State v. Bullock ( 2015 )

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STATE OF CONNECTICUT v. ROBERT D. BULLOCK
(AC 35006)
Beach, Keller and Prescott, Js.
Argued September 16, 2014—officially released January 20, 2015
(Appeal from Superior Court, judicial district of
Fairfield, Kavanewsky, J.)
James B. Streeto, assistant public defender, for the
appellant (defendant).
Lisa A. Riggione, senior assistant state’s attorney,
with whom, on the brief, was John C. Smriga, state’s
attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, Robert D. Bullock,
appeals from the judgment of conviction, rendered after
a jury trial, of attempt to commit assault in the first
degree in violation of General Statutes §§ 53a-59 (a) (1)
and 53a-49, carrying a pistol without a permit in viola-
tion of General Statutes § 29-35 (a), and reckless endan-
germent in the first degree in violation of General
Statutes § 53a-63 (a).1 The defendant claims that the
trial court improperly (1) declined to deliver a jury
instruction pertaining to the fallibility of eyewitness
identification evidence, (2) permitted the state to intro-
duce prior misconduct evidence and denied his motion
for a mistrial related to such evidence, (3) permitted
the prosecutor to question him concerning a certain
statement that he allegedly made, and (4) instructed
the jury with regard to the element of intent. 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.
At or about 5 p.m., on September 24, 2010, Sergeant
Greg Granello of the Bridgeport Police Department was
operating a marked police cruiser in the vicinity of the
Stratford Avenue Bridge in Bridgeport. At that time, he
observed and decided to stop two males, the defendant
and Daquan Long, as part of his investigation of a shoot-
ing that occurred nearby a short time earlier. Granello
advised the police dispatcher of his whereabouts and
his intent to stop these two men.
Granello observed the defendant, who was wearing a
red shirt, and Long, who was wearing all black clothing,
riding on bicycles across the bridge. He parked his
police cruiser in such a manner as to block their travel
off the bridge, got out of his cruiser, and ordered the
defendant and Long, who were positioned behind his
police cruiser, to stop and show their hands. Bridgeport
police Officers Jason Ferri and Mark Blackwell also
were present at this time. Ferri and Blackwell parked
their police cruisers behind that of Granello. The defen-
dant and Long disregarded Granello’s repeated com-
mands as they stood on the bridge while straddling
their bicycles and facing Granello. The defendant, who
may have been as close as fifteen feet from Granello,
raised a black handgun and fired several shots at Gra-
nello.2 Granello took cover near the front of his cruiser
on the driver’s side before he returned gunfire in the
defendant’s direction. Long, who was standing in close
proximity to the defendant, brandished a black and
silver handgun and fired several shots at Ferri. Ferri
returned fire and took cover briefly. The hood and front
windshield of Granello’s police cruiser sustained bullet
damage, likely caused when Granello fired upon the
defendant. The rear license plate and rear window sus-
tained damage from bullets that were fired from behind
the vehicle.
After the brief exchange of gunfire came to an end,
the police officers at the scene observed the defendant
and Long lying in opposite directions near one another
on the sidewalk portion of the bridge, where they ini-
tially had been stopped by Granello. Both men had
discarded their handguns, which were later recovered
by the police, into the Pequonnock River, which flows
under the bridge. The defendant and Long were hand-
cuffed and taken into police custody.
In connection with the events that had transpired
on the bridge, the defendant was arrested, tried, and
convicted of attempt to commit assault in the first
degree, carrying a pistol without a permit and reckless
endangerment in the first degree. The present appeal
followed. Additional facts will be discussed as they
become relevant to our analysis of the claims raised in
this appeal.
I
First, the defendant claims that the court improperly
declined to deliver a jury instruction pertaining to the
fallibility of eyewitness identification evidence. We
disagree.
The state presented the testimony of four witnesses
who observed the defendant’s conduct on the bridge
at the time of the shooting: Granello, Ferri, Blackwell
and Christine Vitka. We begin our review of the defen-
dant’s claim of instructional error with a review of the
relevant aspects of the testimony of these witnesses.
Granello testified in relevant part that he observed two
black males as they attempted to cross the bridge on
their bicycles. He stated that he continued to observe
the two individuals after he exited his police cruiser
and continued to observe them when he ordered them
to stop and show their hands. He testified that they did
not comply, and that the individual who was closer to
him and wearing a red shirt reached behind his back,
brandished a handgun, and fired the gun in his direction.
Granello testified that he observed the handgun before
he dove to the ground and returned fire. He stated that
he fired at the shooter wearing the red shirt until such
time as the shooter dropped to the ground behind a
small concrete barrier on the bridge. Granello then posi-
tioned himself where he could observe both individuals
and found that they were lying down in a prone position
on the sidewalk. Granello described the other individual
who was with the shooter in the red shirt as being
dressed in ‘‘all black . . . .’’ During his testimony, Gra-
nello stated that he could identify the person who was
wearing the red shirt and who fired in his direction on
the bridge. Then, Granello identified the defendant as
the shooter.
Granello testified that both individuals were approxi-
mately the same size and that they were standing close
to each other during the shooting. Also, he stated that
the difference in the clothing worn by the individuals,
with one individual wearing all black clothing and the
other individual wearing a red shirt, was an important
distinction. Although, prior to the shooting, Granello
observed the defendant’s torso, he stated that he was
looking intently at the defendant’s hands and for other
gestures that could indicate danger. Granello testified
that he observed the firearm used by the defendant
‘‘[a]lmost head on’’ and that he saw it discharge twice
before he took cover. At the time of the shooting, Gra-
nello was approximately twenty-five to thirty-five feet
from the defendant. Granello testified that, at that time,
he was focused on the defendant and that he did not
know whether the other individual on the bridge fired
at him. He testified that after he took cover, he ‘‘lost
all sight’’ for a couple of seconds while he heard the
sound of gunfire. Granello testified that, after he took
cover, he managed once again to observe the defendant,
who was still standing in the same position. Granello
then returned fire, discharging between five to seven
gunshots. Granello testified that the exchange of gunfire
lasted for less than one minute and that, within fifteen
seconds after the last shot was fired, he approached
the individuals who were then lying face down on the
sidewalk. When asked to describe the shooting event,
Granello testified that it possibly could be described as
a frantic event, but that it was not chaotic.
During his cross-examination, Granello testified that
after the incident on September 24, 2010, until the date
of his testimony, he had not observed the defendant.
Also, Granello testified that he was never asked to iden-
tify the defendant in a photographic array. The follow-
ing colloquy between the defendant’s attorney and
Granello then occurred:
‘‘Q. So, you . . . were never shown the photo array
by any members of the detective bureau or any superior
officers in an effort to determine who had shot at you
on the bridge?
‘‘A. No.
‘‘Q. The entire basis for you saying who had shot at
you on the bridge is by linking it to the red shirt, is
that correct?
‘‘A. Yes; on scene, yeah.
‘‘Q. Right, because you didn’t recognize the face of
the person in the red shirt, did you?
‘‘A. Recognize when?
‘‘Q. At the scene at that moment when the events
occurred, you did not recognize the face of the person
in the red shirt, did you?
‘‘A. I saw, I don’t remember it.
‘‘Q. Right. You . . . saw it, but it was a face you had
not seen before, correct?
‘‘A. Correct. . . .
‘‘Q. How is it then, officer, that nearly two years after
the events you’re able to say that the young man who
shot on the bridge is this young man right here?
‘‘A. I knew the name of the individual.
‘‘Q. But did you know the name on September 24th?
‘‘A. After the fact; yes.
‘‘Q. After the fact?
‘‘A. Yes.
‘‘Q. Somebody in the police department gave you the
name of the person in the red shirt?
‘‘A. Yes. . . . I pointed him out, let everyone know
that’s the individual who shot at me, and they identified
him for me, gave me his name.
‘‘Q. And so by way of the fact that you’ve been called
as a witness in this case and you know this case is
the state of Connecticut versus Robert Bullock, you
therefore conclude that the person who shot at you
must be the person at counsel table?
‘‘A. Yes.
‘‘Q. Has nothing to do with the face of the man,
does it?
‘‘A. No.’’
Thereafter, Granello testified that he was taken to a
hospital from the shooting scene, at which time he was
suffering from stress and anxiety. He testified that he
felt like his heart was racing, he felt light-headed and he
felt slightly dizzy. He testified that he did not experience
confusion following the shooting and that at no time
following the shooting did he experience any memory
loss concerning the events that occurred at the scene
of the shooting. Granello testified that he had not been
involved in a shooting incident prior to the events of
September 24, 2010. On redirect examination, Granello
testified that he was positive that the man lying on the
ground wearing the red shirt was the man who shot
at him.
In relevant part, Ferri testified that, prior to the time
that the shooting took place, he and Granello were
attempting to stop two individuals who were traveling
near one another on bicycles across the bridge. He
stated that he parked his police cruiser behind that of
Granello, and that he and Granello exited their police
cruisers. Ferri heard Granello order the individuals to
stop and show him their hands, but they did not comply.
While Ferri was approaching Granello on foot, the indi-
vidual wearing a red shirt began shooting at Granello
and the individual wearing a black sweatshirt began
firing at Ferri. Momentarily, Ferri took cover before
returning fire at the shooter dressed in all black. Ferri
testified that, during the shooting, the shooters were
standing perhaps six or eight feet apart. After the shoot-
ing ended, Ferri observed both shooters lying side by
side on the bridge. He stated that he was present when
both of the shooters were taken into police custody
and that he was ‘‘[a]bsolutely’’ positive that the person
wearing the red shirt had been shooting at Granello.
Ferri testified that he had been involved in a police
shooting a short time prior to the events of September
24, 2010. Also, Ferri testified that after the events of
September 24, 2010, he experienced a high level of
anxiety, shortness of breath, rapid heartbeats and con-
fusion. Ferri testified, however, that he had not experi-
enced memory loss and that he remembered the
shooting event daily. When asked by defense counsel
if he needed ‘‘some time in order to get the events
clear in [his] head before [he] wrote [his] report,’’ Ferri
replied in the negative. Ferri testified that as a result
of stress and physical injuries caused by the events that
transpired on the bridge, he ‘‘took administrative leave.’’
During his testimony, Ferri referred to the person
wearing the red shirt at the time of the shooting as ‘‘Mr.
Bullock.’’ He stated that he did not know the defendant’s
name at the time of the events that transpired on the
bridge, but that he learned it after the shooting incident.
When Ferri was shown a photograph of the defendant
at trial, he testified that he recognized the individual
depicted in the photograph as the person who was on
the bridge and, later, taken into custody in his presence.
In relevant part, Blackwell testified that, as a result
of police communications on September 24, 2010, he
traveled in his police cruiser to the bridge where the
shooting occurred. From a vantage point of approxi-
mately twenty-five feet away, from inside his police
cruiser, he observed Granello, who was getting out of
his police cruiser, and a person who was standing on
the sidewalk and wearing a red shirt. Blackwell esti-
mated that, prior to shots being fired, Granello was
approximately fifteen feet away from the person who
was wearing the red shirt. Blackwell stated that ‘‘[a]t
that point, the male—the party with the red shirt; I saw
his arm extended, then I heard two shots. I saw Sergeant
Granello drop to the ground, he removed his firearm.
I saw him go back toward the left side of his car. I
heard multiple shots being fired.’’ Blackwell stated that
he notified the police dispatcher that shots had been
fired and that an officer needed assistance. Blackwell
then exited his police cruiser, approached Granello and
walked to the sidewalk portion of the bridge. There he
observed two males, one who was wearing a black shirt
and another who was wearing a red shirt, lying on the
sidewalk. Blackwell stated that he had seen the person
who was wearing the red shirt on two prior occasions
and that he knew him to be ‘‘Robert Bullock.’’ Also,
Blackwell testified that he knew the defendant’s street
name. Blackwell identified the person who was wearing
a red shirt as the defendant, who was present in the
courtroom. Blackwell testified that he handcuffed the
defendant and took him into police custody.
During his cross-examination, Blackwell agreed with
the characterization of the defendant’s attorney that
the scene of the shooting was ‘‘a pretty frantic chaotic
scene . . . .’’ Blackwell disagreed, however, with the
suggestion that at the time of the shooting his ability
to observe relevant events had been impeded by the
sun, Granello, or Granello’s police cruiser. Blackwell
testified that although he was unable to determine
whether the person who was wearing a red shirt was,
during these events, on a bicycle or straddling a bicycle,
he observed him extend his arm. Blackwell stated that
he did not observe a firearm or flashes of light consis-
tent with the discharge of a firearm. Blackwell testified
that he did not have any doubt as to the identity of the
person who had been wearing a red shirt, had extended
his arm, and had shot a gun toward Granello on the
bridge, and that this person was the defendant, who
was seated in the courtroom.
Additionally, the state presented testimony from
Vitka, a bystander who was driving across the bridge
on her way home from work on September 24, 2010.
Vitka testified that when she drove onto the bridge that
day, she saw a man who was wearing a red shirt shoot-
ing in the direction of a police cruiser. Vitka stated that
she also observed a police officer returning fire. As a
result of the shooting, Vitka lay across the seat of her
automobile until after the shooting stopped. Vitka testi-
fied that the shooting took place all around her, but
she was a considerable distance from the person who
was wearing a red shirt. She stated that she believed
that this person was shooting a gun because of the way
that his arms were extended and because of the sound
of gunshots, but she did not see flames or smoke come
out of a gun in his possession. Vitka testified, as well,
that after the shooting, she was transported to the police
department by her brother, who was a Bridgeport
police officer.
The defendant testified that just prior to the shooting,
he and Long were crossing the bridge on their bicycles.
He testified that he was wearing a red shirt and that
Long was dressed in black clothing. The defendant testi-
fied that a police officer approached, parked his police
cruiser, exited the cruiser with his gun drawn, and
ordered him to put his hands up. The defendant stated
that as he was complying with this order, he heard
gunshots and dropped to the ground. The defendant
testified that once the shooting stopped, police officers
kicked him before transporting him to the police depart-
ment. The defendant testified that he was unarmed at
the time of the shooting.
A theory of defense, as reflected in the defendant’s
testimony, defense questioning of the eyewitnesses to
the shooting, and defense argument to the jury, was
that the defendant, though present at the scene of the
shooting, was unarmed at that time and that eyewit-
nesses at the scene mistakenly identified him as a
shooter. At trial, the defendant, however, did not
attempt to present expert testimony on the fallibility
of eyewitness identification testimony. Prior to the pre-
sentation of evidence, the defendant filed a lengthy
written request to charge that included a requested
instruction concerning the jury’s role in evaluating the
testimony of eyewitnesses to the shooting.3
During a charging conference that was held after
the presentation of evidence, the state objected to the
defendant’s proposed eyewitness instruction. The state
argued that the request was not appropriate because
it pertained to identifications made with the use of
photographic arrays or other out-of-court identification
procedures. Here, the state argued, no such subsequent
identifications were at issue because the witnesses
identified the defendant at the time of the crime and
at the scene of the crime, at which time he was arrested
and taken into police custody.
The court agreed with the state, stating: ‘‘I don’t think
this is a case that requires or even warrants the giving
of an eyewitness identification instruction to the jury.
Certainly, the jury is going to be made aware that the
state must prove that the defendant was . . . the per-
petrator of the crime or any crime. But I agree with
the state that the eyewitness identification instructions
which you’re asking me to give relate to matters that
are simply not present in these circumstances, and that
is . . . some of the things the state has just pointed
out by way of a subsequent out-of-court identification
among other things. Not exclusively, but among other
things, okay.’’ The defendant’s attorney took an excep-
tion to the court’s ruling.
The court instructed the jury that the state bore the
burden of proving beyond a reasonable doubt that the
defendant committed the offenses with which he was
charged. The court also provided the jury with instruc-
tions related to assessing the credibility and accuracy
of testimony generally. These instructions made clear
that the jury, as the sole arbiter of credibility, was care-
fully to scrutinize the testimony of each witness and to
determine whether to accept such testimony in whole,
in part, or at all.4 Additionally, the court instructed the
jury: ‘‘The testimony of a police officer is not entitled
to any special credibility simply because it comes from
a police officer. You should not automatically believe
or disbelieve them merely because they’re police offi-
cers. A police officer who takes the witness stand sub-
jects his testimony to the same tests that any other
witness does. You should recall their demeanor here
on the witness stand, the training, if any, in the field in
which they gave evidence, the manner of their testi-
mony, the substance of their testimony and their capac-
ity for observing facts and relating them to you reliably
and accurately. So, you should weigh their testimony
just as you would that of any other witness.’’
After the court delivered its charge, the defendant’s
attorney renewed his objection to the court’s decision
not to deliver the defendant’s requested instruction con-
cerning eyewitness identification testimony. In relevant
part, the defendant’s attorney stated: ‘‘Now, we can see
that this is not a case driven by photo arrays and lineups
subsequent to the alleged event, but this is still a case
that rises and falls on what motorists and police officers
at the scene observed as the crime unfolded. This is
absolutely a case where witnesses have come in and
testified about eyewitness identifications.’’ Also, the
defendant’s attorney asserted that the court should have
given an identity instruction, as had been set forth in
the defendant’s written request to charge. Following a
brief recess, the court delivered a supplemental jury
instruction addressing identity and identification
evidence.5
As the foregoing recitation of procedural history
reflects, the defendant preserved the claim of instruc-
tional error for appellate review by means of his written
request to charge or, alternatively, his exception to the
court’s charge. See Practice Book § 42-16. As with any
claim of instructional error, we must begin our analysis
by setting forth the appropriate standard of review.
The defendant states that the claim is constitutional in
nature and, accordingly, we must consider whether it
was reasonably possible that the court’s instructional
omission misled the jury. In this regard, the defendant,
citing State v. Clark, 264 Conn. 723, 729, 826 A.2d 128
(2003), likens the alleged instructional error to ‘‘[a]n
improper instruction on a defense in a criminal case.’’
Unlike Clark, which concerned an instruction pursu-
ant to General Statutes § 53a-19, the present case does
not concern an instruction related to an established
criminal defense. There is no support for the proposi-
tion that a claim related to the failure to deliver a
requested instruction related to eyewitness identifica-
tion evidence is of constitutional magnitude. Our
Supreme Court has held that identification instructions
are not constitutionally required6 and ‘‘ ‘[e]ven if [a]
court’s instructions were less informative on the risks
of misidentification than they might have been, the issue
is at most one of instructional error rather than constitu-
tional error. A new trial would only be warranted, there-
fore, if the defendant could establish that it was
reasonably probable that the jury was misled.’ ’’ State
v. Cerilli, 222 Conn. 556, 567, 610 A.2d 1130 (1992),
quoting State v. Tillman, 220 Conn. 487, 501, 600 A.2d
738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000,
120 L. Ed. 2d 876 (1992). ‘‘The ultimate test of a court’s
instructions is whether, taken as a whole, they fairly
and adequately present the case to a jury in such a
way that injustice is not done to either party under
the established rules of law.’’ (Internal quotation marks
omitted.) State v. Tatum, 219 Conn. 721, 734, 595 A.2d
322 (1991); State v. McKnight, 191 Conn. 564, 583, 469
A.2d 397 (1983).
‘‘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 crimi-
nal case is reversible . . . when it is shown that it is
. . . reasonably probable for nonconstitutional [impro-
prieties] that the jury [was] misled.’’ (Internal quotation
marks omitted.) State v. Kitchens, 299 Conn. 447, 455,
10 A.3d 942 (2011).
The defendant argues that the only evidence that he
was a shooter came in the form of eyewitness testimony
from Granello, Ferri, Blackwell and Vitka. He argues
that ‘‘[a]ll four eyewitnesses were affected in some
degree by stress, fear, expectation, weapon focus, and
distance.’’ Relying almost exclusively on State v. Guilb-
ert, 306 Conn. 218, 225–67, 49 A.3d 705 (2012), he argues
that the court improperly denied his request to charge
that covered these scientifically established psychologi-
cal and physical factors that, with respect to eyewitness
identification, affect perception and memory. He
asserts that the court improperly refused ‘‘to instruct
the jury on how to assess the factors elicited in cross-
examination of the most important state’s witnesses on
the most important point in the case, whether their
observations were accurate.’’ According to the defen-
dant, ‘‘[h]ad the trial court provided the jury with
instructions which advised them of the weak correla-
tion between certainty and accuracy, the single most
powerful determinant in jurors’ assessment of accuracy
would have been reduced. Had the jury known to apply
the proper factors in its assessment, [he] would have
been entirely acquitted.’’7
Relevant to the present appeal, the issue before our
Supreme Court in Guilbert was whether a trial court
improperly precluded a defendant from presenting
expert testimony on the fallibility of eyewitness identifi-
cation testimony. State v. Guilbert, supra, 306 Conn.
220. The defendant in Guilbert was convicted of one
count of capital felony, two counts of murder and one
count of assault in the first degree as a result of his
involvement in two shooting incidents that resulted in
the deaths of two victims and the life-threatening injur-
ies to another victim. Id., 220–22. The evidence demon-
strated that eyewitnesses to the relevant events,
including one of the victims, had identified the defen-
dant as the perpetrator following the events at issue.
Id., 223–24. Within hours of the shootings, the victim
identified the defendant by means of several photo-
graphic arrays. Id., 223. Between nine and ten days after
the shootings, two other eyewitnesses identified the
defendant to the police after they saw his photograph
in a newspaper. Id., 223–24. Yet another eyewitness,
who had lived with the defendant for a long period
of time, identified the defendant nine days after the
shootings. Id., 224.
Prior to trial, the defendant in Guilbert indicated that
he intended to call a witness as an expert on eyewitness
identifications. Id., 226. The state filed a motion to pre-
clude such evidence on the ground that the reliability
of eyewitness identifications is a matter within the
knowledge of the average juror. Id. Following an eviden-
tiary hearing, the court precluded the evidence. Id., 228.
On appeal, our Supreme Court in Guilbert held that
the trial court improperly had granted the state’s motion
to preclude, but that, in light of the court’s jury instruc-
tions concerning eyewitness identification, the error
was harmless. Id., 265–67. In reaching its holding, the
court expressly overruled earlier precedent that stood
for the proposition that expert testimony on the fallibil-
ity of eyewitness identification testimony was disfa-
vored because it invaded the jury’s province to
determine what weight, if any, to afford such eyewitness
testimony. Id., 226. This precedent included State v.
Kemp, 199 Conn. 473, 475, 507 A.2d 1387 (1986) (eyewit-
ness identification of defendant occurred by means of
police photoboards and photographic displays), and
State v. McClendon, 248 Conn. 572, 577, 730 A.2d 1107
(1999) (eyewitness identification of defendant made
two years following crime by means of police lineup
including voice sample by defendant). Contrary to the
rationale set forth in Kemp and McClendon, the court
in Guilbert held ‘‘that expert testimony on eyewitness
identification is admissible upon a determination by the
trial court that the expert is qualified and the proffered
testimony is relevant and will aid the jury.’’ State v.
Guilbert, supra, 306 Conn. 226. The court reasoned
that there was ‘‘widespread judicial recognition that
eyewitness identifications are potentially unreliable in
a variety of ways unknown to the average juror. This
broad based judicial recognition tracks a near perfect
scientific consensus.’’ (Footnote omitted.) Id., 234–35.
Accordingly, the court determined that an expert should
be permitted to testify about relevant factors8 that affect
the reliability of eyewitness identification evidence.
Id., 248.
Although the defendant in Guilbert raised an eviden-
tiary claim, and not a claim of instructional error, the
court provided guidance about the proper composition
of jury instructions related to the fallibility of eyewit-
ness identification evidence. The court stated: ‘‘We also
wish to reiterate that a trial court retains the discretion
to decide whether, under the specific facts and circum-
stances presented, focused and informative jury
instructions on the fallibility of eyewitness identifica-
tion evidence . . . would alone be adequate to aid the
jury in evaluating the eyewitness identification at issue.
We emphasize, however, that any such instructions
should reflect the findings and conclusions of the rele-
vant scientific literature pertaining to the particular
variable or variables at issue in the case; broad, general-
ized instructions on eyewitness identifications . . . do
not suffice.’’ (Citations omitted; footnote omitted.) Id.,
257–58. The court stated: ‘‘[T]he proper approach . . .
is to leave the development of any such jury instructions
to the sound discretion of our trial courts on a case-
by-case basis, subject to appellate review.’’ Id., 248 n.27.
In its new approach to the admissibility of expert
testimony concerning the fallibility of eyewitness identi-
fication evidence and in its discussion of jury instruc-
tions related to such evidence, our Supreme Court in
Guilbert undeniably sought to protect defendants from
a specific risk, that of being misidentified as perpetra-
tors by eyewitnesses to criminal activity. Because that
risk of misidentification is not implicated by the facts
of the present case, the defendant’s reliance on Guilbert
and his arguments in the present case are misplaced.
Guilbert’s safeguards are meant to ensure that a jury
will have necessary information by which to evaluate
eyewitness identification evidence, information that
will effectively educate the jury that, for a variety of
scientifically valid reasons, such identifications are
potentially unreliable. In the present case, the defendant
was afforded an ample opportunity to elicit, and did
elicit, facts from the eyewitnesses to the crime that
tended to undermine the reliability of their testimony.
The undisputed facts in the present case, which are
supported both by the state’s case as well as that of the
defendant, are that Granello approached the defendant
while he was crossing a bridge with Long. No other
individuals were near them on the bridge. After Granello
issued commands to these two individuals, gunfire
erupted for a very brief period of time. Seconds later,
Granello, Ferri, and Blackwell walked to the location
on the bridge where the defendant and Long were lying
on the ground. At that time, just moments after the
gunfire ceased, the defendant was taken into police
custody. It is undisputed that, at all times relevant both
prior to, during, and following the shooting, the defen-
dant was wearing a red shirt and Long was dressed in
black clothing. Granello, Ferri, Blackwell, and Vitka
identified the defendant by means of his clothing,
namely, his red shirt. Moreover, as a result of prior
experience, Blackwell knew the defendant by name.
On these facts, the risk of the type of misidentifica-
tion at issue in Guilbert is nearly nonexistent. The
method by which the defendant was identified as a
suspect in the present case is clearly distinguishable
from the type of identification procedures that were at
issue in Guilbert, Kemp, and McClendon. The eyewit-
nesses in the present case did not identify the defendant
days, weeks, or months following the events at issue.
They did not identify the defendant by means of an
identification procedure, such as a photographic array
or a show-up identification. Neither the eyewitnesses
nor the defendant had left the scene before the defen-
dant was taken into custody; the defendant was taken
into police custody at the crime scene just moments
after the shooting ended. The defendant was not identi-
fied as a suspect and, thereafter, taken into police cus-
tody as a result of any identification procedure, but
because he was effectively apprehended by the police
during his commission of the crime. It was what police
observed, the defendant’s clothing, and his physical
presence on the bridge at the time of the shooting that
led to his arrest. Although the defendant argues that
the type of instruction that he sought would have helped
the jury in evaluating the witnesses’ observations as to
what transpired on the bridge generally, Guilbert does
not address the fallibility of witness’ observations, but
the fallibility of eyewitness’ identifications.
Moreover, even a cursory review of the defendant’s
requested instruction reveals that it covered topics,
such as postincident identification procedures, that
were immaterial to the evidence presented in this case.
See footnote 3 of this opinion. The totality of the circum-
stances unique to the present case, in which the defen-
dant’s identification was unrelated to facial recognition,
lead us to conclude that the enhanced or focused jury
instructions sought by the defendant were not neces-
sary. Accordingly, we conclude that it is not probable
that the court’s instructions, which guided the jury to
carefully scrutinize the testimony of the eyewitnesses
to the shooting, misled the jury.
II
Next, the defendant claims that the court improperly
permitted the state to introduce prior misconduct evi-
dence and denied his motion for a mistrial related to
such evidence. We disagree.
The following additional facts and procedural history
are relevant to this claim. During his testimony, Ferri
stated that, just prior to the shooting at issue in the
present case, he was involved in an investigation in
the vicinity of Iranistan Avenue and Wood Avenue in
Bridgeport. He stated that he had been continuing his
investigation at the location of the Stratford Avenue
Bridge, where the shooting at issue in the present case
occurred. The defendant’s attorney offered a ‘‘standing
objection’’ on the grounds of relevancy and materiality
to the line of questioning that elicited this testimony.
In support of his objection, the defendant’s attorney
stated that the defense did not challenge ‘‘the basis’’
for the police conduct in stopping the defendant and
Long. The court overruled the objection.
The following day, the defendant’s attorney drew the
court’s attention to a motion in limine, filed by the
defense, to prohibit the state from presenting any evi-
dence related to the incident which preceded the shoot-
ing on the bridge. Specifically, the defendant’s motion,
referring to a disclosure made by the state, stated that
a shooting took place on Iranistan Avenue in Bridgeport
just twenty minutes prior to the shooting on the bridge,
Long was the suspected shooter, and the defendant
was present at that shooting.9 The defendant’s attorney
stated that the police had not charged the defendant
with any criminal offense in connection with that earlier
shooting and that the defendant denied any involvement
in it. The motion stated, inter alia, that the evidence at
issue was irrelevant and unduly prejudicial. The defen-
dant’s attorney argued that the court should preclude
any further reference to the police investigation of an
incident that occurred prior to the shooting and that
the court should instruct the jury that it should not
consider any evidence that related to the prior incident.
The court stated that the testimony up to that point
in the trial, from Granello and Ferri, merely suggested
that the police had stopped the defendant and Long on
the bridge as part of their investigation into another
matter in the area of Iranistan Avenue in Bridgeport.
The court stated: ‘‘[C]ertainly, the jury can . . . con-
clude from [that testimony] that there was some ongo-
ing investigation that caused the police to position
themselves on the bridge, and I don’t think that’s inap-
propriate. I think that’s highly appropriate, and it’s cer-
tainly not prejudicial. I think to further sanitize it would
. . . distort the context of why [the police] were there
and leave the jury to scratch their heads, you know,
what’s going on here, so to speak. I think some explana-
tion is necessary . . . .’’ Furthermore, the court stated
that part of the challenged testimony had been elicited
during the cross-examination of Granello and Ferri
when they were asked questions about the manner in
which they approached the defendant and Long on the
bridge and, specifically, why they did not have their
guns drawn at that time.10 The court stated that the
state had not elicited any unduly prejudicial testimony,
and that the court would consider the admissibility of
any additional testimony as well as the need for limiting
instructions, if necessary.
Later during the trial, on May 24, 2012, the defendant
moved for a mistrial on the ground that the testimony
up until that time, which included references to an
investigation at the time of the shooting, was prejudicial
in that it possibly suggested that the defendant had
been involved in a criminal incident, thereby making it
more likely that he possessed a gun on the bridge. The
prosecutor responded that, insofar as it concerned the
police investigation that caused the police to stop the
defendant and Long on the bridge, the testimony did
not suggest that the defendant was a suspect in any
wrongdoing, but merely that the police stopped the
defendant for a particular reason. The prosecutor indi-
cated that he had been careful to avoid eliciting any
details concerning the prior incident under investiga-
tion by the police. The court denied the motion for a
mistrial on the ground that the defendant was unable
to demonstrate that the testimony at issue had caused
any prejudice to his defense.
The next day, the defendant testified in relevant part
during his direct examination that at approximately 5
p.m. on the day of the shooting, he and Long were riding
on bicycles together and traveling across the bridge at
which time they encountered the police. The defendant
testified that he was unarmed during the events in ques-
tion. During the state’s cross-examination of the defen-
dant, the court permitted the prosecutor to ask the
defendant about his initial interaction with Long on
the day of the shooting. Among other inquiries, the
prosecutor asked the defendant if, prior to traveling to
the bridge, he was ‘‘in the area of Iranistan Avenue and
Wood Avenue’’ with Long, and whether he saw Long
‘‘shoot an individual over in that location . . . .’’ The
defendant replied in the negative, stating that he had
met Long that day at a YMCA, and that he had not
discussed an earlier shooting with Long. In permitting
this area of inquiry over the defendant’s objection, the
court observed that it intended to permit the state to
present evidence for the purpose of rebutting certain
evidence presented by the defendant, specifically, that
Long’s clothing tested positive for gunshot residue and
that he, therefore, had been the only person on the
bridge who discharged a firearm at the police.
The defense presented such gunshot residue evi-
dence from Fung Kwok, a physician employed by the
state forensic science laboratory. Kwok testified that
gunshot residue particles, which contain the elements
lead, barium, and antimony, form when a gun is fired.
This gunshot residue can land on a shooter’s clothing,
his or her hands, or on nearby surfaces. Kwok testified
that he examined a black short-sleeved shirt and a black
long-sleeved hoodie, both of which were shown to have
been worn by Long at the time of the shooting. Kwok
testified that particles containing some of these ele-
ments were detected on the front of the shirt, and that
particles containing all of these elements were detected
on the sleeves of the hoodie. With regard to the short-
sleeved red shirt that was shown to have been worn
by the defendant at the time of the shooting, Kwok
testified that the front of the red shirt tested positive
for one particle of lead and, thus, it did not test positive
for gunshot residue.
The court explained that, in light of this evidence,
the state would be permitted to present evidence that,
prior to the shooting on the bridge, ‘‘Long was at Iranis-
tan and Wood firing a weapon . . . [and] that this
defendant . . . was in the vicinity, but he was not
observed to be . . . shooting or armed.’’11 The court
stated that in light of the gunshot residue evidence and
the state’s anticipated rebuttal inquiries, it would not
be unduly prejudicial for the state to ask the defendant
about events that took place involving himself and Long
just prior to the shooting on the bridge. The court
viewed such testimony, related to the relationship
between the defendant and Long as well as their activi-
ties prior to the shooting, as relevant to and probative
of the issues in the case, and stated that it would deliver
some type of limiting instruction concerning the
evidence.
Later in the trial, on May 29, 2012, the defendant’s
attorney renewed his objection to the admission of any
additional evidence by the state related to a prior shoot-
ing incident on September 24, 2010. Following lengthy
arguments concerning this issue, the court concluded
that the evidence concerning the earlier shooting was
admissible primarily to rebut the defense argument,
based on the evidence, that Long’s clothing tested posi-
tive for gunshot residue because he was the only
shooter during the incident on the bridge. Also, the
court stated that the evidence was relevant to corrobo-
rate the state’s theory that there were two guns and
two shooters on the bridge, which was supported by
the evidence that two guns were recovered from the
Pequonnock River following the shooting.
As was set forth previously in this opinion, Ferri’s
testimony provided a basis on which the jury could find
that during the shooting on the bridge the defendant had
brandished a black gun and that Long had brandished a
black and silver gun. Additionally, Christopher
LaMaine, a lieutenant with the Bridgeport Police
Department, testified that the police conducted an
underwater search in the Pequonnock River following
the shooting. On September 24, 2010, police divers
recovered a black .380 caliber Baikal semiautomatic
gun, which was partially loaded, from the river. This
gun was located approximately ten feet from the South
side of the bridge, and it did not exhibit any rust or
decay, and it appeared to LaMaine that it had been
submerged for a short period of time. On September 27,
2010, police divers recovered a .40 caliber Springfield
Armory pistol approximately ten feet from the bridge
and ten feet from the location at which the police had
discovered the first gun.
During the state’s case-in-chief, Joette Devan, a detec-
tive with the Bridgeport Police Department, testified
that during her examination of the crime scene on the
bridge, she collected three .380 caliber shell casings
from the sidewalk portion of the bridge. The state pre-
sented testimony from Marshall Robinson, a firearms
examiner employed by the state police forensic labora-
tory and the Bridgeport Police Department, who testi-
fied on the basis of his examination of these .380 caliber
shell casings and the Baikal .380 semiautomatic pistol,
the weapon that the police divers first had recovered
from the Pequonnock River, that the shell casings had
been fired from that pistol, which functioned normally.
During the state’s rebuttal case, the state presented
the testimony of Juan Villafane, a Bridgeport police
officer. In relevant part, Villafane testified that, on Sep-
tember 24, 2010, he responded to the vicinity of Iranis-
tan Avenue and Wood Avenue after the police learned
of a reported shooting at that location, at which time
he observed an injured person who appeared to have
been shot, as well as shell casings. The state also pre-
sented testimony from Deputy Chief James Baraja of
the Bridgeport Police Department, who testified that
he responded to this crime scene, observed a gunshot
victim, and guarded six shell casings found at the scene,
until such time as they had been collected by another
police officer. He stated that, while he was on the scene,
the police received information that an officer needed
assistance at the Stratford Avenue Bridge and that he
sent officers to that scene.12 Robinson, the state’s ballis-
tics expert, testified during the state’s rebuttal case
that he performed a forensic examination of the six .40
caliber Smith and Wesson cartridge casings that Baraja
discussed during his testimony and that he concluded
that the shell casings had been fired from the .40 caliber
Springfield Armory pistol, the second gun that the
police divers had recovered from the river.
Immediately after the state concluded its rebuttal
case, the court, at the request of the defense, delivered
an instruction that limited the jury’s consideration of
the evidence concerning the prior shooting incident on
September 24, 2010. Among other things, this instruc-
tion related to evidence that shell casings found at the
scene of the prior shooting came from a gun that was
recovered from the Pequonnock River. The court stated
that the jury was not to consider any evidence related
to the prior shooting as proof that the defendant was
involved in the prior shooting or of his character, but
merely for the purpose of evaluating evidence of gun-
shot residue on Long’s clothing and a gun found in
the Pequonnock River.13 During its charge, the court
reiterated an instruction of a similar nature, emphasiz-
ing that the evidence was relevant to an assessment of
the gunshot residue evidence as well as an evaluation
of the actions of the police on the bridge, but not as
proof that the defendant was involved in the prior shoot-
ing or of his character.14 The defendant did not object
to either instruction.
As it pertains to the evidence related to the earlier
shooting that occurred on September 24, 2010, the
defendant raises two distinct claims. First, he claims
that the court improperly denied his motion for a mis-
trial on May 24, 2012. Second, he raises an evidentiary
claim in which he asserts that the court improperly
permitted the state to present prior misconduct evi-
dence related to the earlier shooting. We will address
each claim, in turn.
A
The defendant does not devote a significant portion
of his argument to the court’s denial of his motion for
a mistrial. In support of this claim, he appears to rely
on his arguments that any evidence related to the prior
shooting was improperly admitted and unduly preju-
dicial.
As the defendant correctly observes, on May 24, 2012,
the time that he moved for a mistrial and the court
ruled on the motion, the court merely had permitted
the state to present evidence that the police stopped
him on the bridge in the course of their investigation
of some type of incident—the state had not yet pre-
sented any evidence of a detailed nature that a prior
shooting had occurred earlier that day. The defendant’s
attorney argued that even such generic references to a
police investigation were prejudicial in that they sug-
gested wrongdoing on the part of the defendant, but the
court rejected this rationale. In considering the court’s
ruling, we, of course, look to the facts and arguments
before the court at the time that it made its ruling. See
State v. Harris, 32 Conn. App. 476, 481 n.4, 629 A.2d
1166 (‘‘[w]e are bound to evaluate the propriety of the
trial court’s rulings on the basis of the facts known to
the court at the time of its rulings’’), cert. denied, 227
Conn. 928, 632 A.2d 706 (1993).
‘‘Although the remedy of a mistrial is permitted under
the rules of practice, it is not favored. [A] mistrial should
be granted only as a result of some occurrence upon
the trial of such a character that it is apparent to the
court that because of it a party cannot have a fair trial
. . . and the whole proceedings are vitiated. . . . If
curative action can obviate the prejudice, the drastic
remedy of a mistrial should be avoided. . . .
‘‘[T]he principles that govern our review of a trial
court’s ruling on a motion for a mistrial are well estab-
lished. Appellate review of a trial court’s decision grant-
ing or denying a motion for a [mistrial] must take into
account the trial judge’s superior opportunity to assess
the proceedings over which he or she has personally
presided. . . . Thus, [a] motion for a [mistrial] is
addressed to the sound discretion of the trial court and
is not to be granted except on substantial grounds. . . .
In [its] review of the denial of a motion for [a] mistrial,
[our Supreme Court has] recognized the broad discre-
tion that is vested in the trial court to decide whether
an occurrence at trial has so prejudiced a party that he
or she can no longer receive a fair trial. The decision
of the trial court is therefore reversible on appeal only
if there has been an abuse of discretion.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Reilly,
141 Conn. App. 562, 568, 61 A.3d 598 (2013).
At the time that the court made its ruling, which was
before it had admitted a significant amount of evidence
related to the prior shooting, the state had presented
evidence from which the jury reasonably could infer
that the police had some legitimate interest in stopping
the defendant and Long on the Stratford Avenue Bridge.
The evidence did not necessarily suggest that the defen-
dant had engaged in any type of wrongdoing prior to
the stop. Like the trial court, we conclude that the
evidence was not in any way prejudicial to the defen-
dant. Furthermore, even if it could properly be viewed
as being unduly prejudicial to the defense, any danger
inherent in its admission would have been cured by
the court’s limiting instructions, which were tailored
to cure such prejudice. ‘‘It is axiomatic that a jury is
presumed to have followed a court’s limiting instruc-
tions. . . . [I]nstructions limiting the use of the . . .
evidence [serve] to minimize any prejudicial effect that
it otherwise may have . . . .’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. Kantorowski,
144 Conn. App. 477, 492, 72 A.3d 1228, cert. denied, 310
Conn. 924, 77 A.3d 141 (2013).
Although this claim is limited to the evidence that
the court had admitted at the time that the court denied
the motion for a mistrial, we reject in part II B of this
opinion the defendant’s claim that the court improperly
admitted any evidence related to the prior shooting. In
our analysis of the present claim, we are mindful of
our analysis of relevance and prejudice in that portion
of our opinion, for the defendant is unable to demon-
strate that the court’s proper admission of evidence
necessitates a mistrial. On these facts, the defendant
has not demonstrated that the court’s denial of a motion
for a mistrial constituted an abuse of discretion.
B
Next, we address the defendant’s evidentiary claim.
The defendant argues that the court abused its discre-
tion in admitting the evidence related to the earlier
shooting because (1) it was not admissible as prior
misconduct evidence and (2) it was more prejudicial
than probative. ‘‘[O]ur standard of review regarding
challenges to a trial court’s evidentiary rulings is that
these rulings will be overturned on appeal only where
there was an abuse of discretion and a showing by the
defendant of substantial prejudice or injustice. . . . In
reviewing claims that the trial court abused its discre-
tion, great weight is given to the trial court’s decision
and every reasonable presumption is given in favor of
its correctness. . . . We will reverse the trial court’s
ruling only if it could not reasonably conclude as it
did.’’ (Internal quotation marks omitted.) State v. Hart,
118 Conn. App. 763, 786, 986 A.2d 1058, cert. denied,
295 Conn. 908, 989 A.2d 604 (2010).
1
As an initial matter, we disagree with the defendant
that the evidence at issue falls within the category of
prior misconduct evidence. The state did not offer the
evidence as prior misconduct evidence, and the court
did not admit it on that ground.
Section 4-5 of the Connecticut Code of Evidence pro-
vides: ‘‘(a) Evidence of other crimes, wrongs or acts
inadmissible to prove character. Evidence of other
crimes, wrongs or acts of a person is inadmissible to
prove the bad character or criminal tendencies of
that person.
‘‘(b) When evidence of other crimes, wrongs or acts
is admissible. Evidence of other crimes, wrongs or acts
of a person is admissible for purposes other than those
specified in subsection (a), such as to prove intent,
identity, malice, motive, common plan or scheme,
absence of mistake or accident, knowledge, a system
of criminal activity, or an element of the crime, or to
corroborate crucial prosecution testimony.
‘‘(c) Specific instances of conduct when character in
issue. In cases in which character or a trait of character
of a person in relation to a charge, claim or defense is
in issue, proof shall be made by evidence of specific
instances of the person’s conduct.’’
A reasonable interpretation of the evidence at issue
does not suggest that it was presented to demonstrate
that the defendant had engaged in any type of crime,
wrong or act in connection with the prior shooting.
Moreover, the court, by way of its limiting instructions
both during the trial and during its charge, unambigu-
ously instructed the jury that it was not to consider
the evidence at issue as proof that the defendant had
engaged in any wrongdoing or that he had bad character
or propensities. We observe, additionally, that the state,
during closing argument, did not make any suggestion
to the contrary. Under these circumstances, we con-
clude that this aspect of the defendant’s claim is with-
out merit.
2
We next address the defendant’s argument that any
evidence related to the prior shooting was more prejudi-
cial than probative. In the defendant’s brief, this argu-
ment is intertwined with his argument that the evidence
should not have been admitted as prior misconduct.
Although we have rejected the defendant’s characteriza-
tion of the claim as one involving the admission of prior
misconduct evidence, we recognize that, on several
occasions during the course of the trial, the defendant
had objected to the admission of any evidence related
to the earlier shooting on the grounds of relevance and
prejudice. Therefore, it is appropriate that we address
separately this aspect of the claim.
‘‘[R]elevant evidence is evidence that has a logical
tendency to aid the trier in the determination of an
issue. . . . Evidence is relevant if it tends to make the
existence or nonexistence of any other fact more proba-
ble or less probable than it would be without such
evidence. . . . To be relevant, the evidence need not
exclude all other possibilities; it is sufficient if it tends
to support the conclusion [for which it is offered], even
to a slight degree. . . . All that is required is that the
evidence tend to support a relevant fact even to a slight
degree, so long as it is not prejudicial or merely cumula-
tive.’’ (Internal quotation marks omitted.) State v.
Andrews, 313 Conn. 266, 275–76, 96 A.3d 1199 (2014);
see also Conn. Code Evid. § 4-1. ‘‘Relevant evidence
may be excluded if its probative value is outweighed
by the danger of unfair prejudice . . . .’’ Conn. Code
Evid. § 4-3. ‘‘All evidence adverse to a party is, to some
degree prejudicial. To be excluded, the evidence must
create prejudice that is undue and so great as to threaten
injustice if the evidence were to be admitted.’’ (Internal
quotation marks omitted.) State v. Hernandez, 28 Conn.
App. 126, 138, 612 A.2d 88, cert. denied, 223 Conn. 920,
614 A.2d 828 (1992).
In evaluating the relevance of the evidence at issue,
we are mindful that the defendant relied on evidence
concerning gunshot residue on Long’s clothing in sup-
port of the argument that Long was the lone shooter
on the Stratford Avenue Bridge. During closing argu-
ment, the defendant argued that the evidence demon-
strated that, in contrast to the clothing he wore at the
time of the shooting, Long’s clothing ‘‘had the type and
the amount of residue that you would find if a person
had discharged a firearm.’’ The evidence related to the
prior shooting tended to demonstrate that Long’s cloth-
ing tested positive for gunshot residue not because he
was the only shooter on the bridge, but because, in
accordance with the state’s version of the facts, he had
discharged a .40 caliber Springfield Armory pistol at
the scene of the prior shooting and, a very short time
later, on the bridge.
Setting aside the issue of gunshot residue, the court
also instructed the jury that the evidence concerning
the earlier shooting was relevant to its consideration
of when the Springfield Armory pistol had been depos-
ited in the Pequonnock River. The value of the evidence
in this regard is significant because it tended to support
a finding that, consistent with the state’s version of the
facts, the pistol had been deposited in the river just
after the shooting on the bridge ended.
Moreover, previously in this opinion, we discussed
the fact that during cross-examination, the defendant’s
attorney opened the door into an examination as to
whether the police officers had approached the defen-
dant and Long on the bridge with an appropriate degree
of caution under the circumstances. See footnote 9 of
this opinion. Before any details of a prior investigation
or shooting were before the jury, the defendant’s attor-
ney engaged in this field of inquiry after indicating to
the court that the defense did not intend to challenge
the legality of the actions of the police in stopping the
defendant. Under these circumstances, it was fair to
permit the state to present the jury with evidence that
reflected the context of the events giving rise to the
police actions at issue.
Having identified that the evidence related to the
prior shooting had probative value in light of certain
issues raised by the defense, we readily reject the argu-
ment that the evidence was unduly prejudicial to the
defense.15 The prosecutor asked the defendant whether
he was present, prior to the shooting on the bridge,
when Long shot someone, to which the defendant
replied that he did not know anything about a prior
shooting. Although the state presented forensic evi-
dence and testimony by the police related to the prior
shooting, the state did not present any evidence that
the defendant engaged in any wrongdoing in connection
with the prior shooting. Moreover, the court delivered
limiting instructions that guided the jury to a proper
use of the evidence at issue. As we stated previously
in this opinion, absent any indication to the contrary,
we may presume that the jury followed such instruc-
tions. See State v. Kantorowski, supra, 144 Conn.
App. 492.
III
Next, we address the defendant’s claim that the court
improperly permitted the prosecutor to question him
concerning a statement that he allegedly made prior to
the time of the shooting on the bridge. We disagree.
The record reflects that during the state’s cross-exam-
ination of the defendant, the following colloquy took
place:
‘‘Q. . . . [A]re you familiar with the expression, to
roll up when somebody rolls up on you?
‘‘A. Yes.
‘‘Q. What does that mean?
‘‘A. When, like, someone run up on you. . . .
‘‘Q. Like, in a car?
‘‘A. In walking, whatever it may be, whatever it may
be; walking, running.
‘‘Q. All right. Could it apply to a car approaching you?
‘‘A. Yes; it could.
‘‘Q. All right. And are you familiar with the expression
when you say, let’s bounce or to bounce?
‘‘A. Yes.
‘‘Q. What’s that mean?
‘‘A. To . . . leave.
‘‘Q. All right. Do you recall telling an individual
before this incident on September the 24th that if you’re
with me and the police roll up, bounce cause I’m
shooting?
’’A. No; I never said nothing like that.’’ (Emphasis
added.)
After the defendant’s testimony concluded, and out-
side of the presence of the jury, the defendant’s attorney
noted for the record that, at sidebar, he had raised
an objection to the state’s question concerning a prior
statement by the defendant, emphasized previously.
The defendant’s attorney stated that he objected to the
question on the grounds that it was beyond the scope
of the defendant’s direct examination, it was unduly
prejudicial, and the defense lacked sufficient facts
about the source of the information on which it was
based. The defendant’s attorney represented that the
prosecutor had advised him of this topic prior to the
commencement of evidence. Additionally, the defen-
dant’s attorney moved for a mistrial on the basis of the
question posed by the prosecutor.
Discussing the factual basis of the question that he
asked of the defendant, the prosecutor stated that
Blackwell informed him that he had spoken with an
individual who was familiar with the defendant and the
allegations in this case. That person told Blackwell that
he was not surprised when he learned of the allegations
because the defendant had told him that ‘‘if you are
with me and the police roll up, bounce because I’m
shooting . . . .’’ The prosecutor stated that the individ-
ual who related these facts to Blackwell was someone
‘‘who he has worked with’’ and someone who had pro-
vided ‘‘reliable’’ information to Blackwell.
The court overruled the defendant’s objection and
denied his motion by stating: ‘‘[T]he question . . . is
certainly designed to elicit . . . information that would
be highly relevant and probative. The state had a good
faith basis to ask the question. While there may not
have been a police report that memorialized this conver-
sation [between Blackwell and the third party] . . .
counsel was advised of it prior to the start of the evi-
dence. . . . I assume that until the defendant made the
decision to testify, it’s not a question that would have
been asked. So, I think that . . . I did rule that the
objection would be overruled, and those are the rea-
sons why.
‘‘I think a mistrial is answered by the same comments.
The motion for mistrial is denied. It creates no substan-
tial or irreparable prejudice of any kind, and, again, the
jury will be instructed that it’s not the questions asked
but the answers given to those questions that are, in
fact, evidence. That’s the ruling.’’
Several days later, the defendant’s attorney renewed
his motion for a mistrial and expressed his concern that
the jury might conclude that, although the defendant
denied making the statement at issue in the prosecutor’s
question, the opposite answer to the question is true.
The defendant’s attorney stated that if the jury were to
draw such an improper inference from the question and
the defendant’s reply to it, it would deny the defendant
a fair trial and infringe on his right to testify. The court
denied the motion, stating in relevant part: ‘‘[T]he state
did have a good faith basis to ask the question. The
witness was asked the question, denied it and then the
examination moved on. . . . I don’t think that the sim-
ple asking of the question creates a specter of prejudice
to the defendant under all the circumstances.’’
The defendant acknowledges that ‘‘the state had a
good faith basis for asking the question.’’ Nevertheless,
he argues that the court erroneously permitted the pros-
ecutor to ask him about his prior statement because
the inquiry was not relevant and was unduly prejudicial
to the defense.16 As stated previously, both of these
evidentiary claims were raised before the trial court.17
Our deferential standard of review of evidentiary rulings
is set forth in part II of this opinion. This evidentiary
claim is premised on the well settled authority that,
following a timely objection on these grounds, the court
has a basic judicial duty to prohibit inquiry into subjects
that are not relevant or that are unduly prejudicial to
the defense. See Conn. Code Evid. §§ 4-2 and 4-3.
We agree with the court’s assessment that the ques-
tion posed by the prosecutor and the defendant’s testi-
mony in response to the question were highly relevant
to the issues before the jury. The central factual issue
before the jury was whether the defendant, when
approached by the police, brandished a firearm and
opened fire in the direction of the police. The question
posed by the prosecutor sought to ascertain whether,
prior to the shooting on the bridge, the defendant essen-
tially had stated that if he was stopped by the police
he would begin shooting. It belies logic to suggest, as
does the defendant, that such an inquiry was ‘‘not proba-
tive of anything.’’ If the defendant answered the prose-
cutor’s inquiry in the affirmative, it certainly would
render it more likely than it would be absent such testi-
mony that the defendant acted in conformity with his
prior statement when, on September 24, 2010, he was
stopped by Granello and the other officers on the Strat-
ford Avenue Bridge. Another important factual issue
before the jury concerned the defendant’s intent. If the
defendant answered affirmatively, the testimony would
be compelling evidence that the defendant, in shooting
at Granello, acted with the intent to cause serious physi-
cal injury; see General Statutes § 53a-59 (a) (1); or to
cause death. See General Statutes § 53a-54a (a).
Because the inquiry was highly probative, the defen-
dant faces a difficult task to demonstrate that the
inquiry or the evidence that resulted from it was unduly
prejudicial and that the undue prejudice outweighed
the probative value of the evidence. To demonstrate
reversible evidentiary error in this regard, it is insuffi-
cient for the defendant simply to demonstrate that the
trial court admitted highly prejudicial evidence; the evi-
dence must have been unduly prejudicial in light of the
facts of the case, such that its admission was unfair to
the defendant. See, e.g., State v. Hernandez, supra, 28
Conn. App. 138. The defendant argues that the prosecu-
tor’s question unfairly suggested that the defendant and
Long were ‘‘chillingly violent urban criminals’’ and that
it blunted the defense theory of the case with ‘‘the media
image of urban gang-bangers.’’ The prosecutor’s inquiry
consisted of a single question concerning a prior state-
ment. There is no dispute that the prosecutor had a
good faith basis to make the inquiry, and we already
have determined that it was highly relevant to material
issues in the case. Although the statement at issue cer-
tainly was unfavorable to the defense, the question did
not suggest any prior wrongful conduct on the part of
the defendant or that he made this statement to one or
more persons who had engaged in wrongful conduct.
The defendant’s response to the inquiry consisted of
a simple denial, and the prosecutor did not ask the
defendant any additional questions related to this issue.
The defendant’s argument that the prosecutor’s care-
fully tailored inquiry was unfair because it conjured up
negative images of urban youth is unpersuasive because
the prosecutor had a good faith basis for the inquiry,
it was highly relevant to the issues before the jury,
and it was limited to its most basic facts. Under these
circumstances, we disagree that the brief inquiry was
unduly prejudicial to the defense. Furthermore, the
court carefully tailored its instructions to address con-
cerns advanced by the defendant. The court instructed
the jury that questions were not evidence and that,
absent relevant evidence to the contrary, it was not
permitted to infer that the opposite of a witness’ testi-
mony was true.18 These instructions lessen the likeli-
hood that the inquiry was unduly prejudicial to the
defendant. For the foregoing reasons, we conclude that
the defendant has not demonstrated that the court’s
admission of the evidence at issue constituted an abuse
of discretion.
IV
Finally, the defendant claims that his conviction of
attempt to commit assault in the first degree in violation
of §§ 53a-59 (a) (1) and 53a-49 should be set aside
because the court improperly instructed the jury with
regard to the element of intent. We disagree.
We begin our review of the relevant facts by setting
forth a relevant portion of the court’s charge for the
crime of attempted murder because the court referred
to this earlier instruction when it instructed the jury
concerning the crime at issue. In this earlier portion of
its charge, the court stated, in relevant part: ‘‘For you
to find the defendant guilty of the charge of attempt
to commit murder, the state must prove the following
elements beyond a reasonable doubt. The first element
is that the defendant had the kind of mental state
required for commission of . . . murder. The intent for
that crime is the specific intent to cause the death of
another person. Here, it’s alleged that the defendant
had the specific intent to cause the death of Sergeant
Gregory Granello. Intent relates to the condition of
mind of the person who commits the act, his purpose
in doing it. Specific intent is the intent to achieve a
specific result. A person acts intentionally with respect
to a result when his conscious objective is to cause
such result. There’s no specific length of time required
for a defendant to have formed this specific intent. What
the defendant intended is a question of fact for you to
determine. Now, what a person’s intention was is usu-
ally a matter to be determined by inference. No person
is able to testify that he looked into another’s mind and
saw therein a certain knowledge or certain purpose or
intention to do harm to another . . . [and] intent is
generally proved by circumstantial evidence. The only
way a jury can ordinarily determine what a person’s
intention was at any given time is by determining what
the person’s conduct was and what the circumstances
were surrounding that conduct and from that infer what
his intention was.
‘‘The type of the instrumentality used, here, a firearm,
in the circumstances of its use may be considered as
evidence of the perpetrator’s intent, and from such evi-
dence an inference may be drawn that there was intent
to cause a death. Any inference that may be drawn from
the nature of the instrumentality used and the manner
of its use is an inference of fact to be drawn by you
upon consideration of these and other circumstances
in the case in accordance with my previous instructions.
This inference is not a necessary one; that is, you are
not required to infer intent from the defendant’s alleged
conduct or from the nature of any instrumentality used.
But it is an inference you may draw if you find it is
reasonable and logical, and in accordance with my
instructions on circumstantial evidence.
‘‘To draw such an inference is the proper function
of a jury, provided, of course, that the inference drawn
complies with the standards for inferences as explained
in connection with my instruction on circumstantial
evidence. The inference is not a necessary one. You’re
not required to infer a particular intent from the defen-
dant’s conduct or statements, but it’s an inference that
you may draw if you find it’s reasonable and logical. I
again remind you that the burden of proving intent
beyond a reasonable doubt is on the state.’’
In the context of its instruction for the crime of
attempt to commit assault in the first degree, the court
instructed the jury, in relevant part: ‘‘The first element
is that the defendant had the kind of mental state
required for the commission of the crime of assault in
the first degree. The intent for that crime is the specific
intent to cause serious physical injury to another person
by means of a deadly weapon. A person acts intention-
ally with respect to . . . a result when his conscious
objective is to cause such result. In count two, the state
claims that the conscious objective of the defendant
was to cause serious physical injury to Sergeant Greg-
ory Granello by means of a deadly weapon, here, a
handgun. Again, what the defendant’s intention was is
a question of fact for the jury. You should apply my
previous instructions concerning evidence of intent and
the drawing of inferences for purposes of determining
the defendant’s intention.’’
The defendant argues that the court’s instruction was
deficient because the court declined to deliver an
instruction that he requested, specifically, that ‘‘the use
of a weapon, such as a gun, does not in and of itself
prove that a defendant specifically intended to cause
the death of another person.’’ The defendant argues that
‘‘while the presumption may be appropriate in cases
involving an actual homicide or assault, it is pure specu-
lation to draw such a conclusion in an attempted assault
case, like this one.’’
The defendant submitted a written request to charge
and, in the portion of the written request entitled
‘‘Attempted Murder,’’ the defendant sought an instruc-
tion that stated, in relevant part: ‘‘[T]he type and manner
of the instrument used may be considered as evidence
of a defendant’s intent, and from such evidence an infer-
ence may be drawn that there was intent to cause death.
Any inference that may be drawn from the nature of
the instrumentality used and the manner of its use is
an inference of fact to be drawn by you upon consider-
ation of these and other circumstances in the case in
accordance with my previous instructions. Please
know, however, that the use of a weapon, such as a
gun, does not in and of itself prove that a defendant
specifically intended to cause the death of another per-
son.’’ The defendant did not file a written request to
charge that covered the elements of the crime integral to
this claim, attempt to commit assault in the first degree.
During the charging conference, the defendant’s
attorney objected to the fact that the court had not
included in its draft charge the language set forth pre-
viously concerning intent that he had suggested in his
written request to charge. In this regard, the defendant’s
attorney explicitly referred to the instruction he had
set forth in his request to charge covering the requisite
intent for the crime of attempted murder. At one point
during a lengthy discussion of the court’s proposed
murder charge, the defendant’s attorney stated that it
was important for the court to convey to the jury that
it was not to infer from the fact that the defendant
discharged a gun that there ‘‘necessarily had been an
intent to kill or an intent to seriously injure.’’ The court
responded by stating that it would ‘‘give some language
concerning what inferences they may draw but are not
required to draw concerning the instrumentality, and
the use of that instrumentality and the circumstances.
But certainly, I’m not going to indicate to the jury that
they’re required to draw any inference from those cir-
cumstances. I agree with that proposition from the
defense, so it will be balanced in that regard.’’
After the court delivered its charge, the defendant’s
attorney objected as follows: ‘‘[U]nder count one, Your
Honor did give an instruction on specific intent and did
talk to the jury about the . . . presence of an instru-
ment in connection with finding or not finding specific
intent, and I just want to point out to the court that
although we don’t quarrel with the fact that the court
can instruct the jury with regard to the presence . . .
of an instrument, in other words, a weapon and sizing
up whether specific intent is established, we did request
at page 57 of our proposed charge in March the follow-
ing sentence; please know, however, that the use of a
weapon such as a gun does not in and of itself prove
that a defendant specifically intended to cause the death
of another person. . . . I did want to bring that to Your
Honor’s attention because we feel that a sentence like
that tends to balance the instruction.’’
The parties are in disagreement as to whether the
defendant’s claim of instructional error was properly
preserved before the trial court. ‘‘An appellate court
shall not be bound to consider error as to the giving
of, or the failure to give, an instruction unless the matter
is covered by a written request to charge or exception
has been taken by the party appealing immediately after
the charge is delivered. Counsel taking the exception
shall state distinctly the matter objected to and the
ground of exception. . . .’’ Practice Book § 42-16. ‘‘The
purpose of the rule is to alert the court to any claims
of error while there is still an opportunity for correction
in order to avoid the economic waste and increased
court congestion caused by unnecessary retrials.’’
(Internal quotation marks omitted.) State v. Miller, 186
Conn. 654, 658, 443 A.2d 906 (1982).
Arguing that the claim is not preserved, the state
correctly observes that the instruction at issue was
included only in a request to charge for the crime of
attempted murder. The defendant argues that his writ-
ten request to charge adequately preserved the claim.
Additionally, he argues that, during the charge confer-
ence, he argued that the requested instruction was war-
ranted to convey to the jury that it was not to infer
from the fact that the defendant discharged a gun that
there ‘‘necessarily had been an intent to kill or an intent
to seriously injure.’’ (Emphasis added.) The defendant
argues that his reference to an intent to seriously injure
plainly conveyed that his argument and request to
charge applied not only to the instruction covering
attempted murder, but to the instruction covering
attempt to commit assault in the first degree. Alterna-
tively, the defendant seeks review under State v. Gold-
ing, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).
We agree with the state that the defendant’s request
to charge did not adequately preserve this issue for our
review because it was a request to charge covering the
specific intent for the crime of attempted murder. Also,
the defendant’s exception to the charge appears to have
been related to the instruction for the crime of
attempted murder; it did not encompass the charge for
attempt to commit assault in the first degree. During a
lengthy charging conference, the defendant’s attorney
made an isolated remark concerning the specific intent
to cause serious physical injury. Yet, in light of the fact
that the argument was based on the written request to
charge, which covered the crime of attempted murder,
it is unreasonable to conclude that this isolated refer-
ence to the intent to cause serious physical injury dis-
tinctly raised any issue related to the assault charge.
The isolated statement, during a lengthy colloquy unre-
lated to the assault charge, cannot be said to have
alerted the court to the fact that the argument concern-
ing a proper intent instruction also was meant by the
defense to apply to the instruction for attempt to com-
mit assault in the first degree.
Although we conclude that the claim was not ade-
quately preserved, we conclude that it is reviewable
under Golding. ‘‘[A] defendant can prevail on a claim
of constitutional error not preserved at trial only if all
of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the
claim is of constitutional magnitude alleging the viola-
tion of a fundamental right; (3) the alleged constitu-
tional violation clearly exists and clearly deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis in original; footnote
omitted.) Id.
The record is adequate to review the claim of instruc-
tional error, and a claim of instructional error related to
the essential elements of an offense is of constitutional
magnitude. ‘‘It is . . . constitutionally axiomatic that
the jury be instructed on the essential elements of a
crime charged. . . . A claim that the trial court failed
to instruct the jury adequately on an essential element
of the crime charged necessarily involves the defen-
dant’s due process rights and implicates the fairness of
his trial.’’ (Internal quotation marks omitted.) State v.
Felder, 95 Conn. App. 248, 258, 897 A.2d 614, cert.
denied, 279 Conn. 905, 901 A.2d 1226 (2006).
Having concluded that the claim is reviewable under
Golding, we turn to an evaluation of its merits. ‘‘[I]ndi-
vidual jury instructions should not be judged in artificial
isolation, but must be viewed in the context of the
overall charge. . . . The pertinent test is whether the
charge, read in its entirety, fairly presents the case to
the jury in such a way that injustice is not done to either
party under the established rules of law. . . . Thus,
[t]he whole charge must be considered from the stand-
point of its effect on the [jurors] in guiding them to the
proper verdict . . . and not critically dissected in a
microscopic search for possible error. . . . Accord-
ingly, [i]n reviewing a constitutional challenge to the
trial court’s instruction, we must consider the jury
charge as a whole to determine whether it is reasonably
possible that the instruction misled the jury. . . . In
other words, we must consider whether the instructions
[in totality] are sufficiently correct in law, adapted to
the issues and ample for the guidance of the jury.’’
(Citation omitted; internal quotation marks omitted.)
State v. Peeler, 271 Conn. 338, 360–61, 857 A.2d 808
(2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L.
Ed. 2d 110 (2005). ‘‘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.’’ (Internal quota-
tion marks omitted.) State v. Kitchens, supra, 299
Conn. 455.
The gist of the defendant’s claim is that it is reason-
ably possible that the court’s instruction conveyed a
mandatory presumption that the defendant’s use of a
deadly weapon was proof of his intent to kill, thus
diluting the state’s burden of proof on the essential
element of intent. As the defendant correctly observes,
however, the jury properly may be instructed that it
may draw an inference concerning a defendant’s intent
from his use of a deadly weapon. ‘‘In Sandstrom v.
Montana, [442 U.S. 510, 517–24, 99 S. Ct. 2450, 61 L.
Ed. 2d 39 (1979)], the United States Supreme Court held
that a jury instruction that the law presumes that a
person intends the ordinary consequences of his volun-
tary acts violated the defendant’s due process rights
because a reasonable jury could have interpreted the
instruction as a conclusive or burden-shifting presump-
tion and thus relieved the state of its burden of proving
every element of the crime. . . . We have, however,
recognized that the rule of Sandstrom must not be
oversimplified. . . . Sandstrom does not invalidate,
for example, the use of an entirely permissive inference
or presumption, which allows . . . the elemental fact
from proof by the prosecutor of the basic one and that
places no burden of any kind on the defendant. . . .
A permissive inference suggests to the jury a possible
conclusion to be drawn if the State proves predicate
facts, but does not require the jury to draw that conclu-
sion.’’ (Citations omitted; internal quotation marks
omitted.) State v. Diaz, 237 Conn. 518, 545–46, 679 A.2d
902 (1996).
Our careful review of the court’s instructions, viewed
as a whole, leads us to conclude that they properly
conveyed to the jury that it would be proper to view
the defendant’s use of a firearm as evidence of his
intent, but that the jury was by no means required to
draw such an inference. As set forth in greater detail
previously in this opinion, in the context of its instruc-
tion for attempted murder, the court stated: ‘‘The type
of the instrumentality used, here, a firearm, in the cir-
cumstances of its use may be considered as evidence
of the perpetrator’s intent, and from such evidence an
inference may be drawn that there was an intent to
cause death.’’ (Emphasis added.) The court’s repeated
use of the word ‘‘may’’ conveyed that the inference was
merely a permissive one. See, e.g., State v. Smith, 275
Conn. 205, 238–39, 881 A.2d 160 (2005) (inclusion of
permissive language such as word ‘‘may’’ ensures that
jury will not interpret charge in unconstitutional man-
ner). The court, however, was even more explicit in
this regard by stating: ‘‘This inference is not a necessary
one; that is, you are not required to infer intent from
the defendant’s alleged conduct or from the nature of
any instrumentality used. But it is an inference you may
draw if you find it is reasonable and logical . . . .’’
(Emphasis added.)
As set forth in greater detail previously in this opin-
ion, in the context of its instruction for attempt to com-
mit assault in the first degree, the court stated that the
state bore the burden of demonstrating the requisite
mental state for the commission of the crime, specifi-
cally, that the defendant intended to cause serious phys-
ical injury to Granello by means of a handgun. The
court instructed the jury to refer to and to apply to its
consideration of this offense the instructions concern-
ing evidence of intent that it previously had delivered
in the context of its attempted murder instruction. Thus,
the court’s instruction concerning intent included an
unambiguous reference to its previous instruction that
invited the jury to draw a permissive inference related
to the defendant’s intent if it chose to do so. Moreover,
the court repeatedly emphasized during its charge that
the state bore the burden of proving intent beyond a
reasonable doubt.19
Our interpretation of the court’s charge is supported
by this court’s precedent. In State v. LaSalle, 95 Conn.
App. 263, 897 A.2d 101, cert. denied, 279 Conn. 908,
901 A.2d 1227 (2006), this court rejected a claim of
instructional error that is similar to the one before us
presently. The defendant in LaSalle claimed that the
trial court improperly declined to instruct the jury, as
he had requested in a written request to charge, ‘‘that
the use of a deadly weapon, by itself, does not prove
an intent to cause the death of the victim and to commit
the crime of murder.’’ Id., 274. The defendant claimed
that the court’s charge could be interpreted to state
that the use of a deadly weapon constituted proof of his
intent to kill the victim, and that it thereby improperly
shifted the state’s burden of proof with regard to the
element of intent. Id., 273–74. After reviewing the
charge, this court concluded that the trial court properly
had conveyed to the jury, by means of its repeated use
of the word ‘‘may,’’ its statement that ‘‘[t]his inference
is not a necessary one’’; id., 275; and its instructions
concerning the state’s burden of proof concerning
intent, that it was permissible for the jury to draw such
an inference, but that it was not mandatory. Id., 277.
Accordingly, this court rejected the defendant’s claim
that the court’s failure to deliver the instruction that
he requested possibly misled the jury. Id.
The defendant attempts to distinguish LaSalle from
the present case on the ground that the defendant in
LaSalle was convicted of an offense, murder, that
resulted in the death of a victim.20 Id., 265. He argues
that because the present case involves an attempt crime
that did not result in death, the jury was unable to make
a similar connection between the use of an instrumen-
tality and the consequences of such use. Under this
rationale, the defendant argues that ‘‘the firing [of a
gun] could be a warning shot or even an accident. With-
out the connection (the use [of a gun] and the resultant
death), the only way to infer intent is to speculate.’’
(Emphasis in original.)
The defendant’s argument does not take into account
the specific language used by the court in the present
case. The court did not invite the jury to draw an infer-
ence merely from the fact that the defendant possessed
a handgun. Rather, the court stated in relevant part that
‘‘[t]he type of the instrumentality used, here, a firearm,
in the circumstances of its use may be considered as
evidence of the perpetrator’s intent . . . . Any infer-
ence that may be drawn from the nature of the instru-
mentality used and the manner of its use is an inference
of fact to be drawn by you upon consideration of these
and other circumstances in the case . . . .’’ (Emphasis
added.) The court did not invite speculation with regard
to the inference at issue by referring to a particular
result, but it carefully instructed the jury that the fire-
arm and the circumstances and manner of its use may
be considered as evidence of intent.
We disagree with the defendant’s argument that it is
improper for a jury to consider this type of evidence
as evidence of a perpetrator’s intent in an attempt crime.
In the context of this claim, the defendant suggests that
intent may be inferred, if at all, solely from a violent
result, such as death. Thus, he suggests that it is imper-
missible to draw inferences from the type of an instru-
mentality used unless it results in such a violent
outcome. Our law reflects that an inference in this
regard is not necessarily dependent on lethal conse-
quences, but on the type of instrumentality and the
circumstantial evidence concerning the manner of its
use. See, e.g., State v. Gary, 273 Conn. 393, 410, 869
A.2d 1236 (2005) (proper for jury to consider both use
of gun and circumstances surrounding shooting to
determine whether defendant discharged gun with
intent to kill). The court’s instructions in the present
case properly invited the jury to draw reasonable infer-
ences concerning the defendant’s intent from the cir-
cumstantial evidence concerning his use of a firearm.
Thus, there is no danger that, if the jury found that the
defendant used the firearm merely to discharge warning
shots or that he discharged it accidentally, it would
have inferred from this type of use that he had intended
to kill or to cause serious physical injury. In light of
the evidence of the circumstances surrounding the
shooting, it was reasonable and logical for the jury to
conclude that the defendant was attempting, intention-
ally, to cause serious physical injury to Granello by
firing a gun at him.
In light of the foregoing, we conclude that it is not
reasonably possible that the court’s instruction misled
the jury as to the state’s burden of proof with regard
to the element of intent. Accordingly, the defendant
has not demonstrated that the alleged constitutional
violation clearly exists and clearly deprived him of a
fair trial. The claim fails under Golding’s third prong.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The jury found the defendant not guilty of attempt to commit murder
in violation of General Statutes §§ 53a-54a (a) and 53a-49. The court imposed
a total effective sentence of twenty-six years incarceration, with a six year
mandatory minimum sentence.
2
On September 24, 2010, the defendant was eighteen years of age, and
he did not possess a permit to carry a handgun.
3
The requested instruction states: ‘‘One of the most important issues in
this case is the identification of the defendant, Robert D. Bullock, as the
person who committed the crime charged in the information.
‘‘During the trial there was testimony from one or more persons who
claim to have seen some of the events in question. Such witnesses may
fairly be referred to as eyewitnesses.
‘‘When a witness makes an identification, the witness is expressing an
opinion that may be accurate or inaccurate. Eyewitnesses can be sincere,
but mistaken. Eyewitness mistakes have long been, and continue to be, the
leading cause of wrongful convictions. Even where a witness believes that
his or her testimony is accurate, it is your function to determine whether
the witness’ identification of the accused is reliable, or whether it is based
on a mistake or for any reason is not worthy of belief.
‘‘In assessing the testimony of an eyewitness you should remember that
the eye is not like a camera and memory is not like a videotape or DVD.
Witnesses can be honestly mistaken about what they see and what they
honestly believe they remember about an incident. You should consider the
possibility of a good faith mistake in your consideration of the testimony.
‘‘When you consider the witness’ ability to observe facts correctly and to
relate them truly and accurately, you should consider at least the follow-
ing questions:
‘‘1. What was the witness’ physical, mental and emotional capacity to
observe and remember events?
‘‘You should consider factors unique to each witness, including the wit-
ness’ physical condition, including the need for corrective eyeglasses, the
witness’ use of alcohol, medication or illicit drugs, the witness’ mental
condition, including fatigue, and the witness’ emotional condition, including
stress caused by the incident.
‘‘Both inattention and highly stressful situations can cause witnesses to
not accurately perceive or recall events. High degrees of stress can also
cause witnesses to overly focus on one object or event (tunnel vision) to
the exclusion of the total incident. Stress effects the entire memory. You
cannot divide the witness’ memory into observations made shortly before
a stressful event, and those made during and after the event.
‘‘2. Did the witness have an adequate opportunity to observe the events
in question?
‘‘Whether each witness had an adequate opportunity to observe the events
in question will be affected by many things, including the length of the
incident and their observation of it, the distance between the witness and
the objects observed, the lighting conditions or effects of glare, whether the
view was obstructed or unobstructed, and whether a weapon was present.
‘‘If you conclude that a weapon was visible, you should consider that its
presence can distract a witness and draw his or her attention away from
the culprit’s features. ‘Weapon focus’ can thus impair a witness’ ability to
make a reliable identification and describe what the culprit looks like,
particularly if the crime is of short duration.
‘‘You should consider the extent to which the witness’ recollection about
distance and obstructions has been corroborated or contradicted by forensic
evidence. You should also consider whether the witness may be honestly
mistaken about the duration of his or her observation of the incident and
the quality of his or her opportunity to view it.
‘‘3. Has the witness demonstrated an adequate ability to recall and narrate
his or her observations of the events in question?
‘‘You should consider when each witness’ statement was first recorded,
bearing in mind that ‘memories fade over time, that people under severe
stress do not acquire information as well as alert people not under stress,
and that people tend unconsciously to resolve apparent inconsistencies
between their memories and after-acquired facts’ gained from speaking with
other witnesses, from reading or listening to the media, and by efforts to
put memories into a logical narrative. To the extent that the witness has
discussed the incident with others, you should consider whether the witness
may have subconsciously conformed his or her memory to his or her peers’
recollections or to investigators’ theories.
‘‘You should consider how much emphasis to place on the witness’ recol-
lection of peripheral details, as this has been shown to lack correlation to
accurate memories of central facts.
‘‘Although nothing may appear more convincing than a witness’ categorical
identification of a perpetrator, you must critically analyze such testimony.
Such identification, even if made in good faith, may be mistaken. An eyewit-
ness’ confidence in his or her identification, recorded after a properly per-
formed identification procedure and before the witness is given any feedback
about whether he or she picked the police suspect, is a weak predictor of
the accuracy of his or her identification. Studies have shown that a witness’
confidence may be inflated during the period between the identification
procedure and trial, so that the witness’ present confidence may not reflect
the witness’ confidence at the time of the procedure and has little relation-
ship to the accuracy of his or her identification.
‘‘4. Is there any indication that the witness’ observations of the events in
question have not remained consistent over time or that they are in whole
or in part the product of after-acquired information?
‘‘If the witness has made an in-court identification of the defendant, you
must consider whether the in-court identification is based on the witness’
having seen the defendant at the out-of-court identification procedure, rather
than the result of the witness’ observations or perceptions of the perpetrator
during the commission of the offense. You should bear in mind that in-court
identifications are generally less reliable than other identifications because
they occur furthest in time from the incident, the witness has most likely
already seen the defendant in an earlier procedure, and they are inherently
suggestive, as the person in the courtroom suspected of having committed
the offense is usually self-evident to even the casual observer. The ultimate
issues of the accuracy of both the in-court and out-of-court identifications
are for you to decide.
‘‘Additionally, you should consider the general credibility of the eyewitness
in the same manner as you would any other trial witness.
‘‘With these considerations in mind, you should give the testimony of an
eyewitness the weight, if any, you believe it deserves. The credit or weight
you will give such testimony is something which you alone must determine.’’
(Footnotes omitted.)
4
The court instructed the jury in relevant part: ‘‘In weighing the credibility
of the witnesses, you should consider the probability or improbability of
their testimony. You should consider their appearance, conduct and
demeanor while testifying and in court, and any interest, bias, prejudice or
sympathy which a witness may apparently have for or against the state, or
the accused or in the outcome of the trial. With each witness you should
consider his ability to observe facts correctly, recall them and relate them
to you truly and accurately. You should consider whether and to what extent
witnesses needed their memories refreshed while testifying. You should, in
short, size up the witnesses and make your own judgment as to their credibil-
ity and decide what portion—all, some or none—of any particular witness’
testimony you will believe based on these principles. You should harmonize
the evidence as far as it can reasonably be done. You should use all your
experience, your knowledge of human nature and of the motives that influ-
ence and control human conduct, and you should test the evidence against
that knowledge. You should bring to bear upon the testimony of the witnesses
the same considerations and use the same sound judgment you apply to
questions of truth and veracity as they present themselves to you in every-
day life.
‘‘You are entitled to accept any testimony which you believe to be true
and to reject either wholly or in part the testimony of any witness you
believe has testified untruthfully or erroneously. The credit that you will
give to the testimony offered is, as I have told you, something alone which
you must determine. If you find that a witness has intentionally testified
falsely, you should keep that in mind and scrutinize the whole testimony
of the witness. You may disregard the witness’ entire testimony, but you
are not required to do so. It remains up to you to accept or reject all or
any part of the testimony. If you find that a witness has been inaccurate in
some way and you do not think that the inaccuracy was consciously dishon-
est, you can consider the inaccuracy in evaluating the rest of his testimony.
You know that persons sometimes forget things, or they get something
wrong. The significance you attach to a misstatement may vary more or
less with the particular fact as to which the inaccuracy existed or with the
surrounding circumstances. Give to it that weight which your own mind
leads you to think it ought to have, in which you would attach to it in the
ordinary affairs of life where someone came to you in a matter and you
found that in some particular, he was inaccurate.’’
5
In relevant part, the court stated: ‘‘The state has the burden of proving
beyond a reasonable doubt that the defendant was the perpetrator of the
crime. The defendant denies that he is the person who was involved in the
commission of the alleged offenses. In this case, the state has presented
evidence that eyewitnesses identified the defendant in connection with the
crime charged. Identification is a question of fact for you to decide, taking
into consideration all the evidence that you have seen and heard in the
course of the trial. The identification of the defendant by a single witness
as the one involved in the commission of a crime is in [and] of itself sufficient
to justify a conviction of such a person, provided, of course, that you are
satisfied beyond a reasonable doubt of the identity of the defendant as the
one who committed the crime.
‘‘In arriving at a determination as to the matter of identification, you
should consider all the facts and circumstances that existed at the time of
the observation of the perpetrator by each witness. In this regard, the
reliability of each witness is of paramount importance. Since identification
testimony is an expression of belief or impression by the witness. Its value
depends on the opportunity and ability of the witness to observe the perpetra-
tor at the time of the event and to make an accurate identification later. It
is for you to decide how much weight to place upon such testimony . . . .’’
6
Likewise, our Supreme Court has stated that an evidentiary ruling related
to expert testimony on eyewitness identification does not give rise to a
claim of constitutional magnitude. State v. Guilbert, 306 Conn. 218, 265, 49
A.3d 705 (2012); id., 265 n.45 (noting that ‘‘there is no basis for such a claim’’).
7
We note that on October 30, 2014, the defendant, presumably pursuant
to Practice Book § 67-10, submitted a letter to the clerk of this court notifying
the court that ‘‘a new report from the National Research Council was released
on October 2, 2013 . . . .’’ The letter provided an Internet website address
that brings the reader to a 120 page document with the title ‘‘Identifying
the Culprit: Assessing Eyewitness Identification.’’ The document, published
by the ‘‘National Academies Press’’ is marked with the heading ‘‘Prepublica-
tion Copy-Unedited Proofs.’’
The defendant’s reliance on this material suffers from several infirmities.
As a preliminary matter, although portions of the material address inaccurate
results of identification procedures used by the police, the material does
not appear to help the claim presently before us because it appears to
bolster the state’s argument that the defendant’s arrest in the present case
did not result from any type of identification procedure. For instance, the
document states in relevant part: ‘‘Police in the United States investigate
millions of crimes each year. Only a small percentage of police-investigated
crimes involve the use of police-arranged identification procedures. Identifi-
cation procedures are unnecessary when, for example, the perpetrator is
caught during the commission of the criminal act, as in the crime of driving
while intoxicated, or when the victim knows the perpetrator, as in crimes
of domestic violence.’’ (Emphasis added; footnote omitted.)
More importantly, the defendant’s reliance on this material is inappropri-
ate because it was not available to, or considered by, the trial court, it is
not legal authority, and it appears to have been submitted for the purpose
of discrediting the jury’s assessment of the eyewitness testimony in the
present case. ‘‘Even if we were to consider the material not in terms of
adjudicative facts, but in terms of legislative facts that may be relevant to
arguments regarding the content of law and policy, we, as a reviewing court,
are in a poor vantage point from which to evaluate the authoritativeness
and reliability of the facts contained in this material.’’ See State v. Edwards,
314 Conn. 465, 481, A.3d (2014).
8
The court stated that competent expert testimony related to the following
propositions satisfied the threshold admissibility requirement of State v.
Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S.
1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998): ‘‘(1) there is at best a weak
correlation between a witness’ confidence in his or her identification and
the identification’s accuracy; (2) the reliability of an identification can be
diminished by a witness’ focus on a weapon; (3) high stress at the time of
observation may render a witness less able to retain an accurate perception
and memory of the observed events; (4) cross-racial identifications are
considerably less accurate than identifications involving the same race; (5)
memory diminishes most rapidly in the hours immediately following an
event and less dramatically in the days and weeks thereafter; (6) an identifica-
tion may be less reliable in the absence of a double-blind, sequential identifi-
cation procedure; (7) witnesses may develop unwarranted confidence in
their identifications if they are privy to postevent or postidentification infor-
mation about the event or the identification; and (8) the accuracy of an
eyewitness identification may be undermined by unconscious transference,
which occurs when a person seen in one context is confused with a person
seen in another.’’ State v. Guilbert, supra, 306 Conn. 253–54.
9
See footnote 12 of this opinion.
10
The record reflects that, during his cross-examination of Granello, the
defendant’s attorney inquired as to the precise manner that he approached
the defendant and Long on the bridge. By focusing on whether Granello
had his service weapon drawn at this time, this line of questioning appeared
to be focused on the degree of danger that Granello perceived when he first
issued his commands to both individuals. The following colloquy occurred:
‘‘Q. And you say that you directed each of these two people to show
their hands?
‘‘A. Yes.
‘‘Q. But at this moment in time you did not have your gun drawn?
‘‘A. No. . . .
‘‘Q. But at the time that you gave the command for them to show their
hands . . . you yourself did not have your service weapon drawn?
‘‘A. No.
‘‘Q. And as you sit here today, you’re not even clear on whether you had
your hand on the weapon or the strap unbuttoned?
‘‘A. I’m unsure. . . .
‘‘Q. Okay. Generally speaking, wouldn’t you have your gun out and trained
on somebody if you were commanding them to show their hands?
‘‘A. Depending on who they are . . . what the situation is and based on
that situation . . .
‘‘Q. But you didn’t nevertheless have your gun out?
‘‘A. Not out; no.
‘‘Q. Well . . . if you can’t remember whether you had your hand on your
hip and hand the . . . safety strap unbuttoned, what else would there be?
‘‘A. Well, I was approaching . . . I didn’t just run across the car.’’
During his cross-examination of Ferri, the defendant’s attorney asked him
if and when he unholstered his service weapon. When Ferri stated that he
unholstered his weapon only when Granello came under fire, the defendant’s
attorney asked: ‘‘And given everything that you had thought and experienced
up to that point in time, you didn’t think it would be prudent to . . . have
it out?’’
11
See footnote 12 of this opinion.
12
As discussed previously in this opinion, at trial, the defendant sought
to preclude any evidence that he was present at the prior shooting. Later,
however, the court ruled that the state could present evidence that the
defendant was present at the prior shooting, but that he was not ‘‘shooting
or armed’’ at that time. With regard to the evidence presented concerning
the prior shooting, there was no evidence that the defendant was present
at the shooting scene with Long, let alone that he had engaged in any type
of criminal behavior in connection with that incident. During an offer of
proof, outside of the presence of the jury, the defendant’s attorney elicited
testimony from Villafane that the victim of the prior shooting had identified
Long as the shooter and had stated that Long was accompanied by a male
who was wearing a red shirt. The admissibility of this testimony was con-
tested at trial, and the defendant’s attorney decided not to pursue its
admission.
13
The court stated: ‘‘Ladies and gentlemen, I’m going to cover this in my
final instructions as well, but I’m going to give you a certain instruction
concerning . . . the evidence you just heard . . . because to put this in
context, there has been testimony from, I believe, Marshall Robinson, that
these casings now introduced into evidence . . . had been fired from a
weapon recovered from the Pequonnock River . . . .
‘‘In any event, the evidence in that regard, then, including the evidence
today, is admitted for a limited purpose . . . that you may consider this
for . . . relates to your consideration of when the weapon may have been
first deposited in the Pequonnock River. It also relates to your consideration
of the testimony of gunshot residue on the clothing of Daquan Long, and
the time or origin of that gunshot residue, and any other reasonable infer-
ences you may choose to make from that evidence. Of course, the credibility
of all this evidence and the weight you give it is for you to decide, and any
inferences you choose to draw must be reasonable.
‘‘That said, you may not consider this evidence as any evidence that this
defendant, Mr. Bullock, was involved in any prior shooting at Wood and
Iranistan, and you may not consider it as any evidence of the character of
the defendant or any . . . propensity of the defendant, or anything of that
nature at all. It’s admitted—it would be wrong for you to do that, and you
must not do that. It’s admitted for the reasons I’ve indicated, but only those
reasons . . . .’’
14
The court stated: ‘‘Now, you will remember during the trial that I said
some testimony and evidence have been allowed for a limited purpose.
Now, this included evidence that prior to events on the bridge there was a
shooting in the vicinity of Wood and Iranistan Avenues, and shell casings
recovered from the scene of that shooting came from a gun identified as a
Springfield Armory .40 caliber Smith and Wesson, which was later recovered
from the river by the Stratford Avenue Bridge. Now, this evidence was
admitted for your consideration of the source or origin of gunshot residue
and component particles, which were testified as having been found on the
clothing of Daquan Long, and for your consideration of the length of time
the gun may have been in the river. Also, you may draw any reasonable
and logical inferences from such evidence in accordance with any previous
instructions. Of course, the credibility of this evidence and the weight you
give it are for you to decide. However, there is an important cautionary
note regarding this particular evidence and any other evidence in this matter
which . . . relates to any expression of any level of concern by police
officers who were involved in the investigation in the aftermath of that
shooting, about the possible danger posed by the suspect. You can consider
that evidence in a context of the actions taken by the police, but you may
not use this evidence to infer or conclude that the defendant himself was
somehow involved in any prior shooting or that he is a person of bad
character or propensities. Any testimony or evidence which I identify as
being limited to a certain purpose you will consider only as it relates to the
limits for which it was allowed. And you shall not consider such testimony
and evidence in finding any other facts as to any other issue. Any other use
of such testimony and evidence would be improper.’’
15
In his analysis of this claim, the defendant also suggests that evidence
related to the prior shooting was unduly prejudicial because ‘‘it associated
him speculatively with an earlier violent offense’’ and portrayed him ‘‘as
a young, violent gang member.’’ The defendant argues: ‘‘The misconduct
evidence transformed the encounter on the bridge from a stop of two young
men under suspicion to a stop of two young and violent urban criminals.
Inevitably, the defendant’s contention that he was an innocent companion
to Long misidentified in the stress and confusion of the encounter as a
fellow shooter was blunted by the media image of urban gang-bangers.’’
During the state’s cross-examination of the defendant, the prosecutor
asked the defendant about his activities with Long on the day of the shooting,
as well as his relationship with Long generally. After the prosecutor asked
the defendant whether he and Long were members of the same social
organization, the defendant replied, ‘‘No.’’ When the prosecutor asked if
there was any significance to the clothing he and Long were wearing on
the day of the shooting, the defendant’s attorney, outside of the presence
of the jury, objected on the ground that the line of questioning came close
to suggesting that the defendant and Long were members of a gang. The
court sustained the objection to any reference of gang activity. There was
no evidence of gang activity in this case.
The record reflects that the questions to which the defendant objected
were not necessarily related to the topic of the prior shooting, but concerned
the nature of the relationship between the defendant and Long generally.
In light of the undisputed evidence that the defendant was with Long at the
time of the shooting on the bridge and, in fact, the evidence suggested that
they may have acted in unison, such questions were relevant to issues before
the jury. To the extent that the defendant suggests that any evidence related
to the prior shooting should have been excluded because it suggested gang
activity, we deem such a claim to be unpreserved because he did not object
to the evidence on this ground at the time of trial. In the context of this
argument, we reject the defendant’s cursory invocation of the plain error
doctrine. To the extent that the defendant suggests that any inquiry into the
nature of the relationship between himself and Long was unduly prejudicial
because it suggested gang activity, we conclude that such claim is without
merit. The prosecutor’s questions related to the relationship between the
defendant and Long did not explicitly refer to membership in a gang, and
the questions did not elicit any evidence of gang activity. Furthermore,
before the jury, the prosecutor did not make any arguments that could be
deemed as having raised the specter of gang activity.
16
In his analysis of this claim, the defendant appears to refer to the
evidence at issue as ‘‘prior misconduct evidence,’’ and he invites us to review
the evidentiary claim as one involving prior misconduct evidence. In the
discussions regarding this evidence at trial, the prosecutor did not argue
that any evidence in this regard was being offered as prior misconduct, the
court did not admit it as such, and the defendant did not object to it on
such ground. We are perplexed by the defendant’s characterization that this
claim involves prior misconduct because the evidence that the state yielded
by the question and answer at issue was simply that the alleged statement
had not been made. The court properly instructed the jury that the questions
posed by the attorneys were not evidence, and the defendant plainly denied
having made the statement at issue.
17
As our recitation of relevant procedural history reflects, the defendant
moved for a mistrial on the basis of the prosecutor’s question at trial. In
this appeal, the defendant does not distinctly claim that the court’s denial
of that motion was in error.
18
In its charge, the court instructed the jury regarding the manner in
which it was to find facts, stating in relevant part as follows: ‘‘Now, in
reaching your verdict, you should consider all the testimony, exhibits, and
stipulations received into evidence, but certain things are not evidence and
you may not consider them in deciding what the facts are. These include
arguments and statements by counsel. . . . Questions and objections by
counsel are not evidence.’’
When instructing the jury with regard to the manner in which it was to
assess the credibility of witnesses, the court stated in relevant part: ‘‘You
do not have to accept a fact as true because a witness has testified to it
and no one contradicts it. The credibility of the witness and the truth of
the fact are for you to determine. A corollary to this is that if you disbelieve
something a witness said, you can’t conclude that the opposite must be true
unless other evidence or reasonable inferences from proven facts establishes
that to be the case. This is simply consistent with the principle that you
cannot go outside the evidence to find the facts.’’
19
By way of example, the court stated: ‘‘The burden to prove the defendant
guilty of the crimes in which he is charged is upon the state. The defendant
does not have to prove his innocence. This means that the state must prove
beyond a reasonable doubt each and every element necessary to constitute
the crimes charged.’’ Later, during its instruction concerning attempt to
commit assault in the first degree, the court stated: ‘‘[T]he state must prove
both intent and conduct beyond a reasonable doubt to obtain a conviction.’’
Also, the court stated: ‘‘[I]f you unanimously find that the state has failed
to prove beyond a reasonable doubt either of these elements, you shall then
find the defendant not guilty of the crime of attempt to commit assault in
the first degree.’’
20
The defendant also states that we should ‘‘revisit’’ LaSalle, presumably
because he disagrees with the logic therein. Concluding that LaSalle is
sound, we disagree with this aspect of the claim.