State v. Armadore , 186 Conn. App. 140 ( 2018 )

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STATE OF CONNECTICUT v. DARIUS ARMADORE
(AC 40481)
Lavine, Sheldon and Harper, Js.
Syllabus
Convicted of the crime of murder in connection with the shooting of the
victim, the defendant appealed, claiming, inter alia, that the trial court
abused its discretion in granting the state’s motion to join his case for
trial with that of T, who also was involved in the shooting. The defendant
and T had driven to a cafe´, where T fatally shot the victim several weeks
after a drive-by shooting during which the victim had shot and wounded
T. C, the mother of T’s son, went to the hospital where T had been
taken and saw the defendant, who she had never seen or met, and heard
him make statements that she interpreted as a vow to get back at the
people who had shot T. C later learned the defendant’s identity and
identified him at trial as the man she overheard at the hospital. A few
hours after the shooting of the victim, T dropped the defendant off at
the apartment that the defendant shared with his then girlfriend, E,
where the defendant told E that he had shot someone. Held:
1. This court declined to review the defendant’s unpreserved claim that the
trial court committed plain error in granting the state’s motion to join
his and T’s cases for trial, which was based on the defendant’s assertion
that the joinder of the cases substantially prejudiced him because the
jury had heard certain evidence that was allegedly inadmissible as to
the defendant; the defendant’s claim, which differed from his claim at
trial that his defenses and that of T were antagonistic because each had
made statements that could prove harmful to the other, did not present
an extraordinary situation in which the alleged error was so obvious
as to affect the fairness and integrity of and public confidence in the
judicial proceedings, as both the defendant’s and T’s cases arose from
the same incident, virtually all of the state’s testimonial, documentary,
physical and scientific evidence would have been admissible against
the defendant and T if they were tried separately, and their defenses
were not antagonistic.
2. The defendant could not prevail on his claim that the trial court violated his
right to confrontation when it permitted testimony by a state’s firearms
examiner about his examination of and conclusions as to certain firearms
evidence that previously had been examined by another state’s examiner
who died prior to the trial, and, thus, was not available for cross-examina-
tion; the only inculpatory conclusions or statements regarding the fire-
arms evidence were made in court by the firearms examiner, who did
not rely on the deceased examiner’s report, which was not admitted
into evidence, but conducted his own physical examination of and formu-
lated his own conclusions about the evidence, and was cross-examined
extensively by the defendant.
3. The defendant could not prevail on his unpreserved claim that the trial
court improperly permitted C to make an in-court identification of him
in the absence of a showing that she previously had made a nonsugges-
tive out-of-court identification of him; although C’s identification of the
defendant was improper under the recent requirement by our Supreme
Court in State v. Dickson (322 Conn. 410) that first time in-court identifi-
cations implicate due process protections and must be prescreened by
the trial court, the admission of C’s identification was harmless beyond
a reasonable doubt in light of the entire record, including the strength
of the state’s case against the defendant, without the evidence of C’s
identification, and the trial court’s instruction to the jury as to how it
should weigh identification evidence.
4. The defendant’s claim that the trial court improperly admitted into evi-
dence testimony as to a certain phone conversation was unavailing, the
defendant’s bald objection to the testimony, absent any articulation of
the basis for his objection, having been insufficient to preserve his claim
for review.
5. The defendant could not prevail on his claim that the trial court improperly
admitted as a prior consistent statement certain testimony from the
mother of E, about his alleged confession to E; the defendant’s claim,
which was based on his assertion that there was no context to E’s
statement that he had confessed to her and no indication of what caused
her to reach that conclusion, ignored the question that immediately
followed the challenged portion of the mother’s testimony, which pro-
vided the context that the defendant claimed was missing.
Argued May 15—officially released November 13, 2018
Procedural History
Substitute information charging the defendant with
the crimes of murder and conspiracy to commit murder,
brought to the Superior Court in the judicial district of
New London, where the court, Jongbloed, J., granted
the defendant’s motion to dismiss the charge of conspir-
acy to commit murder and granted the state’s motion
to consolidate the case for trial with that of another
defendant; thereafter, the matter was tried to the jury
before A. Hadden, J.; verdict and judgment of guilty,
from which the defendant appealed. Affirmed.
Emily Graner Sexton, assigned counsel, with whom
was Matthew C. Eagen, assigned counsel, for the appel-
lant (defendant).
Paul J. Narducci, senior assistant state’s attorney,
with whom were David J. Smith, senior assistant state’s
attorney, and, on the brief, Michael L. Regan, state’s
attorney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Darius Armadore,
appeals from the judgment of conviction, rendered after
a jury trial, of murder in violation of General Statutes
§ 53a-54a (a). On appeal, the defendant claims (1) that
the trial court abused its discretion in granting the
state’s motion to join his case with the case of his
codefendant, Gerjuan Rainer Tyus; (2) that he was
deprived of his constitutional right to confrontation
when the state’s firearms examiner was permitted to
testify regarding the findings of another firearms exam-
iner, who was deceased and thus unavailable to testify
at trial; (3) that he was deprived of a fair trial when he
was identified for the first time in court by Cindalee
Torres without a prior nonsuggestive identification; and
(4) that the court abused its discretion by admitting
certain hearsay statements into evidence.1 We affirm
the judgment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts. In
early December, 2006, Tyus was involved in an ongoing
dispute with Todd Thomas regarding a piece of jewelry
that Thomas’ brother had given to Tyus. Thomas
demanded that Tyus give him the jewelry, but Tyus
refused to do so unless Thomas paid him $10,000.
On December 3, 2006, there was a drive-by shooting
near Tyus’ residence on Willetts Avenue in New London.
In that incident, Thomas, who was a passenger in a
white Lexus that was registered to his wife, fired several
gunshots at Tyus with a .38 caliber firearm, striking him
in the leg and the back. Tyus returned fire at Thomas,
firing five gunshots with a nine millimeter firearm. Four
.38 caliber cartridge casings and five nine millimeter
cartridge casings were recovered from the scene of the
shooting on Willetts Avenue. Later that day, while Tyus
was at a hospital being treated for his wounds, the
defendant, who was a close friend of Tyus, was at the
hospital waiting for news of Tyus’ condition, and was
overheard to say, ‘‘we’re gonna get them niggas . . . .’’
At approximately 7 p.m. on December 22, 2006, the
defendant and Tyus went to Boston to visit family and
pick up three girls in a silver Chevrolet Impala that
Tyus had rented on December 15, 2006. When one of
the three girls refused to return to Connecticut with
them, the defendant and Tyus returned to Connecticut
with the other two girls.
Later that evening, at approximately 11 p.m. on
December 22, 2006, Thomas arrived at Ernie’s Cafe´ on
Bank Street in New London. Shortly after midnight on
that evening, while Thomas was outside Ernie’s smok-
ing a cigarette, he was shot in the head. A light skinned
African-American male was observed fleeing from the
place where Thomas fell, running first down Bank
Street toward the corner of Golden Street, then up
Golden Street to a municipal parking lot, where he
entered the passenger’s side of a silver car that had
been waiting there with its motor running. As soon as
the fleeing man entered the waiting vehicle, it sped
away. Thomas was transported to Lawrence + Memorial
Hospital, where he was pronounced dead on arrival.
Later, at approximately 12:45 a.m., the defendant and
Tyus arrived at Bella Notte, a nightclub in Norwich.
Tracking information on records produced by their cell
service providers established that their three cell
phones—Tyus had two cell phones in his possession
and the defendant had one—had been brought from
Boston to New London at approximately 11:45 p.m. All
three phones activated cell towers in New London, in
the vicinity of Ernie’s, minutes before a 911 call was
received reporting the shooting outside of Ernie’s.
Thereafter, between 12:30 and 12:42 a.m., the three cell
phones were taken from New London to Norwich,
where they activated a cell tower in close proximity to
Bella Notte.2 A few hours later, at approximately 4 a.m.,
Tyus dropped the defendant off at the apartment that
he shared with his then girlfriend, Ritchae Ebrahimi.
After arriving at the apartment, the defendant told
Ebrahimi that he had shot someone that night.
One nine millimeter cartridge casing was recovered
from the scene of Thomas’ December 23, 2006 shooting
outside of Ernie’s. A comparison of that cartridge casing
to the five nine millimeter cartridge casings recovered
from the scene of the defendant’s December 3, 2006
shooting on Willetts Avenue revealed that all six had
been fired from the same firearm.
On November 20, 2012, the defendant and Tyus were
both arrested in connection with the shooting death of
Thomas on charges of murder in violation of § 53a-
54a, and conspiracy to commit murder in violation of
General Statutes §§ 53a-48 and 53a-54a. The conspiracy
charges against both defendants were later dismissed
on the ground that they were barred by the statute of
limitations. The state thereafter filed long form informa-
tions charging the defendant and Tyus with murder,
both as a principal and as an accessory, in violation of
General Statutes §§ 53a-8 and 53a-54a (a). The cases
were subsequently joined for trial, then tried together
before a single jury, which returned guilty verdicts as
to both defendants without specifying whether such
verdicts were based on principal or accessorial liability.
The court sentenced the defendant to a term of sixty
years of incarceration. This appeal followed.3
I
The defendant first claims that the court abused its
discretion in granting the state’s motion to join his case
with Tyus’ case for trial.4 We disagree.
On April 7, 2015, the state filed a motion, pursuant
to Practice Book § 41-19, for joinder of the defendant’s
and Tyus’ cases for trial. The state argued that joinder
of the two cases would promote judicial economy
because, as the court ruled, ‘‘virtually all of the wit-
nesses [it] would call in [the defendant]’s trial would
be called in the trial of [Tyus],’’ and the physical and
scientific evidence that it would seek to introduce in
both cases would be identical. The state further argued
that the respective defenses of the defendant and Tyus
were not antagonistic, and thus that neither would suf-
fer substantial injustice if their cases were tried
together.
The defendant objected to the state’s motion for join-
der on the ground that the defenses of the defendant
and Tyus were antagonistic because ‘‘there are several
statements made by each defendant, each of which in
itself could prove harmful to the other defendant at a
trial’’ and that he would ‘‘try to throw Mr. Tyus under
the rhetorical bus as often as possible . . . .’’
On October 6, 2015, the court orally granted the
motion, explaining its ruling as follows: ‘‘The court finds
that joinder of the cases will clearly advance judicial
economy in this case. Virtually all of the witnesses
called in one trial would be called in the trial of the
other. The physical and the scientific evidence would
also be virtually identical. Moreover, joinder would not
substantially prejudice the rights of the defendants.
Based on the court’s review of the statements of the
defendants as set forth by the state in its memorandum,
it appears that the defenses are not irreconcilable or
antagonistic. Both have admitted being with the other
on the night in question, and the statements of each do
not implicate the other.’’ The court thus found that a
joint trial would not be unfairly prejudicial, and so it
granted the state’s motion for joinder.
The defendant claims that the joinder of his case with
Tyus’ case was substantially prejudicial to him because
the jury heard evidence of ‘‘the long-established feud
and previous incidents of gun violence between Tyus
and Thomas,’’ which he claimed ‘‘was inadmissible as
it pertained to [him] because there was no evidence
that the defendant was at all inculpated in either the
feud or previous shootings.’’ Because the defendant did
not assert these arguments at trial,5 his claim is not
preserved. He nevertheless argues that his claim should
be reviewed for plain error.6
‘‘It is well established that the plain error doctrine
. . . is an extraordinary remedy used by appellate
courts to rectify errors committed at trial that, although
unpreserved [and nonconstitutional in nature], are of
such monumental proportion that they threaten to
erode our system of justice and work a serious and
manifest injustice on the aggrieved party. [T]he plain
error doctrine . . . is not . . . a rule of reviewability.
It is a rule of reversibility. That is, it is a doctrine that
this court invokes in order to rectify a trial court ruling
that . . . requires reversal of the trial court’s judgment
. . . for reasons of policy. . . . In addition, the plain
error doctrine is reserved for truly extraordinary situa-
tions [in which] the existence of the error is so obvious
that it affects the fairness and integrity of and public
confidence in the judicial proceedings. . . . Plain error
is a doctrine that should be invoked sparingly. . . .
Implicit in this very demanding standard is the notion
. . . that invocation of the plain error doctrine is
reserved for occasions requiring the reversal of the
judgment under review. . . .
‘‘An appellate court addressing a claim of plain error
first must determine if the 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. . . .
‘‘[An appellant] cannot prevail under [the plain error
doctrine] . . . 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 injus-
tice.’’ (Emphasis in original; internal quotation marks
omitted.) Estela v. Bristol Hospital, Inc., 179 Conn.
App. 196, 199–200 n.2, 180 A.3d 595 (2018).
Because this case does not present a truly extraordi-
nary situation in which the alleged error is so obvious
that it would affect the fairness and integrity of and
public confidence in the judicial proceedings, we
decline to afford the defendant relief under the plain
error doctrine.
II
The defendant next claims that the court erred in
admitting the testimony of the state’s firearms exam-
iner, James Stephenson, because Stephenson’s opinions
regarding the firearms evidence in this case were assert-
edly based on the findings and conclusions of the pri-
mary examiner of the evidence in this case, Gerald
Petillo, who died before trial. The defendant claims that
Stephenson did not conduct ‘‘his own truly independent
evaluation of the evidence,’’ but, rather that he relied
on Petillo’s findings and conclusions in formulating his
conclusions. The defendant argues that because Ste-
phenson’s testimony was based on Petillo’s findings
and conclusions, and Petillo was unavailable for cross-
examination, Petillo’s findings and conclusions consti-
tuted testimonial hearsay, and the admission of evi-
dence on the basis of that hearsay, specifically,
Stephenson’s testimony, violated his constitutional
right to confrontation. We disagree.
In Crawford v. Washington, 541 U.S. 36, 124 S. Ct.
1354, 158 L. Ed. 2d 177 (2004), the United States
Supreme Court held that testimonial hearsay is admissi-
ble against a criminal defendant at trial only if the defen-
dant had a prior opportunity for cross-examination and
the witness is unavailable to testify at trial. Id., 68. The
United States Supreme Court’s subsequent decisions in
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.
Ct. 2527, 174 L. Ed. 2d 314 (2009), and Bullcoming v.
New Mexico, 564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed.
2d 610 (2011), extended the holding in Crawford to
apply the confrontation clause in the specific context
of scientific evidence.
In Melendez-Diaz the court held that certificates
signed and sworn to by state forensics analysts, which
set forth laboratory results of drug tests that were done
by those analysts and which were admitted into evi-
dence in lieu of live testimony from the analysts them-
selves, were testimonial within the meaning of
Crawford, and thus that they were improperly admitted
because the defendant did not have an opportunity to
cross-examine those analysts. Melendez-Diaz v. Massa-
chusetts, supra, 557 U.S. 311.
In Bullcoming, the court held that the confrontation
clause does not permit the prosecution to introduce
a forensic laboratory report containing a testimonial
statement by an analyst, certifying to the results of a
blood alcohol concentration test he performed, through
the in-court testimony of another scientist ‘‘who did not
sign the certification or perform or observe the test
reported in the certification.’’ Bullcoming v. New Mex-
ico, supra, 564 U.S. 652. In short, an accused has the
right ‘‘to be confronted with the analyst who made the
certification, unless that analyst is unavailable at trial,
and the accused had an opportunity, pretrial, to cross-
examine that particular scientist.’’ Id.
Thus, in Crawford, Melendez-Diaz and Bullcoming,
the trial court’s violation of the defendant’s confronta-
tion rights occurred because it admitted certain inculpa-
tory statements that were testimonial in nature and
were made against the defendant by an individual who
was not subject to cross-examination. See State v. Buck-
land, 313 Conn. 205, 215–16, 96 A.3d 1163 (2014), cert.
denied, U.S. , 135 S. Ct. 992, 190 L. Ed. 2d 837
(2015). Those circumstances are not present in this
case.
Here, the defendant and Tyus filed a joint motion
in limine to preclude Stephenson’s testimony on the
ground that his testimony would not be based on his
own independent examination of the firearms evidence
in this case, but, rather, would be based on the examina-
tion of that evidence by Petillo, who was not available
for cross-examination by the defendant, and thus that
his constitutional right to confrontation would be vio-
lated if Stephenson were permitted to so testify. The
court held a hearing outside of the presence of the jury
on the defendants’ motion to preclude Stephenson’s
testimony. Stephenson testified that when firearms
comparisons are made, the technical reviewer would
‘‘go in, using the comparison microscope, look at the
comparisons himself to make a determination as to
whether the conclusions were correct that were going
to be issued in the report.’’ The technical reviewer
would make an independent determination concerning
the comparisons that were made. Stephenson acted as
the technical reviewer of Petillo’s conclusions in this
case. In that capacity, Stephenson examined the fire-
arms evidence himself and formulated his own opinions
as to the evidence he was examining. In this case, Petillo
had performed various tests on the firearms evidence
that had been collected, and authored a report con-
taining his findings and analysis. Stephenson physically
examined the cartridge cases in this case and in the
incident on December 3, 2006. He did not merely verify
what Petillo had concluded, but came to his own conclu-
sions on the basis of his examination of the evidence
before him.
The trial court concluded that ‘‘this case is in stark
contrast to [Melendez-Diaz and Bullcoming]. This is
not a situation in which the state attempts to elicit
testimony from the deceased examiner. . . . [Stephen-
son] conducted his own independent examination and
reached his own independent conclusions. He is clearly
entitled to testify as to those findings because he is
available and he made conclusions and he will be cross-
examined.’’ On that basis, the court concluded that Ste-
phenson’s testimony was admissible. We agree.
Here, the only inculpatory conclusions or statements
regarding the firearms evidence that were presented to
the jury were made by Stephenson in court. Stephenson
did not rely on Petillo’s report in formulating his own
conclusions, nor was Petillo’s report admitted into evi-
dence. Although Stephenson reviewed Petillo’s report,
he conducted his own physical examination of the evi-
dence in this case and came to his own conclusions,
which happened to be consistent with Petillo’s conclu-
sions. The defendant cross-examined Stephenson
extensively. Because the defendant was afforded a full
opportunity to confront Stephenson regarding his
examination of, and conclusions regarding, the firearms
evidence in this case, his claim that he was denied his
constitutional right to confrontation is without merit.
III
The defendant next claims that he was deprived of
a fair trial when he was identified for the first time in
court by Cindalee Torres, in the absence of a showing
that she previously had made a nonsuggestive out-of-
court identification of him. We are not persuaded.
The state called Torres, who is the mother of Tyus’
son, to testify in this case. She testified that she received
a telephone call on the afternoon of December 3, 2006,
telling her that Tyus had been shot. Torres went to
Lawrence + Memorial Hospital to see if Tyus was okay,
but she was not permitted to see him right away. While
she was waiting in the hospital lobby, Torres saw the
defendant, whom she had never seen or met, and heard
him say, ‘‘we’re gonna get them niggas, or, I’m gonna
get them niggas.’’ Observing that the defendant was
excited and upset, Torres interpreted the defendant’s
statement to be a vow to get back at the people who
had just shot Tyus. She later learned the defendant’s
identity and identified him at trial as the man she saw
and overheard at the hospital.
The defendant claims that the court improperly per-
mitted Torres to make an in-court identification of him
in the absence of a showing that she previously had
made a nonsuggestive out-of-court identification of him.
The defendant did not object to Torres’ identification
of him at trial, and thus he requests review of this claim
under the doctrine set forth in 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),
the Golding doctrine provides that ‘‘a defendant can
prevail on a claim of constitutional error not preserved
at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim
of error; (2) the claim is of constitutional magnitude
alleging the violation of a fundamental right; (3) the
alleged constitutional violation . . . exists and . . .
deprived the defendant of a fair trial; and (4) if subject
to harmless error analysis, the state has failed to demon-
strate harmlessness of the alleged constitutional viola-
tion beyond a reasonable doubt. In the absence of any
one of these conditions, the defendant’s claim will fail.
The appellate tribunal is free, therefore, to respond to
the defendant’s claim by focusing on whichever condi-
tion is most relevant in the particular circumstances.’’
(Emphasis in original; footnote omitted.) State v. Gold-
ing, supra, 239–40. ‘‘The defendant bears the responsi-
bility for providing a record that is adequate for review
of his claim of constitutional error. . . . The defendant
also bears the responsibility of demonstrating that his
claim is indeed a violation of a fundamental constitu-
tional right. . . . Finally, if we are persuaded that the
merits of the defendant’s claim should be addressed,
we will review it and arrive at a conclusion as to whether
the alleged constitutional violation . . . exists and
whether it . . . deprived the defendant of a fair trial.’’
(Citations omitted.) Id., 240–41.
We find that this claim is reviewable under Golding
because the record before us is adequate to review it
and the claim is of constitutional magnitude. We con-
clude, however, that the defendant cannot prevail under
Golding because he is unable to demonstrate that a
constitutional violation exists and that it deprived him
of a fair trial.
In arguing that his due process rights were violated,
the defendant relies on State v. Dickson, 322 Conn. 410,
426, 141 A.3d 810 (2016), cert. denied, U.S. , 137
S. Ct. 2263, 198 L. Ed. 2d 713 (2017), in which our
Supreme Court held that ‘‘first time in-court identifica-
tions, like in-court identifications that are tainted by an
unduly suggestive out-of-court identification, implicate
due process protections and must be prescreened by
the trial court.’’ The court explained: ‘‘[A]ny first time
in-court identification by a witness who would have
been unable to reliably identify the defendant in a non-
suggestive out-of-court procedure constitutes a proce-
dural due process violation . . . . Although we
recognize that, when the witness could have identified
the defendant in a nonsuggestive procedure, a first time
in-court identification does not constitute an actual vio-
lation of due process principles, this court has an obliga-
tion to adopt procedures that will eliminate the risk
that the defendant will be deprived of a constitutionally
protected right by being identified in court by a witness
who could not have identified the defendant in a fair
proceeding. Indeed, it is well established that courts
have the duty not only to craft remedies for actual
constitutional violations, but also to craft prophylactic
constitutional rules to prevent the significant risk of a
constitutional violation.’’ (Emphasis omitted.) Id., 426
n.11.
Our Supreme Court went on to explain that certain
in-court identifications were not subject to the prophy-
lactic rules set forth in Dickson. The court stated: ‘‘In
cases in which there has been no pretrial identification
. . . and the state intends to present a first time in-court
identification, the state must first request permission
to do so from the trial court . . . . The trial court may
grant such permission only if it determines that there
is no factual dispute as to the identity of the perpetrator,
or the ability of the particular eyewitness to identify the
defendant is not at issue. . . . For example, in cases
in which the trial court determines that the only issue
in dispute is whether the acts that the defendant admit-
tedly performed constituted a crime, the court should
permit a first time in-court identification. In cases in
which the defendant concedes that identity or the ability
of a particular witness to identify the defendant as the
perpetrator is not in dispute, the state may satisfy the
prescreening requirement by giving written or oral
notice to that effect on the record.
‘‘If the trial court determines that the state will not
be allowed to conduct a first time identification in court,
the state may request permission to conduct a nonsug-
gestive identification procedure, namely, at the state’s
option, an out-of-court lineup or photographic array,
and the trial court ordinarily should grant the state’s
request. . . . If the witness previously has been unable
to identify the defendant in a nonsuggestive identifica-
tion procedure, however, the court should not allow a
second nonsuggestive identification procedure unless
the state can provide a good reason why a second bite
at the apple is warranted. If the eyewitness is able to
identify the defendant in a nonsuggestive out-of-court
procedure, the state may then ask the eyewitness to
identify the defendant in court. . . .
‘‘If the trial court denies a request for a nonsuggestive
procedure, the state declines to conduct one, or the
eyewitness is unable to identify the defendant in such
a procedure, a one-on-one in-court identification should
not be allowed. The prosecutor may still examine the
witness, however, about his or her observations of the
perpetrator at the time of the crime, but the prosecutor
should avoid asking the witness if the defendant resem-
bles the perpetrator.’’ (Citations omitted; footnote omit-
ted.) Id., 445–47. The court clarified that, if a defendant
did not dispute a witness’ ability to identify him, but
merely disputed such witness’ testimony on other
grounds, the witness would be ‘‘properly permitted to
make a first time in-court identification of the defen-
dant’’ without violating due process. Id., 446 n.28.
With respect to the applicability of the procedural
rules announced in Dickson, our Supreme Court stated
that they applied ‘‘to the parties to the present case
and to all pending cases. It is important to point out,
however, that, in pending appeals involving this issue,
the suggestive in-court identification has already
occurred. Accordingly, if the reviewing court concludes
that the admission of the identification was harmful,
the only remedy that can be provided is a remand to
the trial court for the purpose of evaluating the reliabil-
ity and the admissibility of the in-court identification
under the totality of the circumstances . . . . If the
trial court concludes that the identification was suffi-
ciently reliable, the trial court may reinstate the convic-
tion, and no new trial would be required.’’ (Citations
omitted; emphasis in original; footnote omitted.) Id.,
451–52.
Here, although Torres did not identify the defendant
as the individual who shot and killed Thomas, the crime
with which the defendant was charged and on which
he was being tried, she identified him as the person
she saw at the hospital on December 3, 2006, and whom
she overheard saying, ‘‘we’re gonna get them niggas,
or, I’m gonna get them niggas.’’ Torres believed that
the defendant was referring to getting revenge on the
ones who had shot Tyus earlier that day. The defendant
contends that Torres’ identification of him was unrelia-
ble because she had never met him or spoken to him
before she claimed to have seen him at the hospital on
the night of December 3, 2006. The defendant, however,
testified that he was in fact present in the hospital lobby
on the evening of December 3, 2006, because Tyus, to
whom he referred as ‘‘his brother,’’ had been shot earlier
that day. The defendant was not asked directly whether
he made the statement attributed to him by Torres,
but he admitted that he had been upset that night and
testified: ‘‘Everybody’s gonna be upset if your family
member gets injured; of course you’re going to be upset
at that time.’’ Despite the facts that the defendant
acknowledged that he was present at the hospital on
the night that Tyus was shot, and that he was admittedly
upset by the attack on his ‘‘brother,’’ there was no show-
ing that Torres had identified him in a nonsuggestive
procedure prior to identifying him in court, and, there-
fore, Torres’ identification runs afoul of Dickson. We
thus turn to an examination of the strength of the state’s
case against the defendant, in the absence of the alleg-
edly improper identification of him by Torres, to deter-
mine if that identification was harmless beyond a
reasonable doubt.
It is undisputed that the defendant and Tyus were
together on the night that Thomas was shot and killed.
Thomas had shot Tyus just three weeks prior to his
own death. Even without hearing Torres’ account of
the defendant’s expressed desire to get back at Thomas,
the jury could have inferred such an animus based sim-
ply on the fact that Thomas had attacked the defen-
dant’s close friend and ‘‘brother,’’ Tyus. The police
spoke to the defendant several times about the Decem-
ber, 2006 incidents prior to his arrest. During one of
those discussions, the defendant told the police that he
and Tyus went to Boston on the night of December 23,
2006, in a silver Impala that Tyus had previously rented.
The state presented evidence that, later that night, a
man fitting the defendant’s description ran from the
scene of Thomas’ shooting to a nearby municipal park-
ing lot and got into the passenger’s side of a silver
vehicle that was there waiting for him. The description
of that vehicle matched the Impala that had been pre-
viously rented by Tyus. Although the defendant denied,
at trial, ever having been in the Impala, his DNA was
retrieved from the passenger side of that vehicle.
The state also presented evidence undermining the
defendant’s alibi. Although the defendant and Tyus
insisted that they were at Bella Notte in Norwich when
Thomas was shot and killed in New London, the cell
phone location data contradicted their claim. According
to that data, the defendant’s cell phone and Tyus’ two
cell phones were in New London, where and when
Thomas was shot, and then were taken to Norwich
thereafter, arriving at Bella Notte at approximately
12:45 a.m. That information is consistent with the testi-
mony of Eduardo Guilbert that the defendant and Tyus
did not arrive at Bella Notte that night until after he
had received word that Thomas had been shot and
killed. A few hours after Thomas was shot and killed,
the defendant told Ebrahimi that he had shot someone
earlier that morning.
The firearms evidence presented by the state showed
that the gun that Tyus used to fire back at Thomas on
December 3, 2006, was the same weapon used to shoot
and kill Thomas just three weeks later. On the basis of
the defendants’ insistence that they were together on
the night Thomas was shot and killed, the jury could
have inferred that the defendant was involved, as either
the principal or an accessory, in the shooting death
of Thomas.
In light of our review of the entire record, including
the strength of the state’s case against the defendant,
without the evidence of Torres’ in-court identification
of the defendant, and the trial court’s detailed instruc-
tion to the jury as to how it should weigh the identifica-
tion evidence, we conclude that the admission of that
identification into evidence was harmless beyond a rea-
sonable doubt, and thus that the defendant’s claim fails
under the fourth prong of Golding.7
IV
The defendant next claims that the court erred in
admitting into evidence certain hearsay statements by
two of the state’s witnesses. ‘‘A trial court’s decision
to admit evidence, if premised on a correct view of the
law . . . calls for the abuse of discretion standard of
review. . . . In other words, only after a trial court has
made the legal determination that a particular statement
is or is not hearsay, or is subject to a hearsay exception,
is it vested with the discretion to admit or to bar the
evidence based upon relevancy, prejudice, or other
legally appropriate grounds related to the rule of evi-
dence under which admission is being sought.’’ (Cita-
tions omitted; emphasis omitted; internal quotation
marks omitted.) Midland Funding, LLC v. Mitchell-
James, 163 Conn. App. 648, 653, 137 A.3d 1 (2016). With
this in mind, we address the defendant’s hearsay claims
in turn.
A
The defendant first challenges the propriety of the
admission into evidence of the testimony of Guilbert,
who was called to testify by the state. Guilbert testified
that, on the night of December 22, 2006, he had been
at Bella Notte. At some point that night, Guilbert
received a phone call from Charlene Thomas.8 When
the state asked Guilbert what Charlene Thomas told
him during that phone call, counsel for the defendant
objected. Although the basis for the objection was not
stated, the state told the court: ‘‘I’m going to claim it
on the effect of the hear—and will explain what Mr.
Guilbert then did.’’ The court ruled: ‘‘Given that claim,
I’m going to overrule the objections and allow the testi-
mony.’’ Guilbert then testified that Charlene Thomas
told him that Todd Thomas, Guilbert’s childhood friend,
had just been shot. Charlene Thomas suggested that
Guilbert call Todd Thomas’ wife if he knew her phone
number. Guilbert called Todd Thomas’ wife and told her
to get to the hospital. Approximately fifteen or twenty
minutes after Guilbert made that phone call, he saw
the defendant enter Bella Notte with another man. He
had not seen them at Bella Notte before that time. The
defendant greeted Guilbert and offered to buy him a
drink. Guilbert declined because he was getting ready
to leave. Upon finishing his drink, Guilbert left Bella
Notte and drove to Lawrence + Memorial Hospital,
where he paid his respects to Todd Thomas’ family,
and then left.
On appeal, the defendant claims that he objected at
trial on the ground that Guilbert’s testimony as to what
Charlene Thomas told him over the phone on the night
in question was hearsay, and that ‘‘her testimony was
admitted specifically for the truth of Charlene Thomas’
statement as a means to discredit the defendants’ alibis
and not to show its effect on Guilbert . . . .’’ In other
words, Guilbert’s testimony proved that the defendant
and Tyus did not arrive at Bella Notte until after Thomas
was shot. Although the defendant objected to Guilbert’s
testimony as to what he was told during the phone call
that he allegedly received before the defendant and
Tyus arrived at Bella Notte, he did not state the basis
for that objection. ‘‘[T]he standard for the preservation
of a claim alleging 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 evidentiary ruling for review, trial counsel
must object properly. . . . In objecting to evidence,
counsel must properly articulate the basis of an objec-
tion 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] objec-
tion, any appeal will be limited to the ground
asserted. . . .
‘‘These requirements are not simply formalities. They
serve to alert the trial court to potential error while
there is still time for the court to act. . . . Assigning
error to a court’s evidentiary rulings on the basis of
objections never raised at trial unfairly subjects the
court and the opposing party to trial by ambush.’’ (Inter-
nal quotation marks omitted.) State v. Bell, 113 Conn.
App. 25, 40, 964 A.2d 568, cert. denied, 291 Conn. 914,
969 A.2d 175 (2009).
Here, the defendant’s bald objection to Guilbert’s tes-
timony, absent any articulation of the basis for his
objection, was insufficient to preserve his claim for
review. We thus decline to review it.
B
The defendant also claims that the court erred in
admitting into evidence the testimony of Ebrahimi’s
mother, Robin Deetz, as a prior consistent statement.
We disagree.
During the defendants’ cross-examination of Ebrah-
imi, she testified that she did not tell the police detec-
tives that the defendant told her during the early
morning hours of December 23, 2006, that he had shot
someone earlier that night until they threatened her
with imprisonment or the removal of her children from
her care. In eliciting that testimony, the defendant sug-
gested that Ebrahimi’s disclosure of the defendant’s
alleged confession to her was coerced, and therefore
fabricated.
After Ebrahimi testified, the state called Deetz to the
witness stand. The state asked Deetz about a conversa-
tion she had had with Ebrahimi at the end of 2006, and
asked if Ebrahimi ever ‘‘relay[ed] to you any information
concerning [the defendant] making a statement about
somebody being shot.’’ The defendant then objected
to the state’s next question, which asked Deetz what
Ebrahimi had told her in the earlier conversation, on
the ground that Deetz’ response would be hearsay. The
state argued that it was not offering the testimony for
the truth of the matter asserted, but, rather, ‘‘as a prior
consistent statement to rehabilitate a witness after
there’s been a claim of recent fabrication.’’ The court
overruled the defendant’s objection, and Deetz
responded that Ebrahimi ‘‘was a mess’’ at the end of
2006 because Armadore had shot someone. Neither the
defendant nor Tyus cross-examined Deetz.
On appeal, the defendant claims that the court erred
in admitting Deetz’ testimony into evidence on the
ground that it constituted a prior consistent statement.
‘‘Prior consistent statements of a witness are gener-
ally regarded as hearsay and are not admissible at trial,
either for their truth or for the purpose of rehabilitating
a witness’ damaged credibility. . . . This rule, how-
ever, is not absolute. The trial court, within its discre-
tion, may admit a prior consistent statement if offered
to rehabilitate a witness who has been impeached . . .
by a claim of recent fabrication . . . . When a prior
consistent statement is admitted under [that exception],
it is admitted to affect credibility only and not to estab-
lish the truth of the statement.’’9 (Citations omitted;
internal quotation marks omitted.) State v. Hines, 243
Conn. 796, 803–804, 709 A.2d 522 (1998).
Here, the state offered Deetz’ testimony, and the court
admitted that testimony, as a prior consistent statement
to rebut the defendant’s suggestion that Ebrahimi fabri-
cated the defendant’s alleged confession to her because
she was threatened by the police. The defendant claims
that Deetz’ testimony was not consistent with Ebrah-
imi’s because ‘‘Deetz testified to a conclusion appar-
ently reached by her daughter that the defendant had
shot someone,’’ whereas Ebrahimi testified that the
defendant told her that he had shot someone. The defen-
dant argues that ‘‘there is no context to the comment
and no indication of what caused Ebrahimi to reach
[the] conclusion’’ to which Deetz testified—that the
defendant had shot someone. In so arguing, the defen-
dant ignores the question that immediately preceded
the challenged portion of Deetz’ testimony, which pro-
vides the context that the defendant claims to be miss-
ing. The state asked Deetz: ‘‘[W]hat did [Ebrahimi] tell
you that [the defendant] had told her?’’ The defendant’s
argument that Deetz’ testimony was not consistent with
Ebrahimi’s due to a lack of context is without merit, and,
therefore, his claim that the court erred in admitting it
as a prior consistent statement must fail.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also claims that the court erred when it admitted testimony
and documentary evidence of cell phone data, absent any objection by the
defendant or Tyus, without qualifying the witness as an expert or holding
a hearing pursuant to State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997),
cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), to
determine its reliability. Because this claim is evidentiary in nature, and the
defendant failed to preserve it at trial, we decline to review it. See State v.
Turner, 181 Conn. App. 535, 549–55, 187 A.3d 454, cert. granted on other
grounds, 330 Conn. 909, A.3d (2018).
2
The defendant and Tyus claimed that they had been at Bella Notte when
Thomas was shot and killed in New London.
3
Tyus also challenged his conviction. We addressed Tyus’ appeal in a
separate opinion. See State v. Tyus, 184 Conn. App. 669, A.3d (2018).
4
The defendant also claims that the court erred in failing to sever the
two cases as the trial progressed and that the spillover effect of the evidence
clearly prejudiced the defendant. The defendant did not object to any of
the evidence that he now claims prejudiced him, nor did he request a limiting
instruction regarding that evidence. His claim in this regard is therefore not
preserved and we decline to review it.
5
In fact, contrary to his argument opposing joinder, the defendant did
not point the finger at Tyus as being the perpetrator of the crime for which
they were both on trial. As noted herein, they both maintained that they
were together at Bella Notte in Norwich when Thomas was shot and killed
in New London.
6
It is noteworthy that the defendant did not object to the admission of
the evidence of the feud and the December 3, 2006 shooting.
7
The defendant claims that the admission of Torres’ in-court identification
of him violated his right to due process under both the federal and state
constitutions. In the recently released decision in State v. Harris, 330 Conn.
91, 191 A.3d 119 (2018), our Supreme Court held that our state constitution
affords greater protection than the federal constitution with respect to the
admissibility of eyewitness identifications. Because we conclude that the
identification of the defendant by Torres should have been excluded, but
that the admission of that identification was harmless, our analysis of the
defendant’s claim is not impacted by Harris.
8
Charlene Thomas is not related to Todd Thomas.
9
We note that the court correctly instructed the jury on the limited purpose
of a prior consistent statement. That instruction has not been challenged
on appeal.