State v. Raynor , 181 Conn. App. 760 ( 2018 )

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STATE OF CONNECTICUT v. DONALD RAYNOR
(AC 41018)
Keller, Elgo and Eveleigh, Js.
Syllabus
Convicted of the crime of murder in connection with the shooting death of
the victim, the defendant appealed. On appeal, he claimed, inter alia,
that the trial court improperly denied his motion in limine in which he
sought to exclude or to limit the scope of the testimony of S, the state’s
expert witness on firearm and toolmark identification. Specifically, he
claimed that because recent studies and reports had established that
the methodology underlying firearm and toolmark identification was
not sufficiently reliable, the court improperly denied his request for a
hearing, pursuant to State v. Porter (241 Conn. 57), to determine the
reliability of firearm and toolmark identification. Held:
1. The trial court did not abuse its discretion by denying the defendant’s
motion in limine to exclude or limit S’s testimony and request for a
Porter hearing: a Porter hearing to determine the validity of firearm and
toolmark identification was not required, as this court previously has
determined that the science of firearm and toolmark identification is
well established, and although this court’s prior decision predated cer-
tain reports and studies, and other certain sources that questioned the
validity of firearm and toolmark identification, those sources did not
overrule or otherwise abrogate the controlling case law in this state;
moreover, although the testimony of S included the flaws and criticisms
of firearm and toolmark identification, to which the jury was free to
give as much or as little weight as it saw fit, the defendant did not
proffer his own expert witness to testify that the science of firearm and
toolmark identification was not reliable.
2. The defendant could not prevail on his claim that the trial court improperly
granted the state’s motion for the admission of uncharged misconduct
evidence related to a shooting that occurred eight months after the
shooting of the victim, the trial court not having abused its discretion
in determining that the probative value of the uncharged misconduct
evidence outweighed its prejudicial effect; the admission of the
uncharged misconduct evidence did not unduly arouse the jury’s emo-
tions because the uncharged misconduct, which involved an attempted
shooting that did not result in any deaths or injuries, was much less
severe than the charged conduct, which involved the shooting death of
the victim, the admission of the uncharged misconduct evidence did
not create a distracting side issue, as the evidence admitted linked an
assault rifle and the perpetrator of the uncharged shooting to the murder
at issue in the present case, the presentation of evidence related to the
attempted shooting did not take up an inordinate amount of time, the
defendant was not unfairly surprised by the admission of the uncharged
misconduct evidence, as it was admitted in the defendant’s prior trial,
which had resulted in a mistrial, and the state had filed a pretrial motion
for admission of uncharged misconduct evidence, and any possible
prejudice was further mitigated by the trial court’s limiting instructions
that the uncharged misconduct evidence was being admitted solely to
establish the identity of the person who committed the crimes alleged
and the availability of the means to commit those crimes.
Argued January 31—officially released May 8, 2018
Procedural History
Substitute information charging the defendant with
the crime of murder, brought to the Superior Court in
the judicial district of Hartford and tried to the jury
before the court, Kwak, J.; verdict and judgment of
guilty, from which the defendant appealed. Affirmed.
Andrew O’Shea, with whom was Damon Kirsch-
baum, for the appellant (defendant).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Patrick Griffin, state’s attorney, for the
appellee (state).
Opinion
EVELEIGH, J. The defendant, Donald Raynor,
appeals from the judgment of conviction, rendered fol-
lowing a jury trial, of murder in violation of General
Statutes § 53a-54a (a). On appeal, the defendant claims
that the trial court (1) improperly denied the defen-
dant’s motion in limine to exclude or limit the scope
of the testimony of the state’s expert witness on firearm
and toolmark identification, and (2) abused its discre-
tion by granting the state’s motion for uncharged mis-
conduct related to a shooting that occurred
approximately eight months after the events of this
case. We disagree and, accordingly, affirm the judgment
of the trial court.
The following facts, which a jury reasonably could
have found, and procedural history are relevant to this
appeal. The defendant and Jose Rivera1 were members
of the Money Green Bedrock (Bedrock) street gang in
Hartford. The victim was a member of The Avenue,
another Hartford street gang. Bedrock and The Avenue
are rival gangs, and the defendant and Rivera viewed
members of The Avenue as ‘‘the enemy.’’ Prior to the
events giving rise to this case, there were two incidents
between the rival gangs involving the defendant and
the victim. The first incident involved the victim firing
shots at the defendant and another Bedrock member.
The second incident, which occurred approximately
one week prior to the events of this case, involved
the victim spotting the defendant and Rivera on The
Avenue’s territory and subsequently taking a picture of
the defendant’s vehicle leaving the area. Following the
second incident, the defendant stated to Rivera that the
victim ‘‘had to go,’’ which Rivera understood to mean
that the victim ‘‘had to get killed for what he did.’’
During the early morning hours of June 18, 2007, the
defendant called Rivera and stated that he wanted to
find members of The Avenue and test out a .223 caliber
assault rifle. Rivera understood this to mean that,
‘‘[b]asically, he wanted to go look [for] and kill some-
body.’’ The defendant picked up Rivera and drove to a
parking lot located behind Bedford Street where there
was an abandoned vehicle in which the defendant and
Rivera stored guns and drugs. The defendant then put
on latex gloves, removed a .223 caliber assault rifle
from the trunk of the abandoned vehicle, and loaded
the rifle. The defendant and Rivera then got back into
the vehicle that they were driving; Rivera drove the
vehicle and the defendant sat in the backseat.
Rivera drove the vehicle around areas that he and
the defendant knew were frequented by members of
The Avenue. While Rivera was driving on Enfield Street,
he informed the defendant that he saw the victim stand-
ing on the sidewalk having a conversation with a
woman. The defendant instructed Rivera to go around
the block, and Rivera complied. As Rivera turned back
onto Enfield Street, he lowered the back window and
began to slow down. As the vehicle approached the
victim and the woman, the defendant hung out the back
window and began shooting at the victim. The victim
attempted to run away but made it only three steps
before he fell to the ground. The defendant continued
to fire at the victim while he was on the ground. He
fired at least ten to fifteen shots at the victim, who died
as a result of gunshot wounds to the chest and neck.
In 2008, the police recovered a .223 Kel-Tec assault
rifle in an unrelated investigation. In 2011, Rivera gave
a statement to the police in which he confessed to his
involvement in the victim’s murder and implicated the
defendant. Rivera also identified the .223 Kel-Tec
assault rifle that the police had recovered in 2008 as
the weapon that the defendant used to shoot the victim.
In 2014, the defendant was charged, in a long form
information, with murder in violation of § 53a-54a (a),
conspiracy to commit murder in violation of § 53a-54a
(a) and General Statutes § 53a-48 (a), and criminal use
of a firearm in violation of General Statutes § 53a-216
(a). A trial on these charges commenced in September,
2014, and ended in a mistrial because the jury was
unable to reach a verdict. A second trial commenced
in March, 2015, in which the defendant was charged
only with one count of murder in violation of § 53a-54a
(a). The jury found the defendant guilty, and the court
sentenced him to a total effective sentence of sixty
years of imprisonment. This appeal followed. Additional
facts and procedural history will be set forth as nec-
essary.
I
The defendant’s first claim on appeal is that the court
abused its discretion by denying his motion in limine
in which he sought to exclude or limit the scope of
the testimony of James Stephenson, the state’s expert
firearm and toolmark examiner. The defendant raises
the following arguments in support of this claim: (1)
recent studies have established that the methodology
underlying firearm and toolmark identification is not
sufficiently reliable; (2) the court improperly denied his
request for a hearing pursuant to State v. Porter, 241
Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S.
1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), to deter-
mine the reliability of firearm and toolmark identifica-
tion; (3) the court improperly allowed Stephenson to
opine that various cartridge casings recovered from the
crime scene were fired from a particular firearm; and
(4) the court improperly denied his motion to limit the
scope of Stephenson’s testimony. We disagree.
‘‘It is axiomatic that [t]he trial court’s ruling on the
admissibility of evidence is entitled to great deference.
In this regard, the trial court is vested with wide discre-
tion in determining the admissibility of evidence. . . .
Accordingly, [t]he trial court’s ruling on evidentiary
matters will be overturned only upon a showing of a
clear abuse of the court’s discretion. . . . Because a
trial court’s ruling under Porter involves the admissibil-
ity of evidence, we review that ruling on appeal for an
abuse of discretion.’’ (Internal quotation marks omit-
ted.) State v. Legnani, 109 Conn. App. 399, 418, 951 A.2d
674, cert. denied, 289 Conn. 940, 959 A.2d 1007 (2008).
‘‘In [Porter], our Supreme Court held that scientific
evidence should be subjected to a flexible test, with
differing factors that are applied on a case-by-case
basis, to determine the reliability of the scientific evi-
dence. . . . The court, however, did not define what
constituted scientific evidence, thereby allowing the
courts to maintain some flexibility in applying the test.
As a result, a court’s initial inquiry should be whether
the [evidence] at issue . . . is the type of evidence
contemplated by Porter. . . . In Porter, our Supreme
Court noted that some scientific principles have
become so well established that an explicit . . . analy-
sis [under Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
(1993)] is not necessary for admission of evidence there-
under. . . . Evidence derived from such principles
would clearly withstand a Daubert analysis, and thus
may be admitted simply on a showing of relevance.’’
(Citations omitted; internal quotation marks omitted.)
State v. Legnani, supra, 109 Conn. App. 419.
The following additional facts and procedural history
are relevant to the resolution of this claim. Prior to
Stephenson’s testimony, the defendant filed a motion
in limine in which he requested a Porter hearing to
determine whether the methodology underlying firearm
and toolmark identification was reliable. In the alterna-
tive, the defendant sought to limit Stephenson’s testi-
mony so that he could not state his conclusions to a
particular degree of certainty but, instead, would have
been required to state that his conclusions were ‘‘merely
more likely than not . . . correct.’’ In support of his
request for a Porter hearing, the defendant relied on
multiple studies that called into question the scientific
validity of firearm and toolmark identification.2 The
defendant also relied upon United States v. Glynn, 578
F. Supp. 2d 567 (S.D.N.Y. 2008), to support his alterna-
tive argument that the scope of Stephenson’s testimony
should be limited to opining that his conclusions were
‘‘more likely than not’’ correct.3
Following argument on the motion, the court denied
the defendant’s motion in limine and request for a Porter
hearing, relying on State v. Legnani, supra, 109 Conn.
App. 399. The court reasoned that firearm and toolmark
evidence is ‘‘forensic science [that] has been well estab-
lished, and we have a case, [Legnani] . . . which
stands for the proposition that this is not a new science.
Therefore, a Porter hearing is not necessary.’’ The court
also denied the defendant’s request to limit Stephen-
son’s testimony to state that his conclusions were ‘‘more
likely than not . . . correct.’’
Stephenson subsequently testified before the jury
that it was possible to determine whether the bullets
or cartridge casings recovered from a crime scene could
be identified as having been fired from a particular
firearm. In fact, twelve of the fifteen cartridge casings
recovered from the Enfield Street shooting were ‘‘posi-
tively matched’’ to the .223 Kel-Tec assault rifle that
Rivera had identified as the firearm that the defendant
used to shoot the victim. Although the three remaining
cartridge casings were the same size and weight as a
.223 caliber shell casing and contained similar toolm-
arks, there was not sufficient detail for a positive identi-
fication to the particular firearm in evidence. The
examiner determined that the three remaining cartridge
casings produced inconclusive results.
Stephenson also testified regarding the Association
of Firearm and Tool Mark Examiners (association) and
its theory of identification. The association’s theory of
identification is generally accepted in the science of
firearm and toolmark identification, and the Connecti-
cut Forensic Science Laboratory follows the guidelines
from this theory. Stephenson conceded, however, that
recent studies and reports have critiqued the science
of firearm and toolmark identification. Stephenson tes-
tified regarding the NAS Report and the Ballistic
Imaging studies; see footnote 2 of this opinion; and
explained that he viewed some, but not all, of the cri-
tiques in those studies as valid. Defense counsel also
highlighted the ways in which firearm and toolmark
identification does not follow precisely the scientific
method—i.e., by not protecting against confirmation
bias—and that the association’s theory of identification
is not a completely objective theory.
On appeal, the defendant claims that the court abused
its discretion by denying his motion in limine and
request for a Porter hearing. The defendant argues that
the NAS Report and the Ballistic Imaging studies estab-
lish that the methodology underlying firearm and toolm-
ark identification is not reliable, and as a result, the
court should have precluded Stephenson from opining
that particular cartridge casings positively matched the
firearm in evidence. In the alternative, the defendant
argues that the court should have limited Stephenson’s
testimony so that he could opine only that his conclu-
sions were ‘‘more likely than not . . . correct.’’ The
state argues that the court properly relied upon State
v. Legnani, supra, 109 Conn. App. 399, in concluding
that the admissibility of firearm and toolmark identifica-
tion evidence is well established and, therefore, prop-
erly denied the defendant’s motion. We agree with
the state.
This court’s decision in Legnani controls our resolu-
tion of this claim. In Legnani, the defendant requested
that the trial court hold a Porter hearing to determine
whether the comparison between a firearm’s magazine
that was recovered from the defendant’s home and fired
cartridge casings that were recovered from the crime
scene was relevant and supported by a valid methodol-
ogy. Id., 415–16. The state argued that a Porter hearing
was not necessary, as the evidence fell within the gen-
eral category of firearm and toolmark identification,
which courts routinely have held admissible. Id., 416.
The trial court held an evidentiary hearing—not a Porter
hearing—during which the state called an expert wit-
ness in the field of firearm and toolmark identification.
Id. The defendant did not call any witnesses during the
evidentiary hearing, and the court subsequently denied
the defendant’s request for a Porter hearing. Id., 417.
In so doing, the court stated that it ‘‘need not conduct
a Porter type hearing in this case because the scientific
principles of ballistics and firearms analysis are very
well established and can be admitted on a mere showing
[of] relevance.’’ (Internal quotation marks omitted.) Id.
On appeal, the defendant in Legnani argued that the
trial court improperly denied his request for a Porter
hearing. Id., 415. This court noted that ‘‘[s]everal times
during the cross-examination of [the expert], defense
counsel attempted to inquire into the specific methodol-
ogy used by [the firearm and toolmark examiner]. The
court precluded defense counsel from delving too
deeply into the specific methodology used, sustaining
the state’s objection that the specific methodology used
pertains to the weight of the evidence and not to the
request for a Porter hearing.’’ Id., 417. This court con-
cluded that ‘‘identifying marks made on the magazine
by the cartridge casings is merely a subset of the science
of firearm and tool mark identification, which has been
well established and admissible evidence under prior
case law. . . . Because identifying the magazine mark-
ings is a subset of the well established and admissible
science and practice of firearm and tool mark identifi-
cation, the court did not have to subject evidence
related thereto to a Porter hearing. As a result, we
conclude that the court did not abuse its discretion in
refusing to hold a Porter hearing.’’ (Citations omitted;
emphasis added.) Id., 420–21.
Legnani is controlling precedent on the issue of
whether the science of firearm and toolmark identifica-
tion is well established, and thus binds our resolution
of this claim.4 The defendant argues that Legnani is
inapplicable because it predates the NAS Report, the
Ballistic Imaging study, and other sources that question
the validity of firearm and toolmark identification.
Although Legnani was decided prior to these reports
being published, these reports do not overrule or other-
wise abrogate the existing case law in this state; nor
do the district court cases or the cases from other states
that the defendant has cited in support of this claim.
More importantly, the defendant did not proffer his own
expert witness to testify that the science of firearm and
toolmark identification is not reliable.
The evidence admitted during the cross-examination
of Stephenson included the flaws and criticisms of fire-
arm and toolmark identification. The jury was free to
give this evidence as much or as little weight as it saw
fit. See State v. Osbourne, 138 Conn. App. 518, 533–34,
53 A.3d 284 (‘‘[i]t is axiomatic that it is the jury’s role
as the sole trier of the facts to weigh the conflicting
evidence and to determine the credibility of witnesses’’
[internal quotation marks omitted]), cert. denied, 307
Conn. 937, 56 A.3d 716 (2012). A Porter hearing to deter-
mine the validity of firearm and toolmark identification
was not required. The state had to establish only that
the firearm and toolmark evidence was relevant, which
it did. Therefore, we conclude that the court properly
relied upon Legnani, and did not abuse its discretion
by denying the defendant’s motion in limine to exclude
or limit Stephenson’s testimony.
II
The defendant’s second claim on appeal is that the
court abused its discretion by granting the state’s
motion for the admission of uncharged misconduct evi-
dence. The defendant argues that the probative value
of the uncharged misconduct evidence was outweighed
by the risk of unfair prejudice. The state argues that
the court properly admitted the evidence to establish
identity and means. We agree with the state.
The following additional facts and procedural history
are relevant to the resolution of this claim. Prior to the
start of the second trial, the state filed a motion in
which it sought to introduce uncharged misconduct
evidence related to a shooting on Baltimore Street that
had occurred eight months after the shooting of the
victim. The state argued that the uncharged misconduct
evidence was admissible to establish identity and
means. The defendant opposed this motion, arguing
that the evidence was more prejudicial than probative
because the evidence showed only ‘‘that this gun was
used on a separate occasion potentially by [the defen-
dant] to shoot at another person that he’s not charged
with [shooting] in this case. . . . It’s the very sort of
thing that yields the prejudice/probative . . . calculus
. . . in the prohibition against propensity evidence.
. . . [W]e think the state has everything it needs to
prove the manner and means of the homicide as
charged, [and] that to introduce another shooting, the
gun charged in this case, is prejudicial, and in mar of
the propensity of evidence rule.’’ The court granted the
state’s motion for uncharged misconduct on the basis
of its interpretation of the rules of evidence,5 and con-
cluded that evidence of the Baltimore Street shooting
fell within the identity and means exceptions of § 4-5
(c) of the Connecticut Code of Evidence.6
At trial, Deborah Parker, the target of the Baltimore
Street shooting, testified that at approximately 2:30
a.m., on February 16, 2008, she and Daryl Spence
returned to their residence on Baltimore Street in Hart-
ford, where they resided with their two sons. As Parker
and Spence prepared to exit their vehicle, Parker
noticed two men walking in the street. As the men
approached, one man fired a handgun in Parker’s direc-
tion. The other man then raised a rifle and began firing
it in Parker’s direction. Parker took cover underneath
a vehicle and Spence ran away to hide elsewhere. Par-
ker saw the faces of both shooters, which were made
visible due to the streetlight. She also noticed that the
man with the rifle was wearing white or light colored
gloves. Neither Parker nor Spence was injured.
Later that morning, Parker’s sons were looking online
through pictures of a concert that they had attended
the night before. While Parker was passing by, she saw
on the computer screen a photograph of two men,
whom she recognized as the men who had shot at her
just hours before. She identified the defendant as the
man who had shot the rifle in her direction. Parker
testified that she called the detective who was assigned
to investigate the shooting to report the identity of the
shooters. Because the detective never got back to her,
however, she ‘‘left the whole situation alone.’’
In August, 2011, Parker met with a cold case detective
in Hartford to review photographs related to the Balti-
more Street shooting. During this meeting, Parker iden-
tified the defendant’s picture in a photographic array
and circled it to indicate that he was involved in the
shooting. In a separate photographic array, Parker iden-
tified the second shooter as an individual named
Ezekiel.
Stephenson testified regarding the cartridge casings
that were recovered from the Baltimore Street shooting.
There were twenty-two cartridge casings recovered,
seventeen of which were positively matched to the .223
Kel-Tec assault rifle that Rivera identified as the firearm
the defendant had used in the Enfield Street shooting.
See part I of this opinion.
On appeal, the defendant does not challenge the
court’s conclusion that the uncharged misconduct evi-
dence was relevant to establish identity and means.
Accordingly, the only question we must resolve with
respect to this claim is whether the court abused its
discretion in concluding that the probative value of the
uncharged misconduct evidence outweighed its prejudi-
cial effect. The defendant argues that the evidence is
more prejudicial than probative because ‘‘Parker’s iden-
tification of the defendant was exceedingly unreliable,’’
that the similarities between the charged and uncharged
conduct render admission of the uncharged misconduct
overly prejudicial, and that the uncharged misconduct
evidence painted the defendant as a ‘‘deranged gun-
man.’’ We disagree.
‘‘[A]s a general rule, evidence of prior misconduct is
inadmissible to prove that a criminal defendant is guilty
of the crime of which the defendant is accused. . . .
Such evidence cannot be used to suggest that the defen-
dant has a bad character or a propensity for criminal
behavior. . . . On the other hand, evidence of crimes
so connected with the principal crime by circumstance,
motive, design, or innate peculiarity, that the commis-
sion of the collateral crime tends directly to prove the
commission of the principal crime, is admissible. The
rules of policy have no application whatever to evidence
of any crime which directly tends to prove that the
accused is guilty of the specific offense for which he
is on trial. . . . We have developed a two part test to
determine the admissibility of such evidence. First, the
evidence must be relevant and material to at least one
of the circumstances encompassed by the exceptions
[set forth in § 4-5 (b) of the Connecticut Code of Evi-
dence].7 . . . Second, the probative value of the evi-
dence must outweigh its prejudicial effect. . . .
Because of the difficulties inherent in this balancing
process, the trial court’s decision will be reversed only
whe[n] abuse of discretion is manifest or whe[n] an
injustice appears to have been done. . . . On review
by this court, therefore, every reasonable presumption
should be given in favor of the trial court’s ruling. . . .
‘‘The well established exceptions to the general prohi-
bition against the admission of uncharged misconduct
[evidence] are set forth in § 4-5 (b) of the Connecticut
Code of Evidence, which provides in relevant part that
[e]vidence of other crimes, wrongs or acts of a person
is admissible . . . to prove intent, identity, malice,
motive, common plan or scheme, absence of mistake
or accident, knowledge, a system of criminal activity,
or an element of the crime, or to corroborate crucial
prosecution testimony.’’ (Citation omitted; footnote
added; internal quotation marks omitted.) State v. Col-
lins, 299 Conn. 567, 582–83, 10 A.3d 1005, cert. denied,
565 U.S. 908, 132 S. Ct. 314, 181 L. Ed. 2d 193 (2011).
‘‘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 jury’s emotions, hostility or sympa-
thy, (2) . . . the proof and answering evidence it pro-
vokes may create a side issue that will unduly distract
the jury from the main issues, (3) . . . the evidence
offered and the counterproof will consume an undue
amount of time, and (4) . . . the defendant, having no
reasonable ground to anticipate the evidence, is unfairly
surprised and unprepared to meet it.’’ (Internal quota-
tion marks omitted.) Id., 586–87.
Our Supreme Court’s decision in State v. Collins,
supra, 299 Conn. 567, guides our resolution of this claim.
In Collins, the trial court admitted evidence of
uncharged misconduct related to another shooting in
which the defendant allegedly was involved. Id., 569–70,
580. The state’s firearm and toolmark examiner testified
that cartridge casings recovered from the scene of the
murder at issue were fired from the same weapon that
had been used in the uncharged crime. Id., 572. The
state argued that such evidence was admissible because
‘‘it linked a gun owned and used by the defendant [in
the uncharged shooting] to the shooting of [the victim]
in this case.’’ Id., 577. The defendant argued that the
admission of such evidence was ‘‘highly prejudicial and
of little probative value,’’ and that the evidence ‘‘would
inflame the jury’’ due to the similarities between the
charged and uncharged shootings. (Internal quotation
marks omitted.) Id., 574–75.
On appeal, this court agreed that the trial court
abused its discretion in admitting the uncharged mis-
conduct evidence and reversed and remanded the case
for a new trial. Id., 576. The state appealed to our
Supreme Court, which reversed this court’s judgment.
Id., 586. In so doing, the court noted, inter alia, that
‘‘[u]ncharged misconduct evidence has been held not
unduly prejudicial when the evidentiary substantiation
of the vicious conduct, with which the defendant was
charged, far outweighed, in severity, the character of his
prior misconduct.’’ (Internal quotation marks omitted.)
Id., 588. The court also stated that it found ‘‘significant
in mitigating any possible prejudice the limiting instruc-
tions . . . given by the trial court both during the testi-
mony of relevant witnesses and during the final jury
charge, which we presume the jury to have followed
in the absence of any indication to the contrary.’’ Id.,
590. In addition, the court cited ‘‘numerous other [deci-
sions from] federal and state courts that have rejected
challenges, founded on undue prejudice, to the use of
uncharged misconduct evidence in cases wherein the
charged offenses were committed using the same gun
that the defendant had utilized in [the uncharged] prior
shootings.’’ Id.
Here, the severity of the charged conduct outweighed
the severity of the uncharged conduct. The charged
conduct derived from the drive-by shooting of the vic-
tim, which resulted in the death of the victim. The
uncharged conduct derived from the attempted shoot-
ing of Parker and Spence, and did not result in any
deaths or even any injuries. Cf. id., 588 (uncharged
conduct related to prior, less severe shooting found
admissible, where defendant charged with murder, fel-
ony murder, and robbery in first degree in connection
with shooting death).
Additionally, the court in the present case gave the
jury limiting instructions on three occasions: (1) prior
to the state first presenting evidence of the Baltimore
Street shooting; (2) following Parker’s testimony; and
(3) during its final charge to the jury. These limiting
instructions provided, inter alia, that the uncharged mis-
conduct evidence was being admitted ‘‘solely to show
or establish [the] identity of the person who committed
the crimes alleged in this information, and the availabil-
ity of the means to commit those crimes.’’8
On the basis of our review of the record, we conclude
that the court did not abuse its discretion in determining
that the probative value of the uncharged misconduct
evidence outweighed its prejudicial effect. Although the
facts of the uncharged misconduct involved the defen-
dant attempting to shoot Parker and Spence, they were
much less severe than those of the charged conduct
and, therefore, admission of the uncharged misconduct
evidence cannot be said to have unduly aroused the
jury’s emotions. Nor can we say that admission of the
uncharged misconduct evidence created a distracting
side issue, as the evidence admitted linked the rifle and
the perpetrator of the uncharged shooting to the murder
at issue in this case. Additionally, the presentation of
evidence related to the Baltimore Street shooting did
not take up an inordinate amount of time, as the presen-
tation of the uncharged misconduct evidence com-
prised at most one and one-half days of a six day trial.9
Finally, the defendant was not unfairly surprised by the
admission of this evidence, as it was admitted in the
defendant’s first trial and the state filed a pretrial motion
for the admission of uncharged misconduct evidence.
Accordingly, we conclude that the court did not abuse
its discretion by admitting the uncharged misconduct
evidence related to the Baltimore Street shooting.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Rivera pleaded guilty to one count of conspiracy to commit murder in
violation of General Statutes §§ 53a-54a (a) and 53a-48 in connection with
the murder of the victim in this case. See State v. Rivera, Superior Court,
judicial district of Hartford, Docket No. CR-13-0670080-T (August 4, 2015).
2
One such study was the Committee on Identifying the Needs of the
Forensic Sciences Community, National Research Council, ‘‘Strengthening
Forensic Science in the United States: A Path Forward,’’ (2009), available
at https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf (last visited April 30,
2018) (NAS Report). The NAS Report explained that ‘‘[b]ecause not enough
is known about the variabilities among individual tools and guns, we are
not able to specify how many points of similarity are necessary for a given
level of confidence in the result. Sufficient studies have not been done to
understand the reliability and repeatability of the methods.’’ Id., 154. The
study added that ‘‘[a]lthough some studies have been performed on the
degree of similarity that can be found between marks made by different
tools and the variability in marks made by an individual tool, the scientific
knowledge base for toolmark and firearms analysis is fairly limited.’’ Id., 155.
Another such study was the Committee to Assess the Feasibility, Accuracy,
and Technical Capability of a National Ballistics Database, ‘‘Ballistic
Imaging,’’ (2008), available at http://www.nap.edu/catalog/12162.html (last
visited April 30, 2018) (Ballistic Imaging). The Ballistic Imaging study found
that ‘‘[t]he validity of the fundamental assumptions of uniqueness and repro-
ducibility of firearms-related toolmarks has not yet been fully demonstrated.’’
(Emphasis omitted.) Id., 3.
3
The court in United States v. Glynn, supra, 578 F. Supp. 2d 567, stated
that ‘‘ballistics examination not only lacks the rigor of science but suffers
from greater uncertainty than many other kinds of forensic evidence. Yet
its methodology has garnered sufficient empirical support as to warrant its
admissibility. . . . The problem is how to admit it into evidence without
giving the jury the impression . . . that it has greater reliability than its
imperfect methodology permits. The problem is compounded by the ten-
dency of ballistics experts . . . to make assertions that their matches are
certain beyond all doubt, that the error rate of their methodology is zero, and
other such pretensions. Although effective cross-examination may mitigate
some of these dangers, the explicit premise of Daubert and Kumho Tire
[Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238
(1999)] is that, when it comes to expert testimony, cross-examination is
inherently handicapped by the jury’s own lack of background knowledge,
so that the [c]ourt must play a greater role, not only in excluding unreliable
testimony, but also in alerting the jury to the limitations of what is presented.’’
(Citation omitted; internal quotation marks omitted.) United States v. Glynn,
supra, 574. The court ordered that any testimony from the ballistics expert
would be limited to ‘‘only that a firearms match was more likely than not
. . . .’’ (Internal quotation marks omitted.) Id., 574–75.
4
The defendant urges this court to overrule Legnani. ‘‘[T]his court’s policy
dictates that one panel should not . . . reverse the ruling of a previous
panel. The reversal may be accomplished only if the appeal is heard en
banc.’’ (Emphasis added; internal quotation marks omitted.) Boccanfuso v.
Conner, 89 Conn. App. 260, 285 n.20, 873 A.2d 208, cert. denied, 275 Conn.
905, 882 A.2d 668 (2005). On November 27, 2017, the defendant filed a motion
for consideration en banc, which this court denied on January 10, 2018.
Additionally, the entire court has not ordered that this case be considered
en banc pursuant to Practice Book § 70-7 (b), nor are we persuaded that
en banc review is warranted. Therefore, we will not overrule Legnani.
We do acknowledge, however, that there has been some evolvement in
the field of firearm and toolmark identification since this court decided
Legnani. As the defendant pointed out before the trial court and in his
briefs to this court, recent studies and cases have questioned the scientific
validity of firearm and toolmark identification. We are familiar with the
findings and conclusions of the NAS Report and the Ballistic Imaging studies,
which explain the limitations that exist in the science of firearm and toolmark
identification; see footnote 2 of this opinion; as well as the holding of United
States v. Glynn, supra, 578 F. Supp. 2d 567, which limited the scope of the
testimony regarding firearm and toolmark identification in that case. See
footnote 3 of this opinion; see also State v. Burton, Superior Court, judicial
district of New Haven, Docket No. CR-14-0150831-S (February 1, 2017) (court
applied Legnani in ruling that firearm and toolmark identification evidence
is reliable and not subject to Porter, but limited testimony of state’s firearm
and toolmark identification expert to be that recovered cartridge casing
was consistent with being fired from particular firearm, and expert could
not opine that recovered casing was match to particular firearm). Defense
counsel also extensively cross-examined Stephenson regarding the recent
criticisms of firearm and toolmark identification, during which Stephenson
acknowledged the validity of at least some of those criticisms. Even if
we were inclined to review the scientific validity of firearm and toolmark
identification—and therefore inclined to review the holding of Legnani—
the circumstances of the present case do not warrant a departure from our
precedent. The defendant has not proffered his own expert to rebut the
notion that firearm and toolmark evidence is sufficiently reliable as to be
admitted without first requiring a Porter hearing. Therefore, we adhere to
our precedent that holds that the admissibility of firearm and toolmark
identification is well established.
5
The court also noted that its decision was based, in part, on the law of
the case doctrine, as the evidence had been admitted in the defendant’s
first trial.
6
On three occasions, the court gave the jury a limiting instruction regard-
ing the use of the uncharged misconduct evidence.
7
When State v. Collins, 299 Conn. 567, 10 A.3d 1005, cert. denied, 565
U.S. 908, 132 S. Ct. 314, 181 L. Ed. 2d 193 (2011), was decided, the 2009
edition of the Connecticut Code of Evidence was applied in that case. In
the 2009 edition, the exceptions to the propensity of the evidence rule were
found in § 4-5 (b). By the time of the trial in the present case, however, a
new edition of the Code of Evidence had been released, and § 4-5 (b) has
been transferred to § 4-5 (c).
8
‘‘In the absence of a showing that the jury failed or declined to follow
the court’s instructions, we presume that it heeded them.’’ (Internal quotation
marks omitted.) State v. Santiago, 269 Conn. 726, 762, 850 A.2d 199 (2004).
9
In addition, as the state notes, three of the witnesses who testified
about the uncharged Baltimore Street shooting testified primarily about the
charged conduct.