State v. Wilson ( 2022 )

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STATE OF CONNECTICUT v. BRYANT WILSON
(AC 42914)
Alvord, Moll and Clark, Js.
Syllabus
Convicted of the crimes of murder and carrying a pistol without a permit
as a result of the shooting death of the victim, the defendant appealed,
claiming, inter alia, that he was deprived of his right to present a defense
when the trial court improperly instructed the jury about the adequacy
of the police investigation. The defendant’s theory of defense was that
the police conducted an inadequate investigation during which, among
other things, they failed to investigate leads, did not attempt to obtain
DNA profiles or request DNA testing of certain evidence, and failed to
treat four individuals as suspects and take DNA samples from them,
even though they were in the vicinity of the shooting at about the time
it occurred. The defendant filed a request to charge as to the inadequacy
of the police investigation that differed from the model jury instruction
on the Judicial Branch website at that time. After conducting a charging
conference with counsel, the trial court used the model instruction
rather than the defendant’s requested charge. The defendant claimed
that the court’s instructions effectively told the jurors to disregard the
adequacy of the police investigation as it related to the strength of the
state’s case and to disregard his theory of the case. During the pendency
of the defendant’s appeal, our Supreme Court issued its decision in State
v. Gomes (337 Conn. 826), in which it held that the model jury instruction
improperly failed to inform the jury of a defendant’s right to present
evidence of investigative inadequacy and the jury’s right to consider
such deficiencies in evaluating whether the state proved its case beyond
a reasonable doubt. Held:
1. The trial court erred when it instructed the jury regarding the adequacy
of the police investigation, as it was reasonably possible that the instruc-
tions misled the jury to believe it could not consider the defendant’s
arguments as to that issue:
a. Contrary to the state’s assertion that the defendant’s claim was unpre-
served because it was substantially different from the claim he raised
at trial, his written request to charge sufficiently covered the matter,
the defendant requested language that was different from and more
comprehensive than that contained in the model jury charge on the
Judicial Branch website, and his requested charge omitted language that
the court in Gomes found presented a significant risk of misleading
the jury.
b. The defendant did not waive his preserved claim of instructional error:
the defendant did not withdraw his request for a jury instruction on the
inadequacy of the police investigation, and nothing in the record of
the charging conference demonstrated an intention by the defendant to
abandon his request; moreover, a reasonable reading of defense counsel’s
statement during the charging conference that the court included in its
proposed charge two of his instructional requests was that counsel was
mistaken as to the content of the court’s proposed charge and wrongly
believed the court included his proposed investigative inadequacy
charge; furthermore, a reasonable reading of the prosecutor’s comments
during the charging conference was that he did not believe the defen-
dant’s request had been effectively withdrawn.
c. The trial court’s use of the model jury instruction on investigative
inadequacy was harmful, and, thus, the defendant was entitled to a new
trial: the state’s case was not strong, as its primary evidence was from
jailhouse informants who testified in exchange for beneficial treatment
in their pending criminal matters, the physical evidence focused on a
hat that was found in bushes near the crime scene, which contained the
DNA of two other individuals in addition to that of the defendant, there
was no evidence outside of the jailhouse informant testimony that the
assailant wore a hat, and the gun allegedly used was problematic in that
no forensic evidence linked it to the shooting and no casings were found
at the scene; moreover, there were no eyewitnesses to the shooting, and
the defendant did not appear on any of the surveillance videos obtained
by the police.
2. The trial court did not abuse its discretion by admitting certain uncharged
misconduct evidence pertaining to two shootings that occurred subse-
quent to the victim’s death: the probative value of the uncharged miscon-
duct evidence was high, as the subsequent shootings connected the
defendant with the gun allegedly used in the homicide of the victim,
the defendant’s guilty pleas as to the subsequent shootings and a state-
ment he made to the police that he liked to play with guns were probative
of his means and opportunity to commit the charged crimes, and a spent
shell casing in a handgun the police recovered at the scene of one of
the subsequent shootings, and testimony related thereto, were probative
as to the lack of shell casings found at the scene of the victim’s homicide;
moreover, it was unlikely that the facts of the two subsequent shootings,
which were significantly less severe than the charged crimes in that
there were no injuries, unduly aroused the emotions of the jurors; fur-
thermore, the uncharged misconduct evidence did not consume an
undue amount of time or create an unduly distracting side issue, as the
court limited the state to a narrow presentation of the basic facts of
the subsequent shootings, the evidence was introduced through the
testimony of multiple witnesses interspersed throughout three of the
nine days of trial, a limited amount of the evidence was documentary,
and the prosecutor did not belabor his examination of the witnesses.
Argued October 14, 2021—officially released January 11, 2022
Procedural History
Substitute information charging the defendant with
the crimes of murder and carrying a pistol without a
permit, brought to the Superior Court in the judicial
district of New Britain and tried to the jury before
Dewey, J.; thereafter, the court granted in part the
defendant’s motion to preclude certain evidence; ver-
dict and judgment of guilty, from which the defendant
appealed. Reversed; new trial.
Jennifer B. Smith, assistant public defender, for the
appellant (defendant).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Brian W. Preleski, state’s
attorney, Helen J. McLellan, senior assistant state’s
attorney, and Nancy L. Walker, former assistant state’s
attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Bryant Wilson, appeals
from the judgment of conviction, rendered after a jury
trial, of murder in violation of General Statutes § 53a-
54a (a) and carrying a pistol without a permit in viola-
tion of General Statutes § 29-35 (a). On appeal, the
defendant claims that (1) the trial court’s investigative
inadequacy jury instruction deprived him of his right
to present a defense, and (2) the trial court erred in
admitting uncharged misconduct evidence. We reverse
the judgment of conviction.
The following evidence was presented to the jury.
On August 18, 2014, at approximately 10:45 p.m., the
victim, Corey Washington, was shot in the abdomen
while he was in the driveway of 62-64 Roberts Street
in New Britain. New Britain Police Officer Brian Shea
was dispatched to the scene and arrived minutes later.
When Officer Shea arrived, New Britain Police Officer
Lou Violette was rendering aid to the victim. The victim
was transported by ambulance to the Hospital of Cen-
tral Connecticut in New Britain, where he was pro-
nounced dead at 11:24 p.m. The victim’s autopsy
revealed that he sustained a single gunshot wound, that
the bullet entered the front of his abdomen and exited
through his lower back, and that the wound was likely
caused by a medium or large caliber type of bullet,
such as a nine or ten millimeter, a .38 caliber, or a .44
caliber bullet.
Jerome Blackman, the boyfriend of the victim’s
mother, was sitting with the victim’s mother in his vehi-
cle in the backyard of 60 Roberts Street when he heard
a gunshot that sounded like a ‘‘loud cannon,’’ followed
by two ‘‘pop sounds’’ that he also thought were gun-
shots, and someone running down the gravel driveway
of 62-64 Roberts Street. He could not see the area behind
62-64 Roberts Street because there was a fence
obstructing his view. There was a ‘‘cut-through’’ in the
fence behind Roberts Street that led to Trinity Street.
Additional police officers arrived at the scene and
conducted a search of the area in which the victim was
found. The area was dark, illuminated only by scattered
streetlights and officers’ handheld flashlights. The
police did not find any firearms or shell casings.1 New
Britain Police Officer Rafal Korczak participated in the
search. He was directed to search the area of Trinity
Street. He located a black and silver San Antonio Spurs
cap ‘‘stuck in the bushes’’ next to 59 Trinity Street,
which property was located directly behind 62-64
Roberts Street. Detective Kevin Artruc photographed
and seized the hat. A forensic science examiner from
the DNA unit of the state forensics laboratory deter-
mined that there were at least three contributors to the
DNA profile on a sample taken from the Spurs cap. The
defendant was included as a contributor. When later
interviewed, the defendant told the police that, on the
night of the shooting, he was either at his girlfriend’s
house or at the home of his friend, Mark Stepney, at
10 School Street. The defendant described Stepney as
‘‘his right-hand man.’’
The state presented evidence that, two days after the
victim was murdered, the defendant was involved in
two shootings, one on Maple Street and one on Prospect
Street, in which the defendant admitted to having fired
a Desert Eagle .44 magnum handgun. No one was
harmed in either shooting. While a police officer admin-
istered a test2 to the defendant at the Maple Street
location, the defendant said that there would probably
be residue on his hands because ‘‘I like to play with
guns . . . my boys have guns, a .44 magnum.’’ The
police recovered five casings from Maple Street. Detec-
tive Felix J. Perez testified that he recovered a Desert
Eagle .44 magnum handgun (Desert Eagle) from under-
neath a parked vehicle at 10 School Street and that
there was ‘‘a spent casing’’ inside the handgun. The
defendant told Detective Thai Tran that he had pos-
sessed the gun that was recovered from 10 School
Street. Forensic examination of the Maple Street cas-
ings and the spent casing found inside the Desert Eagle
revealed that all of the casings had been fired from
that gun.
The state presented the testimony of two jailhouse
informants, Shannon Davis and Andrew El Massri.3
Davis, the defendant’s cellmate in November and
December, 2014, made a request to speak with the
police,4 met with Detective Tran, and gave a written
statement.5 At trial, Davis testified that the defendant
told him that he wanted to rob the victim and had a
third party call the victim to set up a purchase of mari-
juana. Davis further testified that the defendant told
him that the victim did not give up anything and that
the defendant shot the victim, took off running, hopped
a fence, and lost his hat. Davis testified that the defen-
dant was concerned that the hat would be found. Davis
further testified that the defendant told him that he
used ‘‘a pretty big gun . . . a 40 40,’’ ‘‘Desert Eagle’’ to
shoot the victim, and that ‘‘it had .357 bullets in the
gun.’’ Davis testified that the defendant told him that
he had ‘‘stashed the gun next to a house’’ and that the
defendant’s friend, who had brought him to the area,
was waiting in a car for him on another street where
there was a Chinese restaurant.6 Davis testified that the
defendant told him that, after shooting the victim, he
had gotten into a shootout using a ‘‘totally different’’
gun. Davis testified that the defendant told him that he
had a friend go back to get the Desert Eagle. Davis
further testified that the defendant told him that he
gave the gun to a ‘‘white dude,’’ who gave the gun to
the police.
El Massri, who was incarcerated with the defendant
in February and March, 2015, also met with Detective
Tran and gave a written statement.7 At the defendant’s
trial, El Massri testified that he worked as a prison
barber and cut the defendant’s hair. El Massri testified
that the defendant told him about the crime on two
occasions when he was cutting his hair and on a third
occasion when the two were sitting in a bullpen. El
Massri testified that the defendant told him that he
and the victim were dating the same woman and had
‘‘burned down’’ each other’s houses, and that was when
the defendant decided that he was going to murder the
victim. El Massri testified that the defendant told him
that he and Tyrell Johnson had set up a ‘‘weed sale’’ so
that the defendant could ambush the victim. El Massri
testified that the defendant said that Johnson drove the
defendant to the area where he waited with a ‘‘40 40
or Desert Eagle,’’ and that he shot the victim ‘‘three or
four times at his chest and stomach area’’ and took off
running to ‘‘a girl’s house that lived down the street.’’
El Massri testified that the defendant told him that the
shooting occurred on Martin Street and that he ‘‘put
the gun outside in some bushes’’ and then got a ride to
Middletown. El Massri testified that the defendant told
him he left a black San Antonio Spurs hat when he ran
from the scene and that ‘‘he was really worried about
that.’’ El Massri testified that the defendant told him
that he later went back to get the gun and gave it to
‘‘a white guy named Tom,’’ who eventually gave it to
the police.
The state also introduced into evidence recordings of
three phone calls the defendant had made from prison
in September, 2014. In one call, the defendant directed
a woman to tell someone to ‘‘check Tommy’’ and that
he ‘‘ratted on me.’’ In another call, he stated that the
‘‘white boy . . . downstairs from Lisa’s house’’ ‘‘lied
on me to the police.’’ In another call, he again said
that ‘‘the little white boy over there lied on me to the
police . . . .’’
The defendant presented the testimony of Robert M.
Bloom, a law professor and expert in the area of jail-
house informants. Bloom testified that jailhouse infor-
mants are ‘‘not as reliable as normal witnesses’’ because
they ‘‘have a huge incentive. The incentive is freedom.
So, in return for their testimony, they [are] getting a
huge incentive.’’ He further testified that, ‘‘as a result
of DNA exonerations, they look at some of the reasons
for the exoneration. And the most recent data indicates
that 17 percent of the exonerated individuals, those
cases had informants testifying as to their—whatever
the state wanted them to testify to, and these were
individuals that were later exonerated.’’ He further testi-
fied that the presumption in those cases is that the
testimony was false. Bloom identified factors to con-
sider when determining the credibility of a jailhouse
informant, including the amount of time the informant
is facing in prison; the charges pending against him;
whether there is an explicit promise and, if so, what
the promises are; whether there is an implicit promise
and, if so, that the inmate will testify that no one has
made promises to him but will know that he will get
some benefit; the informant’s knowledge of the criminal
justice system; the number of times the informant has
met with investigators and who was present; whether
there is a transcript of the meeting with the investiga-
tors; and the informant’s record of convictions and any
charges pertaining to the failure to tell the truth.8
The defendant offered an alibi defense. Lisa Vidtor,
Stepney’s mother, testified that the defendant was pres-
ent at the Maple Street home of a mutual friend, Sherry,
on the evening of the murder. Vidtor testified that the
defendant, Stepney, and others were present at Sherry’s
house when she arrived at about 7:30 p.m., and that the
defendant stayed there all night. She testified that the
defendant was drinking whiskey on the downstairs
porch with Stepney, and that she was ‘‘up and down
the stairs’’ during the evening. Vidtor also could hear
them on the porch, and she had gone downstairs to
listen to them singing and rapping. Vidtor testified that
the defendant went to bed at about ‘‘11 something.’’
Vidtor remembered that the date was August 18, 2014,
because her electricity had been shut off and she had
gone to stay at Sherry’s house because of the shutoff.
On rebuttal, the state presented the testimony of John
Nims, a program manager for Eversource Energy. Nims
testified that there was both a request for a disconnect
and an actual disconnect of electricity at 10 School
Street on August 19, 2014. Vidtor testified that she did
not come forward earlier because the police did not
come to her and question her. Detective Tran testified
on rebuttal that he had called Vidtor on the telephone
and went to two addresses with which she was associ-
ated to speak with her, but he was unsuccessful at
connecting with her.
The defendant was charged in a long form informa-
tion with murder in violation of § 53a-54a (a) and car-
rying a pistol without a permit in violation of § 29-35
(a). The matter was tried to a jury, Dewey, J., presiding.
On October 25, 2017, the jury returned a verdict of guilty
of both counts. On January 3, 2018, the court sentenced
the defendant to a total effective term of fifty-five years
of incarceration, twenty-six years of which were a man-
datory minimum, to run consecutively to a sentence the
defendant already was serving. This appeal followed.
Additional facts and procedural history shall be set forth
as necessary to address the claims of the defendant.
I
The defendant’s first claim on appeal is that the
court’s investigative inadequacy jury instruction, which
was the model instruction provided on the Judicial
Branch website at the time it was given, deprived him
of his constitutional right to present a defense of investi-
gative inadequacy. We agree with the defendant.
The following additional procedural history is rele-
vant to this claim. At trial, defense counsel advanced
a defense that the police had conducted an inadequate
investigation. He elicited testimony from Detective Tran
that this was the first case he had investigated as the
lead detective. In addition to eliciting testimony that
there were no eyewitnesses placing the defendant at
the scene and no surveillance video of the defendant,
defense counsel elicited testimony regarding other
potential suspects—Levert Wooten, Kenneth Lockhart,
Tyrell Johnson, Marcus Baptiste, and Dijon Sackey—
and challenged the lack of investigation as to these
individuals.
Evidence was presented that the police interviewed
Vanessa Gatson, who stated that she was walking her
dog on the street when she saw someone walking up
to the victim right before he was shot. Gatson stated
that the person she saw walk up to the victim was
wearing a hoodie with the hood up. Gatson said that
she possibly could identify the person, but, subse-
quently, she was not able to identify the person in a
photographic array.9 On the basis of Gatson’s descrip-
tion, the police stopped Wooten, an associate of Lock-
hart’s, while he was walking on South Main Street.
The police asked him to stop three times before he
complied. Detective Tran testified that Wooten was
ruled out as a suspect because there was no information
or evidence that he was responsible for the shooting.
Defense counsel emphasized that, in July, 2017, he
requested that the state laboratory conduct DNA testing
on a Tampa Bay Rays hat that the police had discovered
at 325 South Main Street on August 25, 2014. The DNA
profile from the swab of the Rays hat was entered into
the Combined DNA Index System and resulted in a
match to a DNA sample collected from Sackey, a con-
victed felon. Sackey told Detective Tran that he was
with Wilken Montez on the night of the shooting. Detec-
tive Tran did not interview Montez.
Defense counsel also questioned Detective Tran
regarding Lockhart, whose name was mentioned as a
potential suspect when Detective Tran spoke with
Sackey. Surveillance video from NB Mart, a nearby mini-
mart on the corner of South Main Street and Roberts
Street, showed Lockhart in the mini-mart with two other
people about one hour before the shooting. The police
obtained surveillance video from 19-21 Roberts Street,
which showed three men go into the house at that
address at about 9:58 p.m. Although Detective Tran did
not review the video from 19-21 Roberts Street during
his investigation, he testified that the three men in the
video ‘‘appeared similar’’ to Lockhart and the two other
people in the NB Mart. Detective Tran had information
that Lockhart also wore a Spurs hat. Despite knowing
that there was a mixture of DNA on the Spurs hat,
Detective Tran did not interview Lockhart or take a
buccal swab from him. Detective Tran also was aware
that Lockhart was jumped in the neighborhood because
of the victim’s death and that Lockhart was a friend of
Wooten.
There also was evidence that Baptiste had communi-
cated via text message with the victim on the night of
his death. The police interviewed Baptiste, who was
not forthright with them. Surveillance video from NB
Mart showed the victim entering the store with Baptiste
at approximately 10:41 p.m. and the two engaging in a
transaction. The video showed Baptiste exiting the
store at 10:47 p.m., after the victim already had been
shot.
Defense counsel elicited Detective Tran’s testimony
that Johnson, a convicted felon who had been arrested
on unrelated charges, came forward on September 10,
2014, with information related to the shooting of the
victim. Detective Tran interviewed Johnson, who told
him that, on the night of the shooting, both he and the
defendant were present on Roberts Street, Johnson had
engaged in a drug transaction with the victim, and John-
son subsequently heard gunshots when he was one
block away.10 According to Detective Tran, the informa-
tion received from Johnson helped Detective Tran tie
the case together. During Detective Tran’s testimony,
the court instructed the jury: ‘‘Once again, ladies and
gentlemen, the cross-examination, the information
about the police investigation, what was said by the
witnesses, is not intended in any way to be viewed as
testimony by . . . those witnesses, the only purpose
for the question, for the court allowing the questions
was to give you the context of the police investigation.’’
The court gave similar limiting instructions during the
presentation of other investigation evidence.
Detective Tran testified that he believed the victim’s
death to be related to a drug transaction. The police
seized the victim’s cell phone and determined, after
reviewing text messages in the days leading up to his
death, that he sold drugs, including marijuana and
‘‘Molly.’’ One of the last messages received by the vic-
tim’s phone asked him if he had Molly. The police were
not able to trace the number from which the message
was sent. Detective Tran did not consider Johnson or
Baptiste suspects in the victim’s death, despite both
men having engaged in drug transactions with the victim
shortly before he was shot.
Following this testimony, defense counsel argued to
the jury that Detective Tran was inexperienced and that
the police had ‘‘made a conclusion that [the defendant]
committed [the murder] and investigated it with facts
to support their conclusion that they already made.’’
Defense counsel questioned why Detective Tran did not
take buccal swabs of Wooten, Lockhart, or Johnson.
He further argued that the police should have continued
the investigation into Sackey after discovering his DNA
on the Tampa Bay Rays hat. He highlighted evidence
that both Lockhart and Baptiste were captured on sur-
veillance video in the area and questioned why they
were ruled out as suspects. He noted that Wooten, who
was wearing a hoodie, was present in the area and
failed to comply with police commands to stop. Defense
counsel’s argument focused on what he contended was
the failure of the police to investigate leads and consider
other individuals as suspects.
On October 6, 2017, the court requested that counsel
provide the court with proposed jury instructions and
notified counsel that it would provide its proposed jury
instructions before the end of the day. The court stated:
‘‘And once I’ve seen yours, I may, I may not modify. I
certainly want to have . . . a jury charge conference,
where all of this can be discussed.’’ Later that same
day, the court provided counsel with copies of prelimi-
nary final instructions and marked them as a court
exhibit. Defense counsel then stated: ‘‘I did file a request
to charge, three different charges,’’ and provided a copy
to the court. The court stated: ‘‘All right. I’ll look at
these proposed charges and any others which you might
have. Thank you. In light of the fact that you’ve given
me these, I want to look at these before I give you
the final, but I will e-mail them before the end of the
day today.’’
The defendant’s October 6, 2017 written request to
charge, in connection with his defense of inadequate
police investigation, provided: ‘‘The defense has pre-
sented evidence that the prosecution’s investigation of
this case has been negligent, or purposefully distorted,
and not done in good faith. For example, there has
been testimony about police officers not viewing crucial
video evidence and officers not investigating other sus-
pects. With respect to these items of evidence, the pro-
bative value of that evidence depends on the circum-
stances in which it was not investigated. If the
circumstances raise a reasonable belief of bad faith,
fraud or negligence, you may consider that in determin-
ing the credibility of the witnesses and the weight, if
any, that you chose to give that evidence and their
testimony.
‘‘Remember, under the instructions I have given you,
if the evidence permits two reasonable interpretations,
you must adopt that interpretation which favors the
defendant.’’
The defendant cited as the legal basis for his request
State v. Collins, 299 Conn. 567, 599, 10 A.3d 1005, cert.
denied, 565 U.S. 908, 132 S. Ct. 314, 181 L. Ed. 2d 193(2011). The defendant recited as the factual basis for
his request: ‘‘The lead detective testified that he did not
review video showing that Kenneth Lockhart, a named
suspect, was in the same store as the victim approxi-
mately 45 minutes before the shooting. The lead detec-
tive testified that he did not review the video showing
that Lockhart was walking into a house on the same
street where the victim was shot approximately 45
minutes prior to the shooting. Lockhart was named as
a suspect independent of these videos. The police did
not follow up on leads. The police did not interview
Lockhart. The police did not attempt to obtain DNA
profiles from the Tampa Bay Rays hat that was deemed
to have evidentiary value. The police did not request
DNA testing of the hair fibers found in the San Antonio
Spurs hat.’’ The defendant also requested instructions
on third-party culpability and jailhouse informant testi-
mony.
On October 7, 2017, the court e-mailed proposed jury
instructions to the parties. The court’s instructions
included the following charge: ‘‘You have heard argu-
ment that the police investigation was inadequate and
that the police involved in this case were incompetent.
The issue for you to decide is not the thoroughness of
the investigation or the competence of the police. The
only issue you have to determine is whether the state,
in the light of all the evidence before you, has proved
beyond a reasonable doubt that the defendant is guilty
of the counts with which he is charged.’’ This proposed
charge was consistent with the model criminal jury
instruction on investigative inadequacy provided on the
Judicial Branch website at the time it was given.
On October 10, 2017, the state filed an objection to
the defendant’s request to charge. Specifically, with
respect to the defendant’s proposed inadequate police
investigation instruction, the state argued: ‘‘The defense
has not presented evidence that the police investigation
was negligent, purposefully distorted or done in bad
faith, or fraud. In addition, State v. Collins [supra, 299
Conn. 567], cited by the defense, does not support the
requested charge.’’ On the same date, the state also
submitted a written request to charge. It requested lan-
guage identical to the model criminal jury instruction
on investigative inadequacy. The request to charge
quoted, as the supporting law, the commentary to the
model instruction, which provided: ‘‘ ‘A defendant may
. . . rely upon relevant deficiencies or lapses in the
police investigation to raise the specter of reasonable
doubt, and the trial court violates his right to a fair trial
by precluding the jury from considering evidence to
that effect.’ State v. Collins, [supra, 599–600] (finding
that such an instruction as this does not preclude the
jury from considering the evidence of the police investi-
gation as it might relate to any weaknesses in the state’s
case). ‘Collins does not require a court to instruct the
jury on the quality of police investigation but merely
holds that a court may not preclude such evidence
and argument from being presented to the jury for its
consideration.’ State v. Wright, 149 Conn. App. 758,
773–74 [89 A.3d 458], cert. denied, 312 Conn. 917 [94
A.3d 641] (2014).’’
The court held a charging conference on October 10,
2017. The court stated: ‘‘All right, Counsel, you received
the request to charge on Friday. Arguments about what
you want included—the defense has asked for items to
be included.’’ Defense counsel responded: ‘‘Your Honor,
I believe two of our three requests were included, the
adequacy and the instruction on jailhouse informants.’’
The court responded: ‘‘Those are standard instructions,
yes, they were included. The one that wasn’t included
. . . was the third-party culpability.’’11 Defense counsel
then stated that he would ‘‘rely on [his] motion’’ with
respect to his arguments on the charge of third-party
culpability. After the state argued its objection to the
defendant’s proposed third-party culpability instruc-
tion, the court declined to include the charge in its
instructions. The court then considered two unrelated
motions in limine filed by the state.
The court then returned to the jury instructions, stat-
ing: ‘‘Let’s get to the instructions. Now, you received
copies. I do them page at [a] time. So, any comment
on page 1?’’ The court then asked whether there were
any comments on the individual pages from one through
six. Defense counsel stated that he had a requested a
change on page five, which the court denied, and that
he also had an objection on page six. When the court
stated, ‘‘All right. Page seven,’’ which included the inves-
tigation instruction, the state raised a point regarding
a different instruction on that page. Following resolu-
tion of the state’s point, the court turned to page eight
and then to page nine. Subsequently, the court stated:
‘‘Page 10? 11? 12? 13? 14? 15? And 16? All right. That
is it, then.’’ Defense counsel then asked whether the
clerk would be making copies of the charge because a
few changes had been made, and the court responded
that copies would be made. Copies were provided to
counsel following the charging conference.
The next day, the court instructed the jury.12 The
court provided the investigative inadequacy charge in
accordance with its proposed charge, which, as noted
previously, was consistent with the model jury charge
at the time. At the conclusion of its charge, the court
did not ask whether there were any objections, and
defense counsel did not object to the charge as given.
As a threshold matter, we first address the state’s
contentions that the defendant waived his claim of
instructional error (1) by changing his claim on appeal
and (2) under the rule articulated in State v. Kitchens,
299 Conn. 447, 482–83, 10 A.3d 942 (2011), and that
he cannot prevail under the plain error doctrine. See
Practice Book § 60-5.
A
Preservation
We first address whether the defendant preserved
his claim of instructional error. The defendant argues
that his claim was properly preserved on the basis of
his having filed a written request to charge. We agree
with the defendant.
‘‘[O]ur rules of practice permit criminal defendants to
preserve claims of instructional error by filing a timely
written request to charge.’’ State v. Ramon A. G., 336
Conn. 386, 396, 246 A.3d 481 (2020); see also Practice
Book § 42-16.13 ‘‘[A] party may preserve for appeal a
claim that an instruction . . . was . . . defective
either by: (1) submitting a written request to charge
covering the matter; or (2) taking an exception to the
charge as given.’’ (Internal quotation marks omitted.)
State v. King, 289 Conn. 496, 505, 958 A.2d 731 (2008).
‘‘Under either method [of submitting a written request
to charge or taking an exception to the charge as given],
some degree of specificity is required, as a general
request to charge or exception will not preserve specific
claims. . . . Thus, a claim concerning an improperly
delivered jury instruction will not be preserved for
appellate review by a request to charge that does not
address the specific component at issue . . . or by an
exception that fails to articulate the basis relied upon
on appeal with specificity.’’ (Citations omitted.) State
v. Johnson, 165 Conn. App. 255, 284–85, 138 A.3d 1108(claim preserved where defendant filed request to
charge and trial court’s charge deviated as to specific
component from proposed instructions), cert. denied,
322 Conn. 904, 138 A.3d 933 (2016); see also State v.
Ramos, 261 Conn. 156, 170–71, 801 A.2d 788 (2002)
(‘‘[i]t does not follow, however, that a request to charge
addressed to the subject matter generally, but which
omits an instruction on a specific component, preserves
a claim that the trial court’s instruction regarding that
component was defective’’ (emphasis omitted)), over-
ruled in part on other grounds by State v. Elson, 311
Conn. 726, 91 A.3d 862 (2014); State v. Lee, 138 Conn.
App. 420, 453 n.19, 52 A.3d 736 (2012) (‘‘[i]n order to
preserve an objection to a proposed jury instruction,
the defendant must plainly put the trial court on notice
as to the specific basis for his objection’’ (internal quota-
tion marks omitted)), rev’d in part on other grounds,
325 Conn. 339, 342, 157 A.3d 651 (2017). Our Supreme
Court never has ‘‘required, however, a defendant who
has submitted a request to charge also to take an excep-
tion to a contrary charge, and such a requirement would
contravene the plain language of [Practice Book § 42-
16].’’ (Internal quotation marks omitted.) State v. John-
son, 316 Conn. 45, 54, 111 A.3d 436 (2015).
The defendant in the present case filed a written
request to charge. ‘‘The question, then, is whether that
request sufficiently covered the matter so as to preserve
the issue for appellate review. Put differently, the rele-
vant inquiry is whether the defendant’s request to
charge alerted the trial court to the specific deficiency
now claimed on appeal.’’ State v. Ramon A. G., 190
Conn. App. 483, 493–94, 211 A.3d 82 (2019), aff’d, 336
Conn. 386, 246 A.3d 481 (2020).
We conclude that the defendant’s request sufficiently
covered the matter. In his principal brief, the distinct
claim presented by the defendant was that ‘‘[t]he trial
court’s instructions, which effectively told the jury to
ignore the defendant’s defense, violated his constitu-
tional rights to due process and to present a defense.’’
Specifically, the defendant contended that ‘‘[t]he
defense elicited evidence that the police failed to treat
four men as suspects and adequately investigate them,
even though they were in close vicinity right around
the time of the murder. The police failed to take their
DNA samples . . . . The trial court’s instruction
directed the jury to disregard the adequacy of the inves-
tigation as it related to the strength of the state’s case
and disregard the defendant’s theory of the case.’’
Following the filing of the parties’ initial briefs in this
case, this court granted the defendant’s motion to stay
the appeal pending our Supreme Court’s decision in
State v. Gomes, 337 Conn. 826, 853, 256 A.3d 131 (2021).
In Gomes, our Supreme Court held that the model jury
instruction ‘‘failed to inform the jury not only of a defen-
dant’s right to rely upon relevant deficiencies or lapses
in the police investigation to raise the specter of reason-
able doubt . . . but also the jury’s concomitant right
to consider any such deficiencies in evaluating whether
the state has proved its case beyond a reasonable
doubt.’’ (Citation omitted; internal quotation marks
omitted.) Id. Following the release of Gomes, the parties
filed supplemental briefing in this case. In the defen-
dant’s supplemental brief, he argues that Gomes is con-
trolling and requires reversal in the present case.
The state argues that the defendant’s claim on appeal
is ‘‘substantially different’’ from that raised at trial. We
disagree that the claim is different such that it necessi-
tates a conclusion that his claim is unpreserved. We
note that the defendant filed a request to charge seeking
language different from, and more comprehensive than,
that contained in the model charge on investigative
inadequacy. Also, the defendant’s requested charge
omitted the language that our Supreme Court found to
have presented a significant risk of misleading the jury;
specifically, it omitted the instruction that ‘‘the ade-
quacy of the police investigation was not for it to
decide’’ and that ‘‘the ‘only’ issue for the jury was
whether the state had proven the defendant’s guilt
beyond a reasonable doubt.’’ (Emphasis in original.)
State v. Gomes, supra, 337 Conn. 854. Accordingly, we
conclude that the defendant’s request sufficiently cov-
ered the matter such that his appellate claim is pre-
served.
B
Waiver
We turn next to the question of whether the defendant
waived his preserved claim of instructional error. The
state argues that the defendant implicitly had waived
appellate review of his claim under the rule articulated
in State v. Kitchens, supra, 299 Conn. 483. Under the
circumstances of the present case, we find no waiver.
‘‘Whether a defendant has waived the right to chal-
lenge the court’s jury instructions involves a question
of law, over which our review is plenary. . . . The doc-
trine of implied waiver is based on the idea that counsel
had sufficient notice of . . . the jury instructions and
was aware of their content . . . .’’ (Citation omitted;
internal quotation marks omitted.) State v. Lanier, 205
Conn. App. 586, 622–23, 258 A.3d 770, cert. granted, 338
Conn. 910, 258 A.3d 1280 (2021).
In Kitchens, the defendant had neither filed a written
request to charge nor taken an exception to the charge
after it was delivered, and he sought review under State
v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). State
v. Kitchens, supra, 299 Conn. 463, 465. Our Supreme
Court concluded that, in such circumstances, an implied
waiver is manifested under the following conditions:
‘‘[W]hen the trial court provides counsel with a copy
of the proposed jury instructions, allows a meaningful
opportunity for their review, solicits comments from
counsel regarding changes or modifications and coun-
sel affirmatively accepts the instructions proposed or
given, the defendant may be deemed to have knowledge
of any potential flaws therein and to have waived implic-
itly the constitutional right to challenge the instructions
on direct appeal.’’ Id., 482–83. ‘‘The court [in Kitchens]
explained that affirmative acceptance meant that coun-
sel would need to express satisfaction with the instruc-
tion, not merely acquiesce to it.’’ State v. Johnson, supra,
316 Conn. 53.
Following Kitchens, our Supreme Court, in State v.
Paige, 304 Conn. 426, 443, 40 A.3d 279 (2012), explained
that different circumstances are presented when a
defendant has filed a request to charge. ‘‘The issue of
waiver in the context of a claim of instructional error
typically arises when considering whether a defendant
is entitled to review of an unpreserved claim. . . . In
such cases, the defendant has failed to follow one of
the two routes by which he or she could preserve the
claim of instructional error, by either submitting a writ-
ten request to charge on the matter at issue or taking
an exception immediately after the charge is given. . . .
We never have required, however, a defendant who has
submitted a request to charge also to take an exception
to a contrary charge, and such a requirement would
contravene the plain language of [Practice Book § 42-
16].’’ (Citations omitted.) Id., 442–43. The court in Paige
stated: ‘‘Nonetheless, even if a claim of instructional
error is initially preserved by compliance with Practice
Book § [42-16], the defendant may thereafter engage in
conduct that manifests an intention to abandon that
claim. See State v. Thomas W., [301 Conn. 724, 732, 22
A.3d 1242 (2011)] (waiver found when, after defendant
objected to proposed instruction, he expressed satisfac-
tion with trial court’s proposed curative instruction and
did not thereafter object to instruction as given); State
v. Mungroo, 299 Conn. 667, 676, 11 A.3d 132 (2011)
(waiver found when, after reviewing court’s charge that
differed from defendant’s proposed instruction at
charging conference, defense counsel withdrew his
request to charge and accepted trial court’s charge);
State v. Whitford, 260 Conn. 610, 632–33, 799 A.2d 1034(2002) (waiver found when defendant objected to initial
instruction, trial court issued supplemental instruction
after receiving input from defense counsel, and defense
counsel did not object to instruction as given); State v.
Jones, 193 Conn. 70, 87–88, 475 A.2d 1087 (1984) (waiver
found when defendant timely took exception after
instruction was given, court consulted with defendant
in fashioning supplemental instruction and defendant
raised no further objection to either initial charge or
supplemental instruction). In each of these cases, the
trial court had taken some curative action to address
the defendant’s initial objection or the defendant had
engaged in affirmative conduct that unequivocally dem-
onstrated his intention to abandon the previously pre-
served objection, such as withdrawing a request to
charge.’’ State v. Paige, supra, 443.
In Paige, the court noted that the defendant never
had withdrawn her request to charge and that there
was ‘‘nothing in the record to suggest that the trial court
understood her to have done so.’’ Id., 444. The court
determined that the ‘‘evidence [was] at best ambiguous
as to whether the defendant effectively withdrew her
request to charge that initially preserved [the] issue for
appeal.’’ Id.In State v. Johnson, supra, 316 Conn. 52, 55, in which
the defendant filed a written request to charge on the
issues of constructive and nonexclusive possession, our
Supreme Court had occasion to apply what it described
as the ‘‘heightened standard’’ it had articulated in State
v. Paige, supra, 304 Conn. 443. In Johnson, the trial
court provided ‘‘both a ‘rough’ draft instruction and its
proposed final instruction to counsel, and asked them
on several occasions to review and comment on them.’’
State v. Johnson, supra, 55. The court did not substitute
different language for that requested by the defendant.
Id. Rather, it ‘‘selectively omitted certain paragraphs
altogether.’’ Id., 56. Moreover, ‘‘[t]here was never any
discussion relating to this charge or this element of
the offenses. The defendant never stated that she was
withdrawing her request to charge on possession. After
the initial draft was submitted for counsel’s review,
the defendant requested and successfully obtained the
addition of an instruction on inconsistent statements,
a matter on which the defendant also had filed a request
to charge. When the court twice asked in succession
whether the defendant had objections to the instruc-
tions just before the charge was given to the jury,
defense counsel twice stated that he had no objec-
tion.’’ Id.
On the basis of the record in Johnson, our Supreme
Court was not persuaded that the facts rose ‘‘to the level
of the type of affirmative conduct that unequivocally
demonstrated an intention to abandon the request for
a more comprehensive charge on possession.’’ Id. The
court reasoned that the ‘‘[t]he defendant reasonably
could have interpreted the trial court’s selective adop-
tion of parts of her possession instruction as a purpose-
ful rejection of the omitted language. . . . [T]he defen-
dant was not required to object to the truncated
instruction to preserve her request for the more compre-
hensive instruction.’’ Id. Moreover, the court stated that
defense counsel’s ‘‘statement that he had no objection
to the final instruction may simply have been intended
to convey agreement that the language provided, much
of which related to matters on which the defendant
submitted no requests to charge, was a correct state-
ment of the law, rather than satisfaction with the omis-
sion of language that defense counsel specifically had
requested and reasonably could have believed had been
intentionally rejected.’’ Id. Last, the court stated that
defense counsel’s ‘‘request for the addition of an instruc-
tion on inconsistent statements, which defense counsel
reasonably could have interpreted as having been inad-
vertently omitted, does not unambiguously indicate that
he was effectively withdrawing his request for a more
expansive instruction on possession.’’ Id., 56–57.
As noted previously, the defendant in the present case
filed a request to charge on investigative inadequacy.
Although the court’s preliminary draft instructions
included the model jury instruction rather than the
defendant’s requested charge, defense counsel stated,
during the charging conference, that he believed that
‘‘two of our three requests were included, the adequacy
and the instruction on jailhouse informants.’’ The court
responded: ‘‘Those are standard instructions, yes, they
were included.’’ The following day, the court instructed
the jury using the model jury instruction. The defendant
took no exceptions to the charge.
Under the guidance of Paige and Johnson, we con-
clude that these facts do not demonstrate an abandon-
ment of the defendant’s request for his proposed jury
instruction regarding investigative inadequacy. First,
we note that the defendant did not withdraw his request
to charge. See State v. Johnson, supra, 316 Conn. 56;
State v. Paige, supra, 304 Conn. 444. Second, our review
of the record of the charging conference reveals nothing
demonstrating ‘‘the type of affirmative conduct that
unequivocally demonstrate[s] an intention to abandon
the request’’ for a jury instruction on investigative inade-
quacy. State v. Johnson, supra, 56. Defense counsel’s
statement during the charging conference that he
believed that ‘‘two of our three requests were included,
the adequacy and the instruction on jailhouse infor-
mants,’’ was ambiguous. As such, we do not view it
as effectively withdrawing his request or expressing
approval of the court’s proposed charge. See State v.
Paige, supra, 445 (defense counsel’s response, ‘‘[o]kay.
Thank you,’’ to court’s confirmation that it was planning
to give charge requested by state was ambiguous com-
ment that could not be considered to effectuate with-
drawal of request to charge on that issue). A reasonable
reading of defense counsel’s statement is that he was
mistaken as to the content of the court’s proposed
charge and that he wrongly believed that the court had
included his proposed investigative inadequacy charge.
Moreover, with respect to the trial court’s reply that,
‘‘[t]hose are standard instructions, yes, they were
included,’’ defense counsel reasonably could have con-
cluded that the trial court’s adoption of the model
instruction constituted a rejection of the instruction he
proposed in his written request to charge. See State v.
Johnson, supra, 316 Conn. 56 (defendant reasonably
could have interpreted trial court’s selective adoption
of parts of her possession instruction as purposeful
rejection of omitted language). Subsequent to this
exchange, the prosecutor sought to confirm that the
court intended to ‘‘instruct the jury based on the pro-
posed instructions that were given to counsel.’’ The
prosecutor stated: ‘‘I know that Your Honor did include
an instruction on jailhouse informants and an instruc-
tion on completeness of the police investigation. I
believe Your Honor’s instructions are appropriate. I
objected to the defendant’s specific request.’’ (Emphasis
added.) The court responded: ‘‘Well, at the time I gave
you the instructions, to be quite honest, that was just
the time, exactly the time that I received his request to
charge, so I did want to consider those as well.’’ A
reasonable reading of the prosecutor’s comments refer-
ring back to the state’s objection is that he did not
believe the defendant’s request had been effectively
withdrawn. Accordingly, we conclude that the defen-
dant did not abandon his request.
C
Merits
Having concluded that the defendant preserved his
claim and did not waive it, we turn to its merits. The
defendant argues that the trial court’s issuance of the
model police investigation instruction was erroneous.
The state agrees that, ‘‘[i]f this Court finds that the
defendant did not waive the instructional error raised
on appeal, the defendant has shown, pursuant to Gomes
. . . that the trial court erred in giving the model
instruction regarding the adequacy of police investiga-
tions.’’ The parties disagree, however, as to whether
the error was harmless. The defendant maintains that
the giving of ‘‘the model instruction was extremely
harmful because it instructed the jury to disregard evi-
dence about the inadequate investigation—the defen-
dant’s theory of defense.’’ The state argues that the
error was harmless beyond a reasonable doubt. We
agree with the defendant that there is a reasonable
possibility that the jury was misled by the trial court’s
investigative inadequacy instruction, and, therefore, the
defendant is entitled to a new trial.
The following well established legal principles guide
our analysis of the defendant’s claim. ‘‘[A] fundamental
element of due process of law is the right of a defendant
charged with a crime to establish a defense. . . .
Where . . . the challenged jury instructions involve a
constitutional right, the applicable standard of review
is whether there is a reasonable possibility that the jury
was misled in reaching its verdict. . . . In evaluating
the particular charges at issue, we must adhere to the
well settled rule that a charge to the jury is to be consid-
ered in its entirety, read as a whole, and judged by its
total effect rather than by its individual component
parts. . . . [T]he test of a court’s charge is . . .
whether it fairly presents the case to the jury in such
a way that injustice is not done to either party under
the established rules of law.’’ (Internal quotation marks
omitted.) State v. Collins, supra, 299 Conn. 598–99. ‘‘If
a requested charge is in substance given, the court’s
failure to give a charge in exact conformance with the
words of the request will not constitute a ground for
reversal. . . . As long as [the instructions] are correct
in law, adapted to the issues and sufficient for the guid-
ance of the jury . . . we will not view the instructions
as improper. . . . Additionally, we have noted that [a]n
error in instructions in a criminal case is reversible
error when it is shown that it is reasonably possible
for errors of constitutional dimension or reasonably
probable for nonconstitutional errors that the jury [was]
misled.’’ (Citations omitted; internal quotation marks
omitted.) State v. Aviles, 277 Conn. 281, 309–10, 891
A.2d 935, cert. denied, 549 U.S. 840, 127 S. Ct. 108, 166
L. Ed. 2d 69 (2006). ‘‘A challenge to the validity of jury
instructions presents a question of law over which [we
have] plenary review.’’ (Internal quotation marks omit-
ted.) State v. Gomes, supra, 337 Conn. 849–50.
In State v. Gomes, supra, 337 Conn. 828–29, the defen-
dant was convicted of assault in the second degree
following a fight at a sports club in Bridgeport. The
‘‘main defense advanced by the defendant was that the
police had conducted an inadequate investigation of
the incident.’’ Id., 832. The defendant sought to persuade
the jury that reasonable doubt existed as to the victim’s
identification of the defendant as the person who had
assaulted her. Id. The defendant adduced the testimony
of the first two police officers to arrive at the scene of
the fight. Id., 848. They testified that they were informed
by the police dispatcher that Raphael Morais was a
suspect in the assault. Morais was present at the club
and was beaten by several club patrons immediately
following the assault of the victim, but the police did not
investigate him as a suspect. Id. Moreover, the detective
who conducted the interviews stated that he viewed
Morais as a witness or victim but not as a suspect. Id.The officers testified that, although they were
approached at the scene of the fight by several people
claiming to have information about the assault, the offi-
cers did not ask for their names or contact information
or attempt to interview them regarding what they had
seen. Id. On the basis of this evidence and other evi-
dence at trial, the defendant contended that, had the
police conducted an adequate investigation, they would
have realized that the victim had misidentified him.
Id., 847.
Defense counsel in Gomes stated in closing argu-
ments that the police did not identify the crime scene,
take any photographs of the scene so that the jurors
could see the lighting, or attempt to obtain any surveil-
lance video. Id., 832. The defendant filed a written
request to charge the jury, which provided in relevant
part: ‘‘[1] You have heard some arguments that the
police investigation was inadequate and biased. [2] The
issue for you to decide is not the thoroughness of the
investigation or the competence of the police. [3] How-
ever, you may consider evidence of the police investiga-
tion as it might relate to any weaknesses in the state’s
case. [4] Again, the only issue you have to determine
is whether the state, in light of all the evidence before
you, has proved beyond a reasonable doubt that the
defendant is guilty of the counts with which he is
charged.’’ (Internal quotation marks omitted.) Id., 833.
During the charging conference, the court informed
defense counsel that it would be giving a charge ‘‘on
the adequacy of the police investigation, in a form that
was somewhat similar to the defendant’s requested
instruction, but that [its instruction] may be a little bit
different.’’ (Internal quotation marks omitted.) Id.The court in Gomes instructed the jury using the
model jury instruction: ‘‘You have heard some argu-
ments that the police investigation was inadequate and
that the police involved in the case were incompetent
or biased. The issue for you to decide is not the thor-
oughness of the investigation or the competence of the
police. The only issue you have to determine is whether
the state, in light of all the evidence before you has
proved beyond a reasonable doubt that the defendant
is guilty of the counts with which he was charged.’’
(Internal quotation marks omitted.) Id. ‘‘Defense coun-
sel objected to the court’s omission of point three of
his requested instruction.’’ Id., 833–34.
On appeal, our Supreme Court held that the model
jury instruction ‘‘failed to inform the jury not only of a
defendant’s right to ‘rely upon relevant deficiencies or
lapses in the police investigation to raise the specter
of reasonable doubt’ . . . but also the jury’s concomi-
tant right to consider any such deficiencies in evaluating
whether the state has proved its case beyond a reason-
able doubt.’’ (Citation omitted.) Id., 853, quoting State
v. Collins, supra, 299 Conn. 599–600. The court stated:
‘‘Although the model instruction is similar to the instruc-
tions this court approved in [State v. Williams, 169
Conn. 322, 335–36 nn.2–3 and 336, 363 A.2d 72 (1975)]
and Collins because it informs the jury not to consider
investigative inadequacy ‘in the abstract’ . . . the
model instruction, unlike the instructions in Williams
and Collins, improperly fails to inform the jury that a
defendant may present evidence of investigative inade-
quacy in his or her particular case. Indeed, as the defen-
dant argues, the model instruction omits the very lan-
guage that the court in Collins determined rendered
the instruction in that case acceptable because it (1)
apprised the jury that ‘the defendant was entitled to
make an investigation and put his evidence before [it],’
and (2) directed the jury to determine, based on ‘all the
evidence before [it],’ including evidence presented by
the defendant, whether the state had proved the defen-
dant’s guilt beyond a reasonable doubt. . . . The lan-
guage that the defendant requested be added to the
model jury instruction—i.e., that the jury ‘may consider
evidence of the police investigation as it might relate
to any weaknesses in the state’s case’—would have
similarly apprised the jury of the defendant’s right to
present an investigative inadequacy defense and the
jury’s right to consider it in evaluating the strength
of the state’s case.’’14 (Citations omitted; emphasis in
original.) State v. Gomes, supra, 337 Conn. 853–54.
We agree with the parties that Gomes is controlling
in the present case. As in Gomes, the court gave the
model jury instruction ultimately rejected by our
Supreme Court. In reliance on Gomes, we conclude that
the court erred in giving the model instruction.
We next turn to whether the error in the instructions
constitutes reversible error. As the court in Gomes con-
cluded, ‘‘there is a significant risk that the instruction
given by the trial court misled the jury to believe that
it could not consider the defendant’s arguments con-
cerning the adequacy of the police investigation.
Although the first sentence of the instruction acknowl-
edged that the defendant made arguments that the
police had failed to investigate adequately the crime
in question, in the very next sentence, the jury was
instructed that the adequacy of the police investigation
was not for it to decide. This admonishment was rein-
forced by the third and final sentence that the only
issue for the jury to decide was whether the state had
proven the defendant’s guilt beyond a reasonable doubt.
. . . Thus, rather than apprising the jury that reason-
able doubt could be found to exist if the jury con-
clude[d] that the investigation was careless, incomplete,
or so focused on the defendant that it ignored leads
that may have suggested other culprits . . . there is
a reasonable possibility that the instruction had the
opposite effect and caused the jury to believe that it
was prohibited from considering any such evidence.’’
(Citation omitted; emphasis in original; internal quota-
tion marks omitted.) Id., 854–55.
For the same reasons expressed in Gomes, we con-
clude that it is reasonably possible that the jury in the
present case was misled to believe that it could not
consider the defendant’s arguments regarding the ade-
quacy of the police investigation. Moreover, the court
in Gomes further considered ‘‘the relative weakness of
the state’s case’’ in determining that the instructional
error was harmful to the defendant. Id., 855. In the
present case, the state’s case was not strong, as the
primary evidence consisted of the testimony from two
jailhouse informants who recounted inculpatory state-
ments made by the defendant in exchange for beneficial
treatment in their own pending criminal matters. In
fact, in closing arguments, the prosecutor stated that,
‘‘the most significant witnesses, in addition to Mr. Black-
man, are Mr. Davis and Mr. El Massri, also Detective
[Raymond] Grzegorzek and Detective Tran.’’
The physical evidence focused on the hat found
‘‘stuck in the bushes’’ near the crime scene. Although
the defendant was deemed a contributor to the DNA
found on the hat, there were two other contributors
to the DNA on the hat. Moreover, as Officer Korczak
testified, the hat was found ‘‘stuck in the bushes,’’ which
defense counsel argued was not consistent with a hat
falling off while an individual was running away. There
also was no evidence outside of the jailhouse informant
testimony that the victim’s assailant wore a hat. The
gun that the state alleged to have been used in the
homicide was problematic in that there was no forensic
evidence linking it to the shooting of the victim. Indeed,
there were no casings located at the scene. Moreover,
there were no eyewitnesses to the shooting, and the
defendant did not appear on any of the surveillance
videos obtained by the police. Defense counsel sought
to amplify the weaknesses in the state’s evidence by
highlighting for the jury claimed inadequacies in the
police investigation, including the failure to investigate
other potential suspects. On the basis of this record,
we conclude that there is a reasonable possibility that
the jury was misled by the trial court’s investigative
inadequacy instruction, and, therefore, the defendant
is entitled to a new trial.
II
Although our conclusion in part I of this opinion
is dispositive of the present appeal, we address the
defendant’s claim that the trial court improperly admit-
ted uncharged misconduct evidence because it has been
raised and fully briefed and is likely to arise on remand.
See, e.g., State v. Chyung, 325 Conn. 236, 260 n.21, 157
A.3d 628 (2017) (addressing claim that court abused its
discretion in admitting evidence of uncharged miscon-
duct because issue was likely to arise on remand). We
disagree with the defendant that the court abused its
discretion.
The following additional facts and procedural history
are relevant to the resolution of this claim. On Decem-
ber 30, 2014, the defendant filed a motion for disclosure
of uncharged misconduct. On August 23, 2017, the state
filed a notice of uncharged misconduct. The state
sought to introduce evidence, inter alia, of (1) the facts
of two shootings occurring on August 21, 2014, one
on Maple Street and one on Prospect Street; (2) the
defendant’s statements to a detective admitting involve-
ment in the Maple Street and Prospect Street shootings
and that he used a Desert Eagle in those shootings; (3)
the defendant’s statement in the presence of a police
officer after the Maple Street incident that, ‘‘I like to
play with guns . . . my boys have guns, a .44 magnum’’;
and (4) the defendant’s guilty pleas to the charges aris-
ing out of the Maple Street and Prospect Street shoot-
ings. The defendant filed a September 5, 2017 motion
in limine seeking to preclude admission of the evidence.
On September 18, 2017, the state filed a memorandum
of law in support of its notice of uncharged misconduct
and responding to the objections raised by the defen-
dant in his motion in limine. In its memorandum of law,
the state argued, inter alia, that statements made by
the defendant regarding acquisition of the firearm used
in the homicide and the Maple Street shooting were
relevant to means and opportunity to commit the mur-
der. It further argued that the statements put into con-
text crucial prosecution testimony and completed the
story of the crime. The state argued that the defendant’s
statement that he liked to play with guns was relevant
to the issue of motive, means, and opportunity to com-
mit the crime, and it put into context crucial prosecu-
tion testimony. The state also argued that the facts of
the Prospect Street shooting, the defendant’s admis-
sions with respect thereto, and the defendant’s state-
ments regarding his possession of the Desert Eagle were
relevant to ‘‘intent, identity, motive, means and opportu-
nity to commit the murder, it places into context crucial
prosecution testimony and is so factually and legally
connected to the homicide that it completes the story
of the charged crime of murder and pistol without a
permit.’’
On September 18, 2017, the defendant filed a second
motion in limine in response to the state’s memorandum
of law. A hearing also was held on September 18. The
state additionally argued during the hearing that evi-
dence of the use of the firearm in the two other shoot-
ings went to the issue of operability. The defendant
argued, inter alia, that the evidence sought to be intro-
duced by the state was irrelevant and more prejudicial
than probative.
On September 22, 2017, the court issued its memoran-
dum of decision with respect to the motion in limine
regarding uncharged misconduct. With respect to the
defendant’s statement that he liked to play with guns,
the court determined that it was admissible as an admis-
sion of a party opponent and was relevant to intent
to commit murder, as well as to identity, means, and
opportunity, and that it was relevant to the element
of possession required for conviction of the charge of
carrying a pistol without a permit.15 The court found
the statement ‘‘highly relevant.’’ The court noted: ‘‘In
determining prejudice, this court is considering
whether the evidence tends to evoke an emotional bias
against the defendant. There is always some prejudice
from highly probative evidence.’’
As to the defendant’s statements regarding the Maple
Street and Prospect Street shootings, the court stated
that they were admissions of a party opponent admissi-
ble to prove ‘‘the defendant’s specific intent to commit
murder and the identity of the person who shot the
decedent. . . . It is also relevant evidence of a critical
element of the second offense charged. It also is rele-
vant as indicative of the means and opportunity to com-
mit the offense charged.’’ The court found that ‘‘[t]he
highly probative evidence is prejudicial, but the prejudi-
cial impact does not outweigh its probative value.’’
The court next determined that the defendant’s guilty
pleas to the Maple Street and Prospect Street shootings
were admissible. The court stated: ‘‘The evidence
should be admitted to prove the defendant’s specific
intent to commit murder and the identity of the person
who shot the decedent. It also is relevant as indicative
of the means and opportunity to commit the offense
charged. Finally, it is relevant evidence of a critical
element of the second offense charged.’’ The court
found that ‘‘[t]he highly probative evidence is prejudi-
cial, but the prejudicial impact does not outweigh its
probative value.’’
Finally, the court determined that the defendant’s
statements regarding the Desert Eagle also were admis-
sions of a party opponent and should be ‘‘admitted to
prove the defendant’s specific intent to commit murder
and the identity of the person who shot the decedent.
It also is relevant as indicative of the means and oppor-
tunity to commit the offense charged. Finally, it is rele-
vant evidence of a critical element of the second offense
charged.’’ The court found that the ‘‘highly probative
evidence is prejudicial, but the prejudicial impact does
not outweigh its probative value.’’ The court stated that
it would give the jury a limiting instruction with respect
to each instance of uncharged misconduct.
On September 25, 2017, the first day of evidence, the
defendant filed a motion in limine requesting that the
court reconsider its September 22, 2017 ruling on
uncharged misconduct. Specifically, he reiterated his
arguments that the evidence was not relevant and that
its probative value was outweighed by the danger of
unfair prejudice. He requested, inter alia, that, in the
event the court allowed the defendant’s statements into
evidence, the evidence must be strictly limited to the
proffered statements and that additional factual circum-
stances surrounding the two shootings should not be
admitted into evidence.
Before and in relation to the expected testimony of
Detective Grzegorzek, there was an extensive and thor-
ough colloquy between the state, defense counsel, and
the court with respect to the limitations to be imposed
on the evidence regarding the Maple Street and Pros-
pect Street shootings. At the conclusion of these discus-
sions, the court stated that it was admitting evidence
that ‘‘[the shootings] happened, there was a discharge,
there was a gun,’’ and that the police found a 40 40
Desert Eagle and the defendant admitted to using the
gun. Detective Grzegorzek testified that, on August 21,
2014, at approximately 12:45 a.m., shots were fired at
213 Maple Street in New Britain, the home of the defen-
dant’s girlfriend, Josslin Kinsey. Detective Grzegorzek
further testified as to a second incident occurring on
August 21, 2014, at approximately 8:45 a.m., in which
gunshots were fired at 66 Prospect Street in New Brit-
ain, where the defendant lived with his family on the
second floor. Detective Grzegorzek testified that no one
was injured in either the Maple Street or Prospect Street
shootings. Detective Grzegorzek testified that he
located the defendant that same day in Middletown
and that the defendant agreed to speak with Detective
Grzegorzek at the New Britain Police Department.
Detective Grzegorzek testified that he asked the defen-
dant about the shooting of the victim and the shootings
at Maple Street and Prospect Street. Detective Grzegor-
zek testified that the defendant initially denied any
involvement in all three incidents but later admitted to
Detective Grzegorzek that he had fired the gunshots in
both the Maple Street and Prospect Street shootings
using the Desert Eagle. Detective Grzegorzek testified
that a firearm was recovered following the Prospect
Street shooting. On cross-examination, Detective
Grzegorzek testified that officers recovered five shell
casings from the scene of the Maple Street shooting
and one shell casing from the Prospect Street shooting.
No limiting instruction was requested or provided fol-
lowing Detective Grzegorzek’s testimony.
New Britain Police Officer David Tvardzik, who was
dispatched to 213 Maple Street on the report of shots
fired, also testified at trial. Over the defendant’s objec-
tion, Officer Tvardzik testified that, while another offi-
cer administered a test to the defendant; see footnote
2 of this opinion; the defendant stated that there would
probably be residue on his hands because ‘‘I like to
play with guns . . . my boys have guns, a .44 magnum.’’
The court gave the jury a contemporaneous limiting
instruction.16 Officer Tvardzik further testified that five
shell casings were recovered from the scene of the
Maple Street shooting.
Before Detective Perez testified, the defendant again
objected to the anticipated evidence regarding the
Desert Eagle, the shell casings from the Prospect Street
and Maple Street shootings, and the firearms analysis.
Specifically, he objected on the grounds that such evi-
dence was not relevant and that it was more prejudicial
than probative as well as cumulative. Before issuing its
ruling, the court stated, as defense counsel had argued,
that the challenged evidence was creating ‘‘a trial within
a trial’’ and further stated, ‘‘I think I tried to make it
really clear that I’m trying to focus on Roberts Street
and not Maple and Prospect.’’ With that preface, the
court permitted the state to introduce into evidence the
Desert Eagle to establish means and opportunity and
as relevant to the elements involved in the charge of
carrying a pistol without a permit, the firearms analysis
to establish operability, and the casing located in the
gun at the time of its recovery because ‘‘it jammed.’’
The court found that the relevance of the five casings
from the Maple Street shooting was outweighed by its
prejudicial impact.17 Defense counsel stated: ‘‘[I]f the
court is allowing the one shell from . . . Prospect
Street, I think it would just be consistent to allow the
other shells because the jury has already heard that,
so I’d ask that that be allowed in. However, I still con-
tinue to object to all of the shells. I don’t believe that
it’s relevant at all.’’
Detective Perez testified that there was a spent casing
inside the Desert Eagle when he recovered it from
underneath a parked vehicle at 10 School Street.18
Detective Perez further testified as to the five Maple
Street casings, which were admitted into evidence along
with the single casing that was found inside the Desert
Eagle when he recovered it. Detective Perez testified,
on cross-examination, that dropping a firearm could
cause an accidental discharge, which could cause the
firearm to jam. No contemporaneous limiting instruc-
tion was requested or provided following Detective
Perez’ testimony.
Arielle Van Deusen, a state firearms examiner, testi-
fied that she physically examined the Desert Eagle and
noted ‘‘a little bit of rust to the firearm. So, it wasn’t
properly maintained or may have gotten damaged from
some type of moisture, but otherwise it functions as
expected.’’ Van Deusen testified that ‘‘[r]ust can cause
the firearm to not function always as properly as it
should. It could cause it to stick, to be slower to move
or it could also cause things to not—the cartridge cases
to not eject or extract as they should.’’ Van Deusen
test-fired the Desert Eagle and determined that it was
operable. Van Deusen testified that the Desert Eagle
had fired the casings from both the Maple Street and
Prospect Street shootings. Photographs of the compari-
sons Van Deusen made also were entered into evidence.
During Van Deusen’s testimony, the court instructed
the jury that the evidence of ‘‘other actions that took
place’’ was admitted solely to show identity and the
elements of the crimes of murder and carrying a pistol
without a permit.
On the basis of the court’s ruling that the defendant’s
guilty pleas regarding the Maple Street and Prospect
Street shootings were admissible, the defendant agreed
to stipulate that he had pleaded guilty to attempted
assault in the first degree and reckless endangerment
in the first degree with respect to those shootings, and
the stipulation was read to the jury. No contemporane-
ous limiting instruction was requested or provided fol-
lowing the reading of the stipulation.
We first set forth applicable legal principles. ‘‘[A]s a
general rule, evidence of prior misconduct is inadmissi-
ble 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 defendant
has a bad character or a propensity for criminal behav-
ior. . . . The well established exceptions to the general
prohibition against the admission of uncharged miscon-
duct are set forth in § 4-5 [c] of the Connecticut Code
of Evidence, which provides in relevant part that [e]vi-
dence 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. . . . We have developed a two
part test to determine the admissibility of such evi-
dence. 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]. . . . Second, the probative value
of the evidence must outweigh its prejudicial effect.
. . . Because of the difficulties inherent in this balanc-
ing 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, therefore, every reasonable presumption
should be given in favor of the trial court’s ruling. . . .
‘‘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.’’ (Citations omit-
ted; footnote omitted; internal quotation marks omit-
ted.) State v. Raynor, 337 Conn. 527, 561–62, 254 A.3d
874 (2020).
‘‘We are mindful that [w]hen the trial court has heard
a lengthy offer of proof and arguments of counsel before
performing the required balancing test, has specifically
found that the evidence was highly probative and mate-
rial, and that its probative value significantly out-
weighed the prejudicial effect, and has instructed the
jury on the limited use of the evidence in order to
safeguard against misuse and to minimize the prejudi-
cial impact . . . we have found no abuse of discretion.
. . . Proper limiting instructions often mitigate the
prejudicial impact of evidence of prior misconduct.
. . . Furthermore, a jury is presumed to have followed
a court’s limiting instructions, which serves to lessen
any prejudice resulting from the admission of such evi-
dence.’’ (Internal quotation marks omitted.) State v.
Berrios, 187 Conn. App. 661, 697, 203 A.3d 571, cert.
denied, 331 Conn. 917, 204 A.3d 1159 (2019).
The defendant argues on appeal that, ‘‘[a]lthough evi-
dence that the defendant possessed and fired the Desert
Eagle three days after the murder was relevant and
probative, the trial court abused its discretion in admit-
ting the extraneous facts of both shootings, the defen-
dant’s guilty pleas to both shootings, Officer Tvardzik’s
testimony that he heard the defendant say, ‘I like to
play with guns . . . my boys have guns, a .44 magnum,’
the shell casings from both incidents, photographs of
the shell casings, and testimony about the recovery of
and testing of the shell casings.’’ The defendant argues
that anything beyond evidence that he admitted to firing
the Desert Eagle three days after the murder, as relevant
to prove means, opportunity and identity, was ‘‘irrele-
vant, needlessly cumulative to the defendant’s admis-
sions, and unduly prejudicial.’’
We first address the relevance of the challenged evi-
dence. The defendant concedes the relevance of evi-
dence that he possessed and fired the Desert Eagle
three days after the victim’s death but argues that any
evidence beyond that, including the facts of the shoot-
ings, the guilty pleas, his statements, and the shell cas-
ings and related evidence, was irrelevant. We disagree.
‘‘Within the law of evidence, relevance is a very broad
concept. Evidence is relevant if it has any tendency to
make the existence of any fact that is material to the
determination of the proceeding more probable or less
probable than it would be without the evidence. . . .
Relevant evidence is evidence that has a logical ten-
dency to aid the trier in the determination of an issue.
. . . One fact is relevant to another if in the common
course of events the existence of one, alone or with
other facts, renders the existence of the other either
more certain or more probable. . . . Evidence is not
rendered inadmissible because it is not conclusive. All
that is required is that the evidence tend to support a
relevant fact even to a slight degree, [as] long as it is
not prejudicial or merely cumulative.’’ (Emphasis in
original; internal quotation marks omitted.) State v. Col-
lins, supra, 299 Conn. 587 n.19. On the basis of this
broad definition of relevancy, we cannot conclude that
the challenged evidence was irrelevant. See id.(rejecting distinction drawn by defendant between sim-
ple prior possession of murder weapon and its actual
use in shooting several months prior to charged mur-
der). Accordingly, we turn to an analysis of the degree
to which the prejudicial effect of the relevant evidence
outweighs its probative value.
As found by the trial court, the probative value of
the uncharged misconduct, which occurred in close
temporal proximity to the charged murder, was high.
The evidence of the two subsequent shootings, which
connected the defendant with the gun alleged by the
state to have been used in the homicide, and his ensuing
guilty pleas, were probative of the defendant’s means
and opportunity to commit the charged crimes. Like-
wise, the defendant’s statement, ‘‘I like to play with
guns . . . my boys have guns, a .44 magnum,’’ was
equally probative of the defendant’s means and opportu-
nity to commit the charged crimes. Finally, the spent
casing found inside the Desert Eagle and Van Deusen’s
related testimony were probative in that they explained
the lack of casings found at the scene of the homicide.
As the trial court found, the casing found inside the
Desert Eagle was relevant to whether the gun jammed.
Given that the probative value of the challenged evi-
dence was high, it would be ‘‘outweighed only upon a
showing of a high degree of prejudice.’’ State v. Morel,
172 Conn. App. 202, 230, 158 A.3d 848, cert. denied, 326
Conn. 911, 165 A.3d 1252 (2017).
With respect to the prejudicial effect of the evidence,
we first consider whether the facts offered may unduly
arouse the jurors’ emotions or hostility. Our Supreme
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. . . . The rationale behind this propo-
sition 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.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Raynor, supra, 337 Conn. 562–63.
In the present case, the Maple Street and Prospect
Street shootings were significantly less severe than the
charged crimes, which included the charge of murder.
Specifically, no one was injured in either subsequent
shooting. See, e.g., State v. Campbell, 328 Conn. 444,
523, 180 A.3d 882 (2018) (shooting at home where defen-
dant believed victim to be staying less vicious than
shooting three victims in head at close range). More-
over, the misconduct evidence was presented primarily
through the testimony of police officers and state labo-
ratory personnel who investigated the shootings. Cf.
State v. Raynor, supra, 337 Conn. 564 (evidence regard-
ing separate shooting could arouse jurors’ emotions
where evidence included victim’s detailed testimony
about shooting, including her feelings of being scared
and her actions during shooting). Thus, it is unlikely
that the facts of the two subsequent shootings and the
evidence related thereto unduly aroused the jurors’
emotions.
Moreover, the uncharged misconduct evidence did
not create an unduly distracting side issue. Although
there was extensive and repeated argument outside
the presence of the jury as to the admissibility of the
misconduct evidence, the state’s presentation of the
evidence to the jury was not unduly distracting. First,
the court restricted testimony to the facts as to the
occurrence of the two shootings, the time and location
of the shootings, and the lack of any injuries stemming
from the shootings. See State v. Blango, 103 Conn. App.
100, 111, 927 A.2d 964 (no abuse of discretion in admit-
ting evidence of two separate incidents in which defen-
dant displayed weapon when court limited testimony to
that which was necessary to support victim’s allegation
that defendant displayed gun), cert. denied, 284 Conn.
919, 933 A.2d 721 (2007). With respect to the casings,
the court’s ruling permitted introduction of only the
single casing found inside the Desert Eagle when it was
recovered. The remaining five casings were introduced
into evidence at the defendant’s request, subject to his
continued objection to the admission of all the casings.
Moreover, the introduction of the uncharged miscon-
duct evidence did not consume an undue amount of
time. See State v. James G., 268 Conn. 382, 401, 844
A.2d 810 (2004) (prior misconduct evidence did not
result in ‘‘trial within a trial’’ when it consisted of only
twenty-five pages out of approximately 500 pages of
trial transcript); State v. Morlo M., 206 Conn. App. 660,
693, 261 A.3d 68 (prior misconduct evidence not dis-
tracting in amount of time it involved when state elicited
victim’s testimony regarding two prior assaults without
adducing any additional evidence elaborating on details
of such assaults), cert. denied, 339 Conn. 910, 261 A.3d
745 (2021). In the present case, the misconduct evidence
was introduced primarily through testimony inter-
spersed throughout three days of the nine day trial
and also included limited documentary evidence and a
concise stipulation that was read to the jury. On the
first day of evidence, Detective Grzegorzek testified
briefly as to both the Maple Street and Prospect Street
shootings.19 On the second day of evidence, September
26, 2017, Officer Tvardzik testified as to the defendant’s
statement that he liked to play with guns and that five
casings were recovered from Maple Street,20 in a direct
and cross-examination that amounted to only three
pages of transcript. That same day, Detective Perez
testified as to the spent casing found inside the Desert
Eagle when it was recovered and the casings from the
Maple Street shooting. On October 2, 2017, Van Deusen
testified as to the shell casings from the Maple Street
and Prospect Street shootings, and photographs of her
comparisons were admitted into evidence. Finally, the
stipulation regarding the defendant’s guilty pleas was
read to the jury on October 4, 2017. Although the chal-
lenged evidence was introduced through multiple wit-
nesses, the prosecutor did not belabor his examination
of the witnesses, and we cannot say that the presenta-
tion of the evidence consumed an undue amount of
time.21
Finally, in an effort to minimize any prejudice that
might arise from the admission of the challenged evi-
dence, the trial court gave a limiting instruction in its
final charge22 to the jury regarding the purposes for
which it could consider the evidence of other acts of
uncharged misconduct of the defendant. It also gave
contemporaneous limiting instructions accompanying
the testimony of Van Deusen and Officer Tvardzik.23
‘‘Absent evidence to the contrary, we presume that the
jury followed the court’s limiting instruction.’’ (Internal
quotation marks omitted.) State v. Lynch, 123 Conn.
App. 479, 493–94, 1 A.3d 1254 (2010); cf. State v. Raynor,
supra, 337 Conn. 565 n.23 (recognizing that court gave
limiting instructions on three separate occasions but
noting that ‘‘limiting instructions may feature more
prominently in a harmless error analysis’’).
Our Supreme Court has explained that ‘‘the care with
which the [trial] court weighed the evidence and
devised measures for reducing its prejudicial effect mili-
tates against a finding of abuse of discretion.’’ (Internal
quotation marks omitted.) State v. Cutler, 293 Conn.
303, 313, 977 A.2d 209 (2009), overruled in part on other
grounds by State v. Elson, 311 Conn. 726, 91 A.3d 862(2014). In the present case, the court took care to weigh
the evidence, which it previously had determined was
highly probative. Specifically, it heard and considered
lengthy arguments as to the challenged evidence and
excluded the evidence it determined to be unduly preju-
dicial, i.e., the five casings, or cumulative. See footnote
16 of this opinion. With respect to the evidence it did
admit, the court reduced its prejudicial effect by limiting
the state to a narrow presentation of the basic facts as
to the two shootings and by providing the jury with
limiting instructions as to the purposes for which it
could consider the evidence. Accordingly, we conclude
that the court did not abuse its discretion by admitting
the uncharged misconduct evidence.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
1
At trial, New Britain Police Detective Thai Tran testified that there were
several possible reasons why no casing was found at the scene: the shooter
could have picked it up, a malfunction with the firearm could have kept
the casing within the firearm, a passing vehicle could have picked up the
casing in its tire treads, or a revolver could have been used.
2
The state sought to introduce testimony that the police were administer-
ing a gunshot residue test, but the defendant objected. The court precluded
reference to a gunshot residue test, limiting the state to the general term
‘‘test.’’
3
Correction Officer Dale Brawn testified that Davis and the defendant
became cellmates at the MacDougall-Walker Correctional Institution in Suf-
field on October 28, 2014. Brawn further testified that El Massri was housed
in the same unit as the defendant at MacDougall-Walker from January 1
through March, 2015, and that El Massri worked as a barber while incarcer-
ated.
4
Former Department of Correction Lieutenant Ruben Burgos testified
that, on November 19, 2014, he received, through a phone monitor, notifica-
tion that Davis had information and wanted to speak with a prosecutor or
the police, and Burgos interviewed Davis the following day, November 20,
2014. Burgos forwarded Davis’ request, and a detective from the New Britain
Police Department interviewed Davis. Burgos testified that Davis was inter-
viewed six or seven times.
5
Davis, a five time convicted felon, asked Detective Tran to speak to a
prosecutor in Hartford regarding criminal charges Davis had pending at the
time he gave his statement. Davis entered into a cooperation agreement
with the state, in which he agreed to provide information about this case
and a number of Hartford cases involving shootings that he had witnessed,
in exchange for the reduction of his pending criminal charge of home inva-
sion to a charge of attempt to commit assault in the first degree, and the
state’s recommendation of a suspended sentence on that charge.
6
Detective Tran testified that there was a Chinese food restaurant located
on South Main Street.
7
El Massri had been convicted of eighteen felonies. Following El Massri’s
statement to Detective Tran and in consideration for his testimony at the
defendant’s trial, El Massri’s existing agreement with the state with respect
to certain of his pending felonies was amended to permit him to argue for
a lesser sentence.
8
On rebuttal, the state offered the testimony of Michael Sullivan, chief
inspector for the Office of the Chief State’s Attorney. Sullivan testified
that the following factors are considered in determining the reliability of
informant information: whether the informant is in a position where he
could have obtained the information as he is claiming and whether there
is corroboration of the informant’s information.
9
Defense counsel also asked Detective Tran about an interview with
Joshua Ocasio, who, three years following the shooting of the victim, told
Detective Tran that he was present that night. Ocasio told Detective Tran
that he saw someone come up to the victim, a tussle occurred, and gunshots
were fired, but he was not able to identify the defendant.
10
At trial, Johnson invoked his fifth amendment privilege against self-
incrimination.
11
The prosecutor also stated: ‘‘[I]t was my understanding that Your Honor
was going to instruct the jury based on the proposed instructions and not
include the defendant’s requested instruction. Correct?’’ The prosecutor
further explained: ‘‘It was my understanding that Your Honor was going to
instruct the jury based on the proposed instructions that were given to
counsel. I know that Your Honor did include an instruction on jailhouse
informants and an instruction on completeness of the police investigation.
I believe Your Honor’s instructions are appropriate. I objected to the defen-
dant’s specific request.’’ The court responded: ‘‘Well, at the time I gave you
the instructions, to be quite honest, that was just the time, exactly the time
that I received his request to charge, so I did want to consider those as well.’’
12
Before charging the jury, the court made one additional change unrelated
to the investigative inadequacy issue and provided copies of the updated
charge to counsel.
13
Practice Book § 42-16 provides in relevant part: ‘‘An appellate court
shall not be bound to consider error as to the giving of, or the failure to
give, an instruction unless the matter is covered by a written request to
charge or exception has been taken by the party appealing immediately after
the charge is delivered. Counsel taking the exception shall state distinctly
the matter objected to and the ground of exception. . . .’’
14
The instruction that our Supreme Court in State v. Gomes, supra, 337
Conn. 856 n.20, ‘‘encourage[d]’’ trial courts to utilize ‘‘going forward,’’ and
which was subsequently approved by the Judicial Branch’s Criminal Jury
Instruction Committee as instruction 2.6-14, titled ‘‘Adequacy of Police Inves-
tigation,’’ provides: ‘‘You have heard some testimony of witnesses and argu-
ments by counsel that the state did not . This is a factor that you
may consider in deciding whether the state has met its burden of proof in
this case because the defendant may rely on relevant deficiencies or lapses
in the police investigation to raise reasonable doubt. Specifically, you may
consider whether
would normally be taken under the circumstances, whether if (that/these)
action(s) (was/were) taken, (it/they) could reasonably have been expected
to lead to significant evidence of the defendant’s guilt or evidence creating
a reasonable doubt of his guilt, and whether there are reasonable explana-
tions for the omission of (that/those) actions. If you find that any omissions
in the investigation were significant and not reasonably explained, you may
consider whether the omissions tend to affect the quality, reliability, or
credibility of the evidence presented by the state to prove beyond a reason-
able doubt that the defendant is guilty of the count(s) with which (he/she)
is charged in the information. The ultimate issue for you to decide, however,
is whether the state, in light of all the evidence before you, has proved
beyond a reasonable doubt that the defendant is guilty of the count(s) with
which (he/she) is charged.’’ See Connecticut Criminal Jury Instructions 2.6-
14, available at https://www.jud.ct.gov/JI/Criminal/Criminal.pdf (last visited
January 5, 2022).
15
In its memorandum of decision, the court stated that the defendant’s
statement that he liked to play with guns was not uncharged misconduct.
It later determined, however, that it did constitute uncharged misconduct.
16
The court’s limiting instruction provided: ‘‘Ladies and gentlemen, the
information, the testimony that was just offered by the state, is not being
admitted to indicate any bad character, propensity or a criminal tendency
by this defendant. The evidence is being admitted solely to show or establish
the identity of the person who committed the crimes charged and an element
of the crimes charged. You may not consider such evidence as establishing
a propensity on the part of the defendant to commit any of the crimes
charged or to demonstrate a criminal propensity. You may consider such
evidence if you believe it and further find that it logically, rationally and
conclusively supports the issue for which it is being offered but only as it
bears upon that issue. On the other hand, if you don’t believe the evidence
or even if you find that it doesn’t logically, rationally or conclusively support
the issue for which it’s being offered, then you may not consider it for any
other purpose.’’
17
The court excluded evidence of a DNA analysis performed on the Desert
Eagle as cumulative. It ruled: ‘‘[T]he other forensic testing, at this point, is
getting into Maple and Prospect Street rather than Roberts Street and the
jury should be focusing on Roberts Street.’’
18
On appeal, the defendant ‘‘does not contest the admission of evidence
that Det[ective] Perez found the Desert Eagle under a car on School Street.’’
He does challenge, however, the admission of the spent casing found inside
the gun and the evidence relating to that casing.
19
Also on the first day of evidence, Officer Tvardzik was called as a
witness and briefly mentioned the Maple Street shooting before court was
adjourned for the day.
20
As noted previously, the court found that the relevance of the five
casings from the Maple Street shooting was outweighed by its prejudicial
impact. Defense counsel, however, requested that, because the court had
allowed into evidence the casing from the Prospect Street shooting, that it
also allow into evidence the other casings but continued to object to the
admission of all the casings.
21
Last, the defendant was not unfairly surprised by the evidence, as it
was the subject of pretrial motions and a hearing.
22
The court gave the following limiting instruction in its final charge: ‘‘The
state has offered evidence of other acts of misconduct of the defendant.
This is not admitted to prove the bad character, propensity or criminal
tendencies of the defendant. Such evidence is being admitted solely to show
or establish the defendant’s intent, the identity of the person who committed
the crimes alleged, a motive for the commission of the crimes alleged and
an element of the crimes of murder and carrying a pistol without a permit.
‘‘You may not consider such evidence as establishing a propensity on the
part of the defendant to commit any crimes charged or to demonstrate
criminal propensity. You may consider such evidence if you believe it and
further find that it logically, rationally, and conclusively supports the issues
for which it is being offered by the state but only as it may bear on the
issues indicated above.
‘‘On the other hand, if you do not believe such evidence, or even if you
do, if you find that it does not logically, rationally and conclusively support
the issues for which it is being offered by the state; namely, the issues
indicated above, then you may not consider that testimony for any purpose.
‘‘You may not consider evidence about the misconduct of the defendant
for any purpose other than the ones I have just told you, because it may
predispose your mind unequivocally to believe that the defendant may be
guilty of the offense here charged merely because of the alleged other
misconduct. For that reason, you may consider this evidence only on the
issues indicated above and for no other purpose.’’
The court further instructed the jury: ‘‘Additionally, there was testimony
concerning the defendant’s activities on Maple and Prospect Street on the
dates following the crime at issue. Comments made to the investigating
officers are not to be used as indicative of any bad character or propensity
to commit any crime. They are to be used for the limited purpose indi-
cated earlier.’’
23
Although the court did not issue a contemporaneous limiting instruction
with the testimony of Detective Grzegorzek or the reading of the stipulation
as to the defendant’s guilty pleas, we note that the defendant did not request
a limiting instruction at that time.