State v. Campbell

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STATE OF CONNECTICUT v. KEVIN
PATRICK CAMPBELL
(AC 35571)
Gruendel, Bear and Flynn, Js.
Argued November 12, 2013—officially released April 15, 2014
(Appeal from Superior Court, judicial district of
Litchfield, Ginocchio, J.)
Moira L. Buckley, for the appellant (defendant.)
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were David M. Shepack, state’s
attorney, and Dawn G. Gallo, senior assistant state’s
attorney, for the appellee (state).
Opinion
GRUENDEL, J. The defendant, Kevin Patrick Camp-
bell, appeals from the judgment of conviction, rendered
after a jury trial, of murder in violation of General Stat-
utes § 53a-54a, as enhanced by General Statutes § 53-
202k for having used a firearm. On appeal, the defendant
claims that (1) the court improperly marshaled evidence
during the jury charge; (2) the court abused its discre-
tion in granting the state’s request to make a missing
witness argument; (3) the court erroneously precluded
the testimony of proffered defense expert witnesses,
Peter Morgan and Gregory Danas; and (4) prosecutorial
impropriety deprived the defendant of a fair trial. We
affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. On June 27, 2008, the five members of a group
called the Forbidden Motorcycle Club (club) held a
weekly meeting at their clubhouse in Torrington. The
members of this group included the victim, Roland
Lagasse; the defendant; the defendant’s brother, James
Campbell (Campbell); Eugene Thebarge; and Jerome
Welsh. These members sat around a table to discuss
‘‘usual club stuff . . . about what happened [in] previ-
ous weeks, what club members have done, [and to] pay
dues.’’ After finishing with old business, they moved
on to new business. The victim announced that Welsh
would receive his one year patch, demonstrating that
he had fulfilled all his duties associated with the club.
An argument thereafter ensued between the victim and
Campbell.1 Thebarge testified that ‘‘[the victim] was
trying to make a point . . . and [Campbell] kept seem-
ing to interrupt him.’’ The defendant ‘‘would chime in
once in a while to [Campbell’s] defense to help [Camp-
bell] make his point.’’ The victim ‘‘started to get a little
steamed, a little angry’’ and ‘‘after [the victim] got fed
up with [Campbell] interrupting him, he said, ‘Do you
want to step outside and settle this old school?’ ’’ and
Campbell said, ‘‘Yeah, if that’s what you wanna do.’’
The defendant also got up and said, ‘‘Yeah, I’ll go out-
side.’’ All five members then went outside, led by the
victim. The victim then ‘‘struck [Campbell] with his
right hand on the left temple . . . knocking [him] up
against the building, where [he] hit the building and
slid down.’’ ‘‘[A]fter [the victim] knocked [Campbell]
against the building . . . [the defendant] was
approaching, and [the victim] . . . [said] ‘What, you
want some too?’ [The defendant said] ‘Yeah, I want
some . . . you fucked up now, you’re a dead man.’ ’’
Thebarge further testified that as the defendant was
making that statement, he saw the defendant ‘‘kind of
fumbling around on the right side . . . and that’s when
the pistol came out, and [he] kind of cocked his head
forward, drew the pistol up straight, and then pulled
the trigger.’’2 The victim then stumbled back a step or
step and a half and fell backward. Thebarge asked the
defendant, ‘‘What . . . did you do . . . ?’’ And the
defendant said, ‘‘I . . . killed him.’’ Thebarge began
cardiopulmonary resuscitation on the victim and told
´
his fiance, Jennifer Mercado, to call 911. Police officers
arrived shortly thereafter and asked who the shooter
was, to which the defendant replied, ‘‘I am.’’
The defendant thereafter was arrested and charged
with murder with a firearm. The case proceeded to a
jury trial, after which the jury found the defendant
guilty. The court rendered judgment accordingly and
sentenced him to a total effective term of thirty-five
years incarceration, with a five year enhancement, for
a total effective sentence of forty years. This appeal
followed.
I
The defendant first claims that the court improperly
marshaled evidence during the jury charge, which he
argues deprived him of his constitutional right to a
fair trial. Assuming, without deciding, that the court
improperly marshaled evidence, we conclude that, in
considering the charge as a whole, the error was
harmless.
The following additional facts are relevant to this
claim. The defendant testified that the victim first hit
Campbell with three or four quick punches to the head
until he fell to the ground. The victim then continued
to hit and kick Campbell while he was down. According
to the defendant, Thebarge also was standing nearby,
with brass knuckles in his right hand, striking his fist
into his left palm. The defendant told the victim, twice,
to stop hitting Campbell, and after the second time, the
victim charged at the defendant asking him, ‘‘you want
some too?’’ After the victim hit the defendant, the defen-
dant reached for the gun in the waistband of his pants.
The defendant testified that he drew his gun in order
to stop any further violence, but that he did not intend
to shoot it. Rather, he stated that he caused the victim’s
death accidentally when the gun went off unintention-
ally. As an alternative to the lack of intent defense, the
defendant also claimed that he was acting in self-
defense.
In its charge to the jury, the court instructed: ‘‘You
must follow all my instructions and not single out some
and ignore others. They are all equally important. You
are the sole judges of the facts. It is your duty to find
the facts. You are to recollect and weigh the evidence
and form your own conclusions as to what the ultimate
facts are.’’ The court cautioned: ‘‘In this case the defen-
dant testified. An accused person having testified,
stands before you just like any other witness. . . . You
have no right to disregard his testimony or to disbelieve
his testimony merely because he is accused of a crime.’’
The court then addressed the substance of the murder
charge against the defendant, stating: ‘‘I will now
instruct you on the law applicable to the charge of
murder. Following that I will instruct you on the ele-
ments of what are called the lesser included offenses.
And as I will advise you further, as I address such
offenses, you are to consider . . . any of them only
in the event that you find the defendant not guilty of
the charge of murder. . . . A person is guilty of murder
when with intent to cause the death of another person
he causes the death of such person.’’ The court went
on to address each element of the crime of murder with
a firearm, and the state’s burden to prove each element.
It further detailed the issue of self-defense and its appli-
cation to the charge of murder.
The court thereafter addressed the lesser included
offenses of manslaughter in the first and second degrees
with a firearm, again instructing the jury that it must
find that the defendant was not guilty of murder before
considering the lesser included offenses. In its instruc-
tions on the lesser included offenses, the court
addressed the first element required for the state to
prove a person guilty of manslaughter in the first degree:
‘‘The first element is that the defendant engaged in
conduct that created a grave risk of death. Pointing a
loaded weapon at another person may be considered
conduct that inherently creates a risk of death. The
inference is not a necessary one.’’ It further explained:
‘‘Displaying a loaded gun that accidentally discharges,
even without the intent to achieve a wrongful purpose,
may provide evidence of lack of due care sufficient to
support a finding of reckless criminal culpability. . . .
The state of mind amounting to recklessness may be
inferred from conduct. The inference is not a neces-
sary one.’’
‘‘The standard of review for a challenge to the propri-
ety of a jury instruction is well established. [J]ury
instructions are to be read as a whole, and instructions
claimed to be improper are read in the context of the
entire charge. . . . A jury charge is to be considered
from the standpoint of its effect on the jury in guiding
it to a correct verdict. . . . The test to determine if a
jury charge is proper is whether it fairly presents the
case to the jury in such a way that injustice is not done
to either party under the established rules of law. . . .
[I]nstructions to the jury need not be in the precise
language of a request. . . . Moreover, [j]ury instruc-
tions need not be exhaustive, perfect or technically
accurate, so long as they are correct in law, adapted
to the issues and sufficient for the guidance of the jury.’’
(Citations omitted; internal quotation marks omitted.)
McDermott v. Calvary Baptist Church, 263 Conn. 378,
383–84, 819 A.2d 795 (2003).
‘‘The purpose of marshalling the evidence, a more
elaborate manner of judicial commentary, is to provide
a fair summary of the evidence, and nothing more; to
attain that purpose, the [trial] judge must show strict
impartiality. . . . The influence of the trial judge on
the jury is necessarily and properly of great weight
and his lightest word or intimation is received with
deference, and may prove controlling. . . . To avoid
the danger of improper influence on the jury, a recita-
tion of the evidence should not be so drawn as to direct
the attention of the jury too prominently to the facts
in the testimony on one side of the case, while sinking
out of view, or passing lightly over, portions of the
testimony on the other side, which deserve equal atten-
tion. . . . Even where the defendant has presented no
evidence, the [trial] court’s summary of the evidence
should try to give fair recognition to relevant points
raised by the defense in cross-examination as well as
to the general theory of the defense. . . .
‘‘In addition, a court must take care to avoid making
improper remarks which are indicative of favor or con-
demnation . . . and must not indulge in an argumenta-
tive rehearsal of the claims of one side only. . . . Such
proscriptions are of heightened importance in a crimi-
nal case, where considerations of due process require
that a criminal defendant be given a fair trial before an
impartial judge and an unprejudiced jury in an atmo-
sphere of judicial calm. . . . The right of an accused
in a criminal trial to due process is, in essence, the
right to a fair opportunity to defend against the state’s
accusations. . . . [P]artisan commentary, if fairly
established by the record . . . deprives defendants of
the very essence of their constitutional right to a fair
trial by an impartial jury.’’ (Citations omitted; internal
quotation marks omitted.) State v. Hernandez, 218
Conn. 458, 462–63, 590 A.2d 112 (1991).
Nevertheless, ‘‘[i]t is well established that a court
may comment to the jury on the weight of the evidence
as long as it does not direct the jury as to how to resolve
a particular question. . . . In fact, in some cases it is
the trial court’s duty to refer to testimony in order to
assist the jury in relating the facts to the law. . . . Jury
instructions must go beyond a mere recitation of legal
principles. . . . It would be a Herculean task, and not
one required under our law, for the trial court to achieve
exact parity in the time spent on comments of both the
prosecution and defense portions of a case. [T]he fact
that the claims or evidence of one party are stated at
much greater length than those of the other does not
by itself render the court’s summary of the evidence in
its charge unfair.’’ (Citations omitted; internal quotation
marks omitted.) State v. Cazimovski, 20 Conn. App.
190, 192–93, 565 A.2d 254 (1989).
The defendant claims that because the court used
the words ‘‘[p]ointing a loaded weapon,’’ it implicitly
instructed the jury that the defendant intended to aim
the gun in a particular direction. The defendant further
argues that the marshaling during the instruction was
harmful because, although the jury heard it in relation
to the manslaughter charge, the jury would have applied
that instruction to the murder charge as well. He con-
cludes, then, that he was deprived of his constitutional
right to a fair trial. The state, in contrast, argues that
the court’s instruction was given solely in the context
of explaining the grave risk and reckless conduct ele-
ments of the two lesser manslaughter offenses. It argues
that the court stated and restated that the jury must
first deliberate on the charge of murder and must stop
if it reached a unanimous verdict of guilty. Because the
jury found the defendant guilty of murder, the state
claims that the jury never reached any of the lesser
included offenses, and therefore did not consider the
instructions that were given for those lesser offenses.
We agree with the state.
We need not decide whether the marshaling of evi-
dence was done in error because, even if we assume
it was error, it was harmless beyond a reasonable doubt.
See State v. Latour, 276 Conn. 399, 412, 886 A.2d 404(2005); see also State v. Reynolds, 264 Conn. 1, 60, 836
A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct.
1614, 158 L. Ed. 2d 254 (2004). ‘‘If an improper jury
instruction is of constitutional magnitude, the burden is
on the state to prove harmlessness beyond a reasonable
doubt. . . . An alleged defect in a jury charge which
raises a constitutional question is reversible error if it
is reasonably possible that, considering the charge as
a whole, the jury was misled. . . . In performing harm-
less error analysis, we keep in mind that [i]n determin-
ing whether it was indeed reasonably possible that the
jury was misled by the trial court’s instructions, the
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 upon the jury in guiding [it] to a correct
verdict in the case. . . . The charge is to be read as a
whole and individual instructions are not to be judged
in artificial isolation from the overall charge.’’ (Internal
quotation marks omitted.) State v. Youngs, 97 Conn.
App. 348, 360–61, 904 A.2d 1240, cert. denied, 280 Conn.
930, 909 A.2d 959 (2006).
We first note that the portion of the manslaughter
instructions that the defendant challenges on appeal
was repeated only twice in the court’s lengthy charge
that included instructions on the jury’s function in
weighing the evidence, the burden of proof, the ele-
ments of the crimes, and the requirement that the state
prove each and every element of the crime charged
beyond a reasonable doubt. Additionally, in instructing
the jury that pointing a weapon at an individual may
be considered conduct that inherently creates a risk of
death, the court did not state or infer that the state
had proved the factual predicate. Rather, the court was
simply instructing the jury on a point of law that such
behavior, if proven, would satisfy a legal requirement
for culpability. See State v. Ciullo, 140 Conn. App. 393,
411, 59 A.3d 293, cert. granted on other grounds, 308
Conn. 919, 62 A.3d 1133 (2013).
Furthermore, a court is allowed to refer to evidence
in order to help the jury understand how the facts relate
to the law. See State v. Cazimovski, supra, 20 Conn.
App. 192. In reading the instructions as a whole, we
conclude that the defendant’s theory of defense was
fairly presented.3 The court did not state that the defen-
dant pointed his gun at the victim, which would have
directed the jury as to the defendant’s state of mind.
Rather, it made a general statement of law that ‘‘[p]oint-
ing a loaded weapon at another person may be consid-
ered conduct that inherently creates a risk of death.’’4
The court further stated in its instructions that ‘‘[d]is-
playing a loaded gun that accidentally discharges . . .
may provide evidence of lack of due care sufficient to
support a finding of reckless criminal culpability.’’ The
latter statement reflects on the defendant’s theory of
the case, namely, that the gun went off unintentionally,
after he displayed it to stop any further violence from
occurring. The court therefore demonstrated strict
impartiality by not reciting the evidence ‘‘as to direct
the attention of the jury too prominently to the facts
in the testimony on one side of the case, while sinking
out of view, or passing lightly over, portions of the
testimony on the other side, which deserve equal atten-
tion.’’ (Internal quotation marks omitted.) State v. Her-
nandez, supra, 218 Conn. 462.
In addition, any alleged improper marshaling
occurred during the instructions on, and applied solely
to, the lesser included offenses, and therefore it did not
cause harm to the defendant with regard to the murder
charge on which he was found guilty. ‘‘Our jurispru-
dence is clear . . . that unless there is a clear indica-
tion to the contrary, a jury is presumed to follow the
court’s instructions.’’ (Internal quotation marks omit-
ted.) State v. Boscarino, 86 Conn. App. 447, 460, 861
A.2d 579 (2004). The court reiterated multiple times
throughout its instructions that ‘‘you are to consider
. . . [the lesser included offenses] only in the event
that you find the defendant not guilty of the charge of
murder.’’ Because the jury is presumed to have followed
the court’s instructions when it was deliberating on
the murder charge, and because the jury found the
defendant guilty of murder, it had no reason to consider
the court’s manslaughter instructions. We therefore
conclude that any such marshaling error was harmless.
II
The defendant next claims that the court abused its
discretion and committed reversible error by allowing
the state to comment on a missing witness during sum-
mation. Although we conclude that the court erred in
allowing the state to make a missing witness argument,
the error was harmless.
The following facts and procedural history are neces-
sary for our analysis. The state requested permission
through written motion, and through argument to the
court, to make comments in its closing argument about
the absence of Campbell from the defendant’s case.
The state argued in its motion that ‘‘the defendant testi-
fied that [Campbell] was beaten extensively by the vic-
tim, which was the catalyst for the defendant drawing
his firearm . . . [and] that he had [a] conversation with
[Campbell] after the shooting. . . . During the first trial
of this case,5 the defense called [Campbell] as a witness,
in an attempt to corroborate the defendant’s entire ver-
sion of events, including his description of the beating
which [Campbell] sustained at the hands of the victim,
and the events which occurred thereafter. . . . Camp-
bell is a witness that the jury would naturally expect
the defendant to call; he is available; and his absence
bears on the weakness of the defendant’s case.’’
The state argued to the court that, during cross-exam-
ination of the defendant, it established Campbell’s avail-
ability by asking the defendant if Campbell currently
enjoyed good health, and it also confirmed that he
resided in Plymouth.6 The state then argued that Camp-
bell had indicated in his prior testimony, at the defen-
dant’s first trial, that he had been struck multiple times
by the victim and that the defendant was on the ground
when Campbell uncurled himself from the fetal posi-
tion. The state also argued that because Campbell’s
statement to the police was inconsistent with his testi-
mony at the first trial, he was impeached; and this was
the reason the defendant failed to call Campbell to
testify. The state then argued that it was fair to make
a missing witness argument to the jury.
Defense counsel rebutted the state’s argument and
claimed that the testimony of the defendant about
Campbell enjoying good health and residing in Plym-
outh was a result of forceful cross-examination by the
state, and that in fact, the defendant testified that he had
not seen or talked to Campbell in two years. Defense
counsel thus concluded that because the state failed to
demonstrate that Campbell was available, failed to
show that harm to the defendant was the only reason
why the defendant would not call Campbell to testify,
and failed to articulate how Campbell’s testimony
would have been detrimental to the defendant, it could
not make a missing witness argument.
The court ruled that the defendant ‘‘testified that
. . . Campbell was either kicked or beaten a total of
ten times. That goes to a very important issue in this
case as to the amount of force that [the victim] was
using on . . . Campbell, and the inference the jury
could draw is that he was about to use that same force
on [the defendant]. It’s a critical issue in the case, and
one would naturally believe that the defendant would
want to call the biological brother of the defendant to
at least corroborate that’s what, in fact, took place.
. . . [T]he state did put on the record that there was
availability.’’ The state, in its closing argument, was
thus permitted to make the statement: ‘‘[T]he other
thing you need to consider . . . when you look at the
relative strength of the state’s [case], you have only [the
defendant] telling his version of events. As it related to
the strengths of the defendant’s case, where’s
[Campbell]?’’
‘‘We review the court’s decision allowing the state
to include a missing witness argument in its closing
argument for abuse of discretion. . . . It is within the
discretion of the trial court to limit the scope of final
argument . . . . The broad discretion vested in trial
courts by [State v. Malave, 250 Conn. 722, 737 A.2d 442(1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145
L. Ed. 2d 1099 (2000)] mirrors the general standards
regarding the trial court’s ability to limit closing argu-
ment. [T]he scope of final argument lies within the
sound discretion of the court . . . subject to appro-
priate constitutional limitations. . . . We first deter-
mine whether the trial court abused its discretion in
light of the information before the court when it ruled
on the motion. If there was such an abuse of discretion,
the reviewing court must determine whether the defen-
dant has established that, in light of the totality of evi-
dence at trial and the trial court’s subsequent
instructions to the jury, the impropriety constituted
harmful error.’’ (Citations omitted; internal quotation
marks omitted.) State v. Jordan, 118 Conn. App. 628,
638–39, 984 A.2d 1160 (2009), rev’d on other grounds,
305 Conn. 1, 44 A.3d 794 (2012).
A
We first assess whether the court abused its discre-
tion in granting the state’s motion to make a missing
witness argument to the jury. ‘‘In State v. Malave, [supra,
250 Conn. 739] our Supreme Court abandoned, in crimi-
nal cases, the [rule of Secondino v. New Haven Gas
Co., 147 Conn. 672, 165 A.2d 598 (1960)], also known
as the missing witness rule, which sanctioned, under
certain circumstances, a jury instruction that an adverse
inference may be drawn from the failure of a party to
produce a witness. Although our Supreme Court aban-
doned the Secondino rule, it did not intend to prohibit
counsel from making appropriate comment, in closing
arguments, about the absence of a particular witness,
insofar as that witness’ absence may reflect on the
weakness of the opposing party’s case. . . . Comments
in closing argument that do not directly exhort the jury
to draw an adverse inference by virtue of the witness’
absence do not necessarily fall under the ambit of Sec-
ondino . . . and accordingly are not forbidden by
Malave. Our Supreme Court further provided that [o]f
course, the trial court retains wide latitude to permit
or preclude such a comment, and may, in its discretion,
allow a party to adduce additional evidence relative to
the missing witness issue. . . .
‘‘A missing witness argument is appropriate in limited
circumstances. Counsel may only invite the jury to draw
reasonable inferences on the basis of facts in evidence,
and the court’s exercise of discretion as to whether to
permit such argument is dependent on the facts made
known to it. For this reason, it is necessary for counsel,
through facts and argument, to justify a request to make
a missing witness argument. Our decisional law reflects,
for example, that . . . counsel should explain how the
[opposing party’s] decision not to call [a person as a
witness] exposed a weakness in the [opposing party’s]
case and should make an offer of proof regarding the
substance of [such person’s] potential testimony. . . .
Stated otherwise, counsel must demonstrate that such
witness was available to testify, set forth the substance
of the testimony that such witness would have given
had he been called to the witness stand and explain
how his testimony would have been detrimental to the
[opposing party’s] case. Evidence that would have been
merely cumulative or of no consequence to a reasonable
assessment of the [opposing party’s] case, for example,
would not warrant such an argument. (Citations omit-
ted; internal quotation marks omitted.) State v. Mun-
groo, 104 Conn. App. 668, 676–77, 935 A.2d 229 (2007),
cert. denied, 285 Conn. 908, 942 A.2d 415 (2008).
The defendant argues that the missing witness argu-
ment was made in error because the state did not dem-
onstrate through his testimony that Campbell was
available to testify, as the defendant had not even spo-
ken with Campbell in two years.7 We agree.
‘‘When proving availability, counsel seeking to make
the missing witness argument must first offer evidence
to support the witness’ availability and the court must
make a finding that the witness was actually available
to testify. . . . [A] party cannot merely comment on
the failure of the opposing party to present a witness
without first providing a factual or evidentiary founda-
tion from which to infer a weakness in the opposing
party’s case.’’ (Internal quotation marks omitted.) State
v. Burns, 140 Conn. App. 347, 372, 59 A.3d 819, cert.
denied, 308 Conn. 918, 62 A.3d 1132 (2013).
We conclude that the court erred in finding that the
state put on sufficient evidence of Campbell’s availabil-
ity through its cross-examination of the defendant. ‘‘To
satisfy the availability requirement, the [party] must put
forth sufficient evidence before the jury to support a
conclusion that the witness was available at the time
of trial.’’ State v. Owen, 40 Conn. App. 132, 138, 669
A.2d 606, cert. denied, 236 Conn. 912, 673 A.2d 114,
cert. denied, 237 Conn. 922, 676 A.2d 1376 (1996). The
state did not establish that Campbell was actually avail-
able to testify. Although it probed the defendant in an
attempt to elicit evidence about whether Campbell was
available, the defendant testified that only ‘‘as far as he
knew,’’ Campbell still lived near Plymouth Lake and
that he ‘‘believed’’ Campbell was still living, conscious,
and competent. These statements, standing alone, are
insufficient to establish Campbell’s availability to testify
during the trial.8 Without more definite and reliable
evidence, the court erred in finding that Campbell was
available. See State v. Woods, 257 Conn. 761, 768, 778
A.2d 933 (2001).
In fact, the present case is consistent with State v.
Jordan, supra, 118 Conn. App. 639–40, in which we held
that the trial court abused its discretion when it found
three missing witnesses to be available. The prosecutor
in that case asked two witnesses whether the missing
witnesses ‘‘were in the area and available to testify,’’
to which the witnesses responded ‘‘that they were.’’ Id.,
640. We held, however, that the state did not establish
that any of the three witnesses included in the missing
witness argument were actually available to testify. Id.
Moreover, we disagree with the state’s comparison
to State v. Daniels, 180 Conn. 101, 110, 429 A.2d 813(1980). Our Supreme Court previously has stated that
the defendant in that case ‘‘claimed that the state’s
[missing witness argument] was improper because the
evidence was insufficient to show [the witness’] avail-
ability to testify. . . . We rejected [the defendant’s]
claim in light of the following colloquy between the
state’s attorney and [the defendant] during [his] cross-
examination: ‘Q. Who was there when you [returned
home]? A. [The witness] and her kids. Q. Is she here
today in court? A. No, she isn’t. Q. Do you know where
she is? A. She’s home, I guess.’ . . . The evidence
further indicated that [the witness] was in [the defen-
dant’s] bed when he returned home and that he slept
in that bed as well. . . . In light of the context in which
[the defendant’s] testimony was elicited, the trial court
in Daniels reasonably could have concluded that [the
defendant], who apparently had had an intimate rela-
tionship with [the witness], knew where [the witness]
resided and, furthermore, that [the defendant] reason-
ably believed that she was at her residence when the
state questioned him about her whereabouts. Indeed,
the clear import of [the defendant’s] testimony is that
he knew where [the witness] was and how to find her.’’
State v. Woods, supra, 257 Conn. 768 n.10. The conclu-
sion in Daniels, therefore, is of no benefit to the state
in the present case because no evidence was provided
to demonstrate that the defendant was in contact with
Campbell, and actually knew whether Campbell was
available to testify. See also State v. Leecan, 198 Conn.
517, 540, 504 A.2d 480 (court found sufficient evidence
of availability of witness because witness continued to
occupy same residence she previously had shared with
defendant and continued to communicate with defen-
dant), cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L.
Ed. 2d 550 (1986).
We therefore conclude that the court abused its dis-
cretion in granting the state’s motion to permit a missing
witness argument to the jury. Consequently, we now
turn to the second part of our analysis, which is whether
that abuse of discretion constituted harmful error.
B
Our conclusion that the court abused its discretion
in granting the state’s motion for a missing witness
argument does not end our inquiry; we also must deter-
mine whether the impropriety was harmful, thereby
entitling the defendant to a new trial. ‘‘If there was
such an abuse of discretion, the reviewing court must
determine whether the defendant has established that,
in light of the totality of evidence at trial and the trial
court’s subsequent instructions to the jury, the impro-
priety constituted harmful error.’’ (Internal quotation
marks omitted.) State v. Burns, 140 Conn. App. 347,
371, 59 A.3d 819, cert. denied, 308 Conn. 918, 62 A.3d
1132 (2013). ‘‘The dispositive question in harmful error
analysis is whether we have a fair assurance that the
defendant received a fair trial. . . . This may be deter-
mined by considering whether the jury’s verdict was
substantially swayed by the error. . . . The thrust of
the standard is to look to the effect of the error and to
determine if it had little to no impact on the defendant’s
conviction.’’ (Internal quotation marks omitted.) Id.,
374.
The defendant failed to demonstrate that the jury’s
verdict was substantially swayed by the court’s error
in allowing the state to make a missing witness argu-
ment. In the present case, the state made only one
statement regarding Campbell’s absence: ‘‘[T]he other
thing you need to consider . . . when you look at the
relative strength of the state’s [case], you have only [the
defendant] telling his version of events. As it related to
the strengths of the defendant’s case, where’s [Camp-
bell]?’’ The state’s reference to Campbell was isolated
to one comment within two sentences during its entire
closing argument. It was not emphasized throughout,
but rather was of minimal impact in relation to the
totality of the evidence and arguments presented at
trial.
Furthermore, the state did not ask the jury to draw an
adverse inference from Campbell’s absence, but simply
asked the jury to consider ‘‘where’s [Campbell]?’’ In
fact, it would have been evident to the jury that Camp-
bell did not testify. On the basis of the evidence before
it, the members of the jury reasonably could have seen,
even without the missing witness argument, that the
defendant did not produce Campbell as a witness. See
State v. Ross, 230 Conn. 183, 215–17, 646 A.2d 1318(1994) (involvement of psychiatrist and psychologist in
diagnosis of defendant and their absence from trial
evident to jury), cert. denied, 513 U.S. 1165, 115 S. Ct.
1133, 130 L. Ed. 2d 1095 (1995). Campbell was the only
person who corroborated the defendant’s testimony
that the victim extensively beat Campbell and was one
of the reasons that the defendant thought it was neces-
sary to take out his gun.
In addition, regardless of any inference the jury may
have drawn from the state’s missing witness comment,
the state’s evidence, including the defendant’s state-
ment, ‘‘you fucked up now, you’re a dead man,’’ pro-
vided a compelling case for conviction. Also, it is no
more likely that the jury inferred that Campbell would
have contradicted the defendant’s testimony as it is that
the jury inferred that he would have supported the
defendant’s testimony. See State v. Burns, supra, 140
Conn. App. 374–75.
In light of the evidence, we conclude that the jury’s
verdict was not materially affected by the admission of
the state’s isolated missing witness reference, and that
the defendant received a fair trial. The court’s error,
therefore, was harmless.
III
The defendant next claims that the court erroneously
precluded the testimony of two proffered defense
expert witnesses. We disagree.
‘‘We first set forth the standard by which we review
the trial court’s determinations concerning the [admis-
sibility] of evidence. The trial court’s ruling on eviden-
tiary matters will be overturned only upon a showing
of a clear abuse of the court’s discretion. . . . The trial
court has wide discretion in ruling on the qualification
of expert witnesses and the admissibility of their opin-
ions. . . . The court’s decision is not to be disturbed
unless [its] discretion has been abused, or the error is
clear and involves a misconception of the law. . . .
Generally, expert testimony is admissible if (1) the wit-
ness has a special skill or knowledge directly applicable
to a matter in issue, (2) that skill or knowledge is not
common to the average person, and (3) the testimony
would be helpful to the court or jury in considering the
issues.’’ (Citations omitted; internal quotation marks
omitted.) State v. Iban C., 275 Conn. 624, 634, 881 A.2d
1005 (2005); see also Conn. Code Evid. § 7-2 (‘‘[a] wit-
ness qualified as an expert by knowledge, skill, experi-
ence, training, education or otherwise may testify in the
form of an opinion or otherwise concerning scientific,
technical or other specialized knowledge, if the testi-
mony will assist the trier of fact in understanding the
evidence or in determining a fact in issue’’).
‘‘[A] trial judge should, by one method or another,
serve as a ‘gatekeeper’ and make a preliminary assess-
ment of the validity of scientific testimony before
allowing the fact finder even to consider it.’’ State v.
Porter, 241 Conn. 57, 68, 698 A.2d 739, 746 (1997), cert.
denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d
645 (1998). ‘‘[I]t is proper for trial judges to serve as
gatekeepers for scientific evidence because a relevance
standard of admissibility inherently involves an assess-
ment of the validity of the proffered evidence. More
specifically, if scientific evidence has no grounding in
scientific fact, but instead is based on conjecture and
speculation, it cannot in any meaningful way be relevant
to resolving a disputed issue.’’ Id., 74. ‘‘[S]ome indication
of scientific validity—accomplished here by a showing
of ‘substantial’ acceptance—is necessary for scientific
evidence even to be relevant.’’ Id. The factors that
should be considered in conducting a methodological
analysis, although not exclusive, include: ‘‘whether a
scientific principle has gained general acceptance in
making admissibility determinations . . . whether that
methodology has been tested and subjected to peer
review, and the known or potential rate of error . . .
the prestige and background of the expert witness sup-
porting the evidence can play a role in determining
whether a novel technique employed by that individual
is likely to have any scientific merit . . . [and] [t]he
extent to which the scientific technique in question
relies on subjective interpretations and judgments by
the testifying expert, rather than on objectively verifi-
able criteria . . . .’’ (Citations omitted; internal quota-
tion marks omitted.) Id., 84–86.
‘‘[E]vidence, even evidence with its roots in scientific
principles, which is within the comprehension of the
average juror and which allows the jury to make its
own conclusions based on its independent powers of
observation and physical comparison, and without
heavy reliance upon the testimony of an expert witness,
need not be considered scientific in nature for the pur-
poses of evidentiary admissibility.’’ (Internal quotation
marks omitted.) State v. Griffin, 273 Conn. 266, 278,
869 A.2d 640 (2005).
A
The defendant first claims that the court erroneously
precluded the testimony of his expert Morgan. We
disagree.
The following additional facts are relevant to this
claim. The defendant proffered Morgan, a psychiatrist,
to testify about a phenomenon known as ‘‘fight or
flight.’’9 The state filed a motion in limine and memoran-
dum of law in support there of to exclude the testimony.
The court excluded Morgan’s testimony because it
found that the witness would not be testifying as to
scientific knowledge. It stated: ‘‘The doctor testified
that this is a phenomenon that has been around for
several decades. . . . It’s something that [the jurors]
possibly would know that anybody, based on their own
common experience . . . would know that their heart-
beat would probably increase, their blood pressure may
go up.’’
The court further stated: ‘‘There is no history of this
case or this type of science being subject to peer review,
subject to this author publishing anything on it. . . . I
think this testimony would be highly misleading to the
jury explaining a phenomenon that really would eventu-
ally go back to his state of mind at the time of the
shooting, and it really does invade the province of the
jury.’’ Because the court found that Morgan’s testimony
did not pass Porter scrutiny and went to the ultimate
issue of the case, the court granted the state’s motion
in limine to exclude Morgan’s testimony.
Our standard for admitting expert testimony is well
established. ‘‘In Porter, our Supreme Court explicitly
adopted the Daubert test to determine the admissibility
of scientific evidence . . . [but it] did not explicitly
overrule Connecticut precedent regarding the evidence
to which such a test should apply. . . . Courts apply
the Daubert standard only when such testimony
involves innovative scientific techniques . . . . To
determine if such a technique exists, we look to see
whether the trier of fact is in a position to weigh the
probative value of the testimony without abandoning
common sense and sacrificing independent judgment
to the expert’s assertions based on his special skill
or knowledge. . . . Furthermore, we determine if the
testimony is based on obscure scientific theories that
have the potential to mislead [the trier of fact] awed
by an aura of mystic infallibility surrounding scientific
techniques, experts and the fancy devices employed.
. . . If an expert’s testimony concerns a method, the
understanding of which is accessible to the [trier of
fact] . . . and the value of the expertise lay in its assis-
tance to the [trier of fact] in viewing and evaluating the
evidence, the testimony is not scientific even though
an expert’s skill and training are based on science.’’
(Citations omitted; internal quotation marks omitted.)
State v. Vumback, 68 Conn. App. 313, 329–30, 791 A.2d
569 (2002), aff’d, 263 Conn. 215, 819 A.2d 250 (2003).
The defendant claims that Morgan passed Porter
scrutiny and should have been allowed to testify. He
further argues that Morgan’s testimony did not go to
the ultimate issue in the case because the ultimate issue
focused on theories of self-defense and unintentional
discharge, and Morgan’s testimony would not have
included references to the defendant or opine how
experiencing fight or flight proved self-defense or
negated intent. The state agrees with the court that
Morgan’s testimony embraced the ultimate issue of the
defendant’s mental state and concerned material that
was not scientific or of specialized knowledge beyond
the ken of the average juror. It argued that human reac-
tions to stressful circumstances that give rise to a fight
or flight response are matters that fall within the com-
mon experience of the average juror. We agree with
the court.
Morgan’s proffered testimony did not fall within the
ambit of scientific, technical, or other specialized
knowledge. As the court stated, the jury would likely
be aware of such fight or flight responses as a result
of their own experiences. The proffered testimony,
therefore, was an attempt to provide expertise on ‘‘infer-
ences which lay persons were equally capable of draw-
ing from the evidence. It is only when an expert witness
has a special skill or knowledge, beyond the ken of the
average juror, on the particular subject at issue that his
testimony can be helpful and, accordingly, should be
admitted.’’ State v. George, 194 Conn. 361, 373, 481 A.2d
1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963,
83 L. Ed. 2d 968 (1985). The court, therefore, did not
abuse its discretion when it excluded Morgan’s testi-
mony for failing to pass Porter scrutiny.10
B
The defendant also claims that the court erroneously
precluded the testimony of his expert Danas. We
disagree.
The following additional facts are relevant to this
claim. The defendant proffered the testimony of Danas,
a self-employed firearms trainer, regarding firearm
safety and the danger of unintentional discharge. The
state filed a motion in limine and a memorandum of
law in support thereof to exclude such expert testi-
mony. The defendant objected, arguing that Danas
expressed his opinion in reasonable probabilities, that
he did not testify regarding the ultimate issue, and that
the proffered testimony was beyond the ken of the
average juror.
The court found that ‘‘there is no question that Greg-
ory Danas appears to be qualified as an expert in the
field of firearms, which would include operation, use,
and maintenance of firearms, he also may be qualified
as an expert in the safe handling of firearms. But the
hypothetical question proposed by the defendant11
appears to offer Mr. Danas as an expert in the area of
firearms safety with regard to the unintentional dis-
charge of a firearm and specifically the frequency of
unintentional discharge of a firearm within the civilian
population. If the court were to find [that] this proffered
testimony of Mr. Danas was scientific or technical in
nature and was to subject this witness’ testimony as
it relates to the issue of frequency of unintentional
discharge of a firearm by a civilian to a Porter analysis,
it would most certainly fail.’’ The court went on to
conclude that Danas ‘‘has indicated that he can count
on one hand the number of times that he has had his
trainees unintentionally discharge a firearm. . . . He
has no statistics regarding the age, gender, or physical
qualities of those trainees regarding said issue. All of
Mr. Danas’ observations were made in a controlled set-
ting, he has not made any observations or submitted
any studies, data, statistics as they relate to the uninten-
tional discharge of a firearm by civilians who are placed
in a similar situation to that of [the defendant]. He has
never had his theories or techniques subject to peer
review or publication. Absent in his testimony is the
known or potential rate of error, including the existence
and maintenance of standards controlling the tech-
niques, operations, and whether the technique is gener-
ally accepted in a relevant scientific community.’’
The court thus concluded that it was not ‘‘willing to
compromise that standard of reasonable probability
and move to a much lower standard which would permit
an expert . . . to offer such an important conclusion
or opinion couched in terms quite likely to be conducive
to an unintentional discharge of a firearm. . . . [T]his
expert witness wants to offer expert testimony, it goes
to the heart of this case, and give[s] testimony that
indirectly goes to the intent of the accused, which is
ultimately within the sole function of the jury. The
defense is asking the court to permit this testimony,
which at best is couched in terms of possibility and
arguably at worst it’s couched in terms more consistent
with conjecture and speculation.’’
Our standard regarding expert opinions is well estab-
lished. ‘‘Expert opinions must be based upon reason-
able probabilities rather than mere speculation or
conjecture if they are to be admissible in establishing
causation. . . . To be reasonably probable, a conclu-
sion must be more likely than not. . . . Whether an
expert’s testimony is expressed in terms of a reasonable
probability that an event has occurred does not depend
upon the semantics of the expert or his use of any
particular term or phrase, but rather, is determined by
looking at the entire substance of the expert’s testi-
mony. . . . As long as it is clear that the opinion of
the expert is expressed in terms of probabilities, the
opinion should be submitted into evidence for a jury’s
consideration.’’ (Internal quotation marks omitted.)
Peatie v. Wal-Mart Stores, Inc., 112 Conn. App. 8, 21,
961 A.2d 1016 (2009).
The trial court has a duty to act as a gatekeeper
and must determine whether the method underlying
proffered scientific evidence is admissible. See State v.
Porter, supra, 241 Conn. 69. We agree with the court
that Danas’ testimony does not concern scientific, tech-
nical, or other specialized knowledge beyond the ken
of the average juror. As the court stated, ‘‘people under-
stand that when you have your finger on the trigger of
a gun, you are allegedly being attacked, you have a
prosthetic leg, you were off balance, you bump and
fall, the risk of unintentionally discharging the gun is
increased.’’ Furthermore, when questioned by the state,
Danas was unaware of the incidence of unintentional
discharges of guns similar to the one used by the defen-
dant and was similarly unaware of the incidence of
unintentional discharges in a situation where the person
holding the gun is in the process of falling. Danas also
testified that he was not aware of any articles that
addressed the number of unintentional discharges
occurring and admitted that he had never written a
report on the issue. Danas, then, did not qualify as an
expert on firearm safety with regard to the unintentional
discharge of a firearm. The court, therefore, did not
abuse its discretion by excluding Danas’ testimony.
IV
The defendant lastly argues that the prosecutor misin-
formed the jury on the law regarding murder and self-
defense, thus depriving the defendant of a fair trial. We
are not persuaded.
During rebuttal summation, the prosecutor argued:
‘‘[S]elf-defense is a justification defense. So the court
will tell you that before you can consider self-defense
on the charge of murder, you have to find that the
defendant intentionally caused the death of [the victim],
okay, then you consider self-defense. . . .
‘‘[T]he testimony of the defendant was that of acci-
dent. He reiterated time and time again that he did not
intentionally pull the trigger. So he’s asking you to adopt
a defense, the opposite of that which he presented to
you. . . . ‘Accident’ is just a simple failure of proof
defense. All accident is, is the state failed to prove
intent . . . that’s an entirely different concept from a
justification defense. Because in order for you to find
that he acted intentionally and shot the guy, you’ve
already rejected that he did it in self-defense based on
his facts. So pay attention to those instructions, because
accident and self-defense are legally inconsistent
defenses. Can you raise inconsistent defenses as a mat-
ter of law? Absolutely. Is it practical? That’s for you
to consider.’’
‘‘[T]he defendant’s failure to object at trial to [this
occurrence] that he now raises as . . . prosecutorial
impropriety, though relevant to our inquiry, is not fatal
to review of his [claim]. . . . This does not mean, how-
ever, that the absence of an objection at trial does not
play a significant role in the determination of whether
the challenged statements were, in fact, improper. . . .
To the contrary, we continue to adhere to the well
established maxim that defense counsel’s failure to
object to the prosecutor’s argument when it was made
suggests that defense counsel did not believe that it
was [improper] in light of the record of the case at the
time.’’ (Internal quotation marks omitted.) State v. Taft,
306 Conn. 749, 762, 51 A.3d 988 (2012).
The standard for prosecutorial impropriety is well
settled. ‘‘[T]he touchstone of due process analysis in
cases of alleged prosecutorial [impropriety] is the fair-
ness of the trial, and not the culpability of the prosecu-
tor. . . . The issue is whether the prosecutor’s conduct
so infected the trial with unfairness as to make the
resulting conviction a denial of due process.’’ (Internal
quotation marks omitted.) State v. Stevenson, 269 Conn.
563, 571, 849 A.2d 626 (2004). ‘‘[T]he burden is on the
defendant to show, not only that the remarks were
improper, but also that, considered in light of the whole
trial, the improprieties were so egregious that they
amounted to a denial of due process.’’ State v. Payne,
303 Conn. 538, 563, 34 A.3d 370 (2012).
‘‘[I]n analyzing claims of prosecutorial [impropriety],
we engage in a two step analytical process. The two
steps are separate and distinct: (1) whether [impropri-
ety] occurred in the first instance; and (2) whether that
[impropriety] deprived a defendant of his due process
right to a fair trial.’’ (Internal quotation marks omitted.)
State v. Stevenson, supra, 269 Conn. 572.
Considered in light of the prosecutor’s entire remarks
in rebuttal, we cannot agree with the defendant that
the statement amounted to prosecutorial impropriety
and so infected the trial with unfairness as to make the
resulting conviction a denial of due process. We agree
with the state when it argued in its appellate brief that
‘‘[v]iewed properly in context, the remark constituted
an accurate statement of the mutually exclusive nature
of accident and self-defense, and an accurate statement
regarding the defendant’s testimonial claim of accident,
not self-defense.’’ The prosecutor properly pointed out
to the jury that the defendant had inconsistent defenses,
and that the jury could rely on only one theory: either
self-defense or unintentional discharge. The statement
did not shift the burden to the defendant to disprove
intent before considering self-defense. Having deter-
mined that the defendant has not established impropri-
ety by the prosecutor, the defendant’s claim that he
was deprived of a fair trial necessarily fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant testified that both he and Campbell believed that before
a member received his one year patch, the club was required to discuss
and to vote on whether it was earned by that member.
2
The defendant carried his gun in a holster clipped to the inside of his
pants, concealed by his shirt. He testified that he carried the gun every day
since the September 11, 2001 terrorist attacks because he ‘‘thought it was
a good idea to be armed.’’
3
Unlike in State v. Hernandez, supra, 218 Conn. 465, where ‘‘the court
extensively detailed the state’s claims and its evidence in support thereof,
and little or no reference was made to the defendant’s exculpatory evidence
and his theory of defense,’’ the court in the present case presented the law,
reflecting both the state’s case and the defendant’s theories of defense.
4
At oral argument before this court, defense counsel claimed that ‘‘when
the court tells the jury one side of the evidence, especially on such a crucial
claim as to whether he pointed the gun at the [victim], its really telling the
jury that [the defendant] is not credible . . . and that his defense is simply
not worthy of belief.’’ The trial court did not state in its instruction that
the defendant pointed the gun, nor did it make any assessment as to the
defendant’s credibility.
5
The defendant’s first trial was in 2009, but the jury declared itself unable
to reach a unanimous verdict and was discharged.
6
During cross-examination, the following exchanges occurred between
the prosecutor and the defendant:
‘‘[The Prosecutor]: By the way, when was the last time you spoke with
[Campbell]?
‘‘[The Defendant]: Probably two years ago.’’
‘‘[The Prosecutor]: And [Campbell] lives in where, Plymouth?
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: Whereabouts in Plymouth, do you know?
‘‘[The Defendant]: Near the lake there, Plymouth Lake.
‘‘[The Prosecutor]: Okay, still living there?
‘‘[The Defendant]: As far as I know, yes.’’
‘‘[The Prosecutor]: Still living, conscious, competent, nothing happened
to him? Today, as we sit here today?
‘‘[The Defendant]: I believe so.’’
7
The state did not offer any other evidence of Campbell’s availability
to testify.
8
The defendant did not testify that Campbell was available to testify, or
even that he ‘‘would probably be able to testify,’’ as was the case in State
v. Anderson, 212 Conn. 31, 44, 561 A.2d 897 (1989). As a result, there was
not enough evidence to conclude that Campbell was ‘‘within the power of
[the defendant] to produce . . . and, therefore, available to testify.’’ (Inter-
nal quotation marks omitted.) Id.9
Morgan testified outside the presence of the jury as follows: ‘‘[I]t’s gener-
ally accepted that violence comes in different forms. . . . Affective violence
is the emotional violence, so that usually is preceded by some highly emo-
tional situation where the person perceives a threat either internal or exter-
nal. They become very emotional. . . . They become violent for the sole
purpose of reducing that threat trying to get rid of it. . . . [I]t often occurs
in cases where the person does not have repeated episodes of violence but
it’s just a single episode. . . .
‘‘Predatory violence is different in that there’s not the emotional compo-
nent. There isn’t the perception of threat. The goal of predatory violence is
not threat reduction . . . .
‘‘Fight or flight is the body’s response to the perception of danger. It could
be danger to the person, him or herself, or it could be danger to someone
else close by. This is an instinctive response. . . . When the danger is
perceived, the brain recognizes that and sets a series of things into motion,
and this causes a release of chemicals in the brain that shut down some
parts of the brain and turn on others. It also causes the adrenal glands to
release epinephrine. Epinephrine goes around the body, and it will do things
like increase heart rate; it will increase blood flow to muscles; [it] will
decrease blood flow to things that are considered not important in the
situation . . . [and] it will increase the diameter of the tubes in your lungs
so that more air can come in and out. The net effect is to make someone
stronger, to make them faster, make them more able to deal with the threat
that they’re perceiving.
‘‘At the same time, their ability to recognize other things around them
may be diminished. So people who experience this report things like tunnel
vision for a diffuse sense of awareness . . . being focused and, in a way,
almost not able to focus on anything other than following what’s happening,
getting rid of the threat. People who experience this feel like they aren’t
necessarily in full control, but sometimes are like a passenger going on in
something like slow motion time to deal with the threat that’s being per-
ceived.’’
10
We further note that even if the court did abuse its discretion in excluding
Morgan’s testimony, it was harmless in the present case.
11
The defendant posed the following hypothetical question: ‘‘[A]ssuming
that the person wearing that gun and drawing that gun . . . does not have
the training and has physical handicaps, would that scenario be conducive
to an unintentional discharge under those circumstances?’’ Danas answered,
‘‘[q]uite likely, yes, sir.’’ The court noted that the defendant ‘‘said that his
case was going to rest on that one hypothetical.’’