State v. Cecil ( 2019 )

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STATE OF CONNECTICUT v. LASHAWN R. CECIL
(AC 42097)
Keller, Bright and Bear, Js.
Syllabus
Convicted of the crimes of murder and criminal possession of a firearm,
the defendant appealed. The defendant’s conviction stemmed from an
incident in which he entered an apartment building and shot the victim.
Shortly thereafter, the defendant encountered his neighbor, L, who
bought a gun from the defendant. After learning of the victim’s murder,
L broke the gun into pieces and threw it into a river, but subsequently
informed the police of what he had done. The trial court denied the
defendant’s motion in limine to preclude the state from introducing into
evidence a handgun magazine recovered during an underwater search
of the river. At trial, the state presented written and video recorded
statements that two witnesses, C and D, had made to police inculpating
the defendant in the victim’s murder. C and D testified that their state-
ments were false and the result of police coercion. Held:
1. The defendant’s claim that the trial court erroneously admitted the video
recorded statements into evidence under State v. Whelan (200 Conn.
743) was not reviewable, the defendant having failed to brief the claim
adequately; although the defendant labeled his claim in his brief as
evidentiary in nature, he predominantly analyzed it as instructional in
nature, as he did not challenge the admissibility of the statements under
Whelan, and his only contention was an undeveloped claim of instruc-
tional error, namely, that the court had the obligation to instruct the
jury as to which portions of the video recorded statements could be
used for impeachment purposes and which portions could be used
substantively, the defendant’s brief did not comply with the applicable
rule of practice (§ 67-4 [e] [3]) concerning claimed evidentiary errors,
and it was not the proper role for this court to guess at the nature of
the defendant’s claim and the legal analysis to apply thereto.
2. The defendant could not prevail on his claim that the trial court errone-
ously admitted into evidence the handgun magazine, which he claimed
was irrelevant, prejudicial and misleading: the recovered magazine
tended to show that the defendant had access to a firearm shortly
after the victim’s murder, supported the conclusion that the magazine
belonged to the firearm used to kill the victim, and corroborated the
state’s theory of the case, as it corroborated L’s testimony that the
defendant sold him a handgun on the morning of the victim’s murder
and that he had thrown the disassembled handgun into the river, and
the handgun magazine was relevant because a firearms examiner testi-
fied that the recovered magazine was consistent with a magazine that
would fit the type of handgun used to kill the victim; moreover, even
though the defendant claimed that the magazine was not reliable evi-
dence because it had physically degraded, the state presented evidence
that the condition of the magazine at the time it was recovered from
the river was different from its condition at the time the crime was
committed, but that the change was due to natural causes, not human
activity, and it was relevant and probative because it aided the trier of
fact in determining a material fact or in corroborating other direct
evidence in the case.
Argued September 11—officially released November 19, 2019
Procedural History
Substitute information charging the defendant with
the crimes of murder and criminal possession of a fire-
arm, brought to the Superior Court in the judicial dis-
trict of New London, where the first count was tried
to the jury before Jongbloed, J., and the second count
was tried to the court, Jongbloed, J.; verdict of guilty
of murder; judgment of guilty of murder and criminal
possession of a firearm, from which the defendant
appealed. Affirmed.
Christopher Y. Duby, assigned counsel, with whom
was Robert L. O’Brien, assigned counsel, for the appel-
lant (defendant).
Nancy L. Walker, assistant state’s attorney, with
whom, on the brief, were Michael L. Regan, state’s
attorney, and Stephen M. Carney, senior assistant
state’s attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, Lashawn R. Cecil, appeals
from the judgment of conviction, rendered after a jury
trial, of murder in violation of General Statutes § 53a-
54a (a) and the judgment of conviction, rendered follow-
ing a trial to the court, of criminal possession of a
firearm in violation of General Statutes § 53a-217. On
appeal, the defendant claims that the trial court errone-
ously (1) admitted video recorded statements into evi-
dence under State v. Whelan, 200 Conn. 743, 513 A.2d
86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L.
Ed. 2d 598 (1986), and, simultaneously, admitted those
same statements as impeachment evidence without
instructing the jury how to evaluate that evidence, and
(2) admitted into evidence a handgun magazine that
was irrelevant, highly prejudicial, and misleading. We
affirm the judgment of the trial court.
From the evidence adduced at trial, the jury reason-
ably could have found the following facts. At the time
of the events underlying this appeal, the victim, Jaclyn
Wirth, resided at the Mohegan Apartments located in
Norwich. On the evening of December 13, 2011, the
defendant was at the Mai Thai bar in Norwich with
William Collelo and Harold Butler. Also present at the
bar was an individual named Ezekial ‘‘Junie’’ Boyce.
Boyce owed Butler a debt of approximately $160 for a
prior sale of narcotics. The defendant, Collelo, and But-
ler left the bar at approximately 1 a.m. on December
14, 2011. The three men left in Collelo’s rental car, a
black Chrysler 300 with Florida license plates.
After leaving the bar, Collelo drove the three men to
the Mohegan Apartments because Collelo had informed
Butler that Boyce often spent time at the apartments,
and Butler wanted to collect the money owed to him by
Boyce. Collelo parked his vehicle outside the Mohegan
Apartments, and Butler told the defendant to go see
Boyce to collect the money that he owed Butler. The
defendant exited the vehicle and approached the
Mohegan Apartments.
At approximately 1:30 a.m., the defendant entered
the building of the apartment complex in which the
victim resided. Seconds after the defendant entered the
building, a neighbor, Arthur Murray, heard a gunshot,
a woman scream, and then four or five more gunshots.
Subsequently, the victim placed a 911 call, reporting
that she had been shot. Norwich police received a call
from dispatch at approximately 1:40 a.m. and responded
to the scene. En route to the scene, responding Police
Officer Mark Dean observed a dark colored Chrysler
300 with Florida license plates parked in a driveway
on Boswell Avenue. At the scene, officers found the
victim bleeding while lying on the floor of the main
hallway of her apartment. The victim told a responding
officer that, prior to the shooting, she had been lying
in bed, heard a loud bang, and left her bed to investigate.
She further said that when she entered the hallway
from her bedroom, she ‘‘kept getting hit.’’ An ambulance
transported the victim to Backus Hospital where she
was pronounced dead at 2:50 a.m. on December 14,
2011, as a result of multiple gunshot wounds.
Immediately following the shooting, the defendant,
out of breath from running, returned to Collelo’s vehi-
cle. The defendant told Collelo and Butler that he ‘‘han-
dled it’’ and they should leave. Collelo drove the three
men from the scene, and on Boswell Avenue they saw a
police cruiser approaching from the opposite direction
with its lights on. At the defendant’s direction, Collelo
parked the vehicle in a driveway as the police cruiser
passed. While the vehicle was parked in the driveway,
the defendant ‘‘said something about shooting a gun’’
and told Butler that ‘‘something went wrong . . . .’’
Collelo then drove the vehicle to the defendant’s resi-
dence on Shetucket Avenue. Butler walked to his resi-
dence and Collelo and the defendant entered the defen-
dant’s residence. The defendant went upstairs with
Evette Nieves, with whom he shared the residence.
The defendant and Nieves then left the residence at
approximately 2 a.m. and Collelo slept on the couch.
During an investigation of the scene, law enforcement
found nine bullet holes in the victim’s apartment door
and six corresponding defects caused by bullets in the
victim’s apartment. Investigators also found nine spent
shell casings, one live shell, and five brass colored pro-
jectiles. Gregory Klees, a firearms and tool mark exam-
iner from the federal Bureau of Alcohol, Tobacco, Fire-
arms, and Explosives Laboratory (ATF), testified that
the same firearm had fired all recovered ballistics evi-
dence and that the firearm was likely a Beretta nine
millimeter semiautomatic pistol.
Following the victim’s murder, at approximately 2
a.m. on December 14, 2011, Luis Burgos, the defendant’s
neighbor, was sitting in front of his house when the
defendant approached him, asked whether he was inter-
ested in purchasing a firearm, and sold him a nine milli-
meter firearm. Later that morning, Burgos learned that
the victim had been shot and killed. Burgos, who was
on parole, feared that his residence would be searched
and the possession of the firearm would place him in
violation of his parole. Burgos drove to a fishing area on
the Thames River, dismantled and unloaded the firearm,
and threw the pin, magazine, slider, and bullets into
the river.
Burgos later was convicted and sentenced for an
unrelated armed robbery committed on March 30, 2013.
Hoping to reduce his own sentence and eliminate any
personal affiliation with the victim’s murder, Burgos
contacted law enforcement in 2014 and shared the infor-
mation he knew about the victim’s murder. After he
provided the information to police, law enforcement
transported Burgos to the area near the Thames River
where he claimed to have disposed of the firearm
pieces. The Connecticut state police dive team per-
formed a five day search of the Thames River and recov-
ered a handgun magazine. The dive team found the
magazine in approximately ten feet of water and
approximately sixty-four feet from railroad tracks that
ran alongside the shore. At trial, when asked about any
markings on the gun the defendant had sold him, Burgos
responded, ‘‘I think it said Llama; I think that’s what
it said.’’
Klees examined the magazine, which was heavily cor-
roded due to water exposure, and determined that it
was either an aftermarket or a replacement magazine
that, prior to being submerged in the Thames River,
likely could have fit a nine millimeter Beretta handgun.
Klees also concluded that the magazine would not have
likely fit a Llama handgun.
Following the victim’s murder, the defendant dis-
closed his involvement in the shooting to multiple par-
ties. Prior to the shooting, on December 13, 2011, the
defendant asked Jeremy Dawson if he wanted to partici-
pate in a robbery of Boyce. Dawson declined, and on
the day after the shooting had occurred, the defendant
told Dawson that he had gone to the Mohegan Apart-
ments to find Boyce. Further, the defendant told Daw-
son that he had knocked on a door and a female asked
who was there. When the defendant could not enter
the apartment, he shot through the door. When Dawson
later learned of the victim’s death, he thought that the
victim was the female to whom the defendant earlier
had referred.
The defendant also made a reference to the victim’s
murder to his former girlfriend, Samantha Whitcher. In
Whitcher’s words, during an argument, the defendant
told her that if she ever left him ‘‘he’d kill [her] like
he supposedly killed the girl in Norwich.’’ After the
defendant and Whitcher ended their relationship, the
defendant also told Whitcher that he kept a firearm at
Nieves’ residence.
In 2015, the defendant was in a prison transport
van when a prisoner, Jesse Kamienski, overheard the
defendant telling another prisoner ‘‘about how he was
arguing with a woman to get into a door, and he couldn’t
get in so he fired shots through the door.’’ The prisoner
to whom the defendant was speaking refused to confirm
Kamienski’s account, instead stating, ‘‘I’m not going to
tell on my friend.’’
Additionally, the defendant told his friend, Andrew
Aviles, that he had ‘‘hit’’ the victim by mistake. The
defendant further explained, ‘‘[Collelo] drove me to the
spot on Baltic Street. I knocked on the door a few times.
I thought I heard someone [cocking] back a hammer,
so I shot like nine shots through the door and took off
. . . . I guess she was just unlocking the door or
something.’’
Finally, in an interview with the lead investigator
on the case, the defendant revealed that he knew the
victim’s killing involved shooting through a door,
despite the fact that the police previously had not
alerted the defendant to this detail of what had occurred
during the shooting.
The defendant was arrested on February 4, 2015,
and subsequently charged with murder in violation of
General Statutes § 53a-54a (a), and criminal possession
of a firearm in violation of General Statutes § 53a-217.
Following a jury trial, the jury found the defendant
guilty of murder, and the court found him guilty of
criminal possession of a firearm. The defendant
received a total effective sentence of fifty-eight years
of incarceration. This appeal followed. Additional facts
will be set forth as necessary.
I
The defendant first claims that the court erroneously
admitted video recorded statements into evidence
under State v. Whelan, supra, 200 Conn. 743, and, simul-
taneously, admitted those same statements as impeach-
ment evidence without instructing the jury how to eval-
uate that evidence. We conclude that the defendant’s
claim is inadequately briefed and decline to review it.
The record reveals the following relevant facts. On
January 4, 2015, Jeremy Dawson provided police with
a written statement regarding the disclosure the defen-
dant previously had made referencing his involvement
in the victim’s murder. The making of the statement
was video recorded. Dawson’s statement inculpated the
defendant in the victim’s murder.1 At trial, Dawson testi-
fied that the contents of the written statement and the
video recording were not true and that he was coerced
by police into making the statement. The state moved to
admit both Dawson’s written statement, and the video
recording of the statement. Defense counsel objected
to the admission of the video recorded statement for
several reasons. First, defense counsel posited that,
because Dawson claimed he was coerced by police and,
therefore, did not endorse the statement as his own,
the statement could not be admitted under Whelan.
Second, defense counsel argued that, if the video
recorded statement was admitted, the jury must be
instructed as to which portions of the video recorded
statement could be used substantively and which por-
tions could be used for impeachment purposes. Over
defense counsel’s objection, the court admitted both
exhibits under Whelan as prior inconsistent statements.
After admitting the exhibits, the court provided counsel
with the opportunity to provide draft jury instructions
with regard to the Whelan statements. The court noted:
‘‘I will hear from counsel, certainly, at some point if
they wish to ask for some kind of an instruction from
the court. I haven’t received any request to charge for
the instructions that the court is going to be giving at
the end of the case. . . . If there are specific instruc-
tions that either side wishes to ask the court to give
either during or at the end of the case, I would expect
counsel to make those requests.’’
In addition, William Collelo provided to police three
statements regarding the victim’s murder; two on
November 20, 2014, and one on January 7, 2015. All
three statements inculpated the defendant in the vic-
tim’s murder. At trial, Collelo testified that the informa-
tion in the three police statements was false and ‘‘all
lies.’’ Collelo testified that the police coached him
through the statements, and that he felt pressured to
provide the statements because the police were harass-
ing him and his family. In addition to the three written
statements, the state also moved to admit a video
recording of Collelo’s January 7, 2015 statement. The
state offered the video recorded statement under
Whelan because the video recording contained state-
ments that were inconsistent with Collelo’s in-court
testimony. Further, the state argued that the video
recorded statement should be admitted for the jury to
make a determination as to whether the police coerced
Collelo. Defense counsel objected to the admission of
Collelo’s video recorded statement on multiple grounds.
First, defense counsel argued that the video recording
contained statements consistent with those made by
Collelo in court, and that consistent statements should
not be admitted under Whelan. Second, defense counsel
argued that, if the video recorded statement was admit-
ted, the court should instruct the jury as to which por-
tions of the video recorded statement could be used
to impeach Collelo as to his claim of police coercion.
Defense counsel noted, ‘‘[a]bsent some instruction from
the court as to what the usefulness and the utility is of
a video . . . and what portions they can use for what,
I think we’re taking a big chance here. . . . The jury
needs some direction, some instruction as to how it’s
to consider a piece of evidence . . . .’’ The court
responded that ‘‘if counsel think it would be helpful
to the jury at this stage to provide some preliminary
instructions with regard to their use of the video, I’m
happy to consider any specific language that counsel
wants to suggest.’’ In response to the court’s offer,
defense counsel noted, ‘‘I’m not going to take part in
curative instructions . . . . I leave that to the court to
supply whatever instructions the court feels are appro-
priate.’’ The court ultimately admitted the video
recorded statement under Whelan, ruling that ‘‘by dis-
avowing the sum total of his cooperation with the
police, [Collelo’s] testimony is inconsistent with the
videotaped interview.’’ Further, the court ruled that the
video recorded statements were wholly admissible
under Whelan as they were inconsistent with the testi-
mony of the two witnesses in court that their prior
statements were both false and coerced.
Immediately following the court’s admission of the
Collelo video recorded statement, defense counsel
again raised the instructional issue, noting, ‘‘I suppose
. . . the only thing you could do would be a line-by-line
analysis . . . and then almost instruct . . . the jury in
sections as to how it may use each piece of a video
. . . .’’ Defense counsel, however, did not provide the
court with a proposed instruction or suggest which
portions of the video recorded statements he believed
should be considered as substantive evidence and
which portions of the video recorded statements should
be considered for impeachment purposes. The court
responded that ‘‘it will be the jury’s determination as
to what weight to give the evidence and I do intend to
give them instructions as to how to evaluate Whelan
evidence as well as inconsistent and even prior consis-
tent statements.’’ Further, before the court allowed Col-
lelo’s video recorded statement to be played for the
jury, the state offered specific redactions, to which the
defense agreed. The defense offered no further redac-
tions of its own.
On January 27, 2017, after both video recorded state-
ments were shown to the jury, the court provided to
the jury preliminary instructions distinguishing the use
of prior inconsistent statements and the use of Daw-
son’s and Collelo’s Whelan statements, which had been
admitted as exhibits. The preliminary instructions read
as follows: ‘‘[E]vidence has been presented that some
witnesses have made statements outside of court that
may be inconsistent with their trial testimony. You
should consider this evidence only as it relates to the
credibility of the witnesses’ testimony, not as substan-
tive evidence. In other words, consider such evidence
as you would any other evidence of inconsistent con-
duct in determining the weight to be given to the testi-
mony of the witnesses in court.
‘‘Further, in evidence as certain exhibits are prior
statements of the witnesses. To the extent, if at all, you
find such statements inconsistent with the witnesses’
trial testimony, you may give such inconsistency the
weight to which you feel it is entitled in determining
the witness’s credibility here in court. You may also
use such statements for the truth of their content and
find facts from them.’’
Also on January 27, 2017, the court provided counsel
with a draft final charge, which incorporated in sub-
stance the preliminary charge it had given the jury.
On February 1, 2017, prior to the court’s delivery of
the final charge, defense counsel raised the issue of
instructional language for the Whelan statements, not-
ing, ‘‘I do think that this charge is lacking . . . .’’ Coun-
sel went on to state, ‘‘I haven’t necessarily an objection
to this language, but I can tell you that it’s just not
sufficient . . . .’’ The court responded that ‘‘I am going
to give the two charges on inconsistent statements and
on the Whelan rule. . . . I think that the jury can be
guided by these two instructions . . . . And it is cer-
tainly . . . up to [the jury] to determine how they treat
any particular piece of evidence and within the bound-
aries of these instructions, so I think that it sufficiently
gives [the jury] the guidance that they need to be able
to do that.’’
The trial judge delivered its final charge on February
1, 2017, at the close of trial. The final charge regarding
inconsistent statements and Whelan statements read as
follows: ‘‘Now, evidence has been presented that some
witnesses made statements outside of court that are
either consistent or inconsistent with their trial testi-
mony. You should consider this evidence only as it
relates to the credibility of the witness’s testimony, not
as substantive evidence. In other words, consider such
evidence as you would any other evidence of consistent
or inconsistent conduct in determining the weight to
be given to the testimony of the witness in court.
‘‘In evidence as exhibits 92 and 93 are prior state-
ments of Jeremy Dawson. Also in evidence as exhibits
96, 97, 98, and 99 are prior statements of William Collelo.
To the extent, if at all, you find such statements incon-
sistent with the witness’s trial testimony, you may give
such inconsistency the weight to which you feel they
are entitled in determining the witness’s credibility here
in court. You may also use such statements for the truth
of their content and find facts from it.’’
Defense counsel did not take exception to this por-
tion of the final charge.
In his brief, the defendant labels his first claim as
evidentiary in nature and proceeds to set forth an abuse
of discretion standard of review. In his convoluted anal-
ysis of the claim, however, the defendant does not chal-
lenge the admissibility of the statements under Whelan.
Rather, the defendant’s only contention is that the court
had the obligation to instruct the jury as to which por-
tions of the exhibits could be used for impeachment
purposes and which portions could be used for substan-
tive purposes. In particular, in his brief, the defendant
states that ‘‘[t]he jury never knew what portions of the
Dawson and Collelo tapes to use as evidence and which
portions to use to discredit each man. They never knew
because the trial court refused the defendant’s request
to tell them.’’ The defendant goes on to argue that ‘‘there
was no limiting instruction despite a timely, proper
request for one.’’2
In its brief, the state expresses its confusion over
the nature of the defendant’s claim, referring to the
defendant’s briefing of the first issue as ‘‘a confusing
mélange of evidentiary complaints and instructional
challenges.’’ The defendant’s lack of clarity in his brief
is reflected by the state’s decision to analyze the defen-
dant’s first claim as both a claim of evidentiary error
and a claim of instructional error.
In his reply brief, the defendant, responding to the
state’s confusion as to the nature of his claim, confirms
that his claim is evidentiary in nature. Specifically, the
defendant states that he ‘‘is not raising a jury instruction
issue’’ and that ‘‘the . . . claim is evidentiary . . . .’’
Despite the defendant’s contention, his reply brief
offers no analysis of whether the court properly admit-
ted the video recorded statements under Whelan, but,
rather, continues to advance an undeveloped claim of
instructional error.
The defendant’s brief is also inadequate with regard
to the Practice Book rules of appellate procedure. The
state notes, and we agree, that, if the defendant is
asserting a claim of evidentiary error, then his brief
failed to comply with the requirements under Practice
Book § 67-4 (e) (3).3
‘‘It is well settled that [w]e are not required to review
claims that are inadequately briefed. . . . We consis-
tently have held that [a]nalysis, rather than mere
abstract assertion, is required in order to avoid aban-
doning an issue by failure to brief the issue properly.
. . . [F]or this court judiciously and efficiently to con-
sider claims of error raised on appeal . . . the parties
must clearly and fully set forth their arguments in their
briefs. We do not reverse the judgment of a trial court
on the basis of challenges to its rulings that have not
been adequately briefed. . . . The parties may not
merely cite a legal principle without analyzing the rela-
tionship between the facts of the case and the law
cited. . . . [A]ssignments of error which are merely
mentioned but not briefed beyond a statement of the
claim will be deemed abandoned and will not be
reviewed by this court.’’ (Internal quotation marks omit-
ted.) Clelford v. Bristol, 150 Conn. App. 229, 233, 90
A.3d 998 (2014).
It is not the proper role for this court to guess as to
the nature of the defendant’s claim and the relevant
legal analysis to apply thereto. We only have in front
of us a muddled analysis that labels a claim as eviden-
tiary in nature, yet predominantly analyzes it as instruc-
tional in nature. Accordingly, relying, as we must, on the
defendant’s insistence that he raised only an evidentiary
claim, we conclude that this claim is inadequately
briefed, and we decline to review it.4
II
Next, the defendant claims that the court erroneously
admitted into evidence a handgun magazine that was
irrelevant, highly prejudicial, and misleading. We
disagree.
The following procedural history is relevant. On Janu-
ary 10, 2017, the defendant filed a motion in limine
to ‘‘preclude the state from introducing any evidence
concerning an underwater search of the basin of the
Thames River by Connecticut State Police.’’ In particu-
lar, the defendant sought to exclude the handgun maga-
zine recovered during the underwater search. On Janu-
ary 19, 2017, the trial court heard arguments on the
motion from both parties. The state made an offer of
proof regarding the relevance of the magazine as it
related to evidence the state anticipated admitting. The
state’s offer of proof was as follows: ‘‘The state antici-
pates the evidence generally being that shortly after the
homicide of Jaclyn Wirth, the defendant encountered
an individual named Luis Burgos. Luis Burgos said that
he acquired a gun from the defendant, and that Luis
Burgos soon thereafter became nervous about pos-
sessing the firearm because he believed it may have
been involved in the homicide. Shortly after becoming
nervous, he indicates that he went to the area of the
Thames River in Ledyard, broke the gun down into
three different pieces, and threw the gun and its sepa-
rate parts into the water. Some years later . . . he gave
this information to investigators; at the time, he was
incarcerated. The state made arrangements to have cor-
rection officers . . . bring him to the area of the
Thames River, and indicate where it is that he says that
he broke the gun into its components and threw it into
the river.
‘‘Shortly thereafter, the state of Connecticut sent a
dive team to search the area. As part of the dive, they
recovered an item, which we assert is a magazine. We
have then sent that magazine to [ATF], it was inspected
by an examiner . . . who is on the witness list, and
he is prepared to tell us that it’s an aftermarket magazine
that would fit a Beretta, which is consistent with a
weapon that would have fired, we believe the evidence
will be, the fatal shot into Jaclyn Wirth, as well as the
cartridges left at the scene, and the various shots into
her as well as into the apartment. That would be our
offer of proof as to why that magazine is admissible.’’
In support of its motion, defense counsel argued
that, due to the size of the Thames River and the time
elapsed since the crime, the recovered magazine could
not be connected to the present case. The state coun-
tered that defense counsel’s arguments went to the
weight and not the admissibility of the magazine and
that the magazine would corroborate Burgos’ testi-
mony. The court denied the defendant’s motion on Janu-
ary 20, 2017. In denying the motion, the court found
that ‘‘the proffered evidence is relevant and material
. . . as it relates to the testimony of Mr. Burgos, is
relevant to his credibility, and to the determination of
credibility that the jury is going to have to make in this
case. It’s also ultimately relevant to whether or not
the defendant had the means to commit the crime in
question.’’ The court further found that the defendant’s
arguments regarding the magazine’s admissibility could
be explored on cross-examination and went to weight
and not admissibility. The court also found that ‘‘the
evidence is not unduly prejudicial, and does not unduly
arouse the jury’s emotions, hostility, sympathy, or oth-
erwise create a danger of unfair prejudice.’’ Throughout
the remainder of trial, the state presented evidence
consistent with its offer of proof regarding the admis-
sion of the handgun magazine.5
We begin our analysis of this claim with the appro-
priate standard of review. ‘‘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 . . . . Accordingly, [t]he trial
court’s ruling on evidentiary matters will be overturned
only upon a showing of a clear abuse of the court’s
discretion. . . . Furthermore, [i]n 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. . . .
Even when a trial court’s evidentiary ruling is deemed
to be improper, we must determine whether that ruling
was so harmful as to require a new trial. . . . In other
words, an evidentiary ruling will result in a new trial
only if the ruling was both wrong and harmful.’’ (Inter-
nal quotation marks omitted.) State v. Papineau, 182
Conn. App. 756, 787, 190 A.3d 913, cert. denied, 330
Conn. 916, 193 A.3d 1212 (2018).
‘‘[R]elevant evidence is evidence that has a logical
tendency to aid the trier in the determination of an
issue. . . . Evidence is relevant if it tends to make the
existence or nonexistence of any other fact more proba-
ble or less probable than it would be without such
evidence. . . . To be relevant, the evidence need not
exclude all other possibilities; it is sufficient if it tends
to support the conclusion [for which it is offered], even
to a slight degree. . . . 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 cumula-
tive. . . . Relevant evidence may be excluded if its pro-
bative value is outweighed by the danger of unfair preju-
dice . . . . All evidence adverse to a party is, to some
degree prejudicial. To be excluded, the evidence must
create prejudice that is undue and so great as to threaten
injustice if the evidence were to be admitted.’’ (Citations
omitted; internal quotation marks omitted.) State v. Bul-
lock, 155 Conn. App. 1, 40, 107 A.3d 503, cert. denied,
316 Conn. 906, 111 A.3d 882 (2015); see also Conn. Code
Evid. §§ 4-1 and 4-3.
Having examined the defendant’s claim, we conclude
that the court properly admitted the magazine into evi-
dence because it tended to show that the defendant
had access to a firearm shortly after the victim’s murder,
it supported the conclusion that the magazine belonged
to the firearm used to kill the victim, and it corroborated
the state’s theory of the case. Specifically, the magazine
corroborated Burgos’ testimony that the defendant sold
Burgos a handgun on the morning of the victim’s mur-
der. Further, the dive team’s ability to recover the maga-
zine at Burgos’ direction corroborated Burgos’ testi-
mony that he had thrown the disassembled handgun
into the Thames River after learning of the victim’s
death later that morning. The state’s witness who per-
formed the underwater search testified that, as part of
an investigatory search, it is ‘‘[n]ot overly common’’ to
find the item for which the dive team is looking. Notably,
the dive team, in its five day search, did not recover
any other firearms evidence, further supporting the con-
clusion that the recovered magazine was, in fact, the
one thrown into the river on the morning of the victim’s
murder. Perhaps most importantly, the admission of
the magazine was relevant because an ATF examiner
determined that the recovered magazine was consistent
with a magazine that would fit a Beretta style handgun,
which is the type of handgun used to kill the victim.
The admission of the magazine, therefore, tended to
support the state’s theory that the magazine could have
been used in the firearm the defendant used to kill
the victim. We agree with the court’s conclusion that
defense counsel’s arguments went to the weight of the
evidence, not to its admissibility, and that defense coun-
sel was able to explore those arguments on cross-exami-
nation.6
We disagree with the defendant’s contention that the
facts of State v. Moody, 214 Conn. 616, 573 A.2d 716
(1990), are analogous to the present case. In Moody,
our Supreme Court concluded that the trial court erred
in admitting into evidence the result of a ‘‘presumptive
test for blood.’’ (Internal quotation marks omitted.) Id.,
628–30. In particular, the result of the ‘‘presumptive test
for blood’’ was positive for a stain on the soles of the
defendant’s shoes. (Internal quotation marks omitted.)
Id., 627. Our Supreme Court held that the presumptive
test result ‘‘was entirely irrelevant’’ as it ‘‘did nothing
toward establishing the likelihood of the presence of
human blood on the sole of the defendant’s shoe.’’ Id.,
628. Whereas in Moody, the presumptive test result
could not demonstrate whether the stain was ‘‘human
blood, animal blood, or something other than blood’’;
id; and, thus, was evidence that lacked any probative
value, here, the ATF examiner determined that the
recovered magazine matched the type of magazine used
in the firearm used to kill the victim, and the recovery
of the magazine corroborated Burgos’s testimony.
Therefore, the magazine was relevant and probative
because its admission aided the trier of fact in determin-
ing a material fact or in corroborating other direct evi-
dence in the case.
The defendant also argues that the court improperly
admitted the magazine because, due to the substantial
corrosion and marine growth found on the magazine,
the magazine was not in substantially the same condi-
tion as when the crime was committed. The defendant
takes the position that ‘‘[t]he magazine was so hope-
lessly degraded that it was not reliable evidence for the
jury to form any link between it and Wirth’s murder.’’
In supporting its proposition, the defendant mistakenly
relies on State v. Johnson, 162 Conn. 215, 292 A.2d 903
(1972). The relevant fifth claim in Johnson, however,
focused on the preservation of evidence with regard
to tampering, intermeddlers, and custody. Id., 232–33.
Specifically, in Johnson, the defendant claimed that
the court erred in admitting marijuana into evidence
because ‘‘not all the individuals having access to the
exhibits were called and the exhibits were not sealed
or labelled in such a way as to avoid the possibility of
tampering or misplacement . . . .’’ (Internal quotation
marks omitted.) Id., 230. Here, the state presented evi-
dence that the magazine was in a different condition
when it was recovered from the Thames River from the
time of the commission of the crime, namely, that it
was ‘‘highly corroded’’ and surrounded by ‘‘numerous
types of marine-like material . . . .’’ The state’s wit-
nesses explained, however, that the magazine’s physical
changes were due to natural causes as a result of the
magazine being submerged in the Thames River, and
not due to the types of human activity that occurred
in Johnson.
In light of the broad discretion possessed by trial
courts in admitting evidence, we conclude that the trial
court did not abuse its discretion in admitting the
magazine.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Pursuant to State v. Carrion, 313 Conn. 823, 837, 100 A.3d 361 (2014),
‘‘[i]n addition to signed documents, the Whelan rule also is applicable to
tape-recorded statements that otherwise satisfy its conditions.’’ (Internal
quotation marks omitted.)
2
The defendant also claims on appeal that portions of the video recorded
statement contained police statements that were untrue, hearsay or irrele-
vant, but at trial, he expressed only one specific objection relating to misin-
formation about nonexistent polygraph results, which the court instructed
the jury to ignore as untrue. It was the defendant’s obligation to identify
other specific parts of the video recorded statements he found objectionable,
which he failed to do, or to seek specific redactions or special instructions
as to portions of the video recorded statements that did not contain Whelan
statements, which he also declined to do.
3
Practice Book § 67-4 (e) (3) requires: ‘‘When error is claimed in any
evidentiary ruling in a court or jury case, the brief or appendix [of the
appellant] shall include a verbatim statement of the following: the question
or offer of exhibit; the objection and the ground on which it was based; the
ground on which the evidence was claimed to be admissible; the answer,
if any; and the ruling.’’
4
Even when we pointed out to counsel during oral argument that the
defendant’s claim appeared to be instructional in nature, he insisted that it
was not. Instead, he maintained that the defendant was making only an
evidentiary claim.
5
Although Burgos testified that he thought the handgun the defendant
had sold him was a Llama, the question of whether Burgos accurately
recalled the make of the firearm goes to the weight of the state’s evidence,
not its admissibility. In its closing argument, the state argued that Burgos
shrugged when testifying as to the handgun’s markings and that Burgos did
not correctly remember the brand of firearm.
6
On cross-examination of the state’s witness who recovered the magazine,
defense counsel inquired into a number of issues on which he premised his
motion to exclude the magazine. In particular, defense counsel inquired as
to the amount of time the magazine was submerged, the tidal patterns of
the Thames River, and the inability of the expert to attribute definitively
the magazine to the victim’s murder.