State v. Raynor ( 2021 )

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STATE OF CONNECTICUT v. DONALD RAYNOR
(SC 20183)
Robinson, C. J., and Palmer, McDonald,
D’Auria, Mullins and Kahn, Js.*
Syllabus
Convicted, after a jury trial, of the crime of murder in connection with the
shooting death of the victim, the defendant appealed. The defendant
and the victim were members of rival street gangs in Hartford. On the
day of the shooting, the defendant called R, another member of his
gang, and told him that he wanted to test an assault rifle. R drove with
the defendant through areas of Hartford frequented by members of the
victim’s gang, and, as R drove, the defendant shot at the victim and
killed him. Thirteen months later, the police recovered an assault rifle
in connection with an unrelated investigation, and the state’s expert
witness, S, a firearm and toolmark examiner, testified that several cas-
ings recovered from the scene of the victim’s murder and the scene of
a subsequent, unrelated shooting were positively identified as having
been fired from the same assault rifle the police recovered. In affirming
the defendant’s conviction, the Appellate Court concluded that the trial
court properly denied the defendant’s motion to exclude or limit the
scope of S’s testimony and that the trial court did not abuse its discretion
in admitting evidence of uncharged misconduct related to the subsequent
shooting. On the granting of certification, the defendant appealed to
this court. Held:
1. The Appellate Court improperly upheld the trial court’s denial of the
defendant’s motion for a hearing, pursuant to this court’s decision in
State v. Porter (241 Conn. 57), on the reliability and accuracy of the
methodology used by S in connection with his anticipated firearm and
toolmark testimony: the trial court, having based its decision to deny
the defendant’s motion soley on earlier Appellate Court precedent con-
cluding that the science of firearm and toolmark identication is well
established, abused its discretion by failing to determine whether the
criticisms of firearm and toolmark analysis contained in certain reports
cited by the defendant in his motion cast enough doubt on whether the
science in that field remained well established so as to warrant a Porter
hearing; moreover, this court lacked a fair assurance that the admission
of S’s testimony did not substantially affect the verdict, and, thus, the
trial court’s denial of the defendant’s motion for a Porter hearing was
not harmless; accordingly, the defendant was entitled to a new trial.
(Three justices concurring separately in one opinion)
2. The Appellate Court properly upheld the trial court’s denial of the defen-
dant’s motion to limit the scope of S’s conclusions regarding the ballistics
evidence to a ‘‘more likely than not’’ standard; given that the trial court
was asked to limit S’s testimony in a highly proscribed manner, and in
light of the scant information and lack of case law provided in support
of the defendant’s motion, the trial court’s denial of that motion was
not an abuse of discretion.
3. The Appellate Court improperly upheld the trial court’s admission of
uncharged misconduct evidence concerning a shooting in which the
defendant allegedly was involved and that occurred subsequent to the
shooting that formed the basis of the murder charge in the present case,
as the prejudicial impact of that evidence unduly exceeded its probative
value: the subsequent shooting was a less severe crime than the murder
in the present case because neither of the victims of the subsequent
shooting was struck by the shots fired, and both shootings shared com-
mon characteristics, including individuals being shot at outside of their
homes; moreover, evidence of the subsequent shooting was introduced
through the testimony of one of the victims of that shooting and was
not limited to the the fact that there was a shooting but consisted of
details regarding the surrounding events that could have aroused the
jurors’ emotions; furthermore, the subsequent shooting occurred eight
months after the murder at issue in the present case, and no evidence
suggested that the subsequent shooting was motivated by or related to
the murder.
Argued February 21—officially released December 4, 2020**
Procedural History
Substitute information charging the defendant with
the crime of murder, brought to the Superior Court in
the judicial district of Hartford and tried to the jury
before the court, Kwak, J.; verdict and judgment of
guilty, from which the defendant appealed to this court,
which transferred the appeal to the Appellate Court,
Keller, Elgo and Eveleigh, Js., which affirmed the judg-
ment of the trial court, and the defendant, on the grant-
ing of certification, appealed to this court. Reversed;
new trial.
Andrew P. O’Shea, with whom was Damon A. R.
Kirschbaum, for the appellant (defendant).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, former
state’s attorney, and Patrick J. Griffin, state’s attorney,
for the appellee (state).
Maura Barry Grinalds and Darcy McGraw filed a
brief for the Connecticut Innocence Project et al. as
amici curiae.
Lisa J. Steele, assigned counsel, filed a brief for the
Connecticut Criminal Defense Lawyers Association as
amicus curiae.
Charles D. Ray, Angela M. Healey, and M. Chris
Fabricant, pro hac vice, filed a brief for the Innocence
Project, Inc., as amicus curiae.
Opinion
KAHN, J. The defendant, Donald Raynor, appeals
from the judgment of the Appellate Court, which
affirmed the judgment of conviction, rendered after a
jury trial, of the crime of murder in violation of General
Statutes § 53a-54a (a).1 State v. Raynor, 181 Conn. App.
760, 778, 189 A.3d 652 (2018). The defendant claims
that the Appellate Court incorrectly concluded that the
trial court had properly (1) denied his motion for a
Porter2 hearing on the reliability of ballistics evidence,
(2) denied his motion in limine seeking to limit the
scope of testimony from the state’s firearm and toolm-
ark examiner, and (3) denied the defendant’s motion
to exclude uncharged misconduct evidence related to a
subsequent shooting. As to the first issue, the defendant
claims that reports authored by the National Academy
of Sciences (NAS)3 call into question the reliability of
methodologies employed in firearm and toolmark
examinations and that, as a result, a Porter hearing was
necessary to determine if such evidence is admissible.
Furthermore, the defendant argues that both the trial
court and the Appellate Court construed State v. Leg-
nani, 109 Conn. App. 399, 421, 951 A.2d 674, cert.
denied, 289 Conn. 940, 959 A.2d 1007 (2008), too broadly
by concluding that a Porter hearing on the reliability of
firearm and toolmark examinations is never necessary
because it is a well established and admissible science.
As to the second issue, the defendant argues that, even
if the firearm and toolmark examination evidence was
admissible without a Porter hearing, the trial court
improperly denied his motion in limine, which would
have required the state’s expert, James Stephenson, to
clarify that his conclusions that certain bullet casings
were fired from a specific firearm were not certainties
but merely ‘‘more likely than not’’ to be correct. As to
the third issue, the defendant claims that the probative
value of evidence related to a subsequent shooting,
which was admitted to establish the defendant’s identity
and to show that he had access to the firearm used
in the present case, was outweighed by its prejudicial
effect. For the reasons that follow, we conclude that the
Appellate Court (1) improperly upheld the trial court’s
denial of the defendant’s motion for a Porter hearing
on the reliability of ballistics evidence based solely on
the holding in Legnani, (2) properly upheld the trial
court’s denial of the defendant’s motion in limine, which
sought to limit the scope of Stephenson’s conclusions,
and (3) improperly upheld the trial court’s denial of the
motion to exclude evidence of uncharged misconduct.
We therefore conclude that the defendant is entitled to
a new trial and, accordingly, reverse the judgment of
the Appellate Court.
The record reveals the following relevant facts and
procedural history. The defendant was a member of
the Money Green Bedrock (Bedrock) street gang in
Hartford, and the victim, Delano Gray, was a member
of a rival street gang, The Avenue, also known as The
Ave. Prior to the events giving rise to the present case,
the defendant and the victim were involved in two inci-
dents stemming from the rivalry between their gangs.
The first incident, which occurred at an unspecified
date prior to 2006, involved the victim’s firing shots at
the defendant and another Bedrock member. The sec-
ond incident, which occurred approximately one week
prior to the events giving rise to the present case,
occurred when the victim saw the defendant and
another Bedrock member, Jose Rivera, at a restaurant
in The Avenue’s territory. As the defendant and Rivera
were leaving the restaurant, Rivera noticed that the
victim was taking a photograph of the defendant’s car.
Rivera relayed this to the defendant, who responded
that ‘‘[the victim] had to go,’’ which Rivera understood
to mean that ‘‘[the victim] had to get killed for what
he did.’’
During the early morning hours of June 18, 2007, the
defendant called Rivera and told him that he wanted
to ‘‘test out [a] .223 [caliber] assault rifle and that [the
defendant] wanted to go see if [they] could find any
Avenue guys,’’ which Rivera understood to mean they
were ‘‘gonna go look for some Avenue guys to kill.’’
The defendant had owned that assault rifle for approxi-
mately one month, and Rivera had been with the defen-
dant when he purchased it. The defendant picked up
Rivera and drove to the back of the defendant’s apart-
ment building on Bedford Street, parking next to a non-
functioning vehicle that belonged to Rivera and was
used for ‘‘stashing drugs [and] guns . . . .’’ The defen-
dant put on latex gloves, removed the .223 caliber
assault rifle from a bag stored in the trunk of the non-
functioning vehicle, and loaded the assault rifle with
‘‘a big magazine clip.’’ The defendant and Rivera then
got back into the functioning vehicle; Rivera drove, and
the defendant sat in the backseat with the assault rifle.
Rivera drove the vehicle around certain areas in the
north end of Hartford frequented by members of The
Avenue. While Rivera was driving on Enfield Street, he
told the defendant that he saw the victim standing on
the sidewalk engaged in conversation with a woman.
At the defendant’s instruction, Rivera drove back
around the block. As Rivera drove down Enfield Street
for the second time, he rolled down the rear driver’s
side window and slowed the vehicle down to a roll.
The defendant hung out of the window and started
shooting the assault rifle at the victim. The victim and
his female companion attempted to flee, running in
different directions, but the victim fell to the ground
after taking only about three steps. The defendant kept
shooting after the victim fell to the ground, firing at least
ten to fifteen times, and then Rivera and the defendant
drove away. The victim died as a result of gunshot
wounds to his chest and neck.
On July 16, 2008, thirteen months after the Enfield
Street murder, the police recovered a .223 caliber Kel-
Tec assault rifle in an unrelated investigation after
receiving a tip from a confidential informant. In August,
2011, after being arrested for an unrelated homicide,
Rivera gave a statement to the police in which he con-
fessed to his involvement in the victim’s murder, impli-
cated the defendant as the shooter, and he identified
the .223 caliber Kel-Tec assault rifle recovered by the
police in July, 2008, as the weapon that the defendant
used to shoot the victim. Simultaneously, in August,
2011, the police met with and obtained a written state-
ment from the victim of a shooting on Baltimore Street
that occurred on February 16, 2008—a shooting at
which Rivera was not present. That individual identified
the defendant as the shooter in that crime and stated
that he had fired a rifle at her and her partner. Stephen-
son testified that casings recovered from the crime
scenes of the victim’s murder on Enfield Street and the
subsequent shooting on Baltimore Street were posi-
tively identified as having been fired from the .223 cali-
ber Kel-Tec assault rifle that had been recovered by
the police.
In 2013, the defendant was charged with murder in
violation of § 53a-54a (a), conspiracy to commit murder
in violation of General Statutes §§ 53a-48 and 53a-54a
(a), and criminal use of a firearm in violation of General
Statutes § 53a-216 (a). The defendant’s first jury trial,
conducted in 2014, ended in a mistrial after the jury
was unable to agree on a verdict. At the second trial,
conducted in 2015, the state charged the defendant with
only one count of murder in violation of § 53a-54a (a).
The second jury returned a guilty verdict, and the court
sentenced the defendant to sixty years of incarceration
with a twenty-five year mandatory minimum.
The defendant subsequently appealed, claiming ‘‘that
the trial court (1) improperly denied [his] motion in
limine to exclude or limit the scope of the testimony
of the state’s expert witness on firearm and toolmark
identification, and (2) abused its discretion by granting
the state’s motion for uncharged misconduct related to
a shooting that occurred approximately eight months
after the events of [the present] case.’’ State v. Raynor,
supra, 181 Conn. App. 762. The Appellate Court con-
cluded that the trial court ‘‘properly relied upon Leg-
nani, and did not abuse its discretion by denying the
defendant’s motion in limine to exclude or limit Ste-
phenson’s testimony.’’ Id., 771. Furthermore, the Appel-
late Court concluded that the trial court ‘‘did not abuse
its discretion by admitting the uncharged misconduct
evidence related to [a subsequent shooting].’’ Id., 778.
This appeal followed. Additional facts and procedural
history will be set forth as necessary.
I
EXPERT BALLISTIC TESTIMONY
We begin with the defendant’s claims challenging
the admissibility and scope of Stephenson’s testimony
relating to firearm and toolmark analysis. The following
additional facts and procedural history are relevant to
the resolution of these claims. In anticipation of testi-
mony by Stephenson at trial, the defendant filed (1) a
motion for a Porter hearing on the admissibility of fire-
arm and toolmark analysis, and, in the alternative, (2)
a motion in limine to limit the scope of Stephenson’s
conclusions.
The defendant argued in his motion for a Porter hear-
ing that the NAS reports called into question the reliabil-
ity and accuracy of the methodology employed by Ste-
phenson and that there was ‘‘relatively little legal
accounting’’ for those reports.4 The defendant con-
tended that a Porter hearing would demonstrate that the
methodology used by Stephenson was not scientifically
valid and was, therefore, inadmissible. The state
opposed the defendant’s motion for a Porter hearing,
arguing that ‘‘Connecticut state law firmly holds that
the science of firearm and toolmark identification has
been so well established that a trial court does not have
to conduct a Porter hearing prior to admitting such
evidence.’’
In the event that the motion for a Porter hearing was
denied, or if one were held and resulted in the admission
of Stephenson’s testimony, defense counsel argued dur-
ing oral argument on the motion that Stephenson should
be restricted to stating only that casings recovered from
the crime scenes were ‘‘more likely than not’’ fired from
the .223 caliber Kel-Tec assault rifle. Anticipating that
Stephenson would testify that ‘‘the shell casings recov-
ered from the shooting of [the victim] were fired from
the same weapon as the shell casings recovered from
the [Baltimore Street shooting] based upon his forensic
toolmark analysis of those casings,’’ defense counsel
cited to the NAS reports for the proposition that,
‘‘[b]ecause not enough is known about the variabilities
among individual tools and guns, we are not able to
specify how many points of similarity are necessary
for a given level of confidence in the result. Sufficient
studies have not been done to understand the reliability
and repeatability of the methods.’’ (Emphasis omitted;
internal quotation marks omitted.) Defense counsel
noted that the authors of the NAS reports agreed that
‘‘class characteristics are helpful in narrowing the pool
of [firearms] that may have left a distinctive mark [on
a casing]. Individual patterns from manufacture or from
wear might, in some cases, be distinctive enough to
suggest one particular source, but additional studies
should be performed to make the process of individual-
ization more precise and repeatable.’’5 (Emphasis omit-
ted; internal quotation marks omitted.)
On the basis of these observations, defense counsel
asked that a ‘‘limiting order and instruction, similar to
that in [United States v. Glynn, 578 F. Supp. 2d 567,
574–75 (S.D.N.Y. 2008)], be granted,’’ to permit Stephen-
son to testify only that a firearms match was ‘‘more
likely than not.’’ In response, the state claimed that
‘‘while the defendant has located a federal judge in the
Southern District of New York who might agree with
his contention, the appellate courts of . . . Connecti-
cut do not.’’ Following oral arguments, the trial court
denied the defendant’s motion for a Porter hearing and
motion in limine, concluding that the forensic science
of firearms experts ‘‘has been well established, and we
have a case, [Legnani], which stands for the proposition
that this is not a new science. Therefore, a Porter hear-
ing is not necessary.’’ The trial court expounded that
it had ‘‘read the [2009 NAS] article. [The judge] under-
stood [NAS] recommend[ed] some further studies or
data collection. That’s their recommendation, but,
again, the case law in Connecticut is what it is.’’
Stephenson subsequently testified before the jury
that the Connecticut State Forensic Laboratory
employed the Association of Firearm and Tool Mark
Examiners’ (AFTE) theory of identification, which is
generally accepted in the science of firearm and toolm-
ark identification, and he explained the tenets of that
theory. He explained that ‘‘we know that, through the
theory of identification, that no two tools are—have
left—will leave an examiner to the point where he
would make a false identification based on his examina-
tion.’’ Stephenson proceeded to testify that twelve of
the fifteen casings recovered from the Enfield Street
murder were ‘‘positively matched’’ to the .223 caliber
Kel-Tec assault rifle and that the remaining three cas-
ings had insufficient marks found for the purpose of
identification. In addition, Stephenson testified that sev-
enteen of the twenty-two casings recovered from the
Baltimore Street shooting were ‘‘positively identified as
being fired from the Kel-Tec rifle’’ and that the
remaining five casings did not have sufficient marks to
make a comparison for identification. During an exten-
sive cross-examination, ‘‘[d]efense counsel . . . high-
lighted the ways in which firearm and toolmark identifi-
cation does not follow precisely the scientific method—
i.e., by not protecting against confirmation bias—and
that the [AFTE] theory of identification is not a com-
pletely objective theory.’’ State v. Raynor, supra, 181
Conn. App. 768. Stephenson also acknowledged that he
was aware of the 2009 NAS report and conceded that
some—but not all—of the criticisms of firearm and
toolmark analysis were valid.
On appeal to the Appellate Court, the defendant
claimed that the trial court ‘‘abused its discretion by
denying his motion in limine and request for a Porter
hearing. The defendant argue[d] that the [NAS reports]
establish that the methodology underlying firearm and
toolmark identification is not reliable, and, as a result,
the [trial] court should have precluded Stephenson from
opining that particular cartridge casings positively
matched the firearm in evidence. In the alternative, the
defendant argue[d] that the [trial] court should have
limited Stephenson’s testimony so that he could opine
only that his conclusions were ‘more likely than not
. . . correct.’ ’’ State v. Raynor, supra, 181 Conn. App.
768. ‘‘The state argue[d] that the [trial] court properly
relied upon [Legnani] in concluding that the admissibil-
ity of firearm and toolmark identification evidence is
well established and, therefore, properly denied the
defendant’s motion.’’ Id.The Appellate Court concluded that ‘‘Legnani is con-
trolling precedent on the issue of whether the science of
firearm and toolmark identification is well established,
and thus binds our resolution of this claim.’’ 6 Id., 770.
The Appellate Court acknowledged that Legnani pre-
dated the NAS reports but clarified that the reports ‘‘do
not overrule or otherwise abrogate the existing case
law in this state; nor do the [United States] District
Court cases or the cases from other states that the
defendant has cited in support of his claim. More
importantly, the defendant did not proffer his own
expert witness to testify that the science of firearm and
toolmark identification is not reliable. The evidence
admitted during the cross-examination of Stephenson
included the flaws and criticisms of firearm and toolm-
ark identification. The jury was free to give this evi-
dence as much or as little weight as it saw fit.’’ Id., 771.
For these reasons, the Appellate Court upheld the trial
court’s denial of the defendant’s motion for a Porter
hearing and motion in limine, holding that ‘‘[a] Porter
hearing to determine the validity of firearm and toolm-
ark identification was not required. The state had to
establish only that the firearm and toolmark evidence
was relevant, which it did.’’ Id.The Appellate Court acknowledged, however, ‘‘that
there has been some evolvement in the field of firearm
and toolmark identification since [it] decided Legnani.’’
Id., 770 n.4. Despite its familiarity with the NAS reports,
the Appellate Court highlighted that ‘‘[d]efense counsel
. . . extensively cross-examined Stephenson regarding
the recent criticisms of firearm and toolmark identifica-
tion, during which Stephenson acknowledged the valid-
ity of at least some of those criticisms. Even if [the
Appellate Court] were inclined to review the scientific
validity of firearm and toolmark identification—and
therefore [were] inclined to review the holding of Leg-
nani—the circumstances of the [case did] not warrant
a departure from [its] precedent. The defendant [had]
not proffered his own expert to rebut the notion that
firearm and toolmark evidence is sufficiently reliable as
to be admitted without first requiring a Porter hearing.
Therefore, [the Appellate Court] adhere[d] to [its] prec-
edent that holds that the admissibility of firearm and
toolmark identification is well established.’’ Id., 770–71
n.4. This appeal followed.
A
Porter Hearing
In the present case, the defendant claims that the
Appellate Court improperly upheld the trial court’s
denial of his motion for a Porter hearing because both
the trial court and the Appellate Court interpreted Leg-
nani too broadly when each determined that it was
bound by that precedent, notwithstanding the fact that
the defendant had highlighted new evidence and case
law that questioned the reliability of the methodology
used in firearm and tookmark analysis. The defendant
claims that such a broad interpretation of Legnani
‘‘would result in trial courts admitting false testimony
merely on the basis that the methodologies supporting
that testimony, which we now know to be unreliable
and unvalidated, were admissible at some point in the
past.’’ In response, the state claims that ‘‘[t]he trial court
properly concluded that Legnani remained good law,
even after the [NAS reports], because courts in Connect-
icut and throughout the nation, including those which
have conducted [Porter] hearings, have overwhelmingly
reaffirmed that expert testimony regarding firearm and
toolmark identification is admissible, notwithstanding
the concerns expressed in that report.’’ We agree with
the defendant that the trial court’s exclusive reliance
on Legnani in assessing the request for a Porter hearing
was erroneous.
‘‘It is axiomatic that [t]he trial court’s ruling on the
admissibility of evidence is entitled to great deference.
In this regard, the trial court is vested with wide discre-
tion in determining the admissibility of evidence. . . .
Accordingly, [t]he trial court’s ruling on evidentiary
matters will be overturned only upon a showing of a
clear abuse of the court’s discretion. . . . Because a
trial court’s ruling under Porter involves the admissibil-
ity of evidence, we review that ruling on appeal for an
abuse of discretion.’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Sorabella, 277 Conn. 155,
214, 891 A.2d 897, cert. denied, 549 U.S. 821, 127 S.
Ct. 131, 166 L. Ed. 2d 36 (2006). Implicit in that well
established principle, however, is the requirement that
the trial court exercise its discretion. ‘‘Where . . . the
trial court is properly called upon to exercise its discre-
tion, its failure to do so is error.’’ (Internal quotation
marks omitted.) Higgins v. Karp, 243 Conn. 495, 504,
706 A.2d 1 (1998). Therefore, ‘‘we must determine
whether the trial court abused its discretion in deter-
mining that a Porter hearing was not required and, if
so, we must also determine whether this ruling was
nevertheless harmless.’’ State v. Martinez, 143 Conn.
App. 541, 557, 69 A.3d 975 (2013), rev’d on other
grounds, 319 Conn. 712, 127 A.3d 164 (2015). ‘‘In order
to establish the harmfulness of a trial court ruling, the
defendant must show that it is more probable than not
that the improper action affected the result.’’ (Internal
quotation marks omitted.) State v. Torres, 85 Conn.
App. 303, 328, 858 A.2d 776, cert. denied, 271 Conn. 947,
861 A.2d 1179 (2004).
In the present case, it is apparent from the record
that the trial court failed to exercise its discretion when
it denied the defendant’s motion for a Porter hearing.
The trial court did not consider the NAS reports that
the defendant cited in his motion; it noted that it had
reviewed the reports but that it was bound by Legnani
to find that the science of firearm and toolmark identifi-
cation is well established. Similarly, the Appellate Court
stated that ‘‘Legnani is controlling precedent on the
issue of whether the science of firearm and toolmark
identification is well established, and thus binds [its]
resolution of [the defendant’s] claim.’’ State v. Raynor,
supra, 181 Conn. App. 770. We conclude that the trial
court failed to exercise—and, therefore, abused—its
discretion to determine whether the criticisms of fire-
arm and toolmark analysis contained in the NAS reports
and highlighted by the defendant cast substantial
enough doubt on whether the science of that field
remains well established to warrant a Porter hearing.7
A mere cursory look at the ramifications of a trial
court’s being absolutely bound by Legnani illustrates
why such an approach would be impractical. Trial court
judges serve a gatekeeping function with respect to the
admissibility of expert testimony, and, in performing
that function, they assess the validity of the methodolo-
gies underlying proffered scientific evidence. See 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); see also Daubert v. Merrell Dow Pharmaceuti-
cals, Inc., 509 U.S. 579, 589–90, 113 S. Ct. 2786, 125 L.
Ed. 2d 469 (1993). Over two decades ago, this court
held that ‘‘an admissibility test for scientific evidence
premised solely on its ‘general acceptance’ is conceptu-
ally flawed,’’ thereby rejecting the then applicable Frye8
standard and adopting the Daubert approach to the
admissibility of scientific evidence.9 (Emphasis in origi-
nal.) State v. Porter, supra, 75–76. This court noted,
however, that ‘‘some scientific principles have become
so well established than an explicit Daubert analysis
is not necessary for admission of evidence thereunder.
By this, we do not mean to reestablish the Frye general
acceptance test. We do acknowledge, however . . .
that a very few scientific principles are so firmly estab-
lished as to have attained the status of scientific law,
such as the laws of thermodynamics, [and that such
principles] properly are subject to judicial notice . . . .
Evidence derived from such principles would clearly
withstand a Daubert analysis, and thus may be admitted
simply on a showing of relevance.’’ (Citation omitted;
internal quotation marks omitted.) Id., 85 n.30.
The Appellate Court has held that a trial court did
not abuse its discretion where it concluded that ballis-
tics and firearms analysis fell into that category of scien-
tific principles so firmly established as to negate the
need for a Porter hearing. State v. Legnani, supra, 109
Conn. App. 419–21. Science, however, is not static.
Methodologies are continually challenged and
improved so that an approach once favored by the scien-
tific community may later cede to a novel approach or
simply fall out of favor in its entirety. See, e.g., Bone
Shirt v. Hazeltine, 461 F.3d 1011, 1026 (8th Cir. 2006)
(Gruender, J., concurring in the judgment) (‘‘Science
evolves, and scientific methods that were once consid-
ered unassailable truths have been discarded over time.
Unreliable testimony based upon those outdated theo-
ries and methods must be discarded as well, lest scien-
tific stare decisis ensure that such theories survive only
in court.’’); cf. Upjohn Co. v. Finch, 422 F.2d 944, 951
(6th Cir. 1970). The gatekeeping function of the trial
court requires, at a minimum, that judges consider any
new evidence that a defendant presents when deciding
whether to grant or deny a motion for a Porter hearing.
To hold otherwise would transform the trial court’s
gatekeeping function—which requires judges to regu-
late carefully which categories of scientific evidence
are sufficiently reliable to present to the fact finders—
into one of routine mandatory admission of such evi-
dence, regardless of advances in a particular field and
its continued reliability.
Having concluded that it was an abuse of discretion
for the trial court to deny the defendant’s motion for
a Porter hearing without considering the proffered evi-
dence challenging the methodology supporting tool-
mark and firearm analysis, we must now determine
whether that error was harmful. ‘‘When an improper
evidentiary ruling is not constitutional in nature, the
defendant bears the burden of demonstrating that the
error was harmful. . . . [W]hether [an improper ruling]
is harmless in a particular case depends upon a number
of factors, such as the importance of the witness’ testi-
mony in the prosecution’s case, whether the testimony
was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the wit-
ness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength
of the prosecution’s case. . . . Most importantly, we
must examine the impact of the . . . evidence on the
trier of fact and the result of the trial. . . . [T]he proper
standard for determining whether an erroneous eviden-
tiary ruling is harmless should be whether the jury’s
verdict was substantially swayed by the error. . . .
Accordingly, a nonconstitutional error is harmless
when an appellate court has a fair assurance that the
error did not substantially affect the verdict.’’ (Internal
quotation marks omitted.) State v. Edwards, 325 Conn.
97, 133, 156 A.3d 506 (2017).
After reviewing the evidence in the present case, we
lack a fair assurance that the trial court’s admission of
Stephenson’s testimony did not substantially affect the
verdict. There is no doubt that Stephenson was impor-
tant to the state’s case; his testimony was the only
objective evidence that connected the casings found at
the Enfield Street murder with the .223 caliber Kel-Tec
assault rifle recovered by the police. There can be little
doubt that the jurors likely found Stephenson’s expert
opinion highly convincing in light of the technical nature
of his analysis and his various credentials.10 See, e.g.,
State v. Jackson, 334 Conn. 793, 819, 224 A.3d 886 (2020)
(‘‘[t]here can be little doubt that jurors would have
viewed as highly convincing [the] expert opinion; the
testimony was presented in technical terms and used
impressive visual displays to convey important informa-
tion, and it came from a law enforcement officer uncon-
nected to the department that investigated the crime’’).
The exclusion of Stephenson’s expert testimony
would have made the state’s overall case against the
defendant much weaker because Stephenson corrobo-
rated the testimony of Rivera, the only witness to iden-
tify the defendant as the shooter. Without Stephenson’s
expert testimony, the state would have relied primarily
on Rivera’s testimony related to the Enfield Street mur-
der.11 Rivera was also the sole witness to testify that
the defendant and the victim had a confrontation in the
week leading up to the murder, to identify the defendant
as the shooter on Enfield Street, to confirm that the
.223 caliber Kel-Tec assault rifle was the same one used
by the defendant, and to acknowledge that the defen-
dant knew the police had subsequently recovered the
murder weapon. Rivera, however, had both a motive
to testify falsely and credibility issues. See State v. Jack-
son, supra, 334 Conn. 819–20. Rivera testified that he
was involved with the victim’s murder on Enfield Street
in June, 2007, but he did not provide information to the
police about that murder until August, 2011, more than
four years later. In addition, when Rivera finally did
speak to the police about the Enfield Street murder, it
was only after he had been arrested in connection with
an incident that occurred on July 1, 2011. Rivera con-
fessed his role in the July 1, 2011 incident and provided
a written statement to the police. He also provided
additional statements related to several other incidents
in Hartford, one of which was the Enfield Street murder.
At trial, Rivera testified that he had been sentenced as
a result of the July 1, 2011 incident and was serving a
total effective sentence of forty-two years of incarcera-
tion for convictions of murder, conspiracy to commit
murder, and a weapons charge. In addition, the jury
heard Rivera testify that he was arrested pursuant to
a warrant on November 5, 2013, for his involvement in
the Enfield Street murder and had pending charges of
accessory to commit murder, conspiracy to commit
murder, and criminal possession of a firearm. Rivera
also had a number of other pending charges that, when
combined, added up to several decades of potential
jail time.12
In order to testify at the defendant’s trial, Rivera
entered into a written cooperation agreement with the
state, in which he agreed to disclose truthfully any and
all matters related to his criminal activity, and the crimi-
nal activity of others with whom he was involved. In
exchange, the state agreed that, if Rivera did so when
called upon, it would agree to consent to a hearing for
sentence modification before a judge of the Superior
Court. In addition, the state agreed that it would recom-
mend that any sentences Rivera received for his pending
charges run concurrently to the sentence of forty-two
years that he was serving.
Nor did the extensive cross-examination of the ballis-
tics expert render the admission of his testimony harm-
less. Defense counsel rigorously cross-examined Ste-
phenson on the methodology, critiques, and partial
subjectivity of firearm and toolmark analysis, including
questions about his knowledge of, and the conclusions
from, the NAS reports. In this manner, the jury heard
testimony that cast at least some doubt on the reliability
of the methodology. Stephenson, however, consistently
explained that while the NAS reports contained sugges-
tions for improving the methodology—some of which
he acknowledged were sound—the criticisms did not
undermine its scientific validity. Throughout his cross-
examination, Stephenson maintained that his conclu-
sions were accurate. See, e.g., State v. Edwards, supra,
325 Conn. 134–35 (rigorous cross-examination of expert
by defense counsel led to admission that expert could
not guarantee accuracy of maps or determine exact
location of defendant’s cell phone, contributing to
determination that trial court’s improper admission of
certain testimony regarding cell phone data constituted
harmless error). In addition, juries ‘‘tend to give great
credence and weight to what . . . experts say,’’ and
the defendant sought to have this expert testimony
excluded, thereby preventing the jury from hearing Ste-
phenson testify at all. ‘‘Symposium on Forensic Expert
Testimony, Daubert, and Rule 702,’’ 86 Fordham L. Rev.
1463, 1508 (2018); see also D. McQuiston-Surrett & M.
Saks, ‘‘Communicating Opinion Evidence in the Foren-
sic Identification Sciences: Accuracy and Impact,’’ 59
Hastings L.J. 1159, 1189 (2007) (‘‘unfortunately, cross-
examination and the use of opposing experts do not
appear to effectively counter expert testimony, regard-
less of the logical vulnerability of the initial expert testi-
mony’’). We therefore cannot conclude that the rigorous
cross-examination mounted by defense counsel so
undercut Stephenson’s testimony that its admission was
necessarily harmless.
The state’s sole claim that any error by the trial court
is harmless is restricted to an argument regarding moot-
ness. Specifically, the state argues that ‘‘this issue
already has been examined by a Connecticut Superior
Court after a Porter hearing; [State v. Terrell, Superior
Court, judicial district of New Haven, Docket No. CR-
XX-XXXXXXX-S (March 21, 2019) (68 Conn. L. Rptr. 323)];
and its conclusions in support of admissibility mirror
those reached following similar hearings by courts in
other jurisdictions.’’13 Relying on State v. Balbi, 89 Conn.
App. 567, 576–77, 874 A.2d 288, cert. denied, 275 Conn.
919, 883 A.2d 1246 (2005),14 the state argues that ‘‘[a]
determination by one court that a methodology satisfies
the Porter test renders [it] unnecessary for other courts
to repeat the process. . . . There is no compelling rea-
son to put the state to the burden of having to reestab-
lish, in case after case, the same proposition. Requiring
our trial judges to repeatedly hold Porter hearings
would serve no legitimate purpose and would need-
lessly squander judicial resources.’’ (Citations omitted;
internal quotation marks omitted.) Although, as dis-
cussed subsequently in this opinion, we agree that a
Porter hearing is not necessary in every trial in which
scientific evidence is presented, that fact does not mean
that a Porter hearing held by one trial court is binding
on another. See, e.g., In re Emma F., 315 Conn. 414,
432–33, 107 A.3d 947 (2015) (‘‘[A] trial court decision
does not establish binding precedent. . . . Indeed,
under the law of the case doctrine, the trial court’s
decision need not even be followed by a judge making
a subsequent decision in [that] very case.’’ (Citations
omitted; internal quotation marks omitted.)). Although
the Superior Court in Terrell considered the same evi-
dence presented by the defendant in the present case
in his motion for a Porter hearing; see footnote 13 of
this opinion; Terrell was also not appealed to, or
reviewed by, this court. The state’s argument that the
result of the Porter hearing in Terrell renders the issue
presented in this appeal moot must, therefore, fail. For
the foregoing reasons, we conclude that the error was
harmful and that the defendant is entitled to a new trial.
This court’s conclusion that a trial court must exer-
cise its discretion to at least consider evidence pre-
sented by the defendant when deciding whether to grant
a motion for a Porter hearing does not mean that a
defendant’s challenge, no matter how slight, to an estab-
lished methodology warrants a full Porter hearing. We
provide the following examples to illustrate the gate-
keeping function of the trial courts in light of this deci-
sion. When a trial court considers a defendant’s motion
for a Porter hearing, it may decide that the methodology
prior to that point either (1) has been deemed so well
established so as to not warrant a Porter hearing, as
was the case with firearm and toolmark analysis at the
time of the defendant’s trial, or (2) has been subject to
a Porter hearing by another trial court. Under both
of these scenarios, the trial judge has several options
depending on the strength of the evidence presented
in a motion for a Porter hearing.
Under the first scenario, the trial court begins from
the premise that the methodology is well established
and that, as a result, a Porter hearing is not necessary.
It must then consider the evidence presented by the
defendant to determine whether that well established
methodology has been sufficiently challenged to war-
rant a Porter hearing. The trial court has the discretion
to deny the motion, concluding that the defendant has
not presented sufficient evidence in his motion to dem-
onstrate that the methodology may no longer be well
established, or to grant the motion, concluding that the
defendant has presented evidence sufficiently casting
doubt on the continued reliability of the methodology
and, therefore, that a full Porter hearing is necessary.15
Although, under this scenario, the defendant bears the
heavy burden of challenging a potentially lengthy scien-
tific and legal history of the reliability of the methodol-
ogy without a Porter hearing, that burden is not insur-
mountable. This was recently evidenced when, despite
the Appellate Court’s decision in Legnani, a Superior
Court granted a Porter hearing on firearm and toolmark
analysis. State v. Terrell, supra, 68 Conn. L. Rptr. 324;
see footnote 13 of this opinion.
Under the second scenario, once any trial court has
held a Porter hearing on a particular methodology, then
judges have slightly different options when considering
motions for subsequent Porter hearings. If a party high-
lights the same evidence challenging a methodology as
was evaluated in a previous Porter hearing, the trial
court may—but is not required to—take judicial notice
of the previous hearing and consider the prior court’s
analysis of the methodology and conclusion as to its
reliability when exercising its discretion to grant or
deny the defendant’s motion for a subsequent Porter
hearing.16 If a party highlights new evidence regarding
the reliability of the methodology that was not evaluated
in the previous Porter hearing, the trial court may—
but, again, is not required to—take judicial notice of
the previous hearing and consider the prior court’s anal-
ysis of the methodology and conclusion in conjunction
with the additional evidence presented in determining
whether to grant or deny a subsequent motion for a
Porter hearing.17
For the foregoing reasons, we conclude that the trial
court improperly denied the defendant’s motion for a
Porter hearing based solely on Legnani, without consid-
ering new evidence offered by the defendant, and we
do not have a fair assurance that this error was not
harmless. As a result, the defendant is entitled to a
new trial.
B
Scope of Testimony
We address the defendant’s second claim because
it is likely to arise on remand. Specifically, the defendant
claims that the Appellate Court improperly upheld the
trial court’s denial of his motion in limine to proscribe
the scope of Stephenson’s testimony, highlighting that
at least one Superior Court in this state, as well as other
courts across the country, have limited the opinions of
firearm and toolmark examiners in a variety of manners,
‘‘including precluding them from stating that expelled
casings or bullets are matched to a firearm to the exclu-
sion of all other firearms, requiring them to clarify that
the likelihood of their conclusions being true is ‘more
likely than not,’ or requiring them to clarify that the
certainty of their opinions was limited in some other
manner.’’ (Footnotes omitted.) The defendant argues
that such a limitation is particularly appropriate as
recent decades have ushered in a ‘‘greater reliance on
interchangeable parts in manufacturing [that] has sub-
stantially altered the degree of unique features in the
firing pins and other components of firearms,’’ thereby
eroding the fundamental assumptions of firearm and
toolmark examinations so as to render them insuffi-
ciently reliable to permit match statements. The defen-
dant further requests that, even if this court were to
conclude that it was permissible for firearm and tool-
mark experts to testify that a particular casing was
fired from a specific firearm, we use our supervisory
authority to limit the scope of such testimony in Con-
necticut courts. In response, the state claims that the
specific restriction requested by the defendant—‘‘more
likely than not’’—is arbitrary, inaccurate, and unsup-
ported by the law generally applicable to expert testi-
mony. The state concedes, however, that ‘‘it may be
true that the methodology employed by firearm and
toolmark identification experts would not currently
support any representation that their conclusions are
100 percent infallible . . . .’’ Furthermore, if this court
were to adopt a rule proscribing the language that an
expert must use in stating his opinion that a particular
casing was fired from a specific firearm, the state indi-
cated that it would support a requirement that the
expert phrase his opinion in terms of ‘‘a reasonable
degree of certainty’’ or ‘‘a practical certainty . . . .’’
(Internal quotation marks omitted.) We agree with
the state.
We begin with the applicable standard of review.
‘‘[A] trial court retains broad discretion in ruling on the
qualifications of expert witnesses and [in] determining
whether their opinions are relevant.’’ State v. Guilbert,
306 Conn. 218, 257, 49 A.3d 705 (2012). ‘‘[S]uch testi-
mony is admissible if the trial court determines that
the expert is qualified and that the proffered testimony
is relevant and would aid the jury.’’ State v. Williams,
317 Conn. 691, 702, 119 A.3d 1194 (2015). When a party
seeks to exclude or limit the scope of an expert’s testi-
mony, the burden is on the party who files the motion
in limine to show that the challenged remarks were
prejudicial in light of the entire proceeding. Cf. State
v. Binet, 192 Conn. 618, 628, 473 A.2d 1200 (1984).
‘‘We review a trial court’s decision to preclude expert
testimony for an abuse of discretion. . . . We afford
our trial courts wide discretion in determining whether
to admit expert testimony and, unless the trial court’s
decision is unreasonable, made on untenable grounds
. . . or involves a clear misconception of the law, we
will not disturb its decision.’’ (Internal quotation marks
omitted.) State v. Williams, supra, 701–702.
In the present case, defense counsel requested that
the trial court restrict Stephenson to using very specific
language that connoted a narrow scientific conclusion
but did not provide the court with sufficient information
to inform its decision. With respect to limiting the scope
of Stephenson’s testimony, the defendant’s motion in
limine simply requested that ‘‘a limiting order and
instruction, similar to that in Glynn, be granted’’ with-
out providing additional details as to what that instruc-
tion would entail, why it would be appropriate for the
trial court to adopt that standard, or how failing to limit
the scope of Stephenson’s testimony would prejudice
the defendant. During pretrial argument on the motion,
defense counsel urged the trial court to adopt the
approach used in Glynn and to conclude that, due to
the shortcomings of firearm and toolmark analysis
described in the NAS reports, it should limit Stephenson
to testifying only that it was ‘‘more likely than not’’ that
the bullets were fired from the same gun. In addition,
in both the motion in limine and oral arguments on the
motion, the defense relied on a single United States
District Court decision from the Southern District of
New York to support its argument. Given the highly
proscribed language requested, combined with the
scant information and lack of case law provided in
support of the defendant’s motion, we conclude that
the trial court’s denial of the motion was not an abuse
of discretion. See, e.g., State v. Binet, supra, 192 Conn.
624 (‘‘[t]he record before the court . . . could hardly
provide it with a solid basis upon which to grant the
defendant’s motion’’).
We pause briefly to qualify our holding. Our conclu-
sion that the trial court in the present case properly
declined to limit the scope of Stephenson’s testimony
to only ‘‘more likely than not’’ should not be taken as
blanket approval of unlimited testimony from firearm
and toolmark experts. As both the defendant and the
state acknowledge, a substantial number of courts
addressing this issue, including the United States Court
of Appeals for the Second Circuit, have prohibited
experts from testifying that a bullet or casing matched
a specific firearm with absolute certainty or to the
exclusion of all other firearms. See, e.g., United States
v. Gil, 680 Fed. Appx. 11, 13–14 (2d Cir. 2017); United
States v. Diaz, Docket No. CR-05-00167 (WHA), 2007
WL 485967, *1 (N.D. Cal. February 12, 2007). These
courts, however, do not agree on what language is
appropriate. Options include requiring an expert to
state that his degree of certainty is only ‘‘more likely
than not’’; (internal quotation marks omitted) United
States v. Glynn, supra, 578 F. Supp. 2d 574–75; that the
identification is to ‘‘a reasonable degree of certainty’’;
United States v. Monteiro, 407 F. Supp. 2d 351, 355 (D.
Mass. 2006); that the identification is to ‘‘a practical
certainty’’; (internal quotation marks omitted) United
States v. McCluskey, Docket No. 10-2734 (JCH), 2013
WL 12335325, *10 (D.N.M. February 7, 2013); that the
identifying characteristics on two items are ‘‘consistent
with’’ each other (internal quotation marks omitted);
United States v. Johnson, Docket No. 16 Cr. 281 (PGG),
2019 WL 1130258, *20 (S.D.N.Y. March 11, 2019); that
the recovered firearm ‘‘cannot be excluded as the
source’’ of the recovered casing; United States v. Shipp,
422 F. Supp. 3d 762, 783 (E.D.N.Y. 2019); or that the
expert be requested to describe only similar and distin-
guishing features without characterizing a conclusion.
United States v. Green, 405 F. Supp. 2d 104, 108–109
(D. Mass. 2005). At least one Connecticut trial court
has prohibited a firearm and toolmark expert from testi-
fying that ‘‘the likelihood that a firearm other than [the
one] recovered at the crime scene could have fired
the recovered [subject] casing is so remote as to be
considered a practical impossibility.’’ (Internal quota-
tion marks omitted.) State v. Terrell, supra, 68 Conn.
L. Rptr. 327. In addition, the state concedes that testi-
fying to the certainty of a match ‘‘to the exclusion of
all others’’ would not be appropriate and that it has no
objection to a standard requiring an expert to limit his
conclusions to either ‘‘a reasonable degree of certainty’’
or ‘‘a practical certainty . . . .’’ (Internal quotation
marks omitted.) The defendant asks this court to exer-
cise its supervisory authority18 to limit the scope of
testimony from firearm and toolmark experts. Although
we decline to do so, our decision does not preclude
trial courts from imposing appropriate limits on such
expert testimony when deemed necessary.
For the foregoing reasons, we conclude that the trial
court properly denied the defendant’s motion in limine
to limit the scope of Stephenson’s testimony to a ‘‘more
likely than not’’ standard.
II
UNCHARGED MISCONDUCT
Although our conclusion in part I A of this opinion
is dispositive of the present appeal, in the interest of
judicial economy, we address the defendant’s claim that
the trial court improperly admitted uncharged miscon-
duct because we conclude the issue is likely to arise on
remand. The following additional facts and procedural
history are relevant to the resolution of this claim. Prior
to the start of trial, the state filed a motion in which
it sought permission to offer evidence of uncharged
misconduct related to the Baltimore Street shooting in
order to prove identity and means. Defense counsel
opposed the motion, claiming that evidence of the Balti-
more Street shooting was surplus and prejudicial in
light of the fact that Rivera would provide in court
identifications of both the defendant and the firearm
used in the Enfield Street murder. Defense counsel fur-
ther argued that testimony indicating that the defendant
may have used the same gun in the subsequent Balti-
more Street shooting was not relevant to the present
case and served only to implicate him in a separate,
unrelated crime. Following argument, the trial court
granted the state’s motion for permission to offer evi-
dence of uncharged misconduct, concluding that the
evidence fell within the identity and means exceptions
under § 4-5 (c) of the Connecticut Code of Evidence.
At trial, the state proceeded to introduce evidence
of the Baltimore Street shooting, primarily through the
testimony of Deborah Parker, the victim of that crime.
Parker testified that, at approximately 2:30 a.m. on Feb-
ruary 16, 2008, she and her partner, Darryl Spence,
returned to their residence on Baltimore Street in Hart-
ford, where they lived with two of their sons. As Parker
and Spence got out of their vehicle, which belonged to
Parker’s oldest son, who did not live at the residence
on Baltimore Street, Parker noticed two men walking
on the street. As the men approached, Parker saw the
taller of the two men fire a handgun in her direction.
Then, the shorter of the two men fired a rifle in her
direction, but she could not identify the specific weapon
used. Parker saw the faces of both shooters illuminated
by a streetlight as she took cover underneath a vehicle,
and Spence ran away to hide elsewhere. Even though
at least twenty-nine shots had been fired, neither Parker
nor Spence was injured.
The police responded to the Baltimore Street shoot-
ing, but Parker declined to provide a written statement
about the incident, and, at that time, she did not know
the identity of the shooters and was not confident that
she would be able to identify them in the future. Later
that morning, Parker walked through her kitchen as
her sons were looking at photographs on the computer
from a concert they attended the night before and dis-
cussing a fight they got into at that concert. Parker
recognized the shooters in the photographs, and her
sons provided the first name or nickname for each of
the men she identified, including the defendant. Parker
called the police and told them where they could find
the photographs, but indicated that she did not know
the shooters’ full names and declined to file a written
statement. The police never got back to Parker, and
she did not follow up thereafter. In April, 2011, over
three years after the Baltimore Street shooting, Parker’s
oldest son was murdered in an unrelated incident. Then,
on August 24, 2011, Parker was approached by the
police to discuss the Baltimore Street shooting. At that
time, Parker identified both shooters from a photo-
graphic array and learned the defendant’s last name
from the police; she then signed a written statement
regarding the Baltimore Street shooting. Parker was
not aware of the victim’s murder on Enfield Street and
had never heard his name.
In addition, Stephenson testified regarding the cas-
ings that were recovered from the Baltimore Street
shooting. Of the twenty-two .223 caliber casings recov-
ered from the crime scene, Stephenson positively identi-
fied seventeen as having been fired from the recovered
Kel-Tec assault rifle, the same weapon that Stephenson
testified matched the casings from the Enfield Street
murder and that Rivera identified as having been used
by the defendant in that crime. See part I of this opinion.
Stephenson’s testimony, combined with Parker’s, estab-
lished that eight months following the Enfield Street
murder, the defendant was identified as having been
involved in the Baltimore Street shooting using a
weapon that was matched through ballistics evidence
to the weapon used in the Enfield Street murder, which
was subsequently recovered five months later through
an unrelated investigation.
On appeal to the Appellate Court, the defendant
argued that the probative value of the uncharged mis-
conduct evidence was outweighed by the risk of unfair
prejudice. State v. Raynor, supra, 181 Conn. App. 772.
Specifically, the defendant argued that ‘‘the evidence
[was] more prejudicial than probative because Parker’s
identification of the defendant was exceedingly unrelia-
ble, that the similarities between the charged and
uncharged conduct [rendered the] admission of the
uncharged misconduct overly prejudicial, and that the
uncharged misconduct painted the defendant as a
deranged gunman.’’ (Internal quotation marks omitted.)
Id., 774. The state argued that the trial court properly
admitted the evidence to establish identity and means.
Id., 772. The Appellate Court reasoned that, ‘‘[a]lthough
the facts of the uncharged misconduct involved the
defendant attempting to shoot Parker and Spence, [it
was] much less severe than [that] of the charged con-
duct, and, therefore, admission of the uncharged mis-
conduct evidence cannot be said to have unduly
aroused the jurors’ emotions.’’19 Id., 778. ‘‘Additionally,
the [trial] court . . . gave the jury limiting instructions
on three occasions . . . . These . . . instructions
provided, inter alia, that the uncharged misconduct evi-
dence was being admitted solely to show or establish
[the] identity of the person who committed the crimes
alleged . . . and the availability of the means to com-
mit those crimes.’’ (Internal quotation marks omitted.)
Id., 777. Accordingly, the Appellate Court concluded
that the trial court had not abused its discretion in
determining that the probative value of the uncharged
misconduct was not outweighed by the risk of unfair
prejudice. Id., 777–78. This appeal followed.
In the present case, the defendant claims that the
Appellate Court incorrectly upheld the trial court’s
admission of uncharged misconduct related to the Balti-
more Street shooting because the ‘‘tremendous prejudi-
cial impact of the prior misconduct evidence over-
whelmed its minimal probative value.’’ In response, the
state claims that the trial court’s ruling that the proba-
tive value of the Baltimore Street shooting outweighed
its prejudicial impact was neither so arbitrary as to
vitiate logic, nor based on improper or irrelevant fac-
tors.20 Specifically, the state highlights that this court
has recognized the probative value of evidence when
a defendant used the same weapon in another crime,
and that this court has observed that there is a reduced
risk of unduly arousing the jurors’ emotions when the
severity of the uncharged misconduct is less than the
severity of the crime at issue. On the basis of the evi-
dence contained within the record presently before us,
we agree with the defendant that the trial court incor-
rectly admitted the challenged evidence because its
prejudicial impact outweighed its probative value.
‘‘[A]s a general rule, evidence of prior misconduct is
inadmissible to prove that a criminal defendant is guilty
of the crime of which the defendant is accused. . . .
Such evidence cannot be used to suggest that the defen-
dant has a bad character or a propensity for criminal
behavior.’’ (Internal quotation marks omitted.) State v.
Collins, 299 Conn. 567, 582, 10 A.3d 1005, cert. denied,
565 U.S. 908, 132 S. Ct. 314, 181 L. Ed. 2d 193 (2011). ‘‘The
well established exceptions to the general prohibition
against the admission of uncharged misconduct are set
forth in § 4-5 [c] of the Connecticut Code of Evidence,
which provides in relevant part that ‘[e]vidence of other
crimes, wrongs or acts of a person is admissible . . .
to prove intent, identity, malice, motive, common plan
or scheme, absence of mistake or accident, knowledge,
a system of criminal activity, or an element of the crime,
or to corroborate crucial prosecution testimony.’ ’’ Id.,
583. ‘‘We have developed a two part test to determine
the admissibility of such evidence. First, the evidence
must be relevant and material to at least one of the
circumstances encompassed by the exceptions [set
forth in § 4-5 (c) of the Connecticut Code of Evidence].21
. . . Second, the probative value of the evidence must
outweigh its prejudicial effect. . . . Because of the dif-
ficulties inherent in this balancing process, the trial
court’s decision will be reversed only whe[n] abuse of
discretion is manifest or whe[n] an injustice appears
to have been done. . . . On review by this court, there-
fore, every reasonable presumption should be given
in favor of the trial court’s ruling.’’ (Footnote added;
internal quotation marks omitted.) Id., 582.
‘‘In determining whether the prejudicial effect of oth-
erwise relevant evidence outweighs its probative value,
we consider whether: (1) . . . the facts offered may
unduly arouse the [jurors’] emotions, hostility or sympa-
thy, (2) . . . the proof and answering evidence it pro-
vokes may create a side issue that will unduly distract
the jury from the main issues, (3) . . . the evidence
offered and the counterproof will consume an undue
amount of time, and (4) . . . the defendant, having no
reasonable ground to anticipate the evidence, is unfairly
surprised and unprepared to meet it.’’ (Internal quota-
tion marks omitted.) Id., 586–87.
This court has repeatedly held that ‘‘[t]he prejudicial
impact of uncharged misconduct evidence is assessed
in light of its relative ‘viciousness’ in comparison with
the charged conduct.’’ State v. Campbell, 328 Conn. 444,
522–23, 180 A.3d 882 (2018); see also State v. Collins,
supra, 299 Conn. 588 (‘‘[u]ncharged misconduct evi-
dence has been held not unduly prejudicial when the
evidentiary substantiation of the vicious conduct, with
which the defendant was charged, far outweighed, in
severity, the character of his prior misconduct’’ (inter-
nal quotation marks omitted)). The rationale behind
this proposition is that the jurors’ emotions are already
aroused by the more severe crime of murder, for which
the defendant is charged, and, thus, a less severe,
uncharged crime is unlikely to arouse their emotions
beyond that point. The question of whether the evidence
is unduly prejudicial, however, does not turn solely
on the relative severity of the uncharged misconduct.
Instead, prejudice is assessed on a continuum—on
which severity is a factor—but whether that prejudice
is undue can only be determined when it is weighed
against the probative value of the evidence.
In the present case, the Baltimore Street shooting
was a less severe crime than the Enfield Street murder
solely due to the fact that neither Parker nor Spence
was hit by one of the dozens of shots fired. The Balti-
more Street shooting and the Enfield Street murder,
however, shared other common characteristics, includ-
ing individuals being shot at by assailants outside of
their own homes. Each incident involved two people,
one male and one female, who were currently in, or had
recently been in, a romantic relationship, as opposed
to groups of friends or associates. These shootings each
occurred in the middle of the night, involved dozens of
shots being fired, and ended with the assailants fleeing
the scene. While these two incidents were not identical,
the similarities cannot be dismissed as irrelevant, and,
together, they increase the risk of undue prejudice. See,
e.g., State v. Artieri, 206 Conn. 81, 87, 536 A.2d 567(1988) (‘‘[w]here the prior crime is quite similar to the
offense being tried, a high degree of prejudice is created
and a strong showing of probative value would be neces-
sary to warrant admissibility’’ (internal quotation marks
omitted)).
In addition, evidence of the Baltimore Street shooting
was introduced through the testimony of Parker, the
victim of that crime, and her testimony was not limited
only to the fact that there was a shooting, with no other
details regarding the surrounding events. See State v.
Collins, supra, 299 Conn. 589 (‘‘we find significant the
trial court’s efforts to have the prosecution admonish
its witnesses that any testimony about the [previous
uncharged misconduct] was to be limited only to the
fact that there was a shooting’’). Instead, Parker testi-
fied in detail about the shooting, including her feelings
of being scared and her exact movements during the
shooting, and she detailed her initial efforts to follow
up with the police. Parker also described events beyond
the Baltimore Street shooting. She suggested that her
sons and the defendant had been involved in an alterca-
tion at a concert the night before and revealed that her
oldest son was murdered shortly before she spoke to
the police again in August, 2011. While none of these
details in isolation is determinative of whether the evi-
dence is unduly prejudicial,22 when combined, they
could arouse the jurors’ emotions and require a higher
level of probative value to overcome the prejudicial
impact.23
The probative value of the Baltimore Street shooting
was too low to overcome its prejudicial impact. The
Baltimore Street shooting occurred eight months after
the Enfield Street murder. There was no evidence to
suggest that the Baltimore Street shooting was moti-
vated by or related to the earlier Enfield Street murder.
They were separate shootings and, with the exception
of the defendant, involved different participants and
unrelated victims. Parker’s testimony relating to the
Baltimore Street shooting was admitted to prove that
the defendant had been involved in this separate, subse-
quent gun related crime, where the shell casings
matched the .223 caliber Kel-Tec assault rifle. Evidence
that the defendant was involved in a shooting in which
he allegedly used the same weapon only minimally
increased the probability that he was the shooter who
used that weapon eight months prior during the Enfield
Street murder. This connection is further eroded by the
fact that the .223 caliber Kel-Tec assault rifle was not
recovered at the scene of the Baltimore Street shooting
but, instead, five months later from a different location
following a lead provided by a confidential informant.
Cf. State v. Collins, supra, 299 Conn. 570–76.24 The state
did not need to introduce evidence of the Baltimore
Street shooting to connect the defendant to the .223
caliber Kel-Tec assault rifle used in the Enfield Street
murder that the police subsequently recovered from a
different location. The state presented direct evidence
from Rivera connecting the defendant to that gun and
the Enfield Street murder.25 Having reviewed the record
in the present case, we conclude that the prejudicial
effect of the uncharged misconduct unduly exceeded
its probative value.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand
the case to that court for a new trial.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** December 4, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
This court granted the defendant’s petition for certification to appeal,
limited to the following issues: (1) ‘‘Did the Appellate Court correctly con-
clude that the trial court had properly denied the defendant’s motion for a
Porter hearing to determine the reliability of firearm and toolmark identifica-
tion?’’ (2) ‘‘Did the Appellate Court correctly conclude that the trial court
had properly denied the defendant’s motion in limine to limit the scope of
the testimony of the state’s expert on firearm and toolmark analysis?’’ And
(3) ‘‘[d]id the Appellate Court correctly conclude that the trial court had
properly admitted the uncharged misconduct evidence?’’ State v. Raynor,
330 Conn. 910, 193 A.3d 49 (2018).
2
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). ‘‘In Porter, we
followed the United States Supreme Court’s decision in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469(1993), and held that testimony based on scientific evidence should be
subjected to a flexible test to determine the reliability of methods used to
reach a particular conclusion. . . . A Porter analysis involves a two part
inquiry that assesses the reliability and relevance of the witness’ methods.
. . . First, the party offering the expert testimony must show that the
expert’s methods for reaching his conclusion are reliable. A nonexhaustive
list of factors for the court to consider include: general acceptance in the
relevant scientific community; whether the methodology underlying the
scientific evidence has been tested and subjected to peer review; the known
or potential rate of error; the prestige and background of the expert witness
supporting the evidence; the extent to which the technique at issue relies
[on] subjective judgments made by the expert rather than on objectively
verifiable criteria; whether the expert can present and explain the data and
methodology underlying the testimony in a manner that assists the jury in
drawing conclusions therefrom; and whether the technique or methodology
was developed solely for purposes of litigation. . . . Second, the proposed
scientific testimony must be demonstrably relevant to the facts of the particu-
lar case in which it is offered, and not simply be valid in the abstract. . . .
Put another way, the proponent of scientific evidence must establish that
the specific scientific testimony at issue is, in fact, derived from and based
[on] . . . [scientifically reliable] methodology. . . .
‘‘Additionally, we recognized in Porter that . . . [t]he actual operation
of each [Porter] factor, as is the determination of which factors should be
considered at all, depends greatly on the specific context of each case in
which each particular [threshold admissibility] analysis is conducted. . . .
There is, however, a critical postulate that underlies the Porter factors and
indeed underlies the entire Porter analysis: in order for the trial court, in
the performance of its role as the gatekeeper for scientific evidence, properly
to assess the threshold admissibility of scientific evidence, the proponent
of the evidence must provide a sufficient articulation of the methodology
underlying the scientific evidence. Without such an articulation, the trial
court is entirely ill-equipped to determine if the scientific evidence is reliable
upon consideration of the various Porter factors. Furthermore, without a
clear understanding as to the methodology and its workings, the trial court
also cannot properly undertake its analysis under the fit requirement of
Porter, ensuring that the proffered scientific evidence, in fact, is based upon
the reliable methodology articulated.’’ (Internal quotation marks omitted.)
State v. Edwards, 325 Conn. 97, 124–25, 156 A.3d 506 (2017).
3
The defendant cites two particular publications. See National Research
Council of the National Academies, Strengthening Forensic Science in the
United States: A Path Forward (2009) (2009 NAS report); National Research
Council of the National Academies, Ballistic Imaging (2008) (2008 NAS
report). For the sake of simplicity, we collectively refer to these publications
as the NAS reports.
4
For example, in his principal brief to this court, the defendant interprets
the NAS reports to stand for the proposition that ‘‘firearm toolmark identifi-
cation has not been proven to be scientifically valid for three primary rea-
sons: (1) the fundamental assumptions of the methodology are not reliable,
(2) the standard for identifying matches to particular firearms is impermissi-
bly vague and subjective, and (3) there is no quantification of the accuracy
and error rates of identifications.’’
5
At trial, Stephenson described the three sets of characteristics that fire-
arm and toolmark examiners compare between casings recovered from a
crime scene and a test fire from a suspected weapon to determine the
existence of a match. Class characteristics are the general ammunition
characteristics that are intentionally made during the manufacturing process,
including, but not limited to, the size, shape, weight, diameter, grooves, and
other features that indicate the manufacturer and caliber of that specific
ammunition. Subclass characteristics are markings on the ammunition that
are not made for the purpose of the ammunition itself but that are uninten-
tionally made during the manufacturing process. These markings are made
by the tools as the ammunition is manufactured, for example, the bore tool
as it cuts the grooves. Individual characteristics are fine striated marks that
are left on the ammunition by a specific firearm due to unique markings
left by the actual manufacturing of a barrel or the repeated use of the firearm
that has worn down or chipped that barrel.
6
The Appellate Court also noted that ‘‘policy dictates that one panel
should not . . . reverse the ruling of a previous panel. The reversal may
be accomplished only if the appeal is heard en banc.’’ (Emphasis in original;
internal quotation marks omitted.) State v. Raynor, supra, 181 Conn. App. 770n.4. ‘‘On November 27, 2017, the defendant filed a motion for consideration
en banc, which [the Appellate Court] denied on January 10, 2018. Addition-
ally, the entire [Appellate Court did not order] that [the] case be considered
en banc pursuant to Practice Book § 70-7 (b), nor [was it] persuaded that
en banc review [was] warranted. Therefore, [the Appellate Court would]
not overrule Legnani.’’ Id.
7
We emphasize that the question of whether the evidence referenced in
the defendant’s motion for a Porter hearing casts sufficient doubt on the
reliability of the methodology employed by the firearm and toolmark expert
to warrant a Porter hearing must be vested, in the first instance, in the
sound discretion of the trial court. See, e.g., State v. Jackson, 304 Conn.
383, 412, 40 A.3d 290 (2012). We note, however, that various courts have
considered the NAS reports and concluded that firearm and toolmark evi-
dence continues to be both reliable and admissible. See, e.g., United States
v. Otero, 849 F. Supp. 2d 425, 430, 437–38 (D.N.J. 2012), aff’d, 557 Fed. Appx.
146 (2014); State v. Terrell, Superior Court, judicial district of New Haven,
Docket No. CR-XX-XXXXXXX-S (March 21, 2019) (68 Conn. L. Rptr. 323, 325,
327); Johnston v. State, 27 So. 3d 11, 20–22 (Fla.), cert. denied, 562 U.S.
964, 131 S. Ct. 459, 178 L. Ed. 2d 292 (2010); State v. Adams, Docket No.
COA10-1363, 2011 WL 1938270, *6–7 (N.C. App. May 17, 2011).
8
Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
9
Porter hearings held by trial courts are synonymous with Daubert hear-
ings held by federal district courts and state courts of other jurisdictions.
The hearings, regardless of their title, involve the application of the principles
articulated in Daubert. See footnote 2 of this opinion.
10
From 1994 to 2014, Stephenson was employed by the Connecticut State
Forensic Laboratory’s Firearms Identification Unit as a firearm and toolmark
examiner. From 2008 to 2014, he also served as a member of the Scientific
Working Group for Firearms and Toolmarks, which ‘‘wrote protocol and
procedures and adopted information that was disseminated to the firearms
and toolmark examiners’’ throughout the world. Since 2014, Stephenson
had worked as a private consultant for firearm and toolmark identification.
In addition, Stephenson had attended numerous trainings offered by the
AFTE, the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the
Federal Bureau of Investigation. Over the course of his career, Stephenson
had examined tens of thousands of firearms and testified a total of 321
times in both state and federal courts.
11
The jury heard testimony from Alisha Stevens, who was standing with
the victim on Enfield Street when he was murdered. Stevens, however,
could not identify the shooter or the firearm. The jury also heard testimony
from Deborah Parker and Stephenson about the shooting on Baltimore
Street. Parker identified the defendant as having fired a rifle at her and her
partner, but she could not positively identify the .223 caliber Kel-Tec assault
rifle as the weapon used. As described in part II of this opinion, however,
testimony related to the Baltimore Street shooting had extremely limited
probative value.
12
The jury heard Rivera testify to the following pending cases in addition
to the charges related to the Enfield Street murder, all of which he was
arrested for, pursuant to a warrant issued on November 5, 2013: (1) an
incident on December 15, 2007, for which he was charged with attempted
murder and conspiracy to commit murder; (2) an incident on July 22, 2008,
for which he was charged with conspiracy to commit murder, two counts
of attempt to commit murder, and two counts of accessory to commit assault
in the first degree; (3) an incident on August, 9, 2008, for which he was
charged with manslaughter in the first degree with a firearm, six counts of
accessory to commit assault in the first degree, and weapons offenses; (4)
an incident on August 9, 2008, for which he was charged with conspiracy
to commit murder, two counts of accessory to commit murder, and criminal
possession of a firearm; and (5) an incident on August 10, 2008, for which
he was charged with conspiracy to commit murder, two counts of attempt
to commit murder, two counts of assault in the first degree, and weapons
offenses. In addition, Rivera was also arrested pursuant to a warrant issued
in October, 2012, and charged with the sale of narcotics.
13
In Terrell, the defendant ‘‘moved to preclude the [s]tate from presenting
the testimony of . . . a firearm and toolmark examiner . . . to the jury
. . . because the methodology of toolmark analysis is not scientifically valid.
In the alternative, the defendant request[ed] that the [trial] court limit the
scope of [the expert’s] testimony by prohibiting him from testifying that the
shell casing found at the scene was fired from the firearm located there.’’
State v. Terrell, supra, 68 Conn. L. Rptr. 324. In that case, the court, Alander,
J., granted the defendant’s request for a Porter hearing notwithstanding
State v. Raynor, supra, 181 Conn. App. 760, and State v. Legnani, supra,109 Conn. App. 399. See State v. Terrell, supra, 324. In so doing, the court
in Terrell noted that ‘‘both [Raynor and Legnani] held that the trial court
did not abuse its discretion in refusing to conduct . . . a hearing on the
issue of firearm analysis . . . implicitly leav[ing] a trial court the discretion
to hold such a hearing.’’ (Citation omitted.) Id. Furthermore, it concluded
that, ‘‘[g]iven recent national studies raising questions regarding the method-
ology used in firearm and toolmark examination . . . a hearing on the
validity of the methodology was warranted.’’ Id. The court in Terrell pro-
ceeded to hold a Porter hearing and concluded that the state had established
that ‘‘basic techniques employed by firearm and [toolmark] examiners are
generally accepted in the relevant scientific community.’’ Id., 327.
As part of the Porter hearing, the court in Terrell considered the NAS
reports as well as a report issued by the President’s Council of Advisors
on Science and Technology, titled ‘‘Forensic Science in Criminal Courts:
Ensuring Scientific Validity of Feature Comparison Methods . . . .’’ (Inter-
nal quotation marks omitted.) Id., 325–26. The court also denied the defen-
dant’s motion to preclude the testimony of the expert in its entirety but
prohibited the expert from testifying that ‘‘the likelihood that a firearm other
than the [one] recovered at the crime scene could have fired the recovered
[subject] casing is so remote as to be considered a practical impossibility.’’
(Internal quotation marks omitted.) Id., 327; see id., 328.
14
In Balbi, the trial court took judicial notice of its own decision in a
separate case, as well as the decision of another Superior Court judge, that
a horizontal gaze nystagmus test was a scientifically reliable and relevant
test. State v. Balbi, supra, 89 Conn. App. 572. During the pendency of the
appeal in Balbi, the Appellate Court considered horizontal gaze nystagmus
evidence in State v. Commins, 83 Conn. App. 496, 501–502, 850 A.2d 1074,
aff’d, 276 Conn. 503, 886 A.2d 824 (2005). ‘‘In Commins, the trial judge
conducted a Porter hearing during which he heard extensive testimony
. . . . At the conclusion of the Porter hearing, the court found that the
horizontal gaze nystagmus test and its underlying methodology [are] gener-
ally accepted in the scientific community—a conclusion that alone would
likely suffice to establish a sufficient foundation for admission—but also
that [they satisfy] many of the remaining Porter criteria. On the basis of
that determination, the [trial judge] allowed evidence related to the test.’’
State v. Balbi, supra, 575–76. The Appellate Court affirmed the judgment
of the trial court in Commins. State v. Commins, supra, 514. Returning to
the appeal in Balbi, the Appellate Court held that its ‘‘determination in
Commins that horizontal gaze nystagmus evidence satisfies the Porter test
for the admission of scientific evidence rendered it unnecessary for the
[trial] court in [Balbi] to conduct its own Porter hearing prior to admitting
evidence about the test.’’ State v. Balbi, supra, 576. There is no indication
that additional evidence challenging the horizontal gaze nystagmus test was
brought to the attention of the trial court in Balbi that was not previously
considered in Commins.
15
Even when an appellate court has upheld a trial court’s denial of a
Porter hearing, such a decision is binding only to the extent that a future
challenge to the reliability of the methodology relies on the same evidence
considered by the prior trial court. In the present case, the NAS reports
submitted by the defendant postdated the decision in Legnani.
16
For example, a trial court may take judicial notice of the conclusions
reached with respect to firearm and toolmark methodology following the
Porter hearing in Terrell. See generally State v. Terrell, supra, 68 Conn. L.
Rptr. 323.
17
The purpose of taking judicial notice of previous Porter hearings is to
avoid redundancies created by holding successive hearings when another
trial court has considered the same evidence challenging the methodology.
This does not, however, mean that the reliability of the underlying methodol-
ogy is insulated from appellate review. A trial court’s decision to deny a
Porter hearing is still subject to appellate review, and taking judicial notice
does not prevent review for abuse of discretion.
18
‘‘It is well settled that [a]ppellate courts possess an inherent supervisory
authority over the administration of justice. . . . Under our supervisory
authority, we have adopted rules intended to guide the lower courts in the
administration of justice in all aspects of the criminal process. . . . Gener-
ally, cases in which we have invoked our supervisory authority for rule
making have fallen into two categories. . . . In the first category are cases
wherein we have utilized our supervisory power to articulate a procedural
rule as a matter of policy, either as [a] holding or dictum, but without
reversing [the underlying judgment] or portions thereof. . . . In the second
category are cases wherein we have utilized our supervisory powers to
articulate a rule or otherwise take measures necessary to remedy a perceived
injustice with respect to a preserved or unpreserved claim on appeal.’’
(Citation omitted; internal quotation marks omitted.) State v. Weatherspoon,
332 Conn. 531, 552–53, 212 A.3d 208 (2019).
19
The Appellate Court also could not say that ‘‘admission of the uncharged
misconduct evidence created a distracting side issue, as the evidence admit-
ted linked the rifle and the perpetrator of the uncharged shooting to the
murder at issue in [the present] case. Additionally, the presentation of
evidence related to the Baltimore Street shooting did not take up an inordi-
nate amount of time, as the presentation of the uncharged misconduct
evidence comprised at most one and one-half days of a six day trial. Finally,
the defendant was not unfairly surprised by the admission of this evidence,
as it was admitted in the defendant’s first trial and [as] the state filed
a pretrial motion for the admission of uncharged misconduct evidence.’’
(Footnote omitted.) State v. Raynor, supra, 181 Conn. App. 778.
20
The state also contends that any error in this regard was harmless.
Because we address this claim as an issue likely to arise on remand, we
need not address questions of harmless error in the present appeal.
21
The defendant does not contest the relevancy of the evidence relating
to the Baltimore Street shooting.
22
The judge at the defendant’s first trial noted the risk of admitting
improper character evidence. During pretrial oral arguments, the trial court
stated that it was ‘‘very concerned in this case that the . . . defendant not
be tried . . . under the theory of a bad man. We don’t do that. So, I think
both sides are going to have to be careful in not opening doors that—I don’t
know if I’ve seen a case with so many doors.’’
23
The state claims that the prejudicial impact is negated ‘‘in light of the
care with which the trial court, on three separate occasions, cautioned the
jury as to the limited use for which [it was] to consider the evidence.’’ We
acknowledge that the trial court gave the jury limiting instructions that the
uncharged misconduct evidence was being admitted ‘‘solely to show or
establish [the] identity of the person who committed the crimes alleged in
this information, and the availability of the means to commit those crimes’’
on the following three occasions: (1) prior to the state first presenting
evidence of the Baltimore Street shooting, (2) following Parker’s testimony,
and (3) during its final charge to the jury. See State v. Beavers, 290 Conn.
386, 406, 963 A.2d 956 (2009) (‘‘the care with which the [trial] court weighed
the evidence and devised measures for reducing its prejudicial effect mili-
tates against a finding an abuse of discretion’’ (internal quotation marks
omitted)). Although limiting instructions serve to ‘‘minimize any prejudice
that might arise from the admission of . . . prior misconduct evidence’’;
State v. Cutler, 293 Conn. 303, 314, 977 A.2d 209 (2009), overruled in part
on other grounds by State v. Elson, 311 Conn. 726, 91 A.3d 862 (2014); the
instructions would have needed to virtually eliminate the prejudice in the
present case, given the very low probative value of the evidence of the
Baltimore Street shooting. We cannot conclude that even multiple limiting
instructions could have achieved that goal. In addition, limiting instructions
may feature more prominently in a harmless error analysis. See footnote
20 of this opinion.
24
The Appellate Court held that Collins guided its resolution of the claim
based on the proposition that uncharged misconduct is admissible when the
‘‘severity of the charged conduct outweigh[s] the severity of the uncharged
conduct.’’ State v. Raynor, supra, 181 Conn. App. 777. The facts of Collins,
however, are distinguishable from the facts of the present case. In Collins,
the uncharged misconduct involved a shooting that not only occurred in
closer temporal proximity to the charged murder than in the present case—
four months as opposed to eight months—it occurred prior to the charged
murder. See State v. Collins, supra, 299 Conn. 570–72. We also observe that
the defendant in that case admitted to committing the uncharged misconduct
with a chrome and black nine millimeter handgun. Id., 572. Further, in
Collins, a witness testified to having seen the defendant with the same gun
used in the uncharged misconduct several days before the charged murder.
Id., 573–74. Thus, the facts of Collins made the uncharged misconduct
highly probative.
25
Rivera provided eyewitness testimony that the defendant purchased the
.223 caliber Kel-Tec assault rifle one to one and one-half months before the
Enfield Street murder, and also testified that the defendant had called him
for the purpose of finding and shooting members of The Avenue, the defen-
dant used the .223 caliber Kel-Tec assault rifle as the shooter at the Enfield
Street murder, and the defendant knew where the weapon was located prior
to its being recovered by the police, because the defendant was the one
who notified Rivera that it had been found. In addition, Stephenson testified
that the casings recovered from the Enfield Street murder matched the
recovered .223 caliber Kel-Tec assault rifle.