SHELDON, J.
The defendant, Alberto Ampero, appeals from the judgment of conviction, rendered after a jury trial, of kidnapping in the second degree in violation of General Statutes § 53a-94 (a) and interfering with an officer in violation of General Statutes § 53a-167a.
The jury reasonably could have found the following facts. On August 27, 2009, around 7 p.m., the victim, Jasmin Vazquez, was driving her three children, a six year old, a four year old, and a six month old, to her mother's house on Natick Street in Hartford, when she stopped at the store on the corner of Broad and Ward Streets in Hartford to buy them chips and juice. She had parked her car on Broad Street and was walking around the car to remove her children from it when she saw the defendant. The victim and the defendant previously had been in a relationship together that ended in April, 2009, following an incident in which the defendant slapped the victim in the face and broke both of her cell phones in half.
The defendant initiated a conversation with the victim by saying that they needed to talk, to which the victim replied that
The defendant, who was then "real mad," again told the victim that they had to talk. The victim repeatedly told the defendant that she wanted to go home, but the defendant told her she was not going anywhere. The defendant argued with the victim and would not let her leave the apartment or make any phone calls. At some point during the argument, the defendant pressed the same knife that he previously had displayed to the victim against her stomach and told her that he loved her and that if she was not going to be with him, she would not be with any man. The defendant also threatened that if the victim was not going to be with him, he would either kill her or kill himself and that she would have to live with the fact that he had killed himself for her love.
The defendant argued with the victim for the next several hours and at one point bit her neck, leaving hickeys to show that she belonged to him. The defendant held the victim overnight. The next day, the victim tried to escape by bringing her children downstairs, but the defendant would not let her leave. The defendant grabbed the victim by her right wrist, told her she was not going anywhere, took her phone, and ordered her to call her mother. The defendant instructed the victim to tell her mother that she was happy with the defendant, that she loved him and that they were going to be together. The victim complied, but the victim's mother did not believe her daughter because she was crying and she knew her daughter was afraid of the defendant. The victim's mother repeatedly asked her about her location, what the defendant was doing to her, and if the children were okay. The victim was able to respond only that the children were okay. The defendant then took the phone and spoke with the victim's mother directly, telling her that he knew she had called the police in April when he was arrested and that she had better not call the police this time.
After the phone conversation with her mother, the victim repeatedly told the defendant that she wanted to go home, to
Quaglini and Iovanna then left the mother's home in pursuit of the defendant. After obtaining the defendant's name, date of birth, and "DOC picture"
Quaglini saw the defendant hop a fence at 913 Broad Street and later located him hiding under a minivan parked near that address. Quaglini first ordered the defendant to come out from under the minivan, but he refused. When Quaglini attempted to grab the defendant's feet to pull him out, the defendant began kicking at Quaglini's hands. Quaglini then struck the defendant's ankle with his baton, but the defendant still would not come out. Quaglini struck the defendant's ankle three more times before he was able to grab the defendant's feet, pull him out, and place him in handcuffs. The defendant was given medical treatment at the scene for swelling to his ankle, and later was treated at Hartford Hospital for a broken ankle. After the defendant was placed under arrest, he stated that he "didn't do it," that he just wanted to be with the victim, and that they had had an argument about their relationship. The police then transported the victim to the scene for a showup identification of the defendant and to the Hartford Police Department to have her statement taken by the major crimes detectives.
The defendant's first claim on appeal is that the admission of evidence of his prior bad acts constituted reversible error. We disagree.
The following additional facts are relevant to our resolution of this claim. The defendant references five instances in which three of the state's witnesses testified about his prior bad acts. First, the victim testified that when she and the defendant broke up in April, 2009, the defendant broke both of her cell phones in half and slapped her in the face. The victim also testified about another incident involving the defendant where he threatened her over the phone with a gun and then followed her in his car, which resulted in his arrest. The victim further testified that a condition of the defendant's probation was a court order that he have no contact with her. The victim's mother testified that she previously had called the police on the defendant, that he had been arrested as a result of that call, and that he had been incarcerated in the past. Finally, Officer John Zweibelson testified that he previously had arrested the defendant for the incident involving the alleged gun, which later turned out to be a facsimile.
The record reflects that at no time did defense counsel object to or seek to strike any of the prior bad acts testimony, nor did he request a limiting instruction as to the jury's permissible use of such testimony. Because the defendant did not raise this issue at trial, he now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or alternatively, under the plain error doctrine. Practice Book § 60-5. In Golding, our Supreme Court held that "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." (Emphasis in original; footnote omitted.) State v. Golding, supra, at 239-40, 567 A.2d 823. We conclude that the record is adequate for review and turn our attention to the second prong of Golding, namely, whether the defendant's claim is of constitutional magnitude alleging a violation of a fundamental right.
We have consistently held that purely evidentiary claims fail to satisfy the second prong of Golding, as they are not of constitutional magnitude. See, e.g., State v. Stepney, 94 Conn.App. 72, 79, 891 A.2d 67 ("[t]he defendant can not raise a constitutional claim by attaching a constitutional label to a purely evidentiary claim or by asserting merely that a strained connection exists between the evidentiary claim and a fundamental constitutional
The defendant alternatively seeks review of this claim under the plain error doctrine. Practice Book § 60-5. "[T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy.... [It] is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.... Plain error is a doctrine that should be invoked sparingly." (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 204-205, 982 A.2d 620 (2009). The defendant's claim is not such a "truly extraordinary [situation]." Id.
Here, it clearly appears that defense counsel strategically chose not to object to the admission of the prior bad acts testimony, as he questioned the state's witnesses about such evidence and incorporated their testimony into his closing argument. He thus treated the evidence as helpful to the defendant's defense rather than erroneous and prejudicial, much less violative of the defendant's fundamental right to a fair trial. "[A] party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice...." (Internal quotation marks omitted.) Id. at 205, 982 A.2d 620. The defendant cannot show manifest injustice because his defense counsel waived this claim by failing to take action against the admission of such evidence and then strategically used the evidence to his advantage. See Mozell v. Commissioner of Correction, 291 Conn. 62, 70-71, 967 A.2d 41 (2009).
Specifically, defense counsel cross-examined three of the state's witnesses about their testimony regarding the defendant's prior bad acts and incarceration. In fact, when cross-examining the victim, who was the state's first witness, defense counsel began his examination with those very subjects, as follows:
In similar fashion, defense counsel began his cross-examination of Zweibelson by drawing his, and the jury's, attention back to the April, 2009 incident between the victim and the defendant:
Indeed, later in his cross-examination of Zweibelson, defense counsel returned to the subject of the prior incidents with the victim that had led to the defendant's arrest by asking specific questions about the case numbers of those incidents, as Zweibelson had referenced them in his police report about the kidnapping at issue here. In eliciting the previously described testimony from multiple witnesses for the state on cross-examination, defense counsel gave the jury several additional opportunities to hear about the defendant's prior bad acts toward the victim and resulting arrest.
As the trial unfolded, it became apparent that defense counsel's repeated exploration of the defendant's prior bad acts and resulting arrest was no mere accident. In fact, such testimony became a centerpiece of counsel's closing argument. First, defense counsel reminded the jury of the defendant's stormy relationship with the victim by recounting the prior incidents and their aftermath: "Alberto and Jasmin had been involved in a relationship. It has been problematic. The police have been called on more than one occasion, including officers that are involved in this incident, particularly Officer Zweibelson." Defense counsel then specifically referenced the prior incident in which the defendant threatened the victim with a gun: "[O]ne of the first officers on the scene when the police do get there is Officer Zweibelson. He knows this situation as well because he was in on this earlier incident with the facsimile firearm that turned out to be a lighter." When commenting about how the victim's mother might have reacted to the latter incident had it really been a kidnapping, defense counsel theorized as follows: "Supposedly, from the first moment it is being expressed to the police that this is serious. This is a kidnapping. This is a guy who's been obsessed with my daughter, who's been stalking her. There'd been physical altercations." Contrasting that reaction to what the victim's mother actually did, defense counsel argued that this case was not a kidnapping, and that she knew it.
Having so used the prior bad acts and prior incarceration testimony of the state's own witnesses to undermine the state's case against him at trial, where he was found not guilty on two of the four charges against him, the defendant can hardly argue that the introduction of such evidence warrants reversal of his challenged conviction under the plain error doctrine.
The defendant next claims that the admission of testimony regarding his prior incarceration constituted reversible error. The defendant also seeks review of this claim under Golding, or alternatively, under the plain error doctrine. The following additional facts are relevant to our resolution of this claim. The defendant references two instances in which witnesses for the state testified about his prior incarceration: first, when the victim's mother testified that the defendant had previously been arrested; and second, when Quaglini testified about the defendant's DOC photograph, from which the defendant argues that a reasonable jury could have inferred that he had been incarcerated. We are not persuaded by the defendant's argument for the reasons stated in part I of this opinion. The defendant's unpreserved evidentiary claim fails to satisfy the second prong of Golding for it is purely evidentiary. It also fails to meet the standard for reversal under the plain error doctrine because its admission without objection by defense counsel, who used it creatively and effectively in arguing his client's case to the jury, did not result in manifest injustice.
Last, the defendant claims that prosecutorial impropriety deprived him of a fair trial. We disagree.
Before addressing the merits of this claim, we set forth the applicable standard for review. "[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. Put differently, [impropriety] is [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 that may only be resolved in the context of the entire trial...." (Internal quotation marks omitted.) State v. Luster, 279 Conn. 414, 428, 902 A.2d 636 (2006).
"In examining the prosecutor's argument we must distinguish between those comments whose effects may be removed by appropriate instructions ... and those which are flagrant and therefore deny the accused a fair trial.... Last, we note that [w]e do not scrutinize each individual comment in a vacuum, but rather we must review the comments complained of in the context of the entire trial.... It is in that context that the burden [falls] on the defendant to demonstrate that the remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted." (Internal quotation marks omitted.) State v. Quint, 97 Conn.App. 72, 85-86, 904 A.2d 216, cert. denied, 280 Conn. 924, 908 A.2d 1089 (2006). "In evaluating whether the [impropriety was so serious as to amount to a denial of due process], we consider the factors enumerated by [the] court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).... 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 measures adopted, and the strength of the state's case." (Citation omitted.) State v. Warholic, 278 Conn. 354, 360-61, 897 A.2d 569 (2006).
Although a defendant need not object at trial to the alleged improprieties, nor seek review under Golding, "the determination
The defendant first claims that the prosecutor's introduction of prior misconduct evidence — despite her filing of a notice of intent to offer such evidence that was never ruled on by the trial court
The state counters that the defendant's unpreserved evidentiary claim is not reviewable as a claim of prosecutorial impropriety because it is merely a failed attempt to mask an evidentiary claim as a claim of prosecutorial impropriety. The state also argues that if this court were to hold that the defendant's claim constitutes a claim of prosecutorial impropriety, it still would fail because the state was not obligated to obtain a court ruling before it proffered the unobjected-to misconduct evidence, nor was it required to request a limiting instruction with respect to such evidence. The state concludes that even if there was prosecutorial impropriety, it did not violate the defendant's due process right to a fair trial.
We agree with the state that its introduction of prior misconduct evidence and failure to request a limiting instruction did not constitute prosecutorial impropriety. At no point did defense counsel object to the admission of such evidence or to the lack of a limiting instruction as to its proper use by the jury. When, to reiterate, "defense counsel does not object, request a curative instruction or move for a mistral, he presumably does not view the alleged impropriety as prejudicial enough to seriously jeopardize the defendant's right to a fair trial." (Internal quotation marks omitted.) Id. As our Supreme Court has repeatedly held, "[a]ppellate review of prosecutorial [impropriety] claims is not intended to provide an avenue for the tactical sandbagging of our trial courts, but rather, to address gross prosecutorial improprieties that clearly have deprived a criminal defendant of his right to a fair trial." (Internal quotation marks omitted.) State v. Luster, supra, 279 Conn. at 446, 902 A.2d 636. Here, defense counsel strategically chose not to object to the introduction of the prior misconduct evidence or to seek a limiting instruction to ensure the jury's proper use of this evidence. The defendant cannot now claim prosecutorial impropriety on the basis of his defense
Moreover, although no prosecutorial impropriety occurred in the present case, the court's general instructions to the jury properly instructed it that arguments by counsel were not evidence. Such an instruction by the trial court adequately addressed any impropriety that might be found to have occurred, although none was present in this case. See State v. Young, 76 Conn.App. 392, 406, 819 A.2d 884 (impact of prosecutorial impropriety lessened when trial court instructed jury that statements and arguments of counsel were not evidence), cert. denied, 264 Conn. 912, 826 A.2d 1157 (2003).
The judgment is affirmed.
In this opinion the other judges concurred.