State v. Tomlinson

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STATE OF CONNECTICUT v. DEONTE
O. TOMLINSON
(SC 20192)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Ecker, Keller and Vertefeuille, Js.
Syllabus
Convicted of the crimes of murder and carrying a pistol without a permit
in connection with the shooting death of the victim, the defendant
appealed to this court. The state’s theory was that the defendant and
the victim were members of rival gangs, the ‘‘150 gang’’ and the ‘‘Green
Hollow Boyz,’’ respectively, and that the defendant shot the victim in
retaliation after the victim had been tried for and acquitted of the murder
of H, another 150 gang member. At the time the victim was shot, the
defendant’s acquaintance, M, was in a nearby car driven by her friend,
J. M saw the defendant, whom she knew as ‘‘DT,’’ cross the street and
then heard gunshots. Meanwhile, J was having a phone conversation
with her incarcerated boyfriend, D, on a recorded line. Within minutes
of the shooting, M spoke to D and identified the defendant as the shooter.
The police also executed a search warrant at the defendant’s apartment
on the night of the shooting. In one of the bedrooms, they found a
mirror, on which someone had written ‘‘150,’’ ‘‘GANG’’ and ‘‘DT.’’ Prior
to trial, the defendant sought to preclude evidence of his association
with the 150 gang and a rap music video that had been posted on the
Internet, which featured the defendant and two other members of the
150 gang, who were handling a gun. The trial court made preliminary
rulings denying the defendant’s motions. At trial, the state sought to
present the expert testimony of A, a gang intelligence sergeant for the
Bridgeport Police Department. Defense counsel objected, claiming that
A’s testimony was inadmissible because it was irrelevant insofar as there
was no direct evidence that the defendant belonged to a gang or that
the shooting was gang related. He also claimed that A’s opinions were
based on hearsay and that, as an expert witness, A was not allowed to
testify as to hearsay. The trial court overruled the objection, and A
testified that his duties included monitoring gang activity in Bridgeport
through social media, where he discovered the rap music video, and by
talking with community residents, informants and gang members. He
stated that he was familiar with the rival gangs, that the defendant and
H were members of the 150 gang, and that H’s death contributed to a
conflict between the two gangs. In conjunction with A’s testimony, the
state introduced the rap music video, which was played for the jury over
defense counsel’s renewed objection. Defense counsel also renewed his
objection when the state sought to admit photographs of the writing
on the mirror, but the trial court concluded that the photographs were
admissible under the hearsay exception for statements of a party oppo-
nent. Finally, defense counsel objected on hearsay grounds to the admis-
sion of the recording of M’s statements to D identifying the defendant
as the shooter. The trial court concluded, however, that M’s statements
were admissible under the hearsay exception for spontaneous utter-
ances, and the recording was played for the jury. From the judgment
of conviction, the defendant appealed to this court. Held:
1. The defendant could not prevail on his claim that the trial court improperly
admitted A’s expert testimony about gangs on the grounds that it was
irrelevant and a violation of his constitutional right to confrontation:
a. The defendant abandoned his nonconstitutional, evidentiary claim that
A’s expert testimony was irrelevant; it was the defendant’s burden to
establish that the allegedly improper admission of A’s testimony was
harmful, he failed to brief that issue, and, even if the single sentence in
his brief relevant to that issue raised an argument that A’s testimony
was more prejudicial than probative, that argument did not address
whether any alleged error was harmful in light of all of the other evidence
adduced at the defendant’s trial.
b. The defendant failed to preserve his claim that A’s testimony violated
his constitutional right to confrontation insofar as it was a conduit for
inadmissible, testimonial hearsay from contacts and informants who
were not subject to cross-examination; defense counsel never argued
before the trial court that the alleged hearsay was testimonial, as counsel
challenged A’s testimony only on the basis of relevancy, hearsay and
prejudice, and, although the parties and the trial court might have been
on notice of other constitutional claims relative to other evidence, that
did not place them on notice as to this specific claim.
c. Even if A served as a conduit for testimonial hearsay, any constitutional
error in the admission of A’s testimony regarding gangs was harmless
beyond a reasonable doubt in light of the strength of the state’s case,
evidence of the defendant’s motive, and the cumulative nature of the
witnesses’ testimony: the jury reasonably could have inferred that the
defendant shot the victim in retaliation for H’s murder and that the
shooting was gang related, as there was evidence that the defendant and
H had been friends and that the victim had been arrested for the murder
of H but was acquitted after a trial, which the defendant attended; more-
over, the state linked the defendant to the 150 gang through the reference
to 150 on his bedroom mirror and evidence that he used that number
as part of his username for his Snapchat account; furthermore, the state’s
case was strong, as M, who had known the defendant for years, identified
the defendant as the shooter within minutes of the shooting, the firearm
used to shoot the victim and the sweatshirt that eyewitnesses had seen
the shooter wearing were discovered near the location where the police
apprehended the defendant, and testing could not eliminate the defendant
as a contributor to the DNA that was found on the gun used in the
shooting, which was similar to the gun that appeared in the rap music
video.
2. The defendant failed to establish that any error in the admission of the
rap music video was constitutional in nature, as he did not demonstrate
the materiality of that evidence, especially in light of the other substantial
evidence of his guilt that had been adduced at trial; moreover, the
defendant’s failure to brief the issue of harmless evidentiary error ren-
dered any evidentiary claim with respect to the admission of the video
abandoned.
3. The trial court did not abuse its discretion in admitting the photographs
of the writing on the mirror, because, even if the writing constituted
hearsay, it was admissible under the hearsay exception for statements
of a party opponent: the state produced sufficient evidence from which
the jury reasonably could have inferred that the defendant authored the
writing on the mirror, as there was circumstantial evidence that the
defendant was at least an occupant of the bedroom where the mirror was
found, including documents found therein with his name and address
on them, there was no evidence from which it could be inferred that a
person other than the defendant resided in the apartment, and, at the
time of the search by the police, the apartment was not open and
no one else was present in the apartment; moreover, there was other
circumstantial evidence that demonstrated the defendant authored the
writings, including his initials on the mirror.
4. The trial court did not abuse its discretion in admitting the recording of
M’s statements to D under the spontaneous utterance exception to the
hearsay rule: contrary to the defendant’s assertion that M’s statements
were inadmissible because she had an opportunity for deliberation or
fabrication, the few minutes between the shooting and her statements
to D were insufficient to provide M with an opportunity to deliberate
or to fabricate, especially in light of her proximity to the crime scene
and her emotional state, evidenced by her crying, her rambling, and her
distressed voice; moreover, it was of little significance that M’s statement
identifying the defendant as the shooter was in response to a question
from D, as her response was a stream of consciousness that was spoken
under emotional circumstances, she answered D’s question regarding
the shooter’s identity without pause, and, although she was rambling
and crying, she continued to provide D with additional information,
unprompted, about what she had witnessed; furthermore, there was no
evidence that J and M discussed the shooting prior to M’s conversation
with D, nothing J said to D, to the extent it was decipherable from the
recording, identified the defendant as the shooter, and there was no
evidence that M was influenced by anything she heard from J.
Argued November 18, 2020—officially released September 8, 2021*
Procedural History
Substitute information charging the defendant with
the crimes of murder and carrying a pistol without a
permit, brought to the Superior Court in the judicial
district of Fairfield, where the court, Pavia, J., denied
the defendant’s motions to preclude certain evidence;
thereafter, the case was tried to the jury before Pavia,
J.; verdict and judgment of guilty, from which the defen-
dant appealed. Affirmed.
Erica A. Barber, assigned counsel, for the appellant
(defendant).
Kathryn W. Bare, senior assistant state’s attorney,
with whom, on the brief, were Joseph T. Corradino,
state’s attorney, and Colleen P. Zingaro and Michael
A. DeJoseph, Jr., senior assistant state’s attorneys, for
the appellee (state).
Opinion
D’AURIA, J. The principal claims in this appeal con-
cern the propriety of the trial court’s admission of evi-
dence regarding a criminal defendant’s alleged gang
affiliation and, specifically, whether the prejudicial
nature of this evidence outweighed its relevance. The
defendant, Deonte O. Tomlinson, appeals from the judg-
ment of conviction, rendered after a jury trial, of murder
in violation of General Statutes § 53a-54a (a), for the
shooting death of the victim, Kahlil Diaz, and carrying
a pistol without a permit in violation of General Statutes
§ 29-35 (a). On appeal, the defendant claims that the
trial court improperly admitted the following evidence:
(1) expert testimony regarding gangs because it was
irrelevant and violated his right to confrontation under
the federal constitution; (2) a rap music video because
its highly prejudicial nature rendered his trial funda-
mentally unfair; (3) police photographs that depicted
writing on a mirror in a bedroom of his apartment—
arguably reflecting gang membership—because the
photographs constituted inadmissible hearsay; and (4)
portions of a recorded phone conversation that was
contemporaneous with the murder because it consti-
tuted hearsay and did not fall under the excited utter-
ance exception to the rule against hearsay. Although we
recognize that evidence regarding a defendant’s gang
affiliation may prejudice a jury against a defendant,
on the facts of this case, we affirm the judgment of
conviction.
Specifically, we conclude that the defendant did not
preserve at trial his claim regarding expert testimony
on gangs and that, even if the testimony was improperly
admitted, it was harmless beyond a reasonable doubt.
We also conclude that the defendant has failed to estab-
lish that the allegedly erroneous admission of the rap
music video was of constitutional magnitude. Finally,
we conclude that the trial court did not abuse its discre-
tion in admitting either the photographs of the mirror
or the recorded conversation.
Relevant to our review of these claims is the following
procedural history, along with the following facts the
jury reasonably could have found from the evidence
admitted at trial. At approximately noon on May 13,
2016, the day of the shooting, Detectives Theodore Mon-
tagna, Edward Martocchio and Albert Palatiello of the
Bridgeport Police Department were driving northbound
in an unmarked police vehicle on Madison Avenue in
Bridgeport. At the intersection of Madison Avenue and
Frank Street, Montagna saw a tall, thin, light-skinned
black male wearing a black hooded sweatshirt standing
in the middle of the street firing a gun with his right
hand into a silver-colored vehicle. After firing three
gunshots, the shooter turned away and ran eastbound
down an alleyway between two residences. Palatiello
exited the vehicle and ran northbound on Madison Ave-
nue, where he discovered the victim sitting in a silver-
colored Audi, bleeding from his neck. The victim exited
his vehicle and died at the scene from multiple gunshots
wounds.
Meanwhile, Montagna drove down Madison Avenue,
dropped Martocchio off halfway down the block, and
parked on the corner of Grand Street and Madison
Avenue, about one block from the crime scene, hoping
to flush out the shooter. As Montagna proceeded on
foot on Grand Street, he saw a tall, thin, black male,
later identified as the defendant, exit an alleyway that
ran behind a church and led to the backyard of a resi-
dence at Madison Avenue and Grand Street. The defen-
dant was no longer wearing a black sweatshirt. Monta-
gna yelled, ‘‘[s]top! Police!’’ The defendant stopped.
Montagna grabbed the defendant, and, unsolicited, the
defendant said, ‘‘I didn’t do nothing.’’ Montagna patted
the defendant down, searching for a weapon but did
not find one. Although the temperature was 61 degrees
Fahrenheit and the defendant was wearing only a T-
shirt and jeans, he was sweating and his heart was
beating rapidly.
While Montagna detained the defendant, Officer Paul
Nikola of the Bridgeport Police Department, who had
been dispatched to assist in the investigation, found a
knit hat, black hooded sweatshirt, and a silver-colored,
semiautomatic handgun under a wooden deck in the
backyard of a residence that abutted the alleyway from
which the defendant had emerged onto Grand Street.
Two witnesses to the shooting were not police offi-
cers: Francisco Rivera and Alexis McIntosh. McIntosh
had known the defendant since middle school and iden-
tified him as the shooter in a phone conversation
recorded within moments of the shooting. Rivera, who
had been waiting for a bus on Madison Avenue, wit-
nessed the shooting but did not see the shooter’s face
and could describe the shooter only as tall and dressed
entirely in black.
The state’s theory of the case was that the defendant
was a member of the ‘‘150 gang’’ and that the victim
was a member of a rival gang known as the ‘‘Green
Hollow Boyz.’’ The victim recently had been acquitted
after a trial of the murder of a member of the defendant’s
gang, Ryan Hernandez, and the state contended that
the defendant murdered the victim in retaliation. Fol-
lowing a jury trial, the defendant was convicted of mur-
der and carrying a pistol without a permit. The trial
court imposed a total effective sentence of fifty-three
years of incarceration. The defendant now appeals to
this court. Additional facts will be set forth as necessary.
I
The defendant claims that the trial court violated the
rules of evidence and his sixth amendment right to
confrontation by improperly admitting expert testi-
mony from Sergeant Jason Amato of the Bridgeport
Police Department regarding local street gangs. As to
his evidentiary claim, the defendant argues that, because
no direct evidence established that he was a member
of a gang, and, thus, no evidence established that the
shooting was associated with gang violence, expert tes-
timony regarding gangs was irrelevant. As to his con-
frontation clause claim, the defendant argues that
Amato’s testimony was a conduit for inadmissible, testi-
monial hearsay obtained from contacts in the commu-
nity and informants who were not subject to cross-
examination. The defendant contends that the state can-
not demonstrate that this error was harmless beyond
a reasonable doubt. The defendant’s failure to brief the
issue of harmfulness renders it unnecessary for us to
review that claim.
As to the defendant’s constitutional claim, which he
did not preserve at trial, on the record before this court,
we conclude that either a majority of Amato’s testimony
did not improperly parrot testimonial hearsay state-
ments or the record is inadequate to make that determi-
nation. We further conclude that any error by the trial
court in permitting Amato to serve as a conduit for
testimonial hearsay was harmless beyond a reason-
able doubt.
A
The following additional facts and procedural history
are necessary to our review of these claims. Prior to
trial, the defendant filed a motion in limine to exclude
evidence of his association with the 150 gang pursuant
to the fifth, sixth and fourteenth amendments to the
federal constitution, as well as §§ 4-1, 4-3, 4-5 and 8-2
of the Connecticut Code of Evidence. His supporting
memorandum of law, however, contained no constitu-
tional analysis, arguing only that Amato’s expert testi-
mony regarding gangs was irrelevant because there was
no evidence that the defendant belonged to a gang.
Before the start of evidence, the trial court held a
hearing on the defendant’s motion in limine. Amato
testified that he was the gang intelligence sergeant for
the city of Bridgeport. After testifying as to his experi-
ence and training, Amato explained that his duties
required him to acquire information provided by com-
munity members and gang members. When talking to
gang members, he would meet with them in an isolated
area to obtain pertinent information about gangs, the
meaning of signs and symbols that they use, areas of
the city that they control, and crimes that had been
committed.
Amato also testified that he was familiar with both
the 150 gang and the Green Hollow Boyz, as well as
with the defendant and Hernandez. He testified that
Hernandez had been a member of the 150 gang and that
the basis for his opinion included Hernandez’ portrayal
of himself in videos and other materials, along with
information from sources in the community.1 The victim
and Fabian Francis, who were members of the Green
Hollow Boyz, had been arrested and charged with Her-
nandez’ murder but were acquitted after trial. Amato
also was familiar with Tajvon Ferris and Kevin Beason
through ‘‘several contacts,’’ including ‘‘[i]nformation
provided through people on the street that they were
a part of a—they were part of the 150 [gang]. And we
had made contacts on the street with them.’’ Amato
learned through informants and social media that the
defendant was associated with Ferris and Beason, and
with the 150 gang.
Amato then testified that, as part of his duties, he
monitored social media to keep an eye on the gangs and
to learn more about them. This was how he discovered
a rap music video depicting the defendant, Ferris, and
Beason. Based on what others had told him, Amato was
able to interpret the video’s lyrics, including that the
use of ‘‘G’’ in the video meant the Green Hollow Boyz.
Based on his experience as a gang intelligence ser-
geant and his investigation of shootings in the city,
including that of the victim, Amato opined that, at the
time of the victim’s death, there was a conflict between
the 150 gang and the Green Hollow Boyz, and that
Hernandez’ homicide and the acquittal of the victim
and Francis contributed to this conflict. He stated that
his knowledge of which gangs controlled which areas
of the city was based not just on what community resi-
dents, informants, and gang members had told him, but
on his own observations and experiences.
Amato conceded that the defendant never told him
that he was involved in a gang. Rather, Amato’s opinion
that the defendant was ‘‘100 percent part of [the] 150
[gang]’’ was based on ‘‘information we receive through
sources, videos, [and] photographs, other information
through the years,’’ and that other police officers had
told him that the defendant had been involved in other
gang related crimes. For example, he testified that the
rap music video he had discovered evidenced an associ-
ation between the three men, referred to issues involv-
ing another area gang, and exhibited access to a ‘‘com-
munity weapon,’’ which he described as a weapon
hidden by a gang in a certain location that can be
accessed and used by any member of that gang who
needs a firearm, after which the firearm is to be returned
to the same hidden location for use by other members of
the gang. He clarified that he learned about community
weapons from his debriefing of gang members and
through his experience.
Following Amato’s testimony at the pretrial hearing,
defense counsel argued that this testimony was inad-
missible because Amato admitted that he was basing
his opinions on hearsay and that, as an expert witness,
Amato was not allowed to parrot hearsay. The court
made ‘‘a finding that . . . in this particular instance
. . . the expert’s testimony is based on evidence that
has been gained through many years of experience,
through many courses that have been taken, through
sources that are reliable, and, therefore, it’s going to
be a question of weight, not admissibility.’’ The court
made clear, however, that it was making a preliminary
ruling and that the parties should raise additional objec-
tions at trial based on the evidence that was admitted.
For example, the court stated that, if there was no evi-
dence that the defendant was a member of the 150 gang,
Amato’s expert testimony could be ruled irrelevant and
inadmissible.2
Prior to the start of Amato’s testimony at trial, defense
counsel accepted the court’s invitation and again
objected to his testimony, arguing that there had been,
to that point, no nonhearsay evidence admitted showing
that the defendant was a member of the 150 gang. The
trial court adhered to its prior ruling and overruled the
objection that all expert testimony regarding gangs was
irrelevant. The court clarified that Amato could testify
that 150 is a known gang but not that the defendant
was a member of the 150 gang or what was meant by
the ‘‘150’’ in his Snapchat address and on his bedroom
mirror. The court stated that the jury could instead infer
any link between the defendant and the 150 gang.
Amato’s testimony before the jury was considerably
shorter than what the state had presented at the pretrial
hearing. After describing his training and experience,
Amato testified that, as the city’s gang intelligence ser-
geant, he was ‘‘responsible for any gang related activity,
shootings, assaults, identifying and tracking gang intelli-
gence . . . . [T]hen we . . . share [it] with other units
in the city.’’ He testified that, as part of his duties,
he gathered intelligence from many sources, including
social media, the Internet, and contacts within the com-
munity. Amato explained that gangs in Bridgeport are
unique; they are not organized but, instead, are neigh-
borhood based with certain gangs controlling different
areas of the city based on where the members are from.
Amato repeated that portion of his pretrial testimony
in which he indicated that he knew Hernandez through
contacts in the community and that Hernandez went
by the nickname, or street name, ‘‘Ryo.’’ Amato learned
through the course of his employment that Hernandez
had been fatally shot and that Francis and the victim
had been arrested in connection with the shooting but
were later acquitted after trial.
The prosecutor then asked Amato if he was aware
of the motive behind the murder of Hernandez, to which
he responded in the affirmative, leading defense coun-
sel to object on the ground of hearsay. Amato then
explained that the basis for his knowledge included
community contacts, firsthand knowledge from investi-
gating the defendant’s case and his work as a police
officer in general, which included a long-term investiga-
tion into a rival gang. The trial court overruled defense
counsel’s objection.3
Amato proceeded to testify, as he did at the pretrial
hearing, that the motive underlying the homicide of
Hernandez was gang related, that Hernandez had been
affiliated with the 150 gang, which also was known as
the Park Avenue Boyz (PAB), and that Francis and the
victim were affiliated with the rival Green Hollow Boyz
gang. Amato stated that his testimony was based on
his long-term investigation of neighborhood gangs in
Bridgeport, each of which controlled its own section
of the city. He testified that he had firsthand knowledge
that, in 2016, there had been a conflict between the 150
gang and the Green Hollow Boyz, and that, based on
information he had gathered at various shooting inci-
dents in Bridgeport, he arrived at his opinion that there
was a war between these two gangs. He opined that
the murder of Hernandez contributed to this conflict
and that, based on information he obtained through
‘‘contacts on the street, using confidential informants,’’
‘‘[the conflict] was gonna continue, and it was only
gonna get worse.’’
Based on his training, Amato also testified that an
individual seeking to identify his association with the
150 gang would assign himself either a name or a sym-
bol, using the number 150 or PAB. Similarly, someone
affiliated with the Green Hollow Boyz would use ‘‘G-
B’’ or ‘‘G$B.’’
Amato testified that he knew the defendant, Ferris,
and Beason from prior contacts, with Ferris going by
the nickname ‘‘T Raw,’’ Beason going by ‘‘KB,’’ and the
defendant going by ‘‘DT.’’ He explained that, prior to
the shooting at issue, he had discovered a rap music
video depicting the defendant, Ferris, and Beason.
Defense counsel again objected when the state sought
to admit the rap video into evidence, stating simply that
he maintained his prior objections.
Before the video was played for the jury, Amato testi-
fied that he was familiar with the term ‘‘community
weapon’’ through his training and experience, and
described it is ‘‘a firearm that’s passed amongst the
gang members or group members from that one area.’’
Using a screenshot from the rap video, Amato identified
the defendant, Ferris, and Beason. The video was subse-
quently played for the jury. Amato was not permitted
to interpret what was said in the video.4
In closing arguments to the jury, the prosecutor
argued that, as to motive, Hernandez and the defendant
were associated with each other and that the victim
was shot only a few months after being acquitted of
Hernandez’ murder. The prosecutor further argued that
there was an ongoing feud between the 150 gang and the
Green Hollow Boyz. The prosecutor never specifically
argued that the defendant was a member of the 150
gang or that the shooting of the victim was gang related.
The prosecutor suggested this, however, by relying on
the testimony of both McIntosh and Amato to argue
that the shooting occurred in an area of the city that
was not controlled by the 150 gang but by the Green
Hollow Boyz, with which the victim had been associ-
ated, and that the defendant’s presence in that area was
not normal. The prosecutor also noted that the rap
music video and the defendant’s Snapchat name con-
tained the number 150 but left the jury to draw its
own inferences and conclusions from this fact. The
prosecutor specifically argued, without objection from
the defendant, that the shooting of Hernandez, in which
the state had implicated the victim, was part of the feud
between the two gangs.
Neither party timely requested that the court give the
jury an instruction on motive or any limiting instruction
regarding Amato’s testimony. The court, however, did
instruct the jury, without objection from the parties,
regarding expert testimony in general, consistent with the
model jury instructions on the Judicial Branch website.
See Connecticut Criminal Jury Instructions 2.5-1, available
at https://www.jud.ct.gov/JI/Criminal/Criminal.pdf (last
visited September 8, 2021).
B
The defendant first asserts that Amato’s expert testi-
mony was inadmissible because it was irrelevant. Spe-
cifically, he argues that, because there was no direct
evidence that he was a member of the 150 gang, this
evidence was not relevant to motive, that is, that he
killed the victim, who was a member of a rival gang,
in retaliation for the victim’s allegedly having murdered
Hernandez, who had been the defendant’s friend and a
fellow gang member. The defendant does not argue,
however, that this alleged evidentiary error was harm-
ful.5 Accordingly, we deem this claim of evidentiary
error abandoned and decline to address it.
We have stated that, if the improper admission of
expert opinion testimony ‘‘is not constitutional in
nature, the defendant bears the burden of demonstra-
ting that the error was harmful. . . . [A] nonconstitu-
tional error is harmless when an appellate court has a
fair assurance that the error did not substantially affect
the verdict.’’ (Citations omitted; internal quotation
marks omitted.) State v. Beavers, 290 Conn. 386, 419,
963 A.2d 956 (2009). The defendant argues in a single
sentence in his principal brief that, by utilizing Amato’s
allegedly irrelevant testimony, ‘‘the state played to the
[jurors’] fears and unduly prejudiced the defendant; that
is, it raised and perpetuated the specter of the young,
violent, inner city African-American male as associating
with and engaging in the most negative of stereotypes.’’
Even if this single sentence sufficed to raise an argu-
ment that the testimony was inadmissible because it
was more prejudicial than probative, the argument does
not address whether any alleged error was harmful in
light of all the other evidence. See State v. Toro, 172
Conn. App. 810, 818–20, 162 A.3d 63 (explaining that,
although prejudice and harm may overlap, they are sep-
arate and distinct issues requiring separate analysis),
cert. denied, 327 Conn. 905, 170 A.3d 2 (2017). Because
it was the defendant’s burden to establish harm from
any evidentiary error; see State v. Beavers, supra, 419;
and because he failed to brief the issue of harmful error,
we deem this claim abandoned and decline to address
it.6 See State v. Kirsch, 263 Conn. 390, 412, 820 A.2d 236(2003) (‘‘to establish reversible error on an evidentiary
impropriety, the defendant must prove both an abuse of
discretion and a harm that resulted from such abuse’’);
State v. Toro, supra, 818–20 (evidentiary claim was aban-
doned when defendant did not brief issue of whether
admission of evidence constituted harmful error).
C
The defendant also claims that the admission of
Amato’s expert testimony was improper because it vio-
lated his sixth amendment right to confrontation. Spe-
cifically, he argues that Amato’s testimony was a con-
duit for inadmissible, testimonial hearsay obtained from
contacts and informants who were not subject to cross-
examination.
First, we must decide whether the defendant properly
preserved this claim. He argues that he raised this claim
at trial because, (1) in his motion in limine to exclude
evidence regarding any alleged association with the 150
gang, he stated that he sought to exclude this evidence
pursuant to the fifth, sixth, and fourteenth amendments
to the federal constitution, (2) he argued at trial that
Amato, as an expert witness, could not merely repeat
hearsay from witnesses and informants, (3) he raised
this claim in his motion for a new trial, and (4) the
trial court recognized the constitutional implications of
admitting other hearsay reliant testimony, and, thus,
the trial court and the state were on notice of his claim.
The record does not support the defendant’s arguments.
Although, in his motion in limine, the defendant cited
to the sixth amendment, he never distinctly claimed
that he was raising a confrontation clause claim; nor
did he advance any argument that Amato’s testimony
was a conduit for testimonial hearsay. Rather, he
argued only that Amato’s testimony was irrelevant.
Additionally, at trial, his argument regarding the admis-
sibility of this evidence was limited to hearsay and
prejudice. Although, as we will discuss subsequently,
hearsay is one component of a confrontation clause
claim, it is not the equivalent of a confrontation clause
claim, which requires the defendant to establish that
he did not have an opportunity to cross-examine a
declarant regarding a testimonial, hearsay statement.
See, e.g., State v. Walker, 332 Conn. 678, 700–701, 212
A.3d 1244 (2019) (defendant must establish that chal-
lenged statement was both hearsay and testimonial in
nature). The defendant never argued that the alleged
hearsay was testimonial. In his motion for a new trial,
the defendant raised only hearsay and prejudice chal-
lenges to Amato’s testimony. Finally, the fact that the
parties and the trial court might have been on notice of
other constitutional claims in relation to other evidence
offered at trial did not place them on notice of this
specific claim. Alerting the trial court and the state to
this particular claim at trial is important in creating a
proper record for appellate review. We conclude that
the defendant did not preserve this claim at trial and
that we may review it only pursuant to State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified
by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188(2015).
Under Golding, ‘‘a defendant can prevail on a claim
of constitutional error not preserved at trial only if all
of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the
claim is of constitutional magnitude alleging the viola-
tion of a fundamental right; (3) the alleged constitu-
tional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis omitted; footnote omit-
ted.) State v. Golding, supra, 213 Conn. 239–40. Because
this court previously has not had the opportunity to
address a confrontation clause claim in relation to
expert testimony regarding gangs, we first briefly
address how trial courts should treat such testimony.
Having reviewed the entire record in the present case,
however, we determine that any possible error in admit-
ting Amato’s testimony was harmless beyond a reason-
able doubt, and, thus, the defendant’s claim fails on the
fourth prong of Golding.
1
Although our recent discussion of testimonial hear-
say in Walker did not pertain to expert testimony regard-
ing gangs, we stated that ‘‘testimonial hearsay is admis-
sible against a criminal defendant at trial only if the
defendant had a prior opportunity for cross-examina-
tion and the witness is unavailable to testify at trial. . . .
Accordingly, the threshold inquiries in a confrontation
clause analysis are whether the statement was hearsay,
and if so, whether the statement was testimonial in
nature . . . . These are questions of law over which
our review is plenary.’’ (Citations omitted; internal quo-
tation marks omitted.) State v. Walker, supra, 332 Conn.
689–90. Testimonial hearsay includes statements made
under circumstances that ‘‘would lead an objective wit-
ness reasonably to believe that the statement would be
available for use at a later trial . . . .’’ (Internal quota-
tion marks omitted.) Id., 701.
We recognize that ‘‘[s]pecial considerations arise
under the [c]onfrontation [c]lause in the context of
expert testimony.’’ United States v. Garcia, 793 F.3d
1194, 1212 (10th Cir. 2015), cert. denied, 577 U.S. 1088,
136 S. Ct. 860, 193 L. Ed. 2d 758 (2016). Although an
expert may rely on hearsay in reaching an opinion, the
expert may not place the underlying hearsay before the
jury for its truth. See Conn. Code Evid. § 7-4 (b); see
also State v. Lebrick, 334 Conn. 492, 527, 223 A.3d 333(2020); State v. Walker, supra, 332 Conn. 691–93; cf.
Milliun v. New Milford Hospital, 310 Conn. 711, 726–27,
80 A.3d 887 (2013) (civil case; no confrontation clause
issue), overruled in part on other grounds by DeMaria
v. Bridgeport, 339 Conn. 477, 261 A.3d 696 (2021).
Both our Appellate Court and the United States Courts
of Appeals have applied these legal principles to expert
testimony regarding gangs and other criminal associa-
tions, holding that this testimony does not implicate the
confrontation clause, even if the expert relies on hearsay—
testimonial or otherwise—in reaching an opinion, as long
as certain circumstances are present and precautions
are observed. To begin with, it is necessary that the
expert apply his or her training and experience to the
information to reach an independent judgment and does
not merely parrot another individual’s out-of-court
statement for its truth, thereby serving as a conduit for
an otherwise inadmissible hearsay statement. See, e.g.,
United States v. Garcia, supra, 793 F.3d 1212–13; see
also United States v. Rios, 830 F.3d 403, 417–18 (6th
Cir. 2016), cert. denied sub nom. Casillas v. United
States, U.S. , 137 S. Ct. 1120, 197 L. Ed. 2d 220(2017), and cert. denied, U.S. , 138 S. Ct. 2701,
201 L. Ed. 2d 1096 (2018); United States v. Vera, 770
F.3d 1232, 1239–40 (9th Cir. 2014); United States v.
Palacios, 677 F.3d 234, 243–44 (4th Cir.), cert. denied,
568 U.S. 834, 133 S. Ct. 124, 184 L. Ed. 2d 59 (2012);
United States v. Mejia, 545 F.3d 179, 197 (2d Cir. 2008);
United States v. Dukagjini, 326 F.3d 45, 58 (2d Cir.
2003), cert. denied sub nom. Griffin v. United States,
541 U.S. 1092, 124 S. Ct. 2832, 159 L. Ed. 2d 259 (2004);
United States v. LoCascio, 6 F.3d 924, 937–38 (2d Cir.
1993), cert. denied, 511 U.S. 1070, 114 S. Ct. 1646, 128
L. Ed. 2d 365 (1994), and cert. denied sub nom. Gotti
v. United States, 511 U.S. 1070, 114 S. Ct. 1645, 128 L.
Ed. 2d 365 (1994); State v. Crocker, 83 Conn. App. 615,
634–35, 852 A.2d 762, cert. denied, 271 Conn. 910, 859
A.2d 571 (2004); State v. Henry, 72 Conn. App. 640,
656–58, 805 A.2d 823, cert. denied, 262 Conn. 917, 811
A.2d 1293 (2002). For example, if the expert explicitly
refers to or vouches for the accuracy of the underlying
hearsay statement, the confrontation clause is impli-
cated, as ‘‘expert witnesses cannot be used as conduits
for the admission into evidence of the testimonial state-
ments of others.’’ State v. Walker, supra, 332 Conn. 695.
Additionally, the level of specificity contained in the
hearsay statement must also be considered. ‘‘An important
consideration in distinguishing proper testimony from
parroting is the generality or specificity of the expert
testimony. . . . [W]hen [gang expert] testimony
descends to a discussion of specific events recounted
by others, the expert is merely adding unmerited credi-
bility to the sources . . . and summarizing evidence in
a way that should be reserved for the government’s
closing argument.’’ (Citation omitted; internal quotation
marks omitted.) United States v. Garcia, supra, 1213;
see also United States v. Mejia, supra, 194–95.7 It also
is important to ensure that the expert is utilizing the
hearsay testimony for the purpose of applying to that
testimony his particular area of expertise. See, e.g.,
United States v. Dukagjini, supra, 326 F.3d 59 (‘‘[w]hen-
ever a court permits a case agent or a fact witness to
testify as an expert, there is a significant risk that, if
the witness digresses from his expertise, he will be
improperly relying [on] hearsay evidence and may con-
vey hearsay to the jury’’).8
2
Even if we assume that Amato served as a conduit
for testimonial hearsay, however, we conclude that this
error was harmless beyond a reasonable doubt.9 Because
the defendant’s claim is constitutional in nature, the
state bears the burden of establishing that this alleged
error was harmless beyond a reasonable doubt.10 See,
e.g., State v. Edwards, 334 Conn. 688, 706–707, 224 A.3d
504 (2020). ‘‘That determination must be made in light
of the entire record [including the strength of the state’s
case without the evidence admitted in error]. . . .
Additional factors . . . include the importance of the
challenged evidence to the prosecution’s case, whether
it is cumulative, the extent of cross-examination permit-
ted, and the presence or absence of corroborating or
contradicting evidence or testimony.’’ (Citation omitted;
internal quotation marks omitted.) Id., 707.
The following additional facts are relevant to our
harmless error analysis. The state presented the testi-
mony of two eyewitnesses. Rivera, who had been wait-
ing at a bus stop on Madison Avenue just before noon
on the day of the shooting, testified that he saw a tall
man dressed entirely in black point a gun into a car
and then heard gunshots. More incriminating, however,
was the testimony of McIntosh, who had known the
defendant since middle school, had seen him two to
three weeks prior to the shooting, and, also prior to
the shooting, had had contact with him on Snapchat
where his username was ‘‘Hotboy150.’’ She testified
that, at approximately noon on the day of the shooting,
she was in a vehicle operated by Kadeija Johnson on
Madison Avenue. At that time, the two women were
discussing whether Johnson had made a wrong turn.
McIntosh saw the defendant, whom she knew as ‘‘DT,’’
walking across the street with his hands in his pockets
and then heard gunshots as she turned her head away
from him. She recognized the defendant by his height,
skin tone, and facial expression—he was biting his lip—
and was surprised to see him in this area of the city
because he was not from that side of the city.
After the gunshots, Johnson made a U-turn to return
to the scene to see what had happened. McIntosh then
saw the victim exit his vehicle, bleeding from the neck.
During these events, Johnson had been on the phone
with her then boyfriend, Richard Davis. Because Davis
was incarcerated, the conversation was recorded by
the correctional facility. Within minutes of the shooting,
McIntosh also spoke with Davis and told him that the
defendant was the shooter.
At trial, McIntosh testified that she was not certain
that the shooter was the defendant because she had not
been wearing her glasses in the car. The state refreshed
McIntosh’s recollection with a statement she had made
to the police. In that statement, McIntosh said that she
actually saw the defendant pull out a silver-colored gun
and shoot the victim while the defendant was standing
in the middle of the street and that she was 100 percent
certain that the defendant was the shooter. She also
told the police that she was able to see this despite not
wearing her glasses at the time. At trial, however, she
sought to clarify that she did not see the shooting or
the defendant with a gun but, rather, saw something
silver-colored in his hand and thought it was a cell
phone but, after hearing the gunshots, assumed it was
a gun. She also testified that she told the police that
she was certain that the shooter was the defendant only
because she had seen a video on social media about
his arrest. She claimed at trial that she was only 60 to
70 percent certain it was he until then, and she did not
want to get involved unless she was certain.
The court then admitted into evidence a portion of
the recording of McIntosh’s conversation with Davis
under the spontaneous utterance exception to the rule
against hearsay to show that she had been certain of
the shooter’s identity at the time of the shooting and
had in fact witnessed the shooting and seen the gun.
The jury reasonably could have concluded that the
recording stated:
‘‘[Q]. Hello? Who shot him?
‘‘[A]. No. I seen his face. He was light-skinned. He
had on a hoodie. He had on all black.
‘‘[Q]. He tall?
‘‘[A]. Yes. He’s tall. He’s like a little taller than Kai yo.
‘‘[Q]. DT?
‘‘[A]. I swear to god it looked just like DT because I
was looking and I seen his face yo, and I was like I
know that’s not DT. Pulled out a gun and he fired. I
swear to god Pooh Bear, it looked like DT, and I looked
right in his face. I looked right in in his face, and I said
that looked like DT. I seen him pull out something silver.
I can’t see far with my glasses.’’
In the recording, McIntosh was clearly emotional, her
words broken up by sobs and crying. After the recording
was played for the jury, McIntosh clarified that, when
she exclaimed to Davis, ‘‘I know that’s not DT,’’ she did
not mean that she was uncertain as to the identity of
the shooter but that she was surprised by his presence
in that area of town and shocked by what she had
witnessed.
In addition to the testimony of Rivera and McIntosh,
the state offered the testimony of the three detectives
who had been driving to lunch on Madison Avenue at
the time of the shooting, Martocchio, Montagna, and
Palatiello. Because they were going for lunch, none of
the detectives had their handcuffs or bulletproof vests
with them, although they had their service revolvers
and police radios. Montagna, who was driving the car,
testified that he stopped at a stop sign on Frank Street,
which intersected with Madison Avenue. Montagna tes-
tified that, although another vehicle was in front of
them at the stop sign, he could see clearly up Madison
Avenue. While the detectives were stopped, Montagna
saw a black male wearing a dark colored, hooded
sweatshirt in the middle of the road firing a gun with
his right hand into a silver-colored vehicle before run-
ning from the scene on Madison Avenue and through
a backyard toward Grand Street. At that time, Palatiello
got out of the vehicle11 and Martocchio announced over
the police radio that gunshots had been fired. Montagna
drove down the street a little farther, letting Martocchio
out midblock before parking and exiting the vehicle at
the corner of Madison Avenue and Grand Street (one
block away from the shooting) to search the backyards
in the hope of flushing out the shooter. This all occurred
within twenty to thirty seconds of the shooting.
Montagna then walked down Grand Street with his
service revolver drawn, searching for the shooter. He
described the shooter over the police radio as a tall,
thin, black male. Within two minutes, as Montagna pro-
ceeded down Grand Street, the defendant appeared out
of an alleyway. Montagna immediately yelled for the
defendant to stop and identified himself as a police
officer. The defendant, who stopped, looked similar to
the shooter but was wearing a T-shirt rather than a
sweatshirt. Montagna testified that the defendant said
that he did not do anything, although Montagna had
not asked a question. Montagna determined that the
defendant was unarmed but was sweating and had a
rapid heartbeat. Montagna was not certain whether the
defendant was the shooter, but the defendant was simi-
lar to the shooter in terms of weight, thinness, height,
and skin tone (light-skinned black man).
At this time, no one else was in the area, and, because
Montagna did not have handcuffs with him, he held
onto the back of the defendant’s pants and waited for
another officer to arrive. Montagna did not want to let
go of the defendant to make any announcement on the
police radio. He held onto the defendant for about one
minute before Sergeant Joel Carly arrived in a police
vehicle. The defendant was then placed in the back of
Carly’s vehicle. After securing the defendant, Montagna
searched for the weapon in a backyard near the area
from which the defendant had emerged onto Grand
Street. At this time, Nikola, who was assisting in the
investigation, also was searching this area. When Mon-
tagna did not discover anything in the yard, he walked
back to Carly and discussed what steps to take next.
Nikola then called Montagna over and said that he had
found a gun, a hooded sweatshirt, and a knit hat under-
neath a deck in the backyard abutting the alleyway from
which the defendant had emerged onto Grand Street.
The sweatshirt was similar to the one that the shooter
had been wearing. Only after Nikola discovered these
items, approximately eight minutes after the gunshots
were reported, was it announced over the police radio
that a suspect had been detained.
As to physical evidence, the state offered DNA evi-
dence showing that the defendant had been eliminated
as a contributor to DNA samples that were taken from
the cuff, zipper pull, and pocket areas of the hooded
sweatshirt. DNA testing on the armpit of the hooded
sweatshirt was inconclusive regarding the defendant.
He was included, however, as a contributor to a mixed
DNA sample on the knit hat. In addition, although an
initial laboratory test eliminated the defendant as a
contributor to the DNA sample from the firearm, later
testing showed that no comparison could be drawn
because of the large number of contributors found in
the DNA sample from the firearm.
Samples from the hooded sweatshirt also showed
that Beason was a contributor to the mixed DNA sample
and that Ferris was a major contributor. Ferris also was
a major contributor to the DNA sample from the knit
hat. To explain this DNA evidence, the state offered
evidence that the defendant was associated with Bea-
son and Ferris. Additionally, the state offered testimony
from Latia Steadman, an acquaintance of Beason, that
he had borrowed her vehicle on the day of the shooting,
and video surveillance evidence showed that this vehi-
cle was near the crime scene at the time of the shooting.
The state also offered testimony from Fung Cso
Kwok, a state forensics examiner and an expert in gun-
shot residue. He testified that gunshot residue is com-
prised of three elements—lead, antimony, and barium—
and that two of these elements (lead and barium) were
found in samples taken from the right side of the defen-
dant’s pants. Such findings were consistent with gun-
shot residue. Additionally, lead was found on samples
taken from the defendant’s left and right palms, and from
the back of his right hand. These findings are commonly
associated with gunshot residue. Kwok explained that
the amount of gunshot residue that lands on a shooter
and the presence of all three elements can be affected
by wind or by the shooter moving or wiping his hands.
The evidence demonstrates that the defendant was out-
doors at the time of the shooting, had been running
prior to being detained, and had removed his sweatshirt,
from which the jury reasonably could have inferred
that the gunshot residue may have been removed or
affected.
Regarding the firearm specifically, the state offered
testimony from Marshal Robinson, a firearms examiner,
that the firearm discovered under the deck close to
where the police apprehended the defendant was the
gun from which the bullets that struck the victim were
shot. Additionally, Robinson testified that the gun dis-
covered near the scene was similar to a gun depicted
in the rap music video that featured the defendant,
Beason, and Ferris. The gun in the video and the gun
discovered hidden under the deck both had similar floor
plates, finger extensions, and trigger shape. Both guns
appeared to be .380 automatics. Although only Beason
and Ferris were seen holding the gun in the video, the
prosecutor argued to the jury that some aspects of that
gun were similar to the gun used to shoot the victim and
that this was evidence that the defendant had access
to the gun. Additionally, the DNA evidence showed that
numerous people had touched the gun and, thus, no
comparison could be drawn. From all of this, the jury
reasonably could have inferred that the defendant had
access to the gun used to shoot the victim.
As to motive, besides Amato’s challenged testimony,
the state offered evidence that the defendant and Her-
nandez had been friends. Additionally, there was unchal-
lenged testimony that the victim had been arrested for
the murder of Hernandez but was acquitted after a trial.
Maya Oquendo, the mother of the victim’s son, testified
that the defendant had attended the victim’s trial,
although she could not recall if he had been present
for the verdict.
From this evidence, we conclude that the state has
established that any error in admitting the challenged
evidence was harmless beyond a reasonable doubt. Mul-
tiple witnesses testified about the relationship between
the defendant and Hernandez, and the facts underlying
Hernandez’ death. The jury reasonably could have
inferred from the defendant’s presence at the victim’s
trial that he knew that the victim had been acquitted.
From this, even without Amato’s testimony regarding
the motive underlying the Hernandez homicide and
gang affiliation, the jury reasonably could have inferred
that the defendant shot the victim in retaliation for
his friend’s death. Although there was no other direct
evidence that the Hernandez homicide was gang related,
such evidence was not necessary to establish a motive
for the shooting at issue, about which Amato did not
testify. The jury also reasonably could have inferred
from other evidence that the shooting at issue was gang
related. Specifically, the state linked the defendant to
the 150 gang through circumstantial evidence—the ref-
erence to 150 on his bedroom mirror and in his Snapchat
username, as well as McIntosh’s testimony that he was
not from the part of the city where the shooting
occurred. To the extent Amato’s testimony bolstered
the state’s theory regarding motive, or that its exclusion
would have diminished that theory, we note that the
state is not required to establish motive, which is not
an element of either of the offenses with which the
defendant was charged. See State v. Wilson, 308 Conn.
412, 430, 64 A.3d 91 (2013).
Moreover, the state’s case against the defendant was
strong. Within moments of the shooting, while under
the stress and emotional strain of having witnessed the
shooting, McIntosh, who had known the defendant for
years, identified him as the shooter. See part IV of this
opinion. Additionally, although the announcement over
the police radio that the defendant had been appre-
hended was not made until approximately eight minutes
after the shooting, the reporting was delayed; the defen-
dant had been detained within minutes of the shooting.
Montagna observed while detaining him that the defen-
dant was sweating and that his heart was beating rap-
idly, as if he had been running. The firearm used to
shoot the victim, along with a black hooded sweatshirt,
which was consistent with the sweatshirt eyewitnesses
had seen the shooter wearing, was discovered hidden
under a deck in a backyard near where the defendant
was apprehended. Although the DNA evidence was not
conclusive, the defendant’s DNA could not be excluded
from the DNA samples taken from these items. Addi-
tionally, the DNA of two of the defendant’s associates,
Beason and Ferris, was found on these items or could
not be excluded from the DNA samples taken from
them. There also was evidence that the defendant had
access to the gun, which was similar to the gun that
appeared in the rap music video. Although there was
not a match between the DNA on the gun and that of
the defendant, two of the three elements of gunshot
residue were discovered on the defendant’s pants.
Nevertheless, the defendant points to the following
flaws in the state’s case: (1) McIntosh spoke to the
police only after seeing a video on social media about
the defendant’s arrest; (2) analysis of the DNA evidence
found on the gun excluded the defendant as a contribu-
tor; (3) DNA evidence suggested that Ferris or Beason
was the shooter; and (4) the defendant presented evi-
dence that he was left-handed but that the shooter was
right-handed. It is true that McIntosh’s testimony was
equivocal. The state, however, offered strong evidence
that, at the moment of the shooting, McIntosh identified
the defendant as the shooter before she had time to
contemplate what she had seen. See part IV of this
opinion. As to the DNA evidence regarding the gun, it
is not accurate to say that the defendant was excluded
as a contributor. Rather, in the initial test conducted,
he was excluded as a contributor to the DNA on the
gun, but more modern, recent testing showed that he
could not be excluded as a contributor because there
were too many contributors to the DNA sample. This
evidence, combined with the rap music video depicting
Beason and Ferris holding a similar gun, supported the
state’s argument that the defendant had access to the
gun that shot the victim. As for the DNA evidence sug-
gesting that Ferris or Beason was the shooter, the state
also offered evidence to explain the presence of their
DNA—that they were associates of the defendant, with
Beason possibly serving as the getaway driver. The state
based this argument on video surveillance evidence
from the time of the shooting that showed the vehicle
Beason used that day near the crime scene. Last, as to
the evidence that the defendant was left-handed, the
defendant offered only testimony from Detective Jorge
L. Cintron of the Bridgeport Police Department, who
stated that he saw the defendant sign a piece of paper
with his left hand but that the writing looked more
like a scribble than a signature. Thus, the defendant’s
evidence in this regard was weak.
Accordingly, in light of the strength of the state’s
case, the other evidence of motive, and the cumulative
nature of the testimony, we conclude that any error
in the admission of Amato’s testimony was harmless
beyond a reasonable doubt.
II
The defendant next claims that the trial court
deprived him of a fair trial in violation of his due process
rights under the federal constitution by improperly
admitting the rap music video in which he was featured
along with Ferris and Beason because (1) it contained
inadmissible hearsay, (2) lacked any nexus to the
charged offenses, and (3) was unduly prejudicial. The
defendant argues that the state is not able to show that
this error was harmless beyond a reasonable doubt.
The state responds that the rap music video (1) was
properly admitted as an adoptive admission of a party
opponent under § 8-3 (1) (B) of the Connecticut Code
of Evidence, (2) was relevant to establishing the defen-
dant’s motive, his access to a gun, his association with
the 150 gang, and his association with Beason and
Ferris, whose DNA was also found on the hooded
sweatshirt and hat, and (3) was not more prejudicial
than probative. The state thus argues that any error
was not of constitutional magnitude and that, to the
extent admission of the video was improper, it was the
defendant’s burden to establish harm.
We agree with the state that the defendant has failed
to establish that this alleged error was constitutional
in nature. We also agree with the state that it was the
defendant’s burden to establish harm, and, therefore,
even if we assume that the trial court improperly admit-
ted the video, the defendant’s failure to brief the issue
of harmless evidentiary error renders any evidentiary
claim abandoned. Nevertheless, we acknowledge the
potential for the prejudicial use of evidence depicting
or describing gratuitous violence or playing on potential
juror biases—whether contained in a rap music video
or any other type of evidence—and encourage defen-
dants to request, and trial courts to undertake, measures
to mitigate any prejudice. Because the defendant did
not request these measures in the present case, how-
ever, we cannot conclude that any alleged error was
constitutional in nature.
The following additional facts and procedural history
are relevant to our resolution of this claim. At trial,
Amato testified that, as part of his work as a police
officer, he monitors social media to collect intelligence
on the different gangs in the city. Amato testified that,
prior to the shooting at issue, in March, 2016, he discov-
ered a rap music video on the Internet. There are three
individuals depicted in the video, whom Amato identi-
fied as the defendant, Beason, and Ferris, all of whom
he had contact with previously. Amato downloaded the
video the same day he discovered it and transferred it
to a computer storage device on May 13, 2016. The
video is titled ‘‘DT the Gawd X Trawobe—Purp Shot
@JayYoung56.’’
The video features the defendant, Beason, and Ferris
rapping, surrounded by graffiti, alcohol, and a gun.
Because of the quality and clarity of the audio, the lyrics
are difficult to decipher at times. The jury reasonably
could have concluded, however, that the lyrics included
profanity and referenced narcotics, firearms, shootings,
robberies, and threats to the police. The jury also rea-
sonably could have concluded that the lyrics referenced
‘‘Ryo,’’ which was Hernandez’ street name. In the video,
both Beason and Ferris hold the gun, but the defendant
is never seen holding the gun. Toward the end of the
video, the screen displays the Snapchat symbol (the
outline of a ghost inside a yellow square) with the user-
name ‘‘Hotboy 150’’ next to the symbol. There was testi-
mony at trial that Hotboy 150 was the defendant’s Snap-
chat username.
Before trial, the defendant moved in limine to exclude
the rap music video in its entirety on the grounds that
it violated his due process right to a fair trial and was
inadmissible as irrelevant and prejudicial under §§ 4-1
and 4-3 of the Connecticut Code of Evidence. Following
an evidentiary hearing, the trial court heard oral argu-
ment. The defendant argued that the video was irrele-
vant because he never held the gun in the video and
that, because it was not clear that the gun in the video
was real and operable, the video did not show that he
had access to a gun and, therefore, the means to shoot
the victim. He further argued that the video was not
relevant to motive because, to the extent the video
referred to the 150 gang, that evidence was inadmissible
hearsay. Finally, he argued—without specificity—that
the video was more prejudicial than probative. The state
argued that the audio of the video was admissible as
an adoptive admission because the defendant could be
seen singing the words. The state further argued that
the video was relevant to show that the defendant had
access to a gun that looked similar to the gun used to
shoot the victim; see part I C 2 of this opinion; and that
the jury could decide for itself whether the gun in the
video was real. The state also argued that the video
was relevant to establishing motive based on the refer-
ences in it to ‘‘Ryo’’ and the 150 gang, and to show an
association between the defendant, Beason, and Ferris,
which was germane to explaining the presence of the
DNA of all three men on items found at the crime scene.
The state noted that, because the defendant sought to
exclude the entire video, it was seeking to have the
entire video admitted.
The trial court issued a preliminary ruling, noting that
it could change depending on the evidence admitted at
trial. The court ruled that the video was relevant to
identifying the defendant and to showing his association
with the gang, and the relationship between the defen-
dant, Beason and Ferris to the extent this friendship
was significant to other evidence. The court also ruled
that, although the video did not show the defendant
holding the gun, the gun’s depiction was relevant to
show his proximity to the weapon, its availability to
him, and his familiarity with this type of weapon. The
trial court did not find the video overly prejudicial
because the defendant was not actually holding the gun.
Finally, the trial court held that the audio of the video
constituted an adoptive admission by the defendant
because he had voluntarily participated in the video.
Nevertheless, the trial court offered to give a limiting
instruction to the jury if the defendant requested one,
which he did not at that time.
At trial, the state sought to admit the rap video
through Amato. Again, defense counsel objected, stat-
ing simply that he was maintaining his prior objections,
which the trial court overruled without additional com-
ment. The video was played for the jury. Amato identi-
fied the defendant, Ferris, and Benson in the video
while admitting that he did not know who had made
the video, the video’s title, or that portion of the video
that showed the Snapchat usernames. The trial court
again offered to provide a limiting instruction to the
jury regarding the video, but the defendant did not
request one.
In its closing argument, the state relied on this video
to argue that the defendant had a relationship with
Beason and Ferris. This was significant for two reasons:
(1) their DNA was discovered on the hooded sweatshirt
and hat that was found near the location where the
defendant was apprehended, and (2) according to the
state’s theory of the case, Beason was near the scene
of the crime in a borrowed vehicle and acted as the
getaway driver. The state further argued that this video
showed the defendant’s connection to the 150 gang and
that the defendant had access to a gun similar to the
gun Nikola found in the backyard abutting the alleyway
where the defendant was discovered. The state did cau-
tion the jury that it was not using the video ‘‘just to
show people in a bad light or—or anything like that,
or, hey, look, they’re in a rap video; we must, you know,
they must be guilty of something. It’s got nothing to do
with that. You know what it has to do with; there’s
important things about this video that we should con-
sider in light of everything here.’’
Notably, the defendant does not raise an evidentiary
claim but, rather, only a constitutional claim.12 ‘‘Gener-
ally, the admissibility of evidence is a matter of state
law and unless there is a resultant denial of fundamental
fairness or the denial of a specific constitutional right,
no constitutional issue is involved.’’ (Internal quotation
marks omitted.) State v. Flanders, 214 Conn. 493, 500–
501, 572 A.2d 983, cert. denied, 498 U.S. 901, 111 S. Ct.
260, 112 L. Ed. 2d 217 (1990). ‘‘This is consistent with
federal jurisprudence, which recognizes that an eviden-
tiary error may be of constitutional magnitude if the
error was so pervasive as to have denied [the defendant]
a fundamentally fair trial . . . . [T]he standard . . .
[is] whether the erroneously admitted evidence, viewed
objectively in light of the entire record before the jury,
was sufficiently material to provide the basis for convic-
tion or to remove a reasonable doubt that would have
existed on the record without it. In short it must have
been crucial, critical, [and] highly significant . . . .’’
(Internal quotation marks omitted.) State v. Turner, 334
Conn. 660, 674, 224 A.3d 129 (2020). It is the defendant’s
burden to establish that an alleged evidentiary error is
of constitutional magnitude. See State v. Varszegi, 236
Conn. 266, 274, 673 A.2d 90 (1996).
The defendant argues that the admission of the rap
music video into evidence was so prejudicial as to
deprive him of his constitutional right to a fair trial.
Even if we assume, however, that the trial court improp-
erly admitted the video, the defendant has failed to
establish that this error was of constitutional magnitude
because he has failed to demonstrate the materiality of
this evidence, especially in light of the other substantial
evidence of his guilt that the state offered. In addition,
he failed to request any measures to limit the alleged
prejudice.
Specifically, other than arguing that the rap video
was central to the state’s case, the defendant did not
argue how the video was ‘‘sufficiently material to pro-
vide the basis for conviction or to remove a reasonable
doubt that would have existed on the record without
it.’’ (Internal quotation marks omitted.) State v. Turner,
supra, 334 Conn. 674. Although the defendant argues
that this video was improper character evidence that
was offered solely to paint him as a violent person and
that it infringed on the presumption of innocence and
played on the jurors’ biases against and stereotypes
about gang members and young black men,13 he failed
to analyze the video in the context of the other evidence
presented at trial. As discussed in detail in part I C 2
of this opinion, substantial evidence of the defendant’s
guilt that was admitted at trial supported the verdict.14
See, e.g., United States v. Moore, 639 F.3d 443, 448
(8th Cir. 2011) (Even if evidence of the defendant’s rap
recordings were inadmissible, ‘‘in light of the over-
whelming evidence against him, [the defendant] has
failed to persuade us that the [rap] recordings affected
the outcome of the [trial] court proceedings. . . . We
thus conclude that their admission did not affect [the
defendant’s] substantial rights.’’ (Citation omitted.)).
Thus, not only has the defendant failed to argue materi-
ality, but, on the basis of this record and the arguments
presented to this court, we cannot say that the video
was crucial, critical and highly significant to the jury’s
verdict. Accordingly, the defendant has failed to estab-
lish that the alleged error was constitutional in nature.
Nevertheless, we recognize that the rap music video
contained content that had the potential to prejudice
the jury against the defendant. The lyrics in the video, to
the extent decipherable, reference narcotics, firearms,
shootings, robberies, and threats to the police. Even if
we assume that portions of the video were relevant for
the purposes articulated by the state, the lyrics regard-
ing other, unrelated criminal activity, whether fact or
fiction, serve no purpose other than to portray the
defendant as violent. These lyrics were irrelevant to
the charged offense and did not aid the state in estab-
lishing the defendant’s relationship to Beason and
Ferris, his association with the 150 gang, or his access
to the gun.
The defendant argues, for the first time on appeal,
that the trial court should have redacted portions of
the rap music video or allowed only limited screenshots
of the video into evidence. He is correct that screens-
hots of the video may have minimized any prejudice
while adequately illustrating the defendant’s relation-
ship to Beason and Ferris, his association with the 150
gang, and his access to the gun. Alternatively, portions
of the video or audio could have been redacted to pre-
vent potential prejudice. The defendant, however, did
not seek to have portions of the video redacted in any
fashion before it was played for the jury. The defendant
also could have requested a limiting instruction but did
not do so.15 Defense counsel’s relevance objection to
the admission of the video did not preserve a request
for redaction. See State v. Smith, 156 Conn. App. 537,
575 n.9, 113 A.3d 103 (holding that, although defendant
objected to admission of written statement at trial,
objection did not preserve his claim on appeal that, if
evidence was not excluded, it should at least be redacted
to minimize prejudice), cert. denied, 317 Conn. 910, 115
A.3d 1106 (2015); see also State v. Cecil, 194 Conn.
App. 446, 459 n.2, 221 A.3d 481 (2019) (party seeking
redaction of video has duty to identify specific portions
for redaction), cert. denied, 334 Conn. 915, 221 A.3d
809 (2020).
As with any evidence that might suggest a propensity
for violence or might play on potential juror biases,
defendants should request and trial courts should grant
measures to minimize any undue prejudice, such as the
redaction of irrelevant portions, the muting of all or
portions of the audio, the use of screenshots in lieu of
video, and limiting instructions to the jury. See, e.g.,
State v. Franklin, 162 Conn. App. 78, 99, 129 A.3d 770(2015) (considering whether defendant sought to limit
challenged evidence in determining whether admission
of that evidence was unduly prejudicial), cert. denied,
321 Conn. 905, 138 A.3d 281 (2016). These measures
are especially important when the evidence at issue
is misused to show a propensity for violence or gang
affiliation, as ‘‘we are cognizant that evidence relating to
gangs and gang activity may, in certain circumstances,
improperly arouse the emotions of the [jurors] . . . .’’
State v. Crocker, supra, 83 Conn. App. 640.
The defendant attempts to skirt his failure to request
any redactions or a limiting instruction by arguing that
the evidence at issue is unique and especially prejudicial
because it involves rap music and that rap music trig-
gers jurors’ biases against and stereotypes about gang
members and young black men. Rap lyrics and rap
music videos that reference violent conduct, criminal
activity, and gang associations, like any evidence that
contains such references, may indeed at times be quite
relevant and, therefore, admissible. See, e.g., United
States v. Pierce, 785 F.3d 832, 841 (2d Cir.) (rap video
containing lyrics relating to violence was properly
admitted when ‘‘relevant and [the lyrics’] probative
value [was] not substantially outweighed by the danger
of unfair prejudice’’), cert. denied, 577 U.S. 877, 136 S.
Ct. 172, 193 L. Ed. 2d 139 (2015), and cert. denied sub
nom. Colon v. United States, 577 U.S. 890, 136 S. Ct.
213, 193 L. Ed. 2d 163 (2015), and cert. denied sub nom.
Meregildo v. United States, 577 U.S. 908, 136 S. Ct. 270,
193 L. Ed. 2d 198 (2015); United States v. Belfast, 611
F.3d 783, 820 (11th Cir. 2010) (rap lyrics referring to
violence were admissible when relevant to charged con-
duct), cert. denied, 562 U.S. 1236, 131 S. Ct. 1511, 179
L. Ed. 2d 334 (2011); Hannah v. State, 420 Md. 339,
357, 23 A.3d 192 (2011) (violent rap lyrics written by
defendant were inadmissible because they were not
relevant to motive or intent and served no purpose
other than to show defendant’s propensity for violence);
State v. Skinner, 218 N.J. 496, 522–23, 95 A.3d 236 (2014)
(reviewing cases in which rap lyrics or rap music videos
depicting violence were properly admitted as relevant
to motive, intent, or identity). There is the potential
that prejudice can outweigh probative value, of course.
See State v. Skinner, supra, 523 (noting that sister state
jurisdictions rarely admit rap lyrics depicting violence
without demonstration of strong nexus between subject
matter of lyrics and crime charged); State v. Cheeseboro,
346 S.C. 526, 550, 552 S.E.2d 300 (2001) (even though
they were minimally probative, violent rap lyrics authored
by defendant should have been excluded from evidence
because they did not specifically refer to crime at issue
and general references glorifying violence led to infer-
ence that defendant had propensity for violence), cert.
denied, 535 U.S. 933, 122 S. Ct. 1310, 152 L. Ed. 2d 219(2002); see also United States v. Gamory, 635 F.3d 480,
493 (11th Cir.) (‘‘[t]he lyrics presented a substantial
danger of unfair prejudice because they contained vio-
lence, profanity, sex, promiscuity, and misogyny and
could reasonably be understood as promoting a violent
and unlawful lifestyle’’), cert. denied, 565 U.S. 1080,
132 S. Ct. 826, 181 L. Ed. 2d 527 (2011); Boyd v. San
Francisco, 576 F.3d 938, 949 (9th Cir. 2009) (although
admission of portions of rap lyrics written by decedent
was not harmful to plaintiffs because it was more proba-
ble than not that jury would have found for defendants
even without their admission, court’s ‘‘[f]ailure to
exclude these lyrics was error, as they had no probative
value regarding [the decedent’s] alleged activities [when
defendant was stopped by the police], and were unfairly
prejudicial in light of their offensive nature’’). As with
any evidence that potentially suggests that a defendant
has a propensity for violence, courts must carefully
balance the probative value of the evidence against any
potential unfair prejudice.
Because the defendant has failed to establish that
the alleged error is constitutional in nature, any error,
even if we assume that error occurred, was evidentiary
in nature. The defendant, however, has raised only a
constitutional claim, which would require the state to
prove that the error was harmless beyond a reasonable
doubt. He has not briefed the issue of harmful eviden-
tiary error. See State v. Manuel T., 337 Conn. 429, 461,
254 A.3d 278 (2020) (‘‘[a] nonconstitutional [eviden-
tiary] error is harmless when an appellate court has a
fair assurance that the error did not substantially affect
the verdict’’ (internal quotation marks omitted)). We
therefore deem any claim of evidentiary error aban-
doned and decline to review it. See part I B of this opinion.
III
The defendant next claims that the trial court improp-
erly admitted photographs of a mirror with ‘‘150,’’
‘‘GANG,’’ and his initials (DT) written on it because the
writings constituted inadmissible hearsay.16 We agree
with the state that, even if we assume that the writing
on the mirror amounted to hearsay, it constituted a
statement of a party opponent under § 8-3 (1) (A) of
the Connecticut Code of Evidence.
The following additional facts and procedural history
are relevant to this claim. On the night of the shooting,
after the defendant’s arrest and while he was in custody,
the police executed a search warrant at his apartment.
Detective Kimberly Biehn of the Bridgeport Police Depart-
ment, who participated in the search, testified that the
apartment was not open and no one was there when
the police arrived, and that the entire residence was
photographed prior to the search. Some of these photo-
graphs show a mirror in one of the bedrooms with
writing on it that included ‘‘150,’’ GANG’’ and ‘‘DT.’’
Biehn also testified that the police found in that bed-
room various paperwork, including mail with the defen-
dant’s name and address on it, from which they inferred
that the bedroom belonged to him. She conceded, how-
ever, that she did not know who put the writing on the
mirror or when it was placed on the mirror. She also
admitted that she did not recall if there was any indica-
tion that anyone else resided at the apartment. There
was another room in the apartment with a mattress,
but the officers executing the search warrant did not
find any evidence of a specific person living there, such
as paperwork identifying another individual.
Prior to trial, the defendant moved to suppress the
photographs, arguing that the writing on the mirror was
inadmissible hearsay because there was no evidence
as to who wrote on the mirror or when, and, thus,
there was insufficient evidence for the writing to be
admissible as a statement of a party opponent. The
trial court issued a preliminary ruling that a sufficient
foundation existed to admit the photographs of the
writing as statements of a party opponent because the
mirror contained the defendant’s initials and was near
the paperwork that identified him. The trial court
explained that any argument regarding whether the
room was in fact the defendant’s bedroom or whether
he authored the writings went to the weight of the
evidence, not its admissibility. At trial, the defendant
renewed his objection, which the trial court again over-
ruled, and the defendant cross-examined Biehn about
her lack of knowledge regarding who wrote on the
mirror and when.
Having reviewed the trial court’s decision to admit
the photographs for an abuse of discretion; see State
v. Saucier, 283 Conn. 207, 218, 926 A.2d 633 (2007); we
conclude that, even if we assume that the writing on
the mirror constitutes a hearsay statement, it ‘‘fall[s]
within a recognized exception to the hearsay rule.’’
(Internal quotation marks omitted.) State v. Canady,
297 Conn. 322, 341, 998 A.2d 1135 (2010). Section 8-3
of the Connecticut Code of Evidence provides in rele-
vant part that certain statements are ‘‘not excluded by
the hearsay rule, even though the declarant is available
as a witness,’’ including ‘‘(1) . . . [a] statement that is
being offered against a party and is (A) the party’s own
statement, in either an individual or a representative
capacity . . . .’’ It is well established that ‘‘[s]tatements
made out of court by a [party opponent] are universally
deemed admissible when offered against him . . . so
long as they are relevant and material to issues in the
case.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Woodson, 227 Conn. 1, 15, 629 A.2d 386(1993).
To be admissible as a statement of a party opponent,
the statement must be ‘‘properly authenticated as [a
statement] made by the defendant.’’ State v. Berger, 249
Conn. 218, 232–33, 733 A.2d 156 (1999). Rule 9-1 (a)
of the Connecticut Code of Evidence provides: ‘‘The
requirement of authentication as a condition precedent
to admissibility is satisfied by evidence sufficient to
support a finding that the offered evidence is what its
proponent claims it to be.’’ ‘‘In general, a writing may
be authenticated by a number of methods, including
direct testimony or circumstantial evidence. . . . Both
courts and commentators have noted that the showing
of authenticity is not on a par with the more technical
evidentiary rules that govern admissibility, such as hear-
say exceptions, competency and privilege. . . .
Rather, there need only be a prima facie showing of
authenticity to the court. . . . Once a prima facie
showing of authorship is made to the court, the evi-
dence, as long as it is otherwise admissible, goes to the
jury, which will ultimately determine its authenticity.
. . . The only requirement is that there have been sub-
stantial evidence from which the jury could infer that
the [writing] was authentic.’’ (Citations omitted.) State
v. Berger, supra, 233; see C. Tait & E. Prescott, Connecti-
cut Evidence (5th Ed. 2014) § 9.2.3 (distinctive charac-
teristics, such as contents, mode of expression, circum-
stances and context in which unsigned document is
found, may authenticate that document); see also Conn.
Code Evid. § 1-3 (a), commentary (‘‘courts are not
bound by the [c]ode in determining preliminary ques-
tions of fact under subsection (a), except with respect
to evidentiary privileges’’); Conn. Code Evid. § 9-1, com-
mentary (only prima facie showing of authentication
required).
This court recently has emphasized that ‘‘a prima
facie showing of authenticity is a low burden.’’ State
v. Manuel T., supra, 337 Conn. 454. Additionally, our
Appellate Court on several occasions has held that, to
authenticate a writing, the party offering the writing into
evidence may rely on circumstantial evidence, including
otherwise inadmissible evidence, such as information
contained in the writing or evidence concerning where
and when the writing was discovered. See, e.g., State
v. Jackson, 150 Conn. App. 323, 332–34, 90 A.3d 1031(holding that there was sufficient circumstantial evi-
dence that defendant wrote letter at issue because it
bore his name, listed prison where he was incarcerated,
was dated from when he was incarcerated, and included
information known by him), cert. denied, 312 Conn.
919, 94 A.3d 641 (2014); State v. John L., 85 Conn.
App. 291, 302, 856 A.2d 1032 (holding that letters were
sufficiently authenticated as having been authored by
defendant through circumstantial evidence that linked
his presence at his home with time letters were created
as well as their contents), cert. denied, 272 Conn. 903,
863 A.2d 695 (2004). Once the party offering the state-
ment establishes a prima facie case of authenticity, any
uncertainty regarding authorship goes to the weight of
the evidence, and it is for the jury to determine what
weight to give to the statement. See, e.g., State v. John
L., supra, 302.
As with other rules of evidence, this court, on multiple
occasions, has looked to federal case law regarding the
contours of the authentication requirements of § 9-1 of
the Connecticut Code of Evidence. See, e.g., State v.
Manuel T., supra, 337 Conn. 456–57; State v. Swinton,
268 Conn. 781, 811–12 and 811 n.28, 847 A.2d 921 (2004);
see also Jacobs v. General Electric Co., 275 Conn. 395,
407, 880 A.2d 151 (2005) (considering federal case law
when construing § 7-1 of Connecticut Code of Evi-
dence). Federal courts have held that writings are suffi-
ciently authenticated as being written by a defendant
when they were found in the defendant’s residence with
other documents identifying the defendant. See, e.g.,
United States v. Gonzalez-Maldonado, 115 F.3d 9, 20
(1st Cir. 1997) (holding that notebook was sufficiently
authenticated as result of being found in briefcase with
defendant’s identification card in defendant’s room);
United States v. Thorne, 997 F.2d 1504, 1508 (D.C. Cir.)
(failure to authenticate ledgers was not plain error when
‘‘ledgers were found with documents belonging to the
defendants in the bedroom dresser’’), cert. denied, 510
U.S. 999, 114 S. Ct. 568, 126 L. Ed. 2d 467 (1993); United
States v. Huguez-Ibarra, 954 F.2d 546, 552–53 (9th Cir.
1992) (holding that documents were circumstantially
authenticated because they were found in safes at
defendants’ home with documents bearing their names).
The defendant contends that, because there was no
evidence that he wrote on the mirror or had either
exclusive use of the room or had been the last person
in the room, there was insufficient evidence that he
wrote on the mirror for purposes of admissibility. It is
true that some courts have held that a showing that the
defendant was the sole occupant of the residence where
the writing was found supports authentication of a writ-
ing. See, e.g., United States v. Sotelo, Docket Nos. CR
14-652-6 and CR 14-652-10, 2016 WL 4650617, *10 (E.D.
Pa. September 7, 2016) (‘‘[T]here [was] sufficient evi-
dence to enable the jury to determine [that the codefen-
dant] authored or adopted the ledgers, including their
discovery on a dresser in the bedroom of his residence
at the time of the search. [The codefendant] [did] not
argue, and [the court has] no evidence suggesting, [that]
any other person residing with [him] created [those]
[l]edgers.’’ (Footnote omitted.)), aff’d, 707 Fed. Appx.
77 (3d Cir. 2017).17
We are not aware of any case, however, holding that
sole occupation is necessary to satisfy the prima facie
requirement of authentication. Rather, federal courts
have determined that a prima facie showing of authenti-
cation exists if the location of the writing is connected
to the defendant, with any uncertainty of authorship
going to the weight of the evidence, rather than its
admissibility. See, e.g., United States v. McGlory, 968
F.2d 309, 329 (3d Cir. 1992) (holding that notes found
in trash outside defendant’s residences, with other iden-
tifying documents, were properly authenticated), cert.
denied sub nom. Hauser v. United States, 506 U.S. 956,
113 S. Ct. 415, 121 L. Ed. 2d 339 (1992), and cert. denied
sub nom. Cotton v. United States, 506 U.S. 956, 113 S.
Ct. 415, 121 L. Ed. 2d 339 (1992), and cert. denied sub
nom. Kulkovit v. United States, 506 U.S. 1009, 113 S.
Ct. 627, 121 L. Ed. 2d 559 (1992), and cert. denied, 507
U.S. 962, 113 S. Ct. 1388, 122 L. Ed. 2d 763 (1993),
Burgess v. Premier Corp., 727 F.2d 826, 835 (9th Cir.
1984) (holding that documents found in defendant’s
warehouse were adequately authenticated simply by
having been found there); United States v. Wilson, 532
F.2d 641, 644–45 (8th Cir.) (there was sufficient authen-
tication of notebooks when they were found in apart-
ment frequented by defendant and contents of note-
books linked them to defendant), cert. denied, 429 U.S.
846, 97 S. Ct. 128, 50 L. Ed. 2d 117 (1976);18 see also
United States v. Hassanshahi, 195 F. Supp. 3d 35, 50
(D.D.C. 2016) (‘‘[although the defendant’s] arguments
[that he did not author the letter] may provide fodder
for urging the jury to discount the letter or to conclude
that [he] did not write it, they do not suffice to overcome
the [g]overnment’s prima facie case and bar the letter’s
admission in the first instance’’).
In the present case, although there was not conclusive
evidence that only the defendant resided in the apartment
or in the bedroom where the mirror was found, there
was sufficient circumstantial evidence that he was at
least an occupant of the bedroom, such as the various
documents with his name and address on them.
Although there was a mattress found in another small
room in the apartment, no evidence was found from
which it could be inferred that a specific person resided
in the apartment other than the defendant, and, at the
time of the search, no one else was present in the
apartment, and the apartment was not open. This cir-
cumstantial evidence linked the defendant to the bed-
room in which the mirror was found, supporting the
trial court’s ruling that there was sufficient evidence to
authenticate the writing on the mirror. There also was
circumstantial evidence that the defendant had authored
the writings, including his initials on the mirror and
that the writing existed at the time of the search, which
the police conducted on the same day as the shooting.
But cf. State v. Knight, 34 So. 3d 307, 320–22 (La. App.
2010) (holding that writing found on defendant’s bed-
room wall was not sufficiently authenticated when writ-
ing did not appear on wall in video made during execu-
tion of search warrant and, thus, may not have existed
at time of search and may have been made after defen-
dant was arrested and no longer had access to prem-
ises), writ denied, 73 So. 3d 376 (La. 2011).
In light of this evidence and the low burden of proof
necessary to establish a prima facie case of authenticity,
we conclude that the trial court properly found that the
state produced sufficient evidence from which the jury
reasonably could have inferred that the defendant authored
the writing on the mirror and that any uncertainty about
authorship went to the weight of the evidence, which
was for the jury to decide. In light of this conclusion,
we also conclude that the trial court did not abuse its
discretion in admitting the photographs as statements
of a party opponent under § 8-3 (1) (A) of the Connecti-
cut Code of Evidence.
IV
The defendant finally claims that the trial court
improperly admitted portions of a recording of state-
ments made by McIntosh over the phone to Davis describ-
ing the shooter and then identifying the shooter as the
defendant. Specifically, he argues that these statements
were hearsay and did not satisfy the spontaneous utter-
ance exception to the rule against hearsay because they
were made after McIntosh had an opportunity for reflec-
tion. We disagree.
The following additional facts and procedural history
are relevant to this claim. As noted in part I C 2 of this
opinion, McIntosh, who had known the defendant since
middle school, was the passenger in a vehicle operated
by Johnson on Madison Avenue at approximately noon
on the day of the shooting. At trial, Johnson testified
that she did not actually see the shooting, never saw
the shooter with a gun, and was not certain the shooter
was the defendant.
Within moments of the shooting, Johnson received
a phone call from her then boyfriend, Davis, who was
incarcerated, and their conversation was recorded by
the correctional facility. Johnson remained on the
phone with Davis while turning the car around and
parking near the crime scene. Johnson informed Davis
that someone had shot the victim, whom she identified
by his nickname (‘‘Kah’’), although the record is unclear
how she knew him, but she did not know the shooter’s
identity. A majority of the recording of this conversation
is indecipherable because of Johnson’s crying and
screaming. This portion of the recording was admitted
as a spontaneous utterance and is not challenged on
appeal.
McIntosh then spoke to Davis minutes after the shoot-
ing. The state offered the recording of this portion of
the conversation both as a spontaneous utterance and
as a prior inconsistent statement to show that she had
seen the defendant with a gun, had actually witnessed
the shooting, and had been certain of the shooter’s
identity at the time of the shooting. Outside the presence
of the jury, the state played the recording, in which
McIntosh identified the defendant as the shooter in
response to Davis when he asked, ‘‘DT,’’ after she had
described him. See part I C 2 of this opinion. It is clear
from the recording that McIntosh was upset, as her
responses to these questions were punctuated by her
crying and screaming. She was speaking quickly and in
a hysterical tone of voice.
Defense counsel objected to the admission of the
recording, arguing that McIntosh’s statements came in
response to questions after the shooting occurred so
that she had an opportunity for reflection, although he
admitted that it sounded as if McIntosh was processing
aloud what she had just seen. The state responded that
the statements occurred within minutes of the shooting
and that the statements themselves and McIntosh’s tone
of voice showed that she did not have an opportunity
for reflection.
The trial court ruled that this portion of the recording
was admissible as a spontaneous utterance, explaining
that ‘‘it certainly is in response to a startling event. . . .
[I]t’s a witness who has personal knowledge of that
startling event . . . who is in an excited state and . . .
responding without an opportunity to reflect . . . .’’19
The court then asked defense counsel if he wanted a
limiting instruction to accompany the ruling, which he
declined. The recording was played for the jury, with
McIntosh then clarifying that what she meant when she
said, ‘‘I was, like, I know that’s not DT,’’ was that she
was surprised that the defendant was in the area and
shocked that he had shot someone.
As discussed in part III of this opinion, for evidentiary
claims, we review the trial court’s legal conclusions de
novo but review its decision to admit evidence, if based
on a correct view of law, for an abuse of discretion. It
is undisputed that the evidence at issue constitutes
hearsay—McIntosh made her statements on the phone
to Davis out of court, and the state offered them for
their truth (i.e., the description of the shooter and her
identification of the defendant as the shooter). See
Conn. Code Evid. § 8-1 (3). The parties dispute whether
these statements satisfy the requirements of the sponta-
neous utterance exception to the rule against hearsay
under § 8-3 (2) of the Connecticut Code of Evidence.
Under § 8-3 (2) of the Connecticut Code of Evidence,
a spontaneous utterance is an exception to the rule
against hearsay and is defined as ‘‘[a] statement relating
to a startling event or condition made while the declar-
ant was under the stress of excitement caused by the
event or condition.’’ ‘‘A statement properly is admitted
as a spontaneous utterance when (1) the declaration
follows a startling occurrence, (2) the declaration refers
to that occurrence, (3) the declarant observed the
occurrence, and (4) the declaration is made under cir-
cumstances that negate the opportunity for deliberation
and fabrication by the declarant.’’ (Internal quotation
marks omitted.) State v. Slater, 285 Conn. 162, 179, 939
A.2d 1105, cert. denied, 553 U.S. 1085, 128 S. Ct. 2885,
171 L. Ed. 2d 822 (2008).
In assessing whether a statement was made spontane-
ously, no one factor is determinative, and the decision
as to whether to admit the statement is left to the trial
court’s discretion. ‘‘The element of time, the circum-
stances and manner of the accident, the mental and
physical condition of the declarant, the shock produced,
the nature of the utterance, whether against the interest
of the declarant or not, or made in response to question,
or involuntary, and any other material facts in the sur-
rounding circumstances, are to be weighed in ascertain-
ing the basic conclusion whether the utterance was
spontaneous and unreflective and made under such
circumstances as to indicate absence of opportunity
for contrivance and misrepresentation.’’ (Internal quo-
tation marks omitted.) Rockhill v. White Line Bus Co.,
109 Conn. 706, 709, 145 A. 504 (1929).
It is undisputed that McIntosh observed the shooting;
the shooting took place in broad daylight in the middle
of a street; it was a startling occurrence; the statements
at issue referred to the shooting; and she made the
statements after the shooting occurred. The defendant
contends, however, that the statements describing him
and identifying him as the shooter fail to satisfy the
criteria for the spontaneous exception to the hearsay
rule because McIntosh had the ‘‘opportunity for deliber-
ation and fabrication’’ in that (1) several minutes passed
between the time of the shooting and the statements,
(2) during that time, McIntosh discussed the shooting
with Johnson, (3) she stated explicitly that she had
reflected on whether the shooter was in fact the defen-
dant, and (4) her statements were in response to ques-
tions from Davis. According to the defendant, these
facts show that McIntosh had the opportunity for delib-
eration and reflection. We disagree.
As to the passage of time between the shooting and
the statements, this court repeatedly has explained that
the passage of time ‘‘does not preclude the admission
of statements made after a startling occurrence as long
as the statement is made under the stress of that occur-
rence. . . . While [a] short time between the incident
and the statement is important, it is not dispositive.
. . . [T]here is no identifiable discrete time interval
within which an utterance becomes spontaneous;
[e]ach case must be decided on its particular circum-
stances.’’ (Citations omitted; internal quotation marks
omitted.) State v. Kirby, 280 Conn. 361, 374–75, 908
A.2d 506 (2006).
The witness’ emotional state at the time of the state-
ment plays a key role in determining whether sufficient
time has elapsed for the witness to have had the oppor-
tunity for deliberation or fabrication. See State v. Slater,
supra, 285 Conn. 179–80 (victim’s emotional state at
time of statement weighed against opportunity for delib-
eration or fabrication despite unknown lapse in time);
State v. Kelly, 256 Conn. 23, 41–42, 770 A.2d 908 (2001)
(sexual assault victim’s statement made to sister while
victim was hysterical and in fetal position fifteen minutes
after altercation was properly admitted as spontaneous
utterance); State v. Arluk, 75 Conn. App. 181, 188–90,
815 A.2d 694 (2003) (thirty minutes did not constitute
excessive amount of time when child declarant was
still under stress of having witnessed altercation); see
also State v. Vega, 181 Conn. App. 456, 466–68, 187 A.3d
424 (despite several minutes having passed after shoot-
ing and witness’ having responded to police officer’s
questions, witness’ statements made while on phone
and overheard by officer were spontaneous in light of
witness’ crying and screaming), cert. denied, 330 Conn.
928, 194 A.3d 777 (2018).
In the present case, only a few minutes passed
between the shooting and McIntosh’s statement to
Davis. The trial court specifically found that McIntosh
had been ‘‘in an excited state,’’ and the record clearly
supports this finding. McIntosh testified at trial that,
after witnessing the shooting, she was upset. The trial
court admitted into evidence the recording of the phone
call, which included McIntosh’s crying and distressed
voice, for the jury to hear and to assess. Her answer
to Davis’ question regarding the identity of the shooter
was rambling and emotional, and was broken up by
her crying. The conversation began almost immediately
after the shooting, with Johnson having spoken with
Davis first. McIntosh then spoke with Davis within
minutes of the shooting. Additionally, McIntosh remained
near the crime scene when she made this statement,
with Johnson having turned the car around and parked
near the crime scene. Given McIntosh’s emotional state
and the surrounding circumstances, the trial court did
not abuse its discretion in concluding that the short
passage of time between the shooting and her state-
ments was insufficient to provide an opportunity for
McIntosh to deliberate or to fabricate.
The defendant also relies on the fact that McIntosh
made her statement identifying him as the shooter in
response to a question Davis asked. Although whether
a statement is in response to a question is one factor
to consider in determining the spontaneous nature of
the statement, this court has explained that the fact
that ‘‘a statement is made in response to a question does
not preclude its admission as a spontaneous utterance.’’
State v. Kirby, supra, 280 Conn. 376. Rather, we focus
our analysis on ‘‘whether the declarant made the state-
ment before he or she had the opportunity to undertake
a reasoned reflection of the event described therein,’’
with particular focus on the amount of time that has
elapsed and the declarant’s emotional state. (Internal
quotation marks omitted.) Id.; see also State v. Vega,
supra, 181 Conn. App. 472–74 (fact that statements were
made in response to questions was not significant when
declarant was emotional or near crime scene and state-
ments occurred within minutes of crime). In the present
case, the fact that McIntosh’s statements were in response
to questions is of little significance. The statements
occurred within minutes after the shooting, while both
she and Johnson were emotional and still located near
the scene of the shooting. It is true that Davis asked
her if the man she saw shoot the victim was ‘‘DT,’’ but
her response can reasonably be described as a stream of
consciousness, spoken under emotional circumstances,
rather than reflection or fabrication. After Davis’ ques-
tion about whether the shooter was the defendant, with-
out pause, McIntosh stated that the shooter looked just
like the defendant. Although she rambled in her state-
ments, she continued to provide additional information
about what she had witnessed, which was not relevant
to the question Davis asked regarding the identity of
the shooter. McIntosh stated that she saw the shooter
pull out something silver-colored and that she could
not see far without her glasses. Thus, the short lapse
of time between the shooting and McIntosh’s statement
to Davis, her emotional state and proximity to the crime
scene, and her having provided additional information
without prompting from Davis all supported the trial
court’s ruling that her statement was spontaneous.
For similar reasons, we are unconvinced by the defen-
dant’s reliance on the fact that McIntosh had time to
discuss the shooting with Johnson and admitted to hav-
ing reflected on the shooter’s identity. First, there was
no evidence that Johnson and McIntosh discussed the
shooting prior to the conversation with Davis, and noth-
ing Johnson said to Davis, to the extent decipherable,
identified the defendant as the shooter. Although the
jury reasonably could have inferred that McIntosh over-
heard Johnson’s conversation with Davis, as they were
in the same vehicle together, there was no evidence
that McIntosh was influenced by anything she heard
from Johnson. The conversation between Davis and
Johnson was admitted into evidence. Most of the
recording is undecipherable, as Johnson was crying and
screaming during the conversation. Johnson stated that
she did not know the shooter’s identity. McIntosh then
spoke to Davis. This lack of evidence that McIntosh
heard anything substantive from Johnson regarding the
shooting, coupled with the short lapse in time while
they were still near the crime scene, contradicts the
defendant’s argument that McIntosh had an opportunity
for deliberation or fabrication. Additionally, the fact
that McIntosh stated, ‘‘that’s not DT,’’ was not evidence
of an opportunity for reflection or fabrication but,
rather, was evidence of her emotional state in light of
her testimony that what she meant by this statement
was that she was shocked by the defendant’s presence
and by the shooting. Accordingly, we conclude that the
trial court did not abuse its discretion in finding that
this statement constituted a spontaneous utterance
under § 8-3 (2) of the Connecticut Code of Evidence.
The judgment is affirmed.
In this opinion the other justices concurred.
* September 8, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
Specifically, Amato testified that he had seen videos and other depictions
of Hernandez in which Hernandez portrayed himself as being a gang member,
being around known gang members, flashing firearms and discussing mem-
bership in the 150 gang, and in which gang members referred to themselves
as PAB—Park Avenue Boyz—which referred to the neighborhood the 150
gang controlled. Amato testified that he also relied on information gathered
from debriefings of people who were under arrest, and from various infor-
mants and community members
2
The court ruled: ‘‘I don’t think that there’s any surprise on this. The
state’s theory is, and has always been, that this a gang related retaliation;
therefore, the state has a right, there’s an abundance of case law dealing
with motives and motive evidence of gang retaliation, and I think we’ve all
talked about them . . . . But they deal with the fact that expert testimony
is appropriate for the jury, it is a scenario where, once it is relevant to the
case itself, then the question becomes whether an expert can provide the
[jurors] with information that might be outside their expertise. . . . That
doesn’t mean that, if the state is going into something, that you shouldn’t
object; I’m just saying that the issue of expert testimony to explain gangs
and gang behavior, particular gangs in the area, is appropriate. What is not
appropriate is . . . identifying the defendant as being affiliated with a partic-
ular gang, unless there’s some specific knowledge of that, which, from—
from the offer of proof that was given, was not addressed. So, I’m not finding
that this officer can testify to that specific but can testify to a general
expertise in terms of gangs, behavior, identification of different gangs in
the area, and that [type] of thing.’’ The court emphasized that ‘‘these are
not [absolute] rulings, and, to the extent that the evidence is going in one
way or another and the defense feels that an objection is appropriate, please
make that objection because they are not absolute.’’
3
Following the jury’s verdict of guilty, defense counsel moved for a new
trial, arguing in relevant part that ‘‘[t]he trial court erred in permitting
[Amato] to testify, where his testimony was based on hearsay, and any
probative value of his testimony was outweighed by its prejudicial tendencies
. . . .’’ The trial court denied the motion, stating that it was ‘‘stand[ing] by
its rulings for the reasons articulated throughout the course of the trial.’’
4
Amato testified only as to his role in downloading the video in March,
2016, and that the first screen before the video begins notes the title of the
video as it appeared on YouTube. He also testified that the Bridgeport Police
Department did not create the title of the video or the screen at the end of
the video showing the symbol used by Snapchat to identify itself and the
text, ‘‘Hotboy150.’’ The contents of this video are discussed in part I C 2 of
this opinion.
5
The defendant also does not argue that this alleged error was so prejudi-
cial as to rise to the level of a constitutional violation.
6
Nevertheless, we note that, although Amato was prohibited from testi-
fying that the defendant was a member of the 150 gang, other evidence
admitted at trial linked the defendant to the 150 gang, such as his Snapchat
username (Hotboy150) and writing on the mirror discovered in his bedroom.
From this, the jury reasonably could have inferred that the defendant was
a member of the 150 gang. See part I C 2 of this opinion.
7
For example, an expert witness improperly parrots hearsay when testi-
fying that the defendant or another person was a gang member if that
knowledge is based solely on an informant’s having told the expert that the
person is a gang member. See United States v. Garcia, supra, 793 F.3d
1213–14; see also United States v. Dukagjini, supra, 326 F.3d 59 (expert’s
testimony regarding interpretation of certain drug jargon was inadmissible
when interpretation was based solely on what other people had told him
those terms meant, and, thus, he ‘‘was not translating drug jargon, applying
expert methodology, or relying on his general experience in law enforce-
ment’’). By contrast, an expert may rely on hearsay in forming an opinion
regarding the history, organization, rules, and unique terminology or symbols
of a gang. See, e.g., United States v. Castelle, 836 Fed. Appx. 43, 45–46 (2d
Cir. 2020); United States v. Rios, supra, 830 F.3d 415; United States v.
Garcia, supra, 1212–13; United States v. LoCascio, supra, 6 F.3d 938.
It may at times be difficult to determine whether an expert is merely
parroting a hearsay statement or relying on it to support an independent
opinion, especially if the expert witness is testifying in a dual capacity as
both an expert and as a fact witness. See, e.g., United States v. Cruz, 363
F.3d 187, 194–95 (2d Cir. 2004). The line between expert testimony and fact
testimony also may be difficult to discern given that experts may rely on
their own experiences in reaching their opinions. See State v. Walker, supra,
332 Conn. 691–92. To prevent confusion and prejudice, when an expert
witness also serves as a fact witness, at least one court has required the
government to present the factual and expert testimony in bifurcated phases.
See United States v. Stanley, Docket No. 3:15-cr-198 (JAM), 2016 WL 7104825,
*2 (D. Conn. December 4, 2016); cf. United States v. Rios, supra, 830 F.3d
414 (noting suggestion by federal appeals court that, to assuage concerns
that jury may be confused by witness’ dual role as expert witness and fact
witness, ‘‘the district court and the prosecutor [should] take care to [ensure]
that the jury is informed of the dual roles of a law enforcement officer as
a fact witness and an expert witness’’ (internal quotation marks omitted));
United States v. Mejia, supra, 545 F.3d 196 (noting concern that ‘‘line
between [a police officer’s] opinion and fact witness testimony [is] often
hard to discern’’ (internal quotation marks omitted)).
The defendant, however, does not raise any alternative evidentiary claim
that Amato improperly mixed factual and expert testimony, and, thus, we
do not address this issue.
8
Two other caveats are found in the relevant federal case law. First, if
the trial court admits the hearsay under these circumstances, it should be
accompanied by an appropriate cautionary instruction. See United States
v. 0.59 Acres of Land, 109 F.3d 1493, 1496 (9th Cir. 1997) (it was error to
admit hearsay offered as basis of expert opinion without limiting instruction
to jury); see also United States v. Dukagjini, supra, 326 F.3d 58 (citing 0.59
Acres of Land). Second, ‘‘even if the testimony is admissible under [Fed.
R. Evid.] 702 [the federal analogue to § 7-2 of the Connecticut Code of
Evidence], it still must pass muster under [Fed. R. Evid.] 403 [the federal
analogue to § 4-3 of the Connecticut Code of Evidence]: Its probative value
must not be substantially outweighed by unfair prejudice.’’ United States
v. Dukagjini, supra, 58; cf. Conn. Code Evid. § 4-3 (‘‘probative value [must
not be] outweighed by the danger of unfair prejudice’’).
9
In addition to being harmless beyond a reasonable doubt, the record in
the present case also is inadequate to determine whether (1) Amato served
as a conduit for hearsay, and (2) this hearsay was testimonial in nature.
Specifically, in reaching his opinions regarding the rivalry between the 150
gang and the Green Hollow Boyz, the activities of these gangs, the gang
affiliations of the victim and Hernandez, and the motive for the murder of
Hernandez, Amato clearly relied on information he learned from others, but
the record is inadequate to determine whether he merely parroted this
information or whether he properly applied his experience and training to
this information to reach his own opinions. As to his testimony regarding
the underlying facts in the Hernandez murder, Amato testified that he learned
of the shooting, arrests, and acquittals through the course of his employment.
As to these statements, his testimony was clearly a conduit for hearsay.
There is no indication in the record, however, that this information was
testimonial.
10
The defendant does not raise any alternative evidentiary claim that
Amato improperly served as a conduit for nontestimonial hearsay, and, thus,
any evidentiary claim is abandoned.
11
Palatiello testified that he pursued the shooter on foot but lost sight of
him when the shooter ran between two houses. Palatiello then stopped to
check on the victim when he heard someone screaming for help.
12
Although the defendant claims that the improper admission of the rap
music video violated his right to a fair trial in that the video was inadmissible
hearsay, irrelevant, and more prejudicial than probative—all of which are
normally evidentiary issues—he does not argue, alternatively, that, if this
error were not constitutional in nature, these evidentiary errors were harm-
ful.
13
In a motion to strike filed six days prior to oral argument before this
court, the state argued that, in his reply brief, for the first time, the defendant
cited to two social science articles about rap music and racial prejudice,
and improperly asked this court to create a new rule governing the admissibil-
ity of rap music video evidence. In the exercise of our discretion, we declined
to order that these portions of the defendant’s reply brief be stricken because
the state’s motion was untimely, as it was filed approximately three months
after the defendant filed his reply brief and less than one week before oral
argument before this court. See Practice Book § 60-2 (‘‘[t]he court may . . .
on its own motion or upon motion of any party . . . (3) order improper
matter stricken from a brief or appendix’’); see also Ramos v. Commissioner
of Correction, 248 Conn. 52, 61, 727 A.2d 213 (1999) (applying abuse of
discretion standard to Appellate Court decision to deny motion for permis-
sion to file late appeal under what is now Practice Book § 60-2 (5)). Neverthe-
less, we do not read the defendant’s reply brief as raising an argument that
this court should adopt a new rule regarding the admissibility of rap music
videos but, rather, as merely challenging the relevance of this evidence in
the present case.
14
To the extent the defendant attempts to raise a cumulative error argu-
ment to establish that the admission of the rap music video violated his
right to a fair trial when viewed in context of the other errors that he alleged,
we note that this court does not recognize cumulative error and that the
defendant has not urged this court to adopt the federal cumulative error
standard. See Hinds v. Commissioner of Correction, 321 Conn. 56, 94–97,
136 A.3d 596 (2016). Thus, we do not address this argument.
15
We note that, when ruling on the defendant’s motion in limine to exclude
the rap music video, the trial court addressed defense counsel and offered
‘‘to give any type of a limiting instruction that [the defense] would like,’’
including an instruction that ‘‘there’s no suggestion that this is the defendant
who is speaking [in the] video,’’ but the defendant did not request at that
time that the trial court give any limiting instruction in relation to the video.
The trial court made the same offer again when it overruled defense counsel’s
objection to the video at trial, but, again, the defendant did not request such
an instruction.
16
The defendant does not specifically claim that the photographs of the
mirror were inadmissible because they were more prejudicial than probative.
However, in a concluding paragraph in this section of his principal brief,
he argues that ‘‘[t]he admission of this evidence over objection was [an]
error of constitutional magnitude. The gang evidence, in combination with
the rap music video and . . . Amato’s testimony about monitoring violence
around the city . . . perpetuated negative stereotypes and played to the
worst fears of the jury. The state’s evidence injected extraneous and prejudi-
cial issues into the case that rendered a fair trial impossible.’’
To the extent the defendant is attempting to assert that the admission of
the photographs of the mirror was more prejudicial than probative, we deem
that claim inadequately briefed and decline to review it. To the extent the
defendant is attempting to assert a cumulative error argument, we reject
such a claim. See footnote 14 of this opinion.
17
See United States v. Sotelo, supra, 2016 WL 4650617, *10 (evidence of
authentication included writing found in bedroom of codefendant’s resi-
dence, and no evidence suggested another person resided there); see also
State v. Reed, 153 N.C. App. 462, 467, 570 S.E.2d 116 (sufficient authentication
to admit business card into evidence when authentication, at least in part,
was based on fact that card was found in defendant’s residence and there
was evidence that he was sole occupant of residence), appeal dismissed,
356 N.C. 622, 575 S.E.2d 521 (2002); State v. Greiner, Docket No. 106426,
2018 WL 3954312, *1 (Ohio App. August 16, 2018) (evidence of authentication
included writing found in bedroom of defendant’s apartment when defendant
did not have roommates), appeal denied, 154 Ohio St. 3d 1432, 111 N.E.3d
1192 (2018).
18
State courts with similar authentication rules also have held that circum-
stantial evidence that a writing was discovered in a defendant’s bedroom
is sufficient evidence of authentication, even if the defendant was not the
sole occupant. See People v. Olguin, 31 Cal. App. 4th 1355, 1372–73, 37 Cal.
Rptr. 2d 596 (1994) (lyrics found in codefendant’s bedroom were sufficiently
authenticated based on location and because content of lyrics included
codefendant’s nickname and reference to his gang), review denied, California
Supreme Court, Docket No. S044704 (April 27, 1995); see also Shurbaji v.
Commonwealth, 18 Va. App. 415, 418, 444 S.E.2d 549 (1994) (utility bills
found in bedroom were circumstantial evidence that defendant controlled
bedroom and that cocaine and paraphernalia found there belonged to him).
19
The trial court also determined that McIntosh’s prior statement was
admissible as a prior consistent statement: ‘‘[This evidence] also goes to
issues that went to impeachment,’’ such as whether McIntosh was 100
percent certain that the defendant was the shooter at the time of the shooting.
On appeal, the defendant also challenges this ground, but we do not address
it given our holding that the court properly admitted the statements as
spontaneous utterances.