State v. Tyus ( 2018 )

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STATE OF CONNECTICUT v. GERJUAN
RAINER TYUS
(AC 40093)
Lavine, Sheldon and Harper, Js.
Syllabus
Convicted of the crime of murder in connection with the shooting death of
the victim, the defendant appealed, claiming, inter alia, that the trial
court abused its discretion in granting the state’s motion to join his case
for trial with that of A, who also was involved in the shooting. The
defendant also had been charged with conspiracy to commit murder,
but the trial court dismissed that charge prior to trial. The defendant
and A had driven to a cafe´, where A shot the victim. A later told E that
he had shot someone. The defendant claimed, inter alia, that he would
be substantially prejudiced if his case was joined with A’s case for trial
because A’s statement to E would be admissible in evidence as a party
admission against A. The defendant further asserted that A’s statement
to E could not be admitted under the coconspirator exception to the
hearsay rule under the applicable provision (§ 8-3 [1]) of the Connecticut
Code of Evidence (2008) because the conspiracy charge had been dis-
missed. The trial court also denied the defendant’s motion to preclude
testimony from the state’s firearms examiner, S, about S’s examination
of and conclusions about certain firearms evidence that had been exam-
ined by another state’s examiner who had since died and, thus, was
not available for cross-examination. The defendant claimed that his
constitutional right to confrontation would be violated if S testified
about the firearms evidence. Held:
1. The trial court committed no error in granting the state’s motion to join
the defendant’s case with A’s case for trial, as both cases arose from
the same incident, virtually all of the state’s testimonial, documentary,
physical and scientific evidence against the two defendants would have
been admissible against either of them if they had been tried separately,
their defenses were not antagonistic and each was the other’s principal
alibi witness; moreover, A’s statement to E was admissible against the
defendant under the coconspirator exception to the hearsay rule, as
Connecticut follows the general American rule that the coconspirator
exception is applicable in cases where no formal charge of conspiracy
has been made, and the defendant presented no other basis for claiming
that his case should not have been joined with A’s case for trial.
2. The defendant could not prevail on his claim that the trial court violated
his right to confrontation when it permitted S to testify about S’s exami-
nation of and conclusions regarding the firearms evidence; the only
inculpatory conclusions or statements regarding the firearms evidence
were made by S in court, S conducted his own physical examination
of and formulated his own conclusions about the evidence, S did not
rely on the deceased examiner’s report, which was not admitted into
evidence, and the defendant cross-examined S extensively.
3. The trial court did not err in denying the defendant’s request for a limiting
instruction to the jury regarding S’s testimony; the defendant’s requested
instruction and the court’s instruction were substantially similar, the
court properly instructed the jury as to its role in assessing the credibility
of expert witnesses and determining the weight to be given to expert
testimony, and although the court declined to the defendant’s request
to highlight S’s testimony, the court’s instructions were correct in law,
adapted to the issues and sufficient to guide the jury.
Argued May 15—officially released September 11, 2018
Procedural History
Substitute information charging the defendant with
the crimes of murder and conspiracy to commit murder,
brought to the Superior Court in the judicial district of
New London, where the court, Jongbloed, J., granted
the defendant’s motion to dismiss the charge of conspir-
acy to commit murder and granted the state’s motion
to consolidate the case for trial with that of another
defendant; thereafter, the matter was tried to the jury
before A. Hadden, J.; subsequently, the court, A. Had-
den, J., denied the defendant’s motion to preclude cer-
tain evidence; verdict and judgment of guilty, from
which the defendant appealed. Affirmed.
Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
Paul J. Narducci, senior assistant state’s attorney,
with whom, on the brief, were Michael L. Regan, state’s
attorney, and David J. Smith, senior assistant state’s
attorney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Gerjuan Rainer Tyus,
appeals from the judgment of conviction, which was
rendered against him after a jury trial, on the charge
of murder in violation of General Statutes § 53a-54a (a).
On appeal, the defendant claims (1) that the trial court
abused its discretion in granting the state’s motion to
join his case for trial with that of his codefendant, Darius
Armadore; (2) that he was deprived of his constitutional
right to confrontation when the state’s firearms exam-
iner was permitted to testify regarding the findings of
another firearms examiner, who was deceased, and thus
unavailable to testify at trial; and (3) that the court
erred in denying his request for a limiting instruction to
the jury concerning the testimony of the state’s firearms
examiner.1 We affirm the judgment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
In early December, 2006, the defendant was involved
in an ongoing dispute with Todd Thomas regarding a
piece of jewelry that Thomas’ brother had given to the
defendant. Thomas demanded that the defendant give
him the jewelry, but the defendant refused to do so
unless Thomas paid him $10,000.
On December 3, 2006, there was a drive-by shooting
near the defendant’s residence on Willetts Avenue in
New London. In that incident, Thomas, who was a pas-
senger in a white Lexus that was registered to his wife,
fired several gunshots at the defendant with a .38 caliber
firearm, striking him in the leg and the back. The defen-
dant returned fire at Thomas, firing five gunshots with
a nine millimeter firearm. Four .38 caliber cartridge
casings and five nine millimeter cartridge casings were
recovered from the scene of the shooting on Willetts
Avenue. Later that day, while the defendant was at a
hospital being treated for his wounds, his close friend,
Darius Armadore, who was at the hospital waiting for
news of the defendant’s condition, was overheard to
say, ‘‘we’re gonna get them niggas . . . .’’
At approximately 7 p.m. on December 22, 2006, the
defendant and Armadore went to Boston to visit family
and pick up three girls in a silver Chevrolet Impala that
the defendant had rented on December 15, 2006. When
one of the three girls refused to return to Connecticut
with them, the defendant and Armadore returned to
Connecticut with the other two girls.
Later that evening, at approximately 11 p.m. on
December 22, 2006, Thomas arrived at Ernie’s Cafe´ on
Bank Street in New London. Shortly after midnight on
that evening, while Thomas was outside Ernie’s smok-
ing a cigarette, he was shot in the head. A light skinned
African-American male was observed fleeing from the
place where Thomas fell, running first down Bank
Street toward the corner of Golden Street, then up
Golden Street to a municipal parking lot, where he
entered the passenger’s side of a silver car that had
been waiting there with its motor running. As soon as
the fleeing man entered the waiting vehicle, it sped
away. Thomas was transported to Lawrence + Memorial
Hospital, where he was pronounced dead on arrival.
Later, at approximately 12:45 a.m., the defendant and
Armadore arrived at Bella Notte, a nightclub in Nor-
wich. Tracking information on records produced by
their cell service providers established that their three
cell phones—the defendant had two cell phones in his
possession and Armadore had one—had been brought
from Boston to New London at approximately 11:45
p.m. All three phones activated cell towers in New Lon-
don, in the vicinity of Ernie’s, minutes before a 911 call
was received reporting the shooting outside of Ernie’s.
Thereafter, between 12:30 and 12:42 a.m., the three cell
phones were taken from New London to Norwich,
where they activated a cell tower in close proximity to
Bella Notte.2 A few hours later, at approximately 4 a.m.,
the defendant dropped Armadore off at the apartment
that he shared with his then girlfriend, Ritchae Ebrah-
imi. After arriving at the apartment, Armadore told
Ebrahimi that he had shot someone that night.
One nine millimeter cartridge casing was recovered
from the scene of Thomas’ December 23, 2006 shooting
outside of Ernie’s. A comparison of that cartridge casing
to the five nine millimeter cartridge casings recovered
from the scene of the defendant’s December 3, 2006
shooting on Willetts Avenue revealed that all six had
been fired from the same firearm.
On November 20, 2012, the defendant and Armadore
were both arrested in connection with the shooting
death of Thomas on charges of murder in violation of
§ 53a-54a, and conspiracy to commit murder in violation
of General Statutes §§ 53a-48 and 53a-54a. The conspir-
acy charges against both defendants were later dis-
missed on the ground that they were barred by the
statute of limitations. The state thereafter filed long
form informations charging the defendant and Arm-
adore with murder, both as a principal and as an acces-
sory, in violation of General Statutes §§ 53a-8 and 53a-
54a (a). The cases were subsequently joined for trial,
then tried together before a single jury, which returned
guilty verdicts as to both defendants without specifying
whether such verdicts were based on principal or acces-
sorial liability. The court sentenced the defendant to a
term of fifty-five years of incarceration. This appeal
followed.3
I
The defendant first claims that the court abused its
discretion in granting the state’s motion to join his case
with Armadore’s case for trial.4 We disagree.
On April 7, 2015, the state filed a motion, pursuant
to Practice Book § 41-19, for joinder of the defendant’s
and Armadore’s cases for trial. The state argued that
joinder of the two cases would promote judicial econ-
omy because, as the court ruled, ‘‘virtually all of the
witnesses [it] would call in [the defendant]’s trial would
be called in the trial of [Armadore],’’ and the physical
and scientific evidence that it would seek to introduce
in both cases would be identical. The state further
argued that the respective defenses of the defendant
and Armadore were not antagonistic, and thus that nei-
ther would suffer substantial injustice if their cases
were tried together.
On April 27, 2015, the defendant filed an objection
to the state’s motion for joinder. The defendant argued
that Ebrahimi’s testimony that Armadore had told her,
in the early morning hours of December 23, 2006, that
he had shot someone earlier that morning was hearsay
that would not be admissible in the state’s case against
him if he were tried alone and, thus, that by joining his
case with the state’s case against Armadore, against
whom the statement was admissible as a party admis-
sion, he would be substantially prejudiced. The defen-
dant argued that the only conceivable basis on which
the state could introduce Armadore’s statement to
Ebrahimi against him would be pursuant to the cocon-
spirator exception to the hearsay rule, but because the
conspiracy charge against him had been dismissed, the
statement could not properly be admitted on that basis.
The court heard argument on the state’s motion for
joinder on May 18, 2015. On October 6, 2015, the court
orally granted the motion, explaining its ruling as fol-
lows: ‘‘The court finds that joinder of the cases will
clearly advance judicial economy in this case. Virtually
all of the witnesses called in one trial would be called
in the trial of the other. The physical and the scientific
evidence would also be virtually identical. Moreover,
joinder would not substantially prejudice the rights of
the defendants. Based on the court’s review of the state-
ments of the defendants as set forth by the state in
its memorandum, it appears that the defenses are not
irreconcilable or antagonistic. Both have admitted
being with the other on the night in question, and the
statements of each do not implicate the other.’’ The
court thus found that a joint trial would not be unfairly
prejudicial, and so it granted the state’s motion for
joinder.
On appeal, the defendant claims, as he did at trial, that
the joinder of his case with Armadore’s was improper
because Ebrahimi’s testimony about Armadore’s admis-
sion to her that he had shot someone on the evening
of Thomas’ killing was not admissible against him under
the coconspirator exception to the hearsay rule, and
thus that its introduction and use against him in his
joint trial with Armadore caused him unfair prejudice.
We are not persuaded.
Practice Book § 41-19 provides that ‘‘[t]he judicial
authority may, upon its own motion or the motion of
any party, order that two or more informations, whether
against the same defendant or different defendants, be
tried together.’’ The paramount concern in ordering a
joint trial is whether the defendant’s right to a fair trial
will be impaired. ‘‘The argument for joinder is most
persuasive when the offenses are based upon the same
act or criminal transaction, since it seems unduly ineffi-
cient to require the state to resolve the same issues at
numerous trials. . . . In contrast, when the cases are
not of the same character, the argument for joinder is
far less compelling because the state must prove each
offense with separate evidence and witnesses [thus]
eliminat[ing] any real savings in time or efficiency which
might otherwise be provided by a single trial.’’ (Internal
quotation marks omitted.) State v. LaFleur, 307 Conn.
115, 157, 51 A.3d 1048 (2012). ‘‘A joint trial expedites
the administration of justice, reduces the congestion of
trial dockets, conserves judicial time, lessens the bur-
den upon citizens who must sacrifice both time and
money to serve upon juries, and avoids the necessity
of recalling witnesses who would otherwise be called to
testify only once.’’ (Internal quotation marks omitted.)
State v. Madore, 96 Conn. App. 235, 240, 899 A.2d 721,
cert. denied, 280 Conn. 907, 907 A.2d 92 (2006).
‘‘A separate trial will be ordered where the defenses
of the accused are antagonistic, or evidence will be
introduced against one which will not be admissible
against others, and it clearly appears that a joint trial
will probably be prejudicial to the rights of one or more
of the accused. . . . [T]he phrase prejudicial to the
rights of the [accused] means something more than that
a joint trial will probably be less advantageous to the
accused than separate trials.’’ (Internal quotation marks
omitted.) Id., 239–40.
‘‘[I]t is the defendant’s burden on appeal to show that
joinder was improper by proving substantial prejudice
that could not be cured by the trial court’s instructions
to the jury . . . . [I]n deciding whether to [join infor-
mations] for trial, the trial court enjoys broad discretion,
which, in the absence of manifest abuse, an appellate
court may not disturb.’’ (Citation omitted; internal quo-
tation marks omitted.) State v. Devon D., 321 Conn.
656, 665, 138 A.3d 849 (2016).
In this case, it is undisputed that the state’s cases
against the defendant and Armadore arose from the
same criminal incident—the shooting death of
Thomas—and that virtually all of the state’s testimonial
and documentary evidence at their joint trial, as well
as all of its physical and scientific evidence against the
two defendants, would have been admissible against
either of them had they been tried separately. The defen-
dants’ defenses to the charges against them were not
antagonistic. In fact, they each served as the other’s
principal alibi witness, insisting that they had been
together at Bella Notte in Norwich when Thomas was
shot and killed in New London.
The defendant argued before the trial court, and now
reiterates before us, that Armadore’s statement to
Ebrahimi about shooting someone on the evening of
Thomas’ shooting could only have been admitted into
evidence against him if it qualified for admission under
the coconspirator exception to the hearsay rule. He
insists, however, that that exception did not apply in
this case because, by the time the joint trial began, the
conspiracy charges against him and Armadore had been
dismissed. The defendant asserted no other evidentiary
basis for excluding Armadore’s admission to Ebrahimi,
and in fact conceded that it could have been admitted
against him under the coconspirator exception had his
conspiracy charge still been pending at the time.5
The defendant’s argument that joinder of his case
and Armadore’s for trial was improper must be rejected
because the central premise on which that argument
rests, which is that in the absence of a pending charge
of conspiracy, Armadore’s admission to Ebrahimi was
not admissible against the defendant under the cocon-
spirator exception to the hearsay rule, is completely
unfounded as a matter of law. At all times relevant to
this case, the coconspirator exception to the hearsay
rule has been codified in § 8-3 of the Connecticut Code
of Evidence (2008), which provides in relevant part:
‘‘The following are not excluded by the hearsay rule,
even though the declarant is available as a witness: (1)
Statement by a party opponent. A statement that is
being offered against a party and is . . . (D) a state-
ment by a coconspirator of a party while the conspiracy
is ongoing and in furtherance of the conspiracy . . . .’’
So phrased, the rule lists no requirement that limits
its application to criminal cases involving charges of
conspiracy. To the contrary, consistent with Connecti-
cut’s pre-code case law which the Code of Evidence
was designed to adopt and codify, the rule’s official
commentary expressly explains the rule’s scope: ‘‘(1)
Statement by party opponent. Sections 8-3 (1) sets forth
six categories of party opponent admissions that were
excepted from the hearsay rule at common law . . . .
(D) The fourth category encompasses the hearsay
exception for statements of coconspirators. . . . The
exception is applicable in civil and criminal cases alike.
See Cooke v. Weed, 90 Conn. 544, 548, 97 A. 765 (1916).’’
Conn. Code Evid. (2008) § 8-3 (1), commentary.
In light of such controlling authority, it is apparent
that Connecticut follows the general American rule as
to the applicability of the coconspirator exception to
the hearsay rule in cases where no formal charge of
conspiracy has been made. That rule has been aptly
summarized as follows: ‘‘A conspiracy need not be for-
mally charged for coconspirator statements to be
admissible if a conspiracy in fact exists. Likewise, the
declarant need not be charged, and acquittal of conspir-
acy charges does not preclude use of his or her state-
ment. The evidence is similarly admissible in civil cases,
where the conspiracy rule applies to tortfeasors acting
in concert.’’ (Footnotes omitted.) 2 K. Broun, McCor-
mick on Evidence (7th Ed. 2013) § 259, pp. 294–95.
Accordingly, because the defendant presented no other
basis for claiming that his case should not have been
joined with Armadore’s case for trial, we conclude that
the trial court committed no error in ordering joinder
in this case.
II
The defendant next claims that the court erred in
admitting the testimony of the state’s firearms exam-
iner, James Stephenson, because Stephenson’s opinions
regarding the firearms evidence in this case were assert-
edly based on the findings and conclusions of the pri-
mary examiner of the evidence in this case, Gerald
Petillo, who died before trial. The defendant claims
that Stephenson did not conduct ‘‘a true independent
examination’’ of the evidence, but, rather, in formulat-
ing his conclusions, he relied on Petillo’s findings and
conclusions. The defendant argues that because Ste-
phenson’s testimony was based on Petillo’s findings
and conclusions, and Petillo was unavailable for cross-
examination, Petillo’s findings and conclusions consti-
tuted testimonial hearsay, and the admission of evi-
dence on the basis of that hearsay, specifically,
Stephenson’s testimony, violated his constitutional
right to confrontation. We disagree.
In Crawford v. Washington, 541 U.S. 36, 124 S. Ct.
1354, 158 L. Ed. 2d 177 (2004), the United States
Supreme Court held that testimonial hearsay is admissi-
ble against a criminal defendant at trial only if the defen-
dant had a prior opportunity for cross-examination and
the witness is unavailable to testify at trial. Id., 68. The
United States Supreme Court’s subsequent decisions in
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.
Ct. 2527, 174 L. Ed. 2d 314 (2009), and Bullcoming v.
New Mexico, 564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed.
2d 610 (2011), extended the holding in Crawford to
apply the confrontation clause in the specific context
of scientific evidence.
In Melendez-Diaz, the court held that certificates
signed and sworn to by state forensics analysts, which
set forth laboratory results of drug tests that were done
by those analysts and which were admitted into evi-
dence in lieu of live testimony from the analysts them-
selves, were testimonial within the meaning of
Crawford, and thus that they were improperly admitted
because the defendant did not have an opportunity to
cross-examine those analysts. Melendez-Diaz v. Massa-
chusetts, supra, 557 U.S. 311.
In Bullcoming, the court held that the confrontation
clause does not permit the prosecution to introduce
a forensic laboratory report containing a testimonial
statement by an analyst, certifying to the results of a
blood alcohol concentration test he performed, through
the in-court testimony of another scientist ‘‘who did not
sign the certification or perform or observe the test
reported in the certification.’’ Bullcoming v. New Mex-
ico, supra, 564 U.S. 652. In short, an accused has the
right ‘‘to be confronted with the analyst who made the
certification, unless that analyst is unavailable at trial,
and the accused had an opportunity, pretrial, to cross-
examine that particular scientist.’’ Id.
Thus, in Crawford, Melendez-Diaz, and Bullcoming,
the trial court’s violation of the defendant’s confronta-
tion rights occurred because certain inculpatory state-
ments were admitted that were testimonial in nature
and were made against the defendant by an individual
who was not subject to cross-examination. See State
v. Buckland, 313 Conn. 205, 215–16, 96 A.3d 1163 (2014),
cert. denied, U.S. , 135 S. Ct. 992, 190 L. Ed.
2d 837 (2015). Those circumstances are not present in
this case.
Here, the defendant and Armadore filed a joint
motion in limine to preclude Stephenson’s testimony
on the ground that his testimony would not be based
on his own independent examination of the firearms
evidence in this case, but, rather, would be based on
the examination of that evidence by Petillo, who was
not available for cross-examination by the defendant,
and thus that his constitutional right to confrontation
would be violated if Stephenson were permitted to so
testify. The court held a hearing outside of the presence
of the jury on the defendants’ motion to preclude Ste-
phenson’s testimony. Stephenson testified that when
firearms comparisons are made, the technical reviewer
would ‘‘go in, using the comparison microscope, look
at the comparisons himself to make a determination as
to whether the conclusions were correct that were
going to be issued in the report.’’ The technical reviewer
would make an independent determination concerning
the comparisons that were made. Stephenson acted as
the technical reviewer of Petillo’s conclusions in this
case. In that capacity, Stephenson examined the fire-
arms evidence himself and formulated his own opinions
as to the evidence he was examining. In this case, Petillo
had performed various tests on the firearms evidence
that had been collected and authored a report con-
taining his findings and analysis. Stephenson physically
examined the cartridge cases in this case and in the
incident on December 3, 2006. He did not merely verify
what Petillo had concluded, but came to his own conclu-
sions on the basis of his examination of the evidence
before him.
The trial court concluded that ‘‘this case is in stark
contrast to [Melendez-Diaz and Bullcoming]. This is
not a situation in which the state attempts to elicit
testimony from the deceased examiner. . . . [Stephen-
son] conducted his own independent examination and
reached his own independent conclusions. He is clearly
entitled to testify as to those findings because he is
available and he made conclusions and he will be cross-
examined.’’ On that basis, the court concluded that Ste-
phenson’s testimony was admissible. We agree.
Here, the only inculpatory conclusions or statements
regarding the firearms evidence that were presented to
the jury were made by Stephenson in court. Stephenson
did not rely on Petillo’s report in formulating his own
conclusions, nor was Petillo’s report admitted into evi-
dence. Although Stephenson reviewed Petillo’s report,
he conducted his own physical examination of the evi-
dence in this case and came to his own conclusions,
which happened to be consistent with Petillo’s conclu-
sions. The defendant cross-examined Stephenson
extensively. Because the defendant was afforded a full
opportunity to confront Stephenson regarding his
examination of, and conclusions regarding, the firearms
evidence in this case, his claim that he was denied his
constitutional right to confrontation is without merit.
III
The defendant also claims that the court erred in
denying his request for a limiting instruction to the
jury regarding Stephenson’s testimony. Specifically, the
defendant claims that a ‘‘limiting instruction was neces-
sary given the problems with firearms identification.’’
In response, the state contends that the court’s general
instruction on expert testimony was sufficient to guide
the jury in its assessment of Stephenson’s testimony.
We agree with the state.6
‘‘We review nonconstitutional claims of instructional
error under the following standard. 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. . . . If a requested charge is
in substance given, the [trial] court’s failure to give a
charge in exact conformance with the words of the
request will not constitute a ground for reversal. . . .
As 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. . . .
A challenge to the validity of jury instructions presents
a question of law over which this court has plenary
review.’’ (Citation omitted; internal quotation marks
omitted.) State v. Crosby, 182 Conn. App. 373, 410–11,
A.3d (2018).
Here, the defendant filed a written request for a lim-
iting instruction regarding Stephenson’s testimony ‘‘to
ensure the jury retains its fact-finding function and does
not place undue weight on the conclusions expressed
by the forensic firearm examiner.’’ The defendant asked
that the jury be instructed as follows: ‘‘You are also
to consider each expert witness’ general credibility in
accordance with the instruction on credibility applica-
ble to all witnesses.
‘‘Amongst the expert witness testimony you heard
in this case was the testimony of a forensic firearm
examiner, James Stephenson. Mr. Stephenson
expressed various opinions about certain bullet casing
and projectile evidence in this case. Please understand
that Mr. Stephenson’s opinions in this case are not to
be treated by you as scientifically definitive. By that I
mean that the probability of his opinion being correct
is for you, and you alone, to determine. Your determina-
tion of that issue should be guided by the principles that
apply to weighing the testimony of any expert witness,
including the witness’ general credibility.’’
The trial court declined to give the instruction
requested by the defendant, explaining: ‘‘In regard to
the request to charge regarding expert testimony, I do
believe that the charge that I have included in my pro-
posal does, in fact, convey all of the appropriate infor-
mation that’s requested by [defense counsel] in his
request to charge, and I do not intend to alter it in
order to adopt the specific language that is suggested
by [him].’’
The court thereafter instructed the jury concerning
expert testimony as follows: ‘‘In this case, certain wit-
nesses have taken the [witness] stand, given their quali-
fications and testified as expert witnesses. A person is
qualified to testify as an expert if he or she has special
knowledge, skill, experience, training or education suf-
ficient to qualify him or her as an expert on the subject
to which the testimony relates. An expert is permitted
not only to testify to facts that he or she personally
observed, but also to state an opinion about certain
circumstances. This is allowed because an expert, from
experience, research and study, [is] supposed to have
a particular knowledge on the subject of the inquiry
and be more capable than a layperson of drawing con-
clusions from facts and basing his or her opinion
upon them.
‘‘Such testimony is presented to you to assist you in
your deliberations. No such testimony is binding upon
you, however, and you may disregard such testimony
either in whole or in part. It is for you to consider the
testimony with the other circumstances in the case, and
using your best judgment, determine whether you will
give any weight to it, and, if so, what weight you will
give to it. The testimony is entitled to such weight as
you find the expert’s qualifications in his or her field
entitle it to receive, and it must be considered by you,
but it is not controlling upon your judgment.’’
A comparison of the defendant’s requested instruc-
tion with the instruction given to the jury reveals that
they are substantially similar. The court properly
instructed the jury as to its exclusive role in assessing
the credibility of expert witnesses and determining the
weight to be given to expert testimony. Although the
court declined to highlight Stephenson’s testimony spe-
cifically, as requested by the defendant, there was no
substantive difference between the substance of the
defendant’s requested instruction and the instruction
given by the court. Because the court’s instructions
were correct in law, adapted to the issues and sufficient
to guide the jury, we cannot conclude that they were
improper.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also claims that the court erred when it admitted testimony
and documentary evidence of cell phone data, absent any objection by the
defendant or Armadore, without qualifying the witness as an expert or
holding a hearing pursuant to State v. Porter, 241 Conn. 57, 698 A.2d 739
(1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998),
to determine its reliability. Because this claim is evidentiary in nature, and
the defendant failed to preserve it at trial, we decline to review it. See State
v. Turner, 181 Conn. App. 535, 549–55, 187 A.3d 454 (2018).
2
The defendant and Armadore claimed that they had been at Bella Notte
when Thomas was shot and killed in New London.
3
Armadore also has challenged his conviction in a separate appeal.
4
The defendant also claims that the court erred in failing to sever the
two cases as the trial progressed and that the spillover effect of the evidence
clearly prejudiced him. The defendant did not object to any of the evidence
that he now claims prejudiced him, nor did he request a limiting instruction
regarding that evidence. His claim in this regard is therefore not preserved
and we decline to review it.
5
In his objection to the state’s motion for joinder, the defendant conceded,
for purposes of its objection, that ‘‘the state will be able to show that
Armadore’s statement was made (1) while the conspiracy was ongoing and
(2) in furtherance of the conspiracy.’’ The defendant also ‘‘assumes that the
state will also have made the threshold showing of the existence of a
conspiracy in order that this statement [may] be properly offered, let
alone admitted.’’
6
The defendant asks this court to exercise its supervisory authority over
the administration of justice to create a rule requiring trial courts to give a
cautionary instruction warning juries that firearms identification testimony
is not scientifically definitive. He argues: ‘‘Given that jurors often give undue
reliance on expert opinions [on firearms identification], an instruction is
necessary to protect future defendants against the risk of wrongful con-
victions.’’
‘‘The exercise of our supervisory powers is an extraordinary remedy to
be invoked only when circumstances are such that the issue at hand, while
not rising to the level of a constitutional violation, is nonetheless of utmost
seriousness, not only for the integrity of a particular trial but also for the
perceived fairness of the judicial system as a whole.’’ (Internal quotation
marks omitted.) State v. Elson, 311 Conn. 726, 765, 91 A.3d 862 (2014). We are
unpersuaded that the issue at hand calls for such an extraordinary remedy.