November 15, 2017
part substitute information charging the defendant, in the
first part, with the crimes of kidnapping in the first
degree, assault in the first degree and home invasion, and,
in the second part, with three counts of beinga persistent
dangerous felony offender, brought to the Superior Court in
the judicial district of Waterbury, where the first part of
the information was tried to the jury before K. Murphy, J.;
verdict of guilty of kidnapping in the first degree, home
invasion and the lesser included offense of assault in the
second degree; thereafter, the defendant was presented to the
court on conditional pleas of nolo contendere to two counts
of being a persistent dangerous felony offender in the second
part of the information; judgment of guilty in accordance
with the verdict and pleas, from which the defendant
L. O'Brien, assigned counsel, with whom, on the brief,
was William A. Adsit, assigned counsel, for the appellant
Melissa L. Streeto, senior assistant state's attorney,
with whom, on the brief, were Maureen Platt, state's
attorney, and Marc G. Ramia, senior assistant state's
attorney, for the appellee (state).
Alvord, Keller and Beach, Js.
defendant, Ricardo Swilling, appeals from the judgment of
conviction, rendered following a jury trial, of kidnapping in
the first degree in violation of General Statutes §
53a-92 (a) (2) (A), home invasion in violation of General
Statutes § 53a-100aa (a) (2), and assault in the second
degree in violation of General Statutes § 53a-60 (a)
Additionally, following the defendant's pleas of nolo
contendere, the defendant was convicted of two counts of
being a persistent dangerous felony offender in violation of
General Statutes § 53a-40 (a) (1), as alleged in part B
informations that were related to the kidnapping and home
invasion charges. The defendant claims that (1) the trial
court violated his due process right to a fair and impartial
trial by questioning two witnesses during the state's
case-in-chief, (2) the court improperly permitted the victim
to make an in-court identification of him absent a showing
that she previously had made a nonsuggestive out-of-court
identification of him, (3) the court improperly admitted
evidence of his prior felony convictions, (4) the court
improperly admitted a recording of a 911 call made by the
victim, and (5) the cumulative effect of the court's
errors deprived him of his right to a fair and impartial
trial. We affirm the judgment of the trial court.
jury reasonably could have found the following facts. In
December, 2014, the victim, Barbara Wilson, resided in an
apartment complex in Waterbury in a unit that was leased to
her and her daughter. The living room and the kitchen were
located on the first floor of the unit, and three bedrooms
and a bathroom were located on the second floor of the unit.
The victim had a practice of letting others rent space in her
apartment, at a usual rate of $150 per week. The victim first
met the defendant in 2013. In early December, 2014, a mutual
friend of the victim and the defendant, identified in the
record as ‘‘Luis, '' appeared at the
victim's residence with the defendant. Luis asked the
victim if the defendant could stay at her apartment for a few
days. Initially, the victim did not consent to Luis'
request and the two men departed. Later that day, however,
the defendant appeared once more at the victim's
apartment to discuss the matter further. The defendant gave
the victim $20 and some brandy.
this second meeting, the victim agreed to let the defendant
pay her to stay at the apartment. The defendant explained
that he worked overnight and would come and go from the
residence as necessary. The victim, who was almost always at
home, did not give the defendant a key to the apartment, but
simply let him in whenever he knocked on the door. The victim
had only two keys for the residence, one which she kept and
another that was kept by her parents.
defendant stayed at the apartment over the course of two
weeks in December, 2014, sometimes spending the overnight
hours there. He frequently came to the residence to sleep
either in an unfurnished bedroom or on a sofa. He paid the
victim $70. During the time that the defendant spent at the
apartment, he was never left alone there and, prior to the
events at issue, when the defendant was present at the
apartment, there was always one or more third parties present
along with the victim. The defendant did not keep any
personal belongings at the apartment, but always carried his
belongings with him in a duffel bag.
December 24, 2014, at approximately 10 a.m., the victim was
at the apartment with her boyfriend, Eddie Ortiz, when the
defendant arrived at the apartment. The defendant asked for a
ride. Soon thereafter, Ortiz drove the defendant to a bus
stop located near a liquor store. Then, Ortiz drove the
victim toa store. At approximately 11 a.m., he drove her back
to her apartment. The victim entered the apartment alone and
locked the door.
approximately 11:30 a.m., the victim observed the defendant
standing near the front door inside of her apartment. The
victim asked the defendant how he gained access to the
apartment. What followed was a violent physical struggle
between the victim and the defendant. The defendant wrapped
his hands around the victim's throat and began to
strangle her. The victim was experiencing difficulty
breathing, and she managed to pry the defendant's hands
off her. The victim fled the apartment by means of the front
door, but the defendant pursued her from behind, dragged her
back inside the apartment, and resumed strangling her.
victim physically struggled with the defendant and,
eventually, the victim and the defendant were on the floor of
the kitchen. The victim was able to twist her body to break
free of the defendant's grasp, at which time she got back
on her feet and reached a rear door inside the kitchen. The
defendant cornered the victim between a stove and a sink. At
this point in time, the defendant grabbed two knives that
were on top of a nearby microwave oven and began to stab the
victim repeatedly while she was standing in front of the
stove. While the defendant was stabbing her and yelling at
her, the victim raised her hands to protect her face. The
victim sustained multiple stab wounds and was bleeding.
was a knock at the victim's front door. The defendant
told the victim that if she said anything, he would kill her.
He pushed the victim upstairs to the bathroom and forced her
to stand in a bathtub. He threatened her with a knife until
the knocking ceased.
defendant led the victim to her bedroom and continued to yell
at her. Among the things that the defendant stated was that
if he was not going to have a good Christmas, neither was the
victim. The victim partially undressed and began to tend to
her wounds with a T-shirt. She was permitted to go into the
bathroom to wash some of the blood off her body and to put on
a clean shirt. While the victim was cleaning her body, the
defendant remained in the bathroom and threatened her with a
knife. The defendant noticed that a knife blade had broken
off during the attack and remained stuck in the victim's
arm. The defendant told the victim that he almost felt
‘‘some kind of sympathy'' for her and he
removed the broken blade from her arm.
defendant, still holding a knife, led the victim back into
her bedroom, where he remained with the victim for several
hours. He yelled at the victim and repeatedly used his cell
phone, but apparently was unable to reach anyone on his cell
phone. Additionally, the defendant watched a movie and
consumed alcohol during this time.
approximately 5 or 6 p.m., there was another knock on the
victim's front door. The victim told the defendant that
it was likely that her daughters were at the door and that,
if he let them in, she would not say anything about what had
occurred and that he could get a ride somewhere. The
defendant refused, and he warned her to remain quiet. When
the knocking stopped, the victim asked the defendant for a
cigarette. The defendant approached the victim and punched
her in the face. The defendant and the victim shouted at one
another and, after using his cell phone, he approached the
victim, who was sitting on a bed, kicked her, and pushed her
into a wall. The defendant continued to yell things that were
incomprehensible to the victim and continued to threaten the
victim. For example, he told the victim that he found more
liquor, he was ready for ‘‘round two, ''
and that she was ‘‘really going to get
it.'' The victim, under the constant supervision of
the defendant, remained in the bedroom with the defendant
until approximately 4 a.m., the following day.
point in time, the defendant ordered the victim to prepare
chicken for him to eat. He escorted her to the kitchen where
she complied with his request. The defendant forced the
victim to sit next to him in the living room while he ate the
meal she had prepared, but he did not permit her to eat or
drink anything. The defendant warned the victim not to
‘‘make a move.''
approximately 6 or 7 a.m., the defendant escorted the victim
back upstairs. The victim, who had barely slept the night
before, felt weak and sat on the bed. The defendant stabbed
her in the right arm with a knife. The defendant repeatedly
yelled at the victim. The victim asked the defendant if she
could return to the bathroom to tend to her wounds, but he
refused this request. Throughout the day, the defendant
continued to consume alcohol and watch television. Although
he did not do so previously during this incident, the
defendant eventually fell into a deep sleep.
approximately 8 p.m., the victim sensed an opportunity to
rush past the sleeping defendant and make her way out of the
apartment. She quickly exited her apartment and approached
the apartment of a neighbor, Luis Matos. The victim knocked
frantically on Matos' door. Matos let the victim inside
of his apartment where she called 911. Police and emergency
medical personnel arrived at the scene shortly thereafter.
The victim was transported to a nearby hospital where she
received treatment for her many stab wounds.
police Officer Brian LaPerriere was one of several police
officers to respond to the scene. When he encountered the
victim, her clothing was covered in dried blood and several
of her stab wounds were apparent to him. After hearing the
victim's version of events, the officers entered the
victim's apartment through a rear window on the second
floor. They observed bloodstains throughout the residence and
bloody knives on the floor of the kitchen and bedroom. While
he was in the process of searching the apartment, LaPerriere
discovered the defendant hiding in a closet on the first
floor. The defendant complied with LaPerriere's commands,
and provided the officers with his name and his street name,
Apollo. The defendant stated to the police that he
‘‘was in some shit.'' Additional facts
will be set forth as necessary in our analysis of the
the defendant claims that the court violated his due process
right to a fair and impartial trial by questioning the victim
and Matos during the state's casein-chief. We disagree.
following two events that occurred during the trial are the
subject of the present claim. The first occurred during the
state's direct examination of the victim. By way of
relevant background, the victim testified that she was
familiar with the defendant prior to the events at issue. She
identified the person that she allowed to stay in her
apartment as ‘‘Ricardo Swilling, '' who
had a street name of ‘‘Apollo, '' and
described his arrangement with her regarding the use of the
apartment. Absent objection, the following colloquy occurred:
‘‘[The Prosecutor]: . . . And is [the defendant]
present in court today?
‘‘[The Victim]: Yes.
‘‘[The Prosecutor]: Can you please point to him
and describe what he's wearing?
‘‘[The Victim]: He's right over here. He
[has] a gray suit on.
‘‘The Court: With the tie or without the tie?
‘‘[The Victim]: I can't see over the screen.
‘‘The Court: All right. The record can reflect
identification of the defendant.''
objection, at the conclusion of the state's examination
of the victim, during which she described the defendant's
conduct during December 24 and December 25, 2014, the
following colloquy occurred:
‘‘[The Prosecutor]: And the individual who
stabbed you on [December 24 and December 25] of 2014, is he
present in court today?
‘‘[The Victim]: Yes, he is.
‘‘[The Prosecutor]: The person that did not allow
you to leave your apartment?
‘‘[The Victim]: Yes, he is present.''
an additional brief inquiry of the victim by the state, the
prosecutor stated that he did not have any further questions
for the victim. The following colloquy followed:
‘‘The Court: Before we take the recess . . . you
said that person is in the courtroom and it may seem obvious,
but is that the person you've identified before as [the
‘‘[The Victim]: Yes.''
during the state's direct examination of Matos during its
case-in-chief, Matos testified in relevant part that, on
December 25, 2014, the victim appeared at his door, he
provided assistance to her, and police and emergency medical
personnel were summoned to the scene. Matos testified that
the victim explained to him what had happened to her. There
is no indication in Matos' testimony that he knew the
defendant prior to the events at issue or had any interaction
with him following the events at issue. He testified that,
following the victim's arrival at his apartment on
December 25, 2014, he went outside to see ‘‘where
was the guy at.'' The following colloquy then
‘‘[The Prosecutor]: And when you were outside . .
. did you see anything?
‘‘[The Witness]: No. The only time I seen him was
when the officer ran behind her house; that's when he
locked the door on the house.
‘‘[The Prosecutor]: Okay. When you say,
‘he, ' who do you mean?
‘‘[The Witness]: The guy. When the officer went
to the house to see if he was still there, the guy ran back
to the house, he locked the door.
‘‘[The Prosecutor]: So . . . you saw an
individual outside of [the victim's] apartment?
‘‘[The Witness]: No. I didn't get to see him,
but the officer ran and he seen him locking the door.
‘‘[The Prosecutor]: Okay. And which door did you
see him lock or go into?
‘‘[The Witness]: The back door of [the
‘‘[The Prosecutor]: Okay. And were you able to
see that individual?
‘‘[The Witness]: No. I didn't get to see him.
I seen him after he got arrested and everything, then I seen
him. But I never seen that guy before.
‘‘[The Prosecutor]: Now, the person that you saw
go back into the house, was that the same person you saw in
police custody later?
‘‘[The Witness]: Yup.
‘‘[The Prosecutor]: Okay. And is that person in