SCHALLER, J.
The defendant, Kenneth Reilly, appeals from the judgment of conviction, rendered after a jury trial, of three counts of risk of injury to, or impairing the morals of, a child in violation of General Statutes § 53-21(a)(2). On appeal, the defendant claims that the trial court improperly denied his motion for a mistrial. We affirm the judgment of the trial court.
The following facts are relevant to this appeal. Prior to his trial, the defendant filed a motion to suppress statements that he had given to Waterbury police officers on the grounds that such statements were obtained in violation of his Miranda
Pratt further testified that she generated a typed statement contemporaneously
During the suppression hearing, the defendant testified to the contrary. The defendant denied waiving his Miranda rights and specifically stated that he was not given a form to do so. The defendant also denied admitting to any of the allegations contained in the printed statement and testified that Pratt did not type his statement contemporaneously with his disclosures. Instead, Pratt asked the defendant a series of questions, prepared a handwritten statement and then threw that statement away. According to the defendant, Pratt then typed a statement and threatened him with incarceration should he fail to sign it. The defendant testified that after he left the station, Pratt and another officer came to his home and asked him to sign a second statement because the first statement was incomplete. The defendant's mother corroborated this portion of his testimony. Pratt denied returning to the defendant's home, and Ponzillo denied having any knowledge of such an occurrence.
The court denied the defendant's motion to suppress. In so holding, the court found the officers' testimony more credible than the defendant's, noting specifically that it found "[t]he defendant's testimony... incredulous."
During the defendant's trial, Pratt and Ponzillo changed portions of their testimony that was given during the defendant's suppression hearing.
The defendant filed a motion for a mistrial, arguing that this inconsistent testimony denied him a meaningful suppression hearing and resulted in the admission of improper evidence at trial. In essence, the defendant asserted that the officers' testimony was so contradictory at the suppression hearing that it rendered the factual findings of the court, Schuman, J., inaccurate. The court, Cremins, J., denied the motion for a mistrial. In so holding, the court acknowledged that a "[h]igh degree of necessity is required before a conclusion may be reached that a mistrial is appropriate." The court found that although Pratt changed the defendant's statement to correct the omission of her name, there was no evidence that the substance of the statement was changed. Moreover, the defendant still signed and initialed the second statement. The court further concluded that there was no indication that the defendant requested counsel prior to signing the second statement at his home; thus, the waiver of rights form that the defendant signed at the police station was still in effect. To ameliorate any potential harm to the defendant, the court gave a spoliation instruction, which in essence, instructed the jurors that they may infer that the destroyed statement contained information that would have been damaging to the state. During closing argument, defense counsel argued to the jury about the inconsistencies within Pratt's and Ponzillo's testimonies regarding how the defendant's statement was obtained. This appeal followed.
The defendant asserts that the officers' inconsistent testimony tainted the constitutionality
We first turn to the standard of review that controls our consideration of the defendant's claim. "Although the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial ... and the whole proceedings are vitiated.... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided." (Internal quotation marks omitted.) State v. Guilbert, 306 Conn. 218, 270, 49 A.3d 705 (2012).
"[T]he principles that govern our review of a trial court's ruling on a motion for a mistrial are well established. Appellate review of a trial court's decision granting or denying a motion for a [mistrial] must take into account the trial judge's superior opportunity to assess the proceedings over which he or she has personally presided.... Thus, [a] motion for a [mistrial] is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds.... In [its] review of the denial of a motion for [a] mistrial, [our Supreme Court has] recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion." (Internal quotation marks omitted.) State v. Sewell, 95 Conn.App. 815, 818, 898 A.2d 828, cert. denied, 280 Conn. 904, 907 A.2d 94 (2006).
In making his claim, the defendant invites this court to examine the propriety of the underlying suppression hearing. We respectfully decline to do so, and note that our review is confined to the court's ruling on the defendant's motion for a mistrial — the ruling challenged in this appeal. We cannot agree with the defendant that the officers' inconsistent testimony amounted to a constitutional violation that affected the validity of his trial, and we conclude that the court did not abuse its discretion by denying the defendant's motion for a mistrial.
Much like the defendant in State v. Owens, 63 Conn.App. 245, 775 A.2d 325, cert. denied, 256 Conn. 933, 776 A.2d 1151 (2001), the defendant's claim in this case involves an attack on the police officers' credibility. Defense counsel cross-examined the officers, both of whom acknowledged that they had given inaccurate testimony during the defendant's suppression hearing, and defense counsel referred to these inconsistencies during closing argument. The officers' conflicting testimony, in this case, bears on their credibility. It was for the jury to ascertain the effect of the officers' differing accounts on their credibility and, ultimately, the extent to which the officers' credibility influenced the weight the jury assigned to the defendant's statement. See id., at 255, 775 A.2d 325. In denying the defendant's motion, the court credited the testimony of the officers, finding that (1) the second statement, which was admitted as evidence in this case, was substantively identical to the first statement, (2) the defendant's signed waiver of rights form was still in effect when he signed the second statement and (3) the defendant did not request counsel prior to signing the second statement. In light of these findings, the court was within its discretion when it concluded that the drastic remedy of a mistrial was not appropriate
The defendant finally asserts that the court's denial of his motion for a mistrial allowed an involuntary confession to be used against him thereby infringing upon his due process rights. We decline to review this unpreserved claim.
In his motion for a mistrial, the defendant argued that the officers' inconsistent testimony rendered his suppression hearing meaningless. At no time, however, did the defendant argue that a mistrial was appropriate because his confession was involuntary and thus admitted improperly. As a result, the trial court did not have an opportunity to rule on this matter. "[I]t is well established that [o]ur rules of procedure do not allow a [party] to pursue one course of action at trial and later, on appeal, argue that a path [the party] rejected should now be open to him.... To rule otherwise would permit trial by ambuscade." (Internal quotation marks omitted.) State v. Fourtin, 307 Conn. 186, 208, 52 A.3d 674, 688 (2012); see also Practice Book § 60-5 (this court "shall not be bound to consider a claim unless it was distinctly raised at the trial"). We therefore decline to review the defendant's unpreserved claim.
The judgment is affirmed.
In this opinion the other judges concurred.