State v. Young

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STATE OF CONNECTICUT v. JAYSAN YOUNG
(AC 36181)
Gruendel, Alvord and Norcott, Js.
Argued January 20—officially released June 2, 2015
(Appeal from Superior Court, judicial district of
Hartford, Suarez, J.)
Damian K. Gunningsmith, assigned counsel, with
whom, on the brief, was John L. Cordani, Jr., assigned
counsel, for the appellant (defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and David L. Zagaja and Chris A. Pelosi, senior
assistant state’s attorneys, for the appellee (state).
Opinion
NORCOTT, J. The defendant, Jaysan Young, appeals
from the judgment of conviction, rendered after a jury
trial, of attempt to commit assault in the first degree
in violation of General Statutes §§ 53a-59 (a) (5) and
53a-49 (a) (2), conspiracy to commit assault in the first
degree in violation of General Statutes §§ 53a-59 (a) (5)
and 53a-48, risk of injury to a child in violation of Gen-
eral Statutes § 53-21 (a) (1), carrying a pistol without
a permit in violation of General Statutes § 29-35 (a),
and criminal possession of a firearm in violation of
General Statutes § 53a-217c. On appeal, the defendant
claims that (1) the state produced insufficient evidence
for the jury to find him guilty of all charges and (2) the
trial court improperly permitted an expert witness to
testify that his findings had been confirmed by his super-
visor. We affirm the judgment of conviction.
The jury reasonably could have found the following
facts. At approximately 3 p.m. on November 21, 2011,
Ana Soto and her nephew, Tyvan Gooden, were outside
of Soto’s home on Enfield Street in Hartford when Soto
observed two men in a driveway down the street, both
holding guns. Soto saw one of the two men shooting
bullets across the street. Gooden saw both men firing
their weapons. Soto hid behind a car as the bullets flew
across the street, while Gooden ran up the street away
from the two men. From behind the car, Soto observed
the men, whom she described as two black men, run
toward the back of an apartment building on Enfield
Street.
Shortly thereafter, Officer Benjamin Espinosa of the
Hartford Police Department, who was on duty as a
school resource officer at the Thirman Milner School,
received a radio call from a school security guard that
shots had been fired in the area of Enfield Street, a
block away from the school. After receiving the radio
call, Espinosa exited the school building and stood by
the front entrance on Magnolia Street, which runs paral-
lel to Enfield Street. Espinosa was notified via radio by
the Hartford Police Department’s dispatch operator that
there were two possible suspects in the Enfield
Street shooting.
After receiving the radio call that shots had been
fired, it took ‘‘[l]ess than a minute’’ for Espinosa to exit
the school building and reach the front entrance on
Magnolia Street. He stood by the front entrance of the
school for ‘‘about a minute’’ more before he observed
an individual by the corner of a building across the
street. The individual then began to walk in the direction
of the school, with another individual following right
behind him. Espinosa radioed the police dispatch opera-
tor to report that he had seen two individuals who
might be the suspects. These two individuals were later
identified as the defendant and Rashaad Bunkley.
Espinosa observed the defendant and Bunkley walk
through the school’s courtyard toward a part of the
school that was under construction, where a security
officer confronted them and denied them access to the
construction zone. The defendant and Bunkley then
walked in the opposite direction and entered the
school’s cafeteria, where approximately sixty to eighty
children were participating in the school’s after-
school program.
Espinosa confronted the defendant and Bunkley
while they were standing in the cafeteria. One of them
told Espinosa that they were at the school to pick up
a sibling. Espinosa then instructed the defendant and
Bunkley to sit down. Another Hartford police officer
entered the cafeteria, and the defendant and Bunkley
were handcuffed and detained. They were patted down
and no weapons were discovered. While they were
detained, Espinosa observed blood on the defendant’s
right hand and pants. The defendant and Bunkley were
then removed from the cafeteria and taken to an area
in front of the school building.
Police detectives brought Soto over to the school to
see if she could identify the defendant and Bunkley as
the perpetrators of the shooting. She was not able to
identify them as the two men she had seen on Enfield
Street. Gooden testified at trial that the defendant was
not one of the perpetrators of the shooting.
During their investigation into the shooting, the
police found nine spent shell casings in front of a house
on Enfield Street. Detective Gregory Gorr of the Hart-
ford Police Department’s crime scene division identi-
fied the casings as .40 caliber casings from a
semiautomatic weapon. The police also discovered two
weapons and a black mask underneath the porch of a
building on Magnolia Street. The building was near a
path that connected Enfield Street to Magnolia Street.
Gorr identified one of the weapons as a semiautomatic
pistol and the other as a .38 caliber revolver, which
contained five spent shell casings. Blood was found on
the grip and back strap of the semiautomatic pistol.
Gorr observed small cuts on both of the defendant’s
hands and used cotton tip swabs to take a sample of
the defendant’s blood from the cuts. He also collected
the defendant’s bloodstained pants. Additionally, Gorr
conducted gunshot residue tests, known as GSR kits,
on both the defendant and Bunkley.
The state forensics laboratory tested and analyzed
the physical evidence collected by the police. Douglas
Fox, a firearms and tool mark examiner, examined and
tested the semiautomatic pistol and determined that it
was operable. He also determined that the nine spent
shell casings found on Enfield Street were all fired from
the pistol. Karen Lamy, another employee at the state
forensics laboratory, swabbed the pistol for potential
DNA samples. She took five swabs—one from a blood-
stain on the bottom of the grip area of the pistol, a
second from a bloodstain higher up on the grip area,
a third from the trigger area, a fourth from the slide
area, and a fifth from the exterior of the magazine.
Daniel Renstrom, a forensics science examiner at the
state forensics laboratory, analyzed the swabs from the
pistol and compared them to the defendant’s DNA. He
determined that the defendant was a contributor to the
DNA mixture from the bloodstain on the bottom of the
grip area of the pistol and that the defendant could not
be eliminated as a contributor to the DNA from the
bloodstain higher up on the grip area. He also found
that the defendant could not be eliminated as a contribu-
tor to the DNA mixture from the slide area of the pistol
or from the exterior of the magazine. The defendant
was eliminated as a contributor to the DNA from the
trigger area, signifying that the defendant’s DNA was
either not present on the trigger or not present to a
detectable level. Additionally, Fung Kwok, a forensics
science examiner at the state forensics laboratory, ana-
lyzed the GSR kit that had been conducted on the defen-
dant. The results of Kwok’s analysis were
inconclusive—he was unable to draw any scientific con-
clusion as to whether the defendant had fired a gun on
the day of the Enfield Street shooting.
The defendant was charged with five offenses:
attempt to commit assault in the first degree, conspiracy
to commit assault in the first degree, risk of injury to
a child, carrying a pistol without a permit, and criminal
possession of a firearm. The defendant was tried before
a jury and found guilty on all five charges. The court,
Suarez, J., imposed a total effective sentence of forty-
one years imprisonment. This appeal followed.
I
The defendant first claims that the state produced
insufficient evidence for the jury to find him guilty of
all charges. He raises three separate sufficiency argu-
ments. First, the defendant argues that there was insuffi-
cient evidence to support his conviction of conspiracy
to commit assault in the first degree because the state
failed to present any evidence that the defendant and
Bunkley had a prearranged plan to commit the assault.
Second, he argues that there was insufficient evidence
to support his conviction of risk of injury to a child
because his conduct on the day of the Enfield Street
shooting never created a situation that made physical
injury to a child likely or probable. Finally, the defen-
dant argues that there was insufficient evidence on the
element of identity to sustain his conviction on all
charges because the state failed to prove that the defen-
dant’s DNA could only have been placed on the pistol
at the time the crimes were perpetrated. We are not
persuaded by the defendant’s arguments.
We now turn to the applicable standard of review.
‘‘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.
Calabrese, 279 Conn. 393, 402–403, 902 A.2d 1044 (2006).
A
The defendant first argues that there was insufficient
evidence to support his conviction of conspiracy to
commit assault in the first degree because the state
failed to present any evidence that the defendant and
Bunkley had a prearranged plan to commit the assault.
The defendant contends that ‘‘the only evidence that
the state could point to as supporting an inference of
agreement is that the defendant and the other shooter
fired their guns simultaneously . . . in the direction
of [Gooden and Soto],’’ and that ‘‘[t]his spontaneous
shooting alone is insufficient to support an inference
of intent to enter an agreement beyond a reasonable
doubt.’’ The defendant also argues that the fact that he
‘‘was found with Bunkley in the school after the shoot-
ing cannot fill the evidentiary void in the state’s case’’
because ‘‘[t]he state offered no proof tying Bunkley to
the shooting’’ and, ‘‘even if the jury could infer that
Bunkley was the second shooter, walking away from the
scene of a crime together does not show a preexisting
conspiracy to commit a crime . . . .’’ (Emphasis in
original.) In response, the state argues that ‘‘the evi-
dence of the defendant’s and Bunkley’s concerted
actions before, during, and after the shootings estab-
lished the existence of an agreement.’’ We agree with
the state.
‘‘To establish the crime of conspiracy under § 53a-
48 of the General Statutes, it must be shown that an
agreement was made between two or more persons to
engage in conduct constituting a crime and that the
agreement was followed by an overt act in furtherance
of the conspiracy by any one of the conspirators.’’
(Internal quotation marks omitted.) State v. Pinnock,
220 Conn. 765, 771, 601 A.2d 521 (1992). ‘‘The existence
of a formal agreement between the parties need not be
proved; it is sufficient to show that they are knowingly
engaged in a mutual plan to do a forbidden act. . . .
Because of the secret nature of conspiracies, a convic-
tion usually is based on circumstantial evidence. . . .
Consequently, it is not necessary to establish that the
defendant and his coconspirators signed papers, shook
hands, or uttered the words we have an agreement.
. . . [T]he requisite agreement or confederation may
be inferred from proof of the separate acts of the indi-
viduals accused as coconspirators and from the circum-
stances surrounding the commission of these acts.’’
(Citations omitted; internal quotation marks omitted.)
State v. Patterson, 276 Conn. 452, 462, 886 A.2d 777(2005).
Viewing the evidence in the light most favorable to
sustaining the verdict, we conclude that there was suffi-
cient evidence to establish that the defendant conspired
with Bunkley to commit the Enfield Street shooting.
The defendant and Bunkley arrived at the scene of the
shooting together and fired their weapons simultane-
ously in the same direction. They continued to act in
concert after the shooting, fleeing the scene, disposing
of their weapons beneath the porch of a nearby building,
and attempting to hide in the school. From these facts,
the jury reasonably could conclude beyond a reasonable
doubt that the defendant and Bunkley entered into an
agreement to commit assault in the first degree. See
State v. Taft, 306 Conn. 749, 760, 51 A.3d 988 (2012)
(concluding there was sufficient evidence of conspiracy
when defendant and coconspirators were ‘‘armed
aggressors, who acted in concert to pursue the victim’’);
State v. Lewis, 220 Conn. 602, 607–608, 600 A.2d 1330(1991) (determining there was sufficient evidence of
conspiracy when defendant and coconspirator
approached victim, shot victim, and fled from scene
together); State v. Rosado, 134 Conn. App. 505, 511–12,
39 A.3d 1156 (holding there was sufficient evidence of
conspiracy when defendant was present at scene of
shooting, fled from scene, and accompanied shooters
while they hid their weapons), cert. denied, 305 Conn.
905, 44 A.3d 181 (2012).
B
We next turn to the defendant’s argument that there
was insufficient evidence to support his conviction of
risk of injury to a child because his conduct on the day
of the Enfield Street shooting never created a situation
that made physical injury to a child likely or probable.
The state contends that the defendant’s conviction of
risk of injury to a child may be sustained by the evidence
that the defendant and Bunkley attempted to hide from
the police in a school cafeteria holding sixty to eighty
children.1 The defendant argues in response that the
state failed to present sufficient evidence to support
his conviction of risk of injury to a child because there
was no violent altercation involving law enforcement
in close proximity to any of the children present in the
school. We agree with the state.
Section 53-21 (a) (1) provides that a person is guilty
of risk of injury to a child if such person ‘‘wilfully or
unlawfully causes or permits any child under the age
of sixteen years to be placed in such a situation that
the life or limb of such child is endangered, the health
of such child is likely to be injured or the morals of
such child are likely to be impaired, or does any act
likely to impair the health or morals of any such child
. . . .’’ ‘‘[T]he charge of risk of injury to a child does
not require proof of an actual injury, but only that the
actions of the defendant exposed the victim to a situa-
tion that potentially could impair his health.’’ State v.
Peters, 40 Conn. App. 805, 828–29, 673 A.2d 1158, cert.
denied, 237 Conn. 925, 677 A.2d 949 (1996). ‘‘Lack of
an actual injury to either the physical health or morals
of the victim is irrelevant . . . actual injury is not an
element of the offense. . . . [T]he creation of a prohib-
ited situation is sufficient.’’ (Citations omitted; internal
quotation marks omitted.) State v. Sullivan, 11 Conn.
App. 80, 98, 525 A.2d 1353 (1987).
The defendant argues that the evidence was insuffi-
cient to prove beyond a reasonable doubt that his
actions in hiding in the school cafeteria created a situa-
tion that made injury to a child likely or probable. He
emphasizes that he did not engage in a violent alterca-
tion with the police in the presence of the children in
the cafeteria. Instead, he ‘‘was simply standing near a
table in the cafeteria, unarmed, and chose to enter
police custody peacefully.’’
The state, on the other hand, argues that ‘‘the defen-
dant’s act of entering the cafeteria with Bunkley while
fleeing from the scene of a shooting and attempting to
hide there created a situation likely to endanger the life
or limb of the children present. It is axiomatic that
evading or fleeing from police can provoke a response
by law enforcement that creates a risk of injury to
innocent bystanders. . . . By wilfully fleeing into the
grade school, the defendant created a situation in which
the children there were at risk of being injured in the
course of a vigorous police response. . . . That the
defendant ultimately submitted to detention and arrest
without a struggle or violence does not diminish the
risk that he created when he first entered the school
cafeteria while in immediate flight from the scene of a
violent crime.’’ (Citations omitted; footnote omitted.)
The defendant responds that the state’s theory is
‘‘somewhat attenuated because it suggests that the risk
that [he] must have disregarded arose from the conduct
of third persons, i.e., the police, not from the defen-
dant’s actions in the presence of the children. . . .
Because this theory relies on the police response to
[the defendant’s] actions, a proper analysis should rely
on facts that were reasonably available to officers at
the time. Thus, [this court] should reject any attempt
by the state to argue that the ex post finding of guilt
related to the shooting, based on additional facts not
reasonably available at the time, bolsters the likelihood
of risk.’’ We are not persuaded by the defendant’s
arguments.
Our Supreme Court’s decision in Crawford v. Com-
missioner of Correction, 285 Conn. 585, 599–601, 940
A.2d 789 (2008), indicates that a criminal defendant
may be found guilty of risk of injury to a child if he
initiates a police pursuit and that pursuit creates a risk
of injury to a child. The specific actions of law enforce-
ment personnel during the pursuit—whether they acted
negligently or responsibly—are irrelevant in determin-
ing the defendant’s guilt. In Crawford, our Supreme
Court rejected the petitioner’s argument that the habeas
court had improperly precluded testimony that police
officers had acted negligently when they pursued the
petitioner in a high speed vehicular chase after he
attempted to evade arrest. Id. The chase ended when
the petitioner’s vehicle collided with another vehicle
on the road. Id., 587. Following the vehicular pursuit,
the petitioner was charged with and convicted of, inter
alia, risk of injury to a child, as there had been two
small children in the vehicle in which he had attempted
to flee from the police. Id. On appeal, the petitioner
argued that the habeas court improperly precluded the
testimony concerning the police officers’ negligence
because ‘‘it would have supported the petitioner’s argu-
ment that the accident might have been less harmful,
or avoided altogether, if the police had followed proce-
dures and activated the cruiser’s siren and flashing
lights during the pursuit, thereby warning the other
vehicle’s driver of the approaching chase and giving
him time to pull over.’’ Id., 600–601.
Our Supreme Court rejected the petitioner’s argu-
ment, noting that the precluded testimony ‘‘had no rele-
vance to the petitioner’s culpability in the criminal
proceeding. Whether the police may have been negli-
gent in conducting the vehicular pursuit had no bearing
on the fact that the petitioner initiated the pursuit by
fleeing in his vehicle when the Waterbury police
attempted to serve him with a criminal warrant for his
arrest. The petitioner chose the route taken for the
pursuit, the speed at which the pursuit was conducted
and the action ultimately responsible for the collision,
namely, an ill-advised attempt to drive between a con-
struction crew and another vehicle when there was no
room on the roadway to do so.’’ Id., 603.
Additionally, the state cites State v. Holley, 144 Conn.
App. 558, 564, 72 A.3d 1279, cert. denied, 310 Conn. 946,
80 A.3d 907 (2013), to support its argument that there
was sufficient evidence that the defendant’s conduct in
the present case created a risk of injury to a child. In
Holley, the jury found the defendant guilty of risk of
injury to a child after it heard evidence that he had
engaged in a ‘‘ ‘violent struggle’ ’’ with five law enforce-
ment personnel in close proximity to a child. Id. On
appeal, this court affirmed the defendant’s conviction,
stating that ‘‘[i]n light of this evidence, and on the basis
of its common knowledge and experience, the jury rea-
sonably could have inferred that engaging five police
officers in a physical altercation in close proximity to
a child would create a situation likely to endanger that
child’s life or limb.’’ Id.The defendant argues that Holley is distinguishable
from the present case. He emphasizes that, unlike the
defendant in Holley, he did not engage in a violent
altercation with the police in the presence of the chil-
dren in the school cafeteria. Rather, he surrendered to
the police peacefully. We are not persuaded that the
lack of a physical altercation with police necessarily
compels the conclusion that the defendant’s actions did
not create a risk of injury to a child.
The jury reasonably could have concluded from the
evidence presented that the defendant and Bunkley
committed the shooting on Enfield Street and then
attempted to hide from the police in the school cafete-
ria, which was then occupied by sixty to eighty children.
Detective Anthony Pia of the Hartford Police Depart-
ment testified about the speed and vigor of the police
response to the shooting. Pia stated that ‘‘[a]s soon as
we heard shots fired come in, it was pretty much our
standard operation that we all ran out of the office and
jumped in our cars and headed to wherever it was.’’
He also testified that when he entered the school with
other officers, the front door was ‘‘being held open by
a security guard’’ and ‘‘[w]e were running at full speed
with badge[s] exposed.’’ The police did not discover
that the defendant and Bunkley had disposed of their
weapons until after they had been taken into custody
and searched. As such, the officers who responded to
the shooting knew only that the perpetrators were in
a school full of children and that they were potentially
armed. We conclude that, in light of this evidence, and
on the basis of its common knowledge and experience,
the jury reasonably could have inferred that the defen-
dant created a situation likely to endanger the life or
limb of a child when he prompted a vigorous police
response by committing a shooting in a residential
neighborhood and then attempted to hide from the
police, who had reason to believe he was armed, in a
school cafeteria where children were present. We fur-
ther conclude, therefore, that there was sufficient evi-
dence to sustain the defendant’s conviction of risk of
injury to a child.
C
We now address the defendant’s argument that there
was insufficient evidence on the element of identity to
sustain his conviction on all charges because the state
failed to prove that his DNA could have been placed
on the pistol only at the time the crimes were perpe-
trated. In response, the state argues that it was not
required to establish that the defendant’s DNA could
have been placed on the pistol only at the time the
crimes were perpetrated because, in addition to the
DNA evidence, there was extensive circumstantial evi-
dence linking him to the shooting. We again agree with
the state.
The defendant relies on State v. Payne, 186 Conn.
179, 184, 440 A.2d 280 (1982), to support his position.
In Payne, our Supreme Court reiterated the rule that
‘‘a conviction may not stand on fingerprint evidence
alone unless the prints were found under such circum-
stances that they could only have been impressed at the
time the crime was perpetrated.’’ Id., 182. The defendant
argues that the fingerprint rule articulated in Payne
should be applied to DNA evidence because DNA identi-
fication is analogous to fingerprint identification. We
need not determine whether the Payne fingerprint rule
should apply to DNA evidence because we conclude
that, in the present case, the state’s case did not rest
on DNA evidence alone.
The state presented abundant circumstantial evi-
dence that the defendant was one of the shooters on
Enfield Street. Enfield Street and Magnolia Street run
parallel to each other. From the front entrance of the
Thirman Milner School on Magnolia Street, Officer
Espinosa observed the defendant behind the corner of
another building on Magnolia Street only a few minutes
after the shooting on Enfield Street. He then observed
the defendant and Bunkley attempt to enter a part of
the school under construction and then enter the school
cafeteria. Detective Gorr observed that the defendant
had small cuts on his hands and that his pants were
bloodstained. The police found the pistol and the
revolver that had been used in the shooting beneath
the porch of a building located near a path connecting
Enfield Street and Magnolia Street. The pistol had blood
on it, and the defendant’s DNA was later determined
to be present on that weapon.
‘‘It is not one fact, but the cumulative impact of a
multitude of facts which establishes guilt in a case
involving substantial circumstantial evidence.’’ (Inter-
nal quotation marks omitted.) State v. Calabrese, supra,
279 Conn. 402–403. The jury reasonably could have
inferred from the circumstantial evidence presented by
the state that the defendant and Bunkley committed
the shooting on Enfield Street, fled in the direction of
the school on Magnolia Street, disposed of their weap-
ons along the way, and then attempted to hide from
the police in the school cafeteria. The jury also could
have inferred, in light of the defendant’s proximity to
the scene of the shooting and the short amount of time
between the shooting and the defendant’s surrender to
the police, that the blood on the pistol had come from
the cuts on the defendant’s hands. Viewing the evidence
in the light most favorable to sustaining the verdict, we
conclude that the state’s case did not rest on the DNA
evidence alone and that the cumulative impact of the
circumstantial evidence, combined with the DNA evi-
dence, was sufficient for the jury to find beyond a rea-
sonable doubt that the defendant was one of the
perpetrators of the Enfield Street shooting.
II
The defendant’s final claim is that the court improp-
erly permitted an expert witness to testify that his find-
ings had been confirmed by his supervisor. The
defendant argues that the expert witness’ testimony
was inadmissible hearsay and that the admission was
harmful. The defendant also argues that the court, in
allowing the expert witness to testify that his supervisor
confirmed his findings, violated the defendant’s right
under the confrontation clause to confront and cross-
examine the supervisor. We are not persuaded by either
of the defendant’s arguments.
The following additional facts are necessary for our
review of this claim. At trial, Fox, a firearms and tool
mark examiner at the state forensics laboratory, testi-
fied for the state. Fox testified that he tested the opera-
bility of the pistol used by the defendant in the Enfield
Street shooting by test-firing it. The pistol was operable
and ejected a spent cartridge case, which Fox compared
to the nine spent casings found by the police on Enfield
Street. Specifically, he compared the breach marks on
the test cartridge case to the breach marks on the cas-
ings from Enfield Street. Fox explained that breach
marks are horizontal lines on a spent cartridge case
that are ‘‘created from the pressure that’s built up in a
pistol when it strikes the brass cartridge, makes contact
with the harder metal of the pistol.’’ Fox determined
that there was ‘‘sufficient agreement’’ between the
breach marks on the test cartridge and the breach marks
on the spent casings from Enfield Street for him to
conclude that all nine Enfield Street casings had been
fired from the pistol used by the defendant during the
shooting. Fox then wrote two reports, one on the opera-
bility of the pistol, and the other on the comparison
work he conducted on the casings.
After Fox testified about the conclusions he reached
in his reports, the prosecutor asked him if his results
had been ‘‘confirmed by another firearms’ analyst.’’
Defense counsel objected on the ground that Fox’s
answer would constitute inadmissible hearsay. The
court overruled the objection, stating: ‘‘He is not quite
there yet, but let’s see where he goes. Overruled at this
time.’’ (Emphasis added.) Fox then answered that his
findings had been confirmed by his supervisor, James
Stephenson, who had ‘‘equal or higher level . . . train-
ing . . . .’’
On cross-examination, defense counsel probed Fox
about Stephenson’s confirmation of his findings:
‘‘[Defense Counsel]: [W]ho is James [Stephenson]?
‘‘[Fox]: He is my supervisor at the forensic laboratory.
‘‘[Defense Counsel]: . . . And he signed those two
reports as a review, correct?
‘‘[Fox]: Yes.
‘‘[Defense Counsel]: And you signed them as an
examiner?
‘‘[Fox]: Correct.’’
Fox also testified, in response to questions on cross-
examination, that Stephenson’s confirmation was nec-
essary for his report. Fox stated: ‘‘As long as I feel
it’s sufficient agreement and I have someone of equal
training or higher training than myself agreeing with
my area of sufficient agreement, it’s reported as a[n]
identification.’’
A
The defendant first argues that Fox’s testimony that
Stephenson confirmed his findings was inadmissible
hearsay and that the admission of the testimony was
harmful. The state argues that Fox’s testimony was
admissible and that, even if it was inadmissible, any
error was harmless. We agree with the state that any
error in admitting Fox’s testimony was harmless.
We now turn to the applicable standard of review.
‘‘[A] nonconstitutional error is harmless when an appel-
late court has a fair assurance that the error did not
substantially affect the verdict. . . . [W]hether [the
improper admission of a witness’ testimony] is harmless
in a particular case depends upon a number of factors,
such as the importance of the witness’ testimony in the
prosecution’s case, whether the testimony was cumula-
tive, the presence or absence of evidence corroborating
or contradicting the testimony of the witness on mate-
rial points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the
prosecution’s case. . . . Most importantly, we must
examine the impact of the [improperly admitted] evi-
dence on the trier of fact and the result of the trial.’’
(Citation omitted; internal quotation marks omitted.)
State v. George J., 280 Conn. 551, 596–97, 910 A.2d 931(2006), cert. denied, 549 U.S. 1326, 127 S. Ct. 1919, 167
L. Ed. 2d 573 (2007). ‘‘When an improper evidentiary
ruling is not constitutional in nature, the defendant
bears the burden of demonstrating that the error was
harmful.’’ (Internal quotation marks omitted.) Id., 592.
Even if we assume, without deciding, that the court
erred in permitting Fox to testify that Stephenson con-
firmed his findings, we conclude that the error was
harmless. Although defense counsel initially objected
to the prosecutor’s question of whether the expert’s
results had been confirmed by his supervisor, defense
counsel declined the opportunity, extended by the
court, to object when the prosecutor offered Fox’s
report as a full exhibit. The court admitted the report
into evidence as a business record with no objections.
Once the report was admitted, the jury was able to view
it and would have been able to see from the face of
the report that Stephenson had signed off on Fox’s
results as a reviewer. Fox’s testimony that Stephenson
confirmed his findings was cumulative to his report,
which the jury had full access to, and therefore
harmless.
The defendant argues that Fox’s testimony was not
cumulative to his report and that it was not harmless
because Stephenson’s confirmation was critical to the
final opinion Fox arrived at and testified about in court.
The defendant contends that, under industry standards,
Fox could not have opined that there was a match
between the pistol and the cartridge casings without
confirmation from Stephenson. The defendant appears
to argue that Fox’s testimony that Stephenson con-
firmed his findings was not harmless because Fox’s
testimony about the substance of his findings would
not have been admissible unless he also testified about
Stephenson’s confirmation. The defendant has offered
no authority to support this argument and did not object
at trial to Fox’s testimony on this ground. The defendant
objected only to the question of whether Fox’s findings
were confirmed by his supervisor. Assuming, without
deciding, that the court erred in permitting Fox to testify
that Stephenson confirmed his findings, we conclude
that the error was harmless.
B
We next turn to the defendant’s argument that Fox’s
testimony that Stephenson confirmed his findings vio-
lated the defendant’s right under the confrontation
clause to confront and cross-examine Stephenson. The
defendant concedes that his confrontation clause claim
is unpreserved but requests review under State v. Gold-
ing, 213 Conn. 233, 239–40, 567 A.2d 823 (1989). The
state argues that the defendant’s claim cannot be
reviewed under Golding because the record is inade-
quate for review. We agree with the state.
Under Golding, an unpreserved constitutional claim
may be reviewed on appeal if ‘‘all of the following condi-
tions 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 clearly exists
and clearly deprived the defendant of a fair trial; and
(4) if subject to harmless error analysis, the state has
failed to demonstrate harmlessness of the alleged con-
stitutional violation beyond a reasonable doubt. In the
absence of any one of these conditions, the defendant’s
claim will fail. The appellate tribunal is free, therefore,
to respond to the defendant’s claim by focusing on
whichever condition is most relevant in the particular
circumstances.’’ (Emphasis in original; footnote omit-
ted.) Id.In the present case, the record is not adequate to
review the defendant’s confrontation clause claim. ‘‘In
Crawford v. Washington, [541 U.S. 36, 124 S. Ct. 1354,
158 L. Ed. 2d 177 (2004)], the [United States] Supreme
Court substantially revised its approach to confronta-
tion clause claims. Under Crawford, testimonial hear-
say is admissible against a criminal defendant at trial
only if the defendant had a prior opportunity for cross-
examination and the witness is unavailable to testify
at trial. . . . In the wake of Crawford, therefore, the
preliminary step in any confrontation clause analysis
is the determination of whether the subject statements
are testimonial hearsay.’’ (Citations omitted; internal
quotation marks omitted.) State v. Buckland, 313 Conn.
205, 212–13, 96 A.3d 1163 (2014), cert. denied, U.S.
, 135 S. Ct. 992, 190 L. Ed. 2d 837 (2015).
Our Supreme Court has noted that, although ‘‘there
is no comprehensive definition of testimonial, it is clear
that much of the [United States] Supreme Court’s and
our own jurisprudence applying Crawford largely has
focused on the reasonable expectation of the declarant
that, under the circumstances, his or her words later
could be used for prosecutorial purposes.’’ (Internal
quotation marks omitted.) State v. Slater, 285 Conn.
162, 172, 939 A.2d 1105, cert. denied, 553 U.S. 1085, 128
S. Ct. 2885, 171 L. Ed. 2d 822 (2008). ‘‘In Melendez-Diaz
v. Massachusetts, [557 U.S. 305, 308, 129 S. Ct. 2527,
174 L. Ed. 2d 314 (2009)], the [United States Supreme
Court] held that certificates signed and sworn to by
state forensics analysts, which set forth the laboratory
results of the drug tests of those analysts and which
were admitted into evidence in lieu of live testimony
from the analysts themselves, were testimonial within
the meaning of Crawford. In so concluding, the court
reasoned that: (1) the certificates clearly were a sworn
and solemn declaration by the analysts as to the truth
of the facts asserted; (2) under Massachusetts law the
sole purpose of the affidavits was to provide prima facie
evidence of the composition, quality, and the net weight
of the analyzed substance; and (3) the court could safely
assume that the analysts were aware of the affidavits’
evidentiary purpose, since that purpose—as stated in
the relevant state-law provision—was reprinted on the
affidavits themselves.’’ (Internal quotation marks omit-
ted.) State v. Buckland, supra, 313 Conn. 213.
In Williams v. Illinois, U.S. , 132 S. Ct. 2221,
2227, 183 L. Ed. 2d 89 (2012), the United States Supreme
Court considered whether a report from Cellmark Diag-
nostics Laboratory concerning the creation of a DNA
profile was testimonial. Cellmark created the DNA pro-
file from a vaginal swab taken from a rape victim. Id.The Illinois State Police laboratory compared a DNA
profile it created from a sample of the defendant’s blood
to the DNA profile created by Cellmark, and the compar-
ison resulted in a positive match. Id., 2229. At trial, an
expert witness from the Illinois State Police laboratory
referred to Cellmark’s report during her testimony when
she stated that there was a match between the DNA
profile created by the Illinois State Police laboratory
and the DNA profile created by Cellmark. Id., 2229–32.
The court concluded that, even if the Cellmark report
had been introduced ‘‘for its truth,’’ the defendant’s
rights under the confrontation clause would not have
been violated. Id., 2242.
The court noted that, in every case in which it had
found a confrontation clause violation under the Craw-
ford test, ‘‘the statement at issue had the primary pur-
pose of accusing a targeted individual.’’ Id., 2243. The
Cellmark report, on the other hand, was not created
‘‘to accuse [the defendant] or to create evidence for
use at trial.’’ Id. The vaginal swab was sent to Cellmark
‘‘to catch a dangerous rapist who was still at large, not
to obtain evidence for use against [the defendant], who
was neither in custody nor under suspicion at that time.
Similarly, no one at Cellmark could have possibly
known that the profile that it produced would turn out
to inculpate [the defendant]—or for that matter, anyone
else whose DNA profile was in a law enforcement data-
base. Under these circumstances, there was no prospect
of fabrication and no incentive to produce anything
other than a scientifically sound and reliable profile.’’
(Internal quotation marks omitted.) Id., 2243–44.
From the record before us in the present case, we
cannot determine whether Fox’s testimony that Ste-
phenson confirmed his findings was testimonial hear-
say. The record reveals that Stephenson ‘‘confirmed’’
Fox’s findings and that Stephenson signed Fox’s report
comparing the cartridge cases ‘‘as a review.’’ Fox also
testified that Stephenson’s confirmation was required
in order for Fox’s findings to be ‘‘reported as [an] identi-
fication.’’ Fox’s report, signed by Stephenson, indicates
that the pistol and cartridge cases were submitted to
the laboratory by the Hartford Police Department. The
report does not reference the defendant or any specific
police investigation.
The record does not reveal how or to what extent
Stephenson reviewed and confirmed Fox’s findings.
The record also gives no indication of whether Stephen-
son knew that his confirmation would be used for prose-
cutorial purposes. His confirmation could have been
required for prosecutorial purposes, for the forensics
laboratory’s internal procedures, or for some other rea-
son. Nor is it clear whether Stephenson was aware that
the report he reviewed and signed would be used as
evidence specifically against the defendant. Although
Fox’s report does not reference the defendant or an
ongoing criminal investigation, the record does not clar-
ify whether Stephenson’s knowledge was limited to the
contents of the report or whether he had additional
information about the report’s purpose. Unlike the
United States Supreme Court in Melendez-Diaz and
Williams, we cannot determine, without engaging in
speculation, whether Stephenson’s confirmation of
Fox’s findings was given for prosecutorial purposes or
if Stephenson had a reasonable expectation that his
confirmation would later be used as evidence against
the defendant. We conclude that the record before us
is inadequate to allow us to decide whether Fox’s testi-
mony that Stephenson confirmed his findings was testi-
monial hearsay, and we therefore decline to review the
defendant’s confrontation clause claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The state also argues, in the alternative, that it presented sufficient
evidence to sustain the defendant’s conviction of risk of injury to a child
through Gooden’s testimony on cross-examination that there were ‘‘kids’’
on Enfield Street at the time of the shooting. Because we agree that the
evidence concerning the defendant’s attempt to hide from the police in a
school cafeteria full of children was sufficient to sustain his conviction, we
do not address the state’s alternate ground.