State v. Spence , 165 Conn. App. 110 ( 2016 )

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STATE OF CONNECTICUT v. JOHN
MARSHALL SPENCE
(AC 36471)
Lavine, Alvord and Wilson, Js.
Argued January 7—officially released April 26, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Kahn, J.)
Jonathan I. Edelstein, with whom was David E.
Kelly, for the appellant (defendant).
Emily D. Trudeau, deputy assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Cornelius P. Kelly, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, John Marshall Spence,
appeals from the trial court’s judgment of conviction,
rendered after a jury trial, of possession of child pornog-
raphy in the first degree in violation of General Statutes
§ 53a-196d (a) (1).1 On appeal, the defendant claims that
the trial court committed error by (1) ‘‘denying the
defendant’s motion to suppress his statements’’ made
to the police prior to his formal arrest; (2) ‘‘giving a
constructive possession instruction that treated a com-
puter as the equivalent of a premises’’; and (3) ‘‘permit-
ting the state to offer rebuttal evidence on matters that
it knew were at issue during the case-in-chief.’’ We
affirm the judgment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. The state police began investigating the defen-
dant’s activities when they received a tip that a person
with a Connecticut Internet protocol (IP) address was
downloading child pornography over peer-to-peer file
sharing networks.2 Using a computer program tailored
for law enforcement, the state police accessed the iden-
tified IP address and downloaded images of child por-
nography. The state police applied for and were granted
an ex parte order to require the Internet service provider
to reveal the name and street address associated with
the identified IP address. The state police then obtained
a search warrant for the defendant’s home.
On June 13, 2012, state troopers and local police
executed a search and seizure warrant at the defen-
dant’s home at 34 May Street in Fairfield. Police entered
the home shortly after 6 a.m. and found the defendant,
his wife, three children, and mother-in-law in the single
family residence. At that time, the lead investigator,
state police Detective David Aresco, asked the defen-
dant if he could explain why the state police were in
his home. In response, the defendant asked if ‘‘he could
speak with Detective Aresco in private.’’ Once outside,
the defendant received a Miranda warning and then
provided an oral and written statement acknowledging
that he had downloaded more than 150 images and
videos of child pornography and that he had exclusive
control of the computer where the files were stored.
Before the defendant’s trial began, he moved to sup-
press the statements he made to the state police on the
day his home was searched. On September 6, 2013, the
trial court conducted a hearing on the motion. Ulti-
mately, the trial court denied the motion and the defen-
dant was convicted by a jury of possession of child
pornography in the first degree. This appeal followed.
Additional facts will be set forth as necessary.
I
The defendant claims on appeal that the trial court
improperly denied his motion to suppress his state-
ments to the police on the day the search warrant was
executed at his home. Specifically, the defendant argues
that when the police entered his home and gathered
together the residents in one room, based on the circum-
stances, a reasonable person in his situation would
believe he was in custody. Accordingly, he claims that
the police should have provided a Miranda warning
before they asked any questions. Prior to trial, the defen-
dant sought to suppress his initial response to Detective
Aresco asking if he could speak to the detective ‘‘in
private.’’ He also sought to suppress the oral and written
statements he made after receiving Miranda warnings.
The defendant argued that the lack of a Miranda warn-
ing prior to his initial request to speak with the police
in private tainted the statements that followed. We con-
clude that the trial court did not err by denying the
motion to suppress and allowing the statements to be
admitted as evidence.
The following additional facts that the trial court
reasonably could have found are relevant to the defen-
dant’s claim. The search warrant was executed at the
defendant’s home at approximately 6:10 a.m. on June
13, 2012. Eight to ten state troopers and police officers
entered the home. The officers were wearing standard
issue side arms, bulletproof vests, and clothes that iden-
tified that they were law enforcement. The defendant
was sleeping on the second floor when the police
arrived. After the police conducted a protective sweep
of the rooms in the home, they gathered the entire
family into the kitchen or dining room area. Without
issuing a Miranda warning, Aresco informed the resi-
dents that he was investigating a computer crime and
then asked the defendant if he could explain why the
police were in his home. The defendant responded by
asking if they could speak in private. The defendant
therefore was brought outside to an unmarked police
car. He was advised of his Miranda rights and signed
a waiver notice to confirm that he was aware of his
rights. The defendant was questioned and Aresco
recorded notes and prepared a written statement. The
three page written statement was read back to the
defendant. After rereading it and making corrections,
the defendant signed the statement and initialed each
page. The questioning lasted for approximately one and
one-half hours and the defendant was allowed to take
a cigarette break. The court held a hearing on the
motion to suppress that included testimony from Are-
sco and another state trooper who was involved with
the execution of the search warrant at the defendant’s
home. The court denied the defendant’s motion after
concluding that the defendant was not in custody when
he initially responded to Aresco’s inquiry.
‘‘[O]ur standard of review of a trial court’s findings
and conclusions in connection with a motion to sup-
press is well defined. A finding of fact will not be dis-
turbed unless it is clearly erroneous in view of the
evidence and pleadings in the whole record . . . .
[When] the legal conclusions of the court are chal-
lenged, we must determine whether they are legally and
logically correct and whether they find support in the
facts set out in the memorandum of decision . . . .’’
(Internal quotation marks omitted.) State v. Collin, 154
Conn. App. 102, 121, 105 A.3d 309 (2014), cert. denied,
315 Conn. 924, 108 A.3d 480 (2015).
We first consider whether the court properly found
that the defendant was not in custody at the time the
statements in issue were made. ‘‘In order to determine
the [factual] issue of custody, however, we will conduct
a scrupulous examination of the record . . . in order
to ascertain whether, in light of the totality of the cir-
cumstances, the trial court’s finding is supported by
substantial evidence. . . . The ultimate inquiry as to
whether, in light of these factual circumstances, a rea-
sonable person in the defendant’s position would
believe that he or she was in police custody of the
degree associated with a formal arrest . . . calls for
application of the controlling legal standard to the his-
torical facts [and] . . . therefore, presents a . . .
question of law . . . over which our review is de novo.
. . . In other words, we are bound to accept the factual
findings of the trial court unless they are clearly errone-
ous, but we exercise plenary review over the ultimate
issue of custody.’’ (Citation omitted; internal quotation
marks omitted.) State v. Mangual, 311 Conn. 182, 197,
85 A.3d 627 (2014).
‘‘[T]he Fifth Amendment privilege [against self-
incrimination] is available outside of criminal court pro-
ceedings and serves to protect persons in all settings
in which their freedom of action is curtailed in any
significant way from being compelled to incriminate
themselves. We have concluded that without proper
safeguards the process of in-custody interrogation of
persons suspected or accused of crime contains inher-
ently compelling pressures which work to undermine
the individual’s will to resist and to compel him to speak
where he would not otherwise do so freely.’’ Miranda
v. Arizona, 384 U.S. 436, 467, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966). ‘‘Two threshold conditions must be
satisfied in order to invoke the warnings constitution-
ally required by Miranda: (1) the defendant must have
been in custody; and (2) the defendant must have been
subjected to police interrogation. . . . [A]lthough the
circumstances of each case must certainly influence a
determination of whether a suspect is in custody for
purposes of receiving Miranda protection, the ultimate
inquiry is simply whether there is a formal arrest or
restraint on freedom of movement of the degree associ-
ated with a formal arrest.’’ (Internal quotation marks
omitted.) State v. Jackson, 304 Conn. 383, 416, 40 A.3d
290 (2012).
‘‘As used in . . . Miranda [and its progeny], custody
is a term of art that specifies circumstances that are
thought generally to present a serious danger of coer-
cion. . . . In determining whether a person is in cus-
tody in this sense . . . the United States Supreme
Court has adopted an objective, reasonable person test
. . . the initial step [of which] is to ascertain whether,
in light of the objective circumstances of the interroga-
tion . . . a reasonable person [would] have felt [that]
he or she was not at liberty to terminate the interroga-
tion and [to] leave.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Mangual, supra, 311
Conn. 193.
‘‘[N]ot all restrictions on a suspect’s freedom of action
rise to the level of custody for Miranda purposes; in
other words, the freedom-of-movement test identifies
only a necessary and not a sufficient condition for
Miranda custody. . . . Rather, the ultimate inquiry is
whether a reasonable person in the defendant’s position
would believe that there was a restraint on [her] free-
dom of movement of the degree associated with a for-
mal arrest. . . . Any lesser restriction on a person’s
freedom of action is not significant enough to implicate
the core fifth amendment concerns that Miranda
sought to address.’’ (Citations omitted; footnote omit-
ted; internal quotation marks omitted.) Id., 194–95.
After reviewing state and federal cases concerning
custody, our Supreme Court compiled a nonexclusive
‘‘list of factors to be considered in determining whether
a suspect was in custody for purposes of Miranda [in
circumstances involving the interrogation of a suspect
during a police search of his residence]: (1) the nature,
extent and duration of the questioning; (2) whether
the suspect was handcuffed or otherwise physically
restrained; (3) whether officers explained that the sus-
pect was free to leave or not under arrest; (4) who
initiated the encounter; (5) the location of the interview;
(6) the length of the detention; (7) the number of offi-
cers in the immediate vicinity of the questioning; (8)
whether the officers were armed; (9) whether the offi-
cers displayed their weapons or used force of any other
kind before or during questioning; and (10) the degree
to which the suspect was isolated from friends, family
and the public.’’ Id., 197.
A
An application of the factors enumerated in Mangual
to the facts of this case informs our conclusion that
the trial court properly concluded that a reasonable
person in the defendant’s position would not have
believed that he was in police custody of the degree
associated with a formal arrest. On the basis of the
facts that the trial court reasonably could have found,
the police presence did not overwhelm the defendant
to the point that a reasonable person would believe
that he was in custody.
Any questioning that occurred in the defendant’s
home was informal in nature and short in duration.
Aresco advanced a general question that introduced his
presence in the home. The defendant did not answer
the question. Instead, he effectively put off any discus-
sion by requesting to speak with the investigators in
private. While inside the home, the defendant was not
handcuffed or restrained. The surroundings were famil-
iar to the defendant. He was in an open area of the
home, and he was surrounded by his family including
other adults. While there were as many as ten police
officers in the home assisting with the execution of the
search warrant, they were not brandishing their
weapons.
Considering the totality of the circumstances, the trial
court properly determined that the defendant was not
in custody and therefore a Miranda warning was not
required. We do note that Aresco did initiate the ques-
tioning and the defendant was not informed by police
that he was free to leave. These two Mangual factors
weigh in favor of a custodial environment, however, a
consideration of the remaining factors applied to this
case compels the conclusion that a reasonable person
in the defendant’s position would not have believed
that he was in police custody of the degree associated
with formal arrest.
The circumstances in this case did not create the
police dominated atmosphere that existed in Mangual.
In that case our Supreme Court determined that when
police officers conducted a drug raid by brandishing
handguns and rifles in a small apartment, they created
a police dominated atmosphere that would cause a rea-
sonable person to believe that he was in police custody
even though there had not been a formal arrest.3 State
v. Mangual, supra, 311 Conn. 199–202. Here, the officers
in the defendant’s home were not brandishing weapons.
A similar number of law enforcement officers were
present here as in Mangual, however, that case involved
a small apartment whereas this was a residential home.
See id., 201. Finally, the questioning in Mangual was
more extensive; there the defendant and her daughters
were confined to a couch and there were no other adults
present. See id., 186–87, 201–202. The police dominated
atmosphere described in Mangual was not present in
this case. Therefore, no Miranda warning was required.
B
The defendant also claims that the trial court should
have suppressed the statements he made to police after
he received and acknowledged a Miranda warning. The
defendant argues that the Mirandized interrogation
was tainted by the alleged unconstitutional questioning
that occurred in his home because it was a continuation
of the same event. Because we already have determined
that during the interaction in the home a reasonable
person in the defendant’s position would not have
believed that he was in police custody of the degree
associated with formal arrest, the defendant’s argument
for suppressing the subsequent Mirandized statement
fails. The record shows that the defendant received a
Miranda warning before he gave his full statement to
Aresco and another trooper in their police car. The
defendant has not proffered any other evidence to sug-
gest that the defendant’s waiver of his right to remain
silent was involuntary. The trial court’s denial of the
defendant’s motion to suppress was legally and logically
correct and supported by the facts set out in the memo-
randum of decision. We conclude that the trial court
properly denied the motion to suppress the defen-
dant’s statements.
II
The defendant also claims on appeal that the trial
court erroneously instructed the jury on constructive
possession. The trial court instructed the jury that it
could infer that the defendant possessed the images of
child pornography if it found that the defendant had
control of the computer that contained the images. The
defendant argues that the trial court was required to
instruct the jury that it could infer possession of pornog-
raphy only if it found that the defendant had control
over the computer and the premises within which it
was found. We disagree. The trial court was not required
to include an instruction regarding control of the prem-
ises. Moreover, it was not reasonably possible that the
jury was misled by the court’s instruction.
The following additional facts are relevant to the
defendant’s claim. During the course of the trial, Detec-
tive Aresco testified that one computer was removed
from the defendant’s home as a result of the execution
of the search warrant on June 13, 2012. The computer
was found in the defendant’s bedroom, and he told
police that he kept it under his bed. The defendant lived
in the home with his wife, three children, and his wife’s
parents. Aresco testified that other computers also were
found in the home and examined for child pornography,
but only the defendant’s computer was found to contain
the illicit images. In his statement to the state police,
the defendant stated that his computer was password
protected and ‘‘I am the only person that has that com-
puter—that uses that computer.’’
Prior to the instruction being read to the jury, defense
counsel objected to the language of the instruction
because it did not require the jury to find that the defen-
dant also had exclusive control of the home where the
computer was located: ‘‘It should be [control over the]
premises and computer because of the nature of a com-
puter you can be in exclusive possession of it, yet leave
it in a common area, and if that common area is not
exclusively yours, then someone else has access [to]
it.’’ The trial court overruled the objection.
At the close of the trial, the court instructed the
jury regarding constructive possession: ‘‘The state has
submitted evidence in order to show that the defendant
had control over the computer where the video files
were found. Control of the computer gives rise to the
inference of unlawful possession. And the mere access
by others is insufficient to defeat this inference. If it is
proven that the defendant is the exclusive owner of the
computer where the video files were found, then you
may infer that he controlled the computer. However,
when it is shown that ownership or use of the computer
is not exclusive, you may no longer make this inference.
The ability to control the computer must be established
by independent proof.’’ The court also instructed the
jury that in order to convict the defendant, they were
required to find beyond a reasonable doubt that he
‘‘knowingly possessed the child pornography.’’
We review instructional impropriety to determine
‘‘whether it is reasonably possible that the jury was
misled. . . . In determining whether the jury was mis-
led, [i]t is well established that [a] charge to the jury
is not to be critically dissected for the purpose of dis-
covering possible inaccuracies of statement, but it is
to be considered rather as to its probable effect upon
the jury in guiding [it] to a correct verdict in the case.
. . . The charge is to be read as a whole and individual
instructions are not to be judged in artificial isolation
from the overall charge. . . . The test to be applied to
any part of a charge is whether the charge, considered
as a whole, presents the case to the jury so that no
injustice will result. . . . The charge must be consid-
ered from the standpoint of its effect on the jury in
guiding [it] to a proper verdict. . . .
‘‘Our review of the defendant’s claim of instructional
error requires that we examine the court’s entire charge
to determine whether it was reasonably possible that
the jury could have been misled by the omission of the
requested instruction. While a request to charge that is
relevant to the issues in a case and that accurately
states the applicable law must be honored, a [trial] court
need not tailor its charge to the precise letter of such
a request. . . . 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.’’ (Citation omitted; internal quotation
marks omitted.) State v. Conyers, 161 Conn. App. 467,
472–73, 127 A.3d 1077 (2015).
To be convicted of possession of child pornography
in the first degree, the jury must find that the defendant
knowingly possessed the contraband. General Statutes
§ 53a-196d (a) (1). ‘‘Possess, as defined in § 53a-3 (2),
means to have physical possession or otherwise to exer-
cise dominion or control over tangible property. . . .
Our jurisprudence elucidating this definition teaches
that such possession may be actual or constructive.
. . . Nevertheless, [b]oth actual and constructive pos-
session require a person to exercise dominion and con-
trol over the [contraband] and to have knowledge of
its presence and character. . . . Actual possession
requires the defendant to have had direct physical con-
tact with the [contraband]. . . . Typically, the state
will proceed under a theory of constructive possession
when the [contraband is] not found on the defendant’s
person at the time of arrest, but the accused still exer-
cises dominion and control. . . . In this regard, [t]he
essence of exercising control is not the manifestation
of an act of control but instead it is the act of being in
a position of control coupled with the requisite mental
intent. In our criminal statutes involving possession,
this control must be exercised intentionally and with
knowledge of the character of the controlled object.’’
(Citations omitted; internal quotation marks omitted.)
State v. Bowens, 118 Conn. App. 112, 120–21, 982 A.2d
1089 (2009), cert. denied, 295 Conn. 902, 988 A.2d
878 (2010).
The court’s instruction included an explanation of
each of the elements the jury had to find present in
order to convict the defendant of the alleged crime.4
Finding control of the home in this case is not a require-
ment to infer possession of the contraband when the
contraband is contained within another object, here the
computer, that itself could be controlled and secured
through the use of a password. ‘‘To mitigate the possibil-
ity that innocent persons might be prosecuted for . . .
possessory offenses . . . it is essential that the state’s
evidence include more than just a temporal and spatial
nexus between the defendant and the contraband. . . .
While mere presence is not enough to support an infer-
ence of dominion or control, where there are other
pieces of evidence tying the defendant to dominion and
control, the [finder of fact is] entitled to consider the
fact of [the defendant’s] presence and to draw infer-
ences from that presence and the other circumstances
linking [the defendant] to the crime.’’ (Internal quota-
tion marks omitted.) State v. Smith, 94 Conn. App. 188,
193–94, 891 A.2d 974, cert. denied, 278 Conn. 906, 897
A.2d 100 (2006). It was not necessary for the jury to
find that the defendant controlled the premises in order
to infer that he possessed the child pornography.
The court’s failure to include the language regarding
‘‘control of the premises’’ could not have reasonably
misled the jury. The defendant argues that the instruc-
tion the trial court delivered to the jury improperly
modified this state’s model instruction by substituting
‘‘computer’’ for ‘‘premises.’’ Of course, varying the
wording of the model instruction does not mean that
the instruction provided was an incorrect statement of
the law. Regarding possession, our criminal model jury
instructions provide in relevant part: ‘‘A complete
instruction on possession may require explanations of
constructive possession and nonexclusive possession
if relevant to the case. Tailor this instruction
according to the specific allegations of possession.’’
(Emphasis added.) Connecticut Criminal Jury Instruc-
tions (4th Ed. 2008, Revised November 17, 2015) § 2.11-
1, available at http://jud.ct.gov/ji/Criminal/part2/2.11-
1.htm (last visited April 14, 2016).
The court’s instruction was proper because a reason-
able jury could make a rational conclusion that if the
defendant had control of the computer, then he had
possession of its contents. ‘‘[I]t is a function of the jury
to draw whatever inferences from the evidence or facts
established by the evidence it deems to be reasonable
and logical. . . . Because [t]he only kind of an infer-
ence recognized by the law is a reasonable one . . .
any such inference cannot be based on possibilities,
surmise or conjecture. . . . It is axiomatic, therefore,
that [a]ny [inference] drawn must be rational and
founded upon the evidence. . . . However, [t]he line
between permissible inference and impermissible spec-
ulation is not always easy to discern. When we infer,
we derive a conclusion from proven facts because such
consideration as experience, or history, or science have
demonstrated that there is a likely correlation between
those facts and the conclusion. If that correlation is
sufficiently compelling, the inference is reasonable. But
if the correlation between the facts and the conclusion
is slight, or if a different conclusion is more closely
correlated with the facts than the chosen conclusion,
the inference is less reasonable. At some point, the
link between the facts and the conclusion becomes so
tenuous that we call it speculation. When that point is
reached is, frankly, a matter of judgment.’’ (Internal
quotation marks omitted.) State v. Billie, 123 Conn.
App. 690, 696, 2 A.3d 1034 (2010).
The substance of the charge allowed the jury to infer
that the defendant had possessed child pornography if
it found that the defendant had exclusive control of the
computer. On the basis of the evidence presented, the
jury reasonably could have concluded that the defen-
dant was the only person with control and access to
the password protected computer that contained child
pornography. Therefore, this instruction was both rea-
sonable and logical. The constantly changing nature
of technology and crime require that judges have the
flexibility to adapt model jury instructions to the facts
of a case. Read as a whole, the trial court’s instruction
adequately explained to the jury each of the elements
required before a person may be convicted of posses-
sion of child pornography in the first degree. It was not
reasonably possible that the jury was misled by the
instruction regarding possession. The defendant, there-
fore, was not deprived of a fair trial on the basis of
improper jury instructions.
III
Finally, the defendant claims that the trial court
abused its discretion when it allowed the state to pre-
sent rebuttal evidence concerning the clock settings on
the defendant’s computer. Although the state had the
opportunity to present this evidence during its case-in-
chief, the evidence in question became relevant only
when the defendant opened the door by presenting an
alibi defense that he was working when the porno-
graphic images were downloaded. The trial court did
not abuse its discretion by allowing the state to present
its rebuttal evidence.
The following additional facts are relevant to the
defendant’s claim. During the presentation of the state’s
case-in-chief, defense counsel cross-examined Detec-
tive Aresco about the dates and times that the porno-
graphic images were downloaded to the defendant’s
computer. Defense counsel provided Aresco with a
copy of the state police computer analysis report that
had been generated following an examination of the
defendant’s computer. Using the report to refresh his
memory, Aresco read the dates and times captured in
the report for when specific files were downloaded.5
On redirect examination, Aresco testified that based on
his training, the report’s recorded download time was
not reliable evidence.6 On recross-examination, Aresco
testified that the file download times captured in the
report may have been off by at least two hours from
the time when the files were actually downloaded by
the defendant because Aresco observed that the clock
in the computer was set to the Pacific time zone.7 The
next day, after the state rested and prior to the defense
presenting any witnesses, the state informed the court
that following his testimony, Aresco had further
reviewed file download times and found that his testi-
mony regarding a two hour difference in time was incor-
rect. Aresco was now prepared to testify that when
he examined the computer he observed a nine hour
difference between the clock in the defendant’s com-
puter and the ‘‘actual time.’’8 The state informed the
court and defense counsel that Aresco would be pre-
sented as a rebuttal witness. The defendant objected
to any rebuttal testimony regarding the time to which
the clock in the computer was set because he consid-
ered it to be new forensic evidence that was available
to the state before it rested its case. The trial court
deferred making a ruling on the objection so it could
consider the defendant’s argument.
The defendant then called as his first witness a man-
ager from the bus company where he was employed.
The manager testified to the dates and times when the
defendant drove his bus route. The defendant sought
to establish that he was driving a bus at the time that
the child pornography images were downloaded to his
computer. This theory was predicated on Aresco’s ear-
lier testimony regarding when each illicit image was
downloaded to the defendant’s computer.
After the defendant rested his case, the trial court
found that the defendant would not be prejudiced by
rebuttal testimony from Aresco because the defendant
had been given notice of the state’s claim that the time
recorded on the computer was inaccurate.9 Aresco
returned to the witness stand and testified that he had
been mistaken in his prior testimony and that he had
observed a nine hour difference between the time on
the clock in the defendant’s computer and the ‘‘actual
time.’’10 The defendant cross-examined Aresco about
why his testimony changed and the difference in time.
‘‘The admission of rebuttal evidence ordinarily is
within the sound discretion of the trial court. In consid-
ering whether a trial court has abused its discretion,
appellate courts view such a trial court ruling by making
every reasonable presumption in favor of the decision
of the trial court.’’ (Internal quotation marks omitted.)
Embalmers’ Supply Co. v. Giannitti, 103 Conn. App.
20, 57, 929 A.2d 729, cert. denied, 284 Conn. 931, 934
A.2d 246 (2007).
‘‘[R]ebuttal evidence is that which refutes the evi-
dence presented by the defense. . . . When a defen-
dant offers evidence in his defense, it is appropriate
for the state to offer evidence to refute it, if possible.’’
(Citation omitted; internal quotation marks omitted.)
State v. Cavell, 235 Conn. 711, 727, 670 A.2d 261 (1996).
‘‘Generally, a party who delves into a particular subject
during the examination of a witness cannot object if
the opposing party later questions the witness on the
same subject. . . . The party who initiates discussion
on the issue is said to have opened the door to rebuttal
by the opposing party. . . . The doctrine of opening
the door cannot, of course, be subverted into a rule for
injection of prejudice. . . . The trial court must care-
fully consider whether the circumstances of the case
warrant further inquiry into the subject matter, and
should permit it only to the extent necessary to remove
any unfair prejudice which might otherwise have
ensued from the original evidence. . . . Thus, in mak-
ing its determination, the trial court should balance the
harm to the state in restricting the inquiry with the
prejudice suffered by the defendant in allowing the
rebuttal.’’ (Internal quotation marks omitted.) State v.
Brown, 309 Conn. 469, 479, 72 A.3d 48 (2013).
On the basis of our review, we conclude that the trial
court did not abuse its discretion by permitting the
state to recall the pertinent witness to clarify an earlier
representation as to when child pornography was down-
loaded to the defendant’s computer. The testimony was
proper rebuttal evidence. The defendant was on notice
of the timing issue and was able to cross-examine the
witness on rebuttal. See State v. Cavell, supra, 235 Conn.
728 (state forensic analysis that was not relevant during
case-in-chief was allowed as rebuttal evidence). The
state was not required to prove the timing of when
the child pornography was downloaded, only that the
defendant was in possession of it. It was the defense
that made relevant the computer recorded download
times.
It is true that the state could have determined the
exact discrepancy between the clock in the computer
and the actual time prior to the presentation of its case-
in-chief, but the topic became relevant only when the
defendant raised the issue during cross-examination of
Aresco. In this case, the defendant opened the door to
the issue of download times in order to lay the founda-
tion for the later testimony of the defendant’s employer,
who would assert that the defendant was working at
the time when the images allegedly were downloaded.
The defendant never filed a notice of an alibi defense
that would have informed the state of this theory. There-
fore, prior to the cross-examination of Aresco, it was
reasonable for the state to believe that the timing of
the image downloads was not relevant to the trial and
not a topic that required the presentation of evidence.
Following the defendant’s cross-examination of Are-
sco, the state took immediate steps to determine the
actual temporal discrepancy and informed the trial
court and the defendant that it would seek to introduce
rebuttal evidence. Prior to presenting his defense, the
defendant was aware that the state was prepared to
offer rebuttal evidence regarding the computer time.
The defendant did not seek a continuance to afford
himself time to address the state’s additional evidence.
The trial court was within its discretion to allow the
state to refute the testimony presented by the
defendant.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-196d (a) provides in relevant part: ‘‘A person is
guilty of possessing child pornography in the first degree when such person
knowingly possesses (1) fifty or more visual depictions of child pornogra-
phy . . . .’’
2
During the trial, state police Detective David Aresco described peer-to-
peer file sharing: ‘‘A peer-to-peer file share network is a network that facili-
tates the transfer of digital files from one user to another user. When I say
one user, I mean one computer user signed onto the network . . . .’’
3
In Mangual, the police made a ‘‘show of force that included drawn
handguns [and] one or more rifles . . . .’’ Id., 200.
4
‘‘[I]n summary, the state must prove beyond a reasonable doubt that
the defendant possessed child—that one, the defendant possessed child
pornography, two, he was aware of the nature and contents of the material,
and three, it consisted of fifty or more visual depictions. If you unanimously
find the state has proved beyond a reasonable doubt each of the elements
of the crime of possessing child pornography in the first degree, then you
shall find the defendant guilty.’’
5
The words ‘‘created’’ and ‘‘downloaded’’ were used interchangeably dur-
ing the trial. Both were references to the date and time recorded by the
computer when an image was added to the defendant’s computer hard drive.
6
‘‘[The Prosecutor]: [Detective Aresco] [y]ou referenced before the file
created time, and you gave an explanation as to what that means. But in
your experience and training in this particular area, does that have any
significant value in your investigation?
‘‘[The Witness]: No, sir. . . .
‘‘[The Prosecutor]: And why is that, sir?
‘‘[The Witness]: Those times are not reliable.
‘‘[The Prosecutor]: And why is that?
‘‘[The Witness]: Because it’s capturing that time from the time that is set
on the computer . . . . That time is coming off of whatever time [the defen-
dant’s computer] was presently set at when that file was created or any file
is created. And I have no way of verifying what time a particular computer
was set at. No forensic examiner would come up here and testify to the
reliability of times because they can be manipulated.’’
7
‘‘The time was off. It was set to Pacific time and I did the calculation,
I believe it was two hours off to the actual time.’’ Aresco stated that he
could testify about the setting of the clock in the computer only as of the
date when he examined the computer, not any previous date when the files
were actually downloaded. His review of the clock in the computer occurred
two weeks prior to the defendant’s trial in September, 2013.
8
‘‘[A]ctual time’’ is the phrase that Aresco used throughout his testimony
to differentiate between the time he observed on the clock in the computer
and the time on the day when he was examining the computer.
9
The court stated: ‘‘[T]he defense certainly knew the state’s claim would
be that the time was off. Maybe not specifically the exact time differential,
but that did come out through the redirect of the forensic examiner. So,
they were on notice of that. And then prior to calling specifically the defense
witness, the state, although it didn’t have to, certainly put the defense on
notice that they had gone back and checked the exact time differential, and
it was greater than either Pacific time or two hours, which was the testimony
based on recollection, and was actually nine hours.
‘‘So, given that, I don’t believe the defendant was prejudiced. This is an
issue that obviously the defense raised. I understand why the defense raised
it. But the state should be able to respond to it. And I don’t believe there
was—there’s prejudice by calling the witness to rebut that testimony.’’
10
‘‘[The Witness]: I checked the time of the computer, the imaged computer
just to make sure that my testimony as far as, you know, me believing that
it was two hours off was accurate.
‘‘[The Prosecutor]: Okay. And what did you do with respect to that issue?
‘‘[The Witness]: I actually turned on the laptop computer that I used to
make the demos. And that laptop computer contained the imaged hard drive,
the hard drive that we seized the day of the search warrant. So, I turned
on the computer and I checked the time.
‘‘[The Prosecutor]: And what did you find with respect to checking the
time?
‘‘[The Witness]: I found that the time was actually nine hours and twenty-
two minutes off, meaning the time of the computer was nine hours and
twenty-two minutes ahead of the actual time.’’