State v. D'Amato

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STATE OF CONNECTICUT v. MICHAEL A. D’AMATO
(AC 36877)
Gruendel, Alvord and Prescott, Js.
Argued December 1, 2015—officially released March 8, 2016

(Appeal from Superior Court, judicial district of New
Haven, geographical area number twenty-three, B.
Fischer, J.)
Mark Rademacher, assistant public defender, for the
appellant (defendant).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Kevin Shay, senior assistant state’s
attorney, for the appellee (state).
Opinion

ALVORD, J. The defendant, Michael A. D’Amato,
appeals from the trial court’s judgment of conviction,
rendered after a jury trial, of larceny in the second
degree by defrauding a public community in violation
of General Statutes §§ 53a-119 (6) (C)1 and 53a-123 (a)
(4),2 and tampering with physical evidence in violation
of General Statutes § 53a-155 (a) (1).3 On appeal, the
defendant claims that the trial court (1) improperly
‘‘denie[d] [the defendant] his right to present a defense
when the court prevent[ed] [a witness] from invoking
his fifth amendment right in front of the jury’’; (2)
improperly allowed the prosecutor to state to ‘‘the jury
what [the privileged witness’] testimony would have
been and . . . fail[ed] to tell the jury not to draw any
inference from [the witness’] absence from the trial’’;
and (3) ‘‘wrongly prevent[ed] impeachment of [East
Haven police Sergeant Gary] DePalma, a key state’s
witness, who said [the privileged witness] put the
money in the mailbox.’’4 We affirm the judgment of the
trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. On March 12, 2011, East Haven police Officer
Dennis Spaulding arrested three suspects and seized
drugs and more than $1300 in cash from their car. At the
East Haven Police Department (department), Spaulding
counted the money in front of his supervisor, DePalma.
DePalma signed the department’s evidence log and
ensured that the seized money was properly recorded.
According to DePalma, the money was placed in two
plastic evidence bags. DePalma testified that he then
watched Spaulding go into the department’s evidence
closet. Because of his positioning, he could not actually
see Spaulding place the sealed bags in the evidence
box, but he heard the evidence box open and close.
The closet was located off of an evidence processing
room, an area to which several officers had access. The
locked closet was approximately six feet by six feet in
dimension. The key for the closet was kept behind the
duty supervisor’s desk. Inside the closet was the evi-
dence box, which was an old United States Post Office
mailbox. Evidence was placed in a drawer at the top
of the evidence box. Once the drawer was closed, the
evidence dropped to the bottom of the evidence box
and was retrieved by unlocking the bottom door.5
On March 17, 2011, five days after Spaulding seized
the money, Sergeant George Kammerer, the depart-
ment’s evidence officer, went to retrieve evidence from
the evidence box and discovered that the money was
missing. Kammerer testified that he and another officer
conducted a thorough search of the evidence closet,
but they could not find the money. The state police
were called in to investigate.
Within a few days after the money was discovered
missing, East Haven police Captain Henry Butler III and
East Haven police Commissioner Fred Brow tested the
lock6 on the evidence box. Butler testified that they
pulled on the lower door of the evidence box, and even
though it was locked, ‘‘it open[ed] a little bit, enough
[that] I could stick my hand halfway in there . . . .’’
He also testified that he believed it would not be possi-
ble for a person to squeeze their entire hand into the
evidence box nor could they reach to the bottom of
the box.
There were several surveillance cameras in the
department, but none had a clear shot of the evidence
box. The cameras took still pictures eight seconds apart
and did not record continuous video.7 The state police
reviewed footage of who entered and exited the closet
during the five days from when the money was seized
to when it was discovered missing. The investigation
focused on the defendant, who at the time was a detec-
tive with the department.
The still shots from the surveillance cameras showed
the defendant in the vicinity of the evidence closet on
the morning of March 14, 2011. During that time, the
closet door is seen opening and closing. The still shots
do not actually show the defendant entering or exiting
the closet, but they showed him leaving the area with
something under his arm. Based on the still shots pre-
sented to the jury, it was not perfectly clear what the
defendant was holding, but the state suggested that part
of the item or items was colored red.8 The state argued
that this was the evidence bags containing the seized
money. Four months after the theft was reported, the
defendant was interviewed by state police. Initially, he
did not recall being in the evidence closet, but after
being shown still pictures he admitted that he may have
been in there but could not remember exactly why. The
defendant was arrested and charged with the theft of
the missing money.
Prior to the trial, the state included Spaulding on its
witness list, but it was informed by his counsel that he
would be invoking his fifth amendment privilege against
self-incrimination. The state subpoenaed Spaulding,
and during the trial but outside the presence of the
jury, Spaulding stated that he would invoke his fifth
amendment right if he was required to testify. After the
time of the alleged theft and prior to the commencement
of the trial, Spaulding had been charged and convicted
of federal crimes for civil rights violations and the
obstruction of justice in relation to his conduct as an
East Haven police officer. Spaulding’s counsel informed
the court that he had advised Spaulding not to testify
because he intended to appeal his conviction. Defense
counsel conducted a voir dire of Spaulding, asking
whether he would invoke his privilege against self-
incrimination if she were to cross-examine him during
the trial. Spaulding stated that he would invoke the
privilege. Defense counsel did not request that Spauld-
ing make his invocation of the privilege in the presence
of the jury.
On February 3, 2014, the jury found the defendant
guilty of larceny in the second degree and tampering
with physical evidence. The trial court, B. Fischer, J.,
sentenced the defendant to five years imprisonment,
execution suspended after eighteen months, followed
by two years of probation. This appeal followed.
I
The defendant claims on appeal that ‘‘[w]here evi-
dence before the jury implicates another suspect as the
sole perpetrator of the crime, the court denie[d] [the
defendant] his right to present a defense when the court
prevent[ed] the suspect from invoking his fifth amend-
ment right in front of the jury.’’ Specifically, the defen-
dant claims that the trial court, sua sponte, should have
required Spaulding to invoke his fifth amendment privi-
lege in front of the jury. The defendant raises this claim
for the first time on appeal and requests review pursuant
to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989).9 We conclude that the claim fails under the
third prong of Golding; the defendant has not demon-
strated a violation of a constitutional right and depriva-
tion of a fair trial.10
‘‘It is true that ‘[t]he right to offer the testimony of
witnesses . . . is in plain terms the right to present a
defense, [and] the right to present the defendant’s ver-
sion of the facts . . . .’ Washington v. Texas, 388 U.S.
14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). While
this sixth amendment right is binding upon the state
through the fourteenth amendment, it is also estab-
lished that ‘the right to confront and to cross-examine
[witnesses] is not absolute and may, in appropriate
cases, bow to accommodate other legitimate interests
in the criminal trial process.’ Chambers v. Mississippi,
410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973).
The fifth amendment privilege against self-incrimina-
tion is one of those interests.’’ (Footnote omitted.) State
v. Bryant, 202 Conn. 676, 685, 523 A.2d 451 (1987).
Our Supreme Court has concluded that a defendant’s
constitutional right to present a defense does not
include the absolute right to present a witness to the
jury for the sole purpose of invoking his fifth amend-
ment privilege against self-incrimination. Id., 685–87. In
Bryant, the defendant requested to present a witness,
his brother, who he claimed was the culpable party,
for the precise purpose of having him invoke his fifth
amendment privilege against self-incrimination in the
presence of the jury. Id., 681. Relying on the majority
view that such testimony would have a disproportion-
ately prejudicial impact on the jury, the Supreme Court
concluded that the trial court correctly barred the jury
from hearing the witness invoke his privilege against
self-incrimination. Id., 686–87. The court stated: ‘‘Nei-
ther side has the right to benefit from inferences capable
of being drawn by the jury where the privilege is invoked
by the witness. . . . Reason and human experience
indicate that inferences are certainly suggested by such
a tactic; the danger inherent in this circumstance is that
the inference or inferences drawn may have little, if
any, juristic relation to the issues before the jury. More
important, however, is the fact that the inference, what-
ever it may be, cannot be attacked effectively by cross-
examination.’’ (Citation omitted.) Id., 684.
Here, the defendant’s right to present a defense was
not violated. Furthermore, the defendant seeks to go a
step beyond Bryant and require the trial court, sua
sponte, to ensure that the jury hears the witness invoke
his privilege against self-incrimination. We decline to
deviate from the holding in Bryant.
Outside the presence of the jury, defense counsel
was given an opportunity to question Spaulding, and
she was satisfied that he would not answer any of her
questions if he was called to testify before the jury.11
The defendant did not request to have Spaulding testify
before the jury, and appropriately, the court did not
order Spaulding to do so. A careful review of the tran-
script discloses that the defendant was still able to
present a defense that could have raised a reasonable
doubt as to his guilt. Through the testimony of other
witnesses, the defendant was able to show that Spauld-
ing was the officer responsible for depositing the money
in the evidence box, and even though his supervisor
was present, no one actually saw Spaulding put the
money in the evidence box. Knowing that Spaulding
would invoke his fifth amendment privilege to not
answer any questions, the defendant’s sole purpose in
calling him as a witness would have been to induce an
inference of Spaulding’s guilt based on the invocation.
‘‘[T]he sixth amendment right to call a witness must be
considered in the light of its purpose, namely, to pro-
duce testimony for the defendant. . . . Calling a wit-
ness who will refuse to testify does not satisfy that
purpose.’’ (Citations omitted.) Id., 685.
The defendant argues that the court in Bryant held
out the possibility that there could be a case in which
the defendant should be allowed to call a witness only
for the purpose of invoking the privilege against self-
incrimination, but we conclude that this is not that
case.12 See id., 686. In Bryant, our Supreme Court put
great emphasis on reviewing the third-party culpability
evidence that was before the jury at the time that the
defendant sought to call the witness to invoke the privi-
lege on the witness stand. Id. In that case, the jury
had heard a police detective testify that based on his
investigation, ‘‘one of the Bryants, not specifically [the
defendant], could be a suspect.’’ (Internal quotation
marks omitted.) Id. The court concluded that even this
statement, leaving open the possibility that the defen-
dant’s brother had committed the crime, was not
enough to require the trial court to grant the defendant’s
request that the brother invoke his fifth amendment
privilege against self-incrimination in the presence of
the jury. Id., 686–87.
Assuming, arguendo, that the defendant had sought
to call Spaulding to testify,13 the third-party culpability
evidence that was before the jury implicating Spaulding
as the guilty party was no more fulsome than the evi-
dence that had been presented in Bryant. See id. In
this case, the jury reasonably could have found that
Spaulding was the last person to have lawful custody
of the money that went missing and no one actually
saw Spaulding put the money in the evidence box. These
limited facts were not enough to implicate Spaulding as
potentially the culpable party. During closing argument,
defense counsel raised the possibility that Spaulding
did not put the money in the evidence box. She did not,
however, (1) include Spaulding on her witness list, (2)
move that Spaulding be required to invoke his fifth
amendment privilege against self-incrimination in the
presence of the jury, or (3) request that the court
instruct the jury on third-party culpability. Under these
circumstances, the defendant cannot establish a consti-
tutional violation that deprived him of a fair trial, and
thus his claim fails under the third prong of Golding.
II
The defendant also claims that the prosecutor acted
improperly by ‘‘telling the jury what Spaulding’s testi-
mony would have been,’’ and that the court failed ‘‘to
tell the jury not to draw any inference from Spaulding’s
absence from the trial . . . .’’ We disagree. The prose-
cutor’s comments regarding Spaulding were not
improper because they constituted a fair response to
defense counsel’s comments regarding Spaulding, and
the defendant waived his right to challenge the court’s
failure to include a neutralizing instruction as to Spauld-
ing’s unavailability.14
The following additional facts are relevant to the
defendant’s claim. Throughout the trial, defense coun-
sel cross-examined the state’s witnesses about Spauld-
ing’s actions on the night the money was seized and
whether anyone actually saw him put the money in the
evidence box. In her closing argument, defense counsel
raised the possibility that Spaulding was responsible
for the missing money: ‘‘Are you even sure based on
what you heard last week that money was even placed
in the mailbox by Officer Spaulding.’’15 In the state’s
rebuttal, the prosecutor theorized as to why it would not
have made sense for Spaulding to process the money in
front of his supervisor only to steal it minutes later.16
‘‘[Spaulding’s] going to do this in front of him, and that’s
when [Spaulding’s] going to—Do you honestly believe
that? The money was in the mailbox.’’
‘‘[I]n analyzing claims of prosecutorial [impropriety],
we engage in a two step analytical process. The two
steps are separate and distinct: (1) whether [an impro-
priety] occurred in the first instance; and (2) whether
that [impropriety] deprived [the] defendant of his due
process right to a fair trial. Put differently, [an impropri-
ety is an impropriety], regardless of its ultimate effect
on the fairness of the trial; whether that [impropriety]
caused or contributed to a due process violation is a
separate and distinct question . . . .’’ (Internal quota-
tion marks omitted.) State v. Andrews, 313 Conn. 266,
279, 96 A.3d 1199 (2014).
‘‘To determine whether any improper conduct by the
[prosecutor] violated the defendant’s fair trial rights is
predicated on the factors set forth in State v. Williams,
[204 Conn. 523, 540, 529 A.2d 653 (1987)], with due
consideration of whether that [impropriety] was
objected to at trial. . . . These factors include the
extent to which the [impropriety] was invited by
defense conduct or argument . . . the severity of the
[impropriety] . . . the frequency of the [impropriety]
. . . the centrality of the [impropriety] to the critical
issues in the case . . . the strength of the curative mea-
sures adopted . . . and the strength of the state’s
case.’’ (Internal quotation marks omitted.) State v.
Devito, 159 Conn. App. 560, 573, 124 A.3d 14, cert.
denied, 319 Conn. 947, 125 A.3d 1012 (2015).
The prosecutor’s comments regarding Spaulding
were not improper because they were limited to
responding to the defendant’s assertion that Spaulding
never deposited the money in the evidence box. The
prosecutor was within his right to respond with an
explanation of why he believed that the defense’s theory
was improbable. ‘‘A prosecutor may respond to the
argument of defense counsel during rebuttal.’’ State v.
Galarza, 97 Conn. App. 444, 471, 906 A.2d 685, cert.
denied, 280 Conn. 936, 909 A.2d 962 (2006). The prosecu-
tor’s comments were not framed as a hypothetical, i.e.,
had Spaulding testified this is what he would have said.
More importantly, the prosecutor did not comment on
Spaulding’s absence. See State v. Ayuso, 105 Conn. App.
305, 329–30, 937 A.2d 1211, cert. denied, 286 Conn. 911,
944 A.2d 983 (2008) (‘‘Contrary to the defendant’s asser-
tion, the prosecutor did not comment on the absence
of [the witness]. Rather, the prosecutor merely was
responding to the closing argument made by defense
counsel.’’). The prosecutor’s comments were not
improper, and, therefore, the defendant’s claim is with-
out merit.
III
Finally, the defendant claims that the trial court
should have permitted him to impeach DePalma by
questioning Kammerer as to a prior inconsistent state-
ment made by DePalma. The defendant claims: ‘‘The
exclusion of this evidence violated [the defendant’s]
federal and state constitutional rights to confrontation,
to cross-examination, and to present a defense.’’ We
disagree. The trial court did not abuse its discretion in
determining that the evidence was inadmissible
hearsay.
The following additional facts are relevant to the
defendant’s claim. During the state’s presentation of
evidence, DePalma testified that he was within six feet
of Spaulding when he was supposedly putting the
money in the evidence box. Although he did not actually
see the money deposited, he testified that he heard
the evidence box door open and close. During cross-
examination, DePalma admitted that when the money
was discovered missing, he immediately contacted
Spaulding and asked him if he had actually deposited
the money in the evidence box.17 Later, during defense
counsel’s cross-examination of Sergeant Kammerer, the
state objected on hearsay grounds to a question in
regard to whether Kammerer heard DePalma ques-
tioning Spaulding at the police station when it was
first discovered that the seized money was not in the
evidence box.18 At the time, defense counsel argued that
Kammerer’s answer should not be barred as hearsay
because it would reveal for impeachment purposes, a
prior inconsistent statement made by DePalma.19 The
court sustained the objection.20
‘‘The legal standards governing the review of alleged
violations of a criminal defendant’s sixth amendment
right to cross-examine witnesses are well established.
The sixth amendment to the [United States] constitution
guarantees the right of an accused in a criminal prosecu-
tion to confront the witnesses against him. . . . The
primary interest secured by confrontation is the right
to cross-examination . . . . Indeed, if testimony of a
witness is to remain in the case as a basis for conviction,
the defendant must be afforded a reasonable opportu-
nity to reveal any infirmities that cast doubt on the
reliability of that testimony.’’ (Internal quotation marks
omitted.) State v. Jordan, 305 Conn. 1, 27, 44 A.3d
794 (2012).
However, ‘‘[a] defendant is . . . bound by the rules
of evidence in presenting a defense. . . . Although
exclusionary rules of evidence cannot be applied mech-
anistically to deprive a defendant of his rights, the [fed-
eral] constitution does not require that a defendant be
permitted to present every piece of evidence he
wishes.’’ (Internal quotation marks omitted.) State v.
Davis, 298 Conn. 1, 9–10, 1 A.3d 76 (2010). In analyzing
the defendant’s claims, we first review the trial court’s
evidentiary rulings. ‘‘Our standard of review for eviden-
tiary claims is well settled. To the extent [that] a trial
court’s admission of evidence is based on an interpreta-
tion of the Code of Evidence, our standard of review
is plenary. . . . We review the trial court’s decision to
admit [or exclude] evidence, if premised on a correct
view of the law, however, for an abuse of discretion.’’
(Citation omitted; internal quotation marks omitted.)
Id., 10–11.
The defendant’s constitutional rights were not vio-
lated. The defendant was able to cross-examine
DePalma and specifically confront him about his initial
instinct to question Spaulding when the money was first
discovered missing. See footnote 20 of this opinion. We
review the court’s decision to deny defense counsel the
opportunity to question a later witness, Kammerer, as to
DePalma’s out-of-court statement regarding Spaulding
under the abuse of discretion standard.21 See State v.
Winot, 294 Conn. 753, 776, 988 A.2d 188 (2010). ‘‘[T]he
trial court has broad discretion in ruling on the admissi-
bility . . . of evidence. . . . The trial court’s ruling on
evidentiary matters will be overturned only upon a
showing of a clear abuse of the court’s discretion. . . .
We will make every reasonable presumption in favor
of upholding the trial court’s ruling, and only upset it
for a manifest abuse of discretion.’’ (Internal quotation
marks omitted.) State v. Martinez, 295 Conn. 758, 769–
70, 991 A.2d 1086 (2010). Section 6-10 of the Connecticut
Code of Evidence, regarding prior inconsistent state-
ments of witnesses, was not applicable because the
defendant did not offer the court a statement that was,
in fact, inconsistent with DePalma’s prior testimony.22
Defense counsel asked DePalma, if when he first
learned that the money was missing, did he question
Spaulding as to whether he had actually deposited the
money in the evidence box. DePalma responded: ‘‘I
don’t recall, but it’s very possible.’’ After refreshing his
memory with a transcript of his recorded interview with
the state police, DePalma testified, ‘‘correct.’’ Later,
defense counsel cross-examined Kammerer, and asked
the same question—did DePalma question Spaulding
about whether he deposited the money in the evidence
box. Kammerer was not allowed to answer, but the
defendant claims in his appellate brief that Kammerer
would have answered, ‘‘yes.’’ Thus, the answer that
defense counsel insists should have been heard by the
jury, would not have been inconsistent as compared
with DePalma’s testimony regarding what he said to
Spaulding. Moreover, the record reveals that the defen-
dant produced no evidence to show that DePalma ever
disavowed that he questioned Spaulding. ‘‘Impeach-
ment of a witness by the use of a prior inconsistent
statement is proper only if the two statements are in
fact inconsistent. . . . [T]he purpose of such evidence
is to induce the tribunal to discard the one statement
because the witness has also made another statement
which cannot at the same time be true . . . .’’ (Internal
quotation marks omitted.) State v. Luther, 152 Conn.
App. 682, 693, 99 A.3d 1242, cert. denied, 314 Conn. 940,
108 A.3d 1123 (2014).
The defendant argues that the inconsistency rested
within DePalma’s testimony that he trusted that Spauld-
ing had deposited the money in the evidence box, yet
he questioned him the moment he learned that the
money was missing. ‘‘In deciding whether the statement
is admissible, the trial court must review it in light of
the witness’ entire testimony to determine whether it
is, in fact, inconsistent with that testimony . . . and,
if so, whether such inconsistency is substantial and
relate[s] to a material matter. . . . Such a determina-
tion as to inconsistency lies within the discretionary
authority of the trial court.’’ (Citations omitted; internal
quotation marks omitted.) State v. Christian, 267 Conn.
710, 756, 841 A.2d 1158 (2004). DePalma testified that
he ‘‘trusted’’ Spaulding and that he heard the evidence
box open and close when Spaulding was allegedly
depositing the evidence, but he also testified that he
did not actually view the money being put in the evi-
dence box. The fact that DePalma later questioned
Spaulding as to whether he had deposited the money
was not inconsistent with his testimony at trial, and
DePalma consistently admitted that he had questioned
Spaulding. The trial court did not abuse its discretion by
barring the defendant from eliciting hearsay testimony
from Sergeant Kammerer.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-119 (6) (C) provides in relevant part: ‘‘A person
commits larceny when, with intent to deprive another of property or to
appropriate the same to himself or a third person, he wrongfully takes,
obtains or withholds such property from an owner. Larceny includes, but
is not limited to . . . [d]efrauding of public community. A person is guilty
of defrauding a public community who . . . as an officer or agent of any
public community, with intent to prejudice it, appropriates its property to
the use of any person or draws any order upon its treasury or presents or
aids in procuring to be allowed any fraudulent claim against such commu-
nity . . . .’’
2
General Statutes § 53a-123 (a) (4) provides in relevant part: ‘‘A person
is guilty of larceny in the second degree when he commits larceny, as defined
in section 53a-119, and . . . the property is obtained by defrauding a public
community, and the value of such property is two thousand dollars or
less . . . .’’
3
General Statutes § 53a-155 (a) (1) provides in relevant part: ‘‘A person
is guilty of tampering with or fabricating physical evidence if, believing that
a criminal investigation conducted by a law enforcement agency or an official
proceeding is pending, or about to be instituted, such person . . . [a]lters,
destroys, conceals or removes any record, document or thing with purpose
to impair its verity or availability in such criminal investigation or official
proceeding . . . .’’
4
The defendant asserts that his first and third claims were violations of
his constitutional rights under both the United States and the Connecticut
constitutions. ‘‘[T]he defendant has not provided this court with a separate
analysis of his rights under the Connecticut constitution or asserted that
the Connecticut constitution affords him greater protections, for purposes
of his claim, than its federal counterpart. Accordingly, for purposes of this
appeal we treat the jury trial rights arising from the state and federal constitu-
tions as coextensive.’’ (Internal quotation marks omitted.) State v. Scott,
158 Conn. App. 809, 814 n.4, 121 A.3d 742, cert. denied, 319 Conn. 946,
A.3d (2015).
5
During the trial, retired East Haven police Captain Henry Butler III
testified as to how the evidence box worked: ‘‘It just was a regular U.S.
mailbox, you open the drawer like you’re going to mail a letter, put it in,
the stuff goes down in. The evidence officer who had the key [to] the padlock
and a chain . . . would open that bottom drawer, collect the stuff up into
a little plastic bin, bring it down into the main evidence room, which was
down in the basement at the police department, and that was all secured.’’
6
During his testimony, Butler admitted that he was not certain if the lock
and chain on the evidence box had been changed before he and Commis-
sioner Brow attempted to open the evidence box. Kammerer testified that
he changed the lock after the money was reported missing, but he could
not specify an exact date.
7
State police Sergeant William Bundy explained to the jury how he utilized
the still shots: ‘‘The video that was provided was of various screen shots
. . . or two camera angles, rather, and they’re on an eight second delay. . . .
[C]amera 9 depicts the angle that goes down the hallway leading towards the
detective division. Camera 8 is the angle that would show through the door
. . . which leads into the hallway, which will give you, when that door is
open, a view of the evidence door—evidence room door.’’ Bundy stated that
he synchronized the still shots from the two cameras to observe who
accessed the evidence closet during the period of time when the money
went missing; he could not make that determination from one camera angle
alone. There were also several hours of camera footage where the door to
the evidence closet could not be seen because another door leading to the
area was closed, obscuring the view of one of the cameras. Bundy provided
an example of the limitations of the camera system: ‘‘[Y]ou’re looking at
one moment in time. At that particular moment and utilizing one of the
[camera angles the prosecutor] showed earlier at 10:06 you’re just seeing
what’s occurring at 10:06, you don’t know what happened 8 seconds prior
and what was captured 8 seconds afterwards, on that particular camera, in
addition to the other camera.’’ Because of the eight second delay, Bundy
relied on shadows, the direction of motion, and the changing position of a
door to determine who was where in relation to the evidence closet. ‘‘So,
what I was able to do was to, again, track motion, track movement, and
once the door in camera 8 is in the open position . . . you would be able
to see through camera 8, like in this particular case [the defendant is]
standing in the window, with this door open you’d be able to see him move
from one screen, the next—the next screen will show him in this particular
area with the door open standing near the evidence doorway. . . . I utilized
markers, if you would, like there’s the doorknob which goes in there. This
particular door, the angle will either increase or decrease depending on
whether or not this door is open.’’ After reviewing the video, Bundy was
able to tell when the door to the evidence closet was open or closed. Bundy
used the video to infer that the defendant had entered the evidence room:
‘‘What I’m saying is that the evidence door was open and [the defendant]
is not in—in eyesight.’’
8
During the trial, Captain Butler provided testimony describing the stan-
dard evidence bag used by the department: ‘‘East Haven Police evidence
bags are clear plastic bags of different sizes depending on what evidence
that you wanted to put in there. We have large, medium, small. They have
a red sticky glue that once you put the evidence in it there’s lines on there,
you write the case number, you write the description of the item and then
you seal it with the red sticky glue and you have to almost virtually cut the
bag to get that—to get that apart, that doesn’t come apart once you seal it.’’
9
Under Golding review, as modified in In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 1188 (2015), ‘‘a defendant can prevail on a claim of constitu-
tional error not preserved at trial only if all of the following conditions are
met: (1) the record is adequate to review the alleged claim of error; (2) the
claim is of constitutional magnitude alleging the violation of a fundamental
right; (3) the alleged constitutional violation . . . exists and . . . deprived
the defendant of a fair trial; and (4) if subject to harmless error analysis,
the state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt.’’ (Emphasis in original; footnote omit-
ted.) State v. Golding, supra, 213 Conn. 239–40; see also In re Yasiel R.,
781 (modifying third prong of Golding).
10
‘‘It is not necessary to review all of the prongs of Golding as [i]n the
absence of any one of these conditions, the defendant’s claim will fail. The
appellate tribunal is free, therefore, to respond to the defendant’s claim by
focusing on whichever condition is most relevant in the particular circum-
stances.’’ (Internal quotation marks omitted.) State v. Jose V., 157 Conn.
App. 393, 402, 116 A.3d 833, cert. denied, 317 Conn. 916, 117 A.3d 854 (2015).
11
The following colloquy occurred:
‘‘[Defense Counsel]: Mr. Spaulding, if I were to question you in this matter
is it my understanding that you would invoke your fifth amendment privilege?
‘‘[The Witness]: Yes it is.
‘‘[Defense Counsel]: Okay. I’m satisfied, Your Honor.
‘‘The Court: All right. And the court is too. So, Mr. Spaulding, you would
not answer any questions from the state of Connecticut based on the con-
cerns that [your counsel] put on the record concerning your other case that
is on appeal as I understand it, and also you would not answer any questions
on cross-examination for the same reasons from [defense counsel]. Is that
correct, Mr. Spaulding?
‘‘[The Witness]: Yes, it is Your Honor.’’
12
In Bryant, the Supreme Court stated: ‘‘While we can imagine a case in
which a defendant’s constitutional right to call witnesses on his behalf might
arguably require that a witness who refuses to testify be called, this is not
such a case.’’ State v. Bryant, supra, 202 Conn. 686.
13
Defense counsel did not include Spaulding on the list of witnesses that
was submitted to the court prior to the start of trial.
14
The defendant waived his claim that the court committed error by not
sua sponte including a neutralizing instruction concerning the unavailability
of Spaulding. See State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942
(2011) (‘‘We conclude that, when the trial court provides counsel with a
copy of the proposed jury instructions, allows a meaningful opportunity for
their review, solicits comments from counsel regarding changes or modifica-
tions and counsel affirmatively accepts the instructions proposed or given,
the defendant may be deemed to have knowledge of any potential flaws
therein and to have waived implicitly the constitutional right to challenge
the instructions on direct appeal. Such a determination by the reviewing
court must be based on a close examination of the record and the particular
facts and circumstances of each case.’’). The court provided the defendant
a draft of the jury charge on January 30, 2014, four days before the charge
was read to the jury. The state and the defendant were each given the
opportunity to suggest changes to the charge, each side proposed changes
that were accepted by the court, and the charge was recirculated to the
parties. Defense counsel took exception with the charge only to the extent
that the court’s charge differed from her proposed charge in regard to
presumption of innocence terminology. The defendant did not propose a
neutralizing instruction concerning Spaulding. We conclude that the defen-
dant implicitly waived his right to challenge the court’s noninclusion of a
neutralizing instruction, and, therefore, his claim is not entitled to Gold-
ing review.
15
Defense counsel’s entire remarks were as follows: ‘‘Are you even sure
based on what you heard last week that money was even placed in the
mailbox by Officer Spaulding. What evidence did the state prove or offer
in that respect. Now, it’s not an element of the crime but it’s certainly
something you would have to find that the evidence was in the mailbox in
order for someone to steal it. What—what do you have to show that the
evidence went into that mailbox? You have the spotty, contradictory and
plausible testimony of Gary DePalma, who amazingly could remember the
exact order the evidence bags were in, three years earlier, seven—seven
evidence bags. He remembers exactly what order they were in, you know,
three years ago. And he also testified, if you recall, it was a busy night that
night, so he said he had a station house of prisoners being processed by
the police, yet he has these specific memories. And you also heard officer
after officer testify that the practice employed at the time was that the
supervisor would sign off on the log and that . . . the officer would place
the evidence in the evidence room himself and basically the supervisor
would take the officer’s word for it.’’
16
The prosecutor’s entire remarks were as follows: ‘‘So, he brings it into
the police department and he wants you to believe that he brought it into
the police department he would have had his sergeant count it out, there
were numerous other officers. You know, even their own witness said that
he saw him processing the evidence. So, he’s gonna have his sergeant count
out all the money, they’re going to package it, he’s going to show him on
two occasions, the seven bags stapled together, all these bags with the
money, and the tox[icology] report, and he’s going to do all of that, then
he’s going to walk right in there in front of his sergeant and at that point
he’s going to say, you know what, I’m gonna steal the money. Pop, pop,
pop, pop, pop, pop, of all the—the staples. I mean, you heard from evidence
they were all stapled across the top. Pop, pop, pop, right in front of him.
And I’m going to do this in front of him, and that’s when I’m going to—Do
you honestly believe that? The money was in the mailbox.’’
17
The following colloquy occurred between defense counsel and DePalma:
‘‘[Defense Counsel]: Now, isn’t it true that when you found out that the
evidence was missing you were upset?
‘‘[The Witness]: Correct.
‘‘[Defense Counsel]: And in fact, didn’t you get Dennis—you got Dennis
Spaulding’s phone log? Did you—Didn’t you contact Dennis Spaulding?
‘‘[The Witness]: Yes.
‘‘[Defense Counsel]: And isn’t it true that you were talking to him over
the radio?
‘‘[The Witness]: Over the phone.
‘‘[Defense Counsel]: Over the phone. And—And did you direct him to call
you, correct?
‘‘[The Witness]: Yes.
‘‘[Defense Counsel]: And at some point did you say [to Officer Spaulding],
call me immediately?
‘‘[The Witness]: Correct.
‘‘[Defense Counsel]: And did you, in fact, ask him, what did you do?
‘‘[The Witness]: Correct.
‘‘[Defense Counsel]: And did you, in fact, ask him, did you forget the
money?
‘‘[The Witness]: I don’t recall, but it’s very possible.’’
Defense Counsel provided DePalma with a transcript of a recorded inter-
view between himself and state police Sergeant William Bundy. After
DePalma reviewed the transcript, defense counsel resumed her questioning.
‘‘[Defense Counsel]: Does that refresh your recollection as to whether
when you spoke to Dennis Spaulding at the time that you discovered the
evidence missing, that you in fact asked him, did you forget the money?
‘‘[The Witness]: Correct.’’
18
The following colloquy occurred:
‘‘[Defense Counsel]: Is it true that you were present when Officer Spaulding
was at the station and being confronted by Sergeant DePalma?
‘‘[The Witness]: Yes.
‘‘[Defense Counsel]: And isn’t it true that Sergeant DePalma was irate?
‘‘[The Witness]: Yes.
‘‘[Defense Counsel]: And was he yelling at Dennis Spaulding?
‘‘[The Prosecutor]: Objection.
‘‘The Court: Your objection, what?
‘‘[The Prosecutor]: Well, how does he know what was in the mind of this
other individual?
‘‘The Court: No, I’m going to sustain the objection. It’s hearsay.
‘‘[Defense Counsel]: I’m—I’m going to ask what—I’m just asking what
Sergeant DePalma’s demeanor was.
‘‘The Court: Demeanor—Demeanor is fine.
‘‘[Defense Counsel]: What was Sergeant DePalma’s demeanor towards
Dennis Spaulding?
‘‘[The Witness]: Well, he was upset about the situation.
‘‘[Defense Counsel]: Okay. And was Sergeant DePalma questioning Den-
nis Spaulding—
‘‘[The Prosecutor]: Objection.
‘‘The Court: Well, hold on. Let her finish the question.
‘‘[Defense Counsel]: Was Sergeant DePalma questioning whether or not
Officer Spaulding actually placed the evidence into the mailbox?
‘‘[The Prosecutor]: Objection, that’s hearsay.
‘‘The Court: Right.
‘‘[Defense Counsel]: I think it goes—
‘‘The Court: I’m going to sustain it, it’s hearsay what—
‘‘[Defense Counsel]: Well, it’s an inconsistent statement from—I’m offering
it because Sergeant DePalma testified that Officer Spaulding placed the
evidence into the mailbox essentially, that was the inference he wanted the
jury to make and here we have Sergeant DePalma yelling at Officer
Spaulding—
‘‘[The Prosecutor]: Objection to the characterization of it, it’s not—
‘‘The Court: No. I’m going to sustain the objection. It’s hearsay. I’m going
to strike the question. Go ahead.’’
19
On appeal, the defendant additionally claims that the witness should
have been allowed to answer defense counsel’s question because he would
have provided evidence that would impeach DePalma by showing his bias
in favor of Spaulding. This claim was not raised at trial. ‘‘[T]he standard for
the preservation of a claim alleging an improper evidentiary ruling at trial
is well settled. This court is not bound to consider claims of law not made
at the trial. . . . In order to preserve an evidentiary ruling for review, trial
counsel must object properly. . . . In objecting to evidence, counsel must
properly articulate the basis of the objection so as to apprise the trial court
of the precise nature of the objection and its real purpose, in order to form
an adequate basis for a reviewable ruling. . . . Once counsel states the
authority and ground of [the] objection, any appeal will be limited to the
ground asserted . . . .’’ (Internal quotation marks omitted.) State v. Sease,
147 Conn. App. 805, 813–14, 83 A.3d 1206, cert. denied, 311 Conn. 932, 87
A.3d 581 (2014). ‘‘We have consistently refused to consider evidentiary
rulings not properly preserved. Where the issue raised for the first time on
appeal is a matter of state evidentiary law, rather than of constitutional
significance, this court will deny the defendant appellate review.’’ (Internal
quotation marks omitted.) State v. Romero, 59 Conn. App. 469, 477, 757 A.2d
643, cert. denied, 255 Conn. 919, 763 A.2d 1043 (2000).
20
The defendant also claimed that the court excluded evidence of DePal-
ma’s demeanor when he confronted Spaulding over the missing money. This
assertion is not supported by the trial record. The state objected to defense
counsel’s question, asking Kammerer to describe DePalma’s demeanor, but
the court overruled the objection, and Kammerer testified as to his observa-
tions. See footnote 18 of this opinion.
21
Section 8-1 (3) of the Connecticut Code of Evidence defines hearsay
as: ‘‘a statement, other than one made by the declarant while testifying at the
proceeding, offered in evidence to establish the truth of the matter asserted.’’
22
The record does not clearly indicate if defense counsel was attempting
to introduce Kammerer’s testimony as to what DePalma said on March 17,
2011, as a prior inconsistent statement for substantive purposes or for
impeachment purposes. The statement would not qualify as an exception
to the hearsay rule or nonhearsay under either section of the Connecticut
Code of Evidence. Section 8-5 of the Connecticut Code of Evidence addresses
prior inconsistent statements that are introduced for substantive purposes
and provides in relevant part: ‘‘The following are not excluded by the hearsay
rule, provided the declarant is available for cross-examination at trial . . .
[p]rior inconsistent statement. A prior inconsistent statement of a witness,
provided (A) the statement is in writing or otherwise recorded by audiotape,
videotape, or some other equally reliable medium, (B) the writing or
recording is duly authenticated as that of the witness, and (C) the witness
has personal knowledge of the contents of the statement.’’ DePalma’s state-
ment on March 17, 2011, could not be used for substantive purposes because
it was not in writing or recorded by a reliable medium.
Section 6-10 of the Connecticut Code of Evidence addresses prior inconsis-
tent statements of witnesses made for impeachment purposes, but applies
only when the statement in question is factually inconsistent. It provides in
relevant part: ‘‘The credibility of a witness may be impeached by evidence
of a prior inconsistent statement made by the witness. . . . In examining
a witness concerning a prior inconsistent statement, whether written or not,
made by the witness, the statement should be shown to or the contents of
the statement disclosed to the witness at that time. . . . If a prior inconsis-
tent statement made by a witness is shown to or if the contents of the
statement are disclosed to the witness at the time the witness testifies, and
if the witness admits to making the statement, extrinsic evidence of the
statement is inadmissible, except in the discretion of the court. . . .’’ Conn.
Code Evid. § 6-10. When defense counsel confronted DePalma about his
statements to Spaulding, he admitted that he had made them.