State v. Torres

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STATE v. TORRES—DISSENT
ECKER, J., with whom McDONALD and D’AURIA,
Js., join, dissenting. The defendant, Quavon Torres, was
convicted of murder in violation of General Statutes
§ 53a-54a (a) and carrying a pistol without a permit in
violation of General Statutes § 29-35 following a jury
trial at which evidence central to his third-party culpa-
bility defense improperly was excluded. In light of the
importance of the excluded evidence to the defendant’s
theory of the case, the lack of physical evidence impli-
cating the defendant in the charged crimes, and the
contradictory and inconsistent evidence adduced at
trial, I conclude that the evidentiary error was harmful.
Because I would reverse the judgment of conviction and
remand the case for a new trial, I respectfully dissent.1
The majority opinion accurately sets forth the rele-
vant facts and procedural history, but the following
facts warrant particular emphasis. There was no physi-
cal evidence, such as DNA or fingerprint evidence, link-
ing the defendant to the murder or the murder weapon,
and, although there were eyewitnesses to the shooting,
none of the eyewitnesses testified at trial that the defen-
dant was the perpetrator of the charged crimes. Indeed,
at trial, none of the state’s witnesses implicated the
defendant in either the commission of the murder or
possession of the murder weapon; their inculpatory
version of events came in the form of prior inconsistent
statements introduced into evidence under State v.
Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied,
479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986),
thus requiring the jury to choose between conflicting
accounts of events. The state’s case, in short, depended
on the credibility of the witnesses and, in particular,
the reasons for various changes in those witnesses’
versions of events over time.
At trial, the fundamental question for the jury was
the identity of the individual who had shot and killed
the victim, Donald Bradley. The state claimed that the
defendant was the shooter, but the defendant raised
a third-party culpability defense, arguing that Freddy
Pickette was the guilty party. According to the defen-
dant’s theory of the case, Pickette shot and killed the
victim and brought the gun back to 543 Orchard Street
in New Haven after he fled the scene. The trial court
considered the defendant’s third-party culpability defense,
supported by the testimony of his cousin, Tasia Milton,2
to be strong enough to warrant submission to the jury.
Milton testified at trial that she was sitting outside
of 543 Orchard Street when she heard gunshots and
saw the defendant and Marcus Lloyd running toward
her with ‘‘[Pickette] a little behind them.’’ Although
Pickette did not enter the building, he ran by 543
Orchard Street and tossed a gun to Lloyd. The defendant
and Lloyd entered the building and ran up to the third
floor apartment in which they and Pickette had been
socializing together earlier in the evening. Milton testi-
fied that she had ‘‘never seen [the defendant] with the
gun’’ but that she saw Pickette with the gun earlier
that day.
Milton’s trial testimony was inconsistent in part with
her statement to the police on the night of the murder,
as well as her testimony at the defendant’s first trial.3
On the night of the murder, Milton reported to the police
that, after hearing gunshots, she fled upstairs to the
third floor apartment of 543 Orchard Street, quickly
followed by the defendant and Lloyd. According to Mil-
ton’s statement to the police, Pickette did not return
to the apartment after the shooting. She stated that the
defendant gave his sister, Amber Torres, a black gun
with a wooden handle and told her to ‘‘do something
with [it].’’ Milton testified at the defendant’s first trial
substantially in conformance with these statements.4
At the defendant’s second trial, the state introduced
Milton’s prior inconsistent statement to the police and
trial testimony as substantive evidence of the defen-
dant’s guilt and to undermine Milton’s credibility, which
was central to the defendant’s third-party culpability
defense. The state pointed out that Milton had not pre-
viously informed the police or testified that Pickette
tossed the gun to Lloyd following the shooting, contrary
to her testimony at the defendant’s second trial. The
defendant sought to rehabilitate Milton’s credibility and
to bolster his third-party culpability defense by eliciting
testimony from Milton that, when she gave her state-
ment to the police, she was young, ‘‘high,’’ ‘‘nervous,’’
and felt ‘‘pressured by the cops . . . .’’ Additionally,
Milton testified that she did not mention Pickette’s pos-
session of the gun at the defendant’s first trial because
‘‘[Pickette had] threatened [her] in the [courthouse]
hallway, saying [that] he was going to have someone
come beat [her] ass.’’
The evidentiary issue at the center of the present
appeal arises because, although the defendant was per-
mitted to adduce evidence of Pickette’s threat to Milton,
he was precluded from presenting evidence that she
also had been physically assaulted by Pickette’s sister
two days later, consistent with the threat made by Pick-
ette and his compatriot. The state moved to preclude
the evidence of the physical assault on the grounds that
it was irrelevant, inadmissible hearsay, inadmissible
character evidence, and unduly prejudicial. Defense
counsel opposed the state’s motion, arguing that the
physical assault of Milton was ‘‘relevant and [went] to
[Milton’s] motive, interest, [and] bias . . . to lie [at the
first trial].’’
Milton testified as follows outside the presence of
the jury in response to the trial court’s request for an
offer of proof: Just prior to the defendant’s first trial,
Milton encountered Pickette and a female witness in
the hallway of the courthouse. An argument ensued,
during which Pickette called Milton a ‘‘snitch’’ and said
that ‘‘they were going to whip [her ass]’’ if she testified.
The female witness said to Pickette, ‘‘don’t argue with
[Milton], you have a sister named Ash Black . . . .’’
Two days later, Pickette’s sister, Ashley Black, and two
other individuals ‘‘jumped’’ and ‘‘beat on’’ Milton in the
Fair Haven section of New Haven. During the assault,
Milton’s assailants told her that she ‘‘should mind [her
own] business’’ and mentioned ‘‘something about [Pick-
ette] . . . .’’ Both events occurred days before Milton
was called to testify at the defendant’s first trial.
Following the offer of proof, the trial court ruled
that Pickette’s threats to Milton in the courthouse were
relevant and admissible, but the physical assault of Mil-
ton in Fair Haven was not. The trial court reasoned
that Pickette was involved in the argument but was not
involved in the assault and that the connection between
Milton’s trial testimony and the assault was ‘‘far too
speculative. . . . The witness . . . Milton, just indi-
cated that one of these individuals said to her, ‘mind
your own business.’ Nothing that’s attributed to this
case. That could be mind your own business concerning
a domestic with [a] boyfriend, [a] girlfriend. Far too
speculative, so it’s not relevant evidence for this jury
to hear.’’ As a result, the defendant was prohibited at
his second trial from rehabilitating Milton’s credibility
and bolstering his third-party culpability defense by
presenting evidence that Milton had been assaulted by
Pickette’s sister shortly before Milton testified at the
defendant’s first trial.
The defendant claims on appeal that the trial court
improperly excluded evidence of the assault because
it was ‘‘relevant and material to the defendant’s third-
party culpability [defense] that Pickette was the shooter,’’
as well as to Milton’s ‘‘motive not to implicate Pickette
during the defendant’s first . . . trial and . . . to reha-
bilitate her credibility at the defendant’s second trial,
and explain why she did not previously implicate Pick-
ette.’’ The defendant further contends that the eviden-
tiary error was harmful because Milton’s testimony was
the ‘‘strongest evidence in support of his third-party
culpability claim.’’ I agree.
The trial court indisputably has wide discretion to
determine the relevancy of evidence, and, under the
abuse of discretion standard, every reasonable pre-
sumption must be made in favor of upholding the court’s
ruling. See, e.g., State v. Best, 337 Conn. 312, 318, 253
A.3d 458 (2020). That said, it is axiomatic that relevant
evidence is admissible unless ‘‘otherwise provided by
the constitution of the United States, the constitution
of the state of Connecticut, the [Connecticut] Code [of
Evidence], the General Statutes or the common law.’’
Conn. Code Evid. § 4-2. This rule reflects a cornerstone
principle of evidence law.5
‘‘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 evi-
dence.’’ (Internal quotation marks omitted.) State v.
Best, supra, 337 Conn. 317; see Conn. Code Evid. § 4-
1. To be relevant, evidence need not be conclusive or
even compelling. See, e.g., E. Prescott, Tait’s Handbook
of Connecticut Evidence (6th Ed. 2019) § 4.1.4, p. 146
(‘‘[a] party is not required to offer such proof of a fact
that it excludes all other hypotheses’’). ‘‘All that is
required is that the evidence tend to support a relevant
fact even to a slight degree, so long as it is not prejudicial
or merely cumulative.’’ (Internal quotation marks omit-
ted.) State v. Wilson, 308 Conn. 412, 429, 64 A.3d 91(2013).
It is well established that third-party culpability evi-
dence is relevant if there is ‘‘a direct connection
between a third party and the charged offense . . . .’’
(Internal quotation marks omitted.) State v. Baltas, 311
Conn. 786, 810, 91 A.3d 384 (2014). ‘‘Evidence that
would raise only a bare suspicion that a third party,
rather than the defendant, committed the charged
offense would not be relevant to the jury’s determina-
tion.’’ (Internal quotation marks omitted.) Id., 811. In
the present case, it is undisputed that there was a direct
connection between Pickette and the charged crimes
in light of Milton’s testimony that Pickette ran by 543
Orchard Street and tossed Lloyd the gun used to murder
the victim. Indeed, the defense theory was sufficiently
strong that the trial court instructed the jury regarding
the defendant’s claim that a ‘‘third party . . . Pickette,
may be responsible for the crimes the defendant is
charged with committing . . . .’’6 See, e.g., State v.
Arroyo, 284 Conn. 597, 610, 935 A.2d 975 (2007) (holding
that defendant was entitled to third-party culpability
instruction only ‘‘if the evidence pointing to a third
party’s culpability, taken together and considered in
the light most favorable to the defendant, establishes
a direct connection between the third party and the
charged offense, rather than merely raising a bare suspi-
cion that another could have committed the crime’’).
The direct connection between Pickette and the
charged crimes does not resolve the evidentiary issue,
however, because ‘‘[t]he general rule is that threats [or
assaults] against witnesses are not relevant and are thus
inadmissible as evidence . . . .’’7 State v. Walker, 214
Conn. 122, 129, 571 A.2d 686 (1990). Walker also deline-
ated two exceptions to this general rule. See id., 129–30.
First, evidence of threats or assaults against a witness
is relevant and admissible if the defendant is linked in
some way to the making of the threats or assaults.
‘‘[E]vidence of threats [or assaults] against witnesses
is generally admissible either on the theory that such
conduct is inconsistent with the defendant’s claim of
innocence or on the theory that the making of such
threats [or assaults] evinces a consciousness of guilt.
. . . Obviously, if the threats [or assaults] cannot be
linked to the defendant, evidence of such [conduct]
directed toward a witness would be of no probative
value for those purposes.’’ (Citations omitted.) Id., 129.
Second, such evidence is relevant and admissible,
regardless of the connection to the defendant, to
explain a witness’ prior inconsistent statements and to
rehabilitate the witness’ credibility. ‘‘A witness who has
been impeached by the admission of a prior inconsistent
statement is generally entitled to explain such contra-
dictory statement. . . . Pursuant to the rule permitting
explanations of prior inconsistent statements, it is gen-
erally held that evidence of threats [or assaults] to a
witness or fear on the part of a witness, in order to
explain an inconsistency, is admissible in criminal cases
for credibility rehabilitation purposes even if the [con-
duct] or fear [has] not been linked to the defendant [or
the allegedly culpable third party].’’ (Citations omitted;
internal quotation marks omitted.) Id., 130.
Both Walker exceptions apply in the present case.
Walker articulated the first exception in the context of
threats against a witness allegedly attributable to the
defendant in that case; see id., 128, 131; but it applies
equally when the threats or assaults are allegedly attrib-
utable to an individual who is the subject of a defen-
dant’s third-party culpability defense. Thus, once it has
been established that there is a direct connection
between the allegedly culpable third party and the
crimes charged and that there is a link between the
allegedly culpable third party and the threats or assaults
on a witness, such evidence is relevant to a defendant’s
third-party culpability defense.
The evidence was more than sufficient to establish a
clear link between Pickette and the assault. The record
reflects that, prior to the defendant’s first trial, while
Milton was waiting in the courthouse hallway in connec-
tion with the present case, Pickette called her a ‘‘snitch,’’
and he and another witness threatened ‘‘to whip [her
ass]’’ if she testified. The other witness told Pickette
not to ‘‘argue with [Milton]’’ because he has ‘‘a sister
named Ash Black . . . .’’ Two days later, Milton was
assaulted by three individuals, one of whom was Pick-
ette’s sister, Ashley Black. During the assault, Milton’s
assailants told her to ‘‘mind [her own] business’’ and
mentioned ‘‘something about [Pickette] . . . .’’ Given
the temporal proximity between the threats and the
assault, and the facts that Pickette’s sister was one of
the assailants and that Pickette was mentioned during
the assault, it is entirely reasonable for the defendant
to posit to the jury the inference that Pickette carried
out his threat ‘‘to whip [Milton’s ass]’’ by sending his
sister to assault Milton prior to her testimony at the
defendant’s first trial. See, e.g., State v. Robertson, 254
Conn. 739, 756–57, 760 A.2d 82 (2000) (evidence was
sufficient to link defendant to threats against witness
because defendant stated in recorded conversation that
‘‘someone ‘need[s]’ to talk to [the witness who was
threatened] ‘some more’ ’’); State v. Taft, 25 Conn. App.
578, 584–85, 595 A.2d 918 (evidence was sufficient to
link defendant to threats against witness because, one
day before trial, witness was approached by two men
who shoved him ‘‘against his car and said, ‘we have a
message from [the defendant], don’t show up tomor-
row’ ’’), cert. denied, 220 Conn. 921, 598 A.2d 144 (1991).
Far from being speculative, Pickette’s connection to
the assault seems likely on this record. Accordingly,
the assault of Milton was relevant and admissible to
demonstrate Pickette’s culpability in the commission
of the charged crimes and his consciousness of guilt.
Even in the absence of a link between Pickette and
the assault, the evidence also was admissible under the
second exception set forth in Walker because it was
relevant to explain Milton’s prior inconsistent statement
and to rehabilitate her credibility. See State v. Walker,
supra, 214 Conn. 130. The fact that Milton was assaulted
by Pickette’s sister just days before Milton’s testimony
at the defendant’s first trial was probative of Milton’s
state of mind at the time she testified at that trial. This
evidence supports a reasonable inference that Milton
had a motive to avoid implicating Pickette in the com-
mission of the crimes charged by testifying falsely at
the first trial. See, e.g., State v. Alvarez, 216 Conn. 301,
320, 579 A.2d 515 (1990) (evidence of witness’ fear was
admissible ‘‘to show that [the witness] was afraid and
therefore had a motive to testify falsely’’); State v.
Walker, supra, 214 Conn. 131 (evidence of threats against
witness was admissible and ‘‘relevant to show [the wit-
ness’] state of mind’’); State v. Talton, 63 Conn. App.
851, 855–57, 779 A.2d 166 (evidence that witness feared
retaliation for identifying defendant properly was
admitted into evidence to explain witness’ prior incon-
sistent statement and to rehabilitate witness’ credibil-
ity), cert. denied, 258 Conn. 907, 782 A.2d 1250 (2001).
For the same reason, evidence of the assault was rele-
vant and admissible to rehabilitate Milton’s inconsistent
testimony during the second trial that it was Pickette,
rather than the defendant, who possessed the murder
weapon after the shooting. The defendant was entitled
to argue that her testimony changed because the fear
caused by the assault prior to the first trial had dissi-
pated by the time of the second trial, and, accordingly,
contrary to the state’s contention, her testimony at the
second trial was more credible. I therefore conclude
that the trial court abused its discretion in excluding
evidence of the assault.
I disagree with the majority that the error was harm-
less because, in my view, the defendant has met his
burden of demonstrating harm.8 See part I B of the
majority opinion. ‘‘[W]hether [an improper ruling] is
harmless in a particular case depends [on] a number
of factors, such as the importance of the witness’ testi-
mony in the [defendant’s] case, whether the testimony
was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the wit-
ness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength
of the prosecution’s case. . . . Most importantly, we
must examine the impact of the . . . evidence on the
trier of fact and the result of the trial. . . . [T]he proper
standard for determining whether an erroneous eviden-
tiary ruling is harmless should be whether the jury’s
verdict was substantially swayed by the error. . . .
Accordingly, a nonconstitutional error is harmless
when an appellate court has a fair assurance that the
error did not substantially affect the verdict.’’ (Internal
quotation marks omitted.) State v. Fernando V., 331
Conn. 201, 215, 202 A.3d 350 (2019). Although the ques-
tion is a close one, after considering the foregoing fac-
tors and the trial as a whole, I am persuaded that the
evidentiary error affected the jury’s verdict on this
record.
Milton’s testimony was essential to the defendant’s
third-party culpability defense that it was Pickette who
murdered the victim and brought the gun back to 543
Orchard Street. As I previously explained, the central
issue in the case was the identity of the perpetrator;
Milton’s testimony, which placed the murder weapon
in Pickette’s hands immediately after the shooting, was
persuasive evidence of Pickette’s guilt, and she was the
only witness who connected the gun to Pickette. Milton
was thus a critical witness in support of the defendant’s
third-party culpability defense, and her credibility and
motive to testify falsely at the defendant’s first trial
were crucial issues to be resolved by the jury. The fact
that Milton had been physically assaulted by Pickette’s
sister just days before she testified at the defendant’s
first trial, consistent with Pickette’s earlier threat ‘‘to
whip [her ass]’’ if she testified, would have illustrated
to the jury the extent of Milton’s motive to testify falsely
at the first trial to avoid implicating Pickette. Because
this evidence was vital to the jury’s assessment of Mil-
ton’s credibility, the defendant’s third-party culpability
defense, and the pivotal issue of identity, I believe that
its improper exclusion was harmful.9 See, e.g., State v.
Fernando V., supra, 331 Conn. 223–24 (‘‘[when] credibil-
ity is an issue and, thus, the jury’s assessment of who
is telling the truth is critical, an error affecting the jury’s
ability to assess a [witness’] credibility is not harmless
error’’ (internal quotation marks omitted)); State v. Cer-
reta, 260 Conn. 251, 265, 796 A.2d 1176 (2002) (improper
exclusion of third-party hair and fingerprint evidence
was not harmless because it ‘‘would have given cre-
dence to the defendant’s claim of innocence’’); State v.
Colton, 227 Conn. 231, 254, 630 A.2d 577 (1993) (‘‘[t]he
exclusion of evidence bearing on the motivation of a
chief witness for the state, particularly when no other
evidence corroborated material aspects of the witness’
testimony, is harmful error’’); State v. Rinaldi, 220
Conn. 345, 357–58, 599 A.2d 1 (1991) (improper exclu-
sion of evidence central to defendant’s defense that he
was not source of semen found in sexual assault victim
was not harmless error).
The state’s case against the defendant was not partic-
ularly strong. The eyewitnesses to the murder provided
conflicting accounts as to the details surrounding the
shooting and the identifying characteristics of the
shooter. Lachell Hall, Pickette’s aunt,10 testified that she
saw Pickette sitting in the front passenger seat of the
victim’s vehicle as it drove through the Burger King
drive-through lane. Hall saw the car stop and the victim
exit the driver’s seat, walk around the back of the vehi-
cle, and reach for something inside. She also saw a
black man wearing a black or dark colored shirt exit
the rear passenger seat on the driver’s side of the vehi-
cle. Hall heard three to four gunshots, but she did not
see a gun and could not tell from what direction the
gunshots were fired. Hall did not see the shooter and
could not identify the passenger in the rear of the vehi-
cle.
Teresa Jones also witnessed the shooting. Jones was
exiting the supermarket across the street from the
Burger King when she saw ‘‘some guys standing around
a car’’ talking in the Burger King drive-through lane.
One of the men, who was standing near the trunk of
the vehicle wearing a ‘‘Canadian blue’’ shirt and blue
jeans, pulled out a silver gun and shot into the car
approximately five times. Immediately afterward, the
shooter and an individual wearing a red shirt ran in the
direction of Orchard Street. When Jones later viewed
a photographic array prepared by the police, she was
unable to identify the defendant as one of the men
involved in the shooting. Jones did identify Pickette,
whom she referred to as Freddy Morrison,11 as one of
the men standing around the victim’s vehicle prior to
the shooting. Jones informed the police that the shooter
looked like Freddy Morrison but was not Freddy Mor-
rison.
The testimony of Hall and Jones differed in certain
critical respects.12 According to Hall, someone wearing
a black or dark colored shirt exited the rear passenger
seat of the victim’s vehicle immediately prior to the
shooting,13 but, according to Jones, the shooter was
standing outside of the car talking with other individuals
immediately prior to the shooting. Hall testified that
Pickette was seated in the front passenger seat of the
car when the shooting occurred, but Jones testified that
he was standing outside of the vehicle. Hall testified that
the occupant of the rear passenger seat was wearing a
black or dark colored shirt, but Jones testified that the
shooter was wearing a Canadian blue shirt. Further-
more, Jones testified that the murder weapon was sil-
ver, whereas the undisputed evidence adduced at trial
established that the murder weapon was black with a
wooden handle. Neither Hall nor Jones was able to
identify the defendant as the individual who had shot
and killed the victim.
Thus, we have a crime with no direct or uncontro-
verted evidence to establish the shooter’s identity. The
defendant’s DNA and fingerprints were not found on
the gun used to commit the murder, and the video
evidence does not show who shot the victim. There
were multiple eyewitnesses, but none of them alone
provided a comprehensive account of the shooting.14
None of the eyewitnesses, moreover, testified that the
defendant was the perpetrator of the charged crimes.
All of the relevant witnesses gave testimony that materi-
ally conflicted with either the testimony of another wit-
ness or their own prior testimony. And most of the
witnesses either had a direct interest in the outcome
as potential suspects (Pickette and Lloyd), or were
related to the defendant or Pickette. See footnote 2 of
this opinion. As a result, this was a case in which every
significant piece of evidence relevant to witness credi-
bility, the identity of the shooter, and the defendant’s
third-party culpability defense was important to the
jury’s verdict.
I do not dispute that the majority pieces together a
version of the varying witness accounts to create a
sufficient evidentiary basis to support the defendant’s
conviction, but the legal sufficiency of the evidence is
not the issue, and the majority’s marshaling of evidence
sufficient to support the conviction misapprehends the
point of harmless error analysis. ‘‘Legal sufficiency of
the evidence is not the test for harmless error even if
only a nonconstitutional error is involved. The harm-
lessness of an error depends [on] its impact on the trier
and the result’’; State v. Bruno, 197 Conn. 326, 336, 497
A.2d 758 (1985) (Shea, J., concurring), cert. denied, 475
U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986); not
on whether the evidence, when viewed in the light most
favorable to the jury’s verdict, was sufficient to support
an inference of guilt.
To ascertain the impact that the excluded evidence
would have had on the jury, it is important to focus on
the quality of the state’s evidence. Although there was
significant testimony from multiple sources implicating
the defendant, the persuasive force of every inculpatory
statement was weakened by a countervailing, contra-
dictory, or conflicting statement, usually from the same
witness. For example, during Pickette’s and Lloyd’s tes-
timony at the defendant’s trial, neither implicated the
defendant in the commission of the charged crimes,
although they previously had identified him as the
shooter.15 Similarly, the defendant’s sister, Amber Tor-
res, testified that she was unable to remember anything
about the day of the murder, but her prior inconsistent
statement that she found a gun in the apartment after
the shooting was admitted into evidence under
Whelan.16 The case against the defendant was built on
a patchwork of facts and inferences derived from the
inconsistent testimony of numerous witnesses; no sin-
gle piece of evidence carried dispositive force, and the
addition of Milton’s excluded testimony to the mosaic
may well have substantially swayed the jury’s verdict.
Lastly, the fact that Milton failed to implicate Pickette
in her initial statements to the police in no way renders
the evidentiary error harmless. Milton, like many wit-
nesses, including Pickette, Lloyd, and Amber Torres,17
gave in-court testimony that differed significantly from
a prior recitation of events. She candidly acknowledged
that she lied to the police in 2012, but testified that she
did so because she was young, ‘‘high,’’ ‘‘nervous,’’ and
felt ‘‘pressured by the cops . . . .’’ It was up to the jury
to sift through these shifting narratives and to decide
what portion, if any, of these witnesses’ testimony and
prior statements were worthy of belief. To perform
the essential function of assessing the believability of
Milton’s testimony, on which the defendant’s third-party
culpability defense largely depended, the jury needed
all of the information pertinent to Milton’s credibility,
including evidence of Milton’s assault prior to the defen-
dant’s first jury trial. See State v. Fernando V., supra,
331 Conn. 223 (‘‘[i]t cannot be harmless error to remove
from the fact finder the very tools by which to make
a credibility determination’’ (internal quotation marks
omitted)); see also State v. Morgan, 274 Conn. 790,
800, 877 A.2d 739 (2005) (‘‘because the jury has the
opportunity to observe the conduct, demeanor and atti-
tude of the witnesses and to gauge their credibility, [i]t
is axiomatic that evidentiary inconsistencies are for the
jury to resolve, and it is within the province of the
jury to believe all or only part of a witness’ testimony’’
(internal quotation marks omitted)).
In light of the conflicting and contradictory state-
ments by the state’s witnesses and the lack of physical
evidence, I conclude that the improper exclusion of
evidence of Milton’s assault was harmful to the defen-
dant’s third-party culpability defense and that a new
trial is required. Accordingly, I dissent.
1
I see no need to reach the defendant’s prosecutorial impropriety claims.
To the extent that the defendant’s claim regarding the exclusion of evidence
of Teresa Jones’ specific acts of misconduct would be likely to arise on
remand, I agree with the majority that a trial court has broad discretion to
exclude such evidence on the basis of its remoteness in time. See part II
of the majority opinion.
2
Milton was not the only witness with a familial relationship to the defen-
dant or Pickette. Amber Torres, who testified on behalf of the state, is the
defendant’s sister. Additionally, the two eyewitnesses to the shooting,
Lachell Hall and Teresa Jones, both are related to Pickette. Hall is Pickette’s
aunt; see footnote 10 of this opinion; and Jones testified that she had known
Pickette ‘‘since he was a child’’ because her ‘‘nephew is his brother.’’
3
The defendant was convicted at the first trial of murder and carrying a
pistol without a permit. On appeal, the Appellate Court reversed the defen-
dant’s conviction and remanded the case for a new trial. See State v. Torres,
175 Conn. App. 138, 154, 167 A.3d 365 (2017) (reversing defendant’s convic-
tion because witness made suggestive in-court identification, contrary to
State v. Dickson, 322 Conn. 410, 453, 141 A.3d 810 (2016), cert. denied,
U.S. , 137 S. Ct. 2263, 198 L. Ed. 2d 713 (2017)), cert. denied, 327 Conn.
958, 172 A.3d 204 (2017), cert. denied, U.S. , 138 S. Ct. 1303, 200 L.
Ed. 2d 474 (2018).
4
Although Milton denied seeing the defendant or anyone else holding a
gun, she testified at the first trial that she heard reference to it when the
defendant and Lloyd returned to the third floor apartment at 543 Orchard
Street following the shooting and the defendant told Amber Torres to ‘‘just
do something’’ with the gun. Consistent with her prior statement to the
police, Milton testified at the first trial that Pickette never returned to the
apartment.
5
See, e.g., Curtis v. Bradley, 65 Conn. 99, 109, 31 A. 591 (1894) (‘‘[b]eing
relevant, [the evidence] must be admitted, unless excluded under some legal
principle, or rule of public policy, which forbids the admission of certain
classes of evidence, no matter how relevant and material’’); see also E.
Prescott, Tait’s Handbook of Connecticut Evidence (6th Ed. 2019) § 4.1.4,
pp. 145–46.
6
The trial court instructed the jury: ‘‘There has been evidence that a third
party, not the defendant, committed the crimes for which the defendant is
charged. This evidence is not intended to prove the guilt of the third party
but is part of the total evidence for you to consider. The burden remains
on the state to prove each and every element of the offense beyond a
reasonable doubt. It is up to you and to you alone to determine whether
any of this evidence, if believed, tends to directly connect a third party to
the crimes with which the defendant is charged. If, after a full and fair
consideration and comparison of all the evidence, you have left in your
mind reasonable doubt indicating that the alleged third party . . . Pickette,
may be responsible for the crimes the defendant is charged with committing,
then it would be your duty to render a verdict of not guilty as to the
[defendant].’’
7
Although Walker involved verbal threats against a witness rather than
a physical assault, the parties do not dispute that the principles elucidated
in Walker are applicable to this case.
8
Because the defendant has fulfilled his burden of demonstrating harm,
I see no need to address whether the evidentiary error rose to the level of
a constitutional violation. Accordingly, I express no opinion on the conclu-
sions reached in part I A of the majority opinion.
9
The majority suggests that the exclusion of the assault of Milton was
harmless because ‘‘it is just as plausible that Pickette was trying to prevent
Milton from implicating the defendant,’’ and, therefore, Pickette’s threaten-
ing and assaultive conduct may have been intended to protect the defendant,
rather than Pickette himself. Footnote 8 of the majority opinion. The state
does not rely on the explanation now offered by the majority, and for good
reason. On the night of the shooting, Pickette exculpated himself in the
charged crimes by telling the police that the defendant had shot the victim,
and, therefore, I find Pickette’s alleged charitable motive to be dubious
at best.
To support its plausibility argument, the majority relies on Pickette’s
testimony at the defendant’s first and second trials, in which Pickette
declined to identify the defendant as the shooter, as well as Milton’s testi-
mony during the offer of proof that, when she was threatened in the court-
house hallway, ‘‘she viewed herself as being in ‘the same predicament’ as
Pickette, namely, being called to testify against the defendant.’’ Footnote 8
of the majority opinion. The majority’s reliance on Pickette’s testimony at
the defendant’s first trial and Milton’s testimony during the offer of proof
(which occurred outside the presence of the jury) is misplaced because this
testimony was not admitted into evidence for the jury’s consideration. In
conducting a harmless error analysis, ‘‘we must examine the impact of the
. . . [excluded] evidence on the trier of fact and the result of the trial’’;
(emphasis added; internal quotation marks omitted) State v. Fernando V.,
supra, 331 Conn. 215; in light of the evidence properly before the jury. See
State v. Thompson, 305 Conn. 806, 823 n.16, 48 A.3d 640 (2012) (‘‘[harmless
error] review must be confined to the record’’). The jury was unaware of
Pickette’s testimony at the defendant’s first trial or Milton’s testimony during
the offer of proof, and I fail to see how the jury could have drawn any
inferences, plausible or otherwise, on the basis of testimony it never heard.
10
Hall testified that she had known Pickette ‘‘[s]ince he was a kid’’ and
that she ‘‘claim[s] him as [her] nephew’’ because her ‘‘brother [has] kids
with his mother . . . .’’
11
Pickette testified that his grandfather’s last name is Morrison.
12
A third witness, Dominique Padilla, also testified at the defendant’s trial.
Padilla did not witness the shooting but testified that she heard three to
four gunshots from the direction of Burger King as she was exiting the
parking lot of a nearby McDonald’s. Afterward, she saw two dark skinned
kids run by, one wearing a red shirt and the other a blue shirt. Padilla was
unable to identify the defendant, Pickette, or Lloyd as the individuals she
saw running away from Burger King that night.
13
In my view, Hall’s testimony about the initial positions of the defendant,
Pickette, and Lloyd in the victim’s vehicle was not corroborated by footage
from a security camera located outside of a nearby CVS Pharmacy. Given
the poor quality of the footage and the fact that both the rear driver’s side
and front passenger’s side occupants were wearing dark colored shirts, it
is difficult to discern in the footagewhich individual is the defendant and
which is Pickette. The most that can be said of the footage is that it supports
a reasonable inference that either the defendant or Pickette was seated in
the rear passenger seat of the vehicle prior to the victim’s murder.
14
The majority states that ‘‘it is a rare case in which the jury is provided
with direct testimony from a witness who is able to give a comprehensive,
detailed account of all of the events surrounding a murder.’’ Footnote 7 of
the majority opinion. This observation misses the point. The majority’s focus
on the importance of the eyewitness testimony and its conclusion that this
testimony is more ‘‘probative with respect to the identity of the shooter’’
than Milton’s testimony requires a critical assessment of the strength of the
state’s eyewitness evidence. Part I B of the majority opinion. The present
case involved eyewitness testimony that was conflicting and, at times, contra-
dicted by the undisputed evidence in the record. The inconsistent nature
of the eyewitness testimony undermines the overall strength of the state’s
case and casts doubt on the majority’s reliance on this selective evidence
to conclude that the evidentiary error was harmless.
15
Pickette testified that he did not see a gun, did not see the defendant
get out of the vehicle, and did not see who shot the victim. Pickette’s prior
inconsistent statement to the police that the defendant exited the vehicle
and shot the victim with a black gun was admitted into evidence under
State v. Whelan, supra, 200 Conn. 753.
Lloyd testified that he did not remember the murder because it was years
ago and he was on drugs at the time. Lloyd’s prior inconsistent statement
to the police, in which he informed the police that the defendant had a gun,
had exited the vehicle after the victim got out, and later had given the gun
to Amber Torres after they fled to Orchard Street, was admitted into evidence
under Whelan.
16
Amber Torres informed the police that, after the shooting, she found a
gun lying on the couch in the back bedroom of the third floor apartment
and that she used a washcloth to move the gun to a black bag.
17
See footnotes 15 and 16 of this opinion.