State v. Ramos , 182 Conn. App. 604 ( 2018 )

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STATE OF CONNECTICUT v. ABIMAEL RAMOS
(AC 40606)
Lavine, Bright and Eveleigh, Js.
Syllabus
Convicted of the crime of manslaughter in the first degree with a firearm
in connection with the shooting death of the victim, the defendant
appealed. The defendant, who was in a romantic relationship with the
victim, had stated to the police that two unidentified Jamaican or Haitian
men, who were about five feet, eight inches in height, broke into the
home he shared with the victim, attacked him, and shot the victim.
During trial, defense counsel sought to question three witnesses, includ-
ing two investigating police officers, about the possible connection
between the victim’s death and a prior burglary that had occurred at a
former residence of the defendant and the victim. Defense counsel made
an offer of proof outside the presence of the jury, and the only eyewitness
to the burglary testified that she noticed an African-American male, who
was six feet, two inches in height, coming out of the defendant’s former
residence on the same day as the burglary. The trial court ruled that it
would not permit defense counsel to question the investigating police
officers about their alleged failure to investigate a potential connection
between the victim’s death and the burglary because, inter alia, the
proffered testimony was irrelevant and the defendant had not made the
required showing for a third-party culpability defense. Held:
1. The defendant’s claim that he was deprived of his rights to present a
defense and to cross-examine witnesses, pursuant to the sixth amend-
ment to the United States constitution, when the trial court prevented
him from questioning police officers about alleged inadequacies in their
investigation into the possible connection between the prior burglary
and the victim’s death was unavailing, the trial court having properly
excluded the proffered testimony as irrelevant; the defendant’s multiple
offers of proof failed to indicate how a further, specific investigation
into the possible connection between the burglary and the victim’s death
reasonably could have led to additional evidence bearing on his guilt
or innocence, as the two incidents were separated by approximately
eight months and allegedly involved individuals with distinct characteris-
tics, and their only alleged connection was that they both took place
at the shared residences of the defendant and the victim, and to the
extent that the proffered testimony had any probative value, admitting
it could have diverted the jury’s attention to a collateral matter, namely,
speculation about a theorized connection between the unsolved burglary
and the victim’s death that allegedly involved unknown assailants.
2. The defendant’s claim that the trial court abused its discretion in admitting
into evidence testimony regarding the victim’s relationship with the
defendant prior to her death was not reviewable, the defendant having
failed to address the harmfulness of the allegedly improper evidentiary
rulings in his principal brief.
Argued January 9—officially released June 12, 2018
Procedural History
Substitute information charging the defendant with
the crime of murder, brought to the Superior Court in
the judicial district of Fairfield and tried to the jury
before Kahn, J.; verdict and judgment of guilty of the
lesser included offense of manslaughter in the first
degree with a firearm, from which the defendant
appealed. Affirmed.
Sean P. Barrett, assigned counsel, with whom, on
the brief, was Peter G. Billings, assigned counsel, for
the appellant (defendant).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Michael A. DeJoseph, senior assistant
state’s attorney, for the appellee (state).
Opinion
LAVINE, J. The defendant, Abimael Ramos, appeals
from the judgment of conviction, rendered following a
jury trial, of intentional manslaughter in the first degree
with a firearm in violation of General Statutes §§ 53a-
55 (a) (1) and 53a-55a. On appeal, he claims that (1)
he was deprived of his rights to present a defense and
to cross-examine witnesses, pursuant to the sixth
amendment to the federal constitution, when the trial
court prevented him from questioning police officers
about alleged inadequacies in their investigation of the
victim’s death, and (2) the trial court abused its discre-
tion in admitting into evidence, under the state of mind
exception to the hearsay rule, testimony regarding the
victim’s relationship with the defendant prior to her
death. We affirm the judgment of the trial court.
By way of a single count information, the state
charged the defendant with murder with a firearm in
violation of General Statutes §§ 53a-54a (a) and 53-202k.
The charge stemmed from the death of Luz Morales,
the victim, who died from a single gunshot wound to
her abdomen. A jury found the defendant not guilty of
murder, but guilty of the lesser included offense of
manslaughter in the first degree with a firearm. The
court accepted the verdict, rendered a judgment of con-
viction, and sentenced the defendant to a term of impris-
onment of forty years, five of which are a mandatory
minimum, to run concurrently with a sentence he then
was already serving. This appeal followed. Additional
facts and procedural history will be set forth as nec-
essary.
I
We first address the defendant’s claim that the trial
court deprived him of his sixth amendment rights.
According to the defendant, the court improperly pre-
vented him from questioning the investigating police
officers about their alleged failure to investigate a
potential connection between the victim’s death and a
burglary at a former residence that he shared with the
victim. He claims that the court deprived him of both
his right to present a defense and to cross-examine wit-
nesses.
The state argues that the defendant’s proposed line of
questioning addressed a ‘‘purely speculative possibility
[regarding third-party culpability that] was not relevant
to the jury’s determination . . . and, furthermore, that
. . . carried with it a substantial risk of unfair prejudice
to the state [by] diverting the jury’s attention to collat-
eral matters.’’ (Citation omitted.) According to the state,
the court properly exercised its discretion in limiting
the inquiry into alleged deficiencies in the police investi-
gation ‘‘[absent] anything other than a bare suspicion
that the victim’s death . . . was in any way related to
the [previous] burglary . . . .’’1 We agree with the state.
The following additional facts, which the jury reason-
ably could have found, and procedural history are rele-
vant to our decision. For approximately five years, the
defendant and the victim were in a romantic relation-
ship. They lived together at 761 Wood Avenue in Bridge-
port at the time of the victim’s death, and previously
had lived together at 222 Lenox Avenue in Bridgeport.
At approximately 11:30 p.m., on May 23, 2011, Chris-
tina Catlin heard the defendant, her neighbor, banging
on her front door, stating ‘‘help her, help her.’’ After
Catlin opened the door, the defendant ran back to his
house, and she followed. When Catlin entered the defen-
dant’s residence, she saw the victim lying on her back,
naked, and ‘‘very, very pale,’’ at the top of a staircase.
The victim had a large cut near her left eyebrow, ‘‘a
tiny hole’’ near her belly button, and blood underneath
her. Catlin asked the defendant to call 911, but when
he did not respond, she grabbed the cell phone from
his hand and did so. Medical personnel subsequently
took the victim to a hospital, where she later died from
a gunshot wound to her abdomen.
In the course of their investigation into the victim’s
death, police officers questioned the defendant about
the night of May 23, 2011. In various statements he
made to the police, the defendant claimed that two
unidentified Jamaican or Haitian men broke into his
home, attacked him, and shot the victim before fleeing
down his driveway. He provided partial descriptions of
the men, noting that one had a missing tooth, the other
had a scruffy beard, and they ‘‘[were not] big dudes,’’
standing at about five feet, eight inches or five feet,
seven inches in height.
Within hours of the victim’s death, William Simpson,
a K-9 handler with the Bridgeport Police Department,
and his K-9 dog, Balu, were dispatched to 761 Wood
Avenue. According to Simpson, he responded to ‘‘a
claim of home invasion’’ where ‘‘two men had been
involved.’’ He also testified that Balu identified a trail
of human scent that started in the rear of 761 Wood
Avenue and continued ‘‘[d]own Wood Avenue [for] two
or three blocks’’ until reaching another street, where
Balu lost the scent.
During a video-recorded interview on May 24, 2011,
which was admitted into evidence, investigating offi-
cers questioned the defendant about a burglary that
occurred at 222 Lenox Avenue in September, 2010,
while the defendant and the victim lived there.2 In fact,
Detective Todd Toth, one of the investigating officers
who testified at trial, told the defendant, ‘‘[T]he reason
we asked about the break-in at Lenox Avenue is [that]
we were wondering if it’s the same people [whom you
claimed were involved in shooting the victim].’’ The
defendant later informed police officers that the reason
he and the victim moved to 761 Wood Avenue was
because of the September, 2010 burglary at 222 Lenox
Avenue and their fear that it might happen again.
Norman Pattis, counsel for the defendant, sought to
cross-examine Toth about his knowledge of the Lenox
Avenue burglary. Pattis asked Toth whether he had
spoken to Carmen Rivera-Torres, the victim’s aunt and
the only eyewitness to the burglary, and specifically
inquired whether he had ‘‘asked her about the identi-
fying characteristics of the persons who broke in
. . . .’’ Toth testified, ‘‘I believe we did.’’ Pattis then
asked, ‘‘Did you ask her if they had Caribbean accents,
Jamaican, Haitian, let’s say?’’ Toth did not answer that
question, however, as the state’s attorney immediately
objected and stated that this particular matter was the
subject of pretrial motions. The court held a sidebar
discussion and stated that it would hear argument out-
side the presence of the jury.
In the absence of the jury, the court noted that the
Lenox Avenue burglary was the subject of a motion in
limine filed by the state3 and stated that it had sustained
the state’s objection ‘‘because, based on what has tran-
spired thus far, I don’t believe that the defense has
made the required showing for a third-party culpability
[defense], and to get into that line of questioning would
be to do so.’’ Pattis nonetheless argued that he did
not intend to argue third-party culpability; rather, ‘‘[his]
questions are going to the thoroughness of the investiga-
tion and whether [the investigating officers] prejudged
things. And so, during the course of the interviews with
[the defendant], the accents came up. [Toth] acknowl-
edged going to see [Rivera-Torres] and acknowledged
discussing this. If he didn’t ask about the accents, and
I don’t know candidly what his answer will be, that will
be probative . . . in terms of the thoroughness of the
investigation and leaving potentially exculpatory evi-
dence on the table . . . . So I didn’t—if he said yes,
you know, I think I would have been stuck. But I don’t
think he did based on—I just don’t think he did.’’ Pattis
also argued: ‘‘Had he said no, I could have argued,
perhaps, hey, you know, these [police officers] had
made up their mind[s] and decided early to prejudge
the case . . . .’’ The court reiterated its prior ruling,
and added that it also sustained the state’s objection
on the ground that there was no foundation establishing
that Rivera-Torres ‘‘either saw or even spoke to the
individuals or individual that conducted the Lenox Ave-
nue break-in.’’4
Pattis also sought to cross-examine Detective Walb-
erto Cotto, another investigating officer who testified
at trial, about the police investigation into the possible
connection between the Lenox Avenue burglary and
the victim’s death. During an offer of proof held outside
the presence of the jury, Cotto testified that he was
aware of the prior Lenox Avenue burglary, which possi-
bly involved two black males, but that the defendant
had informed him that the Lenox Avenue burglars did
not have anything to do with the victim’s death.
According to Cotto, his understanding of the Lenox
Avenue burglary was based solely on the defendant’s
statements. Pattis once again argued: ‘‘The thorough-
ness of the investigation and the steps that officers took
in investigating [the defendant] I think are fair game
within the sixth amendment. We may well have had
third-party culpability evidence had the officers done
something with this information and investigated it.
They didn’t.’’5 The court again ruled that it would not
permit this line of questioning without a showing that
the two incidents were somehow connected.
Pattis attempted to revisit the Lenox Avenue burglary
for a third time during the defendant’s case-in-chief.
During an offer of proof held outside the presence of the
jury, Pattis first questioned Rivera-Torres. She testified
that she lived above the defendant and the victim at
the 222 Lenox Avenue address when the burglary hap-
pened. According to her, on September 9, 2010, she
noticed a familiar looking ‘‘[six]-foot-[two], 220, 240
pound African-American male coming out of [the defen-
dant’s and the victim’s] apartment.’’ She later learned
that their apartment had been burglarized, and spoke
with police officers about her observations before and
after the victim’s death. She testified: ‘‘I had spoken to
[Cotto] back in 2010 when [the burglary] occurred. And
then I did speak to him [after the victim’s death] because
I wanted to believe that that’s what happened.’’ Pattis
indicated that he would not seek to elicit any further
testimony from Rivera-Torres.
Later during the offer of proof, the following examina-
tion took place between Pattis and Toth regarding the
police investigation into a possible connection between
the Lenox Avenue burglary and the victim’s death:
‘‘[Pattis]: And did—was the topic of the identity or
information about the burglary, did that come up in the
interview with [Rivera-Torres]?
‘‘[Toth]: I don’t—I don’t recall that. I don’t think it did.
‘‘[Pattis]: Did you take any steps to—you questioned
[the defendant] about [the Lenox Avenue burglary],
correct?
‘‘[Toth]: Correct.
‘‘[Pattis]: In part to see whether the same people
might have returned to Wood Avenue, correct?
‘‘[Toth]: Yeah, to see if, you know, they were related
in any way.
‘‘[Pattis]: Did—beyond talking to [the defendant], did
you do anything to see whether there was any relation-
ship between the two?
‘‘[Toth]: Beyond speaking with him?
‘‘[Pattis]: Yes.
‘‘[Toth]: No.
‘‘[Pattis]: Nothing further, Judge.’’6
On redirect, Pattis also asked Toth: ‘‘So, did you make
any effort to determine whether the people who came
to Wood Avenue were related to the people who went
into Lenox Avenue in any way?’’ Toth testified: ‘‘I don’t
believe so.’’
Through his questioning during the latter offer of
proof, Pattis sought to establish that the alleged home
invasion on May 23, 2011, might have been drug related
because the defendant was a known drug dealer with
a substantial amount of cash, firearms, and drugs at
the Wood Avenue residence. Pattis further sought to
establish that the defendant may have denied knowing
who was involved in either the Lenox Avenue burglary
or the alleged May 23, 2011 home invasion because
individuals involved in illegal narcotics activities gener-
ally try to resolve their disputes without the help of
police.
Following his final offer of proof, Pattis argued that
the evidence pertaining to the alleged inadequacy of the
police investigation into a possible connection between
the Lenox Avenue burglary and the victim’s death was
admissible, principally relying on this court’s decision
in State v. Wright, 152 Conn. App. 260, 96 A.3d 638
(2014), rev’d, 322 Conn. 270, 140 A.3d 939 (2016). He
argued: ‘‘[T]he failure to investigate this potential link-
age may well have deprived us of third-party culpability
[evidence] if the police had established the link. But
their failure to even consider it is a . . . deficiency in
the investigation that we think . . . we should be per-
mitted to explore . . . .’’7 Throughout the trial, Pattis
argued that preventing him from pursuing this line of
questioning abridged both the defendant’s right to pre-
sent a defense and his right to confrontation under the
sixth amendment to the federal constitution.
The court again sustained the state’s objections to
this line of questioning. According to the court, ‘‘there’s
no other purpose to elicit this testimony other than to
back door in a third-party culpability [defense]. The
defendant’s ability to present a defense that somebody
else did this, that the police failed to pursue leads,
that they had made up their mind[s] that he was the
murderer, all of that he is permitted to argue, [and] has
argued by way of cross-examination.’’ The defendant
took his exception and maintains on appeal that the
court’s rulings deprived him of his constitutional rights.
We now set forth the relevant legal principles govern-
ing our review of the defendant’s claims. ‘‘It is funda-
mental that the defendant’s rights to confront the
witnesses against him and to present a defense are
guaranteed by the sixth amendment to the United States
constitution. . . .
‘‘In plain terms, the defendant’s right to present a
defense is the right to present the defendant’s version
of the facts as well as the prosecution’s to the jury so
that it may decide where the truth lies. . . . It guaran-
tees the right to offer the testimony of witnesses, and
to compel their attendance, if necessary . . . . There-
fore, exclusion of evidence offered by the defense may
result in the denial of the defendant’s right to present
a defense. . . .
‘‘Although it is within the trial court’s discretion to
determine the extent of cross-examination and the
admissibility of evidence, the preclusion of sufficient
inquiry into a particular matter tending to show motive,
bias and interest may result in a violation of the constitu-
tional requirements [of the confrontation clause] of the
sixth amendment. . . .
‘‘These sixth amendment rights, although substantial,
do not suspend the rules of evidence . . . . A court
is not required to admit all evidence presented by a
defendant; nor is a court required to allow a defendant
to engage in unrestricted cross-examination. . . .
Instead, [a] defendant is . . . bound by the rules of
evidence in presenting a defense . . . . Nevertheless,
exclusionary rules of evidence cannot be applied mech-
anistically to deprive a defendant of his rights . . . .
Thus, [i]f the proffered evidence is not relevant . . .
the defendant’s right[s] to confrontation [and to present
a defense are] not affected, and the evidence was prop-
erly excluded.’’ (Citation omitted; internal quotation
marks omitted.) State v. Holley, 327 Conn. 576, 593–94,
175 A.3d 514 (2018).
‘‘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
discretion in determining the admissibility of evidence,
including issues of relevance and the scope of cross-
examination. . . . Accordingly, [t]he trial court’s rul-
ing on evidentiary matters will be overturned only upon
a showing of a clear abuse of the court’s discretion.
. . . In determining whether there has been an abuse
of discretion, every reasonable presumption should be
made in favor of the correctness of the trial court’s
ruling, and we will upset that ruling only for a manifest
abuse of discretion.’’ (Internal quotation marks omit-
ted.) State v. Calabrese, 279 Conn. 393, 406–407, 902
A.2d 1044 (2006).
Additionally, ‘‘[our Supreme Court] has recognized
that defendants may use evidence regarding the inade-
quacy of the investigation into the crime with which
they are charged as a legitimate defense strategy.’’ State
v. Wright, 322 Conn. 270, 282, 140 A.3d 939 (2016), citing
State v. Collins, 299 Conn. 567, 599–600, 10 A.3d 1005,
cert. denied, 565 U.S. 908, 132 S. Ct. 314, 181 L. Ed.
2d 193 (2011).8 ‘‘Conducting a thorough, professional
investigation is not an element of the government’s
case. . . . A defendant may, however, rely upon rele-
vant 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.’’ (Internal
quotation marks omitted.) State v. Wright, supra, 282.
‘‘A defendant, however, does not have an unfettered
right to elicit evidence regarding the adequacy of the
police investigation. The reference in Collins to rele-
vant deficiencies or lapses in the police investigation
suggests that the defendant must do more than simply
seek to establish that the police could have done more.
. . . Even when such evidence has some probative
value, the court must consider whether the probative
weight of the . . . evidence exceed[s] the risk of unfair
prejudice to the [state] from diverting the jury’s atten-
tion to collateral matters. . . .
‘‘All of these factors must be evaluated by the trial
court in determining whether the particular inadequate
investigation evidence should be admitted. That evalua-
tion necessarily is framed by the theory of the proffering
party. It is well settled that [t]he proffering party bears
the burden of establishing the relevance of the offered
testimony. Unless a proper foundation is established,
the evidence is irrelevant. . . . Relevance may be
established in one of three ways. First, the proffering
party can make an offer of proof. . . . Second, the
record can itself be adequate to establish the relevance
of the proffered testimony. . . . Third, the proffering
party can establish a proper foundation for the testi-
mony by stating a good faith belief that there is an
adequate factual basis for his or her inquiry.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) Id., 284–85; see also State v. Johnson, 171
Conn. App. 328, 349–50, 157 A.3d 120, cert. denied, 325
Conn. 911, 158 A.3d 322 (2017).
The defendant claims that he was precluded from
presenting relevant evidence of an inadequate police
investigation into the possible connection between the
222 Lenox Avenue burglary and the victim’s death.
According to him: ‘‘It is clear the investigating police
officers were aware that [he] believed that the same
two individuals who robbed him earlier [had] commit-
ted the instant offense. This is not only a claim that the
police could have done more, but rather . . . [he] was
precluded from making the claim that the police had
actionable, definable information of other individuals
involved and simply did not bother to follow up on
those leads or develop the information further.’’
(Emphasis added.)
We conclude that the trial court properly excluded
the proffered testimony as irrelevant and, therefore, the
defendant’s constitutional claims fail.9 Under Wright, a
defendant must demonstrate that further investigation
reasonably may have led to additional evidence bearing
on the defendant’s guilt or innocence. See State v.
Wright, supra, 322 Conn. 284 (citing cases); see also
id., 287–88 (offer of proof deemed inadequate based
on, inter alia, failure to elicit evidence demonstrating
‘‘the possibility that adherence to such practices or
procedures could have led to material evidence of the
defendant’s guilt or innocence’’); Commonwealth v.
Alcantara, 471 Mass. 550, 562, 31 N.E.3d 561 (2015)
(proposed inadequate police investigation into sperm
and drug evidence lacked probative value because there
was no indication that murder victim engaged in sexual
intercourse around time of attack, ‘‘nor was there any
evidence . . . suggesting that the killing arose from a
sexual relationship,’’ and no evidence existed that ‘‘the
drugs or supplier of the drugs played any role in causing
[the victim’s] death’’).10 The defendant, here, therefore
bore the burden of demonstrating how a further, spe-
cific investigation into the possible connection between
the Lenox Avenue burglary and the victim’s death rea-
sonably may have led to additional evidence bearing
on his guilt or innocence. He failed to meet his burden.
Toth testified during the defendant’s offer of proof
that, beyond speaking with the defendant, he did not
attempt to establish a connection between the victim’s
death and the Lenox Avenue burglary. Toth also testi-
fied, however, that the defendant told him the people
involved in the Lenox Avenue burglary were not the
same individuals allegedly involved in the Wood Avenue
home invasion.11 See footnote 6 of this opinion. Addi-
tionally, although the court precluded the defendant,
during cross-examination, from asking Toth whether
he asked Rivera-Torres if the Lenox Avenue burglars
had Caribbean accents, Pattis represented that he was
uncertain what Toth’s answer would be. The defendant
did not revisit this question during his subsequent offer
of proof.
Cotto similarly testified that the defendant informed
him that he did not believe the Lenox Avenue burglars
were involved with the victim’s death. In fact, defense
counsel conceded that he could not connect the two
incidents. And the only eyewitness to the September 9,
2010 Lenox Avenue burglary, Rivera-Torres, testified
during the offer of proof that she noticed a single, famil-
iar looking ’’[six]-foot-[two], 220, 240 pound African-
American male coming out of [the Lenox Avenue] apart-
ment.’’ The defendant, on the other hand, claimed that
two unidentified Jamaican or Haitian males, standing
at either five feet, eight inches or five feet, seven inches
in height, shot the victim on May 23, 2011.
We realize that courts have noted that evidence of
an inadequate police investigation need not meet the
strict standard of establishing a direct connection to
potential third-party culprits. See, e.g., Commonwealth
v. Silva-Santiago, 453 Mass. 782, 800–803, 906 N.E.2d
299 (2009). A defendant who attempts to elicit evidence
regarding the adequacy of a police investigation, how-
ever, ‘‘must do more than simply seek to establish that
the police could have done more.’’ State v. Wright,
supra, 322 Conn. 284.
Here, the defendant’s multiple offers of proof and
the record fail to indicate how a further, specific investi-
gation into the possible connection between the bur-
glary and the victim’s death may have led to additional
evidence bearing on his guilt or innocence. See id., 284,
288; see also Commonwealth v. Alcantara, supra, 471
Mass. 562. The two incidents were separated by approx-
imately eight months and allegedly involving individuals
with distinct characteristics, and their only alleged con-
nection was that they both took place at the shared
residences of the defendant and the victim.12 Simply
put, the defendant’s proffer asked the court to engage
in substantial speculation as to both the possible con-
nection between the two incidents and how a further
police investigation into that connection might have
produced additional evidence bearing on the defen-
dant’s guilt or innocence.13 Under these circumstances,
we agree that the defendant failed to establish the rele-
vance of the proffered evidence. Furthermore, to the
extent that this evidence had any probative value at all,
we conclude that admitting it also could have diverted
the jury’s attention to a collateral matter, namely, specu-
lation about a theorized connection between the
unsolved Lenox Avenue burglary and the victim’s death
that allegedly involved unknown assailants. See State
v. Wright, supra, 284 (court must consider whether
probative weight of evidence outweighed by unfair prej-
udice to state). Accordingly, the trial court properly
excluded the evidence as irrelevant and, therefore, the
defendant’s claims fail.14
II
The defendant’s final claim is that the trial court
abused its discretion in admitting into evidence testi-
mony regarding the victim’s relationship with the defen-
dant prior to her death. More specifically, he argues that
the trial court improperly admitted hearsay testimony
from Ariana Paneto and Kaila Oquendo under the state
of mind exception to the hearsay rule. We decline to
review this claim.
‘‘It is well settled that, absent structural error, the
mere fact that a trial court rendered an improper ruling
does not entitle the party challenging that ruling to
obtain a new trial. An improper ruling must also be
harmful to justify such relief. . . . The harmfulness of
an improper ruling is material irrespective of whether
the ruling is subject to review under an abuse of discre-
tion standard or a plenary review standard. . . . When
the ruling at issue is not of constitutional dimensions,
the party challenging the ruling bears the burden of
proving harm.’’ (Internal quotation marks omitted.)
State v. Myers, 178 Conn. App. 102, 105–106, 174 A.3d
197 (2017).
‘‘We do not reach the merits of [a] claim [where] the
defendant has not briefed how he was harmed by the
allegedly improper evidentiary ruling.’’ (Internal quota-
tion marks omitted.) State v. Toro, 172 Conn. App. 810,
817, 162 A.3d 63, cert. denied, 327 Conn. 905, 170 A.3d
2 (2017); see also State v. Myers, supra, 178 Conn. App.
108 (‘‘there must be some analysis of how the defendant
was harmed from the claimed error given the other
evidence before the jury’’). ‘‘It is also a well established
principle that arguments cannot be raised for the first
time in a reply brief.’’ (Internal quotation marks omit-
ted.) State v. Myers, supra, 106.
The defendant, in his principal brief, does not address
the harmfulness of the allegedly improper evidentiary
rulings regarding the testimonies of Paneto and
Oquendo. He argues that their testimonies did not relate
to the victim’s fear of the defendant and that ‘‘there is
no corroborating evidence of the victim’s statements
. . . [and, therefore], the statements admitted in this
case are far more prejudicial than probative, and should
not have been before the jury.’’ (Emphasis in original.)
He maintains that he was ‘‘irreparably prejudiced’’ by
the court’s rulings and that the uncorroborated state-
ments ‘‘require[d] an impermissible inference concern-
ing [his] motive.’’
Even if we assume, without deciding, that the defen-
dant is correct—the statements were improperly admit-
ted and this also permitted the jury to make an
impermissible inference concerning his motive—he
does not analyze ‘‘how [he] was harmed from the
claimed error given the other evidence before the jury.’’
State v. Myers, supra, 178 Conn. App. 108. Nor does he
address any of the relevant factors that courts consider
when assessing harmlessness. See, e.g., State v. Toro,
supra, 172 Conn. App. 817; State v. Johnson, supra, 171
Conn. App. 338. Simply put, he fails to argue how the
testimonies of Paneto and Oquendo, along with any
impermissible inference potentially drawn from them,
substantially affected the verdict. See State v. Toro,
supra, 817 (‘‘a nonconstitutional error is harmless when
an appellate court has a fair assurance that the error did
not substantially affect the verdict’’ [internal quotation
marks omitted]). Accordingly, we decline to review his
evidentiary claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Alternatively, the state argues that the trial court afforded the defendant
wide latitude to elicit evidence relating to the alleged inadequacies in the
police investigation. Therefore, the state maintains that the defendant’s
constitutional claims fail and that any error was harmless. Because we
conclude that the trial court properly exercised its discretion in excluding the
proffered testimony, we need not address the state’s alternative arguments.
2
Investigating officers also questioned the defendant about the burglary
at 222 Lenox Avenue in subsequent interviews.
3
Prior to trial, the state filed a motion in limine seeking to prevent the
defense ‘‘from offering, or attempting to elicit, any evidence concerning
[the] burglary at the defendant’s prior residence on Lenox Avenue . . . in
or around September of 2010.’’ In its motion, the state argued that such
evidence failed to meet the threshold for admissibility as third-party culpabil-
ity evidence and, therefore, was not relevant to the victim’s death. The state
also filed a motion to redact portions of the defendant’s recorded interviews
discussing the Lenox Avenue burglary. The court denied the state’s motions.
4
The court, nonetheless, permitted Pattis to recall Toth and pursue this
line of questioning if he first established an adequate foundation.
5
Pattis stated on multiple occasions that he was not offering this evidence
to support a third-party culpability defense.
6
When questioned by the state’s attorney during the offer of proof, Toth
testified that the defendant informed him that the people involved in the
Lenox Avenue burglary were not the same people involved in the alleged
Wood Avenue home invasion.
7
Pattis also argued: ‘‘The state that failed to investigate is now saying
there’s no linkage; well, it’s because of the failure to investigate that there’s
no potential—there is absolutely no chance of a linkage. Had [the police]
investigated, there might have been one. And our claim is that this evidence
is relevant because it shows that at some level [the police] prejudged the
case. Rather than investigating all leads, they focused their efforts on [the
defendant]. If they had followed that, we may be in a different posture and
I might have at my disposal third-party culpability [evidence].’’
8
‘‘Collins involved a challenge to a jury instruction stating that the ultimate
issue to be decided was not the thoroughness of the investigation, but
whether the state had proven the defendant’s guilt beyond a reasonable
doubt. . . . In concluding that the instruction was not improper, [our
Supreme Court] explained: In the abstract, whether the government con-
ducted a thorough, professional investigation is not relevant to what the
jury must decide: Did the defendant commit the alleged offense? Juries are
not instructed to acquit the defendant if the government’s investigation was
superficial.’’ (Citation omitted; internal quotation marks omitted.) State v.
Wright, supra, 322 Conn. 282.
9
The trial court was aware of this court’s decision in State v. Wright,
supra, 152 Conn. App. 260, but it did not have the benefit of our Supreme
Court’s decision discussing the admissibility of inadequate police investiga-
tion evidence; see State v. Wright, supra, 322 Conn. 284–85; which reversed
this court’s decision and was decided after the trial court had sentenced
the defendant. Nonetheless, we are guided by our Supreme Court’s decision
in Wright for two reasons. First, both parties cite and discuss our Supreme
Court’s decision in Wright, and neither disputes its applicability. Second,
‘‘[a]s a general rule, judicial decisions apply retroactively.’’ (Internal quota-
tion marks omitted.) State v. Marsala, 42 Conn. App. 1, 4, 679 A.2d 367,
cert. denied, 239 Conn. 912, 682 A.2d 1010 (1996). ‘‘A decision will not be
applied retroactively only if (1) it establishes a new principle of law, either
by overruling past precedent on which litigants have relied . . . or by decid-
ing an issue of first impression whose resolution was not clearly foreshad-
owed . . . (2) given its prior history, purpose and effect, retrospective
application of the rule would retard its operation; and (3) retroactive applica-
tion would produce substantial inequitable results, injustice or hardship.’’
(Internal quotation marks omitted.) State v. Fabricatore, 89 Conn. App. 729,
744, 875 A.2d 48 (2005), aff’d, 281 Conn. 469, 915 A.2d 872 (2007). The effect
of Wright does not satisfy any of these prongs.
10
In State v. Wright, supra, 322 Conn. 283–84, our Supreme Court favorably
cited to decisions from the Massachusetts Supreme Judicial Court, includ-
ing Alcantara.
11
Our independent review of the record reveals that the defendant
informed police officers that neither he nor the victim were home when
the Lenox Avenue burglary occurred. In fact, he told investigating officers
that he was either uncertain whether the incidents were connected or
acknowledged that the incidents were not related.
12
During his offers of proof, Pattis indicated that he was not offering the
proffered evidence for a third-party culpability defense. He also argued,
however, that ‘‘the failure to investigate this potential linkage may well have
deprived us of third-party culpability [evidence] if the police had established
the link.’’ Consequently, under the particular circumstances of this case, we
agree with the trial court’s assessment that this evidence was an attempt
to ‘‘back door in a third-party culpability [defense].’’
13
Although the trial court prevented the defendant from introducing evi-
dence of an alleged failure to investigate further into a potential connection
between the victim’s death and the Lenox Avenue burglary, we note that the
defendant was permitted to introduce evidence pertaining to the adequacy
of the police investigation as a whole. The defendant, for example, cross-
examined Toth on a failure to order a gun residue test on the defendant, a
failure to dust for fingerprints on the stairs where the defendant claimed
he struggled with the alleged intruders, a failure to look at photographs
from the police database with the defendant to potentially identify suspects,
and the inability of the police to locate certain items initially seized from
the Wood Avenue residence following the victim’s death. In fact, Pattis
argued to the jury that the police investigation was inadequate and narrowly
focused on the defendant. See, e.g., Commonwealth v. Alcantara, supra,
471 Mass. 563 (‘‘where the issue of an inadequate investigation was fairly
before the jury, the defendant suffered no prejudice from the exclusion of
the proffered evidence’’ [internal quotation marks omitted]).
14
Our conclusion that the defendant failed to demonstrate the relevancy
of the proffered evidence disposes of both of his sixth amendment claims.
See, e.g., State v. Wright, supra, 322 Conn. 284–85 (evidence of inadequate
investigation defense must be relevant); State v. Davis, 298 Conn. 1, 10, 1
A.3d 76 (2010) (‘‘[i]f the proffered evidence is not relevant . . . the defen-
dant’s right to confrontation is not affected’’ [internal quotation marks
omitted]).