State v. Torres ( 2022 )

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STATE OF CONNECTICUT v.
QUAVON TORRES
(SC 20306)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.*
Syllabus
Convicted of the crimes of murder and carrying a pistol without a permit
in connection with the shooting death of the victim, the defendant
appealed to this court. The defendant, P, and L had been socializing with
M, the defendant’s cousin, and the defendant’s sister in an apartment.
L called the victim and asked him for a ride. The victim parked his car
outside of a pharmacy across the street from the apartment and went
inside of the pharmacy. The defendant, P, and L got into the victim’s
car while the victim was inside the pharmacy. The victim returned to
his car and initially did not notice the defendant in the rear seat behind
the driver’s seat. After the victim drove to a drive-through at a fast food
restaurant, the victim noticed that the defendant was in the car and told
him to get out. When the defendant refused, the victim got out and
walked around the car to the passenger’s side in order to retrieve a
baseball bat. In response, the defendant exited the car, walked around
the rear of the car toward the passenger’s side, and fatally shot the
victim. On appeal from the judgment of conviction, the Appellate Court
reversed the defendant’s conviction and remanded the case for a new
trial. At the defendant’s second trial, M testified, in an offer of proof
outside the presence of the jury, that, immediately before the defendant’s
first trial, she encountered P in the courthouse, and P called M a ‘‘snitch’’
and threatened her. M then testified that, two days later, P’s sister and
two other individuals had assaulted her. The trial court denied the
state’s motion in limine to preclude M’s testimony with respect to the
courthouse encounter between P and M but granted the motion with
respect to the assault. At the defendant’s second trial, M testified before
the jury that P ran by the apartment after the shooting and tossed L the
black revolver that allegedly was used to shoot the victim and that
was later found by the police. This testimony contradicted M’s initial
statement to the police about whom she saw with the gun and her
testimony at the defendant’s first trial. On direct appeal from the judg-
ment of conviction after the defendant’s second trial, held:
1. The defendant could not prevail on his claim that the trial court improperly
excluded evidence that M was assaulted before the defendant’s first trial:
a. The trial court’s exclusion of evidence relating to the assault did not
violate the defendant’s sixth amendment rights to present a defense
and to confrontation, as the court did not prevent the defendant from
presenting evidence in furtherance of his third-party culpability claim
or from challenging M’s credibility; the defendant was permitted to pres-
ent his version of the events to the jury and to elicit facts from which
the jury could assess M’s credibility, including her motive for testifying
falsely at the defendant’s first trial, as the jury heard M’s testimony that
P possessed the murder weapon on the day of the shooting, that M
initially lied to the police because she was high and felt pressured, that
she lied at the defendant’s first trial because of P’s threat, and that she
was telling the truth at the defendant’s second trial.
b. Even if this court assumed, without deciding, the trial court improperly
precluded testimony relating to the assault of M, the defendant failed
to meet his burden of proving harm; the testimony of eyewitnesses to
the shooting that implicated the defendant, which was corroborated by
video surveillance footage and the statements of P and L to the police
shortly after the murder, M’s statement to the police implicating the
defendant, which was made prior to P’s threat and the subsequent assault
of M, and certain forensics testimony, when considered together, made
it unlikely that any error relating to the preclusion of testimony regarding
the specifics of the assault would have changed the result of the defen-
dant’s trial.
(Three justices dissenting in one opinion)
2. The defendant could not prevail on his claim that the trial court had
violated his sixth amendment right to confrontation and the rules of
evidence by preventing defense counsel from impeaching a state’s wit-
ness, J, with evidence of J’s prior criminal convictions; the trial court
properly excluded evidence of J’s misdemeanor larceny convictions as
too remote, as the misconduct underlying those convictions was at least
seventeen years old at the time of trial, and the court was permitted, but
not required, to find that its remoteness outweighed its probative value.
Argued March 31, 2021—officially released May 10, 2022
Procedural History
Substitute information charging the defendant with
the crimes of murder and carrying a pistol without a
permit, brought to the Superior Court in the judicial
district of New Haven, where the case was tried to the
jury before B. Fischer, J.; thereafter, the court granted
in part the state’s motion to preclude certain evidence;
verdict and judgment of guilty, from which the defen-
dant appealed to this court. Affirmed.
Jennifer B. Smith, for the appellant (defendant).
Laurie N. Feldman, deputy assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, Seth R. Garbarsky, senior assistant state’s
attorney, and Sean P. McGuinness, assistant state’s
attorney, for the appellee (state).
Opinion
KAHN, J. The defendant, Quavon Torres, appeals from
the judgment of the trial court convicting him of the crimes
of murder in violation of General Statutes § 53a-54a (a)
and carrying a pistol without a permit in violation of
General Statutes § 29-35. The defendant’s principal claim
is that the trial court improperly excluded evidence of
an assault of one of the state’s witnesses, Tasia Milton.
The defendant also claims that the trial court improp-
erly prevented him from impeaching another state’s
witness, Teresa Jones, with evidence of certain previous
criminal offenses. We disagree with both of these claims
and, accordingly, affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. On the evening of July 23, 2012, the defendant,
Freddy Pickette, and Marcus Lloyd were socializing
with the defendant’s cousin, Milton, and the defendant’s
sister, Amber Torres, in a third floor apartment located
at 543 Orchard Street in New Haven. At around 7 p.m.
that evening, Lloyd called the victim, Donald Bradley,
and asked him for a ride to a housing project in New
Haven. Shortly thereafter, the victim parked his car
outside of a CVS Pharmacy (CVS) located across the
street from the apartment, got out of the driver’s seat,
and went inside of the store. Moments later, the defen-
dant, Pickette, and Lloyd walked through the parking
lot and got into the victim’s car. Pickette sat in the front
passenger seat, Lloyd sat in the rear passenger seat,
and the defendant sat in the rear seat on the driver’s
side of the car.
A short time later, the victim exited the store and
got back into the driver’s seat, but he did not initially
notice that the defendant was the person sitting behind
him. Pickette then asked the victim to stop at a Burger
King located a short distance to the east along Whalley
Avenue. When they got to the drive-through, the victim
noticed that the defendant was in the car and told him
to get out. When the defendant refused, the victim got
out of the driver’s seat, walked around to the passenger
side of the car, opened one of the doors, and leaned
inside in order to retrieve a baseball bat from under a
seat. In response, the defendant got out of the car,
walked around the trunk toward the passenger side,
and fatally shot the victim four times.
The defendant, Pickette, and Lloyd fled the scene of
the shooting, heading back west along Whalley Avenue
and then up Orchard Street toward the third floor apart-
ment where they had previously been socializing. The
defendant and Lloyd ran into the apartment, where they
once again encountered Milton and Amber Torres. Pick-
ette split off from the others, crossed Orchard Street,
ran through the CVS parking lot, and eventually contin-
ued walking west along Whalley Avenue. Once inside
of the apartment, the defendant gave Amber Torres a
black revolver with a wooden handle and told her ‘‘to
do something with it . . . .’’ Amber Torres then picked
up the revolver using a washcloth and placed it in a
black bag.
The police arrived at the apartment soon thereafter,
surrounded the building, and instructed everyone inside
to vacate the premises. Eventually, the defendant and
Lloyd exited the building and were arrested. During a
search of the apartment, the police located a .38 caliber
black revolver with a wooden handle in a black bag.
Inside of the revolver were two live rounds and four
empty chambers. Later, ballistics testing determined
that the revolver was the gun used to shoot and kill
the victim.
The defendant was subsequently charged with, and
convicted of, the crimes of murder and carrying a pistol
without a permit. On appeal, the Appellate Court reversed
that conviction and remanded the case for a new trial.
See State v. Torres, 175 Conn. App. 138, 154, 167 A.3d
365 (reversing defendant’s conviction due to improper
in-court identification), cert. denied, 327 Conn. 958,
172 A.3d 204 (2017), cert. denied, U.S. , 138 S.
Ct. 1303, 200 L. Ed. 2d 474 (2018). The case was then
presented to a jury for a second time, and the defendant
was once again convicted of the crimes of murder and
carrying a pistol without a permit. The trial court
imposed a total effective sentence of fifty years of incar-
ceration on those charges.1 The defendant now appeals
from that conviction directly to this court pursuant to
General Statutes § 51-199 (b) (3).
I
The defendant’s first claim is that the trial court
improperly excluded evidence that Milton was physi-
cally assaulted in the days leading up to the defendant’s
first trial. Specifically, the defendant argues that evi-
dence of this assault was necessary in order to explore
Milton’s motives, interests, and bias, and that the exclu-
sion of that evidence violated the defendant’s rights
under the sixth amendment to the United States consti-
tution. The defendant, in the alternative, also implicitly
presses the underlying claim of evidentiary error. For
the reasons that follow, we reject defendant’s constitu-
tional claims and conclude that any evidentiary error
was harmless.
The following undisputed facts and procedural his-
tory are necessary to our consideration of these claims.
Before trial in the present case, the state filed a motion
in limine seeking to exclude ‘‘any and all evidence relat-
ing to an argument between . . . Pickette and . . .
Milton on August 14, 2014, and an assault [on] . . .
Milton on August 16, 2014 . . . .’’ In an accompanying
memorandum of law, the state argued that evidence
regarding the argument and the assault should be
excluded as irrelevant, inadmissible hearsay, inadmissi-
ble character evidence, and as unduly prejudicial.
Defense counsel responded that such evidence was ‘‘rel-
evant and [would go] to motive, interest, [and] bias of
. . . Milton to lie.’’
In response to the trial court’s request for an offer
of proof, Milton testified outside of the presence of the
jury as follows. Just prior to the defendant’s first trial,
Milton allegedly encountered Pickette and another indi-
vidual in the hallway of the courthouse. An argument
ensued, during which Pickette called Milton a ‘‘snitch’’
and said ‘‘they were going to whip [her ass]’’ if she
testified. Milton responded to Pickette by asking, ‘‘how
am I a snitch when we both [are] in the same predica-
ment?’’ The second individual then said to Pickette,
‘‘don’t argue with this girl, you have a sister named Ash
Black . . . .’’ Two days later, Pickette’s sister, Ashley
Black, and two other individuals ‘‘jumped’’ and ‘‘beat
on’’ Milton in New Haven. During this assault, Milton’s
assailants allegedly told her that she ‘‘should mind [her
own] business’’ and mentioned ‘‘something about [Pick-
ette] . . . .’’
Following the offer of proof, defense counsel argued
that the threat and the assault were admissible to show
Milton’s ‘‘motive, interest, bias with respect to [her]
testimony, what may or may not have been said in the
past, and . . . also . . . to [show the] state of mind
and the consciousness of guilt of . . . Pickette . . . .’’
The trial court denied the state’s motion in limine with
respect to the argument between Pickette and Milton
in the courthouse but granted the motion with respect
to the assault of Milton in New Haven. The trial court
reasoned that, because Pickette was involved in the
argument in the courthouse hallway but not the assault,
the connection between Milton’s trial testimony and
the latter was ‘‘too speculative . . . .’’ Specifically, the
trial court reasoned: ‘‘Milton just indicated that one of
these individuals said to her, mind your own business,
nothing that’s attributed to this case; that could be mind
your own business concerning a domestic [situation]
with [a] boyfriend [or] girlfriend. [It is] [f]ar too specula-
tive, so it’s not relevant evidence for this jury to hear.’’
Before the jury in the defendant’s second trial, Milton
testified that Pickette ran by 543 Orchard Street after
the shooting and tossed Lloyd the gun that was later
found by the police in the apartment. This testimony
contradicted not only Milton’s initial statement to the
police about whom she saw with the gun but also her
subsequent testimony during the defendant’s first trial.
Specifically, during her statement to the police on the
night of the shooting, Milton said that she had seen the
defendant giving the gun to Amber Torres and that she
did not see Pickette after the shooting. Notwithstanding
her initial statement to the police, Milton testified dur-
ing the defendant’s first trial that she never saw the
defendant holding the gun. Milton, however, continued
to maintain that she had not seen Pickette after the
shooting. The state offered, and the trial court subse-
quently admitted, both Milton’s statement to the police
and her testimony from the first trial as prior inconsis-
tent statements for substantive purposes pursuant to
State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert.
denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598(1986).
Milton explained that her statement to the police on
the night of the shooting implicated the defendant, her
own cousin, rather than Pickette, a person she had
never known before, because she was high, nervous,
and felt ‘‘pressured by the cops.’’ Milton also explained
that she had lied at the defendant’s first trial because
she was afraid of Pickette. Specifically, on direct exami-
nation by the prosecutor, Milton gave the following
specific testimony about Pickette’s threats and the
events that followed:
‘‘Q. . . . [Y]ou had an incident with [Pickette] the
last time you testified?
‘‘A. Yes.
‘‘Q. And was that here in court?
‘‘A. Yes.
‘‘Q. Where did that happen?
‘‘A. In the hallway.
‘‘Q. In the hallway. And what happened? Tell the jury
what happened there.
‘‘A. We had an argument.
‘‘Q. You and [Pickette]?
‘‘A. Yes.
‘‘Q. Tell us what happened.
‘‘A. I don’t remember what happened, I just know
that me and him had an argument, it got ugly from there.
‘‘Q. . . . [W]as it physical; did anyone hit anybody?
‘‘A. Close enough.
‘‘Q. Well, that’s not the question, ma’am. Did anyone
hit anybody else?
‘‘A. No.
‘‘Q. Okay. And you had said previously that you had
been threatened?
‘‘A. Yes.
‘‘Q. . . . [T]ell the jury how you got threatened.
‘‘A. He threatened me in the hallway, saying he was
going to have someone come beat my ass.
‘‘Q. Um-Hm.
‘‘A. They didn’t come. They seen me on the street and
then that’s when it happened.’’ (Emphasis added.)
Notwithstanding the trial court’s evidentiary ruling
earlier that same day relating to the assault, neither
the prosecutor nor defense counsel objected to this
testimony.
A
The defendant’s primary contention in this appeal is
that the trial court’s exclusion of evidence related to the
assault of Milton violated his sixth amendment rights
to present a defense and to confront the witnesses
against him. We disagree.
The following principles govern our review of the
defendant’s constitutional claims. ‘‘It is fundamental
that the defendant’s rights to confront the witnesses
against him and to present a defense are guaranteed
by the sixth amendment to the United States constitu-
tion . . . [which is] made applicable to state prosecu-
tions through the due process clause of the fourteenth
amendment.’’ (Internal quotation marks omitted.) State
v. Holley, 327 Conn. 576, 593, 175 A.3d 514 (2018). A
criminal defendant’s ‘‘right to present a defense is the
right to present the defendant’s version of the facts as
well as the prosecution’s to the jury so that it may
decide where the truth lies. . . . Therefore, exclusion
of evidence offered by the defense may result in the
denial of the defendant’s right to present a defense.’’
(Internal quotation marks omitted.) Id., 593–94.
‘‘Although [t]he general rule is that restrictions on
the scope of cross-examination are within the sound
discretion of the trial [court] . . . this discretion
comes into play only after the defendant has been per-
mitted cross-examination sufficient to satisfy the sixth
amendment. . . . The constitutional standard is met
when defense counsel is permitted to expose to the
jury the facts from which [the] jurors, as the sole triers
of fact and credibility, could appropriately draw infer-
ences relating to the reliability of the witness. . . .
Indeed, if testimony of a witness is to remain in the
case as a basis for conviction, the defendant must be
afforded a reasonable opportunity to reveal any infirmi-
ties that cast doubt on the reliability of that testimony.’’
(Internal quotation marks omitted.) State v. Leconte,
320 Conn. 500, 511, 131 A.3d 1132 (2016).
‘‘[W]hether a trial court’s . . . restriction of a . . .
[witness’] testimony in a criminal trial deprives a defen-
dant of his [constitutional] right to present a defense
is a question that must be resolved on a [case-by–case]
basis. . . . The primary consideration in determining
whether a trial court’s ruling violated a defendant’s right
to present a defense is the centrality of the excluded
evidence to the claim or claims raised by the defendant
at trial.’’ (Internal quotation marks omitted.) State v.
Andrews, 313 Conn. 266, 276, 96 A.3d 1199 (2014). In
order to determine whether a defendant’s constitutional
right to cross-examination has been satisfied, ‘‘[w]e con-
sider the nature of the excluded inquiry, whether the
field of inquiry was adequately covered by other ques-
tions that were allowed, and the overall quality of the
cross-examination viewed in relation to the issues actu-
ally litigated at trial.’’ (Internal quotation marks omit-
ted.) State v. Leconte, supra, 320 Conn. 512.
On the basis of our thorough review of the record
before us, we conclude that the exclusion of the assault
evidence did not infringe on either the defendant’s right
to present a defense or his right to confront Milton.
The defendant was permitted to present his version of
the events to the jury and to elicit the essential facts
from which the jury could assess Milton’s credibility,
which is what the constitution requires under these
circumstances. The defendant’s third-party culpability
defense was, indeed, central to his theory of the case,
but the jury heard Milton’s testimony that Pickette was
the one with the black revolver that day. Milton also
testified that she initially lied to the police because
she was high and felt pressured, that she lied at the
defendant’s first trial because of Pickette’s threats, and
that she was, at the defendant’s second trial, telling
the truth.
Because defense counsel was permitted to cross-
examine Milton about her motive for testifying falsely
at the defendant’s first trial and to elicit testimony impli-
cating Pickette, the trial court’s exclusion of evidence
pertaining to the assault did not violate the defendant’s
sixth amendment rights. See, e.g., State v. Jordan, 329
Conn. 272, 287 n.14, 186 A.3d 1 (2018) (concluding that
‘‘[t]he constitutional right to present a defense does
not include the right to introduce any and all evidence
claimed to support it’’ and that no constitutional viola-
tion occurred when ‘‘the trial court’s exclusion of evi-
dence . . . did not prevent the defendant from present-
ing other evidence that supported his theory of
[defense]’’). As a result, defendant’s constitutional
claims must fail.
B
We turn next to the underlying claim of evidentiary
error. Assuming, without deciding, that the trial court
improperly precluded additional testimony relating to
the assault of Milton, we conclude that the defendant
has failed to meet his burden of proving harm.2 Specifi-
cally, we conclude that the accounts provided by wit-
nesses to the shooting itself, video surveillance footage
from various security cameras in the surrounding area
corroborating those observations, and Milton’s state-
ment to the police implicating the defendant, which
was made prior to Pickette’s threats and the assault,
considered together in the context of the record before
us as a whole, make it unlikely that any error relating
to the preclusion of further testimony about the assault
of Milton would have changed the result of the defen-
dant’s trial.
‘‘[W]hether [an improper ruling] is harmless in a par-
ticular case depends [on] a number of factors, such as
the importance of the witness’ testimony in the [defen-
dant’s] case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise per-
mitted, and, of course, the overall strength of the prose-
cution’s case. . . . Most importantly, we must examine
the impact of the . . . evidence on the trier of fact
and the result of the trial.’’ (Internal quotation marks
omitted.) State v. Fernando V., 331 Conn. 201, 215, 202
A.3d 350 (2019). Because this inquiry is evidentiary in
nature, rather than constitutional, the defendant bears
the burden of proving that the trial court’s exclusion
of evidence substantially swayed the jury’s verdict. Id.Specifically, in order to prevail, the defendant must
establish two distinct points: (1) that Milton’s various
statements about the events at 543 Orchard Street could
have influenced the course of the jury’s deliberations,
and (2) that additional evidence about the assault of
Milton, in particular, could have caused the jury to
consider those statements in a different light.
In the present case, the state adduced testimony from
two particular witnesses who were present at the scene
of the shooting itself. The first of those witnesses,
Lachell Hall, testified that she saw a car pull into the
drive-through lane of a Burger King shortly before the
shooting. She saw her nephew, Pickette, seated in the
front passenger seat, wearing a black shirt.3 Hall testi-
fied that there were two other people in the car, one
seated behind the victim wearing a ‘‘[d]arker shirt’’ that
‘‘could’ve been . . . black,’’ and another behind Pick-
ette wearing a red shirt, but she apparently did not
recognize either of them.
Hall testified that she greeted Pickette through a par-
tially opened window as the victim’s car was pulling
up to the drive-through and that Pickette responded,
‘‘hey, Chell . . . .’’ After the car came to a stop next
to the menu board, Hall saw the victim get out of the
driver’s seat and walk around the car, behind the trunk.
Hall testified that the victim then opened a door on the
passenger side of the car and bent over to reach inside
for something. She was walking toward the car at the
time and was only about twenty feet away when ‘‘some-
body got out [of] the back seat, [who] was behind [the
victim], and shot him . . . .’’ According to Hall, both
Pickette and the person wearing the red shirt were still
seated on the passenger side of the car when those shots
were fired. Although Hall testified on cross-examination
that she did not see the gun or exactly where the shots
had come from, she stated that the person she had
identified as the rear driver’s side occupant had walked
around to the rear of the car and was standing with his
back to her at the moment of the shooting.
Hall’s testimony about the initial positions of these
individuals in the car was corroborated by video surveil-
lance footage from a security camera located outside
of a nearby CVS. Footage from that camera before the
shooting shows (1) the victim’s car pulling into the CVS
parking lot and the victim exiting the driver’s seat and
walking into the CVS, (2) a person in a red shirt and
shorts getting into the rear passenger side seat, (3) a
person in a darker colored shirt, white shoes, and long
pants getting into the rear driver’s side seat, (4) a person
wearing a black shirt with a white logo and shorts
getting into the front passenger seat, and (5) shortly
thereafter, the victim getting back into the driver’s seat
and the victim’s car pulling out of the parking lot.
Minutes after the shooting, video surveillance footage
from that same store showed the person in the black
shirt with the white logo and shorts crossing Orchard
Street, running through the parking lot, and then walk-
ing west along Whalley Avenue. Because there is no
dispute that the person running through the parking lot
in this video recording was Pickette,4 the jury could
have easily inferred that Hall had correctly identified
him as the occupant in the front passenger seat of the
victim’s car.
A second eyewitness, Jones, was walking from a gro-
cery store located on the other side of Whalley Avenue
to the Burger King with five of her children. As they
were about to cross the street, Jones saw ‘‘some guys’’
standing around a car parked at the Burger King drive-
through. Jones indicated that one of those people was
wearing a red shirt and khakis and that another was
wearing a ‘‘Canadian blue’’ shirt and jeans. Jones
expressly testified that the person wearing the blue shirt
‘‘pulled out his gun and started shooting.’’ Specifically,
Jones told the jury that the shooter ‘‘was around the
back of the vehicle, more near the passenger side,’’ that
she witnessed the shooter extending his arm to fire, and
that she heard approximately five shots. Jones further
testified that Pickette, whom she knew and recognized,
was not the shooter.
Although the accounts provided by Hall and Jones
differed in some respects, the description of the appear-
ance and movements of the shooter that they provided
to the jury both clearly implicated the defendant. Hall’s
testimony that the shooter had been seated directly
behind the victim, in conjunction with video surveil-
lance footage from the CVS parking lot, tends to excul-
pate the two people who were seated on the passenger
side of the car. Although Hall testified that the shooter’s
shirt ‘‘could’ve been . . . black,’’ she also testified that
Pickette, the only other person who was wearing a
black shirt that day, was not the shooter. Likewise,
Jones’ testimony that the shooter was wearing a ‘‘Cana-
dian blue’’ shirt and long pants was sufficiently specific
to exclude the other potential suspects inside of the
car.5 Video surveillance footage from a Subway restau-
rant moments after the shooting clearly shows the three
men who had previously entered the victim’s car in the
CVS parking lot running away from the scene of the
shooting in the following order: first, a man wearing a
black shirt and shorts, second, a man wearing a red
shirt and shorts, and, third, a man wearing long pants
and a shirt consistent with the ‘‘Canadian blue’’ descrip-
tion provided by Jones. A conclusion that the person
standing near the trunk had shot the victim, who was
reaching into the passenger side of the car at the time,
is, likewise, consistent with the absence of stippling6
and the presence of blood on the inside of the rear
passenger door of the victim’s vehicle. Finally, the
observations of the shooter provided by both Hall and
Jones were also consistent with the initial statements
provided by Pickette and Lloyd to the police shortly
after the murder, which were admitted into evidence
at trial pursuant to Whelan.7 Milton’s observations on
the day of the murder were, by contrast, related only
to the events at 543 Orchard Street. Those observations,
although relevant, are less probative with respect to
the identity of the shooter than those from the eyewit-
nesses to the shooting itself.
The fact that Milton’s initial statement to the police,
which predated both Pickette’s threats and the subse-
quent assault, failed to implicate Pickette provides
another reason to conclude that any evidentiary error
was harmless.8 In order for the jury to have credited
Milton’s testimony in the present case that Pickette had
brought the gun back to 543 Orchard Street, it would
have had to conclude that Milton lied during her initial
statement to the police when she said that it was the
defendant who brought the gun back to the apartment
after the shooting. Even if the defendant had been
allowed to produce additional evidence to show that
the assault of Milton had made her afraid to implicate
Pickette at the first trial, that same fear would not have
explained why, in her previous statement to the police,
she chose to implicate the defendant, her own cousin,
and not Pickette, a person she had not previously
known.
In summary, we conclude that the defendant has not
satisfied his burden of proving that the trial court’s
evidentiary error substantially swayed the jury’s ver-
dict. In our view, the accounts of the shooting from
Hall, Jones, Lloyd, and Pickette, the video surveillance
footage from security cameras in the surrounding area
corroborating those accounts, and Milton’s statement
to the police, which implicated the defendant and pre-
dated both Pickette’s threats and the subsequent assault,
considered together, make it unlikely that additional
evidence about the specifics of the assault would have
caused the jury to have reached a different result. For
these reasons, the defendant’s claim of evidentiary error
must also fail.
II
The defendant’s second claim is that the trial court
violated both his sixth amendment right to confronta-
tion and our rules of evidence by preventing him from
impeaching Jones with evidence of certain prior crimi-
nal convictions. We disagree.
The following additional facts and procedural history
are relevant to our resolution of this claim. As explained
in part I B of this opinion, Jones was an eyewitness to
the victim’s murder. At trial, defense counsel sought to
impeach Jones with her prior criminal history, which
consisted of a felony assault conviction in 1997, and
three misdemeanor larceny convictions in 2002. In par-
ticular, defense counsel claimed that the facts underly-
ing Jones’ 2002 larceny convictions were relevant to
her character for truth and veracity. The prosecutor
responded that ‘‘the underlying facts would certainly
be collateral’’ and were ‘‘well beyond’’ the ten year
limitation on the admissibility of prior criminal convic-
tions. The trial court granted the state’s motion to
exclude Jones’ criminal history on the ground ‘‘that
these three matters are too remote in time. A felony
conviction from 1997 is twenty-two years old, [and the
convictions for] issuing a bad check [in] 2002, [are]
seventeen years old. They’re too remote in time, so I
will not allow inquiries on that.’’ See Conn. Code. § Evid.
6-7 (providing that witness may be impeached by ‘‘[a]
crime . . . punishable by imprisonment for more than
one year’’ and that ‘‘the court shall consider,’’ among
other things, ‘‘the remoteness in time of the conviction’’).
On appeal, the defendant renews his claim that the
exclusion of Jones’ 2002 misdemeanor larceny convic-
tions was improper because these convictions were
relevant to Jones’ character for truth and veracity. The
defendant further argues that he was deprived of his
sixth amendment right to confront Jones because ‘‘[h]e
was foreclosed from exposing the jury to facts from
which it could have appropriately drawn inferences
relating to the reliability of Jones’ eyewitness account.’’
The state does not dispute that the evidence was rele-
vant to impeach Jones’ credibility but, instead, argues
that ‘‘[t]he trial court properly excluded [it] on the
grounds of remoteness.’’ We agree with the state.
We begin our analysis with the admissibility of the
challenged evidence under the Connecticut Code of
Evidence. See, e.g., State v. Annulli, 309 Conn. 482,
491, 71 A.3d 530 (2013). Sections 4-4 and 6-6 of the
Connecticut Code of Evidence govern whether wit-
nesses may be asked about specific conduct in order to
impeach their character for truthfulness. ‘‘These rules
[prevent] the use of a general trait of character or pro-
pensity to prove that a person acted that way on a
specific occasion . . . but make an exception for evi-
dence of a witness’ character for untruthfulness. Subdi-
vision (3) [of § 4-4 (a)] authorizes the court to admit
evidence of a witness’ character for untruthfulness or
truthfulness to attack or support that witness’ credibil-
ity. . . . Section 6-6 addresses the admissibility of such
evidence and the appropriate methods of proof. . . .
Specifically, § 6-6 (b) (1) permits the questioning of a
witness about instances of the witness’ conduct if the
conduct is probative of the witness’ veracity. Conn. Code
Evid. § 6-6 (b) (1) ([a] witness may be asked, in good
faith, about specific instances of conduct of the witness,
if probative of the witness’ character for untruthfulness).
‘‘[T]he right to cross-examine a witness pertaining to
specific acts of misconduct is limited in three distinct
ways. . . . First, cross-examination may only extend
to specific acts of misconduct other than a felony con-
viction if those acts bear a special significance [on] the
issue of veracity. . . . Second, [w]hether to permit
cross-examination as to particular acts of misconduct
. . . lies largely within the discretion of the trial court.
. . . Third, extrinsic evidence of such acts is inadmissi-
ble.’’ (Citations omitted; internal quotation marks omit-
ted.) State v. Rivera, 335 Conn. 720, 730, 240 A.3d 1039(2020). Under the second limitation, which is the pro-
viso at issue in the present case, even if specific acts
of misconduct are indicative of a witness’ lack of truth-
fulness and veracity, ‘‘[i]t does not follow . . . that
. . . the court must permit the cross-examination. . . .
In considering whether the court abused its discretion
in this regard, the question is not whether any one of
us, had we been sitting as the trial judge, would have
exercised our discretion differently. . . . Rather, our
inquiry is limited to whether the trial court’s ruling was
arbitrary or unreasonable.’’ (Citation omitted; internal
quotation marks omitted.) Id., 731; see also State v.
Martin, 201 Conn. 74, 88, 513 A.2d 116 (1986) (trial
court has discretionary authority to disallow cross-exam-
ination on specific acts of misconduct if it determines
that prejudicial effect of evidence outweighs its proba-
tive value). ‘‘We will make every reasonable presump-
tion in favor of upholding the trial court’s ruling, and
only upset it for a manifest abuse of discretion.’’ (Inter-
nal quotation marks omitted.) State v. Cecil J., 291
Conn. 813, 818, 970 A.2d 710 (2009).
We conclude that the trial court did not abuse its
discretion in excluding the 2002 misdemeanor larceny
convictions as too remote. The more remote a witness’
specific acts of misconduct, the less probative they are
of the witness’ current character for truth and veracity.
Indeed, we previously have observed that remoteness
alone, apart from any other consideration, may justify,
although not require, the exclusion of specific acts of
misconduct. Vogel v. Sylvester, 148 Conn. 666, 676, 174
A.2d 122 (1961); see also, e.g., State v. James, 211 Conn.
555, 571–72, 560 A.2d 426 (1989) (‘‘[e]ven if the evidence
did involve untruthfulness, the court was well within
its discretion in excluding it because of its remoteness
in time, its minimal bearing on credibility, and its ten-
dency to inject a collateral issue into the trial’’); State
v. Morgan, 70 Conn. App. 255, 274, 797 A.2d 616(‘‘[a]lthough inquiry into . . . [specific] acts [of mis-
conduct] might have borne on the issue of [the witness’]
credibility, the court was free to determine, as it did,
that the remoteness of the acts tended to outweigh their
probative value’’), cert. denied, 261 Conn. 919, 806 A.2d
1056 (2002); E. Prescott, Tait’s Handbook of Connecti-
cut Evidence (6th Ed. 2019) § 6.28.4, p. 390 (‘‘even if
the conduct does relate to veracity, the court still has
discretion to exclude it if the evidence has slight rele-
vance due to remoteness in time or other considera-
tions’’). The misconduct underlying Jones’ 2002 misde-
meanor larceny convictions was at least seventeen
years old at the time of trial, and, under these circum-
stances, the trial court was permitted, but not required,
to find that its remoteness outweighed its probative
value. We therefore reject the defendant’s claim that
the trial court abused its discretion in excluding the
challenged evidence.9
The judgment is affirmed.
In this opinion ROBINSON, C. J., and MULLINS and
KELLER, Js., concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Robinson and Justices McDonald, D’Auria,
Kahn, and Ecker. Thereafter, Justices Mullins and Keller were added to the
panel and have read the briefs and appendices, and listened to a recording
of the oral argument prior to participating in this decision.
1
The trial court sentenced the defendant to fifty years of incarceration
for the crime of murder and a concurrent sentence of five years of incarcera-
tion for the crime of carrying a pistol without a permit, for a total effective
sentence of fifty years of incarceration.
2
As a result, we forgo any analysis of questions, such as relevancy, relating
to the predicate question of admissibility. See Conn. Code Evid. § 4-1. We
likewise note that, in the present appeal, the defendant has raised no claims
with respect to either the sufficiency of the state’s evidence or the third-
party culpability instruction provided to the jury.
3
Hall testified that she referred to Pickette as her nephew because her
brother had children with Pickette’s mother.
4
The defendant and Lloyd, who was wearing a red shirt, were arrested
at 543 Orchard Street shortly after the shooting. At trial, Pickette also
identified himself as the person running through the CVS parking lot on the
video recording.
5
Pickette was wearing a black shirt, and Lloyd was wearing a red shirt.
Both of those two men were wearing shorts.
6
At trial, Susan Williams, a physician employed by the Office of the Chief
Medical Examiner, testified that she conducted the victim’s autopsy and
had observed no stippling during the course of her examination. Williams
stated that this observation tended to indicate that the barrel of the gun
was more than two feet away from the victim at the time of the shooting.
7
Indeed, it is a rare case in which the jury is provided with direct testimony
from a witness who is able to give a comprehensive, detailed account of
all of the events surrounding a murder. More commonly, evidence is derived
from a variety of sources, such as in-court testimony and Whelan statements,
that are not perfectly consistent in all respects. The fact that the state’s case
required a comparison of multiple statements does not, however, compel
the conclusion that the evidence against the defendant was weak.
8
By referring to Milton as a ‘‘snitch’’ and telling her to mind her own
business, it is just as plausible that Pickette was trying to prevent Milton
from implicating the defendant. Indeed, it was only after the assault that
Milton began denying that she had seen the defendant with the gun on the
day of the shooting. This understanding is consistent with (1) the fact that
both Pickette and Lloyd initially declined to identify the defendant as the
shooter at his first trial; see State v. Torres, supra, 175 Conn. App. 152; (2)
Pickette’s and Lloyd’s inability to recall particular details of the shooting
in the present trial and the subsequent admission of their initial statements
to the police, which implicated the defendant, pursuant to Whelan, and (3)
Milton’s testimony during the offer of proof in the present case that she
viewed herself as being in ‘‘the same predicament’’ as Pickette, namely,
being called to testify against the defendant.
9
The defendant also claims that he is entitled to a new trial because of
prosecutorial impropriety. Specifically, the defendant claims that he was
deprived of a fair trial because the prosecutor made the following three
statements in his rebuttal summation: (1) ‘‘[t]he shooter was seen on multiple
occasions by multiple witnesses behind the driver’s seat of this vehicle,’’
(2) ‘‘[t]he shooter happened to be wearing a blue shirt and grey sweatpants
that night,’’ and (3) ‘‘[b]lue shirt, how they ran after-the-fact, arm extended;
all of those are consistent . . . .’’
None of these arguments rises to the level of prosecutorial impropriety.
The first argument is adequately supported by Hall’s testimony that ‘‘some-
body got out the back seat that was behind [the victim] and shot him’’ and
the initial statements given by Pickette and Lloyd to the police. The factual
assertions in the second argument, likewise, can reasonably be inferred
from Milton’s description of the defendant’s attire on that day, Jones’ testi-
mony that the shooter was wearing a blue shirt and long pants, and the
undisputed fact that both Pickette and Lloyd were wearing shorts. Finally,
although the defendant correctly notes that the third argument failed to
expressly distinguish between Jones’ testimony that the shooter’s shirt was
‘‘Canadian blue’’ and Hall’s testimony that the shooter’s shirt was ‘‘[d]arker’’
and ‘‘could’ve been . . . black,’’ the prosecutor had already expressly
acknowledged that distinction in his initial summation, stating: ‘‘Now,
granted, [Hall] tells the police that night that she thinks the shooter or the
person that got out of the back driver’s side is wearing a darker shirt or a
black shirt, she’s not exactly sure. She certainly wasn’t expecting to see a
shooting. It’s understandable that she might mess up a few details, but she
testifies that it was a dark colored shirt. Blue is a darker color.’’
Moreover, even if we were to agree that the prosecutor’s arguments were
imprecisely worded, none of the challenged statements drew an objection
from defense counsel or was repeated. See State v. Williams, 204 Conn.
523, 540, 529 A.2d 653 (1987). The jury was also clearly instructed that
representations made by counsel during closing summations were not to
be considered as evidence and that it was the jury’s recollection of the
facts—not those of the attorneys—that controlled. As a result, we conclude
that the defendant has failed to meet his burden of demonstrating that the
alleged improprieties so infected the trial with unfairness as to deprive him
of his constitutional right to a fair trial. See, e.g., State v. Luster, 279 Conn.
414, 442, 902 A.2d 636 (2006).