State v. Streit

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STATE OF CONNECTICUT v. DANIEL
RICHARD STREIT
(SC 20336)
Robinson, C. J., and McDonald, D’Auria, Kahn, Ecker and Keller, Js.
Syllabus
Convicted of manslaughter in the first degree in connection with the stabbing
death of the victim, the defendant appealed, claiming that the trial court
abused its discretion by precluding him from introducing evidence, in
support of his self-defense claim, that the victim had searched a retail
website for weapons in the days preceding the stabbing. The defendant
and the victim had been involved in two fights the week before the
stabbing, and, after each altercation, the victim threatened to kill the
defendant. The stabbing at issue occurred a few days later, after the
victim approached the defendant. The defendant filed a motion in limine,
seeking to introduce into evidence a forensic analysis of data extracted
from the victim’s cell phone showing that the phone had been used to
conduct certain online searches for weapons between the first fight and
the stabbing. The court denied the motion in limine, concluding that,
because there was no evidence that the victim had purchased any of
the items he searched for or that the defendant was aware of the victim’s
search activity at the time of the stabbing, the search history was not
relevant to prove the defendant’s state of mind with respect to whether
his fear of the victim was subjectively and objectively reasonable under
the provisions (§ 4-4 (a) (2) and (b)) of the Connecticut Code of Evidence
permitting an accused in a homicide case to introduce evidence of the
victim’s violent character under certain circumstances. The court further
concluded that the search history was not admissible to prove that the
victim was the initial aggressor because the victim’s act of searching
for weapons did not result in a criminal conviction. On the defendant’s
appeal from the judgment of conviction, held that the trial court did
not abuse its discretion in denying the defendant’s motion seeking to
introduce evidence of the victim’s online searches for weapons: a defen-
dant in a homicide case, after laying a proper foundation that he acted
in self-defense, may introduce evidence of the victim’s violent character
to prove that the victim was the aggressor, regardless of whether such
character evidence had been communicated to the accused prior to
the homicide, and such violent character can be proven by opinion or
reputation testimony, or evidence of the victim’s conviction of violent
crimes, but not by specific violent acts not resulting in a criminal convic-
tion; in the present case, the defendant’s lack of awareness of the victim’s
online searches rendered them irrelevant for purposes of establishing
the defendant’s state of mind because they could not have impacted
the defendant’s subjective belief that he needed to resort to deadly
physical force, and the defendant did not claim that the searches them-
selves constituted violent crimes; moreover, the defendant could not
prevail on his claim that the search history was admissible as a prior act
of misconduct under the relevant provision (§ 4-5 (c)) of the Connecticut
Code of Evidence, because, even if the searches were evidence of prior
misconduct admissible to prove the victim’s state of mind, § 4-5 (c) does
not apply to evidence of the victim’s violent character in homicide cases,
which is specifically covered by § 4-4 (b), and § 4-4 trumps the more
general rules set forth in § 4-5 regarding the admissibility of specific
act evidence.
Argued April 29—officially released October 22, 2021*
Procedural History
Two part substitute information charging the defen-
dant, in the first part, with manslaughter in the first
degree and, in the second part, with being a persistent
dangerous felony offender, brought to the Superior
Court in the judicial district of New Haven, where the
first part of the information was tried to the jury before
Vitale, J.; verdict of guilty; thereafter, the defendant
was presented to the court, Clifford, J., on a plea of
guilty as to the second part of the information; judgment
of guilty in accordance with the verdict and plea, from
which the defendant appealed to this court. Affirmed.
Gary A. Mastronardi, for the appellant (defendant).
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, were Patrick J. Griffin,
state’s attorney, and Karen Roberg, senior assistant
state’s attorney, for the appellee (state).
Opinion
ROBINSON, C. J. In this appeal, we consider whether
evidence that the victim had conducted Internet searches
for dangerous weapons in the days preceding the alter-
cation at issue is admissible in support of a criminal
defendant’s claim of self-defense. The defendant, Daniel
Richard Streit, appeals1 from the judgment of convic-
tion, rendered after a jury trial, of manslaughter in the
first degree in violation of General Statutes § 53a-55 (a)
(1). On appeal, the defendant claims that the trial court
abused its discretion in determining that evidence that
the victim had searched an Internet shopping site for
weapons in the days leading up to the altercation in
which the defendant fatally stabbed the victim was both
irrelevant and not admissible as uncharged misconduct
evidence under § 4-5 (c) of the Connecticut Code of
Evidence.2 We disagree and, accordingly, affirm the
judgment of the trial court.
The record reveals the following facts, which the jury
reasonably could have found, and procedural history.
At all relevant times, the defendant lived in New Haven
with his girlfriend, Kathleen O’Dwyer. The defendant
was also dating Kathryn Wallace, who was the ‘‘on-
again, off-again’’ girlfriend of Keith Wylie, the victim.
After the victim broke into Wallace’s home in Septem-
ber, 2017, which resulted in the issuance of a protective
order and second degree breach of peace charges
against him, Wallace no longer felt safe at her home
and moved in with O’Dwyer and the defendant.
On the morning of October 3, 2017, the defendant
and the victim engaged in a fistfight near the APT Foun-
dation (clinic), a methadone clinic on Congress Avenue
in New Haven where Wallace was participating in a
treatment program. After the fight was broken up, the
victim threatened to kill the defendant. The defendant
and Wallace, who was also involved in the fight,
returned to their residence, where O’Dwyer photo-
graphed their injuries—the defendant had cuts and
scrapes, and Wallace had a black eye. Several days later,
the victim and the defendant fought again in front of
the clinic. After this second fight was broken up, the
victim, who had a reputation among the participants
in the treatment program as a violent and aggressive
person, once again threatened to kill the defendant. The
defendant previously had expressed animosity toward
and a desire to ‘‘get’’ the victim, or to ‘‘kick his ass,’’
because of the victim’s physically abusive behavior
toward Wallace when they were dating.
Several days later, on Saturday, October 7, 2017, the
defendant and Wallace walked to the clinic. While Wal-
lace went inside, the defendant, who was wearing latex
gloves on both hands and carrying a Smith & Wesson
‘‘special ops’’ knife, waited in front of the clinic. The
victim arrived approximately thirty minutes later,
parked his car, exited his vehicle, and walked directly
toward the defendant. According to the defendant’s
statement to the police, the victim told him that they
were ‘‘ ‘going to finish this right now.’ ’’ The defendant
then lunged at the victim, and a fight ensued between
them on the sidewalk in front of the clinic; during the
fight, there was a struggle over the knife, and the defen-
dant stabbed the victim seventeen times, causing nine
significant wounds to the victim’s neck, torso, and right
arm that resulted in his death. During the altercation,
the defendant was yelling for someone to pull the victim
off of him. Once the defendant was able to, he and
Wallace ran from the scene, with the defendant ripping
off his gloves and the blood-stained Spiderman sweat-
shirt that he had been wearing and discarding them
while running. A few minutes later, New Haven police
officers responded to a call about the fight and appre-
hended the defendant and Wallace nearby on York
Street. The police arrested the defendant, who had visi-
ble facial and hand injuries at that time. When arrested,
the defendant stated that he had no regret for what had
happened and that the victim ‘‘got what he deserved.’’
Subsequently, the state charged the defendant with
manslaughter in the first degree, to which he pleaded
not guilty, and the case was tried to a jury. At trial, the
defendant sought to establish that he had acted in self-
defense.3 In support of his claim of self-defense, the
defendant filed a motion in limine seeking permission to
offer into evidence an ‘‘[e]xtraction [r]eport,’’ generated
using forensic software called Cellebrite, that a forensic
examiner had used to examine the victim’s cell phone,
which had been seized by the police. The extraction
report indicated that, between October 3 and the fatal
altercation on October 7, the victim’s cell phone had
been used to search a shopping website, eBay, for weap-
ons, including stun guns, mace guns, and brass knuckle
gloves. The defendant argued that these searches, con-
ducted after the victim had threatened to kill the defen-
dant on October 3, were relevant to his claim of self-
defense—even though he was not personally aware of
them—as evidence (1) of the state of mind of both the
victim and the defendant with respect to the subjective
and objective reasonableness of the defendant’s fear
of the victim, and (2) that the victim was the initial
aggressor.4 As a basis for admitting the extraction
report, the defendant cited §§ 4-1, 4-2 and 4-4 (a) (2)
of the Connecticut Code of Evidence5 and the Massa-
chusetts Supreme Judicial Court’s decision in Common-
wealth v. Carey, 463 Mass. 378, 974 N.E.2d 624 (2012).
The defendant also sought an ‘‘extension’’ of this court’s
decision in State v. Miranda, 176 Conn. 107, 405 A.2d
622 (1978). He further relied on his federal and state
constitutional rights to present a defense. The state
objected to the defendant’s motion in limine.
After a hearing, the trial court agreed with the state’s
objection and denied the defendant’s motion in limine.
Considering the defendant’s claims of relevance in the
context of the well established subjective-objective
standard that governs claims of self-defense under Gen-
eral Statutes § 53a-19 (a);6 see, e.g., State v. O’Bryan,
318 Conn. 621, 632–33, 123 A.3d 398 (2015); the trial
court concluded that the proffered evidence was out-
side the ‘‘parameters specific to issues regarding self-
defense and the defense of others with regard to past
conduct related to the complainant or decedent, vis-à-
vis the defendant in such a case.’’ Assuming the authen-
ticity of the searches and that the victim was the person
who had conducted them, the trial court first observed
that there was no evidence ‘‘that indicated anything was
actually purchased’’ as a result of the Internet searches.
Emphasizing that there was no evidence that the defen-
dant was aware of the Internet searches or that any of
the weapons he searched for were found on the victim’s
person or at the crime scene, the court reasoned that
the evidence of the searches had a ‘‘clear’’ prejudicial
effect insofar as they were not relevant to the defen-
dant’s state of mind for purposes of admissibility under
§ 4-4 (b) of the Connecticut Code of Evidence. The trial
court further determined that the searches were not
admissible to prove that the victim was the initial
aggressor because, under the line of cases following
State v. Miranda, supra, 176 Conn. 107, such as State
v. Whitford, 260 Conn. 610, 799 A.2d 1034 (2002), evi-
dence of specific acts of violence not resulting in a
criminal conviction may not be used to establish a vic-
tim’s violent character.7 Ultimately, the trial court deter-
mined that the ‘‘jury ha[d] . . . ample evidence to con-
sider as to the nature of the relationship between the
defendant and [the victim] sufficient to [allow the defen-
dant to] make the argument with regard to his subjective
state of mind and his fear of [the victim]. The court
conclude[d] that [the Internet search evidence was] not
admissible or relevant or material to any issue the jury
must decide, and, even if [the evidence had] some slight
relevancy, it ha[d] the potential to confuse or arouse
the jury [such] that any probative value [was] out-
weighed by its prejudicial effect.’’8
Thereafter, the jury returned a guilty verdict on the
manslaughter charge; the defendant subsequently pleaded
guilty to part B of the information seeking an enhanced
penalty pursuant to General Statutes § 53a-40 (a) on
the ground that he was a persistent dangerous felony
offender.9 After denying the defendant’s motions for a
new trial and a judgment of acquittal notwithstanding
the verdict, the trial court rendered judgment of convic-
tion in accordance with the verdict and plea and sen-
tenced the defendant to a total effective sentence of
thirty-eight years’ imprisonment. This appeal followed.
On appeal, the defendant claims that the trial court
improperly denied his motion in limine because the
victim’s Internet searches were relevant to prove the
state of mind of both the victim and the defendant under
the principles discussed in State v. Miranda, supra, 176
Conn. 107, and were not, contrary to the trial court’s
conclusion, offered to establish the victim’s violent
character. The defendant renews his reliance on Com-
monwealth v. Carey, supra, 463 Mass. 379–80, 392, in
which the court upheld the admission of a criminal
defendant’s Internet searches about strangulation as
probative evidence of his intent in a sexual assault and
attempted murder case, in support of his argument that
the victim’s repeated Internet searches for weapons,
made within the week before the fatal altercation and
after their fights, ‘‘ ‘corroborat[e] and validat[e]’ ’’ the
legitimacy of the victim’s threat to the defendant, along
with the defendant’s fear of the victim. The defendant
also contends that the trial court abused its discretion
in declining to admit evidence of the searches as evi-
dence of prior misconduct under § 4-5 (c) of the Con-
necticut Code of Evidence. The defendant argues that
the timing and voluminous nature of the searches estab-
lish the victim’s intent to arm and prepare himself for
a confrontation with the defendant. The defendant fur-
ther contends that these improper evidentiary rulings
require reversal because they substantially swayed the
jury’s verdict.
In response, the state contends that the trial court
properly exercised its discretion to exclude the evi-
dence because the victim’s Internet searches were not
admissible evidence of his violent character for either
of the two purposes permitted by § 4-4 (a) (2) of the
Connecticut Code of Evidence, namely, to establish (1)
the defendant’s state of mind or apprehensions about
the victim’s violent character, or (2) that the victim was
the initial aggressor. Specifically, the state contends
that the evidence was not admissible for the first pur-
pose because the defendant was not aware of the
searches at the time of the altercation, which renders
Commonwealth v. Carey, supra, 463 Mass. 378, distin-
guishable, and it was not admissible for the second
purpose because our precedent allows only the admis-
sion of specific violent acts that result in criminal con-
victions. See, e.g., State v. Osimanti, 299 Conn. 1, 14,
6 A.3d 790 (2010). Citing State v. Byrd, 136 Conn. App.
391, 397, 44 A.3d 897, cert. denied, 306 Conn. 906, 52
A.3d 732 (2012), which held that a conviction for crimi-
nal possession of a firearm was not a crime of violence
admissible to show a murder victim’s violent character,
the state posits, ‘‘a fortiori, that a mere search for weap-
ons on eBay could not have had any meaningful bearing
on the victim’s state of mind at the time of the fatal
altercation, let alone the reasonableness of the defen-
dant’s fear of the victim when the defendant, who was
ignorant of the victim’s Internet activity, approached
him.’’ (Emphasis omitted.) The state also argues that,
even if the evidence were relevant, including as
uncharged misconduct under § 4-5 (c) of the Connecti-
cut Code of Evidence, the trial court reasonably deter-
mined that any probative value was outweighed by the
danger of unfair prejudice. We agree with the state and
conclude that the trial court did not abuse its discretion
in declining to admit evidence of the victim’s Internet
searches for weapons.
‘‘Relevant evidence is evidence that has a logical ten-
dency to aid the trier in the determination of an issue.
. . . Evidence is relevant if it tends to make the exis-
tence or nonexistence of any other fact more probable
or less probable than it would be without such evidence.
. . . The trial court has wide discretion to determine
the relevancy of evidence and [e]very reasonable pre-
sumption should be made in favor of the correctness
of the court’s ruling in determining whether there has
been an abuse of discretion.’’ (Citations omitted; inter-
nal quotation marks omitted.) State v. Best, 337 Conn.
312, 317–18, 253 A.3d 458 (2020); see Conn. Code Evid.
§ 4-1. This discretion extends to the trial court’s applica-
tion of §§ 4-4 and 4-5 of the Connecticut Code of Evi-
dence. See, e.g., State v. Jordan, 329 Conn. 272, 279–80,
186 A.3d 1 (2018); State v. Osimanti, supra, 299 Conn.
13; see also State v. Saucier, 283 Conn. 207, 218–20,
926 A.2d 633 (2007) (considering function of trial court’s
discretion and contrasting standards of review applica-
ble to interpreting and applying Code of Evidence).
We begin with the defendant’s reliance on the Massa-
chusetts’ Supreme Judicial Court’s decision in Com-
monwealth v. Carey, supra, 463 Mass. 378, in support
of his argument that the trial court improperly cabined
its analysis to the strictures of § 4-4 (a) of the Connecti-
cut Code of Evidence as they pertain to proving a vic-
tim’s violent character, rather than focusing on the rele-
vance of the Internet search histories to proving the
victim’s state of mind at the time of the fatal altercation.
In Carey, the Massachusetts court held that, despite
‘‘scant evidence establishing a temporal connection
between the defendant’s consumption of these materi-
als and the incident at issue,’’ photographs and videos
of strangulations, as well as search histories of strangu-
lation murders, found on the defendant’s computer
were ‘‘highly probative of his intent and motive, as well
as the victim’s alleged consent’’ in an attempted murder
case in which the defendant’s specific intent to kill was
‘‘the principal issue at trial’’ when he ‘‘alleged that he
. . . strangled the victim [only] as a means toward sex-
ual gratification and without any intent to do her
harm.’’10 Id., 388. The defendant contends that the
search history evidence at issue in this case is even
more probative than that in Carey, given its temporal
relationship to the altercations at issue. We disagree.
The defendant’s reliance on Carey is an attempt to
thread the eye of a needle created by well established
principles of Connecticut case law, particularly our
leading decision in State v. Miranda, supra, 176 Conn.
109–11, which are now embodied in § 4-4 (a) (2) and
(b) of the Connecticut Code of Evidence. ‘‘In a homicide
or criminal assault case, an accused may introduce evi-
dence of the violent, dangerous or turbulent character
of the victim to show that the accused had reason to
fear serious harm, after laying a proper foundation by
adducing evidence that he acted in self-defense and
that he was aware of the victim’s violent character.11
. . . [W]e joined a majority of courts when we
expanded this rule to allow the accused to introduce
evidence of the victim’s violent character to prove that
the victim was the aggressor, regardless of whether
such character evidence had been communicated to
the accused prior to the homicide. . . . In Miranda,
we determined that the victim’s violent character could
be proved by reputation testimony, by opinion testi-
mony, or by evidence of the [victim’s] convictions for
crimes of violence, irrespective of whether the accused
knew of the [victim’s] violent character or of the particu-
lar evidence adduced at the time of the death-dealing
encounter. . . . This court has not, however, departed
from [its] precedent that specific violent acts not
resulting in a criminal conviction may not be introduced
to prove the victim’s violent character. . . . This is
because the admission of such evidence, other than
convictions, has the potential to surprise, to arouse
prejudice, to multiply the issues and confuse the jury,
and to prolong the trial.’’12 (Citations omitted; footnote
added; footnotes omitted; internal quotation marks
omitted.) State v. Osimanti, supra, 299 Conn. 13–14;
see State v. Jordan, supra, 329 Conn. 283 (trial court
has discretion to admit convictions arising from ‘‘a sub-
sequent act that is close in time and highly similar to
the charged incident’’ to prove that victim was initial
aggressor but not to prove defendant’s state of mind);
State v. Whitford, supra, 260 Conn. 636–40 (trial court
properly declined to admit testimony that victim, when
intoxicated, had attempted to strangle two people but
properly admitted reputation testimony that victim was
violent person when intoxicated); State v. Carter, 228
Conn. 412, 425–26, 636 A.2d 821 (1994) (trial court
abused its discretion in not permitting defendant to
reopen evidence to introduce evidence that victim had
assault and narcotics trafficking convictions ‘‘close in
time to the deadly encounter between the victim and
the defendant’’ because they ‘‘would have provided
objective corroboration of the defendant’s claim that
the victim was a person of violent character who had
acted as the initial aggressor’’); State v. Smith, 222
Conn. 1, 19–20, 608 A.2d 63 (The trial court properly
declined to admit evidence of the information or arrest
warrant charging the deceased victim with assault
because ‘‘[a] conviction is indisputable evidence of the
commission of a violent crime. On the contrary, a charg-
ing document is a mere accusation, not a settled disposi-
tion, and, as such, would invite dispute over collateral
issues at trial.’’), cert. denied, 506 U.S. 942, 113 S. Ct.
383, 121 L. Ed. 2d 293 (1992); State v. Collins, 68 Conn.
App. 828, 838, 793 A.2d 1160 (‘‘in the case of self-defense,
eyewitness testimony of prior specific acts of violence
perpetrated on a defendant by his or her victim is admis-
sible to show the state of mind of the defendant at the
time of the killing’’), cert. denied, 260 Conn. 941, 835
A.2d 58 (2002); State v. Carter, 48 Conn. App. 755, 762–
64, 713 A.2d 255 (trial court properly precluded defen-
dant’s mother from testifying about whether she had
seen victim selling drugs outside her home or with
weapon, while permitting defendant to testify about
violent acts that victim had committed against him per-
sonally but not against others), cert. denied, 247 Conn.
901, 719 A.2d 905 (1998); State v. Knighton, 7 Conn.
App. 223, 228–29, 508 A.2d 772 (1986) (following
Miranda and concluding that police officer or defen-
dant could not testify about specific acts of violence
allegedly committed by victim ‘‘to show the victim’s
propensity for violence, and [the defendant’s] own testi-
mony should have been admitted to show his state of
mind when he confronted [the victim]’’).
‘‘[N]otwithstanding this general rule of admissibility,’’
under § 4-4 (b) of the Connecticut Code of Evidence,
‘‘we have held that the defendant is not authorized to
introduce any and all convictions of crimes involving
violence, no matter how petty, how remote in time, or
how dissimilar in their nature to the facts of the alleged
aggression. In each case the probative value of the evi-
dence of certain convictions rests in the sound discre-
tion of the trial court.’’ (Internal quotation marks omit-
ted.) State v. Osimanti, supra, 299 Conn. 15; see State
v. Byrd, supra, 136 Conn. App. 397 (trial court did not
abuse its discretion in excluding evidence of victim’s
conviction for criminal possession of firearm because
it showed that ‘‘the victim possessed the gun solely as
collateral [for a loan of money] and . . . did not intend
to use the gun in a violent manner’’).
Although the defendant contends that he did not offer
the Internet search evidence to establish the victim’s
character pursuant to § 4-4 of the Connecticut Code
of Evidence, the case law embodied in that provision
nevertheless continues to inform the extent to which
that evidence is admissible under the more general prin-
ciples of relevance relied on by the defendant. These
cases reflect a ‘‘narrow’’ exception to the rule followed
by the ‘‘vast majority’’ of jurisdictions and the Federal
Rules of Evidence, which ‘‘prohibit the use of specific
acts to prove character in this context. . . . Courts
have cited the same concerns about inquiry into poten-
tially confusing collateral matters . . . unfair surprise
to the party against whom the evidence is offered . . .
and prejudice to the prosecution if the deceased is
shown to have been a detestable person . . . .’’ (Cita-
tions omitted.) State v. Smith, supra, 222 Conn. 18–19.
This is particularly so given that the Connecticut Code
of Evidence is, in essence, a codification of the com-
mon-law standards that ‘‘was not intended to displace,
supplant or supersede common-law evidentiary rules
or their development via common-law adjudication
. . . .’’ State v. DeJesus, 288 Conn. 418, 455, 953 A.2d 45(2008); see T. Bishop, ‘‘Evidence Rulemaking: Balancing
the Separation of Powers,’’ 43 Conn. L. Rev. 265, 298–
301 (2010). Put differently, the overall relevance deter-
mination remains the same, regardless of a party’s claim
that it is not attempting to shoehorn evidence into or
beyond the strictures of a particular rule of evidence,
such as the restrictions embodied in § 4-4 (b) of the
Connecticut Code of Evidence. Cf. State v. Whitford,
supra, 260 Conn. 640 (rejecting argument that would
admit victim’s prior bad acts under § 4-5 (c) of Connecti-
cut Code of Evidence in manner that would ‘‘nullify’’
or evade ‘‘limitation’’ of § 4-4 (b), which ‘‘reflects a
conscious choice by the code’s drafters to exclude spe-
cific acts evidence as permissible proof, consonant with
[Connecticut] case law’’).
Accordingly, we agree with the trial court’s determi-
nation in the present case that the defendant’s lack of
awareness of the victim’s Internet searches for weapons
rendered them irrelevant for purposes of establishing
the defendant’s state of mind during the encounter. This
is because the well established subjective-objective
standard that governs self-defense involving the use of
deadly physical force under § 53a-19 (a) requires the
jury to consider the reasonableness of the force used
while ‘‘view[ing] the situation from the perspective of
the defendant.’’ (Internal quotation marks omitted.)
State v. O’Bryan, supra, 318 Conn. 632; see footnote 6
of this opinion. The searches are rendered even less
relevant, given that the defendant does not claim that
they, in and of themselves, amounted to a crime of
violence for purposes of § 4-4 (a).
The defendant argues further that the Internet
searches constituted a prior act of misconduct relevant
to establish the victim’s state of mind under § 4-5 (c)13
of the Connecticut Code of Evidence.14 We disagree.
Even if we assume, without deciding, that the victim’s
otherwise legal Internet searches were themselves evi-
dence of prior misconduct admissible to prove his state
of mind pursuant to § 4-5 (c), this court’s decision in
State v. Whitford, supra, 260 Conn. 610, squarely fore-
closes the defendant’s efforts to use prior misconduct
evidence under § 4-5 (c) to evade the strictures of § 4-
4 and the well established case law that it embodies.
In Whitford, the defendant invoked § 4-5 (c) and ‘‘sought
to introduce the testimony of three witnesses that the
victim, when drunk, had violently attacked and attempted
to strangle them’’ in support of his claim of self-defense,
as ‘‘relevant to his assertion that the victim was the
aggressor in their altercation because it would tend to
prove both the victim’s character for violence and his
specific habit of strangling people while he was intoxi-
cated.’’ Id., 635. The trial court declined to admit evi-
dence of the specific acts and limited the testimony to
only ‘‘knowledge and opinion of the victim’s violent
character.’’ Id. After reviewing the body of case law
governing the admission of evidence of victims’ violent
acts in self-defense cases; see id., 636–37; this court
concluded in Whitford that the ‘‘defendant’s assertion
that the proffered testimony was admissible pursuant
to § 4-5 (c) . . . fail[ed] because it effectively would
read § 4-4 (b) out of the code. . . . [Section] 4-4 (b)
specifically limits the methods of proving the victim’s
character in a homicide or criminal assault prosecution
to reputation or opinion testimony, or evidence of prior
convictions for violent crimes. This limitation reflects
a conscious choice by the code’s drafters to exclude
specific acts evidence as permissible proof, consonant
with our case law. Were we to adopt the defendant’s
argument and read § 4-5 (c) to permit what § 4-4 (b)
forbids, we would nullify this intentional exclusion of
specific acts evidence . . . .’’15 Id., 640. The court
emphasized in Whitford that § 4-4 embodies our case
law on this point, notably State v. Miranda, supra, 176
Conn. 107. See State v. Whitford, supra, 638–39. Accord-
ingly, the court determined that, ‘‘[b]ecause § 4-4 of the
code explicitly provides for the admissibility of evi-
dence concerning the victim’s violent character under
certain specified circumstances, it trumps the more gen-
eral rules set forth in § 4-5 regarding the admissibility
of specific acts. Thus, § 4-5 (c) does not apply to evi-
dence of the victim’s violent character in homicide or
criminal assault cases, which is specifically covered by
§ 4-4, but rather applies to evidence admitted to prove
the issues enumerated in § 4-5 (b).’’ Id., 641; see id.,
642–43 (rejecting defendant’s claim that specific acts
preclusion does not apply to habit evidence offered
pursuant to § 4-6 of Connecticut Code of Evidence).
We therefore conclude that the trial court did not abuse
its discretion in declining to admit into evidence the
victim’s Internet searches for weapons.
The judgment is affirmed.
In this opinion the other justices concurred.
* October 22, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The defendant appeals directly to this court pursuant to General Statutes
§ 51-199 (b) (3).
2
Section 4-5 of the Connecticut Code of Evidence provides in relevant
part: ‘‘(a) General rule. Evidence of other crimes, wrongs or acts of a person
is inadmissible to prove the bad character, propensity, or criminal tendencies
of that person except as provided in subsection (b).
***
‘‘(c) When evidence of other crimes, wrongs or acts is admissible. Evidence
of other crimes, wrongs or acts of a person is admissible for purposes other
than those specified in subsection (a), such as to prove intent, identity,
malice, motive, common plan or scheme, absence of mistake or accident,
knowledge, a system of criminal activity, or an element of the crime, or to
corroborate crucial prosecution testimony. . . .’’
3
At trial, the state’s theory of the case was that the defendant had ‘‘a
bruised ego’’ from losing the fights earlier in the week that had led him to
‘‘attack’’ the victim.
4
The defendant argued that, although he had not been aware of the victim’s
Internet search for weapons, the evidence could be ‘‘highly relevant in
helping the jury to determine whether the defendant’s story of self-defense
[was] truthful. The jury’s knowledge that [the victim] was conducting
searches for various types of weapons adds significant credence to the claim
that his escalating and focused hostility toward the defendant culminated
in his aggressive conduct on [October 7, 2017].’’ The defendant also argued
that, not only was the search evidence relevant to the victim’s intent and
state of mind, but it would also corroborate the testimony of a defense
witness, who was anticipated to—and did—reveal that the victim had threat-
ened to kill the defendant.
5
Section 4-4 of the Connecticut Code of Evidence provides in relevant
part: ‘‘(a) Character evidence generally. Evidence of a trait of character of
a person is inadmissible for the purpose of proving that the person acted
in conformity with the character trait on a particular occasion, except that
the following is admissible:
***
‘‘(2) Character of the victim in a homicide or criminal assault case. Evi-
dence offered by an accused in a homicide or criminal assault case, after
laying a foundation that the accused acted in self-defense, of the violent
character of the victim to prove that the victim was the aggressor, or by
the prosecution to rebut such evidence introduced by the accused.
***
‘‘(b) Methods of proof. In all cases in which evidence of a trait of character
of a person is admissible to prove that the person acted in conformity with
the character trait, proof may be made by testimony as to reputation or in
the form of an opinion. In cases in which the accused in a homicide or
criminal assault case may introduce evidence of the violent character of
the victim, the victim’s character may also be proved by evidence of the
victim’s conviction of a crime of violence.
‘‘(c) Specific instances of conduct on cross-examination of a character
witness. A character witness may be asked, in good faith, on cross-examina-
tion about specific instances of conduct relevant to the trait of character
to which the witness testified to test the basis of the witness’ opinion.’’
(Emphasis added.)
6
When a defendant raises a claim of self-defense, § 53a-19 (a) requires the
state to disprove beyond a reasonable doubt that the defendant ‘‘reasonably
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 jury 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 jury 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. O’Bryan, 318
Conn. 621, 632, 123 A.3d 398 (2015).
7
Citing the Appellate Court’s decision in State v. Byrd, 136 Conn. App.
391, 397, 44 A.3d 897, cert. denied, 306 Conn. 906, 52 A.3d 732 (2012), which
held that a victim’s conviction of criminal possession of a firearm by itself
is not a crime of violence, the trial court further stated: ‘‘It’s hard to say,
under these circumstances, [that] a search on eBay, [which is] not even a
conviction, would be relevant to the [victim’s] state of mind when the
defendant was not even aware of it.’’
8
The trial court subsequently denied the defendant’s motion to reconsider
the denial of the motion in limine.
9
We note the trial court, Clifford, J., accepted the defendant’s guilty plea
to part B of the information. All other references in this opinion to the
trial court are to Judge Vitale, who presided over the defendant’s trial and
sentencing, and made the evidentiary ruling at issue in this appeal.
10
Our research has revealed other decisions, consistent with Carey, hold-
ing that Internet search histories may furnish relevant circumstantial evi-
dence of an actor’s state of mind. See, e.g., Commonwealth v. Keown, 478
Mass. 232, 245–47, 84 N.E.3d 820 (2017) (concluding that trial court properly
admitted searches on defendant’s computer for information about poison
and antifreeze, as well as victim’s Internet history, including research about
her kidney illness and doll-making hobby and her e-mails to friends and
acquaintances, to show her ‘‘positive outlook’’ on her health in week prior
her final hospitalization, as relevant to disprove defendant’s theory at murder
trial that victim had committed suicide), cert. denied, U.S. , 138 S.
Ct. 1038, 200 L. Ed. 2d 292 (2018); Julio Garcia v. State, 300 So. 3d 945,
974 (Miss. 2020) (Internet searches on defendant’s video game console for
sexually explicit and violent phrases, some of which pertained to young
females, conducted ‘‘just days’’ before sexual battery and murder of young
child were relevant to show motive, opportunity, or intent and were not
unduly prejudicial in case involving sexual battery and murder of young
child), cert. denied, U.S. , 141 S. Ct. 2706, 210 L. Ed. 2d 874 (2021).
11
Case law from other jurisdictions highlights that the key to the introduc-
tion of evidence of the specific bad acts of a victim in a self-defense case
is the defendant’s knowledge of those acts. See, e.g., Richardson v. United
States, 98 A.3d 178, 187–89 (D.C. 2014) (trial court improperly excluded
evidence of defendant’s belief that drug dealer victim knew that defendant
had talked to police, which resulted in raid of victim’s apartment, because
evidence was relevant to claim of self-defense and to prove that victim was
first aggressor); State v. Williams, 303 Kan. 585, 595, 363 P.3d 1101 (2016)
(evidence that victim had attempted to rape woman was not relevant to
defendant’s claim at murder trial that he killed victim in defense of his wife
because there was no evidence that defendant knew of that attempted rape,
meaning ‘‘the record lack[ed] any evidence establishing a nexus between
the alleged prior bad act of the victim . . . and the defendant’s state of
mind at the time the defendant claims to have acted in self-defense or
defense of another’’).
12
In Miranda, this court rejected the approach taken in its earlier decision
in State v. Padula, 106 Conn. 454, 138 A. 456 (1927), which did not permit
the admission of character evidence to prove that the decedent was the
aggressor on the ground that ‘‘the result of an unlimited application of such
a rule would be to interject the character of the deceased with the resulting
temptation ‘to measure the guilt of the accused by the deserts of the victim’
into all such cases.’’ Id., 459; see State v. Miranda, supra, 176 Conn. 110.
While acknowledging in Miranda that ‘‘[t]here is always the risk that the
jury may be unduly diverted and confused by collateral matters such as
character,’’ the court observed that ‘‘the sound discretion of the court is
relied [on] to focus the jury’s attention on the material issues in the trial.’’
State v. Miranda, supra, 110–11.
13
‘‘We have developed a two part test to determine the admissibility of
such evidence. First, the evidence must be relevant and material to at least
one of the circumstances encompassed by the exceptions [set forth in § 4-
5 (c) of the Connecticut Code of Evidence]. . . . Second, the probative
value of the evidence must outweigh its prejudicial effect. . . . Because of
the difficulties inherent in this balancing process, the trial court’s decision
will be reversed only whe[n] abuse of discretion is manifest or whe[n] an
injustice appears to have been done. . . . On review by this court, therefore,
every reasonable presumption should be given in favor of the trial court’s
ruling. . . .
‘‘In determining whether the prejudicial effect of otherwise relevant evi-
dence outweighs its probative value, we consider whether: (1) . . . the
facts offered may unduly arouse the [jurors’] emotions, hostility or sympathy,
(2) . . . the proof and answering evidence it provokes may create a side
issue that will unduly distract the jury from the main issues, (3) . . . the
evidence offered and the counterproof will consume an undue amount of
time, and (4) . . . the defendant, having no reasonable ground to anticipate
the evidence, is unfairly surprised and unprepared to meet it.’’ (Citation
omitted; footnote omitted; internal quotation marks omitted.) State v.
Raynor, 337 Conn. 527, 562, 254 A.3d 874 (2020); see footnote 2 of this
opinion (text of § 4-5 of Connecticut Code of Evidence).
14
The state argues that the defendant did not preserve his claim that the
victim’s Internet searches were not acts of prior misconduct relevant to
prove the victim’s state of mind for purposes of § 4-5 of the Connecticut
Code of Evidence. In response, the defendant contends in his reply brief
that he properly preserved his uncharged misconduct claim, despite the
lack of an ‘‘express’’ citation to § 4-5 (a) in his motion in limine, given his
citations therein to common-law uncharged misconduct case law, such as
State v. Mooney, 218 Conn. 85, 126–27, 588 A.2d 145, cert. denied, 502 U.S.
919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991). The defendant emphasizes that
the record demonstrates that the prosecutor, in responding to the motion,
understood that the defendant was advancing a claim that the searches
were admissible as uncharged misconduct, rather than ‘‘pigeonholing’’ it as
a character claim under § 4-4.
Although the defendant did not specifically cite § 4-5 of the Connecticut
Code of Evidence before the trial court, our review of the record indicates
that the defendant’s arguments repeatedly emphasized the use of the
searches to prove the victim’s state of mind in juxtaposition with the limita-
tions imposed by existing case law reflected in § 4-4. We conclude, therefore,
that these arguments ‘‘functionally preserved’’ this uncharged misconduct
claim for purposes of appeal, eliminating any concerns that the trial court
was not on notice of the argument. State v. Best, supra, 337 Conn. 317 n.1.
15
This court also observed in Whitford that the defendant’s claim that the
specific acts evidence was admissible pursuant to § 4-5 (c) of the Connecticut
Code of Evidence ‘‘ignores that portion of § 1-2 of the code and its commen-
tary . . . [that] indicates that the code was intended only to codify the
common law. If, as the defendant suggests, we were to read § 4-5 (c) as
permitting introduction of evidence regarding a victim’s specific violent
acts, we would be interpreting the code in a manner that would effectuate
a substantive change in the law. Because such a result would be contrary
to the express intention of the code’s drafters, we reject it.’’ State v. Whitford,
supra, 260 Conn. 639–40. We note that this limited understanding of this
court’s authority vis-à-vis the code was later overruled in State v. DeJesus,
supra, 288 Conn. 418, in which we concluded that the Connecticut Code of
Evidence ‘‘was not intended to displace, supplant or supersede common-
law evidentiary rules or their development via common-law adjudication,
but, rather, simply was intended to function as a comprehensive and authori-
tative restatement of evidentiary law for the ease and convenience of the
legal community.’’ Id., 455; see id. (‘‘the judges of the Superior Court did
not intend for the [Code of Evidence Oversight] [C]ommittee to recommend
substantive changes to the common-law evidentiary rules codified in the
code, but, rather, intended for the committee simply to recommend revisions
reflecting common-law developments in evidentiary law, clarifications of
the code to resolve ambiguities and additions to the code in the absence
of governing common-law rules’’); see also id., 460 (‘‘[T]he evidentiary rules
articulated [in the code] are subject to change, modification, alteration or
amendment by this court in the exercise of its constitutional and common-
law adjudicative authority. To reiterate, we conclude that the code neither
is, nor was intended to be, anything more than a concise, authoritative and,
as the commentary to § 1-2 (a) of the code describes it, ‘readily accessible
body of rules to which the legal profession conveniently may refer.’ ’’ (Foot-
note omitted.)).