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 STATE OF CONNECTICUT v. MARLANDO DALEY
               (AC 37580)
                 Sheldon, Keller and Sullivan, Js.
    Argued September 11—officially released December 22, 2015

   (Appeal from Superior Court, judicial district of
                 Fairfield, Thim, J.)
  Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
   Adam E. Mattei, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and Joseph T. Corradino, senior assistant state’s
attorney, for the appellee (state).
                          Opinion

   SHELDON, J. The defendant, Marlando Daley,
appeals from his October 17, 2011, conviction of murder
in violation of General Statutes § 53a-54a (a), in connec-
tion with the shooting death of Roland McLennon on
Edna Avenue in Bridgeport on July 4, 2010. After the
defendant was found guilty of that offense by a jury in
the Bridgeport Superior Court, he was sentenced by the
court, Thim, J., to a term of forty years imprisonment.
  In this appeal, the defendant makes two claims of
error: (1) that the trial court coerced the jury into ren-
dering a verdict, in violation of his state and federal
constitutional right to a fair trial, by informing the jury
that the case would be mistried if it could not reach a
unanimous verdict; and (2) that the trial court improp-
erly refused to admit evidence of a recorded statement
by a Bridgeport police officer to his dispatcher,
reporting his mother’s statement to him that she had
almost been struck by a speeding vehicle that resembled
the shooter’s vehicle, but did not match the defendant’s
vehicle, at or about the time and place of the shooting.
We affirm the judgment of the court.
   The jury reached its verdict on the basis of the follow-
ing evidence. On July 4, 2010, at 10:02 p.m., Officer
Pasquale Speranza of the Bridgeport Police Department
was dispatched to Edna Avenue to respond to a call
reporting that shots had been fired in that location.
Upon arriving at the scene, he found the lifeless body
of a man lying in a pool of blood on the side of the
street. A trail of what appeared to be blood led from
the body down Edna Avenue to the corner of East Main
Street. Harold Wayne Carver II, the state’s chief medical
examiner, testified that he conducted an autopsy of the
decedent and determined that the cause of death was
a single gunshot wound to the head.
   After speaking with three onlookers at the scene, the
police broadcasted a lookout for a dark-colored sport
utility vehicle (SUV). The police also spoke with a wit-
ness who said that after she had heard gunshots, she
looked out her window and saw one or two males firing
at a Jeep-like vehicle. Although the police developed no
suspects while conducting their on-scene investigation,
they positively identified the decedent as Roland
McLennon of Bridgeport, based upon information
received from family members who came to the scene.
   Nine months after the shooting, in early April, 2011,
the police approached the decedent’s brother, Byron
McLennon, Jr., while he was at the office of his proba-
tion officer, to talk about his brother’s death. In their
ensuing conversation, Byron reported for the first time
to the police that he had been an eyewitness to the
shooting, having driven his brother over to Edna Avenue
on that evening. Byron stated that, upon arriving on
Edna Avenue, he parked his car after his brother got
out and started to walk across the street toward a black
Mercedes SUV with a New York license plate. When
Roland turned to Byron and waved for him to come
along with him, Byron turned off the car and followed
his brother. Once Roland reached the SUV, he had a
short conversation with the driver, whom Byron saw
and recognized through the partially open passenger
side window as ‘‘Massup,’’ a man from the local Jamai-
can community whom he had seen playing soccer at
Seaside Park in Bridgeport and whom he knew to pro-
mote parties at local clubs. During his conversation
with police, which the police recorded on video, Byron
identified the defendant as ‘‘Massup’’ by selecting his
photograph from an eight person photographic array.
   Although Byron could not hear his brother’s entire
conversation with the defendant, he did hear his brother
utter the derogatory term, ‘‘pussy hole,’’ just before a
gunshot rang out from inside the SUV. As his brother
slumped to the ground by the side of the SUV, Byron
saw something black in the defendant’s right hand. After
his brother was shot, Byron ran back to his car and
drove away to his parents’ house on Elmwood Avenue
in Bridgeport. Upon his arrival, he told a family member
that his brother had been killed, but otherwise gave no
details of the shooting. Byron never approached the
police to report what he had seen for fear that being
at a crime scene might jeopardize his probation.
   The defendant, who drove a black Mercedes SUV
in July, 2010, presented an alibi defense through the
testimony of his friend, David Webley, the defendant’s
girlfriend, Miekah McCurvin, and his acquaintance, Ali-
cia Grant, who held a party at her house in Stratford
on July 4, 2010. Through their testimony, the defendant
claimed that he and Webley had attended Grant’s party
until 10 p.m. or 10:30 p.m. that evening before returning
to the defendant’s house on Huntington Avenue, where
they met up with the defendant’s cousin, Rosie, who
was already at the house when they arrived, and his
girlfriend, McCurvin, who arrived shortly thereafter.
The defendant did not testify at trial. Additional facts
will be set forth as necessary.
                              I
    The defendant first claims that the court improperly
coerced the jury to return a verdict, in violation of his
state and federal constitutional right to a fair trial, by:
(1) telling the jury that if it could not reach a unanimous
decision, ‘‘the case w[ould] be tried over’’; and (2) telling
one juror, who had asked to speak with the judge pri-
vately about her scheduling concerns, that he did not
want to excuse her from the jury because ‘‘we have to
have a jury of twelve to decide the case; otherwise, we
have to start the whole process over. . . . [T]his case
has been pending a long time, and we just don’t want
to start it all over again.’’ According to the defendant,
‘‘[i]t is coercive for a judge to mention the possibility
of a mistrial if the jury does not come to a verdict.’’
   ‘‘A jury that is coerced in its deliberations deprives
the defendant of his right to a fair trial under the sixth
and fourteenth amendments to the federal constitution,
and article first, § 8, of the state constitution. Whether
a jury [was] coerced by statements of the trial judge is
to be determined by an examination of the record. . . .
The question is whether in the context and under the
circumstances in which the statements were made, the
jury [was], actually, or even probably, misled or
coerced.’’ (Citations omitted; internal quotation marks
omitted.) State v. Pinder, 250 Conn. 385, 427, 736 A.2d
857 (1999). The court must ‘‘consider [the jury instruc-
tions] from the standpoint of their effect upon the jury
in the context and under the circumstances in which
they were given.’’ State v. Ralls, 167 Conn. 408, 422, 356
A.2d 147 (1974), overruled on other grounds by State
v. Rutan, 194 Conn. 438, 479 A.2d 1209 (1984).
   The following additional facts are relevant to this
claim. On Friday, October 14, 2011, after counsel pre-
sented their closing arguments, the court gave its final
instructions to the jury. In addition to instructions on
the elements of the charged offense, the role of the
jury, the burden of proof, and the presumption of inno-
cence, the court gave the jury the following general
instruction as to the manner in which it should conduct
its deliberations: ‘‘In the jury room, you should talk
with each other about the case. Each of you must make
your own conscientious decision, but only after you
have considered all the evidence, discussed it fully with
the others, and listened to the views of the others. Each
of you should consider whether your views are fair
and reasonable and try your best to decide the case
according to the law. Do not hesitate to reexamine
your own views and to change your mind if you are
persuaded that you should do so, but do not surrender
your honest opinion solely because your opinion is dif-
ferent from the other jurors’ or for the mere purpose
of returning a verdict.’’ The defendant took no excep-
tion to this instruction. In view of the late hour at which
the jurors were about to start their deliberations, how-
ever, the defendant asked the court to advise the jury
that there would be no restriction on the amount of
time it would have to deliberate. The court obliged by
giving the following additional instruction: ‘‘[T]here is
no time constraint on when you must make a decision.
. . . [Y]ou should take as much time as you feel is
necessary to render your decision in a careful and just
manner. . . . [I]t’s now five of four and you should not
feel that you have to render a decision . . . by quarter
of five. . . . I told you the case might go over to a week
or two, and we had that delay at the beginning of the
week, which was beyond our control. So, we have the
extra day, so, if you need more time, you have that time.’’
Once again, no exception was taken to this charge.
   After deliberating for some time thereafter, the jury
asked the court to replay for it both the video recording
of Byron McLennon, Jr.’s interview by the Bridgeport
police and the trial testimony of the defendant’s princi-
pal alibi witness, Webley. The court then excused the
jury for the weekend, informing it that it would replay
the requested material when court reconvened the fol-
lowing Monday. The following Monday morning, the
court replayed the material requested by the jury. Fol-
lowing the playback, the jury resumed its deliberations.
The jury later sent out a second note that read, simply,
‘‘Jury Instructions.’’ The court responded to this note by
orally requesting the jury to specify which instructions it
wished to rehear. After the jury returned from lunch,
it responded to the court’s request for clarification by
sending out a third note, in which it specified, ‘‘The
playback of the judge’s instructions to the jury, per-
taining to the guidelines for arriving at a decision.’’
By agreement with counsel, the court responded by
reinstructing the jury on the procedure for selecting a
foreperson, and rendering a unanimous verdict, and, in
essentially identical terms as described previously, the
manner in which it should conduct its deliberations.
   Later that day, the jury sent out a fourth note in which
it asked three more questions, which the jury phrased
as follows: ‘‘(1) Can the judge reread from the piece of
paper pertaining to the factors that enable the jurors
to reach a verdict?; (2) What is the scope of the ‘limited
use’, evidence as it pertains to the videos of the police
interview with Byron Mclennon Jr.?; [and] (3) What
happens in the event that the jury cannot come to a
unanamous decision?’’ The court, the prosecutor, and
defense counsel could not agree on what the jury meant
by its first question, and so they agreed that the court
should ask the jury for clarification on that subject. As
for the second question, the court instructed the jury
that it was to use the video recording of Byron McLen-
non, Jr.’s police interview only to evaluate his credibility
as a witness. Finally, the court advised counsel that it
would instruct the jury on the third question as follows:
‘‘And then, as far as, they can’t agree—the answer to,
if they can’t agree, they can’t agree. The case gets tried
over again.’’ After some further discussion with counsel
about the meaning of the first question, the court again
told counsel that it would instruct the jurors on the
third question that, ‘‘if they can’t come to a decision,
they can’t come to a decision; the case gets tried over.
I’d like to talk to them before we arrive at that point—
you know—in the courtroom, and that would be a Chip
Smith charge.’’ No one objected to this proposed
instruction, and thus the court responded to the jury’s
third question as follows: ‘‘And what happens in the
event that the jury cannot come to a unanimous deci-
sion? Well, that would mean that you—you would just
so announce that—not—have not been able to decide
the case and the case will be tried over.’’ No exception
was taken to this instruction.
   Presumably in response to the court’s request for
clarification as to the first question in the jury’s fourth
note, the jury next sent out a fifth note, asking, ‘‘What
is the ‘burden of proof’?’’ The court responded to this
note by instructing the jury as to the presumption of
innocence and the standard of proof beyond a reason-
able doubt.
  The jury then resumed its deliberations once again
before sending out a sixth note, requesting the playback
of Byron McLennon, Jr.’s trial testimony. When the trial
judge read this note to counsel, he also informed them
that one of the jurors, M.C., had asked, through the
clerk of the court, for an opportunity to speak with him
about scheduling concerns. The court first replayed
some of the requested testimony for the jury, but
stopped with about one hour of playback remaining so
that it could speak with M.C. before the end of the day.
   When M.C. was called out into the courtroom, she
told the court, in the presence of counsel, that ‘‘[w]hen
I started, I told them that after five days, it would be
a hardship financially for me to continue with the case,
and I had asked if they thought it was gonna go beyond
five days, to put me on something else. . . . I’m sup-
porting four people on a nurse’s salary, and . . . I have
a disabled daughter and it really is very difficult to
support four people on $50 a day.’’ The court demurred
to M.C.’s claim of hardship, responding as follows: ‘‘Let
me address this issue tomorrow morning. That means
you’ll have to come here tomorrow morning, and then—
well, first of all, let me talk to the lawyers first. Could
you just step into the jury room, please?’’ Once M.C.
left the courtroom, the court told counsel that it did not
want to excuse her because only one alternate remained
and they might still need the remaining alternate to
finish the trial.1 The state agreed that M.C. should return
to court the next day for completion of the playback,
and that the court could address her claim of hardship
at that time. Defense counsel voiced no objection to that
proposal, observing only that, in light of the unfinished
playback, ‘‘she’s gonna lose tomorrow anyway . . . .’’
The court then had the juror brought back into the
courtroom, where, in the absence of the other jurors,
it told her, ‘‘[W]e have to have a jury of twelve to decide
the case; otherwise, we have to start the whole process
over. So, let’s gather here tomorrow, we’ll listen to the
balance of the testimony, and then we’ll take a little
break and then—you know—I’ll talk to you further, and
maybe later in the morning—you know—we’ll excuse
you—excuse you, but you know, this case has been
pending a long time and we just don’t want to start it
all over again.’’ The court did not explain to the juror
what it meant by the phrases, ‘‘to start the whole process
over,’’ or, ‘‘to start it all over again.’’2
  The court then had the alternate juror, who had been
present for the playback, brought back into the court-
room to excuse him for the day. As it began to tell the
alternate3 that it was about to excuse the regular jurors,
however, it interrupted itself to say, ‘‘Okay. The jury
wants to deliberate a little bit.’’4 The jury thereafter
resumed its deliberations, without objection by the
defendant, before sending out a seventh and final note,
in which it reported that it had reached a verdict. After
the jury returned its verdict of guilty, defense counsel
did not request that the court poll the jury.
    On October 21, 2011, the defendant filed a motion
for a new trial, in which he claimed that the ‘‘court’s
advisement of the potential for a mistrial may have
had coercive effects upon the jury’s verdict.’’ Defense
counsel argued this motion prior to sentencing, at which
time he characterized M.C.’s demeanor during her collo-
quy with the court as ‘‘fairly hostile toward the court’s
inquiries about her . . . .’’ The court denied the motion
and disputed counsel’s characterization of M.C., stating,
‘‘I don’t recall her as having been hostile. I don’t think
that fairly sets forth the tone of the courtroom at the
time.’’
   Notwithstanding his failure to object or take excep-
tion to the challenged instruction at trial, the defendant
now claims that he preserved this claim of error for
appeal by filing his new trial motion on the ground of
jury coercion arising from the court’s instruction. The
proper time for the defendant to preserve a claim of
error with respect to the court’s instructions, however,
is when the court proposes to give the challenged
instruction or after it gives it to the jury. See State
v. Whipper, 258 Conn. 229, 244, 780 A.2d 53 (2001),
overruled in part on other grounds by State v. Cruz,
269 Conn. 97, 106, 848 A.2d 445 (2004), and State v.
Grant, 286 Conn. 499, 535, 944 A.2d 947, cert. denied,
555 U.S. 916, 129 S. Ct. 271, 172 L. Ed. 2d 200 (2008);
State v. Smith, 100 Conn. App. 313, 320 n.6, 917 A.2d
1017, cert. denied, 282 Conn. 920, 925 A.2d 1102 (2007);
see also State v. Martinez, 173 Conn. 541, 543, 378 A.2d
517 (1977). Accordingly, this issue was not preserved
at trial.
   In the alternative, the defendant requests that we
review his claim of error under State v. Golding, 213
Conn. 233, 567 A.2d 823 (1989). Under the rule of Gold-
ing, as modified in In re Yasiel R., 317 Conn. 773, 781,
120 A.3d 1188 (2015), ‘‘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 constitu-
tional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness 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
omitted; footnote omitted.) State v. Golding, supra,
239–40; see also In re Yasiel R., supra, 781 (modifying
third prong). ‘‘The first two [Golding] requirements
involve a determination of whether the claim is review-
able; the second two requirements involve a determina-
tion of whether the defendant may prevail.’’ State v.
George B., 258 Conn. 779, 784, 785 A.2d 573 (2001).
   The defendant here satisfies the first and second
prongs of Golding, for the record is adequate for review
of the defendant’s claim, and the claim is of constitu-
tional magnitude. See State v. Pinder, supra, 250 Conn.
427. The defendant fails, however, to satisfy the third
prong of Golding, and thus he cannot prevail on his
claim.
   The defendant claims that the court erred both in
telling the entire jury that the case would be ‘‘tried
over’’ if the jury could not reach a unanimous verdict
and in telling M.C., in response to her claim of hardship,
that it did not wish to excuse her because the case had
been pending for a long time and ‘‘we just don’t want
to start it all over again.’’ The defendant argues that
these statements coerced the jurors to reach a verdict
‘‘so that they would not have to return the following
day . . . .’’ In addition, he argues that the statements
coerced the jury to reach a verdict ‘‘to avoid having the
case retried.’’
    In some circumstances, mentioning the possibility of
a mistrial to a deliberating jury may be coercive. See
State v. O’Neill, 200 Conn. 268, 284, 511 A.2d 321 (1986)
(‘‘[t]he potential of a mistrial, upon a deadlock, [is]
often regarded as coercive ‘‘); State v. Colon, 28 Conn.
App. 231, 246, 611 A.2d 902 (noting with approval that
‘‘court did not warn the jurors about the negative conse-
quences of mistrial resulting from a deadlocked jury’’),
cert. denied, 223 Conn. 922, 614 A.2d 827 (1992). The
potential problem with such a statement is that it risks
incentivizing the jury to reach a unanimous verdict
before it is ready to do so. State v. O’Neill, supra, 284
(‘‘[b]ecause the possibility of disagreement by a jury
and the consequent lack of a unanimous verdict is a
protection conferred upon a criminal defendant in a
criminal case by the [United States] constitution, for a
judge to tell a jury that a case must be decided is not
only coercive in nature but is also misleading in fact
because to do so precludes the right of a defendant to
rely on the possibility of a disagreement by the jury’’
[internal quotation marks omitted]). In determining
whether the mention of a possibility of a mistrial is
coercive, our Supreme Court has looked to the context
in which and the circumstances under which the trial
court gave the potentially problematic instruction and
the probable effect of that instruction on the jury. See
State v. Ralls, supra, 167 Conn. 422 (‘‘[i]n assessing the
impact of these statements, however, we must consider
them from the standpoint of their effect upon the jury
in the context and under the circumstances in which
they were given’’).
   When a jury is deadlocked, the likelihood that a men-
tion of a mistrial will be coercive is even greater. This
is true because members of a deadlocked jury may
understand the instruction as an incentive to abandon
their conscientiously held beliefs in order to break the
deadlock. The trial court may allay this risk of coercion,
however, by further instructing the jurors that they
should not abandon their conscientiously held beliefs
or rush to reach a verdict. An example of such an addi-
tional instruction is a Chip Smith charge.5 A Chip Smith
charge is a balanced instruction typically given to dead-
locked jurors to encourage them to work together
toward a unanimous verdict, albeit without surren-
dering their conscientiously held personal beliefs based
upon the evidence. ‘‘Better than any other statement
. . . [such a charge] makes clear the necessity, on the
one hand, of unanimity among the jurors in any verdict,
and on the other hand the duty of careful consideration
by each juror of the views and opinions of each of his
fellow jurors . . . .’’ (Internal quotation marks omit-
ted.) State v. Feliciano, 256 Conn. 429, 439, 778 A.2d
812 (2001). Even when a jury is not deadlocked, a Chip
Smith charge may assuage the potentially coercive
effect of any improper mention of a mistrial. See State
v. Ralls, supra, 167 Conn. 425.
   For example, in State v. McArthur, 96 Conn. App.
155, 899 A.2d 691, cert. denied, 280 Conn. 908, 907 A.2d
93 (2006), the jury sent a note to the court, stating, ‘‘We
cannot come to a consensus on the kidnapping charge.
Please help us to understand our options.’’ (Internal
quotation marks omitted.) Id., 179. The court informed
counsel that it would give the jury a Chip Smith charge,
but introduced that charge with the following poten-
tially problematic statement: ‘‘Keep in mind how
important it is for you to reach unanimous agreement,
because if you can’t agree, then the case as to the charge
that you can’t agree on is mistried and the case has to
be tried again. There’s no particular reason to believe
that the next twelve of you will be any more conscien-
tious and impartial than you are.’’ (Internal quotation
marks omitted.) Id., 179–80. Although we agreed with
the defendant that the trial court ‘‘should not have given
the prefatory instruction that it did’’; id., 180; we held
that the instructional error was harmless for two rea-
sons. Id., 180–83. First, we noted that a full Chip Smith
instruction immediately followed the offending lan-
guage, thereby curing any error that might otherwise
have arisen from it. Id., 182. Second, we noted that the
jury did not announce its verdict immediately after the
mention of the mistrial. Id., 183.
  Another example is Ralls, which is apposite to the
present case in that the jury had not reported a dead-
lock. In that case, the court told the jury at about 5
p.m., after it had been deliberating for a little under
three hours: ‘‘I cannot allow you to leave before I have
some sort of a verdict. You can readily see,’’ it explained,
‘‘if somebody got sick overnight, I would have to declare
a mistrial, and this case would have to start all over
again. It would be an impossibility.’’ (Emphasis omitted;
internal quotation marks omitted.) State v. Ralls, supra,
167 Conn. 421. On appeal, our Supreme Court stated
that ‘‘[f]or a judge to tell a jury that a case must be
decided and that a mistrial would be an impossibility
is not only compelling in nature but is misleading in
fact. While a defendant is not entitled to an instruction
that a jury may ‘hang’ . . . he is entitled to a jury unfet-
tered by an order to decide. . . . When considered out
of context, the statements in issue convey such an
order, and, as such, constitute an impermissible, albeit
undesigned, transgression into the province of the jury.’’
(Citations omitted.) Id., 422.
   Ultimately, however, the court in Ralls found no coer-
cion in the challenged instruction for several reasons.
Our Supreme Court looked to the context in which and
the circumstances under which the trial court gave the
instruction, first noting that the statements ‘‘were made
because of the hour to explain the reason for retaining
them through suppertime and to explain the potential
for mistrial if a released juror were to become ill over-
night.’’ (Internal quotation marks omitted.) See id., 423.
Moreover, the trial court had prefaced its instruction
with, ‘‘I am not trying to hurry your deliberations at all.
I want you to have time enough to consider them, and
consider them with all the thought that you can.’’ (Inter-
nal quotation marks omitted.) Id. In addition, our
Supreme Court said, ‘‘The jury had shown no indication
of a deadlock; there was no hint as to division.’’ Id.
Turning to the effect of the allegedly improper state-
ment on the jury, our Supreme Court concluded that
‘‘the jury’s final agreement was not reached because of
submission to any improper urging of the court, but
upon their own deliberations and the answer given to
them at the last inquiry.’’ Id., 426. In reaching that con-
clusion, the court relied on the fact that the jury contin-
ued to deliberate for almost four and one-half hours
after the first mention of a mistrial and that the trial
court gave a Chip Smith charge both before and after its
mention of the possibility of a mistrial. See id., 425–26.
Therefore, the court held: ‘‘We cannot conclude that,
in the context and under the circumstances in which
these statements were made, the jury were, actually or
even probably, misled or coerced.’’ Id., 426.
  Against this background, we first address the com-
ments made to the jury as a whole. Viewed in isolation,
the challenged comments raised the specter of a possi-
ble mistrial in the event of a jury deadlock, thus improp-
erly risking possible coercion of the jury to decide the
case and avoid a mistrial. Our case law directs us, how-
ever, not to examine the instructions in isolation, but
instead to examine them in the context of the court’s
other instructions to determine if they probably had a
coercive effect. See id., 422 (‘‘[t]he charge to the jury
. . . must be read as a whole, and an attempt to assert
reversible error by culling a single phrase or inaccurate
statement must fail unless it is reasonably probable that
the jury were misled’’). In examining the challenged
instructions ‘‘from the standpoint of their effect upon
the jury in the context and under the circumstances
in which they were given’’; id.; four points lead us to
conclude that the defendant’s jury in this case was not
coerced into rendering a verdict. See id.
   First, this is not a case where the jury had declared
itself deadlocked when the prospect of a mistrial was
first mentioned to it. The jurors did ask what would
happen in the event that they could not reach a unani-
mous verdict; however, to the extent that this was any
indication of a potential deadlock, there was no other
indication that a deadlock existed. In fact, the jury’s
actions suggested the opposite, as evidenced by its own
unsolicited suggestion that deliberations continue
instead of going over to the following day to complete
the replay of Byron McLennon, Jr.’s trial testimony.
   Second, although the mention of a mistrial to a delib-
erating jury may at times be considered misleading even
when the jury is not deadlocked, our case law holds
that a Chip Smith charge can cure any such defect by
assuring the jurors that, however undesirable a mistrial
might be, they still should not change their minds
merely to reach a unanimous verdict and avert a mis-
trial. See id., 425; see also State v. McArthur, supra, 96
Conn. App. 182. Although the court did not give a full
Chip Smith charge in this case, on two occasions it
gave the jurors the following instruction as to how they
should consider each other juror’s views in conducting
their deliberations: ‘‘In the jury room, you should talk
with each other about the case. Each of you must make
your own conscientious decision, but only after you
have considered all the evidence, discussed it fully with
the others, and listened to the views of the others. Each
of you should consider whether your views are fair
and reasonable and try your best to decide the case
according to the law. Do not hesitate to reexamine
your own views and to change your mind if you are
persuaded that you should do so, but do not surrender
your honest opinion solely because your opinion is dif-
ferent from the other jurors or for the mere purpose
of returning a verdict.’’ This instruction, in its substance
and effect, conveyed the essence of a Chip Smith
charge. On the morning that the jury reached its verdict,
the court repeated this instruction—almost verbatim—
in response to the jury’s third note. By advising the
jurors of their duties as individuals to make their own
conscientious decisions, and not to surrender their hon-
est opinions ‘‘for the mere purpose of returning a ver-
dict,’’ the court made it clear to the jurors that they
should reach independent conclusions on the issues
before them and should not feel coerced into rendering
a verdict to which they did not personally agree.
   Third, the statement by the court was in the context
of responding to a question asked by the jury. The jury
never indicated that it was actually deadlocked, but
rather it asked what would occur, generally, if the jury
could not reach a unanimous verdict. We have never
held that the court is required to hide from the jury the
fact that a mistrial is a possibility. Instead, our Supreme
Court has been concerned with whether the jury is
‘‘unfettered by an order to decide.’’ State v. Ralls, supra,
167 Conn. 422.
   Fourth, the defendant argues that the court’s state-
ments coerced the jury into reaching a verdict so that
it would not have to return the following day. To the
extent that the defendant is arguing that the court was
attempting to coax the jury to reach a verdict within a
certain time frame, we reject this argument outright.
First, the court gave the following initial instruction to
the jury, at the request of the defendant: ‘‘You should
take as much time as you feel is necessary to render
your decision in a careful and just manner.’’ At no time
did the court imply to the jury that it must reach a
decision within a particular time frame. To the contrary,
the court was planning to have the jury return the next
day to finish listening to the playback of Bryon McLen-
non, Jr.’s trial testimony. To the extent that the defen-
dant is arguing that the court was forcing reluctant
jurors to continue to deliberate, we also reject this
argument. Requiring jurors to return to continue delib-
erating is not coercive in itself, absent a correlating
requirement that the jury reach a verdict by a particular
deadline. See State v. Pinder, supra, 250 Conn. 428
(telling jurors they would have to continue deliberating
into evening not coercive because there was no implica-
tion they would have to reach verdict that evening).
   Finally, we turn to the comments made to the individ-
ual juror, M.C. The statement that the defendant argues
is improper, ‘‘we just don’t want to start [the case] all
over again,’’ could be viewed as suggesting that the jury
should reach a verdict to prevent the need to start the
case all over again. However, we are not persuaded
that this statement, viewed in the context of the entire
record, was coercive. It would be pure supposition to
conclude that M.C. told the other jurors about her con-
versation with the judge. In fact, M.C.’s actions up to
that point gave every indication that she was discreet
in requesting to speak with the judge in private; there
is no reason to believe that she would have changed
her approach. The defendant urges us to consider the
timing of the allegedly improper statements to the jury
and to M.C. Although he argues that the jury returned a
verdict ‘‘almost immediately’’ after M.C.’s conversation
with the judge and just before 5 p.m., the record is
inadequate for us to determine the accuracy of this
argument. Therefore, there is no way of knowing
whether the other jurors ever learned what the judge
said to M.C., let alone whether they felt coerced to
reach a verdict because of it.
  Accordingly, examining the instructions ‘‘from the
standpoint of their effect upon the jury in the context
and under the circumstances in which they were given’’;
State v. Ralls, supra, 167 Conn. 422; it was not reason-
ably probable that the jury was coerced by the court’s
instructions into rendering a verdict. See id.
                            II
   The defendant next claims that the court improperly
excluded evidence that he proffered of an audio
recording of a Bridgeport police officer calling into his
dispatcher to report that his mother had called him and
told him that she had almost been struck by a black,
older model Jeep Cherokee that was speeding down
Huntington Road with its headlights off around the time
that the police received a report of shots fired on nearby
Edna Avenue. The state objected to this evidence on the
ground that it was hearsay within hearsay. We conclude
that even if the officer’s report of his mother’s statement
to him was admissible under the business records
exception to the hearsay rule, the officer’s mother’s
statement to him was not admissible under any excep-
tion to the hearsay rule, and thus was properly
excluded.
   The defendant offered the audio recording of the
officer’s statement on the last day of evidence. In that
recording, which was played for the court, a police
officer called his dispatcher to ask for the exact time
of the ‘‘shots fired’’ call that had been broadcast in
connection with this case. The dispatcher responded
that the call had come in at 22:00 hours. The officer said,
‘‘All right. . . . My mom called me. She was turning on
Palm Street. A black older model Jeep Cherokee was
flying with lights off about that time down Huntington
Road toward [inaudible] Avenue/Noble Avenue area. It
almost struck her, that’s why she called me up and let
me know.’’ After the dispatcher repeated the officer’s
report back to him, the officer added that the vehicle
‘‘blew through a light’’ on Huntington Road and Boston
Avenue, then turned on its headlights after almost strik-
ing his mother.
  The state objected to this evidence, characterizing it
as ‘‘totem pole hearsay.’’ According to the state, the
recording contained two levels of hearsay: (1) the police
officer’s statement to the dispatcher and (2) the police
officer’s mother’s reported statements to the police offi-
cer. After listening to the recording, the court sustained
the state’s objection, stating, simply, ‘‘I don’t see the
officer’s report on the mother’s out-of-court statement
as being admissible. Therefore, the state’s objection is
sustained.’’ The court did not specify on which ground
it was ruling.6
   The defendant claims on appeal that the court erred
in ruling that the recording was inadmissible. The defen-
dant argues, as he did at trial, that the police officer’s
mother’s reported statements were admissible under
the spontaneous utterance exception and that the police
officer’s statements to the dispatcher were admissible
under the business records exception. Because we con-
clude that the mother’s statements were inadmissible
as hearsay, it is unnecessary for us to address whether
the police officer’s recorded statements to the dis-
patcher were admissible as a business record.7
   ‘‘Unless an evidentiary ruling involves a clear miscon-
ception of the law, the [t]rial court has broad discretion
in ruling on the admissibility . . . 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
. . . .’’ (Internal quotation marks omitted.) State v. St.
John, 282 Conn. 260, 270, 919 A.2d 452 (2007).
‘‘[W]hether a statement is truly spontaneous as to fall
within the spontaneous utterance exception will be
reviewed with the utmost deference to the court’s deter-
mination.’’ State v. Saucier, 283 Conn. 207, 219, 926
A.2d 633 (2007). ‘‘In determining whether there has been
an abuse of discretion, the ultimate issue is whether
the court . . . reasonably [could have] conclude[d] as
it did.’’ (Internal quotation marks omitted.) State v.
Davis, 298 Conn. 1, 11, 1 A.3d 76 (2010).
   ‘‘An out-of-court statement offered to prove the truth
of the matter asserted is hearsay and is generally inad-
missible unless an exception to the general rule
applies.’’ (Internal quotation marks omitted.) State v.
Wargo, 255 Conn. 113, 127, 763 A.2d 1 (2000). Section
8-3 of the Connecticut Code of Evidence sets forth
exceptions to the hearsay rule that apply regardless of
the availability of the declarant. Conn. Code Evid. § 8-
3. One such exception is the spontaneous utterance
exception set forth in § 8-3 (2), which applies to: ‘‘A
statement relating to a startling event or condition made
while the declarant was under the stress of excitement
caused by the event or condition.’’ Under § 8-3 (2), an
out-of-court declaration will not be excluded under the
hearsay rule when the following factors are established:
‘‘(1) the declaration follows a startling occurrence, (2)
the declaration refers to that occurrence, (3) the declar-
ant observed the occurrence, and (4) the declaration
is made under circumstances that negate the opportu-
nity for deliberation and fabrication by the declarant.’’
State v. Kelly, 256 Conn. 23, 41–42, 770 A.2d 908 (2001).
  In determining whether a declaration is admissible
as a spontaneous utterance, the court should look at
various factors, including ‘‘[t]he element of time, the
circumstances and manner of the accident, the mental
and physical condition of the declarant, the shock pro-
duced, the nature of the utterance, whether against the
interest of the declarant or not, or made in response
to question, or involuntary, and any other material facts
in the surrounding circumstances . . . .’’ Perry v. Har-
itos, 100 Conn. 476, 484, 124 A. 44 (1924). ‘‘The relation
of the utterance in point of time to the accident or
occurrence, while an important element to be consid-
ered in determining whether there has been opportunity
for reflection, is not decisive.’’ Id. Instead, ‘‘[t]he over-
arching consideration is whether the declarant made
the statement before he or she had the opportunity to
undertake a reasoned reflection of the event described
therein.’’ (Internal quotation marks omitted.) State v.
Kirby, 280 Conn. 361, 376, 908 A.2d 506 (2006).
   Here, assuming that the mother’s reported experi-
ence of almost being struck by a speeding vehicle was
a startling event that she personally had witnessed and
described to her son, the remaining issue that the court
had to resolve before admitting the statement was
whether the mother was still under the stress of that
startling event when she spoke to her son about it. The
record does not contain any evidence as to the time
when the mother called the police officer in relation to
the time of the event described in her reported state-
ment. Although time is not necessarily dispositive, a
time line of the events may have provided at least some
evidence as to whether the mother had time to reflect
on the events before she made the reported statement
to the police officer. Furthermore, the audio recording
gave no indication that the officer’s mother was still
under stress at the time she made her reported state-
ment to the police officer. The police officer did not
report that his mother called him while, or shortly after,
seeing the speeding vehicle, nor did he report that his
mother was or seemed to be upset. Without such evi-
dence before it, the court had no way of knowing
whether the police officer’s mother had called someone
else before she called her son, or done anything else
in the interim that gave her time for ‘‘ ‘reasoned reflec-
tion’ . . . .’’ Id.; see also State v. Gregory C., 94 Conn.
App. 759, 771–72, 893 A.2d 912 (2006) (statement not
spontaneous utterance when declarant spoke with her
friend at length before making statement). In sum, the
court reasonably could have ruled the mother’s state-
ment inadmissible under the spontaneous utterance
exception to the rule against hearsay because the court
lacked any record basis for determining that she made
it under circumstances negating the opportunity for
deliberation and fabrication. We conclude on that basis
that the trial court did not abuse its discretion in exclud-
ing the recording reporting her statement from
evidence.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
     After the close of evidence but prior to the start of deliberations, the court
had excused one juror and replaced him with one of two alternate jurors.
   2
     One possible meaning was that the entire trial would have to start all
over again. Another, however, was that deliberations would start all over
again if the juror was replaced by an alternate juror.
   3
     It is unclear whether M.C. remained in the courtroom or returned to the
jury room after her conversation with the judge. The transcript does not
reflect that M.C. left. The defendant claimed in his motion for a new trial
that M.C. returned to the deliberation room. Neither the prosecutor nor the
trial judge challenged that claim.
   4
     The record does not reveal how the court came to learn that the jurors
wished to continue their deliberations.
   5
     The Chip Smith charge was originally set forth in State v. Smith, 49
Conn. 376, 386 (1881), and, as updated in State v. O’Neil, 261 Conn. 49, 801
A.2d 730 (2002), states in its entirety as follows:
   ‘‘The instructions that I shall give you now are only to provide you with
additional information so that you may return to your deliberations and see
whether you can arrive at a verdict.
   ‘‘Along these lines, I would like to state the following to you. The verdict
to which each of you agrees must express your own conclusion and not
merely the acquiescence in the conclusion of your fellow jurors. Yet, in
order to bring your minds to a unanimous result, you should consider the
question you have to decide not only carefully but also with due regard and
deference to the opinions of each other.
   ‘‘In conferring together, you ought to pay proper respect to each other’s
opinions and listen with an open mind to each other’s arguments. If the
much greater number of you reach a certain conclusion, dissenting jurors
should consider whether their opinion is a reasonable one when the evidence
does not lend itself to a similar result in the minds of so many of you who
are equally honest and equally intelligent, who have heard the same evidence
with an equal desire to arrive at the truth and under the sanctions of the
same oath.
   ‘‘But please remember this. Do not ever change your mind just because
other jurors see things differently or to get the case over with. As I told
you before, in the end, your vote must be exactly that—your own vote. As
important as it is for you to reach a unanimous agreement, it is just as
important that you do so honestly and in good conscience.
   ‘‘What I have said to you is not intended to rush you into agreeing on a
verdict. Take as much time as you need to discuss the matter. There is no
need to hurry.’’ (Emphasis omitted.) Id., 74–75.
   6
     During the argument about whether the audio recording was inadmissible
as hearsay, the state briefly made a claim that the court should exclude the
recording on relevancy grounds. The defendant never responded to this
argument at trial, and thus the substance of the argument by both the state
and the defendant concerned hearsay. Because hearsay was more clearly
argued at trial and because we determine that the evidence was inadmissible
as hearsay, we will not address the relevancy claim.
   7
     Although we assume without deciding that the police officer’s statements
to the dispatcher fall under the business record exception to the hearsay
rule, we have little doubt that this recording of a police officer calling the
police dispatcher was made in the regular course of police work and that
it was in the regular course of police work to make such a recording. See
State v. Torelli, 103 Conn. App. 646, 659, 931 A.2d 337 (2007) (‘‘To be
admissible under the business record exception to the hearsay rule, a trial
court judge must find that the record satisfies each of the three conditions
set forth in [General Statutes] § 52-180. The court must determine, before
concluding that it is admissible, that the record was made in the regular
course of business, that it was the regular course of such business to make
such a record, and that it was made at the time of the act described in the
report, or within a reasonable time thereafter.’’ [Internal quotation marks
omitted.]).
