State v. Watson ( 2020 )

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STATE OF CONNECTICUT v. SEMMION WATSON
(AC 41563)
DiPentima, C. J., and Bright and Lavery, Js.
Syllabus
Convicted, following a trial before a three judge panel, of the crime of
murder and, following a trial to the court, of the crime of sale of narcotics,
the defendant appealed to this court. The defendant’s conviction
stemmed from an incident in which he sold crack cocaine to the victim,
who later refused to leave the defendant’s home. Thereafter, the defen-
dant engaged in a physical altercation with the victim and stabbed him
fifty-one times, resulting in the victim’s death. On appeal, the defendant
claimed, inter alia, that the state failed to disprove his defenses of self-
defense and defense of premises beyond a reasonable doubt. Held:
1. The panel properly concluded that the state presented sufficient evidence
to meet its burden of disproving the defendant’s claims of self-defense
and defense of premises beyond a reasonable doubt: the defendant’s
claim that he experienced a blackout following his physical altercation
with the victim was inconsistent with his statement to the police, which
included multiple details of events that he alleged happened after he
claimed to have blacked out, his statement to the police included other
irregularities regarding what occurred following the stabbing, the nature
and extent of both the victim’s and the defendant’s wounds did not
support the defendant’s self-defense narrative, and the defendant’s
actions following the stabbing, in which he acknowledged that the victim
lay on the floor bleeding significantly but failed to seek medical assis-
tance, changed his clothes upon leaving his apartment and purposefully
avoided his apartment and the police for thirty-six hours following the
stabbing, belied an actual belief on the defendant’s part that he was
acting in self-defense; furthermore, the panel was not obligated to accept
as credible the defendant’s evidence or version of events, and the evi-
dence supported the panel’s findings that the defendant did not believe
that the victim was using or about to use deadly physical force or
that deadly physical force was necessary to prevent the victim from
committing a crime of violence.
2. The defendant could not prevail on his claim that the trial court improperly
precluded the testimony of his expert witness: the expert’s proffered
opinion that an individual in a stressful situation may overreact consti-
tuted knowledge that was common to the average person and, thus, did
not require expert testimony, and the defendant’s claim that the court
improperly subjected the expert’s proffered opinions on certain physio-
logical effects and blackouts caused by stressful situations to the stan-
dard set forth in State v. Porter (241 Conn. 57) for the admissibility of
scientific evidence was unavailing, as the proffered expert’s testimony
was premised on scientific studies and, thus, needed to be evaluated
pursuant to the threshold admissibility standard set forth in Porter;
accordingly, the trial court did not abuse its discretion in subjecting the
two proffered opinions to a Porter analysis.
Argued September 18, 2019—officially released January 21, 2020
Procedural History
Substitute information charging the defendant with
the crimes of murder, sale of narcotics and tampering
with physical evidence, brought to the Superior Court
in the judicial district of New Haven, where the murder
charge was tried to a three judge panel, Alander,
O’Keefe and Cradle, Js., and the remaining two charges
were tried to the court, Alander, J.; subsequently, the
court, Alander, J., granted the defendant’s motion for
a judgment of acquittal with respect to the tampering
with physical evidence charge and the court, Alander,
O’Keefe and Cradle, Js., denied the defendant’s motion
with respect to the murder charge; judgment of guilty,
from which the defendant appealed. Affirmed.
Peter G. Billings, for the appellant (defendant).
Margaret Gaffney Radionovas, senior assistant
state’s attorney, with whom, on the brief, were Patrick
J. Griffin, state’s attorney, and Seth R. Garbasky, senior
assistant state’s attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Semmion Watson,
appeals from the judgment of conviction of murder in
violation of General Statutes § 53a-54a (a) and sale of
narcotics in violation of General Statutes § 21a-278 (b),
rendered after a trial to the court. On appeal, the defen-
dant claims that (1) the state failed to disprove his self
and premises defenses beyond a reasonable doubt and
(2) the court improperly precluded the testimony of a
defense witness. We disagree and, accordingly, affirm
the judgment of conviction.
The trial court set forth the following facts in its
memorandum of decision that are relevant to our deci-
sion. On October 5, 2013, the victim, Anthony Steven-
son, entered the defendant’s New Haven apartment to
purchase crack cocaine. After ingesting the drug in the
apartment, the victim refused the defendant’s request
that he depart. After the defendant grabbed the victim
in an effort to force him to leave the apartment, the
two struggled over a knife with a blade of approximately
six inches. Once he gained possession of the knife, the
defendant repeatedly stabbed the victim. The victim
sustained fifty-one stab wounds, including thirty-one in
the back. Fourteen stab wounds penetrated the victim’s
chest and abdominal cavities, causing injuries to his
lungs, liver, spleen and kidney. The defendant exited
the apartment as the victim lay on the floor profusely
bleeding and uttering that he ‘‘was dying.’’ At no point
did the defendant summon medical assistance for the
victim; instead, he ‘‘purposefully did not return to his
apartment or disclose his whereabouts to the police’’
until his arrest approximately thirty-six hours later. The
victim died as a result of the stab wounds.
In a three count information dated August 30, 2016,
the state charged the defendant with murder, sale of
narcotics and tampering with physical evidence in viola-
tion of General Statutes § 53a-155 (a) (1). The defendant
elected a court trial before a three judge panel, Alander,
O’Keefe and Cradle, Js. (panel), on the murder charge,
and a court trial before Judge Alander, the presiding
judge of the panel, on the remaining two charges.1 At
the conclusion of the state’s case, the defendant filed
a motion for a judgment of acquittal as to the murder
and tampering with physical evidence charges. The
panel denied the defendant’s motion for a judgment of
acquittal as to the murder charge, and Judge Alander
granted the defendant’s motion with respect to the tam-
pering with physical evidence charge.
On September 29, 2016, the panel found the defendant
guilty of murder. Specifically, the panel unanimously
concluded that the defendant had stabbed the victim
on the evening of October 5, 2013, causing his death. The
panel found that ‘‘[t]he sheer number of stab wounds—
fifty-one—is powerful evidence that the defendant
intended to cause the death of the [victim]. Also telling
is the depth of those wounds—as much as six inches—
and the force needed to inflict them. Finally, the defen-
dant’s failure to render or seek medical assistance to
the obviously dying [victim] reflects an intent to cause
his death.’’
The panel further concluded that the state had dis-
proved, beyond a reasonable doubt, the defendant’s
claims of defense of self; see General Statutes § 53a-
19; and defense of premises. See General Statutes § 53a-
20. Specifically, it found that ‘‘the defendant did not
actually believe that [the victim] was using or about to
use deadly physical force, or inflicting or about to inflict
great bodily harm and that the defendant did not actu-
ally believe deadly physical force was necessary to pre-
vent an attempt by [the victim] to commit a crime of
violence. We simply do not believe the defendant’s
assertions that [the victim] first came at him with a
knife and that he used deadly physical force to defend
himself and his premises.’’
Judge Alander found the defendant guilty of sale of
narcotics. On December 1, 2016, the panel sentenced
the defendant to forty-five years of incarceration on the
murder count and Judge Alander imposed a ten year
concurrent sentence on the sale of narcotics count, for
a total effective sentence of forty-five years of incarcera-
tion. This appeal followed. Additional facts will be set
forth as necessary.
I
The defendant first claims that the state failed to
disprove his self and premises defenses beyond a rea-
sonable doubt. Specifically, he argues that the panel
erred in concluding that the state had met its burden
of disproving these justification defenses, as its decision
was unsupported by the evidence and drew unreason-
able inferences. We are not persuaded.
We begin with our standard of review and the relevant
legal principles. ‘‘On appeal, the standard for reviewing
sufficiency claims in conjunction with a justification
offered by the defense is the same standard used when
examining claims of insufficiency of the evidence. . . .
In reviewing a sufficiency of the evidence claim, we
apply a two part test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [fact finder] reasonably could have concluded that
the cumulative force of the evidence established guilt
beyond a reasonable doubt . . . . This court cannot
substitute its own judgment for that of the [fact finder] if
there is sufficient evidence to support the [fact finder’s]
verdict . . . . We ask . . . whether there is a reason-
able view of the evidence that supports the [fact find-
er’s] verdict of guilty. . . .
‘‘The rules governing the respective burdens borne
by the defendant and the state on the justification of
self-defense [and defense of premises] are grounded in
the fact that [u]nder our Penal Code, self-defense, as
defined in . . . § 53a-19 (a) . . . is a defense, rather
than an affirmative defense. See General Statutes § 53a-
16. Whereas an affirmative defense requires the defen-
dant to establish his claim by a preponderance of the
evidence, a properly raised defense places the burden
on the state to disprove the defendant’s claim beyond
a reasonable doubt. See General Statutes § 53a-12. Con-
sequently, a defendant has no burden of persuasion for
a claim of self-defense [or defense of premises]; he
has only a burden of production. That is, he merely is
required to introduce sufficient evidence to warrant
presenting his claim of self-defense [or defense of prem-
ises] to the [fact finder]. . . . Once the defendant has
done so, it becomes the state’s burden to disprove the
defense beyond a reasonable doubt.’’ (Citation omitted;
emphasis omitted; internal quotation marks omitted.)
State v. Alicea, 191 Conn. App. 421, 446–47, 215 A.3d
184, cert. granted on other grounds, 333 Conn. 937, 219
A.3d 373 (2019); State v. Nicholson, 155 Conn. App. 499,
505–506, 109 A.3d 1010, cert. denied, 316 Conn. 913,
111 A.3d 884 (2015); see also State v. Grasso, 189 Conn.
App. 186, 198–201, 207 A.3d 33, cert. denied, 331 Conn.
928, 207 A.3d 519 (2019).2
Next, we set forth the substantive principles with
respect to the defendant’s claims of self-defense and
defense of premises. Regarding the claim of self-
defense, ‘‘[u]nder § 53a-19 (a), a person may justifiably
use deadly physical force in self-defense only if he rea-
sonably believes both that (1) his attacker is using or
about to use deadly physical force against him, or is
inflicting or about to inflict great bodily harm, and (2)
that deadly physical force is necessary to repel such
attack. . . . We repeatedly have indicated that the test
a [fact finder] must apply in analyzing the second
requirement, i.e., that the defendant reasonably
believed that deadly force, as opposed to some lesser
degree of force, was necessary to repel the victim’s
alleged attack, is a subjective-objective one. The [fact
finder] must view the situation from the perspective of
the defendant. Section 53a-19 (a) requires, however,
that the defendant’s belief ultimately must be found
to be reasonable.’’ (Internal quotation marks omitted.)
State v. Revels, 313 Conn. 762, 779, 99 A.3d 1130 (2014),
cert. denied, 574 U.S. 1177, 135 S. Ct. 1451, 191 L. Ed.
2d 404 (2015); see also State v. Terry, 161 Conn. App.
797, 805–807, 128 A.3d 958 (2015), cert. denied, 320
Conn. 916, 131 A.3d 751 (2016).3
Regarding the claim of defense of premises, § 53a-20
provides in relevant part: ‘‘A person in possession or
control of premises, or a person who is licensed or
privileged to be in or upon such premises, is justified
in using reasonable physical force upon another person
when and to the extent that he reasonably believes such
to be necessary to prevent or terminate the commission
or attempted commission of a criminal trespass by such
other person in or upon such premises; but he may use
deadly physical force under such circumstances only
(1) in defense of a person as prescribed in section
53a-19, or (2) when he reasonably believes such to be
necessary to prevent an attempt by the trespasser to
commit arson or any crime of violence . . . .’’ (Empha-
sis added.) See also State v. Terwilliger, 294 Conn. 399,
409, 984 A.2d 721 (2009); State v. Nicholson, supra, 155
Conn. App. 506–507.
We begin our analysis by setting forth the defendant’s
theory of self-defense and defense of premises. See,
e.g., State v. Revels, supra, 313 Conn. 779; State v.
Grasso, supra, 189 Conn. App. 198. The defendant did
not testify at trial. Instead, defense counsel used the
video recording and transcript of the defendant’s Octo-
ber 7, 2013 interview with the police, both of which were
admitted into evidence, to establish the justification
defenses. In that interview, the defendant admitted that
he had sold $60 of crack cocaine to the victim, and
allowed him to ingest the drug in his apartment. The
victim asked for more crack cocaine, and the defendant
responded by demanding additional payment. The vic-
tim failed to tender any further payment. The defendant
then instructed the victim to leave, but the victim
refused, stating: ‘‘I ain’t going nowhere.’’ The defendant
attempted to grab the victim, at which point the victim
brandished a silver pocketknife. The victim then
stabbed the defendant in the knee twice and cut his
finger. The defendant attempted to leave, but the victim
blocked the only means of egress. At this point, the
defendant claimed to have ‘‘blacked out.’’
Upon further questioning, the defendant provided
additional details, despite his blackout claim. Specifi-
cally, the defendant stated that after he had been
stabbed in the knee, the two combatants separated and
he told the victim: ‘‘Yo, you got to go.’’ The victim
responded: ‘‘You’re not going nowhere.’’ The two men
then resumed their physical struggle, and the defendant
caused the victim to drop the knife. The knife fell onto
a dresser, and the defendant picked it up. The defendant
then reasserted his claim of a blackout. He could not
recall stabbing the victim, only that he got out the door.
The defendant did remember that the victim’s head was
near the bedroom and his feet near the kitchen. The
victim stated that he was dying. The defendant
responded that he was leaving and that the whole alter-
cation could have been avoided. Contradicting his previ-
ous statement, the defendant indicated that he knew
he had stabbed the victim, who bled ‘‘a lot.’’
Despite his two prior blackout claims, the defendant
further explained that he left the apartment and
obtained a change of clothes from an unidentified
female. Approximately thirty-six hours later, while sit-
ting in a park and speaking to his former wife on the
phone, the defendant ‘‘flagged down’’ a police officer
and stated that he was ‘‘the guy you’re looking for.’’
Near the end of the interview, the defendant expressed
surprise when told that the victim had sustained approx-
imately fifty stab wounds.
Next, we consider the evidence before the panel,
viewed in a light most consistent with the panel’s ver-
dict. The panel ‘‘conclude[d] that the state [had] proved
beyond a reasonable doubt that the defendant did not
actually believe that [the victim] was using or about to
use deadly physical force, or inflicting or about to inflict
great bodily harm and that the defendant did not actu-
ally believe deadly physical force was necessary to pre-
vent an attempt by [the victim] to commit a crime of
violence. We simply do not believe the defendant’s
assertions that [the victim] first came at him with a
knife and that he used deadly physical force to defend
himself and his premises.’’ In support of this conclusion,
the panel pointed to the defendant’s inconsistent state-
ments regarding the events that he could and could not
recall as a result of his purported blackout. The panel
found the defendant’s claim of a blackout to be ‘‘selec-
tive and self-serving’’ because it allowed him ‘‘to avoid
explaining the nature of the struggle, if any, with [the
victim] once the defendant attains possession of the
knife [and, most] tellingly, it frees him from having to
explain why it was necessary to stab [the victim] fifty-
one times, including thirty-one times in the back.’’
The panel highlighted other irregularities with the
defendant’s statement to the police. For example, the
defendant had stated that he dropped the knife on the
sidewalk in front of his apartment building, but no
weapon was located by the police. The defendant also
provided vague and incomplete statements regarding
(1) where he went after the stabbing and during the
approximately thirty-six hour time period between the
stabbing and his arrest and (2) the details of what hap-
pened to the clothes he wore during the stabbing and
how he obtained a change of clothes.
The panel further noted that ‘‘[t]he nature and extent
of the wounds, both the [victim’s] and the defendant’s,
do not support the defendant’s self-defense narrative.’’
Specifically, it iterated that the victim had suffered fifty-
one stab wounds, with thirty-one being in the back.
This evidence, coupled with the minimal blood stains
on the victim’s shoes, support the finding that victim
was lying on the floor while the defendant stabbed
him from above. The panel also found that the lack of
extensive defensive wounds on the defendant did not
support the ‘‘claim of a long struggle necessitating fifty-
one thrusts of a knife.’’4 Furthermore, the panel, on the
basis of photographs of the defendant’s injuries and the
testimony of the emergency medical technician and
nurse who treated the defendant following his arrest,
determined that neither the injury to the defendant’s
finger nor his knee could be characterized as a stab
wound.
The panel also relied on evidence of the defendant’s
actions after he stabbed the victim. ‘‘Finally, the defen-
dant’s actions subsequent to the stabbing belie an actual
belief on his part that he acted in self-defense. First,
the defendant knew prior to leaving his apartment that
[the victim] lay on the floor bleeding significantly. He
also heard [the victim] proclaim that he was dying.
At no point, then or later, did the defendant summon
medical assistance for [the victim]. Second, the defen-
dant changed his clothes upon leaving his apartment,
did not retain them and professes not to know where
they might be. Third, the defendant purposefully did
not return to his apartment or disclose his whereabouts
to the police for the thirty-six hours prior to his arrest.
Each of these acts reveals a consciousness on the defen-
dant’s part that he had committed a criminal act and
is inconsistent with his claim that he was merely acting
to protect himself and his premises.’’5
We emphasize that although the state had the burden
of persuading the panel, beyond a reasonable doubt,
that the defendant had not acted in self-defense or in
defense of his premises, the panel was not obligated
to accept, as credible, the defendant’s evidence or ver-
sion of events. State v. Grasso, supra, 189 Conn. App.
211. As the sole arbiter of the credibility of the witnesses
and the weight to be given to specific testimony, the
panel was free to disbelieve any or all of the defendant’s
statement to the police. See State v. Ames, 171 Conn.
App. 486, 501, 157 A.3d 660, cert. denied, 327 Conn. 908,
170 A.3d 679 (2017); see also State v. Pauling, 102 Conn.
App. 556, 572, 925 A.2d 1200 (‘‘[trier of fact] was free
to disbelieve the defendant’s version of the events that
resulted in the injuries to [the victim]’’), cert. denied,
284 Conn. 924, 933 A.2d 727 (2007).
We iterate that a person is justified in using deadly
physical force in self-defense only if he reasonably
believes both that (1) his attacker is using or about to
use deadly physical force against him and (2) deadly
physical force is necessary to repel the attack. State v.
Pranckus, 75 Conn. App. 80, 88, 815 A.2d 678, cert.
denied, 263 Conn. 905, 819 A.2d 840 (2003). Additionally,
the use of deadly physical force is permitted in a defense
of premises situation when the defendant actually
believes it is necessary to prevent arson or an attempted
crime of violence. See General Statutes § 53a-20. In the
present case, the panel reasonably concluded that the
state had presented sufficient evidence to meet its bur-
den of persuasion, and, therefore, the determination of
guilt must be sustained. State v. Ames, supra, 171 Conn.
App. 504; see also State v. Lisboa, 148 Conn. App. 769,
779, 85 A.3d 1244 (2014) (reviewing finding of three
judge panel by construing evidence in light most favor-
able to sustaining verdict and asking whether there is
reasonable view of evidence supporting panel’s verdict
of guilty). Specifically, the panel’s findings that the
defendant did not actually believe that (1) the victim
was using or about to use deadly physical force, or
inflict or about to inflict great bodily harm, or (2) deadly
physical force was necessary to prevent the victim from
committing a crime of violence, are supported by the
evidence. Contrary to the defendant’s appellate argu-
ment, the panel was not bound to accept as true his
statements made during the recorded interview with
the police. Accordingly, the defendant’s sufficiency
claim fails.
II
The defendant next claims that the court improperly
precluded the testimony of a defense expert witness.
Specifically, he argues that the court, Alander, J.,6
abused its discretion in granting the state’s motion in
limine to preclude the expert testimony of Reginald
Allard, and that this ruling violated his sixth amendment
right to present a defense. We conclude that the court
properly granted the state’s motion, and, thus, the
defendant’s constitutional right to present a defense
was not violated.
The following additional facts are necessary for the
resolution of this claim. In March, 2016, defense counsel
notified the state of his intention to offer the expert
testimony of Allard ‘‘concerning the effect of adrenaline
on sensory processing, decision-making, short-term
memory, ‘fight-or-flight’ reactions and related issues as
they regard a claim of self-defense.’’ On August 23, 2016,
the state filed a motion in limine to preclude this testi-
mony. The state argued that Allard, who had worked
as a police officer and police trainer, had no peculiar
knowledge or experience related to the issues at trial,
that any such knowledge or experience he possessed
was ‘‘common to the world’’ and that any testimony
from Allard would not assist the trier of fact. The state
further contended that ‘‘any testimony from . . .
Allard on scientific issues is inadmissible under 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)], because no factors support the reliability of
. . . Allard’s methods and those methods are irrelevant
to the facts involved in the trial.’’ On September 19,
2016, the defendant filed a memorandum in support of
Allard testifying.
The court held a Porter hearing on September 19,
2016. Allard testified that he was the sole member and
chief operating officer of 13th Juror, LLC, an expert
witness and police training consulting business. Prior
to that, Allard had been a New Britain police officer and
a training officer at the Connecticut Police Academy
in the areas of force, restraint and control, shooting
decisions, psychology and abnormal behavior. He
explained that when an individual is faced with a threat,
the adrenal gland, which is located on top of the kidney,
secretes a ‘‘chemical cocktail’’ consisting of adrenaline
and noradrenaline, which cause feelings of fear and
rage, respectively. These chemicals cause a number of
physiological effects, including a distorted perception
of events. Allard specifically noted that, in the context
of a violent attack, an individual with no training in
compensating for these physiological effects would be
more likely to overreact in an effort to end the threat. He
was not able, however, to identify any specific studies
to support this opinion.
During cross-examination by the prosecutor, Allard
could not identify specifically where in his collection
of medical treatises, psychological journals and psychi-
atric articles the term ‘‘chemical cocktail’’ was used.
He acknowledged that he did not have a degree in any
of the medical sciences such as biology, chemistry or
physiology. Allard then indicated that blackouts may
occur in stressful situations,7 but he was unable to point
to any specific scientific studies to support this opinion,
or to identify the frequency of their occurrence. He
testified that whether a particular individual actually
suffered a blackout cannot be verified independently
and is based solely on the self-reporting of that indi-
vidual.
After Allard had completed his testimony, the court
heard argument from the parties. The court asked
defense counsel to identify precisely Allard’s opinions
that he sought to have admitted into evidence at the
trial. Defense counsel stated that Allard would testify
that (1) a person may overreact to a situation due to
stress, (2) the chemical cocktail causes certain physio-
logical effects and (3) a person in a stressful situation
may experience a blackout. At the conclusion of the
hearing, the court issued an oral decision. It began with
a summary of the parties’ arguments. ‘‘The defendant’s
position is that it’s not scientific. The testimony, it’s
not—I guess that it’s just based on [Allard’s] experience
as opposed to any scientific basis. The state’s position
is twofold. To the extent it’s nonscientific, it’s within
a lay person’s or a juror’s experience, and they don’t
need an expert to opine on those matters, and the sec-
ond is, that to the extent it is otherwise, it’s scientific
evidence in which there’s not been the appropriate
support.’’
The court proceeded to address each of Allard’s opin-
ions in turn. As to Allard’s opinion that individuals may
overact in a stressful situation, the court concluded that
‘‘[a] lay person knows that under stress people can—
can overreact to situations. I think that’s within the
realm of the person’s everyday experience. . . . So I
don’t think that is in need of an expert opinion.’’
As to the physiological effects resulting from the
chemical cocktail, the court stated: ‘‘I mean, that’s
clearly scientific. I mean that’s physiological. That’s
medicine. I don’t know how one can claim that that’s
not scientific. And he—he outlined a number of . . .
physiological effects, visual narrowing, auditory exclu-
sions, increased heartrate, decreased breathing, loss of
fine motor skills, flash of white light. But he also indi-
cated that it’s totally based on the self-reporting of
police officers. [There are] . . . no published studies
on this. [Allard’s] not published on it. He’s not aware
of anyone else publishing on it. There’s no known error
rate. The self-reporting hasn’t been analyzed or scruti-
nized to any degree. It’s just accepted as wisdom
because police officers said it occurred. So that’s a
problem.’’
With respect to the third opinion, that blackouts may
occur in response to a stressful situation, the court
again pointed to Allard’s inability to identify any scien-
tific study to support his position. ‘‘Now he testified he
knows of studies but couldn’t identify any. He didn’t
know the methodology used. He said it wasn’t based
on any scientific studies, and he couldn’t identify any
identifiable frequency that they occur. And again, this
is physiological. It’s—it’s medicine.’’ The court further
noted that Allard did not testify that his opinions were
generally accepted in the relevant scientific community.
After considering the other factors set forth in State v.
Porter, supra, 241 Conn. 57, the court precluded Allard
from testifying.
We now turn to the relevant legal principles and our
standard of review.8 ‘‘The trial court’s ruling on eviden-
tiary matters will be overturned only upon a showing
of a clear abuse of the court’s discretion. . . . The trial
court has wide discretion in ruling on the qualification
of expert witnesses and the admissibility of their opin-
ions. . . . The court’s decision is not to be disturbed
unless [its] discretion has been abused, or the error is
clear and involves a misconception of the law. . . .
Generally, expert testimony is admissible if (1) the wit-
ness has a special skill or knowledge directly applicable
to a matter in issue, (2) that skill or knowledge is not
common to the average person, and (3) the testimony
would be helpful to the court or jury in considering the
issues.’’ (Citations omitted; internal quotation marks
omitted.) State v. Iban C., 275 Conn. 624, 634, 881 A.2d
1005 (2005); see also State v. Brett B., 186 Conn. App.
563, 600–601, 200 A.3d 706 (2018), cert. denied, 330
Conn. 961, 199 A.3d 560 (2019); see generally E. Pres-
cott, Tait’s Handbook of Connecticut Evidence (6th Ed.
2019) § 7.3.2, pp. 439–40.
‘‘Beyond these general requirements regarding the
admissibility of expert testimony, [t]here is a further
hurdle to the admissibility of expert testimony when
that testimony is based on . . . scientific [evidence].
In those situations, the scientific evidence that forms
the basis for the expert’s opinion must undergo a valid-
ity assessment to ensure reliability. . . . In Porter, this
court . . . held that scientific evidence should be sub-
jected to a flexible test, with differing factors that are
applied on a case-by-case basis, to determine the relia-
bility of the scientific evidence. . . . Following . . .
Porter . . . scientific evidence, and expert testimony
based thereon, usually is to be evaluated under a thresh-
old admissibility standard assessing the reliability of
the methodology underlying the evidence and whether
the evidence at issue is, in fact, derived from and based
upon that methodology . . . which has been referred
to as the fit requirement.’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) Maher v.
Quest Diagnostics, Inc., 269 Conn. 154, 168, 847 A.2d
978 (2004).
We also note that the defendant has raised both an
evidentiary and a constitutional claim. ‘‘[T]he federal
constitution require[s] that criminal defendants be
afforded a meaningful opportunity to present a com-
plete defense. . . . The sixth amendment . . . [guar-
antees] the right to offer the testimony of witnesses,
and to compel their attendance, if necessary, [and] is
in plain terms the right to present a defense, the right
to present the defendant’s version of the facts as well
as the prosecution’s to the jury so that it may decide
where the truth lies. . . . When defense evidence is
excluded, such exclusion may give rise to a claim of
denial of the right to present a defense. . . . A defen-
dant is, however, bound by the rules of evidence in
presenting a defense. . . . Although exclusionary
rules of evidence cannot be applied mechanistically to
deprive a defendant of his rights, the constitution does
not require that a defendant be permitted to present
every piece of evidence he wishes.’’ (Emphasis added;
internal quotation marks omitted.) State v. Sampson,
174 Conn. App. 624, 635, 166 A.3d 1, cert. denied, 327
Conn. 920, 171 A.3d 57 (2017); see also State v. Rogers,
183 Conn. App. 669, 679–80, 193 A.3d 612 (2018). Guided
by these principles, we address each of Allard’s prof-
fered opinions in turn.
A
The defendant first argues that the court improperly
precluded Allard from testifying that an individual in a
stressful situation may overreact on the ground that this
opinion constituted knowledge common to the average
person, and therefore expert testimony was unneces-
sary. The state counters that the court did not abuse
its discretion in concluding that this opinion did not
require expert testimony. We agree with the court’s con-
clusion.
During the Porter hearing, Allard testified that an
individual trained in the physiological effects of the
chemical cocktail caused by a stressful situation acts
more appropriately than an untrained person. He
explained that untrained individuals ‘‘are more likely
to overreact . . . because they . . . are not comfort-
able with the fear, and as a consequence they are just
trying to stop the fear anyway they can.’’ Following a
question from the court, Allard conceded that he could
not identify a study to support the position that an
untrained individual generally overreacts to a violent
confrontation.
In concluding that expert testimony was not needed
to present this opinion to the fact finder, the court
stated: ‘‘Everybody knows that. I think that’s what is
governed by the [Appellate Court’s] decision in [State
v. Campbell, 149 Conn. App. 405, 88 A.3d 1258, cert.
denied, 312 Conn. 907, 93 A.3d 157 (2014)]. A lay person
knows that under stress people can—can overreact to
situations. I think that’s within the realm of the person’s
everyday experience. . . . So I don’t think that is in
need to an expert opinion.’’
In State v. Campbell, supra, 149 Conn. App. 408, the
victim struck the defendant’s brother in the head after
a verbal disagreement. The victim then challenged the
defendant to a fight, who responded by shooting the
victim with a pistol. Id., 408–409. On appeal, the defen-
dant claimed, inter alia, that the court improperly had
precluded his expert witness, a psychiatrist, about the
‘‘fight or flight’’ response to the perception of danger.
Id., 427–28. The state agreed with the trial court that
‘‘human reactions to stressful circumstances that give
rise to a fight or flight response are matters that fall
within the common experience of the average juror.’’
Id., 430. In affirming the decision of the trial court, we
stated: ‘‘The proffered testimony . . . was an attempt
to provide expertise on inferences which lay persons
were equally capable of drawing from the evidence. It
is only when an expert witness has a special skill or
knowledge, beyond the ken of the average juror, on the
particular subject at issue that his testimony can be
helpful and, accordingly, should be admitted.’’ (Internal
quotation marks omitted.) Id.
In the present case, we emphasize that ‘‘[i]t is well
settled that [t]he true test of the admissibility of [expert]
testimony is not whether the subject matter is common
or uncommon, or whether many persons or few have
some knowledge of the matter; but it is whether the
witnesses offered as experts have any peculiar knowl-
edge or experience, not common to the world, which
renders their opinions founded on such knowledge or
experience any aid to the court or the jury in determin-
ing the questions at issue.’’ (Emphasis added; internal
quotation marks omitted.) State v. Leniart, 333 Conn.
88, 142, 215 A.3d 1104 (2019). Furthermore, the need
for an expert is determined on a case-by-case basis
and is dependent on whether the issues are sufficiently
complex to warrant the use of expert testimony as an
aid to the court. State v. Buhl, 321 Conn. 688, 700, 138
A.3d 868 (2016). We agree with the court’s conclusion
that the fact that a person may overreact in a stressful
situation is not beyond the ken of the average fact
finder. Accordingly, the court did not abuse its discre-
tion in excluding this portion of Allard’s testimony.
B
The defendant next argues that the court abused its
discretion in preventing Allard from testifying that the
chemical cocktail causes certain physiological effects
and that a person in a stressful situation may experience
a blackout. Specifically, he contends that the court
improperly subjected these two opinions to the Porter
test.9 The state counters that the court correctly deter-
mined that these two opinions needed to satisfy the
Porter standard before they could be admitted into evi-
dence. We agree with the state.
We begin with the relevant legal principles. ‘‘In [State
v. Porter, supra, 241 Conn. 57], [our Supreme Court]
followed the United States Supreme Court’s decision
in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and
held that testimony based on scientific evidence should
be subjected to a flexible test to determine the reliability
of methods used to reach a particular conclusion. . . .
A Porter analysis involves a two part inquiry that
assesses the reliability and relevance of the witness’
methods. . . . First, the party offering the expert testi-
mony must show the expert’s methods for reaching
his conclusion are reliable. . . . Second, the proposed
scientific testimony must be demonstrably relevant to
the facts of the particular case in which it is offered,
and not simply be valid in the abstract. . . . Put
another way, the proponent of scientific evidence must
establish that the specific scientific testimony at issue
is, in fact, derived from and based [on] . . . [scientifi-
cally reliable] methodology.’’ (Internal quotation marks
omitted.) State v. Edwards, 325 Conn. 97, 124, 156 A.3d
506 (2017); see also State v. Montanez, 185 Conn. App.
589, 618–19, 197 A.3d 959 (2018), cert. denied, 332 Conn.
907, 209 A.3d 643 (2019); State v. Campbell, supra, 149
Conn. App. 426–27 (trial court acts as gatekeeper to
ensure fact finder hears only relevant evidence
grounded in scientific fact and not conjecture and spec-
ulation).10
This court has recognized that ‘‘[a]lthough [our
Supreme Court] in Porter explicitly adopted the Daub-
ert test to determine the admissibility of scientific evi-
dence . . . [it] did not explicitly overrule Connecticut
precedent regarding the evidence to which such a test
should apply. Prior to Porter, [our Supreme Court] had
recognized that the Frye [v. United States, 293 F. 1013
(D.C. Cir. 1923)] test for admissibility should not apply
to all expert testimony, but only to that which involves
innovative scientific techniques . . . . In Porter [our
Supreme Court] recognized that Daubert’s vagueness
as to how and when to apply the factors of the test was
necessary. . . . In order to maintain flexibility in
applying the test, [it] did not define what constitutes
scientific evidence.’’ (Internal quotation marks omit-
ted.) State v. Furbush, 131 Conn. App. 733, 754, 27 A.3d
497 (2011); see also State v. Griffin, 273 Conn. 266,
276, 869 A.2d 640 (2005).
In his argument at the Porter hearing, defense counsel
stated that Allard was not offering a scientific opinion.
The court disagreed and, referencing the Porter stan-
dard, indicated that its function was to ensure (1) that
the proffered scientific evidence was predicated on reli-
able scientific methods and procedures and (2) that the
evidence was relevant to the facts of the case. It then
summarized Allard’s opinions regarding the physiologi-
cal effects of the chemical cocktail11 and the blackouts
that may occur during a traumatic event.12 Applying the
Porter standard to these facts, the court determined that
the proffered testimony of Allard was inadmissible.13
On appeal, the defendant argues that the court should
not have conducted a Porter analysis on Allard’s opin-
ions. Specifically, he contends that Allard’s ‘‘testimony
. . . was based on his education, experience and obser-
vations made in the field of use of force situations [and
he did not] seek to diagnose the defendant, nor did
[Allard’s opinions] rely on the results of any scientific
tool or protocol.’’ Simply stated, the defendant contends
that Allard’s proffered opinions regarding the physiolog-
ical effects of the chemical cocktail and the possibility
of a blackout following his encounter with the victim
did not constitute scientific evidence. See, e.g., State v.
Vumback, 68 Conn. App. 313, 329, 791 A.2d 569 (2002),
aff’d, 263 Conn. 215, 819 A.2d 250 (2003). In support,
he relies on State v. Reid, 254 Conn. 540, 757 A.2d 482
(2000), State v. Borrelli, 227 Conn. 153, 629 A.2d 1105
(1993), and State v. Hasan, 205 Conn. 485, 534 A.2d
877 (1987).
In State v. Griffin, supra, 273 Conn. 266, our Supreme
Court recited the analytic framework for determining
whether a Porter analysis is necessary and summarized
its decision in Reid and Hasan. ‘‘[O]ur initial inquiry is
whether the [evidence] at issue . . . is the type of evi-
dence contemplated by Porter. . . . State v. Reid,
supra, 254 Conn. 549, and State v. Hasan, supra, 205
Conn. 490, are useful starting points in our analysis. In
Reid, we concluded that microscopic hair analysis is
not the type of evidence that is subject to a threshold
determination of reliability under Porter. . . . We
explained that, [a]lthough [the expert witness’] training
[was] based in science, he testified about a subject that
simply required the jurors to use their own powers
of observation and comparison. . . . The challenged
evidence in Reid included an enlarged photograph dis-
playing a microscopic image of the defendant’s hair
strand, side-by-side with a hair strand recovered from
the victim’s clothing, and expert testimony explaining
the similarities and particular features of the hair
strands. . . . Because [t]he jurors were free to make
their own determinations as to the weight they would
accord the expert’s testimony in the light of the photo-
graph and their own powers of observation and compar-
ison . . . we concluded that the admissibility of the
challenged evidence was not contingent upon satisfying
the Porter test. . . .
‘‘Similarly, in State v. Hasan, supra, 205 Conn. 490,
[w]e concluded that [a] podiatrist’s testimony [concern-
ing the probability that a pair of sneakers would fit the
defendant’s feet] was not scientific evidence subject to
the Frye test because the podiatrist merely compared
the footwear to the defendant’s feet. . . . Accordingly,
[we determined that] the jury [was] in a position to
weigh the probative value of the testimony without
abandoning common sense and sacrificing independent
judgment to the expert’s assertions based on his special
skill or knowledge. . . . [T]he podiatrist’s testimony
concerned a method, the understanding of which [was]
accessible to the jury . . . and the value of the exper-
tise lay in its assistance to the jury in viewing and
evaluating the evidence. . . . As we recently noted,
Hasan and Reid stand for the proposition that evidence,
even evidence with its roots in scientific principles,
which is within the comprehension of the average juror
and which allows the jury to make its own conclusions
based on its independent powers of observation and
physical comparison, and without heavy reliance
upon the testimony of an expert witness, need not
be considered scientific in nature for the purposes of
evidentiary admissibility.’’ (Citations omitted; empha-
sis added; footnote omitted; internal quotation marks
omitted.) State v. Griffin, supra, 276–78.
In the present case, Allard’s two proffered opinions
regarding the physiological effects of the chemical
cocktail and that a person in a stressful situation may
blackout are inapposite to the facts of Reid and Hasan,
where the jurors were asked to use their independent
powers of observation and physical comparison. Here,
the fact finder would need to rely on the testimony of
Allard with respect to the physiological effects of the
chemical cocktail and a possible blackout. Further, the
fact finder would not be in a position to reach a conclu-
sion with respect to these topics based on its indepen-
dent powers of observation and physical comparison.
Thus, we conclude that the defendant’s reliance on Reid
and Hasan is misplaced.
Additionally, we are not persuaded by the defendant’s
argument based on State v. Borrelli, supra, 227 Conn.
153. In that case, the defendant argued, inter alia, that
expert testimony regarding battered woman’s syn-
drome14 did not meet the test of admissibility of scien-
tific evidence as stated in the then controlling case of
Frye v. United States, supra, 293 F. 1013. State v. Bor-
relli, supra, 162–63. In rejecting that argument, our
Supreme Court relied on the principle that the Frye
test did not apply to all types of expert testimony, even
if scientific concepts are involved. Id., 163.
The expert witness in Frye testified about his obser-
vations, based on his educational background and expe-
rience, regarding a large group of battered women. Id.,
165. ‘‘He did not offer any opinion as to whether [the
victim] was a battered woman or whether she exhibited
the typical behavioral characteristics of a battered
woman. [The expert] did not apply any scientific instru-
ment or test to specific evidence in the case, nor did
he use battered woman’s syndrome as a diagnostic tool.
Finally, he did not apply any scientific test to a hypothet-
ical question posed by the state.’’ Id., 164–65. Instead,
his testimony was focused on characteristics commonly
found in relationships that involve domestic violence
and the behaviors exhibited by an individual experienc-
ing battered women’s syndrome, which include
remaining in a relationship with the abuser, delaying
or failing to report the abuse, minimizing or denying
the harm suffered and reporting the dangerous situation
to the police or a health care provider and then
recanting it at a later date. Id., 168–69.
The present case is distinguishable from Borrelli. The
expert in Borrelli testified about the typical behaviors
of victims of domestic abuse who experienced battered
women’s syndrome. See also State v. Vumback, supra,
68 Conn. App. 330–32 (expert testimony regarding
behaviors of children subjected to sexual abuse may
act under certain circumstances not scientific evidence
subject to Porter). Here, Allard testified about the chem-
istry regarding the secretion of adrenaline and nor-
adrenaline by the adrenal gland and the resulting physi-
ological effects of this chemical cocktail. Relying on a
scientific study, he identified some of these effects as
‘‘the numbing of the—of the brain, the auditory exclu-
sion, the visual narrowing, the fine motor skills that are
lost as a consequence of blood going from the brain.’’
Allard also relied on a psychological study to support his
opinion that the chemical cocktail distorted perception
and long-term memory. During cross-examination,
Allard specifically acknowledged that all of the physio-
logical reactions he had mentioned were based on the
chemistry of the body. He also explained that a blackout
that may occur during a traumatic encounter consti-
tuted a physiological reaction to peak stress. Allard
based this opinion on his research, including experi-
mental and psychological studies.
In contrast to the testimony in Borrelli regarding the
possible behaviors of victims of domestic violence who
suffered from battered women’s syndrome, Allard testi-
fied about the specific chemical and physiological
effects of adrenaline and noradreline on the body when
an individual experiences a stressful event. Allard also
discussed the potential physiological reaction of a
blackout as result of a traumatic or stressful situation.
His testimony was premised on scientific studies. This
specific scientific testimony, distinguishable from the
testimony regarding possible behaviors in Borrelli,
needed to be evaluated pursuant to the threshold admis-
sibility standard set forth in Porter. See, e.g., State v.
West, 274 Conn. 605, 630, 877 A.2d 787, cert. denied,
546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005).
Simply stated, we are not persuaded that these two
proffered opinions fit within the holding of Borrelli.
Accordingly, we conclude that the court did not abuse
its discretion in subjecting these two proffered opinions
to a Porter analysis.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 54-82 provides in relevant part: ‘‘(a) In any criminal
case, prosecution or proceeding, the accused may, if the accused so elects
when called upon to plead, be tried by the court instead of by the jury; and,
in such case, the court shall have jurisdiction to hear and try such case and
render judgment and sentence thereon.
‘‘(b) If the accused is charged with a crime punishable by death, life
imprisonment without the possibility of release or life imprisonment and
elects to be tried by the court, the court shall be composed of three judges
to be designated by the Chief Court Administrator, or the Chief Court Admin-
istrator’s designee, who shall name one such judge to preside over the trial.
Such judges, or a majority of them, shall have power to decide all questions
of law and fact arising upon the trial and render judgment accordingly. . . .’’
2
Our review of a claim of insufficient evidence is the same whether the
trier of fact is a judge, a jury, or a panel of judges. State v. D’Antuono, 186
Conn. 414, 421, 441 A.2d 846 (1982); see also State v. Bennett, 307 Conn.
758, 763, 59 A.3d 221 (2013).
3
The panel found, and the defendant does not dispute, that the defendant
used deadly physical force, as evidenced by the use of a knife with a six
inch blade and the nature and number of wounds sustained by the victim.
See, e.g., General Statutes § 53a-3 (5) (defining ‘‘deadly physical force’’ as
‘‘physical force which can be reasonably expected to cause death or serious
physical injury’’).
4
See, e.g., State v. Riggsbee, 112 Conn. App. 787, 795, 963 A.2d 1122 (2009)
(evidence that victim suffered numerous wounds while defendant ‘‘had no
marks on his person’’ supported finding that state had disproved self-defense
beyond reasonable doubt).
5
See, e.g., State v. Delgado, 13 Conn. App. 139, 143, 535 A.2d 371 (1987)
(evidence of flight introduced into evidence to show that defendant had
believed what he had done was not act of self-defense and such evidence,
while not absolute proof of guilt, was sufficient to allow trier of fact to infer
consciousness of guilt).
6
The parties agreed that Judge Alander alone should determine whether
to preclude Allard from testifying at trial.
7
Specifically, Allard testified that blackouts can occur following a trau-
matic event and are ‘‘a physiological response to the peak stress that the
individual encounters . . . .’’ He further indicated that this opinion was
based on his research, including psychological and experimental studies,
but he was unable to identify these studies specifically.
8
In State v. Griffin, 273 Conn. 266, 280–81, 869 A.2d 640 (2005), our
Supreme Court specifically stated that the same standard of determining
the admissibility of scientific evidence applies to cases tried before a court
as those tried before a jury.
9
In this appeal, the defendant does not argue that the court erred in its
Porter analysis, only that it was not subject to the Porter threshold test for
scientific evidence.
10
In State v. Maner, Superior Court, judicial district of Waterbury, Docket
No. CR-XX-XXXXXXX (July 19, 2011), the court identified the four situations
when expert testimony of innovative scientific techniques is not subject to
a Porter analysis. ‘‘The first occurs when established techniques [are] applied
to the solution of novel problems. . . . The second situation is when the
scientific principles have become so well established that an explicit Daubert
analysis is not necessary for admission of evidence thereunder. . . . The
third situation is when the evidence simply requires jurors to employ their
own powers of observation and comparison. . . . The fourth situation is
when the testimony in not truly scientific.’’ (Citations omitted; internal
quotation marks omitted.) Id.
11
As we noted previously, the court stated: ‘‘I mean, that’s clearly scientific.
I mean that’s physiological. That’s medicine. I don’t know how one can
claim that that’s not scientific. And he—he outlines a number of . . . physio-
logical effects, visual narrowing, auditory exclusions, increased heartrate,
decreased breathing, loss of fine motor skills, flash of white light. But he
also indicated that it’s totally based on the self-reporting of police officers.
There’s—there’s no published studies on this. He’s not published on it. He’s
not aware of anyone else publishing on it. There’s no known error rate. The
self-reporting hasn’t been analyzed or scrutinized to any degree. It’s just
accepted as wisdom because police officers said it occurred.’’
12
Specifically, the court stated: ‘‘Now he testified he knows of studies but
couldn’t identify any. He didn’t know the methodology used. He said it
wasn’t based on any scientific studies, and he couldn’t identify any identifi-
able frequency that they occur. And again, this is physiological. It’s—it’s
medicine. . . . He also indicated that his opinions weren’t generally
accepted in the relevant scientific community. He didn’t say they weren’t.
He just didn’t say they were.’’
13
The court noted that the defendant bore the burden of establishing the
reliability of Allard’s opinions. It also pointed to the fact that the defendant
had failed to demonstrate that Allard’s opinions were accepted in the general
scientific community, that the evidence had not been subjected to testing
or a peer review, that Allard did not possess an undergraduate or graduate
degree relevant to the scientific opinions he sought to give and that his
opinions were based on the subjective reporting of the people he trained
in police procedure, rather than objectively verifiable criteria. Further, the
court pointed to Allard’s inability to identify specifically the scientific studies
that would support his opinions.
14
The expert witness defined the syndrome ‘‘as referring to the behavioral
and psychological consequences that many victims, but by no means all
victims, experience as a consequence of living in domestic violence situa-
tions.’’ (Internal quotation marks omitted.) State v. Borrelli, supra, 227
Conn. 168.