State v. Fortin

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STATE OF CONNECTICUT v. MICHAEL
ROBERT FORTIN
(AC 42651)
Alvord, Moll and Devlin, Js.
Syllabus
Convicted, after a jury trial, of the crimes of manslaughter in the first degree
with a firearm and carrying a pistol without a permit, the defendant
appealed. The defendant’s conviction stemmed from an incident in which
he shot and killed the victim following a heated discussion and a brief
physical altercation. Prior to trial, the defendant filed a motion to pre-
clude the admission of evidence of certain incidents of prior misconduct,
which the state sought to offer to prove the identity of the defendant
as the shooter. At the hearing on the motion to preclude, the state
conceded that evidence regarding an incident in which the defendant
had shot his girlfriend, F, in the eye with a flare gun would not be
admissible, and the trial court advised the state that, if it sought to
introduce evidence of that incident, it should raise the issue outside the
presence of the jury so that the court could assess its admissibility. In
addition, the defendant offered an unsigned stipulation that he had shot
and killed the victim, but the state refused the defendant’s offer to
stipulate, and the trial court did not consider it in ruling on the motion.
Thereafter, the trial court denied in part the motion to preclude and
allowed the state to present to the jury evidence of certain instances
of misconduct related to the defendant’s prior use of the firearm that
was used to shoot and kill the victim. During trial, M, a state’s witness,
inadvertently testified regarding the flare gun incident. The defendant
immediately objected to M’s testimony, and the court sustained the
objection and instructed the jury to disregard it. At the conclusion of
M’s testimony, the defendant moved for a mistrial, arguing that M’s
testimony was prejudicial because, inter alia, F was expected to testify
for the state and she had a visible injury to her eye that she sustained
during the flare gun incident. The trial court denied the defendant’s
motion for a mistrial. Held:
1. The defendant could not prevail on his claim that the trial court improperly
allowed the state to introduce evidence of several instances of miscon-
duct involving his prior use of the firearm that was used to shoot and kill
the victim: contrary to the defendant’s contention that the misconduct
evidence lacked probative value and was unduly prejudicial to him
because his offer to stipulate that he had shot the victim with the firearm
obviated the state’s need to prove identity, the misconduct evidence
was indisputably probative to establishing the identity of the defendant
as the shooter of the victim, which was an issue that the defendant
contested from the inception of the investigation of the victim’s death
until the hearing on his motion to preclude the admission of that evi-
dence; moreover, the defendant’s reliance on Old Chief v. United States
(519 U.S. 172) for the proposition that the trial court erred in not balanc-
ing his offer to stipulate with the prejudicial effect of the misconduct
evidence was unavailing, as that case was distinguishable from the
present case, and the defendant’s offer was not a forthright concession
that he killed the victim and, therefore, there was no alternative evidence
of identity for the trial court to consider in weighing the probative value
of the misconduct evidence and its potential prejudice to the defendant.
2. The trial court did not abuse its discretion in denying the defendant’s
motion for a mistrial after M inadvertently testified regarding the flare
gun incident; although M’s testimony was improper, the trial court found,
and the record supported, that it was not invited by the state and that
it was isolated, and, immediately following M’s improper reference to
the flare gun incident, the court instructed the jury to disregard it, and,
therefore, even if M’s isolated statement could be view as being unduly
prejudicial to the defendant, any danger inherent in its admission would
have been cured by the court’s instruction, and this court deferred to
the trial court’s advantageous ability to observe the impact of M’s state-
ment on the jury.
3. The defendant could not prevail on his unpreserved claim that his constitu-
tional right to confrontation was violated when the trial court allowed
T, a state trooper, to testify that the first selectman of the town of
Andover told her that the defendant did not have a temporary town
permit to carry the firearm that he used to shoot and kill the victim;
the defendant’s claim failed under the fourth prong of State v. Golding
(213 Conn. 233) because the admission of T’s testimony was harmless
beyond a reasonable doubt, as the defendant did not challenge the
charge of carrying a pistol without a permit at trial, he did not object
to T’s testimony or cross-examine her and he testified that he was
illegally carrying the subject firearm at the time of the shooting, which
admission alone supported the jury’s verdict on the charge of carrying
a pistol without a permit.
Argued January 7—officially released April 7, 2020
Procedural History
Substitute information charging the defendant with
the crimes of murder, carrying a pistol without a permit
and risk of injury to a child, brought to the Superior
Court in the judicial district of Tolland, where the court,
Graham, J., denied in part the defendant’s motion to
preclude certain evidence; thereafter, the matter was
tried to the jury before Graham, J.; subsequently, the
court denied the defendant’s motion for a mistrial; ver-
dict and judgment of guilty of the lesser included
offense of manslaughter in the first degree with a fire-
arm and of carrying a pistol without a permit, and sen-
tence enhanced for the commission of a class A, B
or C felony with a firearm, from which the defendant
appealed. Affirmed.
Mark Rademacher, assistant public defender, for the
appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, was Matthew C. Gedansky, state’s
attorney, for the appellee (state).
Opinion
DEVLIN, J. The defendant, Michael Robert Fortin,
appeals from the judgment of conviction, rendered after
a jury trial, of manslaughter in the first degree with a
firearm in violation of General Statutes § 53a-55a and
carrying a pistol without a permit in violation of General
Statutes § 29-35 (a).1 On appeal, the defendant claims
that (1) the trial court improperly allowed the state to
introduce evidence of several instances of misconduct
stemming from his prior use of the firearm that was
used to shoot and kill the victim in this case, (2) the
trial court abused its discretion by denying his motion
for a mistrial after a state’s witness inadvertently testi-
fied regarding a prior incident involving the defendant’s
discharge of a flare gun that the state previously had
conceded, and the trial court ruled, was inadmissible,
and (3) his constitutional right to confrontation was
violated when the trial court allowed into evidence cer-
tain hearsay testimony that he did not have a permit to
carry a firearm. We affirm the judgment of conviction.
The jury reasonably could have found the following
facts. At approximately 9 p.m. on July 3, 2015, the defen-
dant rode his motorcycle to Lakeside Drive in Andover
to observe a fireworks display at Andover Lake. He
parked his motorcycle in the middle of a gravel right-
of-way that led to a boat launch and walked to the boat
launch to watch the fireworks.
John Totri and Jason Marchand, the victim, lived on
Lakeside Drive. Shortly after the defendant parked his
motorcycle, Totri and the victim, who had both been
drinking alcoholic beverages all day, approached the
defendant at the boat launch and demanded that he
move his motorcycle from the right-of-way. Following
a heated discussion, the defendant agreed to move his
motorcycle. As the defendant ‘‘took off’’ on his motorcy-
cle, small rocks were sprayed from the roadway toward
Totri and the victim. The victim ran after the defendant
but was unable to catch him. Totri and the victim then
went to the victim’s house to roast marshmallows in
his firepit.
Approximately one hour later, while Totri and the
victim were sitting by the firepit, the defendant returned
to Lakeside Drive. As the defendant dismounted his
motorcycle, he heard the voices of Totri and the victim
coming from the victim’s yard. The defendant
approached the victim’s yard with his helmet on and
‘‘a loaded gun with a round chambered.’’ The victim
‘‘bolted out of his chair’’ and ran into the roadway,
toward the defendant. After a brief physical altercation,
the defendant fired his gun into the ground. Approxi-
mately thirty seconds later, the defendant fired two
more shots, both of which hit the victim. The victim
ultimately collapsed in his yard, and the defendant fled
on his motorcycle. The victim was taken to a hospital
in an ambulance and was pronounced dead shortly
thereafter.
On the following day, the defendant, with the assis-
tance of his girlfriend, Carli Fandacone, disposed of his
gun and his motorcycle; he threw his gun into a swamp
and pushed his motorcycle off a bridge and into the
Connecticut River.
The lead case officer on the ensuing investigation,
Connecticut State Police Detective Jeffrey Payette,
issued a bulletin to law enforcement agencies in the
area to be on the lookout for a motorcycle that fled
the area of the crime scene on the night of July 3, 2015.
Payette undertook an investigation of other incidents
involving firearms in the Andover area, which ultimately
led him to the defendant, who was arrested on Novem-
ber 17, 2015. By way of a third amended substitute
information filed on April 6, 2017, the defendant was
charged with murder in violation of General Statutes
§ 53a-54a, carrying a pistol without a permit in violation
of § 29-35 (a), risk of injury to a child in violation of
General Statutes § 53-21 (a) (1), and commission of a
class A, B or C felony with a firearm in violation of
General Statutes § 53-202k.
Following a trial, the jury found the defendant guilty
of the lesser included offense of manslaughter with a
firearm and carrying a pistol without a permit.2 The
court imposed a total effective sentence of thirty-two
years incarceration, followed by ten years of special
parole.3 This appeal followed. Additional facts will be
set forth as necessary.
I
The defendant first claims that the court erred in
allowing the state to introduce evidence of misconduct
involving the defendant’s prior use of the firearm that
was used to shoot and kill the victim. Specifically, the
defendant argues that the court improperly admitted
the misconduct evidence because he had offered to
stipulate to the fact that he had shot the victim with
that firearm, thereby obviating the state’s need to prove
identity, and, thus, that the misconduct evidence lacked
probative value and was unduly prejudicial to him. We
are not persuaded.
The following additional background is relevant to
our consideration of this claim. On February 22, 2017,
the defendant filed a motion in limine to preclude the
admission into evidence of, inter alia, four instances of
misconduct relating to the firearm that was used to
shoot and kill the victim. Specifically, the defendant
sought to preclude evidence that (1) on May 21, 2014,
he stole that firearm from its lawful owner, (2) on Sep-
tember 25, 2014, he discharged that firearm on Hop
River State Park Trail, (3) in the fall of 2014, he threat-
ened another person by pointing that firearm at him,
and (4) between the summers of 2014 and 2015, he fired
that firearm. In his motion, the defendant argued that
the misconduct evidence was irrelevant and highly prej-
udicial.
On March 2, 2017, the court held a hearing on the
defendant’s motion to preclude. At that hearing, defense
counsel indicated that he had ‘‘prepared a stipulation
in which [the defendant] will stipulate that [he] fired
the [firearm] that resulted in the death of [the victim].’’
The court observed, and defense counsel acknowl-
edged, that the stipulation was unsigned. The state
refused the defendant’s offer to stipulate on the ground
that it had the burden to prove beyond a reasonable
doubt every element of the crimes with which the defen-
dant was charged and that it was entitled to do so
through the introduction of admissible evidence. The
state argued that, because there was, in fact, no stipula-
tion, the court could not consider it as alternative evi-
dence in assessing the admissibility of the challenged
misconduct evidence. The court agreed with the state,
and explained: ‘‘I can’t deal with theoretical stipula-
tions.’’ The court reasoned: ‘‘[I]f the two of you are
going to enter a stipulation later . . . then I’ve got to
ask myself . . . how that affects the prejudice versus
the probative. . . . I am saying that I’m being asked to
rule on these matters in advance of them being pre-
sented at trial, and if something significant changes,
such as a stipulation that proves out the very facts this
evidence is offered for, then I would reserve the right
to revisit this because . . . I think it affects the balanc-
ing of probative versus prejudicial. . . . So, I’m going
to proceed on the assumption [that] there is no stipula-
tion because there is no stipulation yet, and if it turns
out the stipulation occurs, then counsel will bring that
to my attention because it may affect my ruling.’’ The
court and the parties thus proceeded to discuss the
probative value versus the prejudicial effect of the
offered misconduct evidence in the absence of any stip-
ulation.
The court granted in part and denied in part the
defendant’s motion to preclude. The court summarized
its ruling as follows: ‘‘As to the theft of the firearm in
question, that it was stolen is—[the] motion [is] granted
as to the fact it was stolen, but only to that extent. As
to the discharge of the firearm on Hop River State Park
Trail, the motion [is] denied. As to the incidents where
the defendant pointed a firearm at someone in the fall
of 2014, it is—the motion is granted only to the extent
of the pointing of the firearm at someone, not otherwise,
and the motion is denied as to the extent it is that the
defendant possessed and fired a firearm between the
summers of 2014 and 2015.’’ The court thus allowed
the state to present evidence of the challenged instances
of prior misconduct to the jury in accordance with its
ruling. The defendant claims on appeal that the trial
court erred in so doing.
‘‘Evidence of a defendant’s uncharged misconduct is
inadmissible to prove that the defendant committed the
charged crime or to show the predisposition of the
defendant to commit the charged crime. . . . Excep-
tions to this rule have been recognized, however, to
render misconduct evidence admissible if, for example,
the evidence is offered to prove intent, identity, malice,
motive, a system of criminal activity or the elements of
a crime. . . . To determine whether evidence of prior
misconduct falls within an exception to the general
rule prohibiting its admission, we have adopted a two-
pronged analysis. . . . First, the evidence must be rele-
vant and material to at least one of the circumstances
encompassed by the exceptions. Second, the probative
value of such evidence must outweigh the prejudicial
effect of the other crime evidence. . . . [Because] the
admission of uncharged misconduct evidence is a deci-
sion within the discretion of the trial court, we will
draw every reasonable presumption in favor of the trial
court’s ruling. . . . We will reverse a trial court’s deci-
sion only [if] it has abused its discretion or an injustice
has occurred.’’ (Internal quotation marks omitted.)
State v. Abdus-Sabur, 190 Conn. App. 589, 603–604,
211 A.3d 1039, cert. denied, 333 Conn. 911, 215 A.3d
735 (2019).
Here, the state offered the challenged misconduct
evidence to prove identity, an exception to the general
rule that prior misconduct evidence is inadmissible.
The state argued that the prior misconduct evidence
was probative of identity because each of the four
instances of misconduct involved the defendant and his
use of the same firearm that was used to shoot and kill
the victim.4 It cannot reasonably be disputed that the
misconduct evidence was probative to establishing the
identity of the defendant as the shooter of the victim,
which was an issue that the defendant had contested
from the inception of the investigation of the victim’s
death until the hearing on his motion to preclude the
admission of that evidence, as the defendant denied his
presence at the boat launch on the night of July 3, 2015,
and disposed of both his firearm and his motorcycle to
avoid any connection of those items and himself to the
events of that night.
The defendant asserts on appeal that ‘‘[his] admission
that he fired the [firearm] in self-defense and killed the
victim deprived the misconduct [evidence] involving
possession of that gun of any probative value on the
issue of identity, or at the very least, rendered its proba-
tive value so slight that the prejudice was overwhelm-
ing.’’ The defendant argues that ‘‘the trial court was
bound to consider [his] admission when determining
the probative value of the misconduct and when
weighing against its prejudicial effect.’’ In so arguing,
the defendant relies on the United States Supreme
Court’s decision in Old Chief v. United States, 519 U.S.
172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997). In that
case, the petitioner, Johnny Lynn Old Chief, had been
charged pursuant to a federal statute that made it a
crime for any person who had been convicted of a crime
punishable by imprisonment for more than one year to
possess a firearm. Id., 174. Old Chief offered to stipulate
that he previously had been convicted of such a crime.
Id., 176. Old Chief also proposed that the court instruct
the jury that he ‘‘ha[d] been convicted of a crime punish-
able by imprisonment for a term exceeding one year.’’
(Internal quotation marks omitted.) Id. The prosecutor
declined to stipulate, and the District Court ruled that
he was not required to do so. Id., 177. At trial, the
prosecutor presented evidence that Old Chief pre-
viously had been convicted of assault and that such
assault resulted in serious bodily injury to the victim. Id.
On appeal, the United States Supreme Court concluded
that, because, under the relevant statute, ‘‘[t]he most
the jury need[ed] to know [was] that the conviction
admitted by [Old Chief fell] within the class of crimes
that Congress thought should bar a convict from pos-
sessing a gun, and this point may be made readily in a
defendant’s admission’’; id., 190–91; ‘‘the general pre-
sumption that the prosecution may choose its evidence’’
did not apply. Id., 191. Accordingly, the court concluded
that, because Old Chief had offered to stipulate to the
prior conviction, the admission into evidence of the
record of conviction of assault was unduly prejudicial
and constituted an abuse of discretion. See id., 191–92.
This case is distinguishable from Old Chief in that
the defendant here did not, as he now contends, offer
an ‘‘unequivocal admission’’ that he shot and killed the
victim. Rather, he offered to stipulate to those facts by
presenting to the trial court a purported stipulation that
neither he nor the state had signed. Although Old Chief
also offered to stipulate, he, in fact, presented the court
with a judicial admission of his felon status. Old Chief
provided to the court an instruction to be read to the
jury as evidence of that admission, presumably during
the state’s case-in-chief, thus obviating the state’s bur-
den of proving the defendant’s felon status. Here, the
defendant claimed, for the first time at the hearing on
his motion to preclude, that he was claiming self-
defense, and, thus, that the misconduct evidence was
unnecessary because he would stipulate that he shot
and killed the victim. The defendant did not offer an
admission of these facts; he did not propose a jury
instruction that the facts had been proven beyond a
reasonable doubt. He, nevertheless, argues that the trial
court was required to weigh his offer to so stipulate as
alternative evidence.5 The defendant’s offer consisted
of an unsigned stipulation and the representation that
he would testify that he shot the victim. A judicial admis-
sion is a voluntary and knowing concession of fact by
a party or a party’s attorney occurring during judicial
proceedings. See Kanopka v. Kanopka, 113 Conn. 30,
38–39, 154 A.144 (1931). Judicial admissions can take
the form of a stipulation but can also be concessions
by a party or an attorney. See King v. Spencer, 115
Conn. 201, 204, 161 A. 103 (1932); see generally E. Pres-
cott, Tait’s Handbook of Connecticut Evidence (6th Ed.
2019) §§ 8.13.2 (c) and 8.13.3 (a), pp. 522, 523–25. The
defendant’s offer was not a forthright concession that
he killed the victim, and, consequently, there was no
alternative evidence of identity for the trial court to
consider in weighing the probative value of the miscon-
duct evidence and its potential to prejudice the
defendant.
We further note that the ruling in Old Chief was
confined to Old Chief’s legal status as a felon, versus
evidence offered to prove ‘‘some issue other than status
. . . i.e. . . . identity . . . .’’ (Internal quotation
marks omitted.) Old Chief v. United States, supra, 519
U.S. 190. In Old Chief, ‘‘the issue [was] not whether
concrete details of the prior crime should come to the
jurors’ attention but whether the name or general char-
acter of that crime is to be disclosed. Congress, how-
ever, has made it plain that distinctions among generic
felonies do not count for this purpose; the fact of the
qualifying conviction is alone what matters under the
statute.’’ Id. The court in Old Chief explained: ‘‘The
most the jury needs to know is that the conviction
admitted by the defendant falls within the class of
crimes that Congress thought should bar a convict from
possessing a gun, and this point may be made readily in
a defendant’s admission and underscored in the court’s
jury instructions. Finally, the most obvious reason that
the general presumption that the prosecution may
choose its evidence is so remote from application here
is that proof of the defendant’s status goes to an element
entirely outside the natural sequence of what the defen-
dant is charged with thinking and doing to commit the
current offense. Proving status without telling exactly
why that status was imposed leaves no gap in the story
of a defendant’s subsequent criminality, and its demon-
stration by stipulation or admission neither displaces
a chapter from a continuous sequence of conventional
evidence nor comes across as an officious substitution,
to confuse or offend or provoke reproach.’’ Id., 190–91.
Here, unlike the statute at issue in Old Chief, which
required only that the prosecution prove that Old Chief
previously had been convicted of any felony, the rele-
vant crime with which the defendant was charged in
this case required the state to prove beyond a reason-
able doubt that the defendant shot and killed the victim.
Under these circumstances, the ‘‘standard rule that the
prosecution is entitled to prove its case by evidence
of its own choice, or, more exactly, that a criminal
defendant may not stipulate or admit his way out of
the full evidentiary force of the case as the [g]overnment
chooses to present it’’ clearly applies. Id., 186–87. Here,
the proof of the identity of the defendant as the shooter
was crucial to the narrative of the state’s case, even if
the defendant later admitted in his own testimony that
he shot and killed the victim, but that he did so in
self-defense.
On the basis of the foregoing, we conclude that the
defendant’s reliance on Old Chief for the proposition
that the court erred in not balancing his offer to stipulate
with the prejudicial effect of the challenged misconduct
evidence is unavailing. Accordingly, the defendant’s
challenge to the admission of that evidence must fail.
II
The defendant next claims that the trial court abused
its discretion by denying his motion for a mistrial after
a state’s witness inadvertently testified regarding a prior
incident involving the defendant that the state pre-
viously had conceded, and the trial court ruled, was
inadmissible. Specifically, the defendant claims that the
court should have ordered a mistrial after Dwayne
Mitchell, the defendant’s former cellmate, testified that
the defendant had previously shot Fandacone in the
eye with a flare gun, in contravention of the court’s
pretrial ruling. We disagree.
The following additional facts are relevant to this
claim. On February 22, 2017, the defendant filed a
motion in limine to preclude, inter alia, evidence that
the defendant shot Fandacone with a flare gun on Feb-
ruary 23, 2015. Due to that incident, Fandacone sus-
tained an injury resulting in the loss of her right eye,
requiring her to wear a prosthetic eye. At a hearing on
the motion in limine, the state conceded that the flare
gun incident would not be admissible in its case-in-
chief. The trial court advised the state that, if it sought
to introduce evidence of the flare gun incident, it should
raise the issue outside the presence of the jury so that
the court could assess its admissibility.
During the trial, the jury heard about the flare gun
incident during the state’s direct examination of Mitch-
ell. While discussing the various conversations that
Mitchell had with the defendant, the state asked Mitch-
ell to ‘‘take us through this series of conversations, how
it evolves from getting out of the country to more.’’
Mitchell testified that he asked the defendant what was
‘‘going on’’ besides his assault charge that was causing
him to want to get out of the country. Mitchell stated
that the defendant ‘‘said something about a murder . . .
somebody being shot.’’ He said that they started talking
about the assault and ‘‘that’s when [the defendant] told
me about shooting his girlfriend with a flare gun.’’ The
defendant immediately objected to Mitchell’s testi-
mony, and the trial court sustained the objection,
instructing the jury to ‘‘disregard the last answer in its
entirety. You will remove it from your minds, treat it
as though you’d never heard it.’’
After Mitchell concluded his testimony, the defendant
moved for a mistrial, arguing that the testimony about
the flare gun incident was prejudicial because it
‘‘involved violence with a gun’’ and because Fandacone
was expected to testify for the state and she had a
visible injury to her eye that was sustained during the
flare gun incident. The prosecutor countered that the
testimony about the flare gun incident was not solicited,
the court immediately gave a curative instruction, and
Fandacone’s injury was not visible. The trial court
denied the motion for a mistrial on the ground that it
had immediately given the jury a curative instruction,
and that ‘‘the brief mention of the flare gun incident
was not so prejudicial that it precludes a fair trial and
did not cause substantial and irreparable prejudice to
the defendant’s case. . . . [T]he court’s curative
[instruction] obviates any prejudice that did occur.’’
At the conclusion of the trial, the court reminded the
jury that it had ordered certain testimony and comments
stricken during the trial and instructed: ‘‘You should
disregard that testimony and those comments . . . and
you must not give them any weight whatsoever in your
deliberations.’’ The defendant now challenges the
denial of his motion for a mistrial.
‘‘[T]he principles that govern our review of a trial
court’s ruling on a motion for a mistrial are well estab-
lished. Appellate review of a trial court’s decision grant-
ing or denying a motion for a [mistrial] must take into
account the trial judge’s superior opportunity to assess
the proceedings over which he or she has personally
presided. . . . Thus, [a] motion for a [mistrial] is
addressed to the sound discretion of the trial court and
is not to be granted except on substantial grounds. . . .
In our review of the denial of a motion for [a] mistrial,
we have recognized the broad discretion that is vested
in the trial court to decide whether an occurrence at
trial has so prejudiced a party that he or she can no
longer receive a fair trial. The decision of the trial court
is therefore reversible on appeal only if there has been
an abuse of discretion. . . .
‘‘In reviewing a claim of abuse of discretion, we have
stated that [d]iscretion means a legal discretion, to be
exercised in conformity with the spirit of the law and
in a manner to subserve and not to impede or defeat
the ends of substantial justice. . . . In general, abuse
of discretion exists when a court could have chosen
different alternatives but has decided the matter so
arbitrarily as to vitiate logic, or has decided it based
on improper or irrelevant factors. . . . Therefore, [i]n
those cases in which an abuse of discretion is manifest
or where injustice appears to have been done, reversal
is required.’’ (Internal quotation marks omitted.) State
v. Holley, 327 Conn. 576, 628, 175 A.3d 514 (2018).
On appeal, the defendant argues that the trial court
abused its discretion when it denied the motion for a
mistrial after Mitchell ‘‘blurted out that the defendant
shot his girlfriend in the eye with a flare gun.’’ The
defendant contends that he was prejudiced by Mitchell’s
testimony because the jury would be able to observe
that, as a result of the defendant shooting her in the eye
with a flare gun, Fandacone had a glass eye. Contrary
to the defendant’s assertions, Mitchell did not testify
that the defendant shot Fandacone in the eye; nor was
there any mention of any injury to Fandacone. The
record likewise does not support the defendant’s claim
that Fandacone’s eye injury was visible or noticeable
to the jury.
Although Mitchell’s testimony was improper, the
court found, and the record supports, that it was not
invited by the state and was an isolated statement.
Immediately following the improper reference to the
flare gun incident, the court instructed the jurors to
disregard it and to put it out of their minds. ‘‘[E]ven
improperly admitted evidence of this nature may not
prove to be harmful when the court takes adequate
corrective measures.’’ Duncan v. Mill Management Co.
of Greenwich, Inc., 308 Conn. 1, 23, 60 A.3d 222 (2013).
‘‘It is well settled that the jury is presumed to follow
the court’s curative instructions in the absence of some
indication to the contrary . . . . Thus, [a] jury is nor-
mally presumed to disregard inadmissible evidence
brought to its attention unless there is an overwhelming
probability that the jury will not follow the trial court’s
instructions and a strong likelihood that the inadmissi-
ble evidence was devastating . . . .’’ (Internal quota-
tion marks omitted.) Modaffari v. Greenwich Hospital,
157 Conn. App. 777, 785, 117 A.3d 508, cert. denied, 319
Conn. 904, 122 A.3d 1279 (2015). Moreover, ‘‘[t]he trial
judge can gauge the tenor of the trial . . . and can
detect those factors, if any, that could improperly have
influenced the jury.’’ (Internal quotation marks omit-
ted.) Childs v. Bainer, 235 Conn. 107, 113, 663 A.3d
398 (1995). Thus, even if Mitchell’s isolated statement
referencing the flare gun incident could be viewed as
being unduly prejudicial to the defendant, any danger
inherent in its admission would have been cured by the
court’s instruction, and we defer to the trial court’s
advantageous ability to observe the impact of that iso-
lated statement on the jury. Accordingly, we conclude
that the trial court did not abuse its discretion in denying
the defendant’s motion for a mistrial.
III
Finally, the defendant claims that his sixth amend-
ment right to confrontation was violated when the court
allowed a state trooper to testify that the first selectman
of the town of Andover had told her that the defendant
did not have a temporary town permit to carry the
firearm that he used to shoot and kill the victim. We
are unpersuaded.
Brianna Tassinari, a Connecticut state trooper
assigned to the special licensing and firearms unit, testi-
fied that there was no record showing that the defen-
dant possessed a state permit to carry a pistol or
revolver on July 3, 2015. Tassinari conducted a further
check with the town of Andover, the defendant’s place
of residence, to ascertain whether the town had issued
a temporary sixty day permit during that time period.
Tassinari testified that she ‘‘contacted the first select-
man directly, and he said that—it had neither been
issued nor denied at that time.’’ The defendant did not
object to Tassinari’s testimony.
The defendant claims on appeal that Tassinari’s testi-
mony constituted testimonial hearsay, the admission of
which violated his constitutional right to confrontation
and deprived him of a fair trial. Because the defendant’s
claim is unpreserved, we review it pursuant to State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
as modified by In re Yasiel R., 317 Conn. 773, 781,
120 A.3d 1188 (2015),6 as the defendant requests in his
appellate brief. Even if we assume, arguendo, that Tassi-
nari’s testimony was inadmissible testimonial hearsay
that violated the defendant’s right to confrontation, we
conclude that his claim fails under the fourth prong of
Golding because any alleged violation was harmless.
‘‘Whether a constitutional violation is harmless in a
particular case depends upon the totality of the evi-
dence presented at trial. . . . If the evidence may have
had a tendency to influence the judgment of the jury,
it cannot be considered harmless. . . . Whether such
error is harmless in a particular case depends upon
a number of factors, such as the importance of the
[evidence] in the prosecution’s case, whether the [evi-
dence] was cumulative, the presence or absence of evi-
dence corroborating or contradicting the [evidence]
. . . and, of course, the overall strength of the prosecu-
tion’s case. . . . Most importantly, we must examine
the impact of the evidence on the trier of fact and the
result of the trial. . . . The state bears the burden of
proving that the error is harmless beyond a reasonable
doubt.’’ (Internal quotation marks omitted.) State v.
Smith, 156 Conn. App. 537, 561–62, 113 A.3d 103, cert.
denied, 317 Conn. 910, 115 A.3d 1106 (2015).
Here, the defendant did not challenge the charge of
carrying a pistol without a permit at trial. As noted, the
defendant did not object to Tassinari’s testimony nor
did he cross-examine her or challenge her testimony
in any other way. In fact, the defendant testified that
he was ‘‘illegally carrying’’ the gun with which he shot
the victim on July 3, 2015.7 The defendant’s admission
alone supports the jury’s guilty verdict on the charge
of carrying a pistol without a permit.8 We thus conclude
that the admission of Tassinari’s testimony regarding
her conversation with the first selectman of the town
of Andover was harmless beyond a reasonable doubt.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The jury acquitted the defendant of murder and risk of injury to a child.
2
The jury also found, pursuant to § 53-202k, that the defendant committed
manslaughter using a firearm.
3
The court enhanced the sentence for the manslaughter conviction in
accordance with § 53-202k.
4
The state represented to the court that the bullet casings recovered
from the scene of each of the locations where the instances of misconduct
occurred matched the bullet casings recovered from the crime scene in
this case.
5
That evidence, however, would have been presented to the jury only
when and if the defendant himself testified. Of course, because the state
could not compel the defendant to testify during the presentation of its
case, it would have had to rest its case without that evidence and gambled
on the defendant so testifying. At oral argument before this court, counsel
for the defendant acknowledged this potential issue but suggested that the
state could have moved to reopen the evidence if the defendant failed to
testify in accordance with the proposed stipulation.
6
Under Golding, ‘‘a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail.’’ (Emphasis in original; footnote
omitted.) State v. Golding, supra, 213 Conn. 239–40.
7
Although the arguments of counsel are not evidence, it is noteworthy that
defense counsel acknowledged in his closing argument that the defendant
‘‘should not have had that gun.’’
8
The defendant argues that his admission could have been interpreted
by the jury as pertaining to the fact that he had stolen the firearm. Although
that is one possible, albeit unlikely, interpretation of the defendant’s testi-
mony, ‘‘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 evidence that supports
the jury’s verdict of guilty.’’ (Internal quotation marks omitted.) State v.
Crewe, 193 Conn. App. 564, 570, 219 A.3d 886, cert. denied, 334 Conn. 901,
219 A.3d 800 (2019).