State v. Chiclana , 149 Conn. App. 130 ( 2014 )

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STATE OF CONNECTICUT v. LISSETTE
I. CHICLANA
(AC 34863)
DiPentima, C. J., and Keller and Dupont, Js.
Argued November 18, 2013—officially released April 1, 2014
(Appeal from Superior Court, judicial district of New
Haven, B. Fischer, J.)
Janice Wolf, assistant public defender, for the appel-
lant (defendant).
Lisa Herskowitz, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Eugene R. Calistro, Jr., senior
assistant state’s attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, Lissette I. Chiclana,
appeals from the judgment of conviction, rendered after
a trial by jury, of manslaughter in the second degree
with a firearm in violation of General Statutes § 53a-
56a.1 On appeal, the defendant raises two evidentiary
claims relating to a portion of a recorded statement that
she made following her arrest, wherein she described an
incident involving the accidental discharge of a firearm
the night before the commission of this crime. The
defendant contends that the statement was inadmissi-
ble because (1) the trial court should have considered
it to be evidence of uncharged misconduct, and, if it
had done so, it would have concluded that its prejudicial
impact outweighed its probative value, and (2) it was
not relevant to the issues of the case. We disagree, and,
accordingly, affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. On October 24, 2010, the defendant shot and killed
the victim, Jamese Hudson, in an apartment on Garden
Street in New Haven, where the defendant resided with
four other individuals.2 The victim was friends with
the defendant, as well as the other occupants of the
apartment, and had been staying there for several days
just prior to the shooting. On the day of the shooting,
the defendant and the victim were reclining on two
twin beds in the defendant’s bedroom and sending text
messages on their cell phones. While doing so, they
intermittently ‘‘played’’ with a .380 caliber handgun that
the defendant had purchased for self-protection.3 For
several weeks prior to the shooting, the defendant and
the victim had been, as the defendant described it, ‘‘play-
ing’’ this ‘‘game’’ with the gun. As part of this ‘‘game,’’
the defendant and the victim took turns pointing the
gun at one another and pulling the trigger. They engaged
the safety mechanism so that it would not fire when the
trigger was pulled. They ‘‘played’’ this ‘‘game’’ between
twenty and thirty times over the course of several
weeks, despite being forewarned not to do so.
The day of the shooting, the defendant and the victim
each pulled the trigger of the gun several times without
its firing. The defendant was aware that the handgun
was loaded, but continued to pull the trigger because
she believed the safety mechanism to be engaged. At
approximately 1:30 p.m., however, the defendant
pointed the gun in the victim’s direction, pulled the
trigger, and the gun fired unexpectedly. As a result, the
defendant, at close range, inflicted a fatal gunshot to
the victim’s head.4 While fleeing the apartment, the
defendant informed another occupant, Jasmine Vree-
land, that she accidentally had shot the victim. Vreeland
exited the apartment and asked a neighbor to call 911.
The defendant was arrested later that day and charged
with one count of manslaughter in the first degree with
a firearm in violation of General Statutes § 53a-55a (a)
and one count of carrying a pistol without a permit in
violation of General Statutes § 29-35 (a).
At trial, the state offered into evidence, outside the
presence of the jury, an audiotape of a statement made
by the defendant, following her arrest, to Detectives
Michael Wuchek and James Naccarato of the New
Haven Police Department. The defendant’s counsel
objected to a portion of the statement in which the
defendant described to the detectives an incident
involving the same gun that had occurred on October
23, 2010, the night before the shooting.5 The defendant
told the detectives that at approximately 10 p.m., she
had the gun in her pocket while she was in the kitchen
of the Garden Street apartment. The victim also was
present in the apartment at that time. The defendant
stated that because her pocket was not large enough
to fully fit the gun, it fell from her pocket and fired
a single time. The defendant stated that the gun had
‘‘jammed.’’ Although the defendant was not aware
where the bullet went, she recovered the shell and dis-
carded it in the trash. After this accidental discharge,
the defendant told the detectives that three bullets
remained in the clip of the gun.6 Over defense counsel’s
objection, the court allowed the state to play the audio-
tape of the defendant’s statement in its entirety and to
provide the jury with a transcript thereof.
The defendant was charged with one count of man-
slaughter in the first degree with a firearm in violation
of § 53a-55a (a)7 and one count of carrying a pistol
without a permit in violation of § 29-35 (a). As an alter-
native to manslaughter in the first degree, the court
charged the jury as to the lesser included offenses of
manslaughter in the second degree with a firearm in
violation of § 53a-56a8 and criminally negligent homi-
cide in violation of General Statutes § 53a-58.9
On April 12, 2012, the jury found the defendant not
guilty of manslaughter in the first degree with a firearm,
but guilty of manslaughter in the second degree with
a firearm and carrying a pistol without a permit. On June
8, 2012, the court imposed a total effective sentence of
fifteen years incarceration, execution suspended after
eleven years, and three years probation. This appeal
followed. Additional facts and procedural history will
be set forth as necessary.
I
The defendant first contends that the portion of her
statement relating to the accidental discharge of the
gun the night before the shooting constituted evidence
of prior uncharged misconduct and, accordingly, the
court should have assessed its admissibility as such.10
The defendant argues that if the court had done so, it
would have concluded that the statement did not meet
one of the exceptions to the general bar on evidence
of uncharged misconduct, its prejudicial impact out-
weighed its probative value, and it therefore constituted
inadmissible evidence of uncharged misconduct. In
response, the state argues that the defendant’s claim is
not reviewable because defense counsel did not object
on this basis at trial. We agree with the state and decline
to review this claim because it was not raised before
the trial court and, therefore, was not preserved for
our review.
The record reveals the following additional proce-
dural history. At trial, the state sought, outside of the
presence of the jury and over defense counsel’s objec-
tion, to introduce into evidence the audiotape of the
defendant’s statement relating to the accidental dis-
charge. In his offer of proof, the prosecutor argued that
the evidence was admissible pursuant to State v. McCoy,
91 Conn. App. 1, 879 A.2d 534, cert. denied, 276 Conn.
904, 884 A.2d 1026 (2005), and State v. McMahon, 257
Conn. 544, 778 A.2d 847 (2001), cert. denied, 534 U.S.
1130, 122 S. Ct. 1069, 151 L. Ed. 2d 972 (2002), indicating
that in McCoy, this court held that a ‘‘defendant’s state
of mind at the time he fatally shot the victim may be
proven by his conduct before, during, and after the
shooting.’’ The prosecutor argued that the statement
was thus admissible because it was relevant to estab-
lishing the defendant’s state of mind at the time of
the shooting, specifically, that she acted with reckless
disregard and extreme indifference to human life, as
required by §§ 53a-55 (a) and 53a-55a. See footnote 7
of this opinion. The court then took a brief recess to
permit the court and defense counsel to review the case
law that the prosecutor had brought to the attention of
the court.
After the recess, the defendant argued that the acci-
dental discharge did not constitute conduct, as the gun
merely had fallen from her pocket and the discharge
was not volitional, and that the statement was not rele-
vant to the subsequent accidental shooting of the vic-
tim.11 In ruling that the evidence was admissible, the
court, paraphrasing McCoy, stated: ‘‘[T]he defendant’s
state of mind at that time of the shooting may be proven
by his or her conduct before, during, and after the
shooting. Such conduct yields facts and inferences that
demonstrate a pattern of behavior and attitude toward
the victim by the defendant that is probative of the
defendant’s mental state. And the evidentiary issue in
front of this court, the weapon used is the same weapon
that the state alleges is used in the shooting that
occurred on October 24, 2010, and it’s within a twenty-
four hour period of the date the state alleges that the
manslaughter occurred. So, the court makes the follow-
ing finding, that this evidence is relevant, the jury can
consider it, the jury could give whatever weight they
feel—they see fit to give to this evidence concerning
the discharge of the same weapon the night before in
the apartment where the defendant and the victim were
also together the night before. So, I will allow it in.’’
(Emphasis added.)
‘‘[T]he standard for the preservation of a claim alleg-
ing an improper evidentiary ruling at trial is well settled.
This court is not bound to consider claims of law not
made at the trial. . . . In order to preserve an eviden-
tiary ruling for review, trial counsel must object prop-
erly. . . . In objecting to evidence, counsel must
properly articulate the basis of the objection so as to
apprise the trial court of the precise nature of the objec-
tion and its real purpose, in order to form an adequate
basis for a reviewable ruling.’’ (Internal quotation marks
omitted.) State v. Jorge P., 308 Conn. 740, 753, 66 A.3d
869 (2013). ‘‘Our review of evidentiary rulings made by
the trial court is limited to the specific legal ground
raised in the objection [to the trial court]. . . . This
court reviews rulings solely on the ground on which
the party’s objection is based. . . . [T]o afford petition-
ers on appeal an opportunity to raise different theories
of objection would amount to ambush of the trial court
because, [h]ad specific objections been made at trial,
the court would have had the opportunity to . . .
respond.’’ (Citation omitted; internal quotation marks
omitted.) DiLieto v. County Obstetrics & Gynecology
Group, P.C., 297 Conn. 105, 133–34, 998 A.2d 730 (2010).
Our careful review of the record and trial transcripts
reveals that the defendant did not object to the admis-
sion of her statement concerning the accidental dis-
charge of the gun on the ground that the statement
constituted inadmissible uncharged misconduct evi-
dence. The prosecutor offered the defendant’s state-
ment as evidence relevant to proving the defendant’s
state of mind at the time she fatally shot the victim,
and the court admitted the statement on that ground.
The defendant acknowledges that the court admitted
her statement concerning the accidental discharge as
relevant evidence of the crime with which she was
charged, rather than as evidence of uncharged miscon-
duct, and never during the course of trial did defense
counsel suggest that the statement constituted evidence
of uncharged misconduct. Notably, the defendant did
not file a motion in limine seeking the preclusion of
uncharged misconduct evidence or request a limiting
instruction as to the restricted purpose for which the
jury might consider the statement. Indeed, the defen-
dant argued that the accidental dropping of the gun did
not, in fact, constitute conduct. The defendant did not
assert any alternate ground for the objection, or object
in any manner to other evidence, presented later at
trial, pertaining to the accidental discharge.
For instance, after the state offered the defendant’s
statement into evidence over the defendant’s objection,
it proceeded to present other evidence indicating that
the gun in question had discharged the day before the
shooting.12 The state presented the testimony of Detec-
tive Mark Harkins of the New Haven Police Department,
who testified that on October 25, 2010, he was assigned
to investigate an unlawful discharge incident that
occurred at the Garden Street apartment, and that he
recovered a bullet embedded in a closet of an adjacent
apartment. He indicated that, on the basis of the trajec-
tory of the bullet, it likely came from the defendant’s
apartment. Moreover, the defendant herself testified on
cross-examination that on the night of October 23, 2010,
the gun had fallen from her pocket and unexpectedly
discharged when it struck the ground. She further testi-
fied that she believed that the gun had then ‘‘jammed.’’
This testimony was admitted without objection.
Our Supreme Court has explained that, to afford peti-
tioners on appeal an opportunity to raise different theo-
ries of objection would ‘‘amount to ambush of the trial
court because, [h]ad specific objections been made at
trial, the court would have had the opportunity to . . .
respond.’’ (Internal quotation marks omitted.) DiLieto
v. County Obstetrics & Gynecology Group, P.C., supra,
297 Conn. 134. In her objection and the ensuing argu-
ment, the defendant failed to provide the court with
any notice that she was objecting on the ground that
the statement constituted inadmissible uncharged mis-
conduct. She then failed to object to other evidence,
presented later at trial, pertaining to the accidental dis-
charge. In sum, because the defendant’s theory of objec-
tion seemingly has changed, and never was articulated
with precision at trial, we conclude that the claim is
not reviewable.
We must, however, briefly address the defendant’s
argument that this claim is preserved because, in a
pretrial notice of prior uncharged misconduct, the state
identified the incident of the accidental discharge as
evidence of uncharged misconduct that it may seek to
adduce at trial.13 The defendant contends that this
notice preserved her claim for review because ‘‘[i]t is
clear . . . that the evidence of the unintentional dis-
charge of the weapon from the night prior to the fatal
shooting of [the victim], if it was to be admitted at all,
would be limited in its admission to the rules that govern
uncharged misconduct.’’ This argument is without
merit. Although the state filed a notice of intent to offer
evidence of uncharged misconduct in which it identified
the accidental discharge, at trial, the state ultimately
did not offer the statement for that purpose. Rather,
it was offered generally as evidence relevant to the
defendant’s state of mind. We are aware of no authority
stating that once a party identifies evidence as
uncharged misconduct in a pretrial disclosure, it is pre-
cluded at the time of trial from offering such evidence
for a proper purpose under an alternative theory of
admissibility. Indeed, our case law suggests the oppo-
site. See State v. Hill, 307 Conn. 689, 704, 59 A.3d 196(2013) (‘‘once the evidence can be admitted for a proper
purpose, that evidence no longer should be barred as
misconduct evidence because it has not been proffered
for that impermissible purpose’’); State v. Gant, 231
Conn. 43, 58, 646 A.2d 835 (1994) (‘‘We also reject the
defendant’s assertion that this evidence [of his threaten-
ing someone with a gun] constituted ‘prior misconduct’
or ‘bad character’ evidence that prejudiced the defen-
dant. The state never offered this evidence for the pur-
poses argued by the defendant on appeal, and the trial
court never gave such instructions to the jury.’’), cert.
denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291(1995); State v. Huckabee, 41 Conn. App. 565, 581, 677
A.2d 452 (Schaller, J., dissenting) (‘‘The evidence was
not offered as evidence of misconduct for the purpose
of impeaching the credibility of the defendant or for
showing a criminal propensity. I conclude, therefore,
that [the] testimony on this matter does not constitute
misconduct evidence.’’), cert. denied, 239 Conn. 903,
682 A.2d 1009 (1996).
Finally, we reject the defendant’s argument that this
claimed error, though unpreserved, should be reviewed
under the plain error doctrine. See Practice Book § 60-
5. ‘‘[T]he plain error doctrine is reserved for truly
extraordinary situations where the existence of the
error is so obvious that it affects the fairness and integ-
rity of and public confidence in the judicial proceedings.
. . . [T]he claimed error must be both clear and harm-
ful enough such that a failure to remedy the error would
result in manifest injustice.’’ (Internal quotation marks
omitted.) State v. Hill, supra, 307 Conn. 704–705. We
are not persuaded by the defendant’s summary asser-
tion that this evidentiary claim warrants such extraordi-
nary review. The defendant has not demonstrated that
the alleged impropriety she raises is so clear and so
harmful that manifest injustice will result if the judg-
ment is not reversed. Nor has she shown that her claim
affects the fairness and integrity of and public confi-
dence in judicial proceedings. We therefore conclude
that this is not an occasion requiring the reversal of the
trial court’s judgment under the plain error doctrine.
II
The defendant next claims that the court abused its
discretion by admitting her statement to the police relat-
ing to the accidental discharge of the gun because the
statement was not relevant to the issues in the case.
Specifically, the defendant argues that her statement
concerning the gun accidentally falling from her pocket
the night before the fatal shooting was not relevant
and should not have been admitted for the purpose of
showing that she acted recklessly and with a disregard
for human life. She summarily asserts that the statement
‘‘did not have a visible connection to the facts of the
charged offense,’’ and that the ‘‘gun dropping from the
defendant’s pocket the night before [the fatal shooting]
was totally unconnected to [the victim] or to the shoot-
ing of [the victim] the next day.’’ We are not persuaded.
At the outset, we first set forth the appropriate stan-
dard of review and applicable legal principles. ‘‘This
court reviews evidentiary rulings under the abuse of
discretion standard of review. . . . The trial court has
wide discretion to determine the relevancy of evidence
. . . . Every reasonable presumption should be made
in favor of the correctness of the court’s ruling in
determining whether there has been an abuse of discre-
tion.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Stephen O., 106 Conn. App. 717, 724, 943
A.2d 477, cert. denied, 287 Conn. 916, 951 A.2d 568(2008).
It is axiomatic that evidence that is not relevant is
inadmissible. Conn. Code Evid. § 4-2. ‘‘Relevant evi-
dence is evidence that has a logical tendency to aid the
trier in the determination of an issue. . . . One fact is
relevant to another if in the common course of events
the existence of one, alone or with other facts, renders
the existence of the other either more certain or more
probable. . . . Evidence is irrelevant or too remote if
there is such a want of open and visible connection
between the evidentiary and principal facts that, all
things considered, the former is not worthy or safe to
be admitted in the proof of the latter. . . . Evidence
is not rendered inadmissible because it is not conclu-
sive. All that is required is that the evidence tend to
support a relevant fact even to a slight degree, so long
as it is not prejudicial or merely cumulative. . . . Evi-
dence is material where it is offered to prove a fact
directly in issue or a fact probative of a matter in issue.
. . . Materiality is determined by the pleadings (or
information) and the applicable substantive law.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Kantorowski, 144 Conn. App. 477, 487–88, 72 A.3d
1228, cert. denied, 310 Conn. 924, 77 A.3d 141 (2013).
To obtain a conviction of manslaughter in the first
degree with a firearm in violation of § 53a-55a (a), as
charged, the state bore the burden of proving that the
defendant ‘‘commit[ed] manslaughter in the first degree
as provided in section 53a-55, and in the commission
of such offense [she] use[d] . . . a pistol, revolver . . .
or other firearm. . . .’’ In turn, ‘‘[t]o obtain a [man-
slaughter] conviction under [§ ] 53a-55 (a) (3) . . . the
state must prove that the defendant (1) engaged in
conduct which creates a risk of death, (2) in so doing,
[she] acted recklessly14 (3) under circumstances evinc-
ing an extreme indifference to human life and (4) that
[her] conduct caused the death . . . of another per-
son.’’ (Internal quotation marks omitted.) State v.
McMahon, supra, 257 Conn. 567–68. The state argues,
as it did at trial, that the defendant’s statements con-
cerning the accidental discharge of the gun the night
before the shooting were relevant to establishing that
the defendant acted recklessly and with an extreme
indifference to human life at the time of the shooting
the next day.
The relevant factual issue before the jury was
whether the defendant was ‘‘aware of and consciously
disregard[ed] a substantial and unjustifiable risk . . .
of such nature and degree that disregarding it consti-
tutes a gross deviation from the standard of conduct
that a reasonable person would observe in the situation
. . . .’’ General Statutes § 53a-3 (13). ‘‘Where, as here,
factual issues exist that are related to a defendant’s
[state of mind], we recognize that such factual issues
are characteristically proven by circumstantial evi-
dence. . . . It is obvious that direct evidence of the
accused’s state of mind is rarely available and, there-
fore, intent is often inferred from conduct . . . and
from the cumulative effect of the circumstantial evi-
dence and the rational inferences drawn therefrom.
. . . Accordingly, the defendant’s state of mind at the
time of the shooting may be proven by [her] conduct
before, during and after the shooting.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. McCoy,
supra, 91 Conn. App. 7.
We agree with the state that the statement concerning
the accidental discharge was relevant to proving that
the defendant acted recklessly the day of the fatal shoot-
ing. The defendant’s statement indicates that the defen-
dant was aware that the gun could discharge
unexpectedly, and proof of such awareness strongly
tends to demonstrate recklessness. See General Stat-
utes § 53a-3 (13). The defendant stated that at the time
of the accidental discharge the gun had ‘‘jammed,’’ and
later, at trial, testified that she did not take any actions
to unjam it or ensure that it was functioning properly
the next day. She further acknowledged in her state-
ment that she was aware that three bullets remained
in the clip of the gun. This evidence undoubtedly aided
the jury reasonably to determine that the defendant
acted recklessly and with extreme indifference to
human life when she decided to, by her own admission,
‘‘play’’ with the gun by pointing it in the direction of
her friend and pulling the trigger the day after it unex-
pectedly discharged. The jury was tasked with
determining the mental state of the defendant. It was
well within the court’s discretion to admit evidence of
conduct occurring less than twenty-four hours before
the time of the commission of the crime, where it goes
to her knowledge and awareness of the existing circum-
stances posing a substantial and unjustifiable risk. It
tended to show that she was aware that the gun could
discharge easily and that it was functional. Accordingly,
because awareness of the defective operation and dan-
gerousness of the gun was integral to demonstrating
recklessness, the trial court did not abuse its discretion
in concluding that the defendant’s statement relating
to the accidental discharge was relevant.
Finally, even if the court improperly admitted the
statement relating to the accidental discharge, which
we conclude was not the case, the error was harmless.
‘‘When an improper evidentiary ruling is not constitu-
tional in nature, the defendant bears the burden of dem-
onstrating that the error was harmful. . . . [O]ur
Supreme Court [has] addressed harmless error review
and determined that the proper standard is whether the
jury’s verdict was substantially swayed by the error.
Our Supreme Court further held that a nonconstitu-
tional error is harmless when an appellate court has a
fair assurance that the error did not substantially affect
the verdict.’’ (Citations omitted; internal quotation
marks omitted.) State v. Franko, 142 Conn. App. 451,
460, 64 A.3d 807, cert. denied, 310 Conn. 901, 75 A.3d
30 (2013).
The defendant argues that admitting the statements
relating to the accidental discharge ‘‘substantially
swayed’’ the jury, and had they not been admitted, ‘‘the
jury would have seen [the defendant’s] role in [the vic-
tim’s] death as it was, negligent.’’15 We disagree. The
remaining evidence amply supported the jury’s finding
that the defendant acted in a reckless manner and was
sufficient for the jury to have found the defendant guilty
of manslaughter in the second degree with a firearm.
Although the defendant objected to the admissibility
of the statement, additional evidence concerning the
accidental discharge—including the defendant’s own
testimony on cross-examination—was admitted with-
out objection. The jury, therefore, was aware that the
defendant knew that the gun could discharge unexpect-
edly. Furthermore, the defendant testified that she had
been ‘‘playing’’ with the gun when she pointed it in
the direction of the victim and intentionally pulled the
trigger. The jury heard testimony that she had been
‘‘playing’’ this ‘‘game’’ for several weeks, despite having
been warned not do so. The defendant testified that
she purchased the gun and bullets ‘‘on the street’’ and
never took a firearms safety course. The defendant testi-
fied that, although she was aware that guns have the
capacity to kill, the activity of pointing the gun at each
other and pulling the trigger was ‘‘just a game for [her
and the victim].’’ She stated that although she believed
that the safety mechanism was engaged, she did not
remove the clip or bullets from the gun prior to pointing
it at the victim and pulling the trigger. Given the cumula-
tive impact of the undisputed facts, a jury reasonably
could have concluded that the defendant consciously
disregarded a substantial and unjustifiable risk of caus-
ing the death of another person by routinely pointing
a loaded gun at another individual and pulling the trig-
ger—regardless of whether the safety mechanism is
engaged. On the basis of this evidence, we have a fair
assurance that the defendant’s statement describing the
accidental discharge did not substantially affect the
verdict.
Under the given circumstances, with due regard for
the broad leeway possessed by trial courts in determin-
ing the admissibility of evidence, we conclude that the
court did not abuse its broad discretion in admitting
the statement describing the accidental discharge of
the firearm that occurred the night before the death of
the victim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also was charged with and convicted of carrying a pistol
without a permit in violation of General Statutes § 29-35 (a). She does not
appeal from the conviction of that crime.
2
On October 24, 2010, the defendant was nineteen years old and the victim
was sixteen years old.
3
The defendant purchased the gun for $600 in either March or April, 2010,
after her boyfriend had been fatally shot outside of her home. She testified
that she purchased the gun and the bullets with which it was loaded ‘‘on
the street.’’ Furthermore, the state presented the testimony of Detective
Michael Wuchek of the New Haven Police Department, who testified that
no gun permit had been issued to the defendant.
4
The state presented testimony from Dr. Ira Kanfer, an assistant medical
examiner who performed the autopsy of the victim. Kanfer opined that the
defendant fired the gun from a distance of eighteen inches from the victim.
He also identified the victim’s cause of death to be a gunshot wound to
the head.
5
The following colloquy between the defendant and the detectives consti-
tutes the portion of the audiotape to which the defense objected:
‘‘[Detective Wuchek]: Okay, um is this the first time that gun ever went off?
‘‘[The Defendant]: No.
‘‘Q. By accident.
‘‘A. No, it went off by accident in the kitchen yesterday. It had fell out
of my pocket while I was trying to heat up some food.
‘‘Q. At what time did that happen about?
‘‘A. I don’t know what time that happened.
‘‘Q. Was it in the morning or at night?
‘‘A. It was at night.
‘‘Q. It was late night or just nighttime?
‘‘A. Mm, just nighttime like ten.
‘‘Q. And uh you had the gun on you while you were cooking food?
‘‘A. No, I wasn’t cooking food. I was trying to heat up my food that I had
just went and got from my family, my other family house.
‘‘Q. [All right]. And then what happened you dropped it?
‘‘A. Yeah cause my pocket wasn’t big enough to hold it so it just dropped
out of my pocket and [went] off.
‘‘Q. So when it fell it went off?
‘‘A. Mm hm.
‘‘Q. How many times did it go off?
‘‘A. Just went off once. It jammed.
‘‘Q. And was [the victim] in the house with you at that time?
‘‘A. Yes, she was.
‘‘Q. Okay.
‘‘A. She kind’a thought it was funny. Our ears were all ringing.
‘‘Q. Were either of you two hurt?
‘‘A. No.
‘‘Q. Do you know what happened to the bullet? Where the bullet went?
‘‘A. No, but I know where the shell was at.
‘‘Q. What did you do with the shell?
‘‘A. Discard of it.
‘‘Q. How did you discard of it? Did you throw it in the garbage can? Did
you flush it down the toilet? What did you do?
‘‘A. I discarded it. Do I have to say how I discarded it?
‘‘Q. Yeah if you could.
‘‘A. I was like I just threw it out in the trash. . . .
‘‘Q. And uh it had three bullets in the . . .
‘‘A. Three bullets.
‘‘Q. Left.
‘‘A. In the clip, yes.’’
6
At trial, Mark Harkins, a detective with the New Haven Police Depart-
ment, testified that the bullet was recovered from an adjacent apartment
where it was found embedded in the ceiling of a closet.
7
General Statutes § 53a-55a (a) provides in relevant part: ‘‘A person is
guilty of manslaughter in the first degree with a firearm when he commits
manslaughter in the first degree as provided in section 53a-55, and in the
commission of such offense he uses, or is armed with and threatens the
use of . . . a pistol, revolver . . . or other firearm. . . .’’
General Statutes § 53a-55 (a) provides in relevant part: ‘‘A person is guilty
of manslaughter in the first degree when . . . (3) under circumstances
evincing an extreme indifference to human life, he recklessly engages in
conduct which creates a grave risk of death to another person, and thereby
causes the death of another person.’’
8
General Statutes § 53a-56a (a) provides in relevant part: ‘‘A person is
guilty of manslaughter in the second degree with a firearm when he commits
manslaughter in the second degree as provided in section 53a-56, and in
the commission of such offense he uses . . . a pistol . . . or other fire-
arm. . . .’’
General Statutes § 53a-56 (a) provides in relevant part: ‘‘A person is guilty
of manslaughter in the second degree when: (1) He recklessly causes the
death of another person . . . .’’
9
General Statutes § 53a-58 (a) provides in relevant part: ‘‘A person is
guilty of criminally negligent homicide when, with criminal negligence, he
causes the death of another person . . . .’’
We note that in instructing the jury with respect to criminally negligent
homicide, the court referenced General Statutes § 53a-54 instead of § 53a-
58. The defendant has not raised any claim in this regard. Section 53a-54
was repealed in 1973. See Public Acts 1973, No. 73-137, § 15. Any discrepancy,
however, is harmless as the court applied the correct law. In instructing
the jury as to this charge, the court stated: ‘‘A person is guilty of criminal[ly]
negligent homicide when, with criminal negligence, she causes the death
of another person.’’ See State v. Johnson, 288 Conn. 236, 285, 951 A.2d 1257(2008) (‘‘[a]s long as [the instructions] are correct in law, adapted to the
issues and sufficient for the guidance of the jury . . . we will not view the
instructions as improper’’ [internal quotation marks omitted]).
10
‘‘Evidence of a defendant’s uncharged misconduct is inadmissible to
prove that the defendant committed the charged crime or to show the
predisposition of the defendant to commit the charged crime. . . . Excep-
tions to this rule have been recognized, however, to render misconduct
evidence admissible if, for example, the evidence is offered to prove intent,
identity, malice, motive, a system of criminal activity or the elements of a
crime. . . . To determine whether evidence of prior misconduct falls within
an exception to the general rule prohibiting its admission, we have adopted
a two-pronged analysis. . . . First, the evidence must be relevant and mate-
rial to at least one of the circumstances encompassed by the exceptions.
Second, the probative value of such evidence must outweigh the prejudicial
effect of the other crime evidence.’’ (Internal quotation marks omitted.)
State v. Pena, 301 Conn. 669, 673–74, 22 A.3d 611 (2011).
11
Specifically, defense counsel stated: ‘‘[McCoy] does talk about conduct
before, during, and after the incident. The fact that something fell out of
someone’s pocket does not constitute conduct. . . . It is—it’s the same
weapon, that’s correct, but I think the offer of proof relates to the state of
mind and conduct on the part of the defendant, and, in fact, that really isn’t
conduct at all. I don’t think it’s relevant at all to what happened the following
day.’’ (Emphasis added.)
12
Reference was also made to the accidental discharge, without objection,
before the state offered the statement into evidence. Vreeland, the defen-
dant’s housemate, had testified that on the night of October 23, 2010, she
was in the Garden Street apartment when she heard a gunshot. She testified
that the defendant and the victim were also both present in the Garden
Street apartment at the time. Vreeland, however, did not know the source
of the gunshot and, at the time, believed that it originated from outside
the apartment.
13
On January 13, 2011, the defendant filed a motion for disclosure of
uncharged misconduct, which the court granted on January 26, 2011. In
response, on November 29, 2011, the state filed a notice of prior uncharged
misconduct in which it notified the defendant of its intent to offer evidence
related to the ‘‘prior incident of discharge of a firearm on or about the
23rd day of October, 2010, in the [Garden Street apartment], by this same
defendant.’’ Trial commenced on April 9, 2012, some four months after the
state filed its notice.
14
General Statutes § 53a-3 (13) provides: ‘‘A person acts ‘recklessly’ with
respect to a result or to a circumstance described by a statute defining an
offense when he is aware of and consciously disregards a substantial and
unjustifiable risk that such result will occur or that such circumstance exists.
The risk must be of such nature and degree that disregarding it constitutes
a gross deviation from the standard of conduct that a reasonable person
would observe in the situation . . . .’’
15
‘‘A person acts with ‘criminal negligence’ with respect to a result or to
a circumstance described by a statute defining an offense when he fails to
perceive a substantial and unjustifiable risk that such result will occur or
that such circumstance exists. The risk must be of such nature and degree
that the failure to perceive it constitutes a gross deviation from the standard
of care that a reasonable person would observe in the situation . . . .’’
General Statutes § 53a-3 (14).