State v. Holley

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STATE OF CONNECTICUT v. KENNY HOLLEY
(AC 37166)
DiPentima, C. J., and Keller and Prescott, Js.
Argued April 13—officially released October 20, 2015
(Appeal from Superior Court, judicial district of
Hartford, Dewey, J.)
Raymond L. Durelli, assigned counsel, for the appel-
lant (defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and John F. Fahey, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
KELLER, J. The defendant, Kenny Holley, appeals
from the judgment of conviction, rendered following a
jury trial, of felony murder in violation of General Stat-
utes § 53a-54c, home invasion in violation of General
Statutes § 53a-100aa (a) (1), conspiracy to commit home
invasion in violation of General Statutes §§ 53a-48 (a)
and 53a-100aa (a) (1), burglary in the first degree in
violation of General Statutes § 53a-101 (a) (2), and rob-
bery in the first degree in violation of General Statutes
§ 53a-134 (a) (2).1 The defendant claims that (1) the
evidence did not support his conviction of robbery in
the first degree, burglary in the first degree, or felony
murder; (2) the court violated his right to present a
defense when it precluded him from presenting his ver-
sion of the facts related to certain injuries sustained by
another person involved in the crimes; (3) the court
made several errors in the admission of evidence; and
(4) the court improperly denied his motion for a mis-
trial.2 We reverse the judgment of the trial court and
remand the case for a new trial.
On the basis of the evidence presented at trial, the
jury reasonably could have found that, at the time of
the events at issue, the victim, William Castillo, lived
in an apartment in East Hartford with his girlfriend,
Tami Schultz. The victim earned money from selling
sneakers both from his automobile and from his resi-
dence. At approximately 3:15 p.m. on June 30, 2009,
while Schultz was out shopping, the defendant and
Donele Taylor entered the victim’s residence. A violent
struggle involving the victim ensued, during which both
Taylor and the victim sustained physical injuries. Nota-
bly, the victim bit Taylor on his right wrist. Before the
defendant and Taylor left the victim’s residence, which
they ransacked in search of valuables, the victim sus-
tained multiple gunshot wounds.
When the defendant and Taylor fled the victim’s resi-
dence, the defendant was in possession of property
belonging to the victim, specifically, cash and a shoe
box. At 3:24 p.m., the victim attempted to dial 911 on
his cellphone but he was unable to do so and dialed
‘‘922’’ instead. He perished on his kitchen floor from a
gunshot wound in the area of his left chest. A neighbor
of the victim, alerted to the sound of uncharacteristi-
cally loud music, fighting, gunshots, and pleas for help
originating from the victim’s residence, called 911 at
3:25 p.m. By 3:30 p.m., the police arrived at the scene,
where they discovered the lifeless victim.
Immediately upon leaving the victim’s residence, the
defendant and Taylor proceeded to a nearby bus stop
that was one-tenth of a mile from the crime scene, from
which, at 3:22 p.m., they boarded a bus that transported
them to downtown Hartford. At this time, the defendant
was carrying a backpack that contained the cash and
a shoe box. A fellow passenger overheard Taylor com-
ment to the defendant that Taylor had been bitten by
a dog, and the defendant was overheard remarking that
‘‘it was a big dog.’’ Images of the defendant and Taylor
running toward the bus stop were captured by a video
surveillance camera located at a nearby convenience
store, and images of the defendant and Taylor while
they were on the bus were captured by a video surveil-
lance camera located on the bus. In the video from the
bus, the defendant appears to remove cash from his
backpack and appears to hand something to Taylor
from his backpack.
By disseminating to the public some of the still images
of the defendant and Taylor from the surveillance foot-
age captured on the bus, the police gained information
about their identities. When the police interviewed Tay-
lor on July 16, 2009, police observed injuries on or about
his hands. Following an unrelated shooting incident in
Hartford, the police came to possess a .22 caliber Ber-
etta and determined that it previously had been owned
by Taylor. Forensic analysis of the gun and of shell
casings found at the crime scene involving the victim
linked the gun, and thus Taylor, to the crimes. Moreover,
forensic analysis of DNA samples from Taylor and of
DNA obtained from the brim of a baseball cap that was
found at the crime scene linked Taylor to the crimes.
Having discussed some of the facts and evidence under-
lying the state’s case, we will discuss additional relevant
facts as they relate to the specific claims raised in the
present appeal.
I
First, the defendant claims that the evidence did not
support his conviction of robbery in the first degree,
burglary in the first degree, or felony murder.3 We
disagree.
‘‘The standard of review we apply to a claim of insuffi-
cient evidence is well established. In reviewing the suffi-
ciency of the evidence to support a criminal conviction
we apply a two-part test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [finder of fact] reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt. . . .
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multi-
tude of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [finder] of fact is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [finder of fact]
may draw whatever inferences from the evidence or
facts established by the evidence it deems to be reason-
able and logical. . . .
‘‘Finally, [a]s we have often noted, proof beyond a
reasonable doubt does not mean proof beyond all possi-
ble doubt . . . nor does proof beyond a reasonable
doubt require acceptance of every hypothesis of inno-
cence posed by the defendant that, had it been found
credible by the [finder of fact], would have resulted in
an acquittal. . . . On appeal, we do not ask whether
there is a reasonable view of the evidence that would
support a reasonable hypothesis of innocence. We ask,
instead, whether there is a reasonable view of the evi-
dence that supports the [finder of fact’s] verdict of
guilty.’’ (Internal quotation marks omitted.) State v.
Crespo, 317 Conn. 1, 16–17, 115 A.3d 447 (2015).
A
With regard to the conviction of robbery in the first
degree, the defendant argues that the state failed to
prove beyond a reasonable doubt that ‘‘[he] used or
threatened the use of physical force on the victim for
any reason, let alone for the purpose of accomplishing
the larceny.’’ The defendant argues that ‘‘[t]o have
arrived at its decision, the jury would have had to resort
to speculation and conjecture, and to have drawn
unwarranted inferences from the facts presented.’’ The
defendant acknowledges that the evidence permitted a
finding that Taylor entered the victim’s residence, the
victim bit Taylor on the wrist during a struggle, and that
‘‘[a]t some point, the victim was shot.’’ The defendant
accurately observes that the state did not present any
physical evidence to demonstrate that he had been in
the victim’s residence. The defendant argues that, to
the extent that the state presented evidence that ‘‘[a]
teen’’ got on the bus with Taylor, was carrying a back-
pack, and commented on ‘‘ ‘a big dog,’ ’’ such evidence
merely supported a finding that this person was present
when the victim bit Taylor. The defendant does not
claim that the evidence did not demonstrate his guilt
as an accessory. His analysis of the claim is limited to
demonstrating that the state was limited to proving his
criminal liability under § 53a-134 (a) (2) solely as a
principal, and that it failed to do so.
The state disagrees that it was limited to proving the
defendant’s criminal liability as a principal. The state
argues that to obtain a conviction under an accessorial
theory of liability, the law does not require that the
state formally charge an accused as an accessory. The
state argues that the information put the defendant on
notice that it would attempt to demonstrate criminal
liability under alternate theories, its evidence demon-
strated that the state attempted to prove the defendant’s
criminal liability as an accessory, and the evidence
amply demonstrated that the defendant, as an acces-
sory, was guilty of robbery in the first degree.
Section 53a-134 (a), with which the defendant was
charged, provides: ‘‘(a) A person is guilty of robbery in
the first degree when, in the course of the commission
of the crime of robbery as defined in section 53a-133
or of immediate flight therefrom, he or another partici-
pant in the crime . . . (2) is armed with a deadly
weapon . . . .’’ General Statutes § 53a-133 provides: ‘‘A
person commits robbery when, in the course of commit-
ting a larceny, he uses or threatens the immediate use
of physical force upon another person for the purpose
of: (1) Preventing or overcoming resistance to the tak-
ing of the property or to the retention thereof immedi-
ately after the taking; or (2) compelling the owner of
such property or another person to deliver up the prop-
erty or to engage in other conduct which aids in the
commission of the larceny.’’ General Statutes § 53a-119
defines larceny: ‘‘A person commits larceny when, with
intent to deprive another of property or to appropriate
the same to himself or a third person, he wrongfully
takes, obtains or withholds such property from an
owner. . . .’’
In the state’s long form information, it charged the
defendant in count six with robbery in the first degree
in violation of § 53a-134 (a) (2) as follows: ‘‘The said
Senior Assistant State’s Attorney further accuses [the
defendant] of the crime of robbery in the first degree
in violation of Connecticut General Statutes § 53a-134
(a) (2) and alleges that on or about June 30, 2009, at
or near [the victim’s residence in East Hartford], at
approximately 3:15 p.m., the defendant, in the course
of committing a larceny, used and threatened the imme-
diate use of physical force upon another person; to
wit: William Castillo, for the purpose of preventing and
overcoming resistance to the taking of the property and
to the retention thereof immediately after the taking
and in the course of the commission of the crime of
robbery or of immediate flight therefrom, he or another
participant in the crime, to wit: Donele Taylor, was
armed with a deadly weapon.’’
The state specifically charged the defendant as an
accessory in the context of count four, alleging that he
committed burglary in the first degree in violation of
General Statutes §§ 53a-101 (a) (2) and 53a-8 (a). In
several other counts, the state alleged that, with regard
to the events underlying all of the charges, the defen-
dant had acted in conjunction or as a coconspirator
with Taylor. Thus, in count one, the state alleged that
the defendant committed felony murder in that ‘‘the
defendant, acting with another person; to wit: Donele
Taylor, committed or attempted to commit a felony; to
wit: burglary and robbery, and in the course of and in
furtherance of such crimes or of flight therefrom, he
or another participant caused the death of [the victim].’’
In count two, the state alleged that the defendant com-
mitted home invasion in that ‘‘in the course of commit-
ting the offense, acting with another person; to wit:
Donele Taylor, he or another participant in the crime
committed or attempted to commit a felony against the
person of [the victim] . . . .’’ Moreover, in counts
three, five, and seven of the information, the state
alleged that the defendant and Taylor had engaged in
a conspiracy to commit the crimes of home invasion,
burglary in the first degree and robbery in the first
degree.
Although, in connection with the robbery charge, the
state did not refer to accessorial liability or to our acces-
sorial liability statute, § 53a-8 (a),4 its failure to do so
did not preclude the state from obtaining a conviction
by means of evidence that the defendant acted as an
accessory to another, namely, Taylor. ‘‘It is well settled
that under our law both principals and accessories are
treated as principals . . . if the evidence, taken in the
light most favorable to sustaining the verdict, estab-
lishes that [the defendant] committed the [crime]
charged or did some act which forms . . . a part
thereof, or directly or indirectly counseled or procured
any persons to commit the offenses or to do any act
forming a part thereof, then the [conviction] must stand.
. . . Connecticut long ago adopted the rule that there
is no practical significance in being labeled an accessory
or a principal for the purpose of determining criminal
responsibility. . . . The modern approach is to aban-
don completely the old common law terminology and
simply provide that a person is legally accountable for
the conduct of another when he is an accomplice of
the other person in the commission of the crime. . . .
Connecticut has taken the same approach through Gen-
eral Statutes § 53a-8. . . . There is no meaningful dis-
tinction between principal and accessory liability; they
are simply theories for proving criminal liability. . . .
[A] defendant may be convicted as an accessory even
though he was charged only as a principal . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Hamlett, 105 Conn. App. 862, 867–69, 939 A.2d 1256,
cert. denied, 287 Conn. 901, 947 A.2d 343 (2008); see
also State v. Smith, 212 Conn. 593, 606, 563 A.2d 671
(1989) (‘‘[u]nder Connecticut law, a defendant may be
convicted as an accessory even though he was charged
only as a principal as long as the evidence presented
at trial is sufficient to establish accessorial conduct’’).
‘‘A defendant cannot be convicted of being an acces-
sory. Proving guilt as an accessory under § 53a-8 is an
alternative way in which the state may demonstrate a
defendant’s liability for a criminal act. . . . Liability
does not turn on whether he was found to be a principal
or an accessory. . . . Accordingly, a defendant who is
charged with an offense should be on notice that he
may be convicted as an accessory. . . .
‘‘Nevertheless, due process considerations preclude
a court from instructing a jury that it may convict a
defendant under a theory of accessorial liability in cer-
tain circumstances. Inherent in the constitutional man-
date that a defendant be advised of the nature and cause
of the accusations against him is that the defendant be
on notice of the nature of the state’s prosecution. The
state cannot present its case on the theory of principal
liability and then, without providing notice to the defen-
dant, seek near the conclusion of the trial to convict
the defendant under a theory of accessorial liability.’’
(Citations omitted; internal quotation marks omitted.)
State v. Vasquez, 68 Conn. App. 194, 214–15, 792 A.2d
856 (2002).
The state referred to Taylor in the context of count
six, in which it charged the defendant with robbery in
the first degree, as well as in the context of five of the
other six counts, all of which involved the discrete
events of June 30, 2009, involving the victim. The several
counts of the state’s information, when read together,
provided the defendant notice that the state could seek
a conviction on a ground of accessorial liability. See,
e.g., State v. Davis, 154 Conn. App. 216, 229, 107 A.3d
962 (2014) (rejecting claim that defendant lacked notice
that state could seek conviction on ground of accesso-
rial liability), cert. denied, 315 Conn. 918, 107 A.3d 961
(2015). The several counts of the information reflected
the state’s intent to prove that the defendant and Taylor
were confederates in the commission of the several
crimes at issue. Moreover, the manner in which the
state presented its case reflected that the state was not
confining its theory of the case to one based on principal
liability. The state presented physical evidence to dem-
onstrate that Taylor was present in the victim’s resi-
dence, as well as evidence that Taylor exhibited
physical injuries consistent with an altercation with the
victim. The state presented evidence that the murder
weapon, later recovered by the police in connection
with unrelated criminal activity, had been owned by
Taylor. The state focused on the activities of the defen-
dant and Taylor immediately following the incident,
presenting evidence that they boarded a bus immedi-
ately following the crimes, that the defendant was in
possession of some of the victim’s stolen property, and
that the defendant had knowledge of the fact that Taylor
had sustained physical injury during a physical alterca-
tion with the victim. Against this evidentiary backdrop,
it was reasonable to presume that the state would pur-
sue a theory of accessorial liability.
As part of its argument that the state was limited
to sustaining a conviction under a theory of principal
liability, the defendant also argues that a conviction on
the robbery charge cannot be premised on accessorial
liability because the state failed to request a jury instruc-
tion on accessorial liability in connection with the rob-
bery charge and, in the context of the robbery charge,
the court did not instruct the jury that it could find
the defendant guilty under such a theory of liability.
Certainly, a reviewing court may not uphold a convic-
tion premised on accessorial liability if the court fore-
closed the jury from basing its guilty verdict on that
theory. See State v. Faulkner, 48 Conn. App. 275, 277,
709 A.2d 36 (1998) (noting in review of sufficiency of
evidence to support conviction as accessory that court
instructed jury as to both principal and accessorial lia-
bility); State v. Channer, 28 Conn. App. 161, 166, 612
A.2d 95 (noting in review of sufficiency of evidence
that reviewing court limited to considering whether
evidence supported finding that defendant acted as
principal because trial court did not instruct jury as to
accessorial liability), cert. denied, 223 Conn. 921, 614
A.2d 826 (1992).
In the present case, the court began its charge by
instructing the jury with regard to general principles
including but not limited to the presumption of inno-
cence, the state’s burden of proof, and the different
types of evidence it may consider. Before discussing
the essential elements of each offense with which the
defendant was charged, the court delivered what it
deemed to be ‘‘preliminary’’ instructions concerning the
concepts of proximate cause, motive, identity, and
intent. The court instructed the jury that it must con-
sider each count separately and that, with regard to the
element of causation, ‘‘[t]he state must [prove] beyond
a reasonable doubt that the defendant, as a principal
or as an accessory, proximately caused any injury to
[the victim].’’ (Emphasis added.) With regard to the
element of identity, the court stated in relevant part:
‘‘The state has the burden of proving beyond a reason-
able doubt that the defendant was the perpetrator of
the crimes alleged. You must be satisfied beyond a
reasonable doubt of the identity of the defendant as
the one who committed, here, as either a principal or
an accessory, the crimes, or you must find the defendant
not guilty.’’ (Emphasis added.)
The court then instructed the jury with regard to the
offense of burglary in the first degree. After discussing
the elements of that offense, the court stated in relevant
part: ‘‘In this count, the defendant has been charged as
an accessory. A person is criminally liable for a criminal
act if he directly commits it or if he is an accessory in the
criminal act of another. The statute defining accessorial
liability reads in pertinent part as follows:
‘‘A person acting with the mental state required for
the commission of an offense who solicits, requests,
commands, importunes, or intentionally aids another
person to engage in conduct which constitutes an
offense shall be criminally liable for such conduct and
may be prosecuted and punished as if he were the
principal offender.
‘‘This statute does not connect the five acts specifi-
cally with the word and, but separates them by the word
or. A person is an accessory if he solicits or requests or
commands or importunes or intentionally aids another
to engage in the conduct that constitutes an offense.
Solicit means to tempt or entice someone to do wrong.
Importune means to demand or urge. Aid means to
assist, help, or support. A person acts intentionally with
respect to a result when his conscious objective is to
cause such result. Intentionally aid, therefore, means
to act in any manner, the conscious objective of which
is to assist, help, or support. Again, please refer to the
instruction concerning specific intent.
‘‘If the defendant did any of these things as specified
in the statute, he is guilty of burglary in the first degree
as though he had directly committed it or participated
in its commission. To establish the guilt of a defendant
as an accessory for assisting in the criminal act of
another, the state must prove criminality of intent and
community of unlawful purpose. That is, for the defen-
dant to be guilty as an accessory, it must be established
that he acted with the mental state necessary to commit
burglary in the first degree, and in furtherance of that
crime he solicited, requested, commanded, importuned,
or intentionally aided the principal to commit the bur-
glary in the first degree.
‘‘Evidence of mere presence as an inactive compan-
ion or passive acquiescence or the doing of innocent
acts, which, in fact, aid the commission of the crime is
insufficient to find the defendant guilty as an accessory
under the statute. Nevertheless, it is not necessary to
prove that the defendant was actually present or actu-
ally participated in the actual commission of the crime
of burglary in the first degree.’’
After concluding its instruction with regard to bur-
glary in the first degree, the court instructed the jury
with regard to the elements of robbery in the first
degree, the offense at issue in the present claim. The
court set forth the essential elements of the crime,
instructing the jury that the state bore the burden of
proving beyond a reasonable doubt ‘‘that the defendant
was committing a larceny . . . that he used physical
force against the owner of property to obtain the prop-
erty and . . . that he or another participant was armed
with a deadly weapon.’’ In the context of this instruc-
tion, the court did not refer to accessorial liability.
In considering the court’s charge, we are mindful that
‘‘[a] charge to the jury is not to be critically dissected
for the purpose of discovering possible inaccuracies of
statement, but it is to be considered rather as to its
probable effect [on] the jury in guiding [it] to a correct
verdict in the case. . . . The test to be applied to any
part of a charge is whether the charge, considered as
a whole, presents the case to the jury so that no injustice
will result.’’ (Internal quotation marks omitted.) State
v. Terwilliger, 314 Conn. 618, 648, 104 A.3d 638 (2014).
Although, in the context of the instruction related to
the robbery charge, the court did not distinctly instruct
the jury that it could find the defendant guilty of robbery
in the first degree under an accessorial theory of liabil-
ity, we conclude nonetheless that a fair reading of the
court’s charge in its entirety, in light of the evidence
before the jury, submitted the charge to the jury on a
theory of accessorial liability.
As an initial matter, nothing in the court’s instructions
related to the robbery charge suggested that the jury
was precluded from reaching a verdict under a theory
of accessorial liability. When the court delivered its
preliminary instructions to the jury, prior to instructing
the jury with regard to the essential elements of any of
the offenses, the court twice referred to the defendant’s
liability as a principal or an accessory. In its instruction
concerning identity, it instructed the jury to consider
whether the state proved that the defendant committed
the ‘‘crimes’’ in this case as a principal or as an acces-
sory. (Emphasis added.) The court set forth a thorough
instruction concerning accessorial liability in the con-
text of the first offense that it addressed, burglary in
the first degree, and it did not state that its instruction
could not be applied to any other offense. Despite the
fact that the court addressed accessorial liability solely
in the context of the burglary charge, prior to a discus-
sion of any of the other offenses, we are persuaded
that in light of the court’s preliminary instructions, as
well as the evidence that indisputably pointed to the
defendant’s guilt on the intimately related charges of
burglary and robbery as an accessory, it is likely from
the charge as given that the jury would have understood
the accessorial liability instruction to apply to the rob-
bery charge, as well. We recognize that the state pre-
sented evidence from which the jury reasonably could
have found that the defendant was present in the vic-
tim’s residence during the events at issue, he carried
items stolen from the victim’s residence away from the
scene, he and Taylor fled to Hartford immediately after
the events at issue, and that, rather than expressing
any dissatisfaction with the events that led to the vic-
tim’s death, he and Taylor casually discussed these vio-
lent events while riding together on the bus that
delivered them to Hartford.
In reaching our conclusion, we are guided by State
v. Foshay, 12 Conn. App. 1, 26–28, 530 A.2d 611 (1987),
in which this court concluded in a sufficiency of the
evidence analysis that, despite the fact that the trial
court had instructed the jury with regard to accessorial
liability solely in the context of its burglary charge, the
jury would have understood the accessorial liability
instruction to have applied to the intimately related
charge of larceny. In Foshay, this court explained:
‘‘Although the remainder of the court’s charge was
structured so that the accessory liability concept was
specifically applied to the evidence in the case only in
the context of the burglary offense and prior to any
instruction on the elements of the larceny offense, it is
likely from the charge as given that the jurors under-
stood accessory liability to apply to both counts. This
is so because their attention was drawn to both counts
when the concept was explained, and because the evi-
dence in the case indisputably pointed to the defen-
dant’s guilt on both intimately related charges only as
an accessory. Although it would have been preferable
to have linked the accessory instruction more specifi-
cally to the instruction on the larceny offense, reviewing
the instructions as a whole and considering them from
the standpoint of their probable effect upon the jury in
guiding them to a correct verdict, we cannot say that
the jury was without adequate legal instruction on the
applicability of accessory liability, as contained in Gen-
eral Statutes § 53a-8, to the larceny offense of which
the defendant was convicted.’’ Id., 27–28.
The defendant’s sufficiency claim is based on his
argument that the jury was confined to determining
whether he committed the crime as a principal and not
as an accessory. Because we conclude that the court
submitted the case to the jury on a theory of accessorial
liability, as well as on a theory of principal liability, we
reject the defendant’s claim.5
B
With regard to the conviction of burglary in the first
degree, the defendant argues that the evidence did not
support a finding that: (1) under a principal theory of
liability, he inflicted or attempted to inflict bodily injury
on the victim, or (2) under an accessorial theory of
liability, he solicited, requested, commanded, impor-
tuned or intentionally aided another who engaged in
conduct constituting the burglary. We disagree.
The defendant acknowledges that by means of the
evidence of Taylor’s injuries following the events at
issue, the ‘‘dog bite’’ conversation that occurred on the
bus, Taylor’s ownership of the murder weapon, and the
results of the DNA testing of the baseball cap found in
the victim’s residence, the jury could have found that
Taylor was in the victim’s apartment, struggled with
the victim, and shot the victim. The defendant argues
that from the evidence of his presence on the bus with
Taylor immediately following the events at issue, the
‘‘dog bite’’ conversation on the bus, and his possession
of the shoe box, the jury reasonably could have found
that ‘‘[he] was in the apartment and saw Taylor and the
victim struggle.’’
The defendant argues that the evidence, however,
did not support a finding that he acted as a principal
in this crime by participating in a struggle with the
victim or shooting the victim. Moreover, the defendant
argues that the evidence did not support a finding that
he acted as an accessory to Taylor’s criminal conduct
in the victim’s residence. He argues that, from the facts
in evidence, ‘‘the jury could not have reasonably and
logically concluded that the defendant solicited,
requested, commanded, importuned or intentionally
aided Taylor, who intentionally, knowingly or recklessly
inflicted bodily injury on the victim.’’
‘‘A person is guilty of burglary in the first degree when
. . . (2) such person enters or remains unlawfully in
a building with intent to commit a crime therein and,
in the course of committing the offense, intentionally,
knowingly or recklessly inflicts or attempts to inflict
bodily injury on anyone . . . .’’ General Statutes § 53a-
101 (a). Here, the state’s theory of the case was that
the defendant intended to commit burglary in the first
degree. As set forth in part I A of this opinion, a person,
acting with the mental state required for the commis-
sion of the crime, may be held liable as an accessory
if he ‘‘solicits, requests, commands, importunes or
intentionally aids another person to engage in conduct
which constitutes an offense . . . .’’ General Statutes
§ 53a-8 (a).
The defendant acknowledges that the state presented
evidence that Taylor entered the victim’s residence,
struggled with the victim, and shot the victim. Also
the defendant acknowledges that the state presented
evidence that he was in the victim’s apartment and
witnessed the struggle between Taylor and the victim.
Our review of the evidence reflects that it supported a
finding that when the victim and Taylor fled from the
victim’s residence immediately after the shooting, the
defendant was in possession of some of the property
stolen from the victim’s residence. The bus surveillance
video introduced into evidence supported a finding that
the defendant was carrying a backpack that contained
a shoe box and cash that was taken from the victim’s
residence. The evidence also supported a finding that,
in the immediate aftermath of the deadly events that
transpired at the victim’s residence, the defendant not
only remained with Taylor, but casually discussed those
events with him.
Specifically, the state presented the bus surveillance
video that depicted the defendant and Taylor as they
travelled to Hartford. The state also presented the testi-
mony of Kemorine Parker, who testified that, on the
afternoon of June 30, 2009, she was waiting for a bus
when she observed two black males, in their early twen-
ties, running to catch the bus. Parker did not identify
either individual. She stated that one of the males was
carrying a book bag. Parker sat all the way in the back
of the bus, and the two males sat opposite her. She
testified that she overheard one of the males state: ‘‘I
can’t believe you got bit . . . by a dog.’’ She stated that
she overheard his companion state: ‘‘[I]t was a big dog.’’6
Insofar as there was evidence that Taylor was bitten
by the victim during the struggle that took place in the
victim’s residence and testimony from a state medical
examiner that the victim was a large man, standing six
feet tall and weighing 282 pounds, the jury reasonably
could have found that the reference to ‘‘a big dog’’
referred to the victim.
‘‘It is axiomatic that a jury may infer intent from
behavior. As our Supreme Court has stated, direct evi-
dence of the accused’s state of mind is rarely available.
. . . Therefore, intent is often inferred from conduct
. . . and from the cumulative effect of the circumstan-
tial evidence and the rational inferences drawn there-
from.’’ (Internal quotation marks omitted.) State v.
Raynor, 84 Conn. App. 749, 760, 854 A.2d 1133, cert.
denied, 271 Conn. 935, 861 A.2d 511 (2004). The jury
reasonably could have found that the evidence did not
suggest that the defendant had been surprised by, had
regretted, or had attempted to stop the deadly events
that he witnessed in the victim’s residence. Rather, in
addition to the evidence that he was present for and
witnessed the events at issue, the evidence of his fleeing
the scene with Taylor, his presence and demeanor with
Taylor on the bus, the nature and tone of his conversa-
tion with Taylor,7 and his possession of the victim’s
property supported an inference that he was not a mere
bystander to the events at issue, but that he shared a
criminal interest in the crimes with their perpetrator,
Taylor. Thus, the state demonstrated beyond a reason-
able doubt that he intentionally aided Taylor in the
commission of the crime of burglary. ‘‘While we
acknowledge that it appears that the defendant’s con-
viction is premised, in large measure, on circumstantial
evidence, we note that there is no legal distinction
between direct and circumstantial evidence as far as
probative force is concerned, and that it is not one fact,
but the cumulative impact of a multitude of facts that
establish guilt in a case involving substantial circum-
stantial evidence.’’ State v. Malone, 40 Conn. App. 470,
481, 671 A.2d 1321, cert. denied, 237 Conn. 904, 674
A.2d 1332 (1996).
C
Next, the defendant argues that the state failed to
prove beyond a reasonable doubt that he committed
felony murder. Section 53a-54c, which defines felony
murder, provides in relevant part: ‘‘A person is guilty
of murder when, acting either alone or with one or more
persons, he commits or attempts to commit robbery [or]
burglary . . . and, in the course of and in furtherance
of such crime or of flight therefrom, he, or another
participant, if any, causes the death of a person other
than one of the participants, except that in any prosecu-
tion under this section, in which the defendant was not
the only participant in the underlying crime, it shall be
an affirmative defense that the defendant: (1) Did not
commit the homicidal act or in any way solicit, request,
command, importune, cause or aid the commission
thereof; and (2) was not armed with a deadly weapon,
or any dangerous instrument; and (3) had no reasonable
ground to believe that any other participant was armed
with such a weapon or instrument; and (4) had no
reasonable ground to believe that any other participant
intended to engage in conduct likely to result in death
or serious physical injury.’’
The defendant argues that the state failed to sustain
its burden of proof because the evidence did not support
a finding that he committed robbery or burglary. In light
of our resolution of the defendant’s sufficiency of the
evidence claims in parts I A and B of this opinion, this
claim fails.
II
Next, the defendant claims that the court violated
his right to present a defense when it precluded him
from presenting his version of the facts related to cer-
tain injuries sustained by Taylor, the other person
involved in the crimes. We agree.
The following additional facts underlie this claim. In
October, 2012, the defendant filed a motion in limine
to preclude the state from introducing statements
related to the present case that were made by Taylor
to the police. The motion in limine provided in relevant
part: ‘‘In this case, [the defendant] and Taylor were
charged with almost identical crimes. After confessing
to the police on July 16, 2012, Taylor was arrested for
felony murder, murder, conspiracy to commit murder,
robbery in the first degree and burglary in the first
degree. . . . On February 27, 2012, Taylor pled guilty
to felony murder, robbery in the first degree, and con-
spiracy to commit robbery in the first degree under the
Alford doctrine.8 On May 4, 2012, Taylor was sentenced
to thirty-two . . . years in prison. . . .
‘‘On July 16, 2009, Taylor gave a written confession
after speaking with police about his version of the facts
and circumstances of the June 30, 2009 incident. After
providing police with the . . . written confession, Tay-
lor was immediately arrested and incarcerated on a $2.5
million dollar bond. On July 20, 2009, four . . . days
after his arrest, from prison, Taylor recanted his first
confession but refused to sign a written statement. The
next day police returned to meet with Taylor wherein he
participated in a photo identification of [the defendant].
Undersigned counsel is led to believe that Taylor may be
unavailable to testify at trial and is refusing to cooperate
with the state. . . .
‘‘If the state offered the statements of Taylor into
evidence, it would clearly be an attempt to prove the
truth of the matter asserted in the state’s case against
[the defendant] in that the statements allege that the
defendant was present for and participated in the crime
which occurred inside of the decedent’s apartment.
‘‘Further, and more importantly, upon information
and belief, Taylor will not be available for cross-exami-
nation relative for the aforementioned statements. . . .
‘‘In Taylor’s written confession he admits to shooting
the decedent and indicates that he does not know what
the other person was doing in the apartment while he
was struggling with the decedent. In this statement,
Taylor implicates the involvement of [the defendant]
by acknowledging that another person was with him
inside of the apartment as this crime took place. Fur-
ther, it indicates that the ‘other kid’ had a shoe box in
his backpack.’’ (Citations omitted.) As he did during
oral argument on the motion, the defendant argued in
the motion and accompanying memorandum of law that
any of the statements that Taylor provided to the police
should be excluded under Crawford v. Washington,
541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004),
as the testimonial hearsay of an unavailable witness.9
In his memorandum of law in support of his motion
in limine, the defendant went on to state in relevant
part: ‘‘On July 16, 2009 . . . Taylor told Detectives
[Donald] Olson and [Jeffrey] Cutler that [the victim] bit
him during a struggle in [the victim’s East Hartford]
apartment . . . . At the time, he was in the police
department’s interview room confessing to the murder
of [the victim] in the presence of the two detectives.
He signed a confession on that date accepting responsi-
bility for the homicide while stating [that] he did not
know what the other male was doing in the apartment
at the time of the killing. In the signed confession he
stated, ‘. . . during the struggle with [the victim], I got
a small cut on my left hand and [the victim] bit my right
wrist.’ He further informed police on July 16, 2009, that
he did not know the name of the other person that he
was with in the apartment. In his confession, he stated
that [the victim] unexpectedly drew a gun on him and
the other person in the apartment, leading to a struggle
involving Taylor and [the victim] and the eventual shoot-
ing by Taylor. . . . Four days later he contacted the
police . . . blaming [the defendant] for the shooting
and taking the position that he . . . was unaware that
any homicide was going to take place.’’
On December 6, 2012, the court heard oral argument
on the motion in limine. After the defendant’s attorney
described the facts, generally as set forth in his motion
and memorandum of law in support thereof, he argued
that if Taylor did not testify, the court should exclude
his statements from the evidence. The prosecutor
responded that the state did not intend to offer all
evidence of Taylor’s statements to the police, character-
izing them generally as ‘‘statements against penal inter-
est’’ that may be barred under Crawford. The
prosecutor, however, stated that he intended to offer
evidence that Taylor told the police that he had a bite
marks and scratches on his hands, including a bite mark
inflicted by the victim. The prosecutor characterized
this portion of Taylor’s statements to the police as being
nontestimonial in nature. The defendant’s attorney
argued that the evidence was unduly prejudicial and,
because Taylor would not be available for cross-exami-
nation, its admission would violate the defendant’s right
to confront an adverse witness. It appears that the court
deferred ruling on the issue until the time of trial.
Following additional oral argument related to the
issue on January 7, 2013, the court ruled that, with
regard to Taylor’s statements to the police, it would
permit the state to present evidence of Taylor’s state-
ment to the police that he had sustained a bite wound.
The state argued that the statement was relevant to one
or more issues in the case in light of the evidence of
the ‘‘big dog’’ comments made by the defendant and
Taylor on the bus, shortly after the shooting.
On January 8, 2013, outside of the jury’s presence,
the state called Taylor to the witness stand. Despite
being ordered to do so by the court, Taylor refused
to answer any questions posed to him concerning the
events underlying the trial. The court held Taylor in
contempt and sentenced him to six months incar-
ceration.
On January 9, 2013, the court revisited its ruling to
admit evidence of Taylor’s statement that he had sus-
tained a bite wound. At this juncture, the court disal-
lowed the statement related to the bite wound. The
court stated: ‘‘[R]ight now, based on what the evidence
is, because the defense hasn’t challenged anything con-
cerning that statement, I’m going to disallow the state-
ment concerning the bite. I understand that it is a
statement against penal interest; the entire confession
was a statement against penal interest. But if there’s
even a hint anywhere that that bite was anything other
than where it came from, that statement does come in,
and that includes during closing argument as well. I
will reopen this case if there’s a hint during closing
argument that the bite was anything other than what
it is. So, remember, I’ll stop the trial and allow [Taylor’s
statement] in at that point.’’ The court stated that it
would permit Olson to testify that he had interviewed
Taylor and that during the course of his interview he
photographed Taylor’s injuries. The court also stated
that the state could present such photographs in evi-
dence. Later, in response to an inquiry by the defen-
dant’s attorney concerning the court’s ruling, the court
stated that it wanted to make it ‘‘very clear that if there’s
even a hint that that bite mark came from anywhere
else, [then evidence of Taylor’s statement] comes in.’’
The defendant’s attorney replied, ‘‘Right. And I made a
note of that, opening the door.’’
Later, Olson testified that he interviewed Taylor on
July 16, 2009, observed injuries on Taylor’s hands, and
photographed the injuries. The photographs were
admitted into evidence. During his testimony, Olson
testified: ‘‘He appeared to have a bite mark on his wrist
and some lacerations on his other hand.’’ The defendant
objected to Olson’s testimony. The court, noting that
the testimony was Olson’s observation of the injury,
overruled the defendant’s objection.10 During subse-
quent examination by the state, however, Olson testified
that he learned from talking to Taylor that the injury
on his wrist was ‘‘[a] bite.’’ The court sustained the
defendant’s objection to this inquiry and denied the
defendant’s motion for a mistrial related to it.11 The
court, however, provided the jury with a curative
instruction directing it to disregard any testimony from
Olson concerning what Taylor may have stated to him
about the injury. The court instructed the jury that the
nature of any marks on Taylor’s hands was a factual
matter for the jury to decide.
In addition to Olson’s testimony and the photographs
depicting Taylor’s injuries, the state presented evidence
that was relevant to the issue of Taylor’s injuries from
Dennis Minott, the operator of the bus on which the
defendant and Taylor were passengers on June 30, 2009.
Minott testified that one of the two black males who
got on his bus at Main Street and Brewer Street asked
him for ‘‘a tissue,’’ but that he was unable to provide
him with it.12 As we have discussed previously in this
opinion, the jury also heard evidence related to a bite
injury from Parker, who described the conversation
that she overheard on the bus.
For the first time, on appeal, the defendant claims that
after the court properly excluded evidence concerning
Taylor’s statements to the police, it improperly
restricted his right to challenge the evidence related
to Taylor’s wounds that it had permitted the state to
introduce at trial. The defendant argues: ‘‘The state
introduced evidence that the nature of Taylor’s wrist
injury was the result of a bite. Parker’s dog bite testi-
mony and Minott’s tissue testimony corroborated
Olson’s bite mark testimony. Evidence of the source,
nature, and timing of Taylor’s injuries was relevant to
refute the testimony of Olson, Parker, and Minott. . . .
When the trial court precluded [the] defendant from
presenting evidence regarding the nature, source, and
timing of the alleged bite mark, the court precluded
[the] defendant from challenging Olson’s testimony.
Olson’s testimony provided the basis for Parker’s and
Minott’s testimony, and because of the importance of
Parker’s testimony to the state’s case, the state cannot
prove beyond a reasonable doubt that Olson’s testimony
may not have had a tendency to influence the judgment
of the jury.’’
The state argues before this court that the defendant
is unable to demonstrate the existence of a constitu-
tional violation because the court did not bar the
defense from introducing any evidence. The state goes
on to argue: ‘‘On its face, the trial court’s comment did
not bar the defendant from offering evidence of an
alternative source for Taylor’s injuries. Indeed, the
[court’s] comment invited such proof, but simply indi-
cated that, if the question of the origin of the wounds
was placed in contest, the state would be permitted to
present a counterproof. There was no order barring the
defendant from presenting evidence in his defense, and,
thus, there was no error.’’
The defendant frames this newly raised claim in con-
stitutional terms, as a violation of his right to present
a defense as guaranteed by the sixth amendment to the
federal constitution. He seeks review under the doctrine
set forth in State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989). 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 violation of a fundamental right; (3) the
alleged constitutional violation . . . exists and . . .
deprived the defendant of a fair trial; and (4) if subject
to harmless error analysis, the state has failed to demon-
strate harmlessness of the alleged constitutional viola-
tion beyond a reasonable doubt. In the absence of any
one of these conditions, the defendant’s claim will fail.’’
(Emphasis in original; footnote omitted.) Id.; see In
re Yasiel R., 317 Conn. 773, 781, A.3d (2015)
(modifying Golding’s third prong).
We will review the claim under Golding because the
record is adequate to do so and the claim is of constitu-
tional magnitude. Here, the record reflects that the
court, having determined that Taylor’s statements to
the police should be excluded under Crawford, indi-
cated that if the defendant in any manner attempted
to challenge the evidence that the state had presented
that Taylor’s injury was the result of ‘‘a bite,’’ it would
permit the state to introduce evidence of Taylor’s state-
ment concerning his injury. The court conditioned its
exclusion of testimonial hearsay under Crawford, as it
related to Taylor’s statements to the police concerning
his injuries, on the defense not addressing the state’s
evidence, and particularly Olson’s testimony, concern-
ing the origin of such injuries. Although the state argues
that the defendant has misinterpreted the court’s ruling,
we are not persuaded by its characterization of the
court’s ruling. The court unmistakably conveyed in its
ruling that any attempt by the defense to contest the
state’s evidence that the injuries were the result of ‘‘a
bite’’ would open the door for the state to present evi-
dence that the court had deemed inadmissible under
Crawford.
The court did not explicitly base this ruling on one
or more rules of evidence. The ruling concerned the
presentation of evidence that the court determined to
fall within the ambit of Crawford, the defendant’s ability
to present evidence to counter certain evidence pre-
sented by the state, and the defendant’s ability to make
arguments to the jury that challenged the state’s evi-
dence and its theory of the case.
‘‘There is no dispute that in the adversarial setting of
a trial, the accused has a right under the confrontation
clause to expose to the jury the facts from which jurors,
as the sole triers of fact and credibility, [can] appropri-
ately draw inferences relating to the reliability of the
[State’s] witness. . . . It is also undisputed that the
accused has an equal right under the compulsory pro-
cess and due process clauses to present a defense, the
right to present the defendant’s version of the facts as
well as the prosecution’s to the jury so that it may
decide where the truth lies. . . . We also are mindful
that [t]he primary interest secured by confrontation is
the right to cross-examination . . . .’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Mar-
celino S., 118 Conn. App. 589, 599–600, 984 A.2d 1148
(2009), cert. denied, 295 Conn. 904, 988 A.2d 879 (2010).
‘‘The defendant’s right to present a defense under the
sixth amendment to the United States constitution does
not compel the admission of any and all evidence
offered in support thereof. . . . The trial court retains
the discretion to rule on the admissibility, under the
traditional rules of evidence, regarding the defense
offered.’’ (Internal quotation marks omitted.) State v.
Osimanti, 299 Conn. 1, 13, 6 A.3d 790 (2010). ‘‘The
defendant’s right to present his own witnesses to estab-
lish a defense . . . is a fundamental element of due
process of law.’’ (Internal quotation marks omitted.)
State v. Reeves, 118 Conn. App. 698, 708, 985 A.2d 1068
(2010). ‘‘The sixth amendment right to compulsory pro-
cess includes the right to offer the testimony of wit-
nesses, and to compel their attendance, if necessary,
[and] is in plain terms the right to present a defense,
the right to present the defendant’s version of the facts
as well as the prosecution’s to the jury so that it may
decide where the truth lies.’’ (Emphasis added; internal
quotation marks omitted.) State v. Cerreta, 260 Conn.
251, 260–61, 796 A.2d 1176 (2002). ‘‘Our Supreme Court
has stated that the defendant’s constitutional right to
present a defense does not require the trial court to
forgo completely restraints on the admissibility of evi-
dence. . . . Generally, an accused must comply with
established rules of procedure and evidence in exercis-
ing his right to present a defense. . . . A defendant,
therefore, may introduce only relevant evidence, and,
if the proffered evidence is not relevant, its exclusion
is proper and the defendant’s right is not violated.’’
(Internal quotation marks omitted.) State v. Eagles, 74
Conn. App. 332, 335, 812 A.2d 124 (2002), cert. denied,
262 Conn. 953, 818 A.2d 781 (2003).
The right to present a defense also encompasses the
right to present proper argument to the trier of fact.
Although the defendant’s claim is limited to the rights
afforded him under our federal constitution, we observe
that ‘‘[b]oth the Connecticut and the United States con-
stitutions protect a defendant’s right to voice closing
arguments before the trier of fact. The sixth amendment
guarantee in the federal constitution of the right to
assistance of counsel has been held to include the right
to present closing arguments. Herring v. New York, 422
U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975). Also,
article first, § 8, of the Connecticut constitution, which
provides that ‘the accused shall have a right to be heard
by himself and by counsel,’ has been held to guarantee
a right to present a closing argument. . . . The defen-
dant enjoys the same right whether the trial is to a jury
or to the bench.’’ (Citation omitted.) State v. Plaskonka,
22 Conn. App. 207, 210–11, 577 A.2d 729, cert. denied,
216 Conn. 812, 580 A.2d 65 (1990).
Having determined that the claim implicates the
defendant’s right to present a defense, we conclude that
the defendant has demonstrated that a constitutional
violation exists and deprived him of a fair trial. Rather
than considering the admissibility of Taylor’s state-
ments to the police and the defendant’s ability to chal-
lenge other evidence presented by the state related to
Taylor’s injuries as distinct matters, the court issued a
ruling that joined the two matters and, in so doing,
issued a ruling that effectively precluded the defendant
from making any effort to undermine the state’s evi-
dence that Taylor’s injuries resulted from a bite. The
court improperly left the defense in the untenable posi-
tion of having to choose between a violation of the
defendant’s right to confrontation and a violation of the
defendant’s right to present a defense. The state has
not presented this court with any authority that would
permit a court to condition a defendant’s right of con-
frontation on the defendant’s not exercising his right
to challenge the state’s evidence.
The court’s ruling, occurring in the middle of the trial,
did not merely infringe upon the defendant’s ability to
present evidence, but broadly precluded the defense
from even ‘‘hinting’’ during closing argument that the
injury was ‘‘anything other’’ than a bite. The court’s
ruling was very significant to the defense because the
evidence related to Taylor’s injuries, and the state’s
arguments concerning the origin of those injuries, was
a key component of the state’s case, which was based
on circumstantial evidence. After the state presented
evidence from Olson, Parker, and Minott that supported
a finding that Taylor had sustained a bite injury, the
prosecutor suggested in argument that Taylor had been
bitten by the victim. By arguing, as it did, that, shortly
after the events at issue, the defendant and Taylor
referred on the bus to a ‘‘big dog’’ that had bitten Taylor,
the state was able to present a compelling argument
that supported a finding that the defendant was present
with Taylor in the victim’s apartment and guilty of the
crimes with which he was charged. In light of all of the
circumstances, we conclude that the defendant was
deprived of a fair trial.
As we stated previously in this opinion, the state’s
analysis of this claim is limited to arguing that the
court’s ruling did not limit the defendant’s ability to
present any evidence in his defense. We observe that
the state does not attempt to demonstrate that the con-
stitutional violation is subject to harmless error analysis
or that the constitutional violation is harmless beyond
a reasonable doubt.13
In light of the constitutional violation, we conclude
that the proper remedy is to reverse the defendant’s
conviction and to remand the case to the trial court for
a new trial.
III
Next, the defendant claims that the court made sev-
eral errors in the admission of evidence. We agree in
part with the defendant’s claim.
Although, in part II of this opinion, we have concluded
that the defendant is entitled to a new trial, we will
address the evidentiary claims raised by the defendant
to the extent that we are persuaded that the issues
involved therein, involving the admissibility of evi-
dence, are likely to arise during proceedings on remand.
‘‘As a general matter, when our appellate courts reverse
the judgment and remand the case for a new trial, only
claims likely to arise on retrial are addressed by the
reviewing court.’’ State v. Perez, 147 Conn. App. 53, 58
n.4, 80 A.3d 103 (2013), cert. granted on other grounds,
311 Conn. 920, 86 A.3d 468 (2014). Typically, in consider-
ing claims of evidentiary error, this court evaluates
whether an error occurred and, if so, whether it consti-
tutes reversible error in that affected the verdict. In
light of our resolution of the claim raised in part II
of this opinion, in which we have concluded that the
defendant is entitled to a reversal of the judgment of
conviction and a new trial, it is unnecessary that, in
relation to the evidentiary errors discussed herein, we
undertake an analysis of whether such errors were
harmful to the defendant.
Before turning to each aspect of the present claim,
we first set forth some general principles that guide our
review. ‘‘To the extent [that] a trial court’s admission of
evidence is based on an interpretation of the Code of
Evidence, our standard of review is plenary. . . . We
review the trial court’s decision to admit [or exclude]
evidence, if premised on a correct view of the law,
however, for an abuse of discretion. . . . The trial
court has wide discretion to determine the relevancy
of evidence and the scope of cross-examination. . . .
Thus, [w]e will make every reasonable presumption in
favor of upholding the trial court’s ruling[s] [on these
bases] . . . . In determining whether there has been
an abuse of discretion, the ultimate issue is whether
the court . . . reasonably [could have] conclude[d] as
it did.’’ (Citations omitted; internal quotation marks
omitted.) State v. Davis, 298 Conn. 1, 10–11, 1 A.3d
76 (2010).
A
First, the defendant claims that the court improperly
permitted the state to present testimony from a witness,
Nicole Clark, who identified the defendant as one of
the persons depicted in the video images taken from
the bus. We disagree.
The following additional facts are relevant to this
claim. The defendant filed a motion in limine in which
he asked the court to preclude the state from presenting
any evidence related to the manner by which the police
initially identified him as a suspect in the crimes. Specif-
ically, the defendant sought to preclude evidence that
the police had identified him as a suspect on the basis
of ‘‘an anonymous phone call’’ to the police from a
person who had viewed images that had been taken
from the video footage that was generated by cameras
on the bus, and had identified the defendant from those
images. The defendant argued that any testimony opin-
ing that he was one of the persons on the bus was
inadmissible under § 7-3 of the Connecticut Code of
Evidence because the identity of the persons in the
surveillance images was an ultimate issue of fact for
the jury.
When the court heard argument on the motion, the
state represented that the police had not received an
anonymous telephone call identifying the defendant,
but had received a telephone call from Clark, who had
viewed the images taken from the bus and had knowl-
edge of the defendant because she had worked with
him previously. The state indicated that it intended to
present testimony from Clark that the person depicted
in the images, which the police had distributed to the
public in an attempt to generate investigative leads, was
the defendant.14 The defendant’s attorney argued that
the observations made by Clark were irrelevant to the
defendant’s guilt, but pertained only to the police inves-
tigation in this case. The defendant’s attorney also
argued that Clark’s testimony would encompass an ulti-
mate issue before the jury, namely, whether the defen-
dant was present on the bus. In response to an inquiry
by the court, the defendant’s attorney stated that the
issue of whether the defendant was present on the bus
was in dispute. The defendant’s attorney also indicated
that the defense intended to challenge the sufficiency
of the police investigation in this case. The court stated
that the issue of identification was relevant to the issues
before the jury and that, on the basis of the state’s
proffer, the evidence was admissible.
Thereafter, Clark testified that, prior to the events at
issue in this case, she became familiar with the defen-
dant while working with him at a vacuum company.
She identified the defendant, who was present in the
courtroom. Clark testified that she observed ‘‘a picture’’
of the defendant that had been distributed to the public
by the East Hartford Police Department and subse-
quently provided information to the police that she rec-
ognized the man in the picture as the defendant. Clark
was shown a photograph that previously had been intro-
duced into evidence, and she testified that the exhibit
was the same picture from which she had identified
the defendant. Absent objection, the state presented an
audio recording of the telephone call that Clark made
to the police.
The defendant’s claim is based on § 7-3 of the Con-
necticut Code of Evidence, which provides in relevant
part: ‘‘(a) Testimony in the form of an opinion is inad-
missible if it embraces an ultimate issue to be decided
by the trier of fact, except that . . . an expert witness
may give an opinion that embraces an ultimate issue
where the trier of fact needs expert assistance in decid-
ing the issue. . . .’’ ‘‘[T]he phrase ultimate issue is not
amenable to easy definition. . . . As a rule, however,
[t]estimony is objectionable if it embraces an opinion
on the ultimate issue to be decided by the trier of fact.
. . . It is improper for a witness to offer testimony that
essentially constitutes a legal opinion about the guilt
of the defendant.’’ (Citations omitted; internal quotation
marks omitted.) State v. Finan, 275 Conn. 60, 66, 881
A.2d 187 (2005). An ultimate issue is ‘‘one that cannot
reasonably be separated from the essence of the matter
to be decided [by the trier of fact].’’ (Internal quotation
marks omitted.) Id.
The state argues, and we agree, that Clark’s testimony
that she recognized the defendant as the person
depicted in the photograph that had been disseminated
by the police is not characterized accurately as opinion
testimony as to whether the photograph depicted the
defendant. Clark recognized the defendant’s face as it
appeared in the still image based upon the fact of her
past acquaintance with him; she did not merely offer
an opinion as to whether the still image depicted the
defendant. Thus, her testimony was based on the fact
that she recognized the defendant, not on an opinion
that the photograph depicted him. The significance of
this distinction has been recognized in prior decisions;
see, e.g., State v. Felder, 99 Conn. App. 18, 25 n.6, 912
A.2d 1054, cert. denied, 281 Conn. 921, 918 A.2d 273
(2007), and distinguishes the testimony in the present
case from the police testimony at issue in State v. Finan,
supra, 275 Conn. 62–71, on which the defendant relies.
Additionally, we disagree with the defendant’s char-
acterization that the testimony embraced an ultimate
issue before the jury. Clark’s testimony that she recog-
nized the defendant as depicted in the photograph at
issue was not tantamount to a legal opinion about his
criminal culpability. The state’s case rested on circum-
stantial evidence and his presence with Taylor, on the
bus, shortly after the victim’s murder certainly was inte-
gral to the state’s theory of the case and to the issue
of whether the defendant was criminally liable for the
several offenses at issue in the case. The defendant’s
presence on the bus, however, did not directly shed
light on his conduct at the victim’s residence, whether
the defendant had the criminal intent related to the
offenses with which he was charged, or whether he
had entered into a conspiracy with Taylor. Thus, we
do not conclude that his presence on the bus was the
essence of the matters to be decided by the jury. See,
e.g., State v. Grant, 286 Conn. 499, 547, 944 A.2d 947
(concluding that prosecutor’s remarks in comparing
similarities between drawings of police sketch artist
and photograph of defendant did not constitute opinion
as to ultimate issue), cert. denied, 555 U.S. 916, 129 S.
Ct. 271, 172 L. Ed. 2d 200 (2008); State v. DeJesus,
128 Conn. App. 129, 146, 17 A.3d 107 (concluding that
testimony as to whether defendant was part of group
did not constitute opinion as to ultimate issue), cert.
denied, 301 Conn. 923, 22 A.3d 1275 (2011); State v.
Luther, 114 Conn. App. 799, 806–807, 971 A.2d 781 (con-
cluding that prosecutor’s remarks about source of
police complaint did not pertain to ultimate issue before
jury), cert. denied, 293 Conn. 907, 978 A.2d 1112 (2009).
Likewise, we are not persuaded by the defendant’s reli-
ance on State v. Finan, supra, 275 Conn. 62–71, in which
our Supreme Court concluded that opinion testimony
from several police officers that they suspected that
the defendant was one of the unidentified persons
depicted in a surveillance video that showed individuals
robbing a convenience store was based on his manner-
isms, his distinctive walk, and the profile of his partially
obscured face was an improper opinion on an ultimate
issue in the case. Unlike the identification issue in the
present case, the identification at issue in Finan could
not be separated from the ultimate issue of the defen-
dant’s criminal liability related to the robbery. Id., 67.
For the foregoing reasons, we conclude that the
court’s admission of Clark’s testimony did not reflect
an abuse of its discretion.15
B
Next, the defendant claims that the court improperly
permitted Olson to testify that Taylor had or appeared
to have a bite mark on his wrist because Olson’s charac-
terization of the injury as a bite mark constituted imper-
missible lay opinion concerning Taylor’s injuries.16 In
part II of this opinion, we discussed the facts sur-
rounding Olson’s testimony that, when he interviewed
Taylor on July 16, 2009, Taylor ‘‘had a bite on his wrist
. . . .’’ In response to this answer, the defendant’s attor-
ney stated: ‘‘Objection, Your Honor.’’ Although the
defendant did not set forth on the record a basis for
the objection, the court overruled it, stating that the
testimony reflected Olson’s observations of the injury,
and that the defendant would have an opportunity to
cross-examine Olson about those observations. Imme-
diately thereafter, Olson testified: ‘‘He appeared to have
a bite mark on his wrist and some lacerations on his
other hand.’’ The state also presented into evidence
photographs of the injuries at issue.
In terms of reviewability, we observe that the defen-
dant did not clearly state the grounds of his objection
before the trial court. In responding to the objection,
the court stated that Olson was testifying from his
observations and that the defense could cross-examine
him about his observations. On this basis, we conclude
that the court understood the defendant’s objection to
be based on whether Olson’s testimony properly was
limited to his observations or whether it was impermis-
sible opinion testimony. Accordingly, we will address
the defendant’s claim related thereto.
Section 7-1 of the Connecticut Code of Evidence pro-
vides: ‘‘If a witness is not testifying as an expert, the
witness may not testify in the form of an opinion, unless
the opinion is rationally based on the perception of the
witness and is helpful to a clear understanding of the
testimony of the witness or the determination of a fact
in issue.’’ ‘‘As a general rule, a lay witness may not give
opinion testimony and may testify only as to observed
facts.’’ State v. Watson, 50 Conn. App. 591, 600, 718
A.2d 497, cert. denied, 247 Conn. 939, 723 A.2d 319
(1998), cert. denied, 526 U.S. 1058, 119 S. Ct. 1373, 143
L. Ed. 2d 532 (1999), cert. dismissed, 255 Conn. 953,
772 A.2d 153 (2001). ‘‘A lay witness may be able to
testify about a medical condition common in everyday
life, or about the witness’s own condition.’’ C. Tait &
E. Prescott, Connecticut Evidence (5th Ed. 2014) § 7.2.1
(c), p. 447.
Here, Olson was not testifying as an expert witness
with any type of training or experience related to the
recognition of bite marks. Cf. State v. Ingram, 132 Conn.
App. 385, 401–402, 31 A.3d 835 (2011) (testimony that
wounds appeared to be result of dog bite permissible
because it came from witnesses with training and expe-
rience related to matters about which they testified),
cert. denied, 303 Conn. 932, 36 A.3d 694 (2012). The
prosecutor asked Olson about ‘‘the nature of the injur-
ies’’ to Taylor that he had observed on July 16, 2009. The
prosecutor showed Olson photographs of the injuries at
issue, marked as full exhibits, which Olson testified
were fair and accurate representations of the injuries
he observed on July 16, 2009. The prosecutor’s inquiry
permitted Olson to describe his observations of Taylor’s
injuries on that date. By replying, however, that Taylor
appeared to have ‘‘a bite mark on his wrist,’’ Olson did
not merely describe what he had observed in terms of
the physical appearance of the skin on Taylor’s wrist.
Instead, by describing the injury as ‘‘a bite mark,’’ he
unquestionably expressed his opinion that Taylor had
been bitten without establishing the necessary exper-
tise or qualifications.
The state urges us to conclude that the admission of
the testimony was proper because it would have been
readily apparent to anyone that the injury was a bite
mark. Even if we agreed with the state’s characteriza-
tion of Taylor’s injury as depicted in the photographs,
which we do not, we disagree for the reasons stated
previously that it is proper for a lay witness to describe
observed injuries in such a manner that suggests the
origin of them. Although, in conjunction with other
evidence, the state rationally could have invited the jury
to infer that the injuries originated from a bite, we
conclude that it was improper for the court to have
permitted Olson to have rendered such an opinion.17
In light of the foregoing, we conclude that this
improper opinion testimony should have been stricken
from the jury’s consideration.
C
Next, the defendant claims that the court improperly
permitted the state to present testimony from Parker
concerning the conversation that she overheard on the
bus on June 30, 2009. The defendant argues that the
testimony was not relevant. We disagree.
The following additional facts are relevant to this
claim. The defendant filed a motion in limine in which
he asked the court to preclude, as inadmissible hearsay,
evidence of any statements that the defendant and Tay-
lor made on a bus on June 30, 2009. The defendant
explained in the motion that he anticipated Parker to
testify about two males on the bus and their conversa-
tion referring to one of the males having been bitten
by ‘‘a big dog.’’ The defendant’s motion stated that the
defense expected the state to present testimony from
Parker that she overheard one individual state, ‘‘I can’t
believe I got bit by a dog,’’ and another individual reply,
‘‘that was a big dog.’’
On December 6, 2012, the court heard oral argument
on the motion. The prosecutor argued that the state-
ments were not hearsay because they were not being
offered for the truth of the matter asserted therein,
specifically, that either of the two individuals involved
had been bitten by a big dog. Rather, the prosecutor
explained, the state intended to offer the statements to
demonstrate (1) that one of the individuals had been
bitten by the victim and (2) that the two individuals on
the bus were together. The prosecutor argued that the
statement attributable to the defendant was that of a
party opponent and that the statement attributable to
Taylor helped to put the defendant’s statement in con-
text and was admissible to demonstrate its effect on the
hearer, the defendant. The defendant’s attorney argued
that the state had failed to lay a proper foundation to
support any of its theories of admissibility.
The court admitted the statement, noting that the
state intended to present not only evidence of the state-
ments made on the bus, but of Taylor’s statement to the
police that the victim had bitten him during a struggle
in his residence, the video footage from the bus, and
photographic evidence of Taylor’s injuries. The court
stated that all of this evidence was relevant to demon-
strate that a conspiracy existed, that Taylor and the
defendant were acting ‘‘together . . . .’’
At trial, Parker testified in relevant part that, on the
afternoon of June 30, 2009, she was waiting for a bus
when she observed two black males, in their early twen-
ties, running to catch the bus. She stated that one of
the males was carrying a book bag. Parker sat all the
way in the back of the bus, and the two males sat
opposite her. She testified that she overheard one of
the males state: ‘‘I can’t believe you got bit by the dog—
I can’t believe I got bit by the dog—by a dog.’’ The other
individual replied: ‘‘[T]hat was a big dog, it was a big
dog.’’ During Parker’s testimony, the defendant’s attor-
ney objected to the testimony concerning any state-
ments made on the bus on the ground that the
statements were not admissible under ‘‘the Code of
Evidence,’’ they were inadmissible hearsay, and the
statements were not against penal interest. The defen-
dant’s attorney also stated that, because, prior to Par-
ker’s testimony, the court had stricken Olson’s
testimony that Taylor told the police that he was bitten
by the victim, Parker’s testimony was irrelevant. The
court overruled the objection, stating that Parker’s testi-
mony was relevant and that the statements at issue were
not hearsay because they were not being introduced for
the truth of the matters asserted therein. The court
admitted the evidence without any limitation as to its
use.18
On appeal, the defendant’s claim is limited to the
relevancy objection that he raised before the trial court;
he states that ‘‘[t]he trial court correctly concluded that
the statements were not hearsay.’’
‘‘[R]elevant evidence is evidence that has a logical
tendency to aid the trier in the determination of an
issue. . . . Evidence is relevant if it tends to make the
existence or nonexistence of any other fact more proba-
ble or less probable than it would be without such
evidence. . . . To be relevant, the evidence need not
exclude all other possibilities; it is sufficient if it tends
to support the conclusion [for which it is offered], even
to a slight degree. . . . All that is required is that the
evidence tend to support a relevant fact even to a slight
degree, so long as it is not prejudicial or merely cumula-
tive.’’ (Internal quotation marks omitted.) State v.
Andrews, 313 Conn. 266, 275–76, 96 A.3d 1199 (2014);
see also Conn. Code Evid. § 4-1.
On the basis of inferences drawn from other evi-
dence, the prosecutor suggested in argument that the
speaker on the bus who stated, ‘‘I can’t believe you got
bit . . . by a dog,’’ was the defendant. The prosecutor
suggested that the speaker on the bus who replied, ‘‘[I]t
was a big dog,’’ was Taylor.
Here, the evidence of both statements, regardless of
their truth or falsity, was evidence that the defendant
and Taylor were together on the bus. The defendant
argues that ‘‘although the teens’ statements put the two
together, the statements do so in a way that [does]
nothing to assist the jury in determining the defendant’s
guilt or innocence.’’ Yet, the testimony made the fact
that the defendant and Taylor were together on the bus
more probable than it would have been without it. The
fact that the defendant and Taylor were together on
the bus, conversing, was significant because the state
presented evidence to support a finding that their con-
versation occurred shortly after the victim was mur-
dered. This was significant because the state presented
evidence to support a finding that Taylor had been
present in the victim’s residence and that he had pos-
sessed the murder weapon on the day of the victim’s
murder, later selling it to another individual shortly
thereafter. The state attempted to demonstrate that the
defendant had conspired with Taylor and that he had
solicited, requested, commanded, importuned or inten-
tionally aided Taylor to engage in criminal conduct
involving the victim. When viewed in light of other evi-
dence, the evidence of the defendant’s conversation
with Taylor on the bus was highly material in demon-
strating the defendant’s intimate involvement with Tay-
lor in the criminal events that had taken place moments
prior to the conversation. Accordingly, we reject the
defendant’s claim that the evidence was irrelevant.
D
Next, the defendant claims that the court improperly
permitted the state to present testimony from Minott
that one of the two males who had boarded the bus
asked him for a tissue.19 We reject the defendant’s claim.
The following additional facts are relevant to this
claim. The state presented testimony from Minott, the
operator of a city bus on June 30, 2009. Minott testified
in relevant part that, on that day, two young, black
males boarded his bus near the intersection of Main
Street and Brewer Street in East Hartford. He testified
that one of the males asked him for something. When
the prosecutor asked Minott, ‘‘What did he ask you
for?’’ the defendant’s attorney stated, ‘‘Objection, Your
Honor.’’ Before the court responded to the objection,
however, Minott stated, ‘‘A tissue.’’ The defendant’s
attorney once again stated, ‘‘Objection, Your Honor.’’
The court asked the defendant’s attorney to state the
basis for his objection, to which he replied, ‘‘Hearsay.’’
The court asked the prosecutor to rephrase the ques-
tion. The foregoing exchange occurred in the jury’s
presence.
The prosecutor asked Minott, ‘‘Did one of the individ-
uals ask you for anything?’’ Minott replied, ‘‘Yes.’’ When
the prosecutor asked, ‘‘What did he ask you for?’’ the
defendant’s attorney again objected. Then, the prosecu-
tor asked, ‘‘Based upon what he asked you for, were
you able to provide anything to the individual?’’ The
defendant’s attorney objected that the inquiry was not
relevant. The court replied that the question did not
call for a hearsay response and that the inquiry was
relevant. Ultimately, the prosecutor asked, ‘‘Were you
able to provide anything to that individual?’’ Minott
replied, ‘‘No, sir.’’ During his direct examination, Minott
did not thereafter refer to a request for a tissue.
During cross-examination, the defendant’s attorney
asked Minott: ‘‘[S]o, as I understand it, one of the indi-
viduals came up to you and asked you for a tissue. Is
that right?’’ Minott stated, ‘‘Correct.’’ The defendant’s
attorney asked, ‘‘You didn’t have a tissue. Is that cor-
rect?’’ Minott agreed that he did not have a tissue. The
defendant’s attorney asked him if he ‘‘[saw] anything
that required the use of a tissue,’’ and Minott replied
in the negative.
The defendant apparently argues that the court
improperly admitted Minott’s statement concerning a
tissue, which he considers to be inadmissible hearsay.
The state, apparently sharing the view that Minott’s
statement was part of the evidence, argues that the
defendant’s claim is not reviewable because the defen-
dant ‘‘did not interpose a timely objection to forestall
Minott’s response and, following the court’s favorable
ruling on the objection, move to strike Minott’s answer.’’
Initially, we observe that the only relevant ruling
occurred when the court effectively sustained the
defendant’s initial objection by instructing the prosecu-
tor to rephrase his inquiry. This ruling was in the defen-
dant’s favor.
Thus, the record reflects that once the prosecutor
asked a question that called for Minott to reveal what
was requested by one of the individuals on the bus,
the defendant’s attorney stated that he objected to the
question. ‘‘The generally accepted rule as to when [an]
objection to a question must be interposed has been
stated to be: For evidence contained in a specific ques-
tion, the objection must ordinarily be made as soon as
the question is stated, and before the answer is given;
unless the inadmissibility was due, not to the subject
of the question, but to some feature of the answer. . . .
This rule, however, is to be reasonably applied. . . .
The object is to prevent a party from knowingly with-
holding his objection, until he discovers the effect of
the testimony, and then if it turns out to be unfavorable
to interpose his objection.’’ (Citation omitted; internal
quotation marks omitted.) State v. Reeves, supra, 118
Conn. App. 704. ‘‘It is usually the case that when a
question posed to a witness at trial is not itself improper
but the answer to that question contains inadmissible
material, an objection made upon the answer is season-
able . . . . The proper form of such an objection is a
motion to strike the answer.’’ (Citation omitted; internal
quotation marks omitted.) State v. Gonzalez, 75 Conn.
App. 364, 374, 815 A.2d 1261 (2003), rev’d on other
grounds, 272 Conn. 515, 864 A.2d 847 (2005).
Upon hearing the prosecutor’s question, the defen-
dant’s attorney objected to it. Therefore, we disagree
with the state that the objection was in any way
untimely. Moreover, we disagree with the state that it
was the burden of the defendant’s attorney to forestall
Minott from answering the question posed to him after
he announced that he objected to it.20 To protect the
defendant’s right to challenge the admissibility of the
state’s evidence and to ensure the orderly progress of
the trial, it was the function of the trial judge, not the
defendant’s attorney, to instruct the witness not to
answer the question when an objection was pending.
It has been recognized that ‘‘[t]he function of the court
in a criminal trial is to conduct a fair and impartial
proceeding. . . . A trial judge in a criminal case may
take all steps reasonably necessary for the orderly prog-
ress of the trial. . . . Control of the proceedings in
the courtroom is necessarily within the trial judge’s
discretion.’’ (Citations omitted; internal quotation
marks omitted.) State v. Jupin, 26 Conn. App. 331,
348–49, 602 A.2d 12, cert. denied, 221 Conn. 914, 603
A.2d 404 (1992). Thus, the better practice would have
been for the court to have instructed the witness to
refrain from answering. Once the court effectively sus-
tained the objection by instructing the prosecutor to
rephrase the question at issue, it also would have been
the better practice for the court to have stricken
Minott’s response that the individual on the bus had
asked for a tissue.
The defendant, having obtained a favorable ruling
with regard to his objection, did not move to strike
Minott’s response concerning a tissue. Cf. State v. Baus-
man, 162 Conn. 308, 313, 294 A.2d 312 (1972) (reviewing
court rejects claim that trial court should have stricken
testimony previously ruled inadmissible). In an instruc-
tive case that considered a witness’ partial answer to
a question, made before an objection had been made
by counsel, our Supreme Court ruled that counsel was
not required to move to strike the partial answer after
the court had sustained its objection: ‘‘There is authority
that where the court in sustaining an objection to the
question has not directed the jury not to consider the
reply given, a motion to strike it out is essential to its
proper elimination. . . . We adopt, however, a rule
. . . which is less technical, yet sufficient for the ample
protection of the parties’ rights. If the question is put
and the answer given in such rapid succession that the
party objecting has not fair opportunity to state his
objection, it is the duty of the court to entertain the
objection when thereafter promptly made. . . . We are
not here concerned with a situation presenting the ques-
tion whether the jury might have failed to understand
the effect of the ruling and so something more than the
mere sustaining of the objection would be necessary
in order to protect the rights of the parties. The only
basis upon which the plaintiff can claim error in the
ruling of the trial court in setting aside the verdict is
that the jury could, in the absence of a motion to strike
out, properly consider the testimony. That is not the
law in this jurisdiction.’’ (Citations omitted.) Hackenson
v. Waterbury, 124 Conn. 679, 684, 2 A.2d 215 (1938);
see also State v. Lewis, 303 Conn. 760, 779, 36 A.3d 670
(2012) (observing that, under Hackenson, once court
sustains objection to inquiry in presence of jury, wit-
ness’ response thereto may not be considered even in
absence of motion to strike).21
The rationale of Hackenson leads us to conclude that
Minott’s statement concerning a tissue, made during
his direct examination, was not part of the evidence
in this case. This conclusion undermines the state’s
argument that it was the defendant’s burden to preserve
the claim of error by moving to strike Minott’s response,
and it also undermines the defendant’s claim that the
court had erroneously admitted that response. The
defendant obtained a favorable ruling on his hearsay
objection and, in answering the prosecutor’s inquiries,
Minott did not refer to the content of any out-of-
court statements.
In any event, the defendant’s claim suffers from the
infirmity that, during cross-examination, the defense
elicited the very testimony that the defendant now
claims the court should have excluded. Although the
prosecutor was unable to elicit testimony concerning
a request for a tissue, the following colloquy between
the defendant’s attorney and Minott occurred during
cross-examination:
‘‘Q. Mr. Minott, so as I understand it, one of the
individuals came up to you and asked for a tissue. Is
that right?
‘‘A. Correct.
‘‘Q. You didn’t have a tissue. Is that correct?
‘‘A. No, I didn’t have—
‘‘Q. Didn’t see anything that required the use of a
tissue. Correct?
‘‘A. No, sir.’’
It is well settled that ‘‘[a] defendant cannot rely upon
the admission of evidence which he himself introduced
as a basis for a reversal of his conviction. State v. Smith,
[supra, 212 Conn. 610]; State v. Kinsey, 173 Conn. 344,
349, 377 A.2d 1095 (1977); State v. Vilhotti, 11 Conn.
App. 709, 713, 529 A.2d 235 (1987).’’ State v. Anderson,
20 Conn. App. 271, 279 n.3, 566 A.2d 436 (1989), cert.
denied, 213 Conn. 813, 569 A.2d 549 (1990).
Accordingly, the defendant cannot successfully chal-
lenge the admission of evidence when he was responsi-
ble for placing that evidence before the jury.
E
Next, the defendant claims that the court improperly
permitted the state to elicit testimony from Detective
Jason Smola concerning what was in the backpack that
the defendant carried onto the bus. We agree with the
defendant that the court improperly admitted the testi-
mony at issue.
The following additional facts are relevant to this
claim. Prior to the start of the trial, the defendant filed
a motion in limine in which he asked the court to
‘‘exclude as evidence in this case any reference by
police officers, or other lay witnesses, as to the contents
of the backpack, or the origin of the contents of the
backpack, in the possession of the individuals as seen
on a [Connecticut] Transit bus surveillance video. Any
reference as to the contents of the backpack, or where
the contents originated from, are speculative and made
without personal knowledge.’’ In support of his motion,
the defendant relied on § 7-1 of the Connecticut Code
of Evidence.
When the court heard argument on the defendant’s
motion, the defendant’s attorney stated that in the sur-
veillance images captured on the bus, an item is visible
in the defendant’s backpack. The defendant’s attorney
stated that, on the basis of Smola’s testimony at a proba-
ble cause hearing, he believed that Smola would be
unable to testify that he had personal knowledge of the
item or whether it could be associated with any item
that had been in the victim’s apartment. The defendant
argued that Smola did not have any foundation upon
which to render an opinion related to the item. Essen-
tially, the prosecutor replied that the court should per-
mit Smola, on the basis of his observations of the
surveillance video in evidence, to testify as to what
appeared to be in the backpack that was captured in
the surveillance videos.
The court concluded that the inquiry was permissible.
The court stated: ‘‘The witness is going to be able to
testify as to what it looks like. This is not expert opinion.
I can say that it looks like the marshal who’s directly
in front of me is wearing black socks. They might be
navy blue or they might be brown for all I know at this
point, but it looks like black socks. That’s what it looks
like.’’ The defendant took exception to the court’s rul-
ing, noting that there was ‘‘the thinnest fibers of circum-
stantial evidence’’ to surmise that there was a shoe box
in the defendant’s backpack.
Later, during the trial, the court heard additional argu-
ment from the defendant, during which his attorney
emphasized that determining what was in the backpack,
as it is depicted in the bus video images that the state
represented would be presented in evidence, was a
question for the jury to decide, and that to permit Smola
to interpret the images for the jury would invade the
fact-finding province of the jury. The defendant’s attor-
ney stated that Smola was not in any better position
than was the jury from which to make a determination
as to what was inside the backpack. The court disagreed
with the defendant’s arguments, stating: ‘‘I will allow
[Smola] to testify that it was a box, it was a gray box,
it looked like—people are allowed to testify as to what
things looks like, aren’t they? It looked like someone
ran a light, is that an opinion or is that a fact?’’22
Smola testified concerning how he came to possess
the bus surveillance video and, at the prosecutor’s direc-
tion, Smola discussed the events depicted in the video
that was submitted as an exhibit for the jury. As relevant
to the claim, when the portion of the video that depicted
the backpack was shown to the jury, the prosecutor
asked Smola: ‘‘There appears to be a backpack up by
the garbage can. Were you able to determine through
your investigation what you believe is contained within
that backpack?’’ After the court overruled a defense
objection to the inquiry, Smola testified: ‘‘It’s my belief
through investigation it was a sneaker box.’’
During his cross-examination, Smola testified that he
did not know whether the item in the backpack was a
shoe box and that the police did not recover the back-
pack during their investigation. The defendant’s attor-
ney asked Smola to compare a shoe box that had been
recovered from the victim’s residence with the object
that was visible inside the backpack. Smola’s responses
to this line of inquiry revealed that the shoe box in
evidence appeared to be different in some respects than
the item depicted in the video. At one point during
his cross-examination, the defendant’s attorney asked
Smola whether it was true that he could not testify
that the item in the backpack came from the victim’s
residence. Smola testified that he could because
‘‘Donele Taylor said that.’’ Referring to the evidence
that the victim sold sneakers and kept an inventory
of sneakers at his residence, the defendant’s attorney
asked Smola if he was aware of any physical evidence
that linked the defendant to any shoe box that had
been seized by the police. Smola testified that he was
unaware of any such evidence.
On appeal, the defendant raises the argument that
he raised at trial, which is that it was improper for
Smola to opine that the item in the backpack was a
shoe box. The defendant argues that the evidence
reflects that Smola did not have any firsthand knowl-
edge of the contents of the backpack and that his opin-
ion about what was depicted in the backpack shown
in the bus video invaded the fact-finding province of
the jury. Also, the defendant argues that Smola’s opinion
in this regard was based on his knowledge of Taylor’s
statements to the police which, as we have discussed
previously in this opinion, the court had deemed inad-
missible under Crawford. Thus, the defendant raises
the purely evidentiary argument that he raised at trial
and, in the alternative, a newly raised claim that, inas-
much as Smola testified that he relied on Taylor’s out-
of-court statements to the police, his testimony was
inadmissible under Crawford. With regard to the newly
raised claim that Smola’s testimony violated his right
to confrontation, the defendant affirmatively requests
review under State v. Golding, supra, 213 Conn. 239–40.
‘‘[W]e must be mindful that [t]his court has a basic
judicial duty to avoid deciding a constitutional issue if
a nonconstitutional ground exists that will dispose of
the case.’’ (Internal quotation marks omitted.) State v.
Cortes, 276 Conn. 241, 253, 885 A.2d 153 (2005). Because
we agree with the defendant’s claim that the admission
of Smola’s testimony with regard to the contents of the
backpack was improper on purely evidentiary grounds,
we need not consider his constitutional claim.
As we already have set forth in part III B of this
opinion, § 7-1 of the Connecticut Code of Evidence pro-
vides: ‘‘If a witness is not testifying as an expert, the
witness may not testify in the form of an opinion, unless
the opinion is rationally based on the perception of the
witness and is helpful to a clear understanding of the
testimony of the witness or the determination of a fact
in issue.’’ The state did not present Smola as an expert
witness with training or experience related to the inter-
pretation of video evidence. It is apparent from a review
of his testimony that he did not have any firsthand
knowledge of the item in the backpack; he plainly testi-
fied that the police never recovered the backpack or
its contents. We are unaware of any authority under
which a lay witness who lacks firsthand knowledge of
matters in evidence may render his or her opinion as
to such matters by presenting his interpretation of the
evidence to the jury. The state argues that the testimony
was proper because the evidence reflects that Smola
had viewed the bus video and merely rendered a lay
opinion that the item depicted therein was similar to a
shoe box. Under the state’s rationale, it would be proper
for any witness who was capable of watching the video
evidence to render his or her opinion with regard to
what the video depicted.23 We are unaware of any sup-
port in the law for such a broad proposition.
Accordingly, even were we to set aside Smola’s appar-
ent reliance on matters that the court deemed to be
inadmissible, specifically, Taylor’s statements to the
police,24 we conclude that it was improper for the court
to have permitted Smola to offer a lay opinion with
regard to the contents of the backpack depicted in the
bus video.
F
Next, in a claim closely related to the claim we
addressed in part III E of this opinion, the defendant
claims that the court improperly permitted Smola to
testify during his cross-examination that he had learned
from Taylor that the item in the backpack came from
the victim’s residence. The defendant asserts that this
portion of Smola’s testimony was based on evidence
that the court had determined to be inadmissible under
Crawford, specifically, Taylor’s statements to the
police. The defendant argues that the court abused its
discretion by concluding that the testimony at issue
was admissible on the ground that, during his cross-
examination of Smola, the defendant’s attorney had
opened the door to the subject and, thus, had invited
Smola’s response.
We decline to reach the merits of the present claim
because we are not persuaded that the issue it presents
is likely to arise during proceedings on remand. We
already have concluded in part III E of this opinion that
it was improper for the court to have permitted Smola
to offer a lay opinion with regard to the contents of
the backpack depicted in the bus video. Thus, it is not
likely that the inquiry that gave rise to the present claim,
related to Smola’s opinion of the contents of the back-
pack, will occur in the future. Also, the present claim
arises from a colloquy between the defendant’s attorney
and Smola that we consider to be highly unlikely to be
repeated at a future trial. Specifically, during cross-
examination, following an objection to Smola’s testi-
mony by the defendant’s attorney, and at a time when
no question was pending, Smola referred to what he had
learned from Taylor about the contents of the backpack.
IV
Next, the defendant claims that the court improperly
denied his motion for a mistrial on the ground that,
during Olson’s testimony, Olson testified that he had
learned from talking with Taylor that his injury was ‘‘a
bite.’’ The court struck the portion of the testimony that
was the subject of the motion and delivered a curative
instruction to the jury. We have discussed some of the
facts related to this claim in part II of this opinion. In
light of our resolution of that claim and the fact that
the defendant is entitled to a new trial, however, it is
unnecessary for us to reach the merits of the present
claim.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
1
The court imposed a total effective sentence of 105 years incarceration,
with a mandatory minimum sentence of twenty-five years incarceration. We
note that the defendant also was found guilty of conspiracy to commit
burglary in the first degree in violation of §§ 53a-48 (a) and 53a-101 (a) (2),
and conspiracy to commit robbery in the first degree in violation of §§ 53a-
48 (a) and 53a-134 (a) (2). Although the court sentenced the defendant on
the conviction of those charges, it subsequently vacated the conviction of
those charges and the sentences related to them.
2
In his principal brief, the defendant raised a double jeopardy claim related
to his conviction of three conspiracy offenses. We do not address this claim
because, in his reply brief, the defendant expressly withdrew it.
3
We address the defendant’s sufficiency of the evidence claim before we
address any other claims because if a defendant prevails on such a claim,
the proper remedy is to direct a judgment of acquittal. See State v. Moore,
100 Conn. App. 122, 126 n.2, 917 A.2d 564 (2007). We note that the defendant
filed a postverdict motion for a judgment of acquittal that encompassed the
present claim. The court denied the motion.
4
General Statutes § 53a-8 provides in relevant part: ‘‘(a) A person, acting
with the mental state required for commission of an offense, who solicits,
requests, commands, importunes or intentionally aids another person to
engage in conduct which constitutes an offense shall be criminally liable
for such conduct and may be prosecuted and punished as if he were the
principal offender. . . .’’
5
Although the defendant does not argue that the evidence was insufficient
to support a finding that he committed robbery in the first degree as an
accessory to Taylor, our review of the evidence leads us to conclude that
it reasonably supported such a finding. The state presented evidence that
Taylor was in the victim’s apartment and, in the course of a larceny, shot
the victim. This evidence, including the evidence of the defendant’s activities
and conversation with Taylor immediately following the incident, permitted
the jury to find that the defendant, acting with the mental state required to
commit burglary in the first degree, had solicited, requested, commanded,
importuned or intentionally aided Taylor, who engaged in conduct constitut-
ing robbery in the first degree.
6
We will address the defendant’s claim related to the admission of this
evidence in part III C of this opinion.
7
In conjunction with other evidence, the evidence that, immediately fol-
lowing the victim’s murder, the defendant spoke with Taylor on the bus
about his being bitten by ‘‘a big dog’’ gives rise to a reasonable inference
that the defendant was aware of the victim’s large physical stature, that he
was aware of the violent physical struggle that involved Taylor and the
victim in the victim’s residence that resulted in Taylor having sustained a
bite injury, that the defendant concealed the true subject of his statements
to Taylor while he was on the public bus, and that, as the state aptly observes
in its brief before this court, the defendant ‘‘struck a crassly jovial tone’’
concerning this deadly event.
8
Under North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970), a criminal defendant who enters a guilty plea does not admit
guilt but acknowledges that the state has sufficient evidence to convict him.
State v. Fairchild, 155 Conn. App. 196, 199 n.2, 108 A.3d 1162, cert. denied,
316 Conn. 902, 111 A.3d 470 (2015).
9
‘‘Under Crawford v. Washington, supra, 541 U.S. 68, the hearsay state-
ments of an unavailable witness that are testimonial in nature may be
admitted under the sixth amendment’s confrontation clause only if the
defendant has had a prior opportunity to cross-examine the declarant. Hear-
say statements that are nontestimonial in nature are not governed by the
confrontation clause, and their admissibility is governed solely by the rules
of evidence.’’ (Internal quotation marks omitted.) State v. Anwar S., 141
Conn. App. 355, 360–61, 61 A.3d 1129, cert. denied, 308 Conn. 936, 66 A.3d
499 (2013). The circumstances surrounding Taylor’s out-of-court statements,
made to the police, do not appear to be in dispute.
10
We will address the defendant’s claim related to the admission of this
evidence in part III B of this opinion.
11
We will address the defendant’s claim related to the court’s denial of
his motion for a mistrial in part IV of this opinion.
12
We will address the defendant’s claim related to the admission of this
evidence in part III D of this opinion.
13
To the extent that the defendant asserts that the court precluded him
from presenting ‘‘[e]vidence of the source, nature, and timing of Taylor’s
injuries,’’ we recognize that the defendant did not make an offer of proof
concerning what evidence he would have presented to the jury to counter
the state’s evidence concerning Taylor’s injuries. The state does not argue
that the lack of an offer of proof should thwart review of the present claim.
If the court’s ruling was evidentiary, rather than constitutional, in nature,
such a failure likely would be fatal to review of the defendant’s claim. This
court has observed: ‘‘Although an offer of proof may not always be necessary,
a reviewing court may be unable to determine the propriety or effect of the
exclusion [of evidence] unless the substance of the proffered evidence is
disclosed in the record. In that event, counsel should make an offer of proof,
in the absence of the jury, stating the purpose of the offer and disclosing
the content and purport of the expected testimony. . . . In the absence of
an appropriate offer of proof, this court cannot speculate as to what line
of questioning defense counsel intended to follow. A claim on appeal cannot
be based on an assumption that the trial court acted improperly. . . . With-
out an adequate record on which to review the rulings of the trial court, this
court must assume that the trial court acted properly.’’ (Citations omitted;
internal quotation marks omitted.) State v. Cavell, 34 Conn. App. 276, 289
n.7, 641 A.2d 426 (1994), aff’d, 235 Conn. 711, 670 A.2d 261 (1996); see also
State v. Rodriguez, 146 Conn. App. 99, 104–108, 110, 75 A.3d 798 (failure
to make offer of proof results in inadequate record for review of claim that
trial court improperly denied motion to present newly discovered evidence),
cert. denied, 310 Conn. 948, 80 A.3d 906 (2013); In re Alison M., 127 Conn.
App. 197, 222–24, 15 A.3d 194 (2011) (failure to make offer of proof results
in inadequate record for review of claim that court improperly precluded
respondent from presenting expert opinion testimony).
The present claim, despite involving, in part, a restriction on the defen-
dant’s ability to present evidence, cannot be characterized as being eviden-
tiary in nature. The court, in conditioning its Crawford ruling in the manner
that it did, made an integral component of the state’s case off limits to the
defense. Moreover, the court did not merely prohibit the introduction of
evidence, but precluded the defendant from challenging, in any manner,
the state’s evidence concerning Taylor’s injuries. The ruling broadly
restricted the defendant’s right to cross-examine Olson (and other witnesses)
and to challenge during argument before the jury the state’s evidence related
to Taylor’s injuries.
The admissibility of evidence of Taylor’s out-of-court statements was hotly
contested at trial. The defendant’s attorney objected to Olson’s testimony
concerning ‘‘a bite mark’’ on Taylor, yet in his cross-examination of Taylor,
which followed the court’s ruling, he did not challenge the basis of his
opinion in this regard. Although, during argument, the prosecutor relied on
its evidence that Taylor had been bitten, the defendant’s attorney referred
in a brief, general manner—perhaps coming close to violating the court’s
ruling—that there was ‘‘no forensic evidence to explain the marks on [Tay-
lor’s] hands . . . .’’ In the context of this claim, the state does not argue
that the court’s ruling was harmless beyond a reasonable doubt and, from
our review of the nature of the defendant’s arguments advanced at trial, we
conclude that the court’s ruling harmed the defense in its ability to counter
the state’s proof and its theory of the case. Accordingly, we conclude, under
these circumstances, that the defendant’s failure to make an offer of proof
is not fatal to his claim.
14
Earlier in the trial, the state presented evidence that the operator of
the bus, Connecticut Transit, had given police still images of the unknown
suspect depicted in the surveillance videos from the bus. Later, the state
presented evidence that the police disseminated one of these images to
the public.
15
Although our resolution of the present claim, as well as the claim
addressed in part II of this opinion, renders it unnecessary for us to consider
whether the court’s ruling was harmful to the defendant, we readily observe
that the jury was able to view the surveillance video from the bus, still
photographs taken from that video, a photograph of the defendant, and the
defendant himself, who appeared before the jury throughout the trial. Thus,
apart from Clark’s testimony, the jury had ample evidence before it from
which to determine whether the defendant was one of the persons depicted
on the video generated by the surveillance cameras on the bus.
16
Also, for the reasons we have discussed in part II of this opinion, the
defendant argues that the admission of Olson’s testimony violated his right
to confrontation under Crawford v. Washington, supra, 541 U.S. 68. See
footnote 9 of this opinion. In this regard, the defendant argues that Olson’s
characterization of the injuries was not based on his personal knowledge
or personal observations, but on his knowledge of Taylor’s statements to
the police concerning the crimes. In the context of this claim, the defendant
refers to a portion of Olson’s testimony that the court excluded from the
evidence, specifically, Olson’s testimony that Taylor told him that he had
been bitten by the victim. The defendant is unable to demonstrate that a
Crawford violation occurred with regard to testimony that the court
excluded from the evidence, and, in part IV of this opinion, we will address
the defendant’s claim that the court improperly denied his motion for a
mistrial, which was based on Olson’s stricken testimony. In the present
claim, however, we consider whether it was proper for Olson, without
referring to Taylor’s statement which the trial court excluded under Craw-
ford, to opine that he had observed bite marks on Taylor.
17
Although it is not dispositive to our analysis, we also recognize that
Olson subsequently testified that, after talking to Taylor, he learned that
the injury to his wrist was ‘‘[a] bite’’ inflicted by the victim. This testimony
was stricken from the jury’s consideration, but it nonetheless helps to inform
our understanding of Olson’s testimony.
18
Perhaps in consideration of the defendant’s objection, the court
instructed the jury during Parker’s testimony as follows: ‘‘[L]adies and gentle-
men of the jury, this statement isn’t being—what she heard, the statement
that was made, isn’t being allowed for the truth, it’s being allowed for—it’s
not a statement against penal interest. . . . It’s just not hearsay. It’s not
being introduced for the truth; it’s being introduced just as a comment; that
statements were made on the bus.’’
19
The defendant does not claim that the court failed sua sponte to strike
from the evidence any portion of Minott’s testimony.
20
To the extent that the defendant claims on hearsay grounds that the
court improperly permitted the state to ask Minott, ‘‘[W]ere you able to
provide anything to that individual?’’ to which Minott, replied, ‘‘No, sir,’’ we
readily reject the defendant’s claim. The inquiry did not elicit evidence of
an out-of-court statement.
21
The state’s reliance on State v. Rivera, 56 Conn. App. 182, 186–87, 742
A.2d 387 (1999), cert. denied, 252 Conn. 927, 746 A.2d 791 (2000), and State
v. DeMasi, 34 Conn. App. 46, 57, 640 A.2d 138, cert. denied, 230 Conn. 906,
644 A.2d 920 (1994), is misplaced. In both of those cases, this court deemed
claims of error related to objections to be unpreserved after determining
that, in each case, the trial court had failed to rule on the objections at
issue therein.
22
Before the state called Smola to testify, the court instructed the jury
as follows: ‘‘Ladies and gentlemen of the jury, during this testimony there’s
going to be the introduction of a video. . . . What is in the video is for you
to determine. You obviously are the ultimate arbiters of what the facts are
in this case, and the testimony is offered as assistance, but it’s for you to
determine. You can reject all, part, or none of the testimony if you wish,
but you determine what it is that you see in that.’’
23
The state argues that Smola’s testimony concerning what was depicted
in the video was admissible under State v. Watson, supra, 50 Conn. App.
600–601, and State v. Gagnon, 18 Conn. App. 694, 713–14, 561 A.2d 129,
cert. denied, 213 Conn. 805, 567 A.2d 835 (1989). Both cases are distinguish-
able from the present case and, thus, do not support the state’s argument.
Smola was not an eyewitness to any criminal activity. At issue in Watson
was the admissibility of eyewitness identifications of the defendant’s auto-
mobile. State v. Watson, supra, 50 Conn. App. 600 (‘‘[i]t is clear that the
testimony regarding the identifications of the Yugo by . . . Pease, Spauld-
ing, Stocking and Verderame was based on their own personal obser-
vations’’).
At issue in Gagnon was whether a police officer could opine with regard
to the issue of whether a composite sketch resembled the defendant. State
v. Gagnon, supra, 18 Conn. App. 713–14. That issue is distinguishable from
the issue before us because it pertains to an issue for which the law permits
a lay witness to render an opinion, specifically, the identity of persons.
Moreover, in determining that the court properly had admitted such testi-
mony in Gagnon, this court emphasized the witness’ familiarity with the
defendant: ‘‘Lay opinion may properly be admitted on the issue of the identity
or similarity of persons. . . . Such testimony must, however, be based
entirely on the witness’ own perception or within his actual knowledge.
. . . Because of the wide range of matters on which lay witnesses are
permitted to give their opinion, the admissibility of such evidence rests in
the sound discretion of the trial court, and the exercise of that discretion,
unless abused will not constitute reversible error. . . . The record is clear
that [the witness] knew the defendant and had professional encounters with
him in the past so as to satisfy the above standard.’’ (Citations omitted;
internal quotation marks omitted.) Id., 714.
24
We will address the defendant’s claim that the court improperly permit-
ted Smola to testify with regard to what he learned from Taylor in this
regard in part III F of this opinion.