State v. Raynor ( 2021 )

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STATE v. RAYNOR—CONCURRENCE
D’AURIA, J., with whom PALMER and MULLINS,
Js., join, concurring. I agree with and join the majority
opinion. In particular, I agree with the majority that
the trial court improperly refused to conduct a hearing
pursuant to State v. Porter, 241 Conn. 57, 80–90, 698
A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct.
1384, 140 L. Ed. 2d 645 (1998), and that the inclusion
of the contested expert evidence substantially affected
the verdict. Specifically, I agree that the trial court
abused its discretion by relying on the holding of State
v. Legnani, 109 Conn. App. 399, 421, 951 A.2d 674, cert.
denied, 289 Conn. 940, 959 A.2d 1007 (2008), to deny the
defendant, Donald Raynor, a Porter hearing. Moreover,
I agree that a separate trial court’s ruling in State v.
Terrell, Superior Court, judicial district of New Haven,
Docket No. CR-XX-XXXXXXX-S (March 21, 2019) (68 Conn.
L. Rptr. 323), which has not been subject to appellate
scrutiny, cannot save the trial court’s ruling in the pres-
ent case. See footnote 13 of the majority opinion and
accompanying text. I write separately to raise an issue
regarding the proper remedy in cases like this one in
which the trial court improperly refuses to hold a Porter
hearing. I believe there is an argument that this error
can be cured by a limited remand for a Porter hearing,
with the vacatur of the trial court’s judgment following
only if the trial court ultimately finds the contested
expert evidence inadmissible.
This court previously has held that, when the trial
court conducts a Porter hearing but abuses its discre-
tion by admitting or precluding the expert evidence,
the proper remedy is a new trial if the admission of the
expert evidence substantially affected the verdict. See,
e.g., Maher v. Quest Diagnostics, Inc., 269 Conn. 154,
157 n.4, 182–83, 847 A.2d 978 (2004). The reason for
such a remedy is logical: the record establishes that
the inadmissible evidence infected the trial court’s judg-
ment. Likewise, this court also has remanded a case
for a new trial when the trial court improperly refused
to hold a Porter hearing at all, and the expert evidence
substantially affected the verdict, although the court
could not determine whether the evidence was inadmis-
sible. See Prentice v. Dalco Electric, Inc., 280 Conn.
336, 339, 907 A.2d 1204 (2006) (‘‘We conclude that the
testimony in question was scientific evidence that
required a validity assessment designed to ensure relia-
bility pursuant to our analysis in Porter. Accordingly,
we reverse the judgment of the trial court and remand
the case for a new trial.’’), cert. denied, 549 U.S. 1266,
127 S. Ct. 1494, 167 L. Ed. 2d 230 (2007). The reason
for a new trial in this second scenario, however, is not
as clear to me. This court has not had the opportunity
to determine whether a different remedy is required.
In a future case, I would entertain an argument that,
once an appellate court determines that the trial court
improperly refused to conduct a Porter hearing and the
contested expert evidence substantially affected the
verdict, a new trial is not automatically the proper rem-
edy but that, instead, we can direct the trial court on
remand to hold the Porter hearing, even postjudgment.
If the expert witness’ methodology does not pass mus-
ter, then the trial court would have to vacate the convic-
tion and order a new trial. If the methodology passes
muster, however, the judgment of conviction would
remain intact. After the Porter hearing, however, the
defendant could appeal the trial court’s ruling confirm-
ing the admissibility of the evidence.
I recognize, however, that it is not appropriate in the
present case to address or decide this issue for two
reasons. First, under current law, which neither party
contests or asks us to overrule, this court has deter-
mined that a remand for a new trial is the proper remedy
when the trial court improperly refused to hold a Porter
hearing and the admission of the expert testimony sub-
stantially affected the verdict. Second, neither party has
raised or briefed whether a remand for a Porter hearing
is the appropriate remedy, before this court or the
Appellate Court. I therefore agree with the majority’s
determination to remand the present case for a new
trial.
I now turn to our case law. In Prentice v. Dalco
Electric, Inc., supra, 280 Conn. 345–47, a civil case, this
court held that the trial court incorrectly determined
that expert testimony by a mechanical and forensic
engineer regarding the effect of wind conditions was
not scientific, and, thus, the court improperly refused
to conduct a Porter hearing. After determining that this
error substantially affected the verdict, this court
remanded the case for a new trial. Id., 359–61. My
research has not turned up a criminal case from this
court or the Appellate Court in which the trial court
improperly refused to hold a Porter hearing and that
error substantially affected the verdict, but it would
have to follow that a new trial would be the remedy in
criminal cases as well.1
Additionally, a remand for a new trial is the majority
rule under jurisprudence regarding Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993), the federal analogue to
Porter. See, e.g., Dodge v. Cotter Corp., 328 F.3d 1212,
1229 (10th Cir.) (when trial court fails to conduct Daub-
ert hearing, proper remedy is new trial, not remand for
Daubert hearing), cert. denied, 540 U.S. 1003, 124 S. Ct.
533, 157 L. Ed. 2d 408 (2003); cf. Goebel v. Denver &
Rio Grande Western Railroad Co., 215 F.3d 1083, 1089
(10th Cir. 2000) (explaining that, when trial court fails
to conduct Daubert hearing, there are two possible
remedies: new trial, or, if record is sufficient to deter-
mine reliability, appeals court may undertake its own
Daubert analysis).
There is at least one court that has recognized that
a limited remand for a Porter hearing may be the proper
remedy in certain instances, however. See United States
v. Bacon, 979 F.3d 766, 770 (9th Cir. 2020) (en banc)
(overruling prior case law that required reviewing court
to remand case for new trial if trial court improperly
failed to hold Daubert hearing and holding instead that,
‘‘when a panel of [the Ninth Circuit] concludes that [a]
district court has committed a [nonharmless] Daubert
error, the panel has discretion to impose a remedy ‘as
may be just under the circumstances,’ ’’ including order-
ing limited remand); see United States v. Bacon, 829
Fed. Appx. 247, 248 (9th Cir. 2020) (directing District
Court on remand to conduct whatever proceedings it
deems appropriate to determine whether expert testi-
mony was admissible pursuant to Daubert); see also
Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457,
468–69 (9th Cir.) (Nguyen, J., concurring in part and
dissenting in part) (questioning majority’s remedy of
new trial and urging conditional vacating of judgment
and remand to District Court to conduct Daubert deter-
mination in first instance), cert. denied, 574 U.S. 815,
135 S. Ct. 55, 190 L. Ed. 2d 30 (2014); Estate of Barabin
v. AstenJohnson, Inc., supra, 471, (Nguyen, J., concur-
ring in part and dissenting in part) (remand for Daubert
hearing is better remedy because it does not unreason-
ably burden judicial system by requiring new trial and
because, in absence of Daubert hearing, reviewing court
cannot determine whether expert testimony was inad-
missible and, thus, cannot conduct harmless error anal-
ysis). In the present case, the trial court erred by failing
to exercise its discretion. A limited remand for a Porter
hearing could remedy that error, requiring a new trial
only if the expert witness’ methodology does not pass
muster. This procedure may be a more efficient use of
judicial resources than requiring new trials in all cases
involving the improper refusal to conduct a Porter hear-
ing. ‘‘If the disputed expert testimony was admissible
pursuant to . . . [Porter], despite the [trial] court’s fail-
ure to fulfill its gatekeeping function, then no harm, no
foul. On the other hand, if the testimony was inadmissi-
ble, then a . . . [new trial would be required].’’
(Emphasis added.) Estate of Barabin v. AstenJohnson,
Inc., supra, 469 (Nguyen, J., concurring in part and
dissenting in part).
For similar efficiency reasons, this court has
employed this exact procedure to remedy errors in
other criminal cases that are at least arguably analo-
gous. For example, in State v. Jarzbek, 204 Conn. 683,
684, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061,
108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988), a case involving
sexual abuse of a minor victim, the state requested and
was granted permission to exclude the defendant from
the witness room during the videotaping of the minor
victim’s testimony. After a jury found the defendant
guilty, he appealed, arguing that this violated his consti-
tutional right to confrontation. Id., 690. This court held
that, ‘‘in criminal prosecutions involving the alleged
sexual abuse of children of tender years, the practice
of videotaping the testimony of a minor victim outside
the physical presence of the defendant is, in appropriate
circumstances, constitutionally permissible’’ but that
the trial court first ‘‘must determine, at an evidentiary
hearing, whether the state has demonstrated a compel-
ling need for excluding the defendant from the witness
room during the videotaping of a minor victim’s testi-
mony.’’ Id., 704. Because the trial court did not conduct
this hearing prior to granting the state’s request, this
court remanded the case for an evidentiary hearing,
explaining that, ‘‘[i]f the [trial] court concludes that the
state has not met its burden of proving such a need by
clear and convincing evidence, the defendant is entitled
to a new trial from which the videotaped testimony of
[the victim] must be excluded. If the court concludes
that the state has met its burden, the defendant’s convic-
tion must stand, subject to any further appeal by the
defendant to this court concerning the validity of the
trial court’s ruling on this issue.’’ Id., 708.
Similarly, when this court has determined that the
trial court improperly failed to conduct or apply the
proper standard for a competency hearing, this court
has remanded the case for a competency hearing and
required a new trial only if the trial court determines
on remand that the defendant was incompetent to stand
trial at the time of the trial. See State v. Connor, 292
Conn. 483, 528–29, 533, 973 A.2d 627 (2009). Likewise,
this court has determined that, when the trial court
improperly failed to conduct a hearing pursuant to Bat-
son v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed.
2d 69 (1986), and the circumstances surrounding the
voir dire can be reconstructed, a limited remand for a
Batson hearing is the appropriate remedy, not a new
trial. See State v. Rigual, 256 Conn. 1, 12–13, 771 A.2d
939 (2001). Additionally, this court has remanded cases
for hearings pursuant to Brady v. Maryland, 373 U.S.
83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), conditioning
the need for any new trial on the outcome of the Brady
hearing. See State v. Pollitt, 205 Conn. 132, 134–37, 531
A.2d 125 (1987).2
In these cases, a reversal of the conviction followed
only if the trial court on remand found that reversible
error occurred. This is not unlike ordering a trial court
to make findings by way of an articulation while an
appeal is pending in our court, the only difference being
that, procedurally, we would actually remand the matter
rather than simply order an articulation. Even the rules
for articulations prompted by a party’s motion contem-
plate situations in which a trial court might take further
evidence. See Practice Book § 66-5 (‘‘[i]f any party
requests it and it is deemed necessary by the trial court,
the trial court shall hold a hearing at which arguments
may be heard, evidence taken or a stipulation of counsel
received and approved’’).
There might be contrary arguments I have not consid-
ered. But the state and the public have an interest in
preserving convictions otherwise fairly arrived at. In
light of the case law previously discussed, I would enter-
tain an argument in a future case that such a procedure
should be undertaken when the trial court improperly
refuses to conduct a Porter hearing. Until a Porter hear-
ing is held, we do not know if the defendant’s trial was
tainted and, thus, do not know whether a new trial is
required.
Nevertheless, in light of our current law and the fact
that the appropriate scope of the remedy has not been
argued by the parties, I agree with the majority that we
must remand the present case for a new trial.
1
This is supported by this court’s recent decision in State v. Edwards,
325 Conn. 97, 133–34, 156 A.3d 506 (2017), in which we held that the trial
court improperly refused to hold a Porter hearing but that this failure was
harmless, as it did not substantially affect the verdict. Nevertheless, in
discussing the applicable standard of review and legal principles, we stated
that a new trial would be required only if the defendant showed that the
error substantially affected the verdict, citing to cases involving improper
evidentiary rulings that did not involve Porter. Id., 123 (‘‘ ‘[i]f we determine
that a court acted improperly with respect to the admissibility of expert
testimony, we will reverse the trial court’s judgment and grant a new trial
only if the impropriety was harmful to the appealing party’ ’’); id. (quoting
Weaver v. McKnight, 313 Conn. 393, 405, 97 A.3d 920 (2014), which involved
trial court’s improper exclusion of expert testimony on ground that experts
lacked sufficient qualifications). This at least suggests that a remand for a
new trial would have been the proper remedy under current law if the
defendant had proven harm.
2
In State v. Snook, 210 Conn. 244, 555 A.2d 390, cert. denied, 492 U.S.
924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989), this court explained that it
has ‘‘on several occasions remanded a case for the limited purpose of
conducting an evidentiary hearing necessary for appellate review of a claim.
See, e.g., State v. Badgett, 200 Conn. 412, 433–34, 512 A.2d 160 [(remanding
case for factual hearing to determine whether illegally discovered evidence
was admissible under recently articulated inevitable discovery rule), cert.
denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986)]; State v. Pollitt,
199 Conn. 399, 415–16, 508 A.2d 1 (1986) (remanding case for factual hearing
to determine whether state suppressed exculpatory evidence); cf. State v.
Garrison, 199 Conn. 383, 388–89, 507 A.2d 467 (1986) ([when] court [was]
unable to determine from record whether state established defendant’s guilt
beyond reasonable doubt, court ordered remand for further articulation of
trial court’s grounds for rejecting defendant’s defenses).’’ State v. Snook,
supra, 254.