’s close proximity to him during his
interview and the confusing nature of Cotto’s ques-
tioning him in English. In a ruling from the bench, the
trial court, Richards, J., denied the motion to suppress,
finding that the state had met its burden of proving that
the defendant had validly waived his Miranda rights.
The court also rejected the defendant’s contention that
he had been confused during the interrogation, finding
that “[t]his confusion . . . is not reflected in the video.”
In particular, the court found that Valentin had assisted
Cotto during the interview “to avoid any misunderstand-
ing on the part of [the defendant] regarding the waiver
of his constitutional rights.” The video recording of the
State v. Hernandez Herrera

defendant’s interview and an English transcription of
the recording were later admitted as full exhibits at trial.
K was called by the state to testify at trial. K’s prior
consistent video recorded statement to the police and a
transcript of that interview were premarked as exhibits
4A and 4B for identification purposes only. Although
the video recording and transcript of K’s statement
to the police were never admitted into evidence as full
exhibits, they were included among the exhibits that were
brought to the jury room prior to the jury beginning its
deliberations at approximately 2 p.m. on December 14,
2023. The jury stopped deliberating for the day about 5
p.m. The jury resumed deliberations the following day
at approximately 10 a.m. At 10:47 a.m., the jury sent a
note to the court that asked whether it was “supposed to
have [K’s] statement on 10/14/2020 (exhibit 4A) since
[it] didn’t see this previously.” The court recalled the
jury to the courtroom and instructed the jury that it
should not have been provided with those exhibits and
should not consider them in any way. After issuing its
instruction, the court returned the jury to its delibera-
tions. The court asked counsel if there was “[a]nything
else” and whether there were “[a]ny exceptions.” Defense
counsel responded “[n]o” to both questions.
Following a recess, the court again recalled the jury
to instruct it to send out a note answering the follow-
ing questions: “Did you in any way consider or examine
the contents of the aforementioned exhibits? If you did
not, please note that in the note, sign it, and date it. If
you did, please remember my instruction. And, I might
have . . . some other questions for you if you did. But
let’s see if you examined it. And I’d like to have that as
a note so we can make it part of [the] court record.” The
jury responded by note that “[w]e did not review either
4A or 4B—we were uncertain if we should have it from
the get-go.”
The court indicated on the record to counsel outside
the presence of the jury that it was going to consider its
inquiry and the jury’s response sufficient to comport with
State v. Hernandez Herrera

any obligation the court had under State v. Brown, 235
Conn. 502, 668 A.2d 1288 (1995), to conduct an inquiry
into potential juror misconduct. The court inquired of
counsel: “Is there any issue regarding any other question-
ing that either party wishes to ask of the jury. We can
bring them out and you can do that.” Defense counsel
responded: “No, Your Honor. I think the analysis that
we’ve undergone is sufficient.” The state agreed, and the
court called the jury into the courtroom to inform the
jurors that they had answered the court’s question and
could continue with their deliberations. After the jury
exited, the court asked counsel if there was “[a]nything
else,” to which defense counsel responded, “No, Your
Honor.” The court took a recess.
Following the recess, however, defense counsel made
an oral motion for a mistrial, arguing that the jurors
must have looked at the exhibits in question because they
were able to identify them as having been improperly
presented to them. Counsel argued that, notwithstand-
ing the jury’s response to the court’s questions, “the
concern is . . . that it corrupted the jury and could affect
the defendant’s ability to have a fair and impartial ver-
dict in this case.” The state objected to the motion for
mistrial. The court denied the motion in an oral ruling
from the bench, concluding that a plain reading of the
jury’s written response to the court’s inquiry indicated
that it had not examined or considered exhibits 4A and
4B and that, therefore, its impartiality could not possibly
have been affected.4
The next day, the court indicated that it wanted “to
take the extra step of further questioning the jury .
4
The court’s decision in full was as follows: “It’s axiomatic that juror
misconduct, and that’s what we’re allegedly talking about here, occurs
whenever, amongst other criteria, essential criteria, which is before
us today, is that juror misconduct occurred because the jury may have
been exposed to inadmissible evidence in the jury room by error. And
I looked at State v. Johnson [288 Conn. 236, 951 A.2d 1257 (2008)] in
this regard . . . . It’s axiomatic that the court must conduct an inquiry
whenever it is presented with a misconduct allegation. Again, the court
looked at State v. Brown, [supra, 235 Conn. 502]. Here, the court con-
ducted an inquiry by calling the panel out, asking the jury foreperson
State v. Hernandez Herrera

. . whether anything regarding [exhibits 4A and 4B]
or the process would affect their ability to be fair and
impartial.” The court asked the jury to respond in a
note to the court. The jury subsequently confirmed by
a written note that the incident with the exhibits “did
not create any biases on the jury.” Shortly thereafter,
the jury returned a verdict finding the defendant guilty
on all charges. The court accepted the verdict and later
sentenced the defendant to a total effective sentence of
twenty years of incarceration, execution suspended after
fourteen years, followed by ten years of probation. This
appeal followed.
I
The defendant first claims that the court abused its
discretion and violated his right to due process by deny-
ing his motion to suppress his statements to the police
because the police officers who conducted his interview
lied to him with respect to statements purportedly made
by M and about potentially incriminating evidence
obtained from K’s underwear. The state responds that
the defendant’s claim is unpreserved because he never
raised these arguments in his motion to suppress, which
was limited to whether he had knowingly and voluntarily
waived his Miranda rights. The state argues that the
to answer the question of the court by way of a note . . . whether they
had in any way examined the contents of those exhibits. . . . The court
recessed for a length of time. The jury knocked on the door, indicated
that they had a note. The note, which was signed and dated . . . at 11:1[8]
a.m. indicated we did not review either 4A or 4B, we were uncertain
if we should have it from the get-go. So, it is obvious—I don’t know
whether it’s obvious, but from, I think, a plain reading of the note is
they didn’t review it. So, the next question of the court is that would
it have affected your ability to be fair and impartial is somewhat moot
because they didn’t review the information that the court would have
to inquire about. So, in light of those factors, I don’t feel that there was
grounds sufficient to grant the mistrial. I feel that the court conducted
the inquir[y] under Brown and Johnson as required under Connecticut
case law. The jury was questioned, I think, in a manner that it answered
the court’s question in a concise manner. They had not examined any
of the documents. They were bringing them to the court’s attention
simply by noting that they did not know whether they had to have them
or not. In light of those factors, your motion for mistrial is denied.”
State v. Hernandez Herrera

trial court never made any factual findings regarding the
circumstances surrounding the voluntariness of his state-
ments to the police, and, therefore, we should decline to
review his unpreserved claim under State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989), as modified
by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188
(2015), because the record is inadequate for review. The
state further argues that, even if the record is adequate
for review, the defendant has not established a violation
of his constitutional rights. Although we conclude that
the record is adequate to review the defendant’s unpre-
served claim and his claim is of constitutional magnitude,
we agree with the state that, on the basis of that record,
the defendant has failed to demonstrate a violation of his
constitutional rights with respect to the voluntariness
of his statements to the police. We accordingly reject
the defendant’s claim to the contrary.
We begin with our standard of review and governing
legal principles. “[T]he use of an involuntary confession
in a criminal trial is a violation of due process. . . . [T]he
test of voluntariness is whether an examination of all the
circumstances discloses that the conduct of law enforce-
ment officials was such as to overbear [the defendant’s]
will to resist and bring about confessions not freely self-
determined . . . . The ultimate test remains . . . [i]s the
confession the product of an essentially free and uncon-
strained choice by its maker? If it is . . . it may be used
against him. If it is not, if his will has been overborne and
his capacity for self-determination critically impaired,
the use of his confession offends due process. . . . The
determination, by the trial court, whether a confession
is voluntary must be grounded [in] a consideration of
the circumstances surrounding it. . . .
“Factors that may be taken into account, upon a proper
factual showing, include: the youth of the accused; his
lack of education; his intelligence; the lack of any advice
as to his constitutional rights; the length of detention;
the repeated and prolonged nature of the questioning; and
the use of physical punishment, such as the deprivation
State v. Hernandez Herrera

of food and sleep. . . . Under the federal constitution,
however, coercive police activity is a necessary predicate
to the finding that a confession is not voluntary . . . .
“It is well settled that [t]he state bears the burden of
proving the voluntariness of the defendant’s confession
by a preponderance of the evidence. . . . [As for the scope
of our review] we note the established rule that [t]he trial
court’s findings as to the circumstances surrounding the
defendant’s interrogation and confession are findings
of fact . . . which will not be overturned unless they are
clearly erroneous. . . .
“[A]lthough we give deference to the trial court con-
cerning these subsidiary factual determinations, such
deference is not proper concerning the ultimate legal
determination of voluntariness. . . . Consistent with the
well established approach taken by the United States
Supreme Court, we review the voluntariness of a confes-
sion independently, based on our own scrupulous exami-
nation of the record. . . . [A]pplying the proper scope of
review to the ultimate issue of voluntariness requires us
. . . to conduct a plenary review of the record in order to
make an independent determination of voluntariness.”
(Internal quotation marks omitted.) State v. Griffin, 339
Conn. 631, 667–69, 262 A.3d 44 (2021), cert. denied,
___ U.S. ___, 142 S. Ct. 873, 211 L. Ed. 2d 575 (2022).5
On several occasions, our Supreme Court has addressed
how the use of so-called “false evidence ploys,” in which
interrogators reference evidence that they do not have
“to give the impression that their case against the defen-
dant [is] stronger than it actually [is],” could impact the
voluntariness of a confession. Id., 673–74. For example,
in State v. Lapointe, 237 Conn. 694, 678 A.2d 942, cert.
denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d
378 (1996), our Supreme Court rejected a claim that a
5
As the defendant recognizes in his appellate brief, our Supreme
Court in Griffin declined to set a higher standard under the Connecti-
cut constitution regarding review of the voluntariness of a confession
or incriminating statement to law enforcement. See State v. Griffin,
supra, 339 Conn. 691.
State v. Hernandez Herrera

defendant’s incriminating statement was rendered invol-
untary because the police falsely represented to him that
it found his fingerprints on the handle of the knife used
to murder the victim. Id., 731–32. The court in Lapointe
reasoned that “[s]uch statements by the police designed
to lead a suspect to believe that the case against him is
strong are common investigative techniques and would
rarely, if ever, be sufficient to overbear the defendant’s
will and to bring about a confession to a serious crime
that is not freely self-determined . . . .” Id., 732.
Our Supreme Court had an opportunity to revisit this
language from LaPointe in State v. Griffin, supra, 339
Conn. 631, explaining as follows: “Although we do not
interpret Lapointe as suggesting that false evidence
claims can never contribute to the involuntariness of a
confession, we take this opportunity to emphasize that
misrepresentations by interrogating officers about the
strength of their case against a defendant can, under
certain circumstances, add to the coercive nature of
an interrogation. We decline at this time, however, to
categorically condemn the use of such tactics or to adopt
any bright-line rules as to their likely impact on the vol-
untariness of a confession.” Id., 674. The court in Griffin
indicated that “[t]he impact of false evidence ploys, if
any, must . . . be assessed in light of the totality of the
circumstances, including the presence or absence of other
coercive circumstances and the personal characteristics
of the defendant.”6 Id., 675.
Turning to the defendant’s claim, we first address the
issue of preservation raised by the state. It is axiomatic
6
Although not directly applicable to the defendant’s 2021 interroga-
tion, we note that the legislature passed legislation, effective October 1,
2023, concerning law enforcement’s use of deception or coercive inter-
rogation tactics. See Public Acts 2023, No. 23-27, § 1; see also General
Statutes § 54-86q. Subsection (a) of § 54-86q defines what constitutes
“ ‘deception or coercive tactics,’ ” and the statute imposes a rebuttable
presumption that “any admission, confession or statement, whether
written or oral, made by any person during a custodial interrogation
by a law enforcement agency official or such official’s agent” is invol-
untary and inadmissible in any proceeding if “deception or coercive
tactics” were used during the interrogation. General Statutes § 54-86q
State v. Hernandez Herrera

that an appellate court “shall not be bound to consider
a claim unless it was distinctly raised” before the trial
court. Practice Book § 60-5; see also State v. Hampton,
293 Conn. 435, 443, 988 A.2d 167 (2009) (concluding
that claim on appeal regarding motion to suppress was
not preserved because claim was not distinctly raised in
motion to suppress or during suppression hearing). “The
requirement that the claim be raised distinctly means
that it must be so stated as to bring to the attention
of the court the precise matter on which its decision is
being asked.” (Emphasis in original; internal quotation
marks omitted.) State v. Carter, 198 Conn. 386, 396, 503
A.2d 576 (1986). In other words, it must “alert the trial
court to the specific deficiency now claimed on appeal.”
(Emphasis added.) Id. “Requiring a party to distinctly
raise a claim of error before the trial court is no mere
formality; rather, it ensures that the trial court is spe-
cifically apprised of the alleged error and, thus, has an
opportunity to respond accordingly.” (Internal quotation
marks omitted.) State v. Danielle P., 238 Conn. App. 73,
93–94, 335 A.3d 69 (2026).
On the basis of our review of the motion to suppress
and the arguments made to the court during the hear-
ing on that motion, we agree with the state that the
defendant failed to preserve his claim that Cotto’s use
of false evidence ploys during his interrogation of the
defendant was so egregious that, under the totality
(c). Significantly, and consistent with Griffin, the use of false evidence
ploys is not among the tactics deemed to be presumptively deceptive or
coercive provided that the person subject to interrogation is, like the
defendant in the present case, over the age of eighteen at the time of
the interrogation.
Subsection (b) of § 54-86q expands what constitutes “ ‘deception or
coercive tactics’ ” if the person being interrogated is under eighteen
years of age to include any tactic that “(1) Communicates false facts
about evidence that were known to the law enforcement agency official
or their agent or should have been known to the law enforcement agency
official or their agent to be false; (2) Communicates false statements
or misrepresentations of the law that were known or should have been
known to be false statements or misrepresentations; or (3) Communicates
false or misleading promises of leniency or some other benefit or reward
that were known or should have been known to be false or misleading.”
State v. Hernandez Herrera

of the circumstances, they contributed to an unfairly
coercive interrogation that rendered the defendant’s
inculpatory statements to the police involuntary. The
written motion to suppress claimed that his statements
to the police were “the fruits of an unlawful, warrantless
search and/or seizure of the defendant’s person and/or
effects”; “obtained . . . without knowing and intelli-
gent waiver of [his Miranda] right[s]”; or “obtained
through violation of the defendant’s sixth amendment
right to assistance of counsel . . . .” The written motion
did not challenge the voluntariness of the defendant’s
statements on the ground that they were the result of
coercive or deceptive interrogation tactics. The court
indicated in its decision on the motion to suppress that
it understood the sole issue before it to be “whether the
defendant waived his Miranda rights regarding his
statement.” Defense counsel did ask questions during
the suppression hearing relative to the atmosphere of
the interrogation, including whether the close proxim-
ity of the detectives to the defendant may have been
intimidating, or whether language barriers may have
resulted in confusion. Although defense counsel asked
Cotto if it was a generally accepted police practice to give
individuals subject to interrogation false information,
counsel never established whether the defendant was
provided with false information or argued that Cotto’s
use of false information was a factor to be considered in
evaluating the voluntariness of the defendant’s state-
ments. In short, the defendant failed to preserve the
precise, specific claim he now raises on appeal.
To the extent that his claim is unpreserved, the defen-
dant nevertheless seeks review pursuant to State v.
Golding, supra, 213 Conn. 239–40. “Under Golding, a
defendant can prevail on a claim of constitutional error
not preserved at trial only if all of the following condi-
tions 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 fundamental
right; (3) the alleged constitutional violation . . . exists
and . . . deprived the defendant of a fair trial; and (4) if
State v. Hernandez Herrera

subject to harmless error analysis, the state has failed to
demonstrate [the] harmlessness of the alleged constitu-
tional violation beyond a reasonable doubt. . . . The first
two prongs govern whether we may review the claim,
[whereas] the second two control whether the defendant
may prevail on his claim because there was constitutional
error that requires a new trial. . . . 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 condi-
tion is most relevant in the particular circumstances.”
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) State v. Johnson, 354 Conn. 96,
104–105, 349 A.3d 260 (2026). We conclude that the
defendant has failed to establish that Cotto’s use of
deceptive tactics during the defendant’s interrogation,
including misrepresenting certain facts, rendered his
statements involuntary. Accordingly, his claim fails
under the third prong of Golding.7
We conclude, consistent with the analysis set forth
by the state in its appellate brief, that, in light of the
7
The state argues that the record is inadequate for review and that
we should conclude that the defendant’s claim fails under the first
prong of Golding. We agree with the state that the defendant’s failure
to raise the precise arguments that he now raises on appeal necessarily
affects the quality of the record available for review. For example, the
defendant argues on appeal that the trial court “did not address whether
the detectives’ lies affected the voluntariness of the confession,” did
not acknowledge our Supreme Court’s discussion in Griffin regarding
deceptive interrogation tactics, and did not evaluate several factors
that our courts previously have deemed relevant to an inquiry about
the voluntariness of a confession. Such lapses, however, are directly
attributable to the fact that the arguments the defendant now raises
on appeal were not made to the trial court. At trial, however, it was
established that Cotto misrepresented certain facts to the defendant
during the interrogation. See State v. Whitaker, 215 Conn. 739, 742,
578 A.2d 1031 (1990) (in conducting review of decision on motion to
suppress, appellate courts are not limited to evidence presented to trial
court at suppression hearing). Moreover, the defendant’s interview
was video recorded and transcribed, and both are part of the record on
appeal. “The defendant bears the responsibility for providing a record
that is adequate for review of his claim of constitutional error. If the
facts revealed by the record are insufficient, unclear or ambiguous as to
State v. Hernandez Herrera

totality of the circumstances, Cotto’s two factual mis-
representations during the defendant’s interview with
the police did not render his incriminating statements
involuntary and, thus, inadmissible as a matter of due
process. As previously stated, in considering whether a
statement has been given voluntarily, it is appropriate
to consider the totality of the circumstances involved
including “the youth of the accused; his lack of education;
his intelligence; the lack of any advice as to his consti-
tutional rights; the length of detention; the repeated
and prolonged nature of the questioning; and the use of
physical punishment, such as the deprivation of food
and sleep.” (Internal quotation marks omitted.) State
v. Griffin, supra, 339 Conn. 668.
In denying the motion to suppress, the trial court
expressly found that the defendant was advised of his
constitutional rights consistent with Miranda and made
a valid waiver of those rights prior to his questioning
by the police. The defendant does not challenge those
findings on appeal. “The provision of adequate Miranda
warnings is significant in our analysis because it has
a bearing on both sides of the voluntariness calculus:
It bears on the coerciveness of the circumstances, for
it reveals that the police were aware of the suspect’s
rights and presumably prepared to honor them. And
. . . it bears [on] the defendant’s susceptibility, for it
shows that the defendant was aware he had a right not to
talk to the police.” (Internal quotation marks omitted.)
State v. Griffin, supra, 339 Conn. 671–72. As the United
States Supreme Court has noted: “We do not suggest that
compliance with Miranda conclusively establishes the
whether a constitutional violation has occurred, we will not attempt to
supplement or reconstruct the record, or to make factual determinations,
in order to decide the defendant’s claim.” (Emphasis added.) State v.
Golding, supra, 213 Conn. 240. Although it would have been less bur-
densome for this court if the trial court had made relevant findings with
respect to the precise issue before us, we nonetheless conclude that it
is possible to evaluate on the existing record as a whole what potential
effect, if any, Cotto’s misrepresentations and other tactics had on the
defendant and whether those tactics reasonably could have overborn
the defendant’s will.
State v. Hernandez Herrera

voluntariness of a subsequent confession. But cases in
which a defendant can make a colorable argument that
a self-incriminating statement was ‘compelled’ despite
the fact that the law enforcement authorities adhered to
the dictates of Miranda are rare.” Berkemer v. McCarty,
468 U.S. 420, 433 n.20, 104 S. Ct. 3138, 82 L. Ed. 2d
317 (1984). Prior to his interview, the defendant in the
present case was provided with a Miranda waiver form,
he read his rights out loud, and he indicated that he
understood those rights by writing his initial after each
of his rights and signing the waiver forms.
Next, the state argues that “the circumstances sur-
rounding the police interview, including the length of
the interview, the defendant’s demeanor during his
interview, and the lucidity of his statements to the police
further support that the defendant’s confession was vol-
untary.” First, the interrogation lasted approximately
fifty minutes, which is far shorter in length than inter-
rogations that our Supreme Court previously has deter-
mined were not inherently coercive in length. See, e.g.,
State v. Griffin, supra, 339 Conn. 682 (collecting cases
and holding that three hour interrogation at issue was
“far shorter than other interrogations held not to have
been inherently coercive”). Second, the trial court found,
on the basis of its review of the video recorded interview,
that “the defendant shows that he is lucid and not under
the influence of any intoxicating substances when he
asked [Cotto] at the end of the interview . . . the date of
the interview and, after [Cotto] responds, the defendant
writes down the correct date and time.”8 As our Supreme
Court in Griffin reinforced, “[i]t is undisputed . . . that
[a] defendant’s calm demeanor and the lucidity of his
statements weigh in favor of finding his confession vol-
untary.” (Internal quotation marks omitted.) State v.
8
In its decision, the court expressly found that Cotto’s testimony at
the suppression hearing was credible and supported by the evidence.
Specifically, the court credited Cotto’s assessment that, at the time of
the interview, the defendant was not under the influence of drugs or
alcohol, his speech was clear and lucid, and his answers were related
to Cotto’s questions.
State v. Hernandez Herrera

Griffin, supra, 683. Our review of the video recording
confirms that the defendant appeared lucid and main-
tained a calm demeanor during his interview, and his
answers related to the detective’s questions. Third, as the
defendant concedes, no evidence was presented that the
police subjected him to any physical punishment either
before or during the interview.
The only allegedly coercive behavior that the defendant
articulated before the trial court was that Cotto and
Valentin sometimes would invade his personal space by
moving closer to him when he denied their allegations.
On appeal, he argues that this close proximity made him
“afraid that he might be beaten if he didn’t falsely admit
guilt.” On the basis of its review of the video recording
of the interrogation, however, the trial court rejected
the defendant’s argument that the detectives’ proxim-
ity to him was itself coercive in nature, and we are not
convinced otherwise. The defendant does not challenge
this aspect of the court’s ruling in the present appeal,
arguing only that the court did not make additional
express findings regarding the effect of the police offi-
cers’ use of misinformation, the defendant’s education
or intelligence, or his lack of prior experience with police
questioning.
We also agree with the state that, on balance, the defen-
dant’s personal characteristics also support that his
confession was voluntary. Specifically, the defendant
was an adult, he had a tenth grade education, and he
was gainfully employed. Although the defendant argues
that his lack of experience with the police impacted the
voluntariness of his confession, as we have already con-
cluded, the police adequately informed the defendant
of his rights and he indicated that he understood those
rights and validly waived them prior to questioning. We
are simply not convinced by the defendant’s arguments
that his education, intelligence, or lack of prior experi-
ence with law enforcement played any role in creating
the type of unreasonably coercive atmosphere that would
State v. Hernandez Herrera

have overborn his will such that his statements should
be viewed as involuntary.
Finally, the defendant heavily relies on the concur-
ring opinion in Griffin to support his argument that
the factual misrepresentations Cotto made during his
interview were so egregious that they rendered his con-
fession involuntary. The concurring opinion, however,
agreed with the majority that “courts generally have
not deemed [false evidence ploys], in and of itself, suf-
ficient to render a confession involuntary.” (Emphasis
omitted.) State v. Griffin, supra, 339 Conn. 707 (Ecker,
J., concurring in part and dissenting in part). Because,
as we have discussed, other inherently coercive elements
were not present in this interview, the relatively few
instances of Cotto’s use of false evidence ploys during
the defendant’s interview were simply insufficient to
render the defendant’s confession involuntary. At trial,
the defendant testified that he was aware of at least one
of the false evidence ploys used by the police during his
interview. Such knowledge obviously would have reduced
the overall alleged coercive impact of Cotto’s deceptive
tactics. See State v. Doyle, 104 Conn. App. 4, 18, 931
A.2d 393 (defendant’s testimony at trial that “he did
not believe the statements by the police” regarding false
evidence ploy “clearly demonstrate that the defendant’s
will was not overborne”), cert. denied, 284 Conn. 935,
935 A.2d 152 (2007).
Having reviewed the totality of the circumstances
surrounding the defendant’s interrogation, we conclude
that the factual misrepresentations and other deceptive
tactics used by Cotto during the defendant’s interview
did not render his statements to the police involuntary.
Because the defendant has failed to show a constitutional
violation of his due process rights, his unpreserved claim
fails under the third prong of Golding.
II
The defendant also claims that the court improperly
denied his motion for a mistrial in which he argued that
State v. Hernandez Herrera

certain exhibits that had been marked for identification
only were inadvertently submitted to the jury during its
deliberations. We reject the defendant’s claim.
We begin with general legal principles, including our
standard of review. “While the remedy of a mistrial is
permitted under the rules of practice, it is not favored.
. . . If curative action can obviate the prejudice, the
drastic remedy of a mistrial should be avoided. . . . The
general rule in Connecticut is that a mistrial is granted
only where it is apparent to the court that as a result of
some occurrence during trial a party has been denied the
opportunity for a fair trial. . . . The trial court enjoys wide
discretion in deciding whether a mistrial is warranted
. . . and its evaluation as to events occurring before the
jury is to be accorded the highest deference. . . . Every
reasonable presumption will be given in favor of the trial
court’s ruling . . . because the trial court, which has a
firsthand impression of the jury, is in the best position
to evaluate the critical question of whether the juror’s
or jurors’ exposure has prejudiced a defendant. . . . It is
only when an abuse of discretion is manifest or where
an injustice appears to have been done that a reversal
will result from the trial court’s exercise of discretion.
. . . A reviewing court gives great weight to curative
instructions in assessing error.” (Internal quotation
marks omitted.) State v. Rivera, 152 Conn. App. 248,
254–55, 96 A.3d 1285, cert. denied, 314 Conn. 934, 102
A.3d 85 (2014).
“Jury impartiality is a core requirement of the right
to trial by jury guaranteed by the constitution of Con-
necticut, article first, § 8, and by the sixth amendment
to the United States [c]onstitution. . . . [T]he right to
a jury trial guarantees to the criminally accused a fair
trial by a panel of impartial, indifferent jurors. . . . A
necessary component of the right to an impartial jury
is the right to have the jury decide the case solely on the
basis of the evidence and arguments given them in the
adversary arena after proper instructions on the law by
the court. . . . Consideration of extrinsic evidence is jury
State v. Hernandez Herrera

misconduct and has been found to be sufficient to violate
the constitutional right to trial by an impartial jury.”
(Citation omitted; emphasis added; internal quotation
marks omitted.) State v. Kamel, 115 Conn. App. 338,
343, 972 A.2d 780 (2009).
A jury’s consideration of evidence that the court has
not fully admitted as an exhibit, such as evidence marked
for identification purposes only, constitutes the consider-
ation of extrinsic evidence for the purposes of the defen-
dant’s constitutional rights under the sixth amendment
and, therefore, is treated as jury misconduct. See id.,
345; see also Connecticut Light & Power Co. v. Gilmore,
289 Conn. 88, 103–104, 956 A.2d 1145 (2008).
As our Supreme Court explained in State v. Santiago,
245 Conn. 301, 715 A.2d 1 (1998), appellate review “of
the scope of the trial court’s preliminary inquiry into
allegations of jury misconduct is governed by State v.
Brown, supra, 235 Conn. 502. In Brown, [our Supreme
Court] exercised [its] supervisory authority over the
administration of justice to hold that . . . a trial court
must conduct a preliminary inquiry, on the record, when-
ever it is presented with any allegations of jury miscon-
duct in a criminal case, regardless of whether an inquiry
is requested by counsel. . . . [T]he trial court has broad
discretion to determine the form and scope of the proper
response to allegations of jury misconduct . . . [and] [i]n
exercising that discretion, the trial court must zealously
protect the rights of the accused. . . . [The role of] an
appellate court is limited . . . to a consideration of whether
the trial court’s review of alleged jury misconduct can
fairly be characterized as an abuse of its discretion. . . .
[T]he trial court should consider the following factors
in exercising its discretion as to the form and scope of a
preliminary inquiry into allegations of jury misconduct:
(1) the criminal defendant’s substantial interest in his
constitutional right to a trial before an impartial jury; (2)
the risk of deprivation of the defendant’s constitutional
right to a trial before an impartial jury, which will vary
with the seriousness and the credibility of the allegations
State v. Hernandez Herrera

of jury misconduct; and (3) the state’s interests of, inter
alia, jury impartiality, protecting jurors’ privacy and
maintaining public confidence in the jury system. . . .
[A]ny assessment of the form and scope of the inquiry
that a trial court must undertake when it is presented
with allegations of jury misconduct will necessarily be
fact specific. . . . The circumstances in each case will
necessarily vary and each situation is sui generis.” (Cita-
tions omitted; internal quotation marks omitted.) State
v. Santiago, supra, 331. With these principles in mind,
we turn to the present case.
As a preliminary matter, we address the state’s argu-
ment that we should decline to review the defendant’s
claim because he waived his right to challenge the alleged
jury misconduct because he failed to raise an objection
before the trial court regarding its inquiry into the
alleged jury misconduct. Although the state is correct
that defense counsel initially voiced no objections to the
inquiry and corrective actions taken by the trial court in
response to the jury’s note about the exhibits and indi-
cated on the record that he did not have any additional
questions for the jurors, defense counsel returned fol-
lowing a recess and orally moved for a mistrial. By so
doing, he not only preserved the arguments now raised on
appeal; see State v. Colon, 272 Conn. 106, 363 n.146, 864
A.2d 666 (2004) (claim was adequately preserved because
it was raised in motion for mistrial), cert. denied, 546
U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005); but
effectively revoked any prior express or implied waiver
of the defendant’s right to challenge the court’s handling
of possible jury misconduct. We take note that the trial
court, in denying the motion for a mistrial, rejected
the defendant’s arguments on their merits and not on
the basis of any perceived waiver. See footnote 4 of this
opinion. Accordingly, we reject the state’s invitation to
decline review of the defendant’s claim on the basis of
waiver. We do, however, agree with the state’s alterna-
tive argument that, even if not waived, the defendant’s
claim fails because the court properly exercised its dis-
cretion in conducting its inquiry into the potential juror
State v. Hernandez Herrera

misconduct issue and concluding that misconduct did not
infringe upon the defendant’s right to an impartial jury.
This court previously has considered whether a court
abused its discretion by refusing to grant a mistrial on
the ground that exhibits not entered into evidence as full
exhibits were submitted to the jury for review during
its deliberations. See State v. Stuart, 113 Conn. App.
541, 544, 967 A.2d 532, cert. denied, 293 Conn. 922,
980 A.2d 914 (2009). Like in the present case, amongst
the exhibits provided to the jury in Stuart were several
exhibits that had been marked for identification only. Id.,
548. The court learned of the error on the second day of
deliberations. Id. Unlike in the present case, when the
court inquired of the jury whether it had reviewed the
improperly submitted materials, the jury indicated that
it had. Id., 549. The court then instructed the jury to
disregard any of the information in the exhibits. Id. The
defendant moved for a mistrial, but the court denied the
motion on the ground that any error was harmless. Id.
On appeal, this court in Stuart concluded that the
submission of the exhibits did not constitute structural
error and did not violate the defendant’s right to an
impartial jury. Id., 552–55. The court explained that
“[t]he admission of exhibits not properly admitted into
evidence is trial error, which may be subject to harmless
error analysis, and is not structural error because it is
not an error that fundamentally infects the entire trial
process and defies analysis of its specific impact. It may
be quantitatively assessed in the context of the evidence.”
Id., 551. Furthermore, the court concluded that the trial
court had not abused its discretion in denying a mistrial,
reiterating that our “[c]ase law recognizes that the trial
judge is in the superior position to gauge the extent and
effect of any improper viewing” of extrinsic evidence,
and observing that the trial court was fully aware of the
contents of the exhibits at issue as well as their signifi-
cance to the overall evidence and had instructed the jury
to disregard its viewing of those exhibits. Id., 553–54.
The court in Stuart held that the circumstances “did
State v. Hernandez Herrera

not compel a mistrial”; id., 554; and we are unconvinced
that the circumstances of the present case compel a dif-
ferent result.
In the present case, when the court learned of the error,
it exercised its discretion consistent with the holding
in Brown by conducting a limited inquiry of the jury
and giving a curative instruction. See State v. Brown,
supra, 235 Conn. 526; State v. Stuart, supra, 113 Conn.
App. 555. The defendant argues that the court abused
its discretion in conducting its inquiry because it did not
adequately question the jurors about the circumstances
surrounding the jury’s discovery of the erroneously sub-
mitted exhibits, instructed the jury not to consider the
exhibits before it asked whether the jury had examined
the contents of the exhibits, and relied on the jury’s note
that indicated it had not reviewed the exhibits rather
than asking the jury to respond to that question on the
record. We reject the defendant’s arguments that the
court’s procedures were insufficient under Brown.
It was unnecessary for the court to have inquired more
about what triggered the jury’s initial note regarding
exhibits 4A and 4B because the jury’s reasoning was
apparent from a common sense reading of the note. In
particular, in its note, the jury asked whether it prop-
erly had been provided the exhibits because it “didn’t
see [these exhibits] previously” at trial. We agree with
the state that making any further inquiry into what
prompted the jury to send its note risked improperly
invading the mental processes of the jurors. See, e.g.,
State v. Johnson, 288 Conn. 236, 264, 951 A.2d 1257
(2008) (concluding that court’s inquiry into juror mis-
conduct pursuant to Brown “improperly invaded the
mental processes of the jurors”). Additionally, there is
no merit to the defendant’s suggestion that the court
abused its discretion simply because it instructed the
jurors to disregard any information in the exhibits before
confirming whether or not they had reviewed them.
We see no significance in the particular order in which
the court conducted its inquiry into the potential juror
State v. Hernandez Herrera

misconduct. In Stuart, the court similarly had instructed
the jury not to consider any of the information contained
in the improper exhibits before asking whether the jury
had viewed those exhibits. See State v. Stuart, supra, 113
Conn. App. 554. On review, this court concluded that
the trial court’s Brown inquiry was a proper exercise of
discretion. Id. The order in which the trial court elected to
conduct its inquiry in the present case similarly was well
within the court’s discretion. Finally, the court asked the
jury in open court whether it “in any way consider[ed] or
examine[d] the contents of the aforementioned exhibits.”
The jury responded unequivocally by note, as instructed,9
that it “did not review either 4A or 4B . . . .” Contrary
to the defendant’s argument, it was not an abuse of the
court’s discretion to have accepted the jury’s answer
without asking it to clarify what it meant by “review.” As
the term is commonly understood, to “review” something
means more than simply observing what something is
but “[c]onsideration, inspection, or reexamination of a
subject or thing.” Black’s Law Dictionary (9th Ed. 2009)
p. 1434. The court concluded that “a plain reading of
the note is they didn’t review [the exhibits].” The jury’s
response was not ambiguous, but rather clearly reflected
that, although it may have been vaguely aware of what
9
We find no merit in the defendant’s suggestion that the trial court’s
use of written notes rather than direct questioning of the foreperson
or the jurors individually was an abuse of its discretion. Our Supreme
Court in Brown stated unequivocally that “[o]ur requirement that any
allegations of jury misconduct necessitate some type of a preliminary
inquiry still leaves the form and scope of such an inquiry to be deter-
mined by the trial court within the exercise of its discretion.” (Emphasis
added.) State v. Brown, supra, 235 Conn. 529. In the present case, the
trial court explained on the record that it wanted to use written notes
in order to ensure all communications were made a part of the court
record. The defendant has not provided any persuasive legal authority
that this choice constitutes an abuse of the requirement that the court
conduct its preliminary inquiry under Brown “on the record.” State
v. Brown, supra, 235 Conn. 526; see State v. Kamel, supra, 115 Conn.
App. 348; see also State v. Montanez, 185 Conn. App. 589, 607–608,
197 A.3d 959 (2018) (in conducting Brown inquiry to determine whether
jury remained fair and impartial, court was not obligated to voir dire all
jurors individually), cert. denied, 332 Conn. 907, 209 A.3d 643 (2019).
State v. Hernandez Herrera

the exhibits contained, it had not examined or inspected
the contents of those exhibits.
In summary, having learned of potential jury miscon-
duct arising from viewing what amounted to extrinsic
evidence, the court properly exercised its discretion in a
manner consistent with Brown by conducting a limited
inquiry on the record and providing an adequate cura-
tive instruction.
Moreover, the defendant has not persuaded us that the
court abused its discretion in denying the motion for a
mistrial. The defendant argues that the court errone-
ously concluded that there were insufficient grounds to
grant the motion because the jury had not examined the
exhibits marked for identification only. The defendant
argues that “[n]either the video nor the transcript was
. . . harmless given the credibility contest at the heart
of this case.” In making this argument, however, the
defendant presumes that the jury reviewed the video
recording and transcript of K’s statement to the police.
As we have explained, this presumption is contrary to
the jury’s unambiguous representations to the court,
made following an adequate inquiry under Brown, on
which the court expressly relied.
Because we are persuaded that the court properly exer-
cised its discretion in conducting its Brown inquiry
into the potential issue of juror misconduct and that
the defendant has not demonstrated that his right to
an impartial jury was violated in the present case, we
conclude that the trial court properly denied his motion
for a mistrial.
The judgment is affirmed.
In this opinion the other judges concurred.

************************************************
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************************************************
State v. Hernandez Herrera

STATE OF CONNECTICUT v. MAYCOL F.
HERNANDEZ HERRERA
(AC 47891)
Cradle, C. J., and Westbrook and Wilson, Js.

Syllabus

Convicted of the crimes of sexual assault in the first degree, unlawful restraint
in the second degree, and failure to appear in the first degree, the petitioner
appealed to this court. During the trial, although a video recording and tran-
script of the victim’s statement to the police were marked for identification
only, they were included among the exhibits that were brought to the jury
room prior to the jury beginning its deliberations. On appeal, the defendant
claimed, inter alia, that the trial court improperly denied his motion to
suppress certain statements that he made to the police following his arrest
because the detective who interrogated him repeatedly made misrepresenta-
tions of fact that rendered his statements involuntary. Held:

The trial court did not abuse its discretion or violate the defendant’s right to
due process by denying his motion to suppress certain statements he made to
the police, as this court, having reviewed the totality of the circumstances
surrounding the defendant’s interrogation, concluded that the factual mis-
representations and other deceptive tactics used by one of the police officers
during the defendant’s interview did not render his statements to the police
involuntary and, thus, inadmissible as a matter of due process.

The trial court properly denied the defendant’s motion for a mistrial based
on the two exhibits marked for identification only that were inadvertently
submitted to the jury during its deliberations, as the court properly exer-
cised its discretion in conducting an inquiry into the potential issue of juror
misconduct pursuant to State v. Brown (235 Conn. 502), and the defendant
failed to demonstrate that his right to an impartial jury was violated.

Argued December 15, 2025—officially released June 16, 2026

Procedural History

Amended information charging the defendant with
the crimes of sexual assault in the first degree, unlawful
restraint in the second degree, and failure to appear in the
first degree, brought to the Superior Court in the judicial
district of Fairfield, where the court, Richards, J., denied
the defendant’s motion to suppress certain statements;
thereafter, the case was tried to the jury before Rich-
ards, J.; subsequently, the court denied the defendant’s
motion for a mistrial; verdict of guilty; thereafter, the
court, Richards, J., denied the defendant’s motions for
State v. Hernandez Herrera

a judgment of acquittal and for a new trial and rendered
judgment in accordance with the verdict, from which the
defendant appealed to this court. Affirmed.
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Nicholas Lee Scarlett, deputy assistant state’s attor-
ney, with whom, on the brief, was Joseph T. Corrandino,
state’s attorney, for the appellee (state).

Opinion

WESTBROOK, J. The defendant, Maycol F. Hernan-
dez Herrera, appeals from the judgment of conviction,
rendered after a jury trial, of sexual assault in the first
degree in violation of General Statutes § 53a-70 (a) (1)
and unlawful restraint in the second degree in violation
of General Statutes § 53a-96 (a).1 The defendant claims
that the trial court improperly (1) denied his motion to
suppress statements that he made to the police following
his arrest because the detective who interrogated him
repeatedly made misrepresentations of fact that rendered
his statements involuntary, and (2) denied his motion for
a mistrial in which he argued that certain exhibits marked
for identification only were inadvertently submitted to
the jury during deliberations. We reject the defendant’s
claims and affirm the judgment of the court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
review of the defendant’s claims. In 2019, when the
assault at issue occurred, the defendant was twenty-
two years old and lived and worked in Pennsylvania.
Two weekends per month, he travelled to Connecticut to
visit his two sons, who lived with their mother. When he
visited, he stayed at his mother’s home in Bridgeport.
His sister, M,2 also resided at the Bridgeport home. On
1
The defendant also was convicted of failure to appear in the first
degree in violation of General Statutes § 53a-172 (a) (1). The defendant
does not contest this conviction on appeal.
2
In accordance with our policy of protecting the privacy interests of
the victims of sexual abuse, we decline to identify the victim or others
State v. Hernandez Herrera

July 6, 2019, during one of the defendant’s visits, M
asked the defendant to drive her to and from a friend’s
fifteenth birthday party. The victim, K, who was a friend
of M from high school, also attended the party. When
the defendant went to the party to pick up M, he went
inside, where he met K. The defendant asked K for her
phone number, which she declined to give him, although
M later gave K’s phone number to the defendant. The
defendant gave M, K, and two others a ride home from
the party. Over the next few days, the defendant sent
text messages to K in which he asked her how old she was,
called her beautiful, and told her, “I like you a lot [baby].”
On July 13, 2019, M invited K to come over to her
house. When K arrived at M’s house around 2 p.m., she
and M first socialized in the living room. M later went
to her bedroom and subsequently invited K to join her.
When K entered the bedroom, she saw the defendant
lying on the bed with M sitting next to him. After a few
minutes, M asked K to sit on the bed between her and the
defendant. Once K sat down on the bed, the defendant
told M to leave. When M asked the defendant why, he
told her to “get out.” M left the room and closed the
bedroom door. Once M was gone, the defendant got on
top of K. K attempted to get up but was unable to do so
because the defendant was on top of her. The defendant
also placed a hand over K’s mouth. The defendant moved
K’s clothing aside and pulled his pants down. K told the
defendant to stop, and he responded that “he was [going
to] be the first and the last.” The defendant then put his
penis inside K’s vagina. After the defendant got off K,
she exited the bedroom and asked M to use the bathroom.
In the bathroom, K observed that she was bleeding from
her vagina and that there was blood on her underwear.
After K exited the bathroom, M told her that she should
leave the house because M’s mother would be home soon
through whom the victim’s identity may be ascertained. See General
Statutes § 54-86e.
State v. Hernandez Herrera

and “she would think ill of [K].” K left the house and
called a taxi to drive her home.
At home, K changed her clothes and put her under-
wear in a bag to prevent her mother from finding the
bloodstained underwear. A few hours later, K went to a
pharmacy and purchased an emergency contraceptive to
prevent any possibility of pregnancy. Sometime later,
K washed the underwear she was wearing at the time of
the assault.
Because K was concerned about her family’s immigra-
tion status and possible police involvement, she did not
immediately disclose the assault to her family. The fol-
lowing day, however, K told friends in Guatemala about
the assault. In December 2019, during a meeting with
a paralegal at an immigration law firm, K disclosed the
assault and told the paralegal that the assailant was her
friend’s brother. In January 2020, K also disclosed the
assault to her high school therapist. The therapist called
the police and K’s mother. Two police officers came to
the school to speak with K and, thereafter, initiated a
criminal investigation. In addition to providing the police
with a formal statement, K brought the underwear that
she had been wearing at the time of the assault to the
police. The police took photographs but did not have the
underwear forensically tested.
In January 2021, the Bridgeport police arrested and
charged the defendant with unlawfully restraining and
sexually assaulting K and transported him to the Bridge-
port police station. At the police station, the defendant
read and signed a written waiver of his Miranda rights.3
Detective Walberto Cotto, Jr., then conducted a video
recorded interview of the defendant. Although the
defendant primarily spoke Spanish, Cotto questioned
the defendant in English with another officer, Sergeant
Gil Valentin, present during the interview to translate
into Spanish any questions that the defendant did not
understand. Initially, the defendant denied knowing
3
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16
L. Ed. 2d 694 (1966).
State v. Hernandez Herrera

K and indicated that he had seen her only briefly at his
mother’s house on one occasion. Cotto showed the defen-
dant a photo of the underwear K had been wearing on the
day of the assault and indicated that the police would
be able to determine from the underwear whether she
had sexual intercourse. In fact, the police already had
decided not to test the underwear because K had washed
it. The defendant then admitted that he had been in M’s
bedroom with M when she had called K to join them, but
he claimed that he immediately left the bedroom when
K entered. Cotto responded by falsely claiming that M
had told the police that the defendant and K had been
alone in the bedroom. The defendant then claimed that,
when M left him and K alone in the bedroom, K had
pushed him onto the bed and kissed him but “[n]othing
happened.” After Cotto, again, falsely suggested that
K’s underwear was being tested, the defendant admitted
to having sexual intercourse with K and having put his
hand on her face. The defendant’s interview lasted for
approximately fifty minutes.
Prior to trial, the defendant filed a motion to suppress
his statements to the police on the ground that he had
not knowingly and intelligently waived his Miranda
rights prior to giving his statement. At a hearing on
the motion, defense counsel further argued that the
defendant’s waiver and subsequent statements were
the result of the coercive environment, which included
Cotto and Valentin’s close proximity to him during his
interview and the confusing nature of Cotto’s ques-
tioning him in English. In a ruling from the bench, the
trial court, Richards, J., denied the motion to suppress,
finding that the state had met its burden of proving that
the defendant had validly waived his Miranda rights.
The court also rejected the defendant’s contention that
he had been confused during the interrogation, finding
that “[t]his confusion . . . is not reflected in the video.”
In particular, the court found that Valentin had assisted
Cotto during the interview “to avoid any misunderstand-
ing on the part of [the defendant] regarding the waiver
of his constitutional rights.” The video recording of the
State v. Hernandez Herrera

defendant’s interview and an English transcription of
the recording were later admitted as full exhibits at trial.
K was called by the state to testify at trial. K’s prior
consistent video recorded statement to the police and a
transcript of that interview were premarked as exhibits
4A and 4B for identification purposes only. Although
the video recording and transcript of K’s statement
to the police were never admitted into evidence as full
exhibits, they were included among the exhibits that were
brought to the jury room prior to the jury beginning its
deliberations at approximately 2 p.m. on December 14,
2023. The jury stopped deliberating for the day about 5
p.m. The jury resumed deliberations the following day
at approximately 10 a.m. At 10:47 a.m., the jury sent a
note to the court that asked whether it was “supposed to
have [K’s] statement on 10/14/2020 (exhibit 4A) since
[it] didn’t see this previously.” The court recalled the
jury to the courtroom and instructed the jury that it
should not have been provided with those exhibits and
should not consider them in any way. After issuing its
instruction, the court returned the jury to its delibera-
tions. The court asked counsel if there was “[a]nything
else” and whether there were “[a]ny exceptions.” Defense
counsel responded “[n]o” to both questions.
Following a recess, the court again recalled the jury
to instruct it to send out a note answering the follow-
ing questions: “Did you in any way consider or examine
the contents of the aforementioned exhibits? If you did
not, please note that in the note, sign it, and date it. If
you did, please remember my instruction. And, I might
have . . . some other questions for you if you did. But
let’s see if you examined it. And I’d like to have that as
a note so we can make it part of [the] court record.” The
jury responded by note that “[w]e did not review either
4A or 4B—we were uncertain if we should have it from
the get-go.”
The court indicated on the record to counsel outside
the presence of the jury that it was going to consider its
inquiry and the jury’s response sufficient to comport with
State v. Hernandez Herrera

any obligation the court had under State v. Brown, 235
Conn. 502, 668 A.2d 1288 (1995), to conduct an inquiry
into potential juror misconduct. The court inquired of
counsel: “Is there any issue regarding any other question-
ing that either party wishes to ask of the jury. We can
bring them out and you can do that.” Defense counsel
responded: “No, Your Honor. I think the analysis that
we’ve undergone is sufficient.” The state agreed, and the
court called the jury into the courtroom to inform the
jurors that they had answered the court’s question and
could continue with their deliberations. After the jury
exited, the court asked counsel if there was “[a]nything
else,” to which defense counsel responded, “No, Your
Honor.” The court took a recess.
Following the recess, however, defense counsel made
an oral motion for a mistrial, arguing that the jurors
must have looked at the exhibits in question because they
were able to identify them as having been improperly
presented to them. Counsel argued that, notwithstand-
ing the jury’s response to the court’s questions, “the
concern is . . . that it corrupted the jury and could affect
the defendant’s ability to have a fair and impartial ver-
dict in this case.” The state objected to the motion for
mistrial. The court denied the motion in an oral ruling
from the bench, concluding that a plain reading of the
jury’s written response to the court’s inquiry indicated
that it had not examined or considered exhibits 4A and
4B and that, therefore, its impartiality could not possibly
have been affected.4
The next day, the court indicated that it wanted “to
take the extra step of further questioning the jury
4
The court’s decision in full was as follows: “It’s axiomatic that juror
misconduct, and that’s what we’re allegedly talking about here, occurs
whenever, amongst other criteria, essential criteria, which is before
us today, is that juror misconduct occurred because the jury may have
been exposed to inadmissible evidence in the jury room by error. And
I looked at State v. Johnson [288 Conn. 236, 951 A.2d 1257 (2008)] in
this regard . . . . It’s axiomatic that the court must conduct an inquiry
whenever it is presented with a misconduct allegation. Again, the court
looked at State v. Brown, [supra, 235 Conn. 502]. Here, the court con-
ducted an inquiry by calling the panel out, asking the jury foreperson
State v. Hernandez Herrera

. . . whether anything regarding [exhibits 4A and 4B]
or the process would affect their ability to be fair and
impartial.” The court asked the jury to respond in a
note to the court. The jury subsequently confirmed by
a written note that the incident with the exhibits “did
not create any biases on the jury.” Shortly thereafter,
the jury returned a verdict finding the defendant guilty
on all charges. The court accepted the verdict and later
sentenced the defendant to a total effective sentence of
twenty years of incarceration, execution suspended after
fourteen years, followed by ten years of probation. This
appeal followed.
I
The defendant first claims that the court abused its
discretion and violated his right to due process by deny-
ing his motion to suppress his statements to the police
because the police officers who conducted his interview
lied to him with respect to statements purportedly made
by M and about potentially incriminating evidence
obtained from K’s underwear. The state responds that
the defendant’s claim is unpreserved because he never
raised these arguments in his motion to suppress, which
was limited to whether he had knowingly and voluntarily
waived his Miranda rights. The state argues that the
to answer the question of the court by way of a note . . . whether they
had in any way examined the contents of those exhibits. . . . The court
recessed for a length of time. The jury knocked on the door, indicated
that they had a note. The note, which was signed and dated . . . at 11:1[8]
a.m. indicated we did not review either 4A or 4B, we were uncertain
if we should have it from the get-go. So, it is obvious—I don’t know
whether it’s obvious, but from, I think, a plain reading of the note is
they didn’t review it. So, the next question of the court is that would
it have affected your ability to be fair and impartial is somewhat moot
because they didn’t review the information that the court would have
to inquire about. So, in light of those factors, I don’t feel that there was
grounds sufficient to grant the mistrial. I feel that the court conducted
the inquir[y] under Brown and Johnson as required under Connecticut
case law. The jury was questioned, I think, in a manner that it answered
the court’s question in a concise manner. They had not examined any
of the documents. They were bringing them to the court’s attention
simply by noting that they did not know whether they had to have them
or not. In light of those factors, your motion for mistrial is denied.”
State v. Hernandez Herrera

trial court never made any factual findings regarding the
circumstances surrounding the voluntariness of his state-
ments to the police, and, therefore, we should decline to
review his unpreserved claim under State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989), as modified
by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188
(2015), because the record is inadequate for review. The
state further argues that, even if the record is adequate
for review, the defendant has not established a violation
of his constitutional rights. Although we conclude that
the record is adequate to review the defendant’s unpre-
served claim and his claim is of constitutional magnitude,
we agree with the state that, on the basis of that record,
the defendant has failed to demonstrate a violation of his
constitutional rights with respect to the voluntariness
of his statements to the police. We accordingly reject
the defendant’s claim to the contrary.
We begin with our standard of review and governing
legal principles. “[T]he use of an involuntary confession
in a criminal trial is a violation of due process. . . . [T]he
test of voluntariness is whether an examination of all the
circumstances discloses that the conduct of law enforce-
ment officials was such as to overbear [the defendant’s]
will to resist and bring about confessions not freely self-
determined . . . . The ultimate test remains . . . [i]s the
confession the product of an essentially free and uncon-
strained choice by its maker? If it is . . . it may be used
against him. If it is not, if his will has been overborne and
his capacity for self-determination critically impaired,
the use of his confession offends due process. . . . The
determination, by the trial court, whether a confession
is voluntary must be grounded [in] a consideration of
the circumstances surrounding it. . . .
“Factors that may be taken into account, upon a proper
factual showing, include: the youth of the accused; his
lack of education; his intelligence; the lack of any advice
as to his constitutional rights; the length of detention;
the repeated and prolonged nature of the questioning; and
the use of physical punishment, such as the deprivation
State v. Hernandez Herrera

of food and sleep. . . . Under the federal constitution,
however, coercive police activity is a necessary predicate
to the finding that a confession is not voluntary . . . .
“It is well settled that [t]he state bears the burden of
proving the voluntariness of the defendant’s confession
by a preponderance of the evidence. . . . [As for the scope
of our review] we note the established rule that [t]he trial
court’s findings as to the circumstances surrounding the
defendant’s interrogation and confession are findings
of fact . . . which will not be overturned unless they are
clearly erroneous. . . .
“[A]lthough we give deference to the trial court con-
cerning these subsidiary factual determinations, such
deference is not proper concerning the ultimate legal
determination of voluntariness. . . . Consistent with the
well established approach taken by the United States
Supreme Court, we review the voluntariness of a confes-
sion independently, based on our own scrupulous exami-
nation of the record. . . . [A]pplying the proper scope of
review to the ultimate issue of voluntariness requires us
. . . to conduct a plenary review of the record in order to
make an independent determination of voluntariness.”
(Internal quotation marks omitted.) State v. Griffin, 339
Conn. 631, 667–69, 262 A.3d 44 (2021), cert. denied,
___ U.S. ___, 142 S. Ct. 873, 211 L. Ed. 2d 575 (2022).5
On several occasions, our Supreme Court has addressed
how the use of so-called “false evidence ploys,” in which
interrogators reference evidence that they do not have
“to give the impression that their case against the defen-
dant [is] stronger than it actually [is],” could impact the
voluntariness of a confession. Id., 673–74. For example,
in State v. Lapointe, 237 Conn. 694, 678 A.2d 942, cert.
denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d
378 (1996), our Supreme Court rejected a claim that a
5
As the defendant recognizes in his appellate brief, our Supreme
Court in Griffin declined to set a higher standard under the Connecti-
cut constitution regarding review of the voluntariness of a confession
or incriminating statement to law enforcement. See State v. Griffin,
supra, 339 Conn. 691.
State v. Hernandez Herrera

defendant’s incriminating statement was rendered invol-
untary because the police falsely represented to him that
it found his fingerprints on the handle of the knife used
to murder the victim. Id., 731–32. The court in Lapointe
reasoned that “[s]uch statements by the police designed
to lead a suspect to believe that the case against him is
strong are common investigative techniques and would
rarely, if ever, be sufficient to overbear the defendant’s
will and to bring about a confession to a serious crime
that is not freely self-determined . . . .” Id., 732.
Our Supreme Court had an opportunity to revisit this
language from LaPointe in State v. Griffin, supra, 339
Conn. 631, explaining as follows: “Although we do not
interpret Lapointe as suggesting that false evidence
claims can never contribute to the involuntariness of a
confession, we take this opportunity to emphasize that
misrepresentations by interrogating officers about the
strength of their case against a defendant can, under
certain circumstances, add to the coercive nature of
an interrogation. We decline at this time, however, to
categorically condemn the use of such tactics or to adopt
any bright-line rules as to their likely impact on the vol-
untariness of a confession.” Id., 674. The court in Griffin
indicated that “[t]he impact of false evidence ploys, if
any, must . . . be assessed in light of the totality of the
circumstances, including the presence or absence of other
coercive circumstances and the personal characteristics
of the defendant.”6 Id., 675.
Turning to the defendant’s claim, we first address the
issue of preservation raised by the state. It is axiomatic
6
Although not directly applicable to the defendant’s 2021 interroga-
tion, we note that the legislature passed legislation, effective October 1,
2023, concerning law enforcement’s use of deception or coercive inter-
rogation tactics. See Public Acts 2023, No. 23-27, § 1; see also General
Statutes § 54-86q. Subsection (a) of § 54-86q defines what constitutes
“ ‘deception or coercive tactics,’ ” and the statute imposes a rebuttable
presumption that “any admission, confession or statement, whether
written or oral, made by any person during a custodial interrogation
by a law enforcement agency official or such official’s agent” is invol-
untary and inadmissible in any proceeding if “deception or coercive
tactics” were used during the interrogation. General Statutes § 54-86q
State v. Hernandez Herrera

that an appellate court “shall not be bound to consider
a claim unless it was distinctly raised” before the trial
court. Practice Book § 60-5; see also State v. Hampton,
293 Conn. 435, 443, 988 A.2d 167 (2009) (concluding
that claim on appeal regarding motion to suppress was
not preserved because claim was not distinctly raised in
motion to suppress or during suppression hearing). “The
requirement that the claim be raised distinctly means
that it must be so stated as to bring to the attention
of the court the precise matter on which its decision is
being asked.” (Emphasis in original; internal quotation
marks omitted.) State v. Carter, 198 Conn. 386, 396, 503
A.2d 576 (1986). In other words, it must “alert the trial
court to the specific deficiency now claimed on appeal.”
(Emphasis added.) Id. “Requiring a party to distinctly
raise a claim of error before the trial court is no mere
formality; rather, it ensures that the trial court is spe-
cifically apprised of the alleged error and, thus, has an
opportunity to respond accordingly.” (Internal quotation
marks omitted.) State v. Danielle P., 238 Conn. App. 73,
93–94, 335 A.3d 69 (2026).
On the basis of our review of the motion to suppress
and the arguments made to the court during the hear-
ing on that motion, we agree with the state that the
defendant failed to preserve his claim that Cotto’s use
of false evidence ploys during his interrogation of the
defendant was so egregious that, under the totality
(c). Significantly, and consistent with Griffin, the use of false evidence
ploys is not among the tactics deemed to be presumptively deceptive or
coercive provided that the person subject to interrogation is, like the
defendant in the present case, over the age of eighteen at the time of
the interrogation.
Subsection (b) of § 54-86q expands what constitutes “ ‘deception or
coercive tactics’ ” if the person being interrogated is under eighteen
years of age to include any tactic that “(1) Communicates false facts
about evidence that were known to the law enforcement agency official
or their agent or should have been known to the law enforcement agency
official or their agent to be false; (2) Communicates false statements
or misrepresentations of the law that were known or should have been
known to be false statements or misrepresentations; or (3) Communicates
false or misleading promises of leniency or some other benefit or reward
that were known or should have been known to be false or misleading.”
State v. Hernandez Herrera

of the circumstances, they contributed to an unfairly
coercive interrogation that rendered the defendant’s
inculpatory statements to the police involuntary. The
written motion to suppress claimed that his statements
to the police were “the fruits of an unlawful, warrantless
search and/or seizure of the defendant’s person and/or
effects”; “obtained . . . without knowing and intelli-
gent waiver of [his Miranda] right[s]”; or “obtained
through violation of the defendant’s sixth amendment
right to assistance of counsel . . . .” The written motion
did not challenge the voluntariness of the defendant’s
statements on the ground that they were the result of
coercive or deceptive interrogation tactics. The court
indicated in its decision on the motion to suppress that
it understood the sole issue before it to be “whether the
defendant waived his Miranda rights regarding his
statement.” Defense counsel did ask questions during
the suppression hearing relative to the atmosphere of
the interrogation, including whether the close proxim-
ity of the detectives to the defendant may have been
intimidating, or whether language barriers may have
resulted in confusion. Although defense counsel asked
Cotto if it was a generally accepted police practice to give
individuals subject to interrogation false information,
counsel never established whether the defendant was
provided with false information or argued that Cotto’s
use of false information was a factor to be considered in
evaluating the voluntariness of the defendant’s state-
ments. In short, the defendant failed to preserve the
precise, specific claim he now raises on appeal.
To the extent that his claim is unpreserved, the defen-
dant nevertheless seeks review pursuant to State v.
Golding, supra, 213 Conn. 239–40. “Under Golding, a
defendant can prevail on a claim of constitutional error
not preserved at trial only if all of the following condi-
tions 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 fundamental
right; (3) the alleged constitutional violation . . . exists
and . . . deprived the defendant of a fair trial; and (4) if
State v. Hernandez Herrera

subject to harmless error analysis, the state has failed to
demonstrate [the] harmlessness of the alleged constitu-
tional violation beyond a reasonable doubt. . . . The first
two prongs govern whether we may review the claim,
[whereas] the second two control whether the defendant
may prevail on his claim because there was constitutional
error that requires a new trial. . . . 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 condi-
tion is most relevant in the particular circumstances.”
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) State v. Johnson, 354 Conn. 96,
104–105, 349 A.3d 260 (2026). We conclude that the
defendant has failed to establish that Cotto’s use of
deceptive tactics during the defendant’s interrogation,
including misrepresenting certain facts, rendered his
statements involuntary. Accordingly, his claim fails
under the third prong of Golding.7
We conclude, consistent with the analysis set forth
by the state in its appellate brief, that, in light of the
7
The state argues that the record is inadequate for review and that
we should conclude that the defendant’s claim fails under the first
prong of Golding. We agree with the state that the defendant’s failure
to raise the precise arguments that he now raises on appeal necessarily
affects the quality of the record available for review. For example, the
defendant argues on appeal that the trial court “did not address whether
the detectives’ lies affected the voluntariness of the confession,” did
not acknowledge our Supreme Court’s discussion in Griffin regarding
deceptive interrogation tactics, and did not evaluate several factors
that our courts previously have deemed relevant to an inquiry about
the voluntariness of a confession. Such lapses, however, are directly
attributable to the fact that the arguments the defendant now raises
on appeal were not made to the trial court. At trial, however, it was
established that Cotto misrepresented certain facts to the defendant
during the interrogation. See State v. Whitaker, 215 Conn. 739, 742,
578 A.2d 1031 (1990) (in conducting review of decision on motion to
suppress, appellate courts are not limited to evidence presented to trial
court at suppression hearing). Moreover, the defendant’s interview
was video recorded and transcribed, and both are part of the record on
appeal. “The defendant bears the responsibility for providing a record
that is adequate for review of his claim of constitutional error. If the
facts revealed by the record are insufficient, unclear or ambiguous as to
State v. Hernandez Herrera

totality of the circumstances, Cotto’s two factual mis-
representations during the defendant’s interview with
the police did not render his incriminating statements
involuntary and, thus, inadmissible as a matter of due
process. As previously stated, in considering whether a
statement has been given voluntarily, it is appropriate
to consider the totality of the circumstances involved
including “the youth of the accused; his lack of education;
his intelligence; the lack of any advice as to his consti-
tutional rights; the length of detention; the repeated
and prolonged nature of the questioning; and the use of
physical punishment, such as the deprivation of food
and sleep.” (Internal quotation marks omitted.) State
v. Griffin, supra, 339 Conn. 668.
In denying the motion to suppress, the trial court
expressly found that the defendant was advised of his
constitutional rights consistent with Miranda and made
a valid waiver of those rights prior to his questioning
by the police. The defendant does not challenge those
findings on appeal. “The provision of adequate Miranda
warnings is significant in our analysis because it has
a bearing on both sides of the voluntariness calculus:
It bears on the coerciveness of the circumstances, for
it reveals that the police were aware of the suspect’s
rights and presumably prepared to honor them. And . .
. it bears [on] the defendant’s susceptibility, for it shows
that the defendant was aware he had a right not to talk
to the police.” (Internal quotation marks omitted.) Id.,
671–72. As the United States Supreme Court has noted:
“We do not suggest that compliance with Miranda con-
clusively establishes the voluntariness of a subsequent
whether a constitutional violation has occurred, we will not attempt to
supplement or reconstruct the record, or to make factual determinations,
in order to decide the defendant’s claim.” (Emphasis added.) State v.
Golding, supra, 213 Conn. 240. Although it would have been less bur-
densome for this court if the trial court had made relevant findings with
respect to the precise issue before us, we nonetheless conclude that it
is possible to evaluate on the existing record as a whole what potential
effect, if any, Cotto’s misrepresentations and other tactics had on the
defendant and whether those tactics reasonably could have overborn
the defendant’s will.
State v. Hernandez Herrera

confession. But cases in which a defendant can make a
colorable argument that a self-incriminating statement
was ‘compelled’ despite the fact that the law enforcement
authorities adhered to the dictates of Miranda are rare.”
Berkemer v. McCarty, 468 U.S. 420, 433 n.20, 104 S.
Ct. 3138, 82 L. Ed. 2d 317 (1984). Prior to his interview,
the defendant in the present case was provided with a
Miranda waiver form, he read his rights out loud, and
he indicated that he understood those rights by writing
his initial after each of his rights and signing the waiver
forms.
Next, the state argues that “the circumstances sur-
rounding the police interview, including the length of
the interview, the defendant’s demeanor during his
interview, and the lucidity of his statements to the police
further support that the defendant’s confession was vol-
untary.” First, the interrogation lasted approximately
fifty minutes, which is far shorter in length than inter-
rogations that our Supreme Court previously has deter-
mined were not inherently coercive in length. See, e.g.,
State v. Griffin, supra, 339 Conn. 682 (collecting cases
and holding that three hour interrogation at issue was
“far shorter than other interrogations held not to have
been inherently coercive”). Second, the trial court found,
on the basis of its review of the video recorded interview,
that “the defendant shows that he is lucid and not under
the influence of any intoxicating substances when he
asked [Cotto] at the end of the interview . . . the date of
the interview and, after [Cotto] responds, the defendant
writes down the correct date and time.”8 As our Supreme
Court in Griffin reinforced, “[i]t is undisputed . . . that
[a] defendant’s calm demeanor and the lucidity of his
statements weigh in favor of finding his confession vol-
untary.” (Internal quotation marks omitted.) State v.
8
In its decision, the court expressly found that Cotto’s testimony at
the suppression hearing was credible and supported by the evidence.
Specifically, the court credited Cotto’s assessment that, at the time of
the interview, the defendant was not under the influence of drugs or
alcohol, his speech was clear and lucid, and his answers were related
to Cotto’s questions.
State v. Hernandez Herrera

Griffin, supra, 683. Our review of the video recording
confirms that the defendant appeared lucid and main-
tained a calm demeanor during his interview, and his
answers related to the detective’s questions. Third, as the
defendant concedes, no evidence was presented that the
police subjected him to any physical punishment either
before or during the interview.
The only allegedly coercive behavior that the defendant
articulated before the trial court was that Cotto and
Valentin sometimes would invade his personal space by
moving closer to him when he denied their allegations.
On appeal, he argues that this close proximity made him
“afraid that he might be beaten if he didn’t falsely admit
guilt.” On the basis of its review of the video recording
of the interrogation, however, the trial court rejected
the defendant’s argument that the detectives’ proxim-
ity to him was itself coercive in nature, and we are not
convinced otherwise. The defendant does not challenge
this aspect of the court’s ruling in the present appeal,
arguing only that the court did not make additional
express findings regarding the effect of the police offi-
cers’ use of misinformation, the defendant’s education
or intelligence, or his lack of prior experience with police
questioning.
We also agree with the state that, on balance, the defen-
dant’s personal characteristics also support that his
confession was voluntary. Specifically, the defendant
was an adult, he had a tenth grade education, and he
was gainfully employed. Although the defendant argues
that his lack of experience with the police impacted the
voluntariness of his confession, as we have already con-
cluded, the police adequately informed the defendant
of his rights and he indicated that he understood those
rights and validly waived them prior to questioning. We
are simply not convinced by the defendant’s arguments
that his education, intelligence, or lack of prior experi-
ence with law enforcement played any role in creating
the type of unreasonably coercive atmosphere that would
State v. Hernandez Herrera

have overborn his will such that his statements should
be viewed as involuntary.
Finally, the defendant heavily relies on the concur-
ring opinion in Griffin to support his argument that
the factual misrepresentations Cotto made during his
interview were so egregious that they rendered his con-
fession involuntary. The concurring opinion, however,
agreed with the majority that “courts generally have
not deemed [false evidence ploys], in and of itself, suf-
ficient to render a confession involuntary.” (Emphasis
omitted.) State v. Griffin, supra, 339 Conn. 707 (Ecker,
J., concurring in part and dissenting in part). Because,
as we have discussed, other inherently coercive elements
were not present in this interview, the relatively few
instances of Cotto’s use of false evidence ploys during
the defendant’s interview were simply insufficient to
render the defendant’s confession involuntary. At trial,
the defendant testified that he was aware of at least one
of the false evidence ploys used by the police during his
interview. Such knowledge obviously would have reduced
the overall alleged coercive impact of Cotto’s deceptive
tactics. See State v. Doyle, 104 Conn. App. 4, 18, 931
A.2d 393 (defendant’s testimony at trial that “he did
not believe the statements by the police” regarding false
evidence ploy “clearly demonstrate that the defendant’s
will was not overborne”), cert. denied, 284 Conn. 935,
935 A.2d 152 (2007).
Having reviewed the totality of the circumstances
surrounding the defendant’s interrogation, we conclude
that the factual misrepresentations and other deceptive
tactics used by Cotto during the defendant’s interview
did not render his statements to the police involuntary.
Because the defendant has failed to show a constitutional
violation of his due process rights, his unpreserved claim
fails under the third prong of Golding.
II
The defendant also claims that the court improperly
denied his motion for a mistrial in which he argued that
State v. Hernandez Herrera

certain exhibits that had been marked for identification
only were inadvertently submitted to the jury during its
deliberations. We reject the defendant’s claim.
We begin with general legal principles, including our
standard of review. “While the remedy of a mistrial is
permitted under the rules of practice, it is not favored.
. . . If curative action can obviate the prejudice, the
drastic remedy of a mistrial should be avoided. . . . The
general rule in Connecticut is that a mistrial is granted
only where it is apparent to the court that as a result of
some occurrence during trial a party has been denied the
opportunity for a fair trial. . . . The trial court enjoys wide
discretion in deciding whether a mistrial is warranted
. . . and its evaluation as to events occurring before the
jury is to be accorded the highest deference. . . . Every
reasonable presumption will be given in favor of the trial
court’s ruling . . . because the trial court, which has a
firsthand impression of the jury, is in the best position
to evaluate the critical question of whether the juror’s
or jurors’ exposure has prejudiced a defendant. . . . It is
only when an abuse of discretion is manifest or where
an injustice appears to have been done that a reversal
will result from the trial court’s exercise of discretion.
. . . A reviewing court gives great weight to curative
instructions in assessing error.” (Internal quotation
marks omitted.) State v. Rivera, 152 Conn. App. 248,
254–55, 96 A.3d 1285, cert. denied, 314 Conn. 934, 102
A.3d 85 (2014).
“Jury impartiality is a core requirement of the right
to trial by jury guaranteed by the constitution of Con-
necticut, article first, § 8, and by the sixth amendment
to the United States [c]onstitution. . . . [T]he right to
a jury trial guarantees to the criminally accused a fair
trial by a panel of impartial, indifferent jurors. . . . A
necessary component of the right to an impartial jury
is the right to have the jury decide the case solely on the
basis of the evidence and arguments given them in the
adversary arena after proper instructions on the law by
the court. . . . Consideration of extrinsic evidence is jury
State v. Hernandez Herrera

misconduct and has been found to be sufficient to violate
the constitutional right to trial by an impartial jury.”
(Citation omitted; emphasis added; internal quotation
marks omitted.) State v. Kamel, 115 Conn. App. 338,
343, 972 A.2d 780 (2009).
A jury’s consideration of evidence that the court has
not fully admitted as an exhibit, such as evidence marked
for identification purposes only, constitutes the consider-
ation of extrinsic evidence for the purposes of the defen-
dant’s constitutional rights under the sixth amendment
and, therefore, is treated as jury misconduct. See id.,
345; see also Connecticut Light & Power Co. v. Gilmore,
289 Conn. 88, 103–104, 956 A.2d 1145 (2008).
As our Supreme Court explained in State v. Santiago,
245 Conn. 301, 715 A.2d 1 (1998), appellate review “of
the scope of the trial court’s preliminary inquiry into
allegations of jury misconduct is governed by State v.
Brown, supra, 235 Conn. 502. In Brown, [our Supreme
Court] exercised [its] supervisory authority over the
administration of justice to hold that . . . a trial court
must conduct a preliminary inquiry, on the record, when-
ever it is presented with any allegations of jury miscon-
duct in a criminal case, regardless of whether an inquiry
is requested by counsel. . . . [T]he trial court has broad
discretion to determine the form and scope of the proper
response to allegations of jury misconduct . . . [and] [i]n
exercising that discretion, the trial court must zealously
protect the rights of the accused. . . . [The role of] an
appellate court is limited . . . to a consideration of whether
the trial court’s review of alleged jury misconduct can
fairly be characterized as an abuse of its discretion. . . .
[T]he trial court should consider the following factors
in exercising its discretion as to the form and scope of a
preliminary inquiry into allegations of jury misconduct:
(1) the criminal defendant’s substantial interest in his
constitutional right to a trial before an impartial jury; (2)
the risk of deprivation of the defendant’s constitutional
right to a trial before an impartial jury, which will vary
with the seriousness and the credibility of the allegations
State v. Hernandez Herrera

of jury misconduct; and (3) the state’s interests of, inter
alia, jury impartiality, protecting jurors’ privacy and
maintaining public confidence in the jury system. . . .
[A]ny assessment of the form and scope of the inquiry
that a trial court must undertake when it is presented
with allegations of jury misconduct will necessarily be
fact specific. . . . The circumstances in each case will
necessarily vary and each situation is sui generis.” (Cita-
tions omitted; internal quotation marks omitted.) State
v. Santiago, supra, 331. With these principles in mind,
we turn to the present case.
As a preliminary matter, we address the state’s argu-
ment that we should decline to review the defendant’s
claim because he waived his right to challenge the alleged
jury misconduct because he failed to raise an objection
before the trial court regarding its inquiry into the
alleged jury misconduct. Although the state is correct
that defense counsel initially voiced no objections to the
inquiry and corrective actions taken by the trial court in
response to the jury’s note about the exhibits and indi-
cated on the record that he did not have any additional
questions for the jurors, defense counsel returned fol-
lowing a recess and orally moved for a mistrial. By so
doing, he not only preserved the arguments now raised on
appeal; see State v. Colon, 272 Conn. 106, 363 n.146, 864
A.2d 666 (2004) (claim was adequately preserved because
it was raised in motion for mistrial), cert. denied, 546
U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005); but
effectively revoked any prior express or implied waiver
of the defendant’s right to challenge the court’s handling
of possible jury misconduct. We take note that the trial
court, in denying the motion for a mistrial, rejected
the defendant’s arguments on their merits and not on
the basis of any perceived waiver. See footnote 4 of this
opinion. Accordingly, we reject the state’s invitation to
decline review of the defendant’s claim on the basis of
waiver. We do, however, agree with the state’s alterna-
tive argument that, even if not waived, the defendant’s
claim fails because the court properly exercised its dis-
cretion in conducting its inquiry into the potential juror
State v. Hernandez Herrera

misconduct issue and concluding that misconduct did not
infringe upon the defendant’s right to an impartial jury.
This court previously has considered whether a court
abused its discretion by refusing to grant a mistrial on
the ground that exhibits not entered into evidence as full
exhibits were submitted to the jury for review during
its deliberations. See State v. Stuart, 113 Conn. App.
541, 544, 967 A.2d 532, cert. denied, 293 Conn. 922,
980 A.2d 914 (2009). Like in the present case, amongst
the exhibits provided to the jury in Stuart were several
exhibits that had been marked for identification only. Id.,
548. The court learned of the error on the second day of
deliberations. Id. Unlike in the present case, when the
court inquired of the jury whether it had reviewed the
improperly submitted materials, the jury indicated that
it had. Id., 549. The court then instructed the jury to
disregard any of the information in the exhibits. Id. The
defendant moved for a mistrial, but the court denied the
motion on the ground that any error was harmless. Id.
On appeal, this court in Stuart concluded that the
submission of the exhibits did not constitute structural
error and did not violate the defendant’s right to an
impartial jury. Id., 552–55. The court explained that
“[t]he admission of exhibits not properly admitted into
evidence is trial error, which may be subject to harmless
error analysis, and is not structural error because it is
not an error that fundamentally infects the entire trial
process and defies analysis of its specific impact. It may
be quantitatively assessed in the context of the evidence.”
Id., 551. Furthermore, the court concluded that the trial
court had not abused its discretion in denying a mistrial,
reiterating that our “[c]ase law recognizes that the trial
judge is in the superior position to gauge the extent and
effect of any improper viewing” of extrinsic evidence,
and observing that the trial court was fully aware of the
contents of the exhibits at issue as well as their signifi-
cance to the overall evidence and had instructed the jury
to disregard its viewing of those exhibits. Id., 553–54.
The court in Stuart held that the circumstances “did
State v. Hernandez Herrera

not compel a mistrial”; id., 554; and we are unconvinced
that the circumstances of the present case compel a dif-
ferent result.
In the present case, when the court learned of the error,
it exercised its discretion consistent with the holding
in Brown by conducting a limited inquiry of the jury
and giving a curative instruction. See State v. Brown,
supra, 235 Conn. 526; State v. Stuart, supra, 113 Conn.
App. 555. The defendant argues that the court abused
its discretion in conducting its inquiry because it did not
adequately question the jurors about the circumstances
surrounding the jury’s discovery of the erroneously sub-
mitted exhibits, instructed the jury not to consider the
exhibits before it asked whether the jury had examined
the contents of the exhibits, and relied on the jury’s note
that indicated it had not reviewed the exhibits rather
than asking the jury to respond to that question on the
record. We reject the defendant’s arguments that the
court’s procedures were insufficient under Brown.
It was unnecessary for the court to have inquired more
about what triggered the jury’s initial note regarding
exhibits 4A and 4B because the jury’s reasoning was
apparent from a common sense reading of the note. In
particular, in its note, the jury asked whether it prop-
erly had been provided the exhibits because it “didn’t
see [these exhibits] previously” at trial. We agree with
the state that making any further inquiry into what
prompted the jury to send its note risked improperly
invading the mental processes of the jurors. See, e.g.,
State v. Johnson, 288 Conn. 236, 264, 951 A.2d 1257
(2008) (concluding that court’s inquiry into juror mis-
conduct pursuant to Brown “improperly invaded the
mental processes of the jurors”). Additionally, there is
no merit to the defendant’s suggestion that the court
abused its discretion simply because it instructed the
jurors to disregard any information in the exhibits before
confirming whether or not they had reviewed them.
We see no significance in the particular order in which
the court conducted its inquiry into the potential juror
State v. Hernandez Herrera

misconduct. In Stuart, the court similarly had instructed
the jury not to consider any of the information contained
in the improper exhibits before asking whether the jury
had viewed those exhibits. See State v. Stuart, supra, 113
Conn. App. 554. On review, this court concluded that
the trial court’s Brown inquiry was a proper exercise of
discretion. Id. The order in which the trial court elected to
conduct its inquiry in the present case similarly was well
within the court’s discretion. Finally, the court asked the
jury in open court whether it “in any way consider[ed] or
examine[d] the contents of the aforementioned exhibits.”
The jury responded unequivocally by note, as instructed,9
that it “did not review either 4A or 4B . . . .” Contrary
to the defendant’s argument, it was not an abuse of the
court’s discretion to have accepted the jury’s answer
without asking it to clarify what it meant by “review.” As
the term is commonly understood, to “review” something
means more than simply observing what something is
but “[c]onsideration, inspection, or reexamination of a
subject or thing.” Black’s Law Dictionary (9th Ed. 2009)
p. 1434. The court concluded that “a plain reading of
the note is they didn’t review [the exhibits].” The jury’s
response was not ambiguous, but rather clearly reflected
that, although it may have been vaguely aware of what
9
We find no merit in the defendant’s suggestion that the trial court’s
use of written notes rather than direct questioning of the foreperson
or the jurors individually was an abuse of its discretion. Our Supreme
Court in Brown stated unequivocally that “[o]ur requirement that any
allegations of jury misconduct necessitate some type of a preliminary
inquiry still leaves the form and scope of such an inquiry to be deter-
mined by the trial court within the exercise of its discretion.” (Emphasis
added.) State v. Brown, supra, 235 Conn. 529. In the present case, the
trial court explained on the record that it wanted to use written notes in
order to ensure all communications were made a part of the court record.
The defendant has not provided any persuasive legal authority that this
choice constitutes an abuse of the requirement that the court conduct
its preliminary inquiry under Brown “on the record.” Id., 526; see State
v. Kamel, supra, 115 Conn. App. 348; see also State v. Montanez, 185
Conn. App. 589, 607–608, 197 A.3d 959 (2018) (in conducting Brown
inquiry to determine whether jury remained fair and impartial, court
was not obligated to voir dire all jurors individually), cert. denied, 332
Conn. 907, 209 A.3d 643 (2019).
State v. Hernandez Herrera

the exhibits contained, it had not examined or inspected
the contents of those exhibits.
In summary, having learned of potential jury miscon-
duct arising from viewing what amounted to extrinsic
evidence, the court properly exercised its discretion in a
manner consistent with Brown by conducting a limited
inquiry on the record and providing an adequate cura-
tive instruction.
Moreover, the defendant has not persuaded us that the
court abused its discretion in denying the motion for a
mistrial. The defendant argues that the court errone-
ously concluded that there were insufficient grounds to
grant the motion because the jury had not examined the
exhibits marked for identification only. The defendant
argues that “[n]either the video nor the transcript was
. . . harmless given the credibility contest at the heart
of this case.” In making this argument, however, the
defendant presumes that the jury reviewed the video
recording and transcript of K’s statement to the police.
As we have explained, this presumption is contrary to
the jury’s unambiguous representations to the court,
made following an adequate inquiry under Brown, on
which the court expressly relied.
Because we are persuaded that the court properly exer-
cised its discretion in conducting its Brown inquiry
into the potential issue of juror misconduct and that
the defendant has not demonstrated that his right to
an impartial jury was violated in the present case, we
conclude that the trial court properly denied his motion
for a mistrial.
The judgment is affirmed.
In this opinion the other judges concurred.