State v. Edwards ( 2020 )

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STATE OF CONNECTICUT v. LAMONT EDWARDS
(SC 19899)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
Convicted of, among other crimes, murder, conspiracy to commit murder,
assault in the first degree, and conspiracy to commit assault in the first
degree in connection with an incident in which two men opened gunfire
on a car and killed a fifteen year old victim and seriously injured two
other victims, the defendant appealed to this court, claiming, inter alia,
that the trial court improperly had admitted certain out-of-court state-
ments by two witnesses, T and M, identifying the defendant as the
shooter and improperly instructed the jury on third-party culpability by
omitting the names of certain potential third-party culprits. On the day
of the shooting, the defendant was attending a social gathering at which
numerous other individuals were present, including F, T, C, M and H.
The defendant had driven F and an unidentified man wearing a do-rag
or a hat to the social gathering in a car that the defendant had been
renting for approximately three weeks, but F was separated from the
defendant shortly after arriving. At some point thereafter, two armed
men approached a black car that was stopped in the vicinity and began
shooting into the vehicle. The shooters then ran toward the defendant’s
parked car, entered it, and fled the scene, at which point a nearby driver
recorded its license plate number. The following day, the defendant
spoke to T and C and told them that he had ‘‘done it’’ but that the driver
of the black car had been the intended target, not the fifteen year old
victim. Subsequently, M came forward and stated to the police that he
had seen the defendant by the driver’s side of the black car during the
shooting and that the defendant was one of the shooters. The defendant
thereafter was arrested while attempting to flee Connecticut for Califor-
nia. At the defendant’s trial, the state questioned M on direct examination
regarding his statements to the police, but M maintained that he could
not recall making those statements or the events surrounding the shoot-
ing. The trial court admitted into evidence a portion of a transcript of
testimony that M previously had given to a federal grand jury in which
M stated that he observed the shooter on the driver’s side of the black
car wearing clothes similar to clothing the defendant had been wearing
earlier on the day of the shooting and that he also observed the shooters
run to the defendant’s car. During redirect examination, the trial court
twice overruled defense counsel’s hearsay objection and permitted the
state to question M regarding his statements to the police. The state
subsequently questioned W, a detective with the New Haven Police
Department, about what M had told W about the shooting, but defense
counsel objected to that line of questioning on hearsay grounds, and
the trial court sustained the objection. The state then objected when
defense counsel asked W, on cross-examination, about his interviews
of two eyewitnesses to the shooting who had been unable to identify
the defendant as the shooter. The trial court overruled the state’s objec-
tion but cautioned that the door would be open for the state to question
W, during its redirect examination, regarding who had identified the
shooter. During redirect examination, the state then asked W how many
people had identified the defendant as the shooter, and defense counsel
objected, not on the basis of hearsay but because the testimony would
be cumulative. The court overruled counsel’s objection, and W testified
that M, H, and T, who did not testify at the defendant’s trial, had identified
the defendant as one of the shooters. Thereafter, the defendant submit-
ted a request to charge the jury with a third-party culpability instruction
that named six individuals as potential culprits, including F and J, who
was a friend of the defendant, whose fingerprints and DNA were found
in the defendant’s car, and who had been arrested on unrelated charges
while in possession of a mask similar to one identified by witnesses as
being worn by one of the shooters. At a charge conference, the trial
court granted the defendant’s request for a third-party culpability instruc-
tion but determined that there was sufficient evidence to require the
charge only as to J. Defense counsel countered that there was sufficient
evidence to require a third-party instruction as to F, and the court
responded that it would either give a general instruction without naming
anyone or one that named only J. Following closing arguments, the
court held a second charge conference, at which it reiterated that it
would either name only J or refer generally to a third party, and, after
the defendant repeated his preference for naming both F and J, the
court gave an instruction that omitted the names of the potential third-
party culprits. On appeal from the judgment of conviction, held:
1. The defendant’s claim that the trial court improperly admitted hearsay
evidence by allowing W to testify that M and T had identified the defen-
dant as one of the shooters was unpreserved and, accordingly, was
unreviewable: although defense counsel objected on hearsay grounds
to W’s testimony during the state’s direct examination regarding M’s
out-of-court statements to the police, including M’s identification of the
defendant as one of the shooters, counsel’s sole stated basis for objecting
to W’s testimony, during redirect examination, regarding M’s and T’s
statements identifying the defendant as one of the shooters was that it
was cumulative, and, accordingly, counsel failed to apprise the trial
court that he continued to object to the admission of the challenged
out-of-court statements on the basis of hearsay.
2. The defendant could not prevail on his claim that the admission, through
W’s testimony, of T’s out-of-court statement identifying the defendant
as the shooter violated his right to confrontation because, even if the
admission of that statement violated the defendant’s right to confronta-
tion, any such error was harmless: the state satisfied its burden of
proving that any error in admitting T’s statement was harmless beyond
a reasonable doubt, as that statement, which was cumulative of other
evidence and which the state did not rely on or refer to during closing
argument, was inconsequential in light of the overwhelming, indepen-
dent evidence of the defendant’s guilt, including testimony from numer-
ous witnesses placing the defendant at the crime scene and demonstra-
ting that he drove there in the car in which the shooters later fled,
testimony from multiple witnesses that the defendant was one of the
shooters, testimony from two witnesses that the defendant admitted
that he was involved in the shooting, evidence establishing that the
defendant was motivated by revenge against the driver of the black car,
who previously had flirted with the defendant’s girlfriend, K, and whose
friends had been involved in an altercation with K’s son several months
before the shooting, and evidence of the defendant’s consciousness of
guilt, including evidence that the defendant returned the rental car the
morning after the shooting, K’s testimony that the defendant had denied
hearing about the shooting the night it occurred but later devised and
implemented a plan to flee to California in K’s car, and evidence that
the defendant was apprehended with $1000 in cash and a California
address programmed in a navigation device in K’s car.
3. The trial court did not abuse its discretion in declining to include the
names of J and F in its third-party culpability instruction to the jury:
although the trial court did not provide the jury with the exact instruction
that the defendant sought due to that court’s determination that there
was sufficient evident to support a third-party culpability instruction as
to J only, the court included the substance of the requested instruction,
namely, that evidence had been presented that a third party may have
committed the crimes for which the defendant was charged, which was
consistent with the court’s indication at two charge conferences that it
would name only J in the instruction or refer generally to third parties,
and with the defendant’s stated preference that he did not want to omit
F from the instruction; moreover, there was little evidence supporting
a direction connection between F and the offenses with which the
defendant was charged, and, even if this court had concluded that the
trial court was required to identify J by name in the instruction, it was
not reasonably possible that the jury was misled by the omission of J’s
name, as the court’s instruction required the jury to consider the evi-
dence presented implicating any third party, which necessarily included
J, the defendant presented evidence implicating J, and defense counsel
referred to J’s possible culpability during closing argument, and, accord-
ingly, the court’s instruction provided the jury with sufficient guidance
to allow it to consider all of the third-party culpability evidence and to
determine the defendant’s guilt in light of such evidence.
Argued September 19, 2019—officially released February 25, 2020
Procedural History
Substitute information charging the defendant with
two counts each of the crimes of assault in the first
degree and conspiracy to commit assault in the first
degree, and one count each of the crimes of murder,
conspiracy to commit murder, carrying a pistol without
a permit and criminal possession of a firearm, brought
to the Superior Court in the judicial district of New
Haven, where the charges of assault in the first degree,
conspiracy to commit assault in the first degree, mur-
der, conspiracy to commit murder and carrying a pistol
without a permit were tried to the jury before B.
Fischer, J.; verdict of guilty of two counts of assault
in the first degree and one count each of conspiracy to
commit assault in the first degree, murder, conspiracy
to commit murder and carrying a pistol without a per-
mit; thereafter, the charge of criminal possession of a
firearm was tried to the court; finding of guilty; judg-
ment in accordance with the jury’s verdict and court’s
finding of guilt, from which the defendant appealed to
this court. Affirmed.
Vishal K. Garg, for the appellant (defendant).
Nancy L. Walker, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Seth R. Garbarsky, senior assistant state’s
attorney, for the appellee (state).
Opinion
KAHN, J. The defendant, Lamont Edwards, appeals1
from the trial court’s judgment of conviction of various
crimes in connection with his involvement in a shooting
on a crowded New Haven street in which a fifteen
year old boy died and two individuals were seriously
injured.2 The defendant claims that the trial court
improperly admitted the out-of-court statements of two
witnesses identifying him as the shooter in violation of
the hearsay rule and that the admission of one of those
two statements, made by a witness who did not testify
at trial, also violated his constitutional right to confront
the witnesses against him. The defendant also claims
that the trial court’s third-party culpability instruction
improperly omitted the names of the potential third-
party culprits. As to the admission of the two out-of-
court statements, the state responds that this court
should decline to review the defendant’s challenge to
their admission because the defendant failed to pre-
serve his evidentiary challenge and the record is inade-
quate to review his constitutional challenge. In the alter-
native, the state contends that the defendant (1) opened
the door to that evidence, and (2) even if the admission
was improper, this court should nonetheless affirm the
trial court’s judgment on the basis that any evidentiary
error was not harmful and any constitutional error was
harmless beyond a reasonable doubt. In response to
the defendant’s challenge to the trial court’s third-party
culpability instruction, the state argues that the instruc-
tion was sufficient because the law does not require
that the court include the name or names of the alleged
third-party culprits. We affirm the judgment of the
trial court.
The jury reasonably could have found the following
facts. On the evening of August 8, 2014, fifteen year old
Jacob Craggett was with his brother Joshua Craggett
and their cousins, Timothy Jones (TJ) and Jerray Jack-
son, in front of their grandmother’s home at 21 Vernon
Street in New Haven. They had arrived there sometime
after 5:30 p.m. Between fifteen and twenty people were
outside on Vernon Street that evening, smoking mari-
juana, talking and listening to music. Others present
that evening included the defendant, who goes by the
street name ‘‘Duce,’’ Christopher Hudson, Tora Moss,
Richard Foster, Matthew Mitchell, Sonjay Gallimore
and Jessica Carter.
A number of those present on Vernon Street, includ-
ing Carter, Foster, Moss and the defendant, had been
at a dice game at Chapel Park earlier that day. After
leaving Chapel Park, Foster encountered mechanical
problems with his car and called the defendant, who
came to pick him up. When Foster entered the defen-
dant’s car, there was a third person there, a stranger
who wore a do-rag or a hat. The three men drove to
Vernon Street, and, when they arrived, the defendant
parked his rental car on Davenport Avenue, near the
intersection of Vernon and Davenport. At first, Foster,
the defendant and the stranger were walking down Ver-
non Street together, greeting everyone there. At some
point, however, the defendant said he had to go ‘‘holler’’
at someone, and he and Foster became separated. Fos-
ter recalled that the defendant walked toward the rear
of the parking lot of 23 Vernon Street—that was the
last that Foster saw of the defendant that evening. He
could not be certain whether the stranger remained
with the defendant. About five or ten minutes later,
as Foster was commiserating with Moss about their
respective monetary losses at the dice game, he heard
the sound of gunshots.
Shortly before the shooting started—a bit before 9
p.m.—TJ, Joshua, Jacob and Jerray decided to leave
Vernon Street. TJ offered them a ride in his car. The
side and rear windows of TJ’s Volkswagen Jetta were
darkly tinted, and the front passenger door was broken
and could be opened only from the outside. TJ drove
down Vernon Street toward Davenport Avenue. Joshua
sat in the front passenger seat, Jacob was behind him
in the backseat and Jerray was in the backseat on the
driver’s side behind TJ.
TJ came to the stop sign at the corner of Vernon
and Davenport and waited while traffic passed. Within
moments, TJ and his passengers heard gunshots and
the sound of bullets hitting the car. Joshua and Jacob
were each shot. Jacob did not survive his injuries. Mitch-
ell was standing near 23 Vernon Street at the time of
the shooting, which was not far from the corner of
Vernon and Davenport. As the gunshots were ringing
out, Mitchell saw a man running down the street, shout-
ing: ‘‘What is [Duce] doing? Josh is in the car.’’ From
his location, Mitchell could see that there were two
shooters, and that at least one of them was standing
on the driver’s side of the Jetta. He could see that one
of the shooters—he could not recall where this person
was standing in relation to the Jetta—wore clothing
similar to what the defendant had been wearing when
Mitchell saw him at the dice game at Chapel Park earlier
that day. Mitchell later told the police that he had been
able to identify the defendant as one of the shooters.
Hudson, Jerray’s brother, was standing in front of 23
Vernon Street when the Jetta came to the intersection
of Vernon and Davenport. When the Jetta came to a
stop, Hudson saw two black males running toward the
car. They stood on both sides of the car, then started
shooting into the front of the passenger compartment.
Hudson was unable to identify the shooter on the pas-
senger side of the Jetta, but he identified the defendant
as the shooter on the driver’s side. After Jacob was
shot, Hudson saw the shooters run toward the defen-
dant’s car, which was parked in front of the home of
Moss’ mother at 122 Davenport Avenue. The defendant
had to run past the front of the Jetta to get to his car.
The shooters then entered the defendant’s car and drove
down Davenport Avenue in the direction of the hospital.
Joshua attempted to walk down Vernon Street, asking
people for help, but he soon passed out.
When she heard the sound of gunshots coming from
behind her, Kristen Constantopoulos was in her car
on Davenport Avenue, stopped at a traffic light at the
intersection of Howard Avenue and Davenport Avenue,
headed downtown. In her rearview mirror, Constanto-
poulos saw someone run to a silver car that was parked
on Davenport Avenue at the corner of Vernon Street
and jump into the passenger side. The car then started
traveling down Davenport Avenue toward her, speeding
so fast that she thought it would collide with her car.
As the traffic light turned green, the car swerved around
her and continued to the next traffic light. As the car
passed her, Constantopoulos made note of the New
York license plate number and recorded the plate num-
ber in her phone. When Detective Michael Wuchek of
the New Haven Police Department ran the plate number
provided by Constantopoulos, he discovered that it
belonged to a gray Kia Optima that was registered to
Avis, a rental car company. The defendant had rented
the Kia on July 14, 2014, and returned the car to Avis
the day after the shooting, on August 9, 2014.3
The night of the shooting, Keisha Hodges, the defen-
dant’s girlfriend, was sleeping when her children woke
her and told her that the defendant was at the door.
Although Hodges could not recall specifically the time
of the defendant’s visit, she did recall that he said that
he had just come from Vernon Street, where he had
been drinking with friends, including Moss. He did not
mention that there had been a shooting on Vernon Street
that night. While the defendant was at her home, how-
ever, Hodges saw coverage of the shooting on the news
and asked him what had happened. He told her that he
did not know.
The day after the shooting, Moss contacted Carter,
Jerray’s sister, and asked her to meet him that evening
in the parking lot outside her home on Vernon Street.
When they met, they spoke together about the shooting
for a few minutes, after which Moss offered to make a
phone call to the defendant. He spoke to the defendant
briefly, then placed the phone on speaker and had Car-
ter come close so she could hear the conversation. She
heard the defendant say, ‘‘[d]amn, Jess.’’ She asked,
‘‘what the hell happened out there?’’ The defendant
responded that he had been there the night before and
he had ‘‘done it’’ but that he had not known ‘‘the kids
were in the car.’’ He expressed remorse and explained
that the shooting ‘‘wasn’t meant for the kids; it was
meant for TJ.’’ He observed, however, that ‘‘what’s done
is done,’’ and, he added, he could not ‘‘take it back.’’
Sometime during the weekend following the shoot-
ing, the defendant told Hodges that he wanted to go to
California to stay with her brother until he ‘‘cleared his
name.’’ On Monday, the defendant asked Hodges to
marry him, and they were married that day at city hall
in New Haven. The following day they left for California,
with plans to stop first in New York. The defendant was
apprehended when the state police stopped Hodges’
car somewhere between Stamford and Greenwich. The
defendant initially gave his brother’s name to the police
but, when confronted, said, ‘‘[a]h, you got me.’’ The
defendant was arrested and Hodges’ car was towed to
the New Haven police garage.
The state charged the defendant in an eight count
information with murder, conspiracy to commit mur-
der, two counts of assault in the first degree, two counts
of conspiracy to commit assault in the first degree,
carrying a pistol without a permit, and criminal posses-
sion of a firearm. See footnote 2 of this opinion. The
charge for criminal possession of a firearm was tried
to the court; the remaining counts were tried to the
jury. The defendant was found not guilty of one count
of conspiracy to commit assault. He was convicted of
the remaining seven counts. The trial court subse-
quently sentenced the defendant to a total effective
sentence of eighty-five years.4 This appeal followed.
I
ADMISSION OF OUT-OF-COURT IDENTIFICATIONS
The defendant challenges the admission of the out-of-
court statements of two witnesses, Moss and Mitchell,
identifying the defendant as one of the shooters. The
defendant claims that both statements were admitted in
violation of the hearsay rule. The defendant additionally
contends that the admission of the statement of Moss,
who did not testify at the defendant’s trial, violated his
constitutional right to confront the witnesses against
him. We address each of these claims in turn.
A
Hearsay
The defendant first claims that the admission of both
statements violated the rule against hearsay. The state
contends that, because defense counsel did not object
to the admission of the out-of-court identifications on
the basis of hearsay at the time that Wuchek testified
to the identifications and, instead, objected on the basis
that the testimony was cumulative, the defendant failed
to preserve this claim. The defendant responds that,
because defense counsel previously objected on the
basis of hearsay to testimony regarding Mitchell’s out-
of-court identification of the defendant during both
Mitchell’s and Wuchek’s testimony, counsel was not
required to reiterate that objection in order to preserve
it.5 In the event that we were to conclude that the claim
is unpreserved, the defendant asserts that it was plain
error.6 We conclude that the defendant failed to pre-
serve this claim.
The following additional facts and procedure are rele-
vant to this claim. We begin with a general overview.
The state met with limited success when it attempted
to elicit testimony from Mitchell that he previously had
identified the defendant as the shooter.7 The state first
questioned Mitchell regarding his prior testimony to a
federal grand jury. When Mitchell testified that he was
unable to recall that testimony, the state questioned
him regarding statements he had made to the police,
but Mitchell said that he did not recall making those
statements. The state subsequently questioned Wuchek
regarding Mitchell’s statements to the police. Wuchek’s
testimony—that, in Mitchell’s statement to the police,
Mitchell claimed that he saw the defendant standing
on the driver’s side of the Jetta during the shooting—
is the testimony that the defendant challenges as
improper hearsay.
The details of Mitchell’s and Wuchek’s testimony, as
well as the arguments of counsel and rulings of the trial
court, provide helpful context for our consideration of
whether the defendant properly apprised the trial court
of the basis of defense counsel’s objection. Mitchell
acknowledged in his testimony that he was at Vernon
Street on the night of the shooting and that, prior to
the shooting, he was at the dice game at Chapel Park.
He denied, however, that he saw the defendant at
Chapel Park or at Vernon Street, and, when the state
pressed, he stated he did not recall whether he had
seen the defendant. On the basis of Mitchell’s repeated
testimony that he could not recall the events of the
night of the shooting, the state sought permission to
treat him as a hostile witness, which the court denied.
The state next unsuccessfully attempted to use the tran-
script of Mitchell’s prior testimony before a federal
grand jury to refresh his recollection, asking him a
series of questions about his testimony and establishing
that, as to the bulk of that testimony, Mitchell could
not recall it.8 The trial court denied the state’s request
during direct examination to admit Mitchell’s testimony
contained in the prior grand jury transcript pursuant
to this court’s decision in State v. Whelan, 200 Conn.
743, 753–54, 513 A.2d 86, cert. denied, 479 U.S. 994,
107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). The trial court
indicated that it would consider it after cross-examina-
tion and subsequently granted the state’s motion to
admit some portions of the transcript of Mitchell’s grand
jury testimony as a full exhibit.
During cross-examination, Mitchell testified that he
never stated in his testimony to the grand jury that he
saw the defendant shooting at the Jetta. He also testified
during cross-examination that he told neither the grand
jury nor the police what either of the shooters was
wearing. On redirect examination, the state questioned
Mitchell regarding statements he had made to the police
shortly after the shooting. The court overruled defense
counsel’s hearsay objection on the basis that ‘‘this is
what [Mitchell’s] telling the police.’’ The state then went
through a detailed set of questions regarding Mitchell’s
statements to the police, asking with respect to each
individual statement whether Mitchell recalled making
it. Each time, Mitchell responded that he did not recall
making the statement. Most significant, over defense
counsel’s objection on the basis of hearsay, the state
was permitted to ask Mitchell if he recalled telling the
police that he saw the defendant on the driver’s side
of the Jetta during the shooting. This question was per-
mitted after the witness had been asked and testified
on cross-examination that he had never told the grand
jury that he saw the defendant shooting at the Jetta. In
overruling defense counsel’s objection, the court
explained that defense counsel would have the opportu-
nity to address Mitchell’s identification during recross-
examination. Mitchell responded to the question by tes-
tifying, however, that he did not recall making that
statement to the police.
When the state subsequently questioned Wuchek, he
testified that, two days after the shooting, he met with
Mitchell, who had come forward as a ‘‘concerned citi-
zen.’’ The state then asked Wuchek: ‘‘What did [Mitchell]
tell you in regard to this investigation?’’ Defense counsel
objected to the ‘‘entire line’’ of questioning on the basis
of hearsay. The state responded that it did not seek to
introduce the testimony for its truth but to impeach
Mitchell because he had denied making all of the state-
ments to the police. Outside the presence of the jury,
the state proffered the line of questions it intended
to ask Wuchek regarding numerous statements that
Mitchell had made to him on August 10, 2014, including
Mitchell’s statement that he ‘‘recalled seeing [the defen-
dant] on the driver’s side of the Jetta during the shoot-
ing.’’ Defense counsel reiterated his objection on the
basis of hearsay. The court sustained defense counsel’s
objection and observed that the statements Mitchell
had made to the police covered ‘‘the same topics that
were reviewed in the grand jury testimony for the
most part.’’
During cross-examination, defense counsel ques-
tioned Wuchek regarding his interviews of two persons
who, although present at Vernon Street on the night
of the shooting, were unable to identify the shooters.
Specifically, during direct examination, Wuchek testi-
fied that he had interviewed both Deja Antrum and
T’Naisha Brown, neither of whom testified at trial. On
cross-examination, defense counsel elicited testimony,
over the state’s objection on the basis of hearsay, that
Antrum and Brown had been unable to identify the
shooters. The state argued that, if the court allowed
defense counsel to elicit these hearsay statements, it
would seek to introduce the out-of-court statements
of ‘‘other witnesses [who] did make [identifications].’’
When defense counsel claimed the question for pur-
poses of exploring the scope of the state’s investigation,
the court stated: ‘‘So, then, on redirect, he could go
into the [witnesses] who allegedly did [identify] other
people. Is that . . . .’’ Defense counsel reiterated his
position that, because Wuchek had testified during
direct examination that he had interviewed the two
witnesses, his questions regarding what those witnesses
said during the interviews went to the scope of
Wuchek’s investigation. The court allowed the line of
questioning but cautioned counsel that, if he pursued
it, the court might allow the state to inquire about wit-
nesses who were able to identify the defendant as a
shooter.
Defense counsel asked Wuchek whether Antrum and
Brown had identified the defendant as one of the shoot-
ers. Wuchek answered that neither of them had.
Wuchek then acknowledged that the defendant regu-
larly frequented the Vernon Street area and, therefore,
that he was known to people in that neighborhood.
The following day, on redirect examination, the state
asked Wuchek: ‘‘How many people identified the defen-
dant as the shooter?’’ Defense counsel objected, but
not on the basis of hearsay. Instead, defense counsel
claimed that the testimony would be cumulative, stat-
ing: ‘‘There’s testimony with respect to identification
of this defendant already.’’ The court overruled that
objection, and Wuchek testified that Hudson, Moss and
Mitchell had identified the defendant as one of the
shooters. Moss did not testify at trial.9
‘‘[T]he standard for the preservation of a claim alleg-
ing an improper evidentiary ruling at trial is well settled.
This court is not bound to consider claims of law not
made at the trial. . . . In order to preserve an eviden-
tiary ruling for review, trial counsel must object prop-
erly. . . . In objecting to evidence, counsel must prop-
erly articulate the basis of the objection so as to apprise
the trial court of the precise nature of the objection
and its real purpose, in order to form an adequate basis
for a reviewable ruling. . . . Once counsel states the
authority and ground of [the] objection, any appeal will
be limited to the ground asserted.’’ (Internal quotation
marks omitted.) State v. Jorge P., 308 Conn. 740, 753,
66 A.3d 869 (2013). ‘‘We have explained that these
requirements are not simply formalities.’’ State v.
Miranda, 327 Conn. 451, 465, 174 A.3d 770 (2018). ‘‘[A]
party cannot present a case to the trial court on one
theory and then seek appellate relief on a different one
. . . . For this court to . . . consider [a] claim on the
basis of a specific legal ground not raised during trial
would amount to trial by ambuscade, unfair both to the
[court] and to the opposing party.’’ (Internal quotation
marks omitted.) Council v. Commissioner of Correc-
tion, 286 Conn. 477, 498, 944 A.2d 340 (2008). ‘‘Thus,
because the essence of preservation is fair notice to
the trial court, the determination of whether a claim
has been properly preserved will depend on a careful
review of the record to ascertain whether the claim on
appeal was articulated below with sufficient clarity to
place the trial court on reasonable notice of that very
same claim.’’ (Internal quotation marks omitted.) State
v. Miranda, supra, 465; see also Practice Book § 5-5
(‘‘[w]henever an objection to the admission of evidence
is made, counsel shall state the grounds upon which it
is claimed or upon which objection is made, succinctly
and in such form as he or she desires it to go upon the
record, before any discussion or argument is had’’).
Our review of the trial transcripts persuades us that
defense counsel did not adequately apprise the trial
court that he continued to object on the basis of hearsay
to Wuchek’s testimony regarding the statements of
Moss and Mitchell. Although defense counsel had
objected to that testimony on that basis when the state
tried to elicit it during its direct examination of Wuchek,
defense counsel’s sole stated ground for the objection,
on redirect examination the following day, was that the
testimony would be cumulative. The trial court cannot
reasonably be expected to anticipate that defense coun-
sel intended—in addition to the presently stated
ground—to reiterate his previously stated ground for
objecting to the identifications. A trial is a fluid process,
and parties adapt their strategies in light of procedural
developments. Trial courts are not required to inquire
whether a party’s failure to raise a prior ground for
objection is an inadvertent omission as opposed to an
evolving strategy. In the present case, for example, it
would have been possible for defense counsel, after
successfully introducing the out-of-court statements of
Antrum and Brown over the state’s hearsay objection
and after the court’s caution that his questioning may
open the door to similar questions by the state on redi-
rect, to view his hearsay objection as no longer viable. If
defense counsel arrived at that conclusion, a reasonable
strategy would be to attempt to circumvent that issue
by relying on an entirely different basis for objecting
to Wuchek’s testimony regarding witnesses who did
identify the defendant. It is incumbent on the parties,
not the court, to properly articulate the present basis
for an objection. Defense counsel’s hearsay objection
was not preserved.
B
Confrontation Clause
Pursuant to this court’s decision in State v. Golding,
213 Conn. 233, 567 A.2d 823 (1989), the defendant seeks
review of his claim that the admission of the out-of-
court identification of the defendant by Moss, who did
not testify at the defendant’s trial, violated his constitu-
tional right to confront the witnesses against him.10 The
state responds, first, that the record is inadequate to
review the defendant’s claim and, second, that there
was no violation of the defendant’s right to confronta-
tion because defense counsel opened the door to the
testimony regarding Moss’ statement. Third, in the event
that this court concludes that the testimony violated
the defendant’s right to confrontation, the state argues
that any error was harmless beyond a reasonable doubt.
We agree with the state’s third contention. Assuming
without deciding that the admission of Moss’ out-of-
court identification of the defendant violated his right to
confrontation, we conclude that any error was harmless
beyond a reasonable doubt.
We first address the state’s contention that the defen-
dant’s claim is unreviewable.11 Under Golding, the
defendant can prevail ‘‘only if all of the following condi-
tions are met: (1) the record is adequate to review the
alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . 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.’’ (Emphasis in
original; footnote omitted.) State v. Golding, supra, 213
Conn. 239–40; see In re Yasiel R., 317 Conn. 773, 781,
120 A.3d 1188 (2015) (modifying third prong of Gold-
ing). The state contends that, because the record does
not disclose whether Moss’ statement was admitted for
its truth or simply to show the extent of the police
investigation, the record is inadequate for review. We
disagree. It is undisputed that no limiting instruction
was given to the jury as to this testimony. In the absence
of any such limiting instruction, the jury was entitled
to consider the evidence for its substance. See, e.g.,
State v. Adams, 327 Conn. 297, 309–10, 173 A.3d 943
(2017) (‘‘in the absence of a limiting instruction, the
finder of fact is entitled to draw any inferences from
the evidence that it reasonably would support’’ [internal
quotation marks omitted]). Accordingly, the record is
adequate for review.
We conclude that, even if the admission of the testi-
mony regarding Moss’ out-of-court identification of the
defendant violated his constitutional right to confront
the witnesses against him, any error was harmless
beyond a reasonable doubt. Accordingly, the defen-
dant’s claim fails on the fourth prong of Golding.
This court has long recognized that ‘‘a violation of
the defendant’s right to confront witnesses is subject
to harmless error analysis . . . . In undertaking this
analysis, the test for determining whether a constitu-
tional [error] is harmless . . . is whether it appears
beyond a reasonable doubt that the [error] complained
of did not contribute to the verdict obtained. . . . In
addition, [w]hen an [evidentiary] impropriety is of con-
stitutional proportions, the state bears the burden of
proving that the error was harmless beyond a reason-
able doubt.’’ (Citations omitted; internal quotation
marks omitted.) State v. Wilson, 308 Conn. 412, 420, 64
A.3d 91 (2013). ‘‘This court has held in a number of
cases that when there is independent overwhelming
evidence of guilt, a constitutional error would be ren-
dered harmless beyond a reasonable doubt. . . . [W]e
must examine the impact of the evidence on the trier
of fact and the result of the trial. . . . If the evidence
may have had a tendency to influence the judgment of
the jury, it cannot be considered harmless. . . . That
determination must be made in light of the entire record
[including the strength of the state’s case without the
evidence admitted in error].’’ (Internal quotation marks
omitted.) State v. Artis, 314 Conn. 131, 159, 101 A.3d
915 (2014). Additional factors that we have considered
in determining whether an error is harmless in a particu-
lar case include the importance of the challenged evi-
dence to the prosecution’s case, whether it is cumula-
tive, the extent of cross-examination permitted, and the
presence or absence of corroborating or contradicting
evidence or testimony. See State v. Smith, 289 Conn.
598, 628, 960 A.2d 993 (2008).
We must determine whether the state has demon-
strated beyond a reasonable doubt that the introduction
of Moss’ out-of-court identification of the defendant did
not contribute to the defendant’s conviction. We first
consider the strength of the state’s case. The evidence
of guilt was compelling. The state’s case was comprised
of the following components: witnesses (other than
Moss) who placed the defendant at the scene; witnesses
who identified the defendant as the shooter; two wit-
nesses to whom the defendant admitted his guilt; testi-
mony and evidence establishing that the shooters fled
from the scene in the defendant’s rental car, which was
parked at the corner of Vernon Street and Davenport
Avenue at the time of the shooting; testimony establish-
ing that the defendant’s motive for the shooting was
vengeance against TJ; and consciousness of guilt
evidence.
Multiple witnesses—Mitchell, in his statement to the
police, and Foster, Hodges, Gallimore, and Hudson—
placed the defendant at Vernon Street at the time of
the shooting. The testimony of Foster, Gallimore and
Hodges, taken together, established that the defendant
went from Chapel Park to Vernon Street, then to
Hodges’ home after the shooting. Foster testified that
he and the defendant both were at the dice game at
Chapel Park earlier that day and that the defendant gave
him a ride to Vernon Street after Foster had mechanical
problems with his car.12 Foster said that the defendant
parked his car in the vicinity of the home of Moss’
mother at 122 Davenport Avenue, and that he, the defen-
dant and a person unknown to Foster, who had been
in the car with them, walked down Vernon Street. Foster
also testified that the shooting started within five to
ten minutes after he lost sight of the defendant and the
stranger. Although she did not see who was shooting
at the Jetta, Gallimore recalled that, immediately after
the shots were fired, she saw the defendant at the corner
of Vernon Street and Davenport Avenue, heading down
Davenport in the direction of the hospital. Hodges testi-
fied that, when she saw the defendant later that evening,
he told her he had just come from Vernon Street.
The state also presented evidence that both Hudson
and Mitchell identified the defendant as one of the
shooters. Both witnesses knew the defendant prior to
the shooting. Hudson testified that he saw the defendant
standing on the driver’s side of the Jetta and shooting
at it. He then saw the defendant run in front of the Jetta
toward his rental car, which was parked in front of the
home of Moss’ mother. Hudson saw the defendant get
into the driver’s side of the vehicle; the other shooter got
into the passenger side, and they drove down Davenport
Avenue in the direction of the hospital.
Although Hudson had given two previous statements
in which he claimed he could not see who the shooter
was, both Foster and Mitchell corroborated his testi-
mony that he saw the defendant shooting at the Jetta.
Specifically, Foster testified that, during the shooting,
Hudson was running down Vernon Street, shouting, ‘‘is
that Duce . . . why are they wilding?’’ ‘‘Why did Duce
do that?’’ In his testimony to the federal grand jury, a
portion of which was admitted as a full exhibit, Mitchell
confirmed that, during the shooting, a person was run-
ning down Vernon Street shouting, ‘‘what is Duce doing?
Josh is in the car.’’ During trial, Hudson explained that
the reason he did not initially identify the defendant as
the shooter was because he feared for the safety of
his family.
As we discussed in part I A of this opinion, Wuchek
testified that, two days after the shooting, Mitchell came
forward as a concerned citizen and identified the defen-
dant as one of the shooters. Additionally, Mitchell’s
grand jury testimony corroborated some of the details
of Hudson’s testimony: that the defendant was on the
driver’s side of the Jetta and that the shooters ran to
the defendant’s car, then drove off. Specifically, in his
grand jury testimony, Mitchell recalled that the shooter
who was on the driver’s side of the Jetta wore clothing
similar to what the defendant had been wearing at the
dice game. He also testified to the grand jury that, after
the shooters stopped firing, they ran down Davenport
Avenue toward the home of Moss’ mother.
The state also presented evidence that, on two sepa-
rate occasions, the defendant admitted to the shooting.
Carter testified that, on the day after the shooting, the
defendant told her that he did it, and that the intended
victim was TJ, not ‘‘the kids.’’ The state also presented
the testimony of a jailhouse informant, Chamar Vick,
who stated that he knew the defendant and that, at
some point after the shooting, he and the defendant
were in court at the same time. Although he did not
expressly admit to Vick that he was one of the shooters,
the defendant told Vick: ‘‘Wrong time, wrong place. It
was meant for somebody else.’’ The defendant told Vick
that the bullet had not been meant for Jacob, and that
the intended target was a person named Noone, an
associate of TJ. The defendant also told Vick that the
reason for the shooting had to do with Hodges and her
son, Tyeshon Johnson, known as Mook.13
The state also presented evidence demonstrating that
the defendant drove his rental car, a Kia Optima, to
Vernon Street on the night of the shooting, parked the
Kia in front of 122 Davenport Avenue, near the corner
of Vernon and Davenport, and that, when the shooters
stopped firing, they ran to the defendant’s Kia, got in and
drove down Davenport in the direction of the hospital.14
Witness testimony and evidence established that, in the
weeks leading up to the shooting, the defendant had
been driving a gray Kia Optima with New York plates
that he rented from Avis. Foster’s testimony established
that the defendant drove the Kia from Chapel Park to
Vernon Street that evening and parked the car in front
of 122 Davenport Avenue. Mitchell, Hudson, Gallimore
and Constantopoulos provided testimony that estab-
lished that the shooters ran to the Kia, got in and drove
down Davenport. Through the testimony of Constanto-
poulos, the state proved that the fleeing vehicle had a
New York license plate number of GRB3413. Carter
testified that the defendant’s rental car had New York
plates. The state produced a rental agreement between
the defendant and Avis, which demonstrated that the
defendant rented from Avis a gray Kia Optima, with a
New York license plate number of GRB3413. The rental
agreement indicates that the defendant picked up the
Kia on July 14, 2014, and that he returned the car to
Avis the morning after the shooting, at 10:21 a.m. on
August 9, 2014. Hodges testified that she never saw
anyone other than the defendant drive the Kia.
The state also presented evidence of the defendant’s
possible motive for the shooting. The state’s theory was
that TJ was the target of the shooting, and the defendant
sought revenge against TJ for two reasons: TJ’s friends
had been involved in an altercation with Hodges’ son,
Mook, several months before the shooting, and TJ had
‘‘hit on’’ Hodges. Carter testified that the defendant told
her that TJ was the intended target of the shooting.
Vick testified that the defendant told him the reason
for the shooting was because Mook ‘‘wasn’t getting the
job done.’’ TJ and Hodges testified regarding the alterca-
tion between TJ’s friends and Mook. TJ also acknowl-
edged that he knew Hodges and, when asked if he had
tried to ‘‘mess around’’ with her, responded: ‘‘She’s a
pretty decent looking woman, of course I tried, why
wouldn’t I?’’
The state presented evidence of consciousness of
guilt as well, most notably the defendant’s attempt sev-
eral days after the shooting to leave the state. Hodges’
testimony established that, within days after the shoot-
ing, the defendant formulated and implemented a plan
to travel to California and to stay with Hodges’ brother,
who lived there. Hodges testified that, at some point
during the weekend following the shooting, the defen-
dant asked her to contact her brother in San Bernardino,
California, to ask if they could visit him there for a few
days. The defendant told Hodges that he wanted to go
to California, ‘‘[u]ntil he cleared his name.’’ She testified
that they planned to leave Tuesday morning to drive to
California, and that, before they left, she entered her
brother’s address in the GPS system that she placed in
her car along with a notepad on which she had written
her brother’s address and contact information. In sup-
port of Hodges’ testimony, the state produced as evi-
dence items that were seized from the passenger com-
partment of Hodges’ car when the police stopped
Hodges and the defendant somewhere between Stam-
ford and Greenwich. Specifically, the state produced
the GPS and notepad. The notepad indicates the address
of Hodges’ brother, along with his telephone number.
The GPS screen shows a search entered into the device
for that address. The state also produced as evidence
items seized from the trunk of the car—the bags and
clothing that Hodges and the defendant had packed for
the trip. Wuchek testified that, when they apprehended
the defendant, the police also recovered more than
$1000 in cash from him.
The defendant’s behavior at the time that he was
apprehended provided further evidence of conscious-
ness of guilt. David Acosta, an officer with the New
Haven Police Department, who was working with the
United States Marshal Service Violent Fugitive Task
Force at the time of these events, testified that, when
the state police stopped Hodges’ car close to the New
York border, the defendant initially gave the name of
his brother, James Edwards. As a result, Acosta had to
approach the vehicle and identify the defendant. When
Acosta asked the defendant if he was ‘‘done playing
games now,’’ the defendant responded by putting his
hands up and saying, ‘‘[a]h, you got me.’’
As additional evidence of the defendant’s conscious-
ness of guilt, the state elicited testimony from Hodges
establishing that, when he arrived at her home on the
night of the shooting, the defendant was less than forth-
coming about what had happened while he was at Ver-
non Street that evening. She testified that he told her
that he had just come from drinking with friends at
Vernon Street. He said nothing, however, about the
shooting that had taken place on Vernon Street that
evening. When Hodges saw the news about the shooting
on television and asked him what happened, the defen-
dant stated that he did not know. Other evidence of
consciousness of guilt included evidence that the defen-
dant returned the Kia Optima to Avis on the morning
following the shooting and Vick’s testimony that the
defendant told him to say nothing.
We consider it significant that, although the state
alluded in its closing argument to the fact that Moss
did not testify, it did not rely on or even refer to Moss’
out-of-court identification of the defendant. Instead, the
state focused on the evidence outlined in this opinion,
namely, the identifications by Hudson and Mitchell, Fos-
ter’s testimony placing the defendant and his car at the
scene, Carter’s and Vick’s testimony that he admitted
his guilt, the attempted flight to California, and Con-
stantopoulos’ testimony regarding the defendant’s
license plate. It is also significant that Moss’ out-of-
court identification was not an important part of the
state’s case against the defendant. Instead, the evidence
was cumulative, and Moss’ identification was corrobo-
rated by the independent identifications by Hudson and
Mitchell. See State v. Smith, supra, 289 Conn. 628. In
light of the fact that the state did not rely on Moss’
identification, and, considering Moss’ identification of
the defendant in the context of the overwhelming evi-
dence presented by the state, particularly the two inde-
pendent identifications of the defendant as one of the
shooters, we conclude that, even if the admission of
Moss’ out-of-court identification violated the defen-
dant’s right to confrontation, any error was harmless
beyond a reasonable doubt.
II
THIRD-PARTY CULPABILITY CHARGE
We next address the defendant’s claim that the trial
court’s third-party culpability instruction improperly
omitted the names of Roy Jones III and Foster, and
instead stated: ‘‘There has been evidence that a third
party, not the defendant, committed the crimes for
which the defendant is charged.’’ (Emphasis added.)
The defendant contends that the charge was improper
because it differed in substance from the charge that
he had requested and was inadequately adapted to the
issues before the jury. The state responds that the trial
court’s failure to give a charge in exact conformance
to the defendant’s request did not render the charge
improper because the charge as given by the court was
sufficient. We agree with the state.
The following additional procedural facts are relevant
to our resolution of this claim. In the court’s first charge
conference, it began by confirming that both the state
and defense counsel had reviewed the court’s proposed
charge to the jury. The court then ran through the pro-
posed charges, asking the parties whether they had
any objections to them. In his request to charge, the
defendant had listed six individuals with respect to
whom he believed there was sufficient evidence to
require a third-party culpability instruction. The court
informed the parties that, pursuant to its review of the
record, it agreed that there was sufficient evidence to
require the charge, but only as to Jones; the court sug-
gested that it did not believe that there was sufficient
evidence to justify the charge as to the remaining five
individuals.15 When defense counsel argued that there
was also sufficient evidence to require a third-party
culpability instruction as to Foster, the court offered
to give the instruction without mentioning any names.
Defense counsel responded that he would prefer to
have the court name the potential third-party culprits.
The court reiterated its ruling that it would name only
Jones in the instruction. The court then added: ‘‘Listen,
you obviously have the right . . . in your closing argu-
ment to go through what you say with all these other
people. There’s no limitations on that.’’
In defense counsel’s closing argument, he referenced
Jones once, in connection with the other individuals
he had identified as potential third-party culprits: ‘‘Then
there’s different possibilities of who could be involved
in this. We heard the name Roy Jones, James Edwards
whose fingerprints are in the car, James Asti Butler
fingerprints, Tyshaun Johnson who has a motive, Calvin
Moss, Michael Singletary, Tavares Johnson, and the
detective’s testimony was it—I ruled everyone out. He
testified he couldn’t rule people out.’’ Defense counsel
referred to Foster a number of times during closing
argument, suggesting that the jury should question
whether to credit his testimony. He pointed out that
Foster had been granted immunity in connection with
his testimony and emphasized that Foster’s white t-shirt
and do-rag were consistent with a description of one
of the shooters.
When the court held a second charge conference
following closing arguments, the court initially stated
that it would name both Jones and Foster in its third-
party culpability instruction. After the parties reviewed
the revised proposed charge during a break, the state
took exception to the third-party culpability charge and
reminded the court that it had offered the defense a
choice between a charge that named only Jones, or one
that simply referred to ‘‘third parties.’’ Defense counsel
recalled the first charge conference differently, and
stated his belief that the court had earlier determined
that it would name both Foster and Jones. The court
agreed with the state that its earlier ruling was that it
would either name only Jones in the charge or refer
generally to ‘‘third parties,’’ and inquired of defense
counsel which he would prefer. After defense counsel
indicated his preference for retaining the charge naming
both Foster and Jones, the court stated that it would
modify the charge to refer generally to ‘‘third parties,’’
without naming any individual third parties.
The trial court charged the jury as follows: ‘‘I next
want to talk to you about third-party culpability. There
has been evidence that a third party, not the defendant,
committed the crimes for which the defendant is
charged. This evidence is not intended to prove the
guilt of the third party but is part of the total evidence
for you to consider. The burden remains on the state
to prove each and every element of the offense beyond
a reasonable doubt. It is up to you, and to you alone,
to determine whether any of this evidence, if believed,
tends to directly connect a third party to the crimes
with which the defendant is charged. If, after a full and
fair consideration and comparison of all the evidence
you have left in your minds a reasonable doubt indicat-
ing that an alleged third or alleged third parties may be
responsible for the crimes, the defendant is charged—
is charged with committing, then it would be your duty
to render a verdict of not guilty as to the [defendant].’’
‘‘We begin with the well established standard of
review governing the defendant’s challenge[s] to the
trial court’s jury instruction. Our review of the defen-
dant’s claim requires that we examine the [trial] court’s
entire charge to determine whether it is reasonably
possible that the jury could have been misled by the
omission of the requested instruction. . . . While a
request to charge that is relevant to the issues in a case
and that accurately states the applicable law must be
honored, a [trial] court need not tailor its charge to the
precise letter of such a request. . . . If a requested
charge is in substance given, the [trial] court’s failure
to give a charge in exact conformance with the words
of the request will not constitute a ground for reversal.
. . . As long as [the instructions] are correct in law,
adapted to the issues and sufficient for the guidance
of the jury . . . we will not view the instructions as
improper. . . . Additionally, we have noted that [a]n
[impropriety] in instructions in a criminal case is revers-
ible . . . when it is shown that it is reasonably possible
for [improprieties] of constitutional dimension or rea-
sonably probable for nonconstitutional [improprieties]
that the jury [was] misled.’’ (Internal quotation marks
omitted.) State v. Baltas, 311 Conn. 786, 808–809, 91
A.3d 384 (2014).16
The defendant’s claim that he was entitled to have
the court name Foster and Jones in the third-party cul-
pability charge is squarely governed by the principle
that, ‘‘[i]f a requested charge is in substance given, the
[trial] court’s failure to give a charge in exact confor-
mance with the words of the request will not constitute
a ground for reversal.’’ (Internal quotation marks omit-
ted.) Id., 809. The defendant requested a charge
instructing the jury that evidence had been presented
that a third party may have committed the crime with
which the defendant was charged. The trial court gave
that charge in substance but did not give the charge
exactly as requested by the defendant due to the trial
court’s finding that, of the six persons as to whom the
defendant requested the third-party culpability charge,
there was sufficient evidence only as to Jones to support
giving the charge. For that reason, the court offered
the defendant a choice between two alternatives: the
charge would name Jones—and only Jones—individu-
ally, or the charge would refer to ‘‘parties’’ and refrain
from naming any specific individuals. Because defense
counsel indicated that he did not want to omit Foster
from consideration as a potential third-party culprit,
the court did not refer to any individuals by name. That
approach was consistent with the court’s statement to
defense counsel during the first charge conference,
prior to closing argument, that he was free to pursue
his third-party culpability defense as to any and all of
six individuals the defendant had named in his original
request to charge.
The court’s ruling also was consistent with its earlier
determination that there was sufficient evidence only
as to Jones to support giving the charge. That determi-
nation, which is subject to review for abuse of discre-
tion; see, e.g., State v. Jackson, 304 Conn. 383, 424, 40
A.3d 290 (2012); precluded the trial court from granting
defense counsel’s request to name Foster in the third-
party culpability charge. It is well established that ‘‘[a]
request to charge [that] is relevant to the issues of [a]
case and [that] is an accurate statement of the law must
be given. . . . If, however, the evidence would not rea-
sonably support a finding of the particular issue, the
trial court has a duty not to submit it to the jury. . . .
Thus, a trial court should instruct the jury in accordance
with a party’s request to charge [only] if the proposed
instructions are reasonably supported by the evidence.’’
(Emphasis added; internal quotation marks omitted.)
State v. Baltas, supra, 311 Conn. 810.
Our review of the record persuades us that the trial
court’s determination that the evidence supported nam-
ing Jones, but not Foster, in the third-party culpability
instruction was not an abuse of discretion. In the con-
text of a third-party culpability charge, the trial court’s
determination of relevance turns on the distinction
between a ‘‘direct connection’’ between the third party
and the crime as opposed to a ‘‘bare suspicion . . . .’’
State v. Arroyo, 284 Conn. 597, 610, 935 A.2d 975 (2007);
see id. (‘‘if the evidence pointing to a third party’s culpa-
bility, taken together and considered in the light most
favorable to the defendant, establishes a direct connec-
tion between the third party and the charged offense,
rather than merely raising a bare suspicion that another
could have committed the crime, a trial court has a
duty to submit an appropriate charge to the jury’’).
The trial court, in determining that the evidence was
insufficient to support naming Foster in the third-party
culpability charge, implicitly found that, although the
evidence was sufficient to establish a direct connection
between Jones and the crime, it did not rise to the same
level with respect to Foster.
The record supports the trial court’s determination.
Evidence presented at trial linking Jones to the crime
was sufficient to rise above a ‘‘bare suspicion’’ and
included Wuchek’s testimony that, during the course
of his investigation of the shooting, he identified Jones,
who was friends with Foster, Moss and the defendant,
as a suspect. Wuchek also testified that Jones’ finger-
prints and DNA were found in the defendant’s Kia
Optima. When Wuchek followed up on the alibi that
Jones provided, he was unable to verify it. Finally, some
witnesses at the scene of the shooting described one
of the shooters as having worn a mask.17 When Jones
was subsequently taken into custody in a separate mat-
ter, the police seized from his vehicle a mask that was
similar to the one described by witnesses to the
shooting.
As to Foster, there was little evidence supporting
a direct connection between him and the crime. He
admitted that he wore a white t-shirt and a do-rag on
the night of the shooting, which was consistent with a
witness’ description of what one of the shooters was
wearing. He also admitted that he arrived at Vernon
Street with the defendant in the defendant’s car. The
defendant also points to inconsistencies between Fos-
ter’s account of his whereabouts during the shooting,
which placed him in front of 23 Vernon Street and away
from the intersection with Davenport Avenue, and the
accounts of others, who did not recall seeing Foster
immediately prior to or after the shooting. On this
record, we conclude that it was not an abuse of discre-
tion for the court to decline to name Foster in the third-
party culpability charge.
Finally, even if we were to conclude that the trial
court was required to identify Jones by name in the
charge, we conclude that there is no reasonable possi-
bility that the jury was misled by the omission of Jones’
name.18 The defendant had presented evidence implicat-
ing Jones, and defense counsel referred to Jones’ possi-
ble culpability during closing argument.19 By directing
the jury to consider evidence that had been presented
implicating a ‘‘third party,’’ the court’s charge required
the jury to consider evidence implicating any third
party, including both Jones and Foster.20 The court’s
instruction, therefore, provided the jury with sufficient
guidance to allow it to consider all of the third-party
culpability evidence and to determine the defendant’s
guilt in light of such evidence.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The defendant appealed to this court pursuant to General Statutes § 51-
199 (b) (3), which authorizes a direct appeal to this court ‘‘in any criminal
action involving a conviction for a . . . class A felony . . . for which the
maximum sentence which may be imposed exceeds twenty years . . . .’’
2
The defendant was convicted of murder in violation of General Statutes
(Rev. to 2013) § 53a-54a, conspiracy to commit murder in violation of General
Statutes (Rev. to 2013) § 53a-54a and General Statutes § 53a-48 (a), two
counts of assault in the first degree in violation of General Statutes § 53a-
59 (a) (5), conspiracy to commit assault in the first degree in violation of
§§ 53a-59 (a) (5) and 53a-48, carrying a pistol without a permit in violation
of General Statutes § 29-35 (a), and criminal possession of a firearm in
violation of General Statutes (Rev. to 2013) § 53a-217.
3
Several witnesses testified that the defendant had been driving a rental
car in the weeks preceding the shooting. Descriptions of the car varied—
some reported that it was silver, others said it was bronze, and most wit-
nesses recalled that the car was a Hyundai.
4
The defendant was sentenced as follows: fifty years on count one for
murder; fifteen years on count two for assault in the first degree, to run
consecutive to count one; fifteen years on count three for assault in the
first degree, to run consecutive to counts one and two; twenty years on
count four for conspiracy to commit murder, to run concurrently with count
one; fifteen years on count six for conspiracy to commit assault in the first
degree, to run concurrently with counts one and four; five years on count
seven for carrying a pistol without a permit, to run consecutive to counts
one, two and three; and five years on count eight for criminal possession
of a firearm, to run concurrently with counts one, four, six and seven.
5
In his initial brief, the defendant relies solely on his hearsay objection
to Mitchell’s testimony. Only in his reply brief does the defendant claim
that he adequately apprised the trial court of the basis of his objection to
Wuchek’s testimony regarding the out-of-court statements during Wuchek’s
direct examination.
6
As to the defendant’s claim that the admission of the out-of-court state-
ments is reversible under the plain error doctrine, we conclude that the
defendant has failed to demonstrate that the alleged error ‘‘is indeed plain
in the sense that it is patent [or] readily [discernible] on the face of a factually
adequate record, [and] also . . . obvious in the sense of not debatable.’’
(Internal quotation marks omitted.) State v. Weatherspoon, 332 Conn. 531,
552, 212 A.3d 208 (2019). As we repeatedly have emphasized, ‘‘[an appellant]
cannot prevail . . . unless he demonstrates that the claimed error is both
so clear and so harmful that a failure to reverse the judgment would result
in manifest injustice.’’ (Emphasis omitted; internal quotation marks omitted.)
State v. McClain, 324 Conn. 802, 812, 155 A.3d 209 (2017). The defendant
has not satisfied this stringent standard.
7
During the state’s direct examination, Mitchell initially suggested that
his memory of the events surrounding the shooting may have been affected
by the fact that he had been prescribed the medication Seroquel sometime
around 2012 or 2013. When the state followed up, however, and asked him
whether his memory was ‘‘fuzzy,’’ Mitchell responded: ‘‘I had some problems
so went to a doctor and therapist that, you know, probably around . . .
probably 2012, [2013], and first was prescribed Seroquel.’’ The following
colloquy ensued:
‘‘[The Prosecutor]: That wasn’t the question, sir. The question is, your
memory about [August 8, 2014] is fuzzy?
‘‘[The Witness]: I wouldn’t say that particular day but my memory about
days are fuzzy.’’
Subsequently, on cross-examination, Mitchell denied taking Seroquel on
the night of the shooting, as the following colloquy demonstrates:
‘‘[Defense Counsel]: Okay. Okay. And on August 8, 2014, being diagnosed
with bipolar, and having it, whether prescribed or not, had you taken it
that day?
‘‘[The Witness]: I don’t remember.
‘‘[Defense Counsel]: Okay. Is it possible you may have taken it that day?
‘‘[The Witness]: No.
‘‘[Defense Counsel]: It’s possible or it’s not?
‘‘[The Witness]: No.’’
No evidence or expert testimony was offered regarding the effects of
Seroquel.
8
Specifically, the state elicited testimony that Mitchell could not recall
telling the grand jury that he saw two individuals running up to a vehicle
before the gunshots were fired, he was standing at a fence and facing Vernon
Street when the shooting occurred, he had seen the shooters earlier that
day, he observed the position of the shooters relative to the targeted vehicle,
the shooters had two different types of guns, someone was running down
the street shouting, ‘‘what is Duce doing? Josh is in the car,’’ and that the
clothing that the defendant wore earlier that day was similar to the clothing
worn by one of the shooters.
9
On the second day of trial, December 9, 2016, the state informed the
court that it would delay the testimony of Moss, who had been scheduled
to testify that morning, until the afternoon because his attorney had a
scheduling conflict. The state subsequently informed the court that it had
determined not to call Moss until December 12, 2016.
10
The sixth amendment to the United States constitution provides in
relevant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him . . . .’’ This right
applies to the states through the due process clause of the fourteenth amend-
ment to the federal constitution. See, e.g., Pointer v. Texas, 380 U.S. 400,
406, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); see also Conn. Const., art. I, § 8.
11
The state does not rely on its claim that the defendant ‘‘opened the
door’’ to argue that the defendant’s Golding claim is unreviewable. See, e.g.,
Independent Party of CT—State Central v. Merrill, 330 Conn. 681, 723–24,
200 A.3d 1118 (2019) (observing that ‘‘Golding review is not available when
the claimed constitutional error has been induced by the party claiming it’’).
Instead, the state argues that defense counsel’s cross-examination of Wuchek
opened the door to Wuchek’s testimony that Moss identified the defendant
as one of the shooters, necessitating the conclusion that the defendant’s
right to confrontation was not violated. The state therefore relies on its
‘‘opening the door’’ theory to argue that the defendant cannot prevail on
the merits of the confrontation claim.
12
Mitchell, in his grand jury testimony, and Carter confirmed that the
defendant had been at the Chapel Park dice game prior to the shooting.
13
During cross-examination of Vick, the defendant highlighted Vick’s sta-
tus as an incarcerated jailhouse informant and suggested that Vick was
testifying in the hope of getting a deal. The state elicited testimony from
Vick that, on the morning of Vick’s testimony, the defendant told Vick to
say nothing. The defendant told Vick that he knew where Vick’s family lived
and correctly gave Vick his family’s address.
14
In light of the overwhelming evidence presented by the state that the
defendant parked his rental car, a gray Kia Optima with New York plates,
in front of 122 Davenport Avenue, and that the car was used by the shooters
to flee the scene, we consider it immaterial that many witnesses were
unable to recall the make, model and color of the vehicle. See footnote 3
of this opinion.
15
The state objected to the third-party culpability charge on the ground
that, because its theory of the case was that there were two shooters, the
fact that there may be sufficient evidence to implicate Jones as one of the
shooters did not entitle the defendant to a third-party culpability charge.
The state explained that, even if the jury were to find that Jones was one
of the shooters, it could find that the defendant was his coconspirator or
accessory. Having heard argument on the issue, the trial court agreed with
the defendant that—as to Jones—a third-party culpability instruction was
justified because the evidence was sufficient to establish a direct connection
between Jones and the crime.
16
Citing to State v. Inglis, 151 Conn. App. 283, 296–97, 94 A.3d 1204, cert.
denied, 314 Conn. 920, 100 A.3d 851 (2014), cert. denied, 575 U.S. 918, 135
S. Ct. 1559, 191 L. Ed. 2d 647 (2015), the state claims that the ‘‘reasonably
probable’’ standard for nonconstitutional improprieties applies when a
defendant challenges the omission of a third-party culpability charge or
claims that the charge given was improper. Notwithstanding the Appellate
Court’s decision in Inglis, this court’s decision in Baltas controls. In Baltas,
we applied the constitutional standard to review the defendant’s challenge
to the trial court’s denial of his request for a third-party culpability instruc-
tion. See State v. Baltas, supra, 311 Conn. 808.
17
As the defendant emphasizes on appeal, witnesses provided diverging
accounts of the clothing worn by the perpetrators. Those descriptions
included a white tank top, black cargo shorts and a do-rag or mask, khaki
shorts and white t-shirts.
18
We reject the defendant’s assertion that, in this court’s decision in State
v. Arroyo, supra, 284 Conn. 597, we implicitly recognized ‘‘that a third-party
culpability charge naming a particular third-party culprit had some substance
not contained within the standard jury instructions concerning identity, the
presumption of innocence, and the burden of proof.’’ We first observe that,
in contrast to the present case, the trial court in Arroyo gave no third-party
culpability instruction, and the defendant’s requested instruction named
only one third-party culprit, the victim’s father. State v. Arroyo, supra, 607
and n.8. More important, the issue presented in Arroyo was not whether
the trial court was required to deliver the exact charge requested by the
defendant but whether the trial court improperly declined to deliver a third-
party culpability charge. Id., 607.
We also reject the defendant’s suggestion that we have established a
distinction between what the defendant denotes ‘‘an Arroyo instruction’’
from ‘‘a Berger instruction.’’ In State v. Berger, 249 Conn. 218, 234, 733 A.2d
156 (1999), this court addressed the question of whether ‘‘the trial court
improperly denied [the defendant’s] request for a specific instruction on the
relationship between [third-party] culpability evidence and the concept of
proof beyond a reasonable doubt.’’ The issue in the present case, whether
a trial court must name potential third-party culprits in its charge to the
jury, was not presented in Berger or in Arroyo, and we have not drawn a
distinction between different types of third-party culpability charges based
on those two decisions.
19
The defendant’s contention that he suffered harm because defense coun-
sel, believing that the trial court would name Jones in the third-party culpabil-
ity instruction, failed to provide a more detailed discussion in closing argu-
ment of the evidence implicating Jones, is belied by the court’s clear notice
to counsel that he was free to argue third-party culpability as to any individual
and make the arguments he deemed appropriate.
20
The court’s charge arguably provided the defendant with an advantage,
particularly when the undisputed evidence was that there were two shooters
at the scene. That is, notwithstanding the trial court’s determination that
there was sufficient evidence to establish a direct connection between Jones
and the crime but not Foster, the court’s use of the term ‘‘a third party’’
left the jury free to consider the evidence as to any and all third parties
claimed or identified by the defendant in determining whether to return a
verdict of not guilty.