State v. Chyung

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STATE v. CHYUNG—CONCURRENCE
McDONALD, J., concurring. I agree with the majority
that the verdicts were legally inconsistent and must be
vacated. With regard to the issue likely to arise on
remand, however, I disagree with the majority that the
trial court properly permitted the state to present evi-
dence of prior uncharged misconduct of the defendant,
Chihan Eric Chyung. In my view, the fourteen year gap
between the misconduct and the killing in the present
case, and the substantive dissimilarities of the miscon-
duct to the killing would render it an abuse of discretion
to admit such evidence to prove intent to kill and the
absence of mistake.
At the outset, I note my agreement with the majority
that, technically, no evidence of prior misconduct was
presented to the jury. See footnote 24 of the majority
opinion. The state did not present any testimony from
Pamela Febles, the defendant’s former girlfriend, or
her statement to the police, regarding the incident of
misconduct. Rather, the state inquired about the inci-
dent during its cross-examination of the defendant, and
the defendant replied that he had no recollection of any
such incident occurring. It is well settled that counsel’s
questions to a witness are not evidence. See Connecti-
cut Criminal Jury Instructions (4th Ed. 2008) § 1.2-6,
available at http://www.jud.ct.gov/ji/Criminal/Criminal/
pdf. (last visited March 22, 2017); State v. Martinez, 95
Conn. App. 162, 182, 896 A.2d 109, cert. denied, 279
Conn. 902, 901 A.2d 1224 (2006); State v. Ciccio, 77
Conn. App. 368, 379–80, 823 A.2d 1233, cert. denied, 265
Conn. 905, 831 A.2d 251 (2003). Nonetheless, without
objection, the trial court gave the jury a limiting instruc-
tion as to the permissible use of prior misconduct evi-
dence, thus effectively misinforming the jury that it
could rely on the state’s question as substantive evi-
dence.1 I agree with the majority that, under these
unusual circumstances, we should consider whether it
would be an abuse of discretion to admit such prior
misconduct evidence under § 4-5 (c) of the Connecticut
Code of Evidence. Conn. Code Evid. (2012) § 4-5 (c),
available at http://jud.ct.gov/Publications/Code2000.pdf.
I would conclude that the evidence should not be admit-
ted for the following reasons. Most courts have recognized
that ‘‘[t]here is no absolute rule regarding the number of
years that can separate offenses. Rather, the court applies
a reasonableness standard and examines the facts and
circumstances of each case.’’ (Internal quotation marks
omitted.) United States v. Cuch, 842 F.2d 1173, 1178 (10th
Cir. 1988); accord United States v. Franklin, 250 F.3d 653,
659 (8th Cir.), cert. denied, 534 U.S. 1009, 122 S. Ct. 495,
151 L. Ed. 2d 406 (2001); United States v. Fields, 871 F.2d
188, 197–98 (1st Cir.), cert. denied, 493 U.S. 955, 110 S.
Ct. 369, 107 L. Ed. 2d 355 (1989). ‘‘Of course, if the acts
admitted [as prior misconduct] are too remote in time, this
substantially weakens their probative value and weighs in
favor of exclusion. This is especially true in cases in which
the evidence is probative of intent. See United States v.
Rubio-Gonzalez, 674 F.2d 1067, 1075 (5th Cir. 1982) (‘[T]o
the extent such prior acts are relevant to the matter of
knowledge, rather than being relevant only to intent,
remoteness may be less of a factor in determining the
probative value of the evidence. The passage of time and
changing circumstances are more likely to significantly
change one’s intent than they are to obliterate knowledge
once gained.’).’’ United States v. Fields, supra, 198; see
also United States v. Strong, 415 F.3d 902, 905 (8th Cir.
2005) (‘‘the answer to how long is too long depends on
the theory that makes the evidence admissible’’), cert.
denied, 546 U.S. 1130, 126 S. Ct. 1121, 163 L. Ed. 2d 927
(2006).
‘‘Remoteness must be looked at in light of the similarity
between the charged and the extrinsic offense.’’ United
States v. Terebecki, 692 F.2d 1345, 1349 (11th Cir. 1982);
State v. Scott, 405 S.C. 489, 506, 748 S.E.2d 236 (App.
2013) (prior misconduct analysis ‘‘must reconsider the
similarities and dissimilarities in determining total proba-
tive value, including a reduction in probative value predi-
cated upon remoteness’’). Thus, ‘‘the more striking the
similarities between the facts of the crime charged and
the facts of the prior bad act, the longer evidence of the
prior bad act remains relevant and potentially admissible
for certain purposes.’’ State v. Gray, 210 N.C. App. 493,
507, 709 S.E.2d 477 (2011), review denied, 723 S.E.2d 540
(N.C. 2012).
In the present case, the state sought to use prior miscon-
duct that occurred fourteen years before the defendant
killed his wife to prove that the discharge of the gun
was not accidental, as the defendant claimed, and that he
intended to kill her. This time period should raise serious
questions as to the admissibility of the evidence. See State
v. Snelgrove, 288 Conn. 742, 761–62, 954 A.2d 165 (2008)
(‘‘[O]rdinarily, a gap of fourteen years would raise serious
questions as to whether the prior misconduct was too
remote in time. The defendant was incarcerated for eleven
of those years, however . . . .’’). The majority concludes
that the act of producing a gun during an argument with
a domestic partner is sufficiently aberrant and similar to
render the fourteen year period irrelevant. In my view,
there are at least two material dissimilarities that, when
viewed in conjunction with the fourteen year period, suffi-
ciently reduce the probative value of that evidence as to
the issue of an accidental discharge to warrant its exclu-
sion. First, the defendant never discharged his gun in his
argument with Febles. Although the defendant’s action
toward Febles rightly should be viewed as an implicit
threat, the defendant never followed through, or
attempted to follow through, with action then or there-
after.2 Thus, its relevance to his intent to shoot his wife
is tenuous. Cf. State v. Beavers, 290 Conn. 386, 399–408,
963 A.2d 956 (2009) (uncharged misconduct of both prior
arson and threat to commit arson properly admitted to
establish intent and absence of mistake in arson murder
case approximately five years later where defendant
claimed cigarettes accidentally started fire). Second, the
threat was directed at a different victim.3
Several courts have recognized that one or both of these
factors will preclude admission of the prior misconduct
evidence. See, e.g., Robertson v. State, 829 So. 2d 901,
909–11 (Fla. 2002) (‘‘In this case, the crime with which
[the defendant] was charged was the completed offense
of murder against his girlfriend utilizing a handgun. The
prior offense, assuming it occurred, involved a threat of
violence against [the defendant’s] former wife, involving
an assault rifle. Neither the crimes, the weapons, nor the
victims are similar. . . . The defendant in this case was
charged with the completed, violent offense of second
degree murder. The prior, alleged misconduct was an
offense that threatened violence. Although such a prior
threat against the victim in this case, if not too remote,
may have been admissible to show intent and the absence
of mistake or accident, the same cannot be said of a
threat against another.’’ [Emphasis in original; footnotes
omitted.]);4 Johnson v. State, 655 N.E.2d 502, 504–505 (Ind.
1995) (The court stated with regard to evidence that the
defendant pointed a gun at persons other than the victim
and threatened to shoot if they entered his apartment:
‘‘We do not see how evidence of an incident in which the
defendant confronted people other than and unrelated to
the victim in this case and in which a shooting did not
occur makes it more likely either that [the defendant]
knew that he was killing the victim or that the shooting
was not an accident.’’); Driver v. Commonwealth, 361
S.W.3d 877, 885–86 (Ky. 2012) (The court explained its
conclusion that it was error to admit evidence of prior
misconduct that occurred twelve years before the criminal
conduct at issue: ‘‘Because prior acts of violence or threats
of violence against persons other than the victim in the
case on trial have significantly less probative value than
similar prior acts and threats against the same victim, as
a general rule specific threats directed against third parties
are inadmissible. . . . [A] threat to kill or injure someone
[that] is specifically directed at some individual other than
the deceased is inadmissible, as it shows only a special
malice resulting from a transaction with which the
deceased had no connection. . . . An exception has been
recognized when the threat against the third person is so
close in time to the charged offense as to be considered
a part of the same transaction.’’ [Citations omitted; internal
quotation marks omitted.]); Walker v. State, 116 Nev. 442,
446–47, 997 P.2d 803 (2000) (The court concluded that
two prior incidents in which the defendant pointed a gun
at the victim, six and ten years before the defendant mur-
dered the victim, were clearly remote in time and less
relevant to the defendant’s intent to kill because the prior
acts did not involve ‘‘the firing or attempted firing of the
weapon at [the victim]. . . . Therefore, because the prior
bad acts offered here do not clearly establish an intent to
kill, but more accurately show an intent to threaten, the
logical relevance of the acts to show [the defendant’s]
later intent is further diminished.’’ [Citation omitted.]);
see also Hoes v. State, 35 Md. App. 61, 69–70, 368 A.2d
1080 (‘‘The relevance of the prior conduct rests upon two
things: the similarity of the method of assault and the fact
that it was upon the same victim. That he had shot her
before in like manner is inferentially relevant to his intent
to do so this time, especially in light of his admission that
he had discharged the firearm. As the [s]tate pointed out,
the fact that [the] appellant had shot [the victim] a few
years earlier makes it less likely that shooting her this
time was an accident or mistake. Had the prior assault
been directed toward another victim, it would have had
little or no relevance in evaluating his intent [toward the
victim]. . . . The similarity of nature and victim cre-
ates the relevant interrelationship.’’ [Emphasis added;
footnote omitted.]), cert. denied, 280 Md. 731 (1977).5
Although I would not go so far as to assert that prior
threats of violence against a different victim could never
be admissible as prior misconduct evidence, those facts
in conjunction with the fourteen year intervening period
in the present case make it apparent that the prejudice of
the prior misconduct evidence far outweighs its relevance.
I therefore respectfully concur in the judgment.
1
The trial court instructed the jury that it could not consider as evidence
the arguments and statements of counsel in connection with addressing
counsels’ closing arguments. The court did not instruct the jury that counsels’
questions to witnesses are not evidence.
2
In fact, Febles’ statement indicates that after the defendant pressed the
gun to her head, he became distraught and handed the weapon over to her.
Following this incident, Febles continued to cohabit with the defendant for
a few more weeks without any report of him subsequently drawing a weapon.
3
Another dissimilarity, less material, is the circumstance surrounding
each confrontation. Febles indicated that the defendant was jealous and
that the fight erupted when she returned later than expected from a party.
According to the defendant, his wife was angry at him for telling her that
she had paid too much for new tires.
4
In Robertson v. State, supra, 829 So. 2d 910 nn.8 and 9, the court con-
trasted cases admitting evidence of prior misconduct against the same victim
as the one in the charged offense and those cases in which the charged
offenses and the prior offenses involved similar completed crimes of
violence.
5
We have rejected an argument that charged and uncharged crimes must
be ‘‘remarkably similar’’ in order to be relevant. See State v. Kalil, 314 Conn.
529, 543–44, 107 A.3d 343 (2014). We note, however, that, in Kalil, a case in
which the issue was intent with regard to charges of burglary, the uncharged
misconduct occurred hours later at another home. Id., 545.