State v. Faust ( 2015 )

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STATE OF CONNECTICUT v. NATHANIEL FAUST
(AC 37164)
Gruendel, Keller and Borden, Js.
Argued February 4—officially released November 10, 2015
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J. [motions to consolidate, sever];
Mullarkey, J. [judgment].)
Mary A. Beattie, assigned counsel, for the appel-
lant (defendant).
Jennifer F. Miller, deputy assistant state’s attorney,
with whom, on the brief, were Matthew C. Gedansky,
state’s attorney, and Charles Johnson, assistant state’s
attorney, for the appellee (state).
Opinion
GRUENDEL, J. The defendant, Nathaniel Faust,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of conspiracy to commit rob-
bery with a firearm in the first degree in violation of
General Statutes §§ 53a-48 (a) and 53a-134 (a) (4), five
counts of kidnapping with a firearm in the first degree
in violation of General Statutes § 53a-92a (a), one count
of robbery with a firearm in the first degree in violation
of General Statutes § 53a-134 (a) (4), and one count of
larceny in the first degree in violation of General Stat-
utes § 53a-122 (a) (2), as enhanced by General Statutes
§ 53-202 (k) for having committed a class A or B felony
with a firearm. On appeal, the defendant claims that
(1) the evidence was insufficient to support his convic-
tion, (2) the trial court improperly consolidated for trial
charges stemming from two separate incidents, (3) the
trial court improperly found that the crimes were not
signature in nature and that certain evidence was cross
admissible in both cases, and (4) the court improperly
instructed the jury on the issue of eyewitness identifica-
tion. We disagree and affirm the judgment of the trial
court.
At trial, the defendant was charged with crimes
related to two separate criminal endeavors, one in Madi-
son and one in Ellington. The cases were consolidated,
over the defendant’s objection, and tried sequentially
to one jury. The following facts, viewing the evidence
in the light most favorable to sustaining the verdict,
reasonably could have been found at trial.
Madison
On July 2, 2008, at approximately 12:30 p.m., two men
wearing ski masks, gloves, and black clothing, entered
Paul Lirot Jewelers in Madison. At that time, there were
five individuals in the store: Paul Lirot, the store owner;
Cindy Cochrane and Rose Schroeder, two store employ-
ees; Randy Wilkinson, a jewelry appraiser; and John
D’Amico, a jewelry salesperson. Cochrane, who was in
a hallway when the men entered, saw one of the men
approach her, brandishing a black gun. The man pointed
the gun at her face and ordered her to enter the store’s
workroom. Lirot, who was in the workroom at the time,
turned around and saw one of the men point a gun at
him and yell, ‘‘do you want me to shoot you, do you
want me to shoot you?’’
During this time, D’Amico and Schroeder were sitting
at a table in the store’s kitchen. One of the masked
robbers, who was wearing a yellow hardhat, appeared
in the kitchen doorway and demanded that D’Amico
and Schroeder move into the store workroom. Once all
five individuals were in the workroom, the two robbers
ordered them to lie face down on the ground with their
hands behind their backs. The robbers then bound the
ankles and wrists of Lirot, Cochrane, Schroeder and
D’Amico with duct tape and used novelty handcuffs to
secure Lirot to Wilkinson. At one point, Lirot attempted
to raise himself onto his elbows and was pepper sprayed
by one of the men.
While one of the robbers watched over the individu-
als, the other went through the store, collecting at least
$350,000 worth of jewelry and a small amount of cash.
After the perpetrators left, the five individuals freed
themselves, activated the store’s silent alarm, and went
outside to wait for the police.
Upon questioning by the police, Lirot recalled three
prior incidents of note. He explained to the police, and
later testified at trial, that two weeks prior to the rob-
bery, a tall, thin, unkempt African-American male had
entered the jewelry store and requested a replacement
battery for his watch. After Lirot replaced the battery,
the man refused to pay for it and demanded that Lirot
remove the battery. Lirot returned the watch to the man
without removing the new battery and the man left the
store. Lirot observed the man enter the passenger side
of a red sport utility vehicle.
One week prior to the robbery, a heavyset African-
American woman entered the store, but did not pur-
chase anything. Lirot observed her leave the store and
enter the driver side of a red sport utility vehicle. During
the trial, Lirot viewed exhibit 50-M, which was a photo-
graph of a red Nissan Armada sport utility vehicle with
custom features and identified it as the vehicle he saw
on both occasions.
One day before the robbery, at approximately 5:45
p.m., Lirot, Cochrane, and Schroeder were closing the
store for the evening when Lirot’s dog began to bark,
indicating that someone was outside. Schroeder looked
out the window and witnessed an African-American
male sitting in a silver Mercedes station wagon that
had a Massachusetts license plate. She also witnessed
another African-American male, with dreadlocks, who
began to approach the store but then turned around
and returned to the silver Mercedes. She witnessed him
enter the passenger side of the vehicle. Cochrane also
looked out of the store’s window and noticed that the
male sitting in the driver side of the vehicle was wearing
a yellow hardhat.
Police later determined that the silver Mercedes sta-
tion wagon matched the description of a vehicle that,
three days prior to the robbery, had been reported as
stolen from a parking lot in Longmeadow, Massachu-
setts. On the day it was stolen, Samantha Edwards, a
friend of the vehicle’s owner, saw the Mercedes, which
she identified by its bumper stickers, parked at a gas
station in Longmeadow. Edwards, who was stopped at
a stoplight, noticed that an African-American male was
in the driver’s seat of the vehicle. She later identified
the defendant as the driver of the vehicle after the police
showed her a photographic array.
When the station wagon was stolen, it contained the
owner’s wallet and credit cards. Credit card records
showed that, after being stolen, the card was used in
a transaction at a gas station in Hartford, indicating
that the Mercedes had been driven there. Surveillance
video of the gas station showed that the Mercedes
entered a lot behind a red Nissan Armada with custom
features. A police officer testified that additional sur-
veillance video showed an African-American male, with
long dreadlocks, emerge from the vehicle. On the day
of the robbery, police recovered the stolen Mercedes
from a parking lot in Madison that was approximately
one-half mile from Paul Lirot Jewelers and one-eighth
of a mile from the interstate highway.
During their investigation, the police recovered DNA
evidence from the jewelry store. DNA was obtained
from the ends of two pieces of duct tape that were
used to detain the jewelry store employees and other
individuals. A forensic examiner testified that results
of DNA testing concluded that the defendant could not
be eliminated as a contributor to the DNA profile found
at the scene. The first piece of duct tape contained 6.77
picograms of DNA, the equivalent of one human cell.
The expected frequency of individuals who could not
be eliminated as a contributor to this DNA profile was
one in 504 million people in the African-American popu-
lation, one in 60 million in the Caucasian population
and one in 126 million in the Hispanic population. The
second piece of duct tape contained 3.3 picograms of
DNA and had an expected frequency of individuals who
could not be eliminated as a contributor to this DNA
profile of one in 170,000 in the African-American popu-
lation, one in 28,000 in the Caucasian population, and
one in 37,000 in the Hispanic population.
Ellington
On December 18, 2008, at approximately 7:40 p.m.,
three friends, Brian Seifel, Patrick McGloin, and Mark
Debonee, arrived at the Gold and Diamond Exchange
jewelry store in Ellington. McGloin was shopping for a
Christmas present for his fiance´e. The three friends
shopped until approximately 8:30 p.m., and then left
through the store’s front door. As they proceeded to
McGloin’s vehicle, they noticed two men standing near
the side of the building. The two men were dressed in
dark clothing and both wore ski masks. Once seen,
the two masked men immediately approached Seifel,
McGloin, and Debonee.
One of the masked men approached McGloin, point-
ing a gun at his neck and demanding that he hand over
his shopping bag, wallet, and cell phone. The gunman
said that he wanted to see the wallet because he wanted
to know where McGloin lived. He then ordered McGloin
to get into the driver side of his vehicle. During this
time, the other masked man ordered Seifel and Debonee
into the passenger side of the vehicle. Once the three
victims were inside, one of the masked men proceeded
to use duct tape to bind their hands and feet. The perpe-
trator also used duct tape to bind Seifel’s left leg to
McGloin’s hands and attempted to use silver novelty
handcuffs on Debonee, but was unable to do so. After
the victims were bound with duct tape, the perpetrator
then placed duct tape over their eyes. McGloin heard
one of the men say, ‘‘we’re not here for you, we’re here
for [the owner of the Gold and Diamond Exchange].’’
The perpetrators then closed the vehicle doors.
At approximately 8:30 p.m., Kimberly Coughlin drove
her vehicle into the Gold and Diamond Exchange park-
ing lot. Upon entering the parking lot, she looked to
her right and saw a parked vehicle. Inside that vehicle
she noticed some indiscernible movement. When she
looked to her left, she saw a masked and armed man
approach her driver’s side door, point a gun at her head,
and attempt to open her car door. Unable to open the
locked door, the man began pounding on the window
with his gun. Coughlin then fled the area in her car.
She drove into an adjacent parking lot and then out
onto Route 83. After driving for a short period of time,
she called the Vernon Police Department and then
called the Gold and Diamond Exchange. In both phone
calls, she explained that there were masked men out-
side of the jewelry store. By the time the police had
arrived at the jewelry store, the perpetrators had fled
the scene.
The police collected a bullet, wool mask, and a bag
containing novelty handcuffs and keys at the scene.
DNA was also collected from the scene. Subsequent
testing eliminated the defendant as a contributor to the
DNA collected. No vehicle was ever found in connection
with the events in Ellington.
Kendall Hooks, one of the state’s witnesses, testified
about the defendant’s involvement in the Ellington rob-
bery. Hooks, who had received a plea deal in connection
with his own involvement, testified that the defendant
was one of the masked men who intended to rob the
jewelry store. According to Hooks, when the three vic-
tims exited the store, the defendant approached the
victim on the driver’s side of their vehicle, ordered
him into the vehicle, and then approached Coughlin’s
vehicle. He also testified that, in preparation for the
robbery, Hooks, the defendant, and an individual named
Ricky Allen drove to a golf resort in Rhode Island,
where the defendant and Allen stole a Volvo, which
was unlocked and had the keys inside. Hooks stated
that the defendant drove the stolen Volvo to Hartford,
where it was later recovered by the police. Hooks testi-
fied that the plan was to use the stolen Volvo in the
Ellington robbery.
Scott Miller also testified at trial. Miller had pleaded
guilty to one count of accessory to commit robbery in
the first degree in connection with the Ellington rob-
bery. He testified that the defendant was not involved
in the planning or execution of the Ellington robbery.
He stated that the three people involved were Hooks,
himself, and a third man named Derond, who was a
friend of Hooks.
The two cases were joined and tried sequentially to
the same jury. At the conclusion of the joint trials, the
jury returned a verdict of guilty on all of the Madison
related charges and returned a verdict of not guilty on
all of the Ellington related charges. The court, Mullar-
key, J., then sentenced the defendant to fifty years of
incarceration, with a mandatory minimum of twelve
years incarceration, and ten years of special parole.
This appeal followed.
I
The defendant first claims that there was insufficient
evidence to permit the jury to find, beyond a reasonable
doubt, that he participated in the robbery, or any con-
spiracy to commit robbery, of the jewelry store in Madi-
son. Specifically, he argues that the evidence was
insufficient to identify him as one of the perpetrators.
Further, he contends that the state failed to present
sufficient evidence that he conspired with others to
commit the crime of robbery. Accordingly, the defen-
dant requests that we direct the trial court to dismiss
counts two through nine of the state’s substitute infor-
mation.1 We are not persuaded.
We begin by acknowledging that to the extent that
the defendant’s sufficiency claims are unpreserved,2 he
seeks to prevail under State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989).3 Our Supreme Court has
held that ‘‘any defendant found guilty on the basis of
insufficient evidence has been deprived of a constitu-
tional right, and would therefore necessarily meet the
four prongs of Golding. . . . Accordingly, because
there is no practical significance . . . for engaging in
a Golding analysis, we review an unpreserved suffi-
ciency of the evidence claim as though it had been
preserved. (Citation omitted; internal quotation marks
omitted.) State v. Revels, 313 Conn. 762, 777, 99 A.3d
1130 (2014), cert. denied, U.S. , 135 S. Ct. 1451,
191 L. Ed. 2d 404 (2015). Accordingly, our review will
encompass the sufficiency of the evidence of all of the
counts of which the defendant was found guilty.
‘‘The standard of review we apply to a claim of insuffi-
cient evidence is well established. In reviewing the suffi-
ciency of the evidence to support a criminal conviction
we apply a two-part test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [finder of fact] reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt. . . .
‘‘We also note that the jury must find every element
proven beyond a reasonable doubt in order to find the
defendant guilty of the charged offense, [but] each of
the basic and inferred facts underlying those conclu-
sions need not be proved beyond a reasonable doubt.
. . . If it is reasonable and logical for the jury to con-
clude that a basic fact or an inferred fact is true, the
jury is permitted to consider the fact proven and may
consider it in combination with other proven facts in
determining whether the cumulative effect of all the
evidence proves the defendant guilty of all the elements
of the crime charged beyond a reasonable doubt. . . .
‘‘Additionally, [a]s we have often noted, proof beyond
a reasonable doubt does not mean proof beyond all
possible doubt . . . nor does proof beyond a reason-
able doubt require acceptance of every hypothesis of
innocence posed by the defendant that, had it been
found credible by the [finder of fact], would have
resulted in an acquittal. . . . On appeal, we do not ask
whether there is a reasonable view of the evidence that
would support a reasonable hypothesis of innocence.
We ask, instead, whether there is a reasonable view of
the evidence that supports the [finder of fact’s] verdict
of guilty. . . .
‘‘Moreover, [w]e do not sit as a [seventh] juror who
may cast a vote against the verdict based upon our
feeling that some doubt of guilt is shown by the cold
printed record. . . . Rather, we must defer to the jury’s
assessment of the credibility of the witnesses based on
its firsthand observation of their conduct, demeanor
and attitude. . . . This court cannot substitute its own
judgment for that of the jury if there is sufficient evi-
dence to support the jury’s verdict. . . . Additionally,
because the jury has the opportunity to observe the
conduct, demeanor and attitude of the witnesses and to
gauge their credibility, [i]t is axiomatic that evidentiary
inconsistencies are for the jury to resolve, and it is
within the province of the jury to believe all or only
part of a witness’ testimony. . . . We are also mindful
that, once a defendant has been found guilty of the
crime charged, a reviewing court conducts its review
of all the evidence in the light most favorable to the
prosecution. In short, [t]he evidence must be given a
construction most favorable to sustaining the jury’s ver-
dict. . . . Our review is a fact based inquiry limited to
determining whether the inferences drawn by the jury
are so unreasonable as to be unjustifiable. . . . [T]he
inquiry into whether the record evidence would support
a finding of guilt beyond a reasonable doubt does not
require a court to ask itself whether it believes that the
evidence . . . established guilt beyond a reasonable
doubt. . . . Instead, the relevant question is whether,
after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a
reasonable doubt. . . . We also note that [i]n viewing
evidence which could yield contrary inferences, the jury
is not barred from drawing those inferences consistent
with guilt and is not required to draw only those infer-
ences consistent with innocence. The rule is that the
jury’s function is to draw whatever inferences from the
evidence or facts established by the evidence it deems
to be reasonable and logical.’’ (Citations omitted; inter-
nal quotation marks omitted.) State v. Morgan, 274
Conn. 790, 799–801, 877 A.2d 739 (2005). Under this
standard of review, we now consider each of the defen-
dant’s sufficiency claims.
A
The defendant first claims that the evidence was
insufficient to establish, beyond a reasonable doubt,
his identity as one of the men in the Madison jewelry
store robbery. The defendant claims that the only identi-
fication evidence before the jury was two eyewitness
identifications prior to the robbery and the DNA sam-
ples collected from the scene of the crime. The defen-
dant argues that because both eyewitness
identifications failed to place him at the scene during
the crime, the state’s case was based solely on the DNA
evidence. Further, the defendant argues that because
there was no evidence directly indicating that his DNA
was left on the duct tape at the time the crime took
place, it cannot serve as probative evidence that he was
involved in the robbery. On this basis, the defendant
requests dismissal of the robbery, kidnapping, and
related charges. We disagree and conclude that, on the
basis of the evidence, a reasonable jury could have
properly concluded that the defendant was one of the
men involved in the Madison jewelry store robbery.
In considering eyewitness testimony, it is the jury’s
role as the sole trier of the fact to weigh the conflicting
evidence and to determine the credibility of witnesses.
Id., 802. ‘‘In particular, we have recognized that a view
of even a few seconds may be sufficient for a witness
to make an identification; see State v. Piskorski, 177
Conn. 677, 743, 419 A.2d 866, cert. denied, 444 U.S. 935,
100 S. Ct. 283, 62 L. Ed. 2d 194 (1979) (superseded
by statute on other grounds); Williams v. Bronson, 21
Conn. App. 260, 265, 573 A.2d 330 (1990); and that it is
for the trier of fact to determine the weight to be given
that identification. See State v. Mitchell, 204 Conn. 187,
202–203, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108
S. Ct. 293, 98 L. Ed. 2d 252 (1987).’’ State v. Morgan,
supra, 274 Conn. 801–802.
Like fingerprint evidence, DNA evidence does not
necessarily establish that the defendant was one of the
perpetrators of the crime. In cases resting solely on
fingerprint evidence, our Supreme Court has held that
‘‘a conviction may not stand on fingerprint evidence
alone unless the prints were found under such circum-
stances that they could have been impressed only at
the time the crime was committed.’’ (Emphasis added.)
State v. Thorpe, 188 Conn. 645, 648, 453 A.2d 88 (1982).
The jury must consider the evidence in the context of
the surrounding facts and circumstances, as well as
the conditions in which the evidence was found. The
purpose of this inquiry is to determine if the evidence
indicates, based on the circumstances, that the finger-
prints were impressed during the crime as opposed to
some point earlier in time. Id., 649; see also State v.
Payne, 186 Conn. 179, 183–84 and 183 n.3, 440 A.2d 280
(1982) (conviction reversed when no evidence limited
impression of defendant’s fingerprints to circumstances
of crime, as well as evidence that defendant had access
to area where prints were found and frequented area
prior to crime).
Although ‘‘the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense . . . each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt.’’ (Emphasis added;
internal quotation marks omitted.) State v. Fairley, 85
Conn. App. 882, 886, 859 A.2d 605 (2004), cert. denied,
272 Conn. 913, 866 A.2d 1285 (2005). Furthermore, in
cases involving circumstantial evidence, ‘‘[i]t is not one
fact, but the cumulative impact of a multitude of facts
which establishes guilt . . . .’’ State v. Perez, 183 Conn.
225, 227, 439 A.2d 305 (1981). Finally, ‘‘it does not dimin-
ish the probative force of the evidence that it consists,
in whole or in part, of evidence that is circumstantial
rather than direct.’’ (Internal quotation marks omitted.)
State v. Brown, 144 Conn. App. 547, 553–54, 72 A.3d
1271, cert. denied, 310 Conn. 923, 77 A.3d 141 (2013).
In the present case, we conclude that ample evidence
exists for a reasonable jury to have concluded that the
defendant was one of the perpetrators in the Madison
robbery. Patricia Johannes, a forensic science examiner
for the Department of Emergency Services and Public
Protection, testified regarding the results of DNA tests
conducted on evidence collected from the crime scene.
She testified that DNA was collected from the ends of
the torn fragments of duct tape used to bind the legs
and arms of the victims. Johannes explained that she
swabbed the ends because that location was more likely
to contain the DNA of the person who handled the duct
tape, and may have torn it at the ends, rather than the
DNA of the person to whom the duct tape was applied.
The location of the DNA on the torn ends of the duct
tape reasonably excludes the hypothesis that the DNA
was deposited at a time other than during the perpetra-
tion of the crime. She testified that two pieces of duct
tape contained a mixture of DNA and that testing con-
firmed that the defendant ‘‘cannot be eliminated as a
contributor to the DNA profile . . . .’’ She explained
the expected frequency of these DNA profiles occurring
among the African-American population. With regard
to the first DNA sample, exhibit 5-1, the expected fre-
quency of African-Americans who could not be elimi-
nated as a contributor was one in 504 million. With
regard to the DNA sample, exhibit 5-2, the expected
frequency of African-Americans who could not be elimi-
nated was one in 170,000. Thus, the evidence indicated
that the defendant had previously handled the duct tape,
and, moreover, based on the fact that the DNA was
found on the ends of the pieces of duct tape, it would
be reasonable for a jury to conclude that the defendant
handled the tape during the robbery.
Even if the DNA evidence were not dispositive of the
defendant’s identity, the jury was permitted to consider
it in conjunction with the other evidence presented
at trial. See State v. Morgan, supra, 274 Conn. 805.
Specifically, the jury heard the testimony of Edwards
and Schroeder, who witnessed the defendant’s conduct
prior to the robbery. Edwards testified that she saw an
African-American male with dreadlocks in the driver’s
seat of her friend’s stolen Mercedes in Longmeadow,
Massachusetts, three days prior to the Madison robbery.
Edwards testified that she was stopped at a stoplight
when she recognized her friend’s car in a gas station
lot. Edwards recognized her friend’s car on the basis
of two stickers on the car window. She testified that
she had a clear view of the driver and described him
as an African-American male with dreadlocks. It struck
her as odd that someone other than her friend was
driving the car, and she placed a phone call to her
friend’s home. She was later questioned by the police
and was asked to look through a photographic array
to see if any of the photographs matched the person
she witnessed in the Mercedes. Edwards testified that
after carefully reviewing each photograph, she posi-
tively identified the defendant as the man she witnessed
in the car. She also made an in-court identification of
the defendant.
The jury also heard eyewitness testimony from
Schroeder, an employee of Paul Lirot Jewelers.
Schroeder testified that the night before the Madison
robbery, as the store’s employees were preparing to
close the store, she noticed a silver Mercedes station
wagon in the parking lot. Inside the vehicle, she saw an
African-American male wearing a bright yellow helmet.
She also testified that another African-American male,
with dreadlocks, dressed in a black long-sleeved shirt
and black pants, approached the store’s front door.
She testified that she clearly recalled that observation
because the store had few African-American customers,
it was odd for her to see a person in a Mercedes wearing
a hard hat, and it was rare for customers to come to
the store at closing time. She provided an in-court iden-
tification of the defendant as the person she witnessed
approaching the store the night before the robbery. She
also testified that after reviewing a photographic array
given to her by the police, she had positively identified
the defendant’s photograph ‘‘[t]he minute I saw it’’ as
the person she witnessed approach the store’s front on
the night before the robbery.
The defendant contends that none of the state’s evi-
dence placed him at the scene of the crime. This argu-
ment, however, fails to acknowledge that it is the jury’s
obligation to view the evidence as a whole and that it
may consider all facts proven ‘‘in combination with
other proven facts in determining whether the cumula-
tive effect of all the evidence proves the defendant
guilty . . . beyond a reasonable doubt.’’ State v. Fair-
ley, supra, 85 Conn. App. 886. Although DNA may be
transferred to an object at any time, the jury reasonably
could have concluded that, because the samples were
taken from the torn ends of the duct tape, the DNA
was impressed during the commission of the crime
rather than at some other point in time. In addition,
even if the DNA evidence was not dispositive of the
defendant’s identity, the two eyewitness identifications,
the presence of a silver Mercedes station wagon in the
store parking lot the night before to which the man
identified as the defendant returned after approaching
the store door, and the recovery of the stolen Mercedes
less than one-half mile from Paul Lirot Jewelers add to
the cumulative weight of the evidence presented at trial.
When viewing the entirety of the evidence, the jury
could have reasonably determined that the defendant
was one of the perpetrators in the Madison robbery.
B
The defendant also claims that the evidence was
insufficient to support his conviction of conspiracy to
commit robbery in the first degree. We disagree.
‘‘To establish the crime of conspiracy, the evidence
must show that an agreement to engage in conduct
constituting a crime had been entered into, that the
conspirators intended for the conduct to be performed,
and that an overt act in furtherance of the conspiracy
followed. General Statutes § 53a-48 (a) . . . .’’ (Cita-
tions omitted.) State v. Mendez, 154 Conn. App. 271,
276, 105 A.3d 917 (2014). ‘‘Conspiracy is a specific intent
crime, with the intent divided into two elements: (a)
the intent to agree or conspire and (b) the intent to
commit the offense which is the object of the conspir-
acy. . . . Thus, [p]roof of a conspiracy to commit a
specific offense requires proof that the conspirators
intended to bring about the elements of the conspired
offense.’’ (Citation omitted; internal quotation marks
omitted.) State v. Padua, 273 Conn. 138, 167, 869 A.2d
192 (2005). Given ‘‘the secret nature of conspiracies, a
conviction is usually based on circumstantial evidence
. . . [and] inferred from the conduct of the accused.’’
(Citations omitted; internal quotation marks omitted.)
State v. Boykin, 27 Conn. App. 558, 564–65, 609 A.2d
242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992).
Section 53a-134 (a) provides in relevant part: ‘‘A per-
son is guilty of robbery in the first degree when, in the
course of the commission of the crime of robbery as
defined in section 53a-133 or of immediate flight there-
from, he or another participant in the crime . . . (4)
displays or threatens the use of what he represents by
his words or conduct to be a pistol, revolver, rifle,
shotgun, machine gun or other firearm . . . .’’ The state
was thus required to prove that the defendant and
another agreed to commit robbery, intended to commit
robbery with a firearm and that one of the conspirators
committed an overt act in furtherance of the conspiracy.
See State v. Palangio, 115 Conn. App. 355, 362, 973 A.2d
110, cert. denied, 293 Conn. 919, 979 A.2d 492 (2009).
The defendant alleges that the state failed to present
evidence establishing an agreement between the parties
to rob the Madison jewelry store. We, however, pre-
viously determined that the DNA evidence, in combina-
tion with other circumstantial evidence, was sufficient
to find the defendant guilty of robbery in the first
degree. See part I A of this opinion. In addition, the
state presented testimonial evidence that established
that two men, acting in concert, had participated in
the robbery.4 From this evidence the jury could have
reasonably inferred that the defendant had previously
agreed with others to engage in the crime. State v. Allan,
311 Conn. 1, 26, 83 A.3d 326 (2014) (‘‘jury [is] allowed
to infer the existence of the requisite agreement . . .
from proof of the separate acts of each of them and
from the circumstances surrounding the commission
of these acts’’).
The defendant next contends that the evidence was
insufficient because the state failed to establish that he
owned a gun or had one in his possession. The state,
however, in proving conspiracy to commit robbery, was
not required to establish that the defendant had posses-
sion of the gun. It is sufficient to establish that the
‘‘alleged conspirators were knowingly engaged in a
mutual plan to do a forbidden act’’; State v. Pond, 138
Conn. App. 228, 235, 50 A.3d 950 (2012), aff’d, 315 Conn.
451, 108 A.3d 1083 (2015); and the defendant’s ‘‘conduct
at the scene can provide the requisite evidence of an
agreement.’’ (Internal quotation marks omitted.) Id. In
Pond, the defendant was charged with conspiracy to
commit robbery in the second degree when a coconspir-
ator threatened the victim with a gun and the defendant
did not intervene. Id., 235–36. This court held that the
defendant’s silence when the gun was displayed was
sufficient evidence for a jury to conclude that he acqui-
esced in the full criminal enterprise. Id., 236. In affirming
the decision of this court, our Supreme Court noted
that an agreement ‘‘need not be overt or formal, and
may be established purely by inference.’’ State v. Pond,
315 Conn. 451, 475, 108 A.3d 1083 (2015). Thus, in the
present case, it is immaterial to the conspiracy charge
whether the defendant was the gunman in the robbery.
He either was the gunman, where his possession of the
weapon was indicative of a plan to commit robbery in
the first degree, or he was the other perpetrator, who
knowingly engaged in the robbery while his companion
threatened the victims with a firearm. Furthermore,
witnesses testified that, at one point during the robbery,
the unarmed robber instructed the robber in the yellow
hat to shoot Lirot.
The defendant next argues that the state failed to
identify or charge any coconspirator. Although a con-
spiracy requires that two or more people agree to com-
mit a particular crime; State v. Grullon, 212 Conn. 195,
199, 562 A.2d 481 (1989); the state is not required to
charge each and every coconspirator. See State v. Asb-
erry, 81 Conn. App. 44, 56, 837 A.2d 885 (Connecticut
accepted unilateral approach to conspiracy statute,
making it irrelevant to defendant’s conviction that state
did not charge his coconspirators), cert. denied, 268
Conn. 904, 845 A.2d 408 (2004). Thus, the state’s failure
to pursue the other parties to the conspiracy does not
foreclose the defendant’s conviction.
Finally, the defendant argues that the state did not
establish that he committed an overt act in furtherance
of the crime. Specifically, the defendant argues that
the state failed to present any evidence connecting the
stolen Mercedes to an agreement to rob the Madison
jewelry store. This claim fails for several reasons. First,
previously in this opinion we concluded that the evi-
dence was sufficient to support a finding that the defen-
dant was in the store and engaged in a coordinated
robbery with another individual. See State v. Pond,
supra, 138 Conn. App. 235. Second, the jury is permitted
to draw all reasonable inferences from the evidence.
See State v. Mendez, supra, 154 Conn. App. 279 (jurors
‘‘not required to put aside their common sense’’ [internal
quotation marks omitted]). The jury heard evidence
from Edwards, who identified the defendant as the per-
son seen driving the stolen Mercedes prior to the rob-
bery. The jury also witnessed the video surveillance
footage taken from the Hartford gas station that showed
the stolen Mercedes enter the lot, following a red sport
utility vehicle, which was also linked to the robbery.
The jury heard testimony from Schroeder, who stated
that one day prior to the robbery, she observed the
defendant suspiciously walk up to the front door of the
jewelry store at about closing time and then return to
the parking lot where he entered the Mercedes. More-
over, on the day of the robbery, the Mercedes was found
abandoned in a parking lot near the jewelry store. From
this evidence, the jury could have reasonably inferred
that the defendant used the Mercedes to monitor the
store and plan the robbery, while also concealing his
identity. See State v. Miller, 59 Conn. App. 406, 413–14,
757 A.2d 69 (2000) (monitoring store prior to robbery
constituted overt act in furtherance of crime), cert.
denied, 255 Conn. 942, 769 A.2d 60 (2001).
II
The defendant next claims that the court committed
harmful error by consolidating, and then subsequently
denying his motions to sever, the Madison and Ellington
cases. The defendant argues that joinder of the Madison
and Ellington charges resulted in substantial prejudice
in two respects. First, the defendant asserts that factual
similarities in the two cases impaired the jury’s ability
to consider the evidence in each case independently.
Second, the defendant argues that the length and com-
plexity of the trial ‘‘enhanced the likelihood that the
jury would confuse or blend the evidence, weighing
it cumulatively, rather than independently.’’ The state
responds by claiming that the cases did not involve
overly similar facts and that the trial was not unduly
lengthy or complex. We agree with the state.
The following procedural history is relevant. On Janu-
ary 18, 2012, the state filed a motion for joinder, pursu-
ant to Practice Book § 41-19,5 of the Madison and
Ellington charges. The state further requested, pursuant
to Practice Book § 41-23,6 that the joint trial be con-
ducted in the Tolland judicial district. The defendant
objected to the motion to join and filed a separate
motion to sever, arguing that joinder would be improper
and prejudicial to him. After a hearing, the court con-
cluded that the state had met its burden of establishing
the absence of the three types of prejudice discussed
in State v. Boscarino, 204 Conn. 714, 529 A.2d 1260
(1987), that can result from the joinder of cases. In its
memorandum of decision, the court set forth the three
Boscarino factors: first, whether the charges pertain
to easily distinguishable and discrete factual scenarios
that are unlikely to confuse the jury; second, whether
the cases involve allegations of criminal conduct of
such a violent or shocking nature that it is likely to stir
the emotions of the jurors; and third, that joinder would
result in a long and overly complex trial where there
is a risk of jury confusion. The court concluded that
the state had met its burden of establishing the absence
of substantial prejudice set out in Boscarino and there-
fore granted the state’s motion for joinder and denied
the defendant’s motion for severance.
During the trial, the court, Mullarkey, J., repeatedly
instructed the jury that it should consider each incident
separately. The court provided a preliminary charge
that the jury ‘‘must not infer that [the defendant] did
anything wrong simply because there are two separate
cases being tried at the same time.’’ During the trial, the
court provided several cautionary instructions directing
the jury to consider the evidence of each incident sepa-
rately. Each of the exhibits were marked either ‘‘M’’ for
Madison or ‘‘E’’ for Ellington. The state and the defense
rested their cases in regard to the Madison charges
before the state began to present evidence on the Elling-
ton charges. Finally, the court instructed the jury that
it must deliberate and reach a verdict on the Madison
charges before it could begin deliberation on the Elling-
ton charges.
The following legal principles guide our resolution
of the defendant’s claim. ‘‘We have recognized the bene-
fits of joining two criminal cases involving the same
defendant. A joint trial expedites the administration of
justice, reduces congestion of trial dockets, conserves
judicial time, lessens the burden upon citizens who
must sacrifice both time and money to serve upon
juries, and avoids the necessity of recalling witnesses
who otherwise would be called to testify only once.
. . . Courts and commentators, however, have long
recognized the tension between these advantages and
the defendant’s right to a fair trial.’’ (Citation omitted;
footnote omitted; internal quotation marks omitted.)
State v. Perez, 147 Conn. App. 53, 94–95, 80 A.3d 103
(2013) (Lavine, J., concurring), cert. granted on other
grounds, 311 Conn. 920, 86 A.3d 468 (2014).
We review the court’s decision to join or sever
offenses under the abuse of discretion standard. State
v. Ellis, 270 Conn. 337, 375, 852 A.2d 676 (2004). Our
General Statutes provide the basis for the trial court to
join or sever criminal charges: ‘‘Whenever two or more
cases are pending at the same time against the same
party in the same court for offenses of the same charac-
ter, counts for such offenses may be joined in one infor-
mation unless the court orders otherwise.’’ General
Statutes § 54-57; see also Practice Book § 41-19.
‘‘[W]hen charges are set forth in separate informations
. . . and the state has moved in the trial court to join
the multiple informations for trial, the state bears the
burden of proving that the defendant will not be sub-
stantially prejudiced by joinder pursuant to Practice
Book § 41-19.7 The state may satisfy this burden by
proving, by a preponderance of the evidence, either
that the evidence in the cases is cross admissible or
that the defendant will not be unfairly prejudiced pursu-
ant to the Boscarino factors.’’ (Footnote altered.) State
v. Payne, 303 Conn. 538, 549–50, 34 A.3d 370 (2012).
On appeal, a defendant challenging the court’s joinder
of multiple charges ‘‘must demonstrate that the denial
of severance resulted in substantial injustice, and also
that any resulting prejudice was beyond the curative
power of the court’s instructions. . . . Our Supreme
Court has determined that [w]here evidence of one
incident can be admitted at the trial of the other, sepa-
rate trials would provide the defendant no significant
benefit. It is clear that, under such circumstances, the
defendant would not ordinarily be substantially preju-
diced by joinder of the offenses for a single trial.’’ (Cita-
tions omitted; emphasis in original; internal quotation
marks omitted.) State v. Carty, 100 Conn. App. 40, 45–
46, 916 A.2d 852, cert. denied, 282 Conn. 917, 925 A.2d
1100 (2007). Mindful of these legal principles, we now
turn to the defendant’s various claims.
A
We first consider the first Boscarino factor, which
is that the two cases involve discrete, easily distinguish-
able factual scenarios. State v. Boscarino, supra, 204
Conn. 722–23. The defendant argues that the two cases
contained ‘‘sufficient similarities so as to raise the sig-
nificant risk that the jury would improperly consider
the other crime evidence as propensity evidence.’’ The
state argues that, under the first factor of Boscarino, the
defendant’s claim fails because the two cases involved
discrete and easily distinguishable factual scenarios.
We agree with the state.
In its memorandum of decision, the court determined
that the Madison and Ellington robberies were factually
discrete and easily distinguished. The court determined
that ‘‘[t]he Madison robbery occurred, according to the
claims presented at the hearing on these motions,
around noon on a summer day and inside a jewelry
store. The victims were ordered to a back room where
they were bound with duct tape. The robbers absconded
with around $100,000 in merchandise. The Ellington
robbery occurred in a parking lot of a jewelry store on
a winter evening. That robbery was interrupted by the
arrival of a passerby, and the thieves fled without any
booty. These two scenarios are clearly distinguishable
and uncomplicated. There is little risk that a jury would
mistakenly blend the evidence pertaining to one inci-
dent with that of the other.’’
Upon a review of the record, we are not convinced
that these cases were so factually similar as to confuse
the jury. ‘‘Factual scenarios that are discrete and easily
distinguishable involve different locations, times and
witnesses. . . . Presentation of the evidence in an
orderly sequence contributes to the distinguishability
of the factual scenarios in the charges joined for trial.
. . . The evidence need not be presented in strictly
chronological order, however, as long as the presenta-
tion does not confuse the jury and does not prejudice
it against the defendant.’’ (Citations omitted.) State v.
Rodriguez, 91 Conn. App. 112, 118–19, 881 A.2d 371,
cert. denied, 276 Conn. 909, 886 A.2d 423 (2005). Here,
although both cases involved robberies, the likelihood
that the jury would confuse the two was minimal. One
trial stemmed from events in Ellington, the other trial
stemmed from events in Madison. The Ellington trial
involved a botched robbery where the perpetrators
never entered the store, while the Madison trial involved
a completed robbery where the perpetrators bound the
store’s employees and left with cash and jewelry. There
were also no overlapping witnesses or victims. The
simple fact that both cases involved robberies where
dark clothing, masks, firearms, and duct tape were used
is not sufficient to establish that the crimes were indis-
tinguishable. See State v. Fauci, 87 Conn. App. 150, 157,
160, 865 A.2d 1191 (2005) (court found distinguishable
three robberies of fast food restaurants, where perpe-
trators attempted to break into restaurants by throwing
rock through glass door), aff’d, 282 Conn. 23, 917 A.2d
978 (2007); see also State v. Herring, 210 Conn. 78, 96,
554 A.2d 686 (two killings were factually distinguishable
when one victim was killed while fleeing from an
attempted robbery, other victim was killed after helping
defendant rob bank, and victims were shot in different
parts of body and died of wounds to different organs),
cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed.
2d 579 (1989).
The defendant further contends that jury confusion
likely occurred because of the use of cross admissible
evidence. Specifically, the state was allowed to present
evidence of use of stolen, out-of-state, drop cars and
the use of novelty handcuffs in both the Madison and
Ellington cases. The crux of this contention, however,
is one regarding the cross admissibility of evidence,
rather than a challenge to the court’s joinder ruling. In
State v. King, 35 Conn. App. 781, 791–93, 647 A.2d 25
(1994), aff’d, 235 Conn. 402, 665 A.2d 897 (1995), this
court concluded that joinder was appropriate where,
although evidence as to each of the separate robberies
was cross admissible, the charges were predicated on
distinct fact patterns. In King, the defendant was
charged with five distinct counts of robbery. Id., 792–93.
The trial court ruled that the evidence was cross admis-
sible in order to establish the defendant’s identity and
common scheme. Id., 791. Despite the similarities of
the various charges, this court affirmed the trial court’s
conclusion that joinder was proper because each rob-
bery was based on ‘‘specific, easily distinguishable
facts.’’ Id., 792. Thus, the proper inquiry is not whether
the evidence is, or is not, cross admissible, but rather
whether the facts are so indistinguishable as to be con-
fusing to the jury.8 Because these two cases were factu-
ally and temporally distinct, we conclude that the trial
court did not abuse its discretion with respect to its
conclusion regarding the first Boscarino factor.
B
We now turn to the next Boscarino factor, which
pertains to the duration and complexity of the trial.
This factor pertains to the concern, as stated in State
v. Boscarino, supra, 204 Conn. 724, that in long, compli-
cated trials it is ‘‘highly likely that the jury might confuse
the evidence in separate cases.’’
In Boscarino, our Supreme Court concluded that the
trial was complex when it lasted ten weeks, included
testimony from fifty-five witnesses, and involved sixty-
six exhibits. Id., 723–24. Although there is no specific
standard in determining what constitutes an overly long
and complex trial, a review of our case law is instruc-
tive. The following joined trials were not considered
overly complex: State v. Payne, supra, 303 Conn. 552
(trial lasted two weeks and consisted of eight days of
testimony and twenty-one witnesses); State v. Atkin-
son, 235 Conn. 748, 766, 670 A.2d 276 (1996) (entire
trial lasted five days and consisted of fifteen witnesses);
State v. Jennings, 216 Conn. 647, 659–60, 583 A.2d 915
(1990) (jury heard testimony from fourteen witnesses
over five days and considered twenty-eight exhibits);
State v. Herring, supra, 210 Conn. 97 (jury heard eight
days of testimony from twenty-three witnesses). In the
present case, the trial lasted eighteen days, involved
forty-seven witnesses, and involved more than 400
exhibits. The state presented the Madison evidence
first, followed by the Ellington evidence. On the basis
of such a procedural history, we cannot conclude that
joinder resulted in a complex trial that confused the
jury and thereby prejudiced the defendant.
Furthermore, the trial itself was not overly complex
and the issues presented were straightforward. The pri-
mary issue at trial was whether the defendant was prop-
erly identified as the perpetrator of the alleged crimes.
Accordingly, although there were forty-seven wit-
nesses, the testimony focused primarily on the discrete
issue of identification. Further, the vast majority of the
exhibits were photographs of the two crime scenes. A
review of this photographic evidence confirms that
many of photographs show the same image at various
angles. Although the trial was complex in that it
required the jury to draw reasonable inferences from
circumstantial evidence, this alone does not satisfy the
second Boscarino factor. State v. Delgado, 243 Conn.
523, 537, 707 A.2d 1 (1998). Moreover, the fact that the
jury found the defendant not guilty of the Ellington
charges further established its ability to consider each
incident separately. We therefore conclude that neither
the length of the trial, nor the nature of the issues
presented created a likelihood of jury confusion.
III
The defendant next claims that the court erred when
it ruled that two categories of evidence were cross
admissible. Specifically, the defendant argues that the
court improperly concluded that the use of novelty
handcuffs and the use of stolen out-of-state vehicles in
both crimes were signature in nature and therefore
cross admissible in both trials. The defendant further
alleges that, under our case law, partial cross admissibil-
ity is not permissible and, as a result, the court commit-
ted harmful error due to the overall weak nature of
the state’s case. The state argues that, although the
defendant is correct that cross admissibility rulings
apply to the entirety of the prior misconduct, rather
than mere pieces of evidence, a proper ruling would
have allowed all evidence to be cross admissible. Thus,
the state contends that the court’s unduly restrictive
ruling benefited the defendant and, therefore, cannot
not be considered harmful on appeal. We conclude that
the court’s evidentiary rulings were proper; however,
we disagree with both parties’ assertion that the trial
court was required, upon a finding that the evidence was
signature, to admit all evidence of the prior misconduct.
On May 9, 2012, the state filed a notification of its
intent to offer evidence of the defendant’s prior miscon-
duct. Specifically, the state requested, pursuant to § 4-
5 (b) of the Connecticut Code of Evidence, that the
court order that ‘‘each of the above captioned cases be
admissible in the other as relevant to identity, common
plan or scheme, signature crime, a system of criminal
activity, and to the corroboration of crucial prosecution
testimony.’’ The defendant filed an objection to the
state’s offer on May 18, 2012, arguing that the Madison
and Ellington crimes were not signature crimes under
our law and that even if the conduct was signature, the
evidence was still inadmissible on the ground that it
was more prejudicial than probative. On May 21, 2012,
the court heard argument on the issue, where both
parties presented the similarities and differences
between the two criminal acts. On June 8, 2012, the
court concluded that ‘‘in a limited way, this is a signature
case. . . . [W]hile . . . these two robberies bear a lot
of similarities, the only two areas in which I find they
are signature . . . are in the employment of these
handcuffs and the use of the . . . stolen out-of-state
drop cars. And that’s my ruling.’’
We begin our analysis by noting that earlier in this
opinion, we concluded that the court properly granted
joinder on the ground that the state had satisfied its
burden of establishing that the defendant would not be
unfairly prejudiced in light of the Boscarino factors.
Thus, the state was not required to also establish the
cross admissibility of the Madison and Ellington con-
duct during the joinder hearing. See State v. Payne,
supra, 303 Conn. 550 (joinder may be granted after state
establishes, by preponderance of evidence, ‘‘either that
the evidence in the cases is cross admissible or that
the defendant will not be unfairly prejudiced pursuant
to the Boscarino factors’’). As the state chose to meet
its burden by establishing the absence of the Boscarino
factors, the court did not consider the issue of cross
admissibility in its ruling on joinder. As a result, the
court’s later determinations on cross admissibility were
purely evidentiary rulings and we review them as such.
‘‘[A]s a general rule, evidence of prior misconduct is
inadmissible to prove that a defendant is guilty of the
crime of which he is accused. . . . Nor can such evi-
dence be used to suggest that the defendant has a bad
character or a propensity for criminal behavior. . . .
Conn. Code Evid. § 4-5 (a). Under § 4-5 (b) of the Con-
necticut Code of Evidence, however, evidence of prior
misconduct may be admitted when it is offered for a
purpose other than to establish the defendant’s bad
character or criminal propensity. Among other things,
prior misconduct evidence may be admissible to prove
intent, identity, motive, malice or a common plan or
scheme. Conn. Code Evid. § 4-5 (b). Thus, the fact [t]hat
evidence tends to prove the commission of other crimes
by the accused does not render it inadmissible if it is
otherwise relevant and material . . . . In order to
determine whether such evidence is admissible, we use
a two part test. First, the evidence must be relevant
and material to at least one of the circumstances encom-
passed by the exceptions. Second, the probative value
of [the prior misconduct] evidence must outweigh [its]
prejudicial effect . . . .’’ (Citations omitted; internal
quotation marks omitted.) State v. Jacobson, 283 Conn.
618, 630, 930 A.2d 628 (2007).
When misconduct evidence is offered to establish a
common plan or scheme, our case law requires that
the ‘‘two crimes [be] sufficiently similar and unique
to warrant a reasonable inference that the defendant
committed both crimes.’’ State v. Randolph, 284 Conn.
328, 350, 933 A.2d 1158 (2007). Courts are thus required
to conduct a test to determine whether the similarities
between the charged crime and the other misconduct
are such that it rises to the level of being signature in
nature. Id., 352. Accordingly, under Randolph, it is the
state’s burden to ‘‘produce sufficient evidence to: (1)
establish the existence of a signature, modus operandi,
or logo and (2) support a permissive inference that both
crimes were related to an overall goal in the defendant’s
mind.’’ (Emphasis in original; internal quotation marks
omitted.) Id., 355.
‘‘We review the trial court’s decision to admit evi-
dence, if premised on a correct view of the law . . .
for an abuse of discretion.’’ State v. Saucier, 283 Conn.
207, 218, 926 A.2d 633 (2007). Our review of the trial
transcript reveals that, in making its determination, the
court properly applied the law. The court considered
the direct connections between the Madison and Elling-
ton crimes and concluded that in many ways, the rob-
beries were typical and not signature in nature. The
court, however, did find that the use of novelty hand-
cuffs and stolen out-of-state vehicles did rise to the
level of being signature in nature. After considering the
various ways in which admission of this evidence could
be prejudicial, including the three Boscarino factors,
the court determined that the probative value of the
evidence outweighed its prejudicial value.
The defendant argues that the court was required to
rule that either the entirety of the misconduct evidence
was or was not cross admissible and, thus, was pre-
cluded from finding only some of the prior misconduct
evidence to be cross admissible. We do not agree.
Although we note that our Supreme Court in Randolph
held that prior misconduct with signature characteris-
tics may be admissible in its entirety, our trial courts
retain the discretion to appropriately narrow their evi-
dentiary rulings to comport with the rules of evidence.
Conn. Code Evid. § 1-4 (‘‘[t]he court may, and upon
request shall, restrict the evidence to its proper scope’’).
In the present case, the court determined that there
were signature elements connecting the two crimes,
thereby meeting the signature test under Randolph. The
Randolph test, however, goes only so far as establishing
what constitutes signature evidence, which may be
admissible under the common plan exception in § 4-5
(b) of the evidence code. In order to determine admissi-
bility, the court must also, as it did here, conduct an
inquiry into whether the evidence is more probative
than prejudicial. See Conn. Code Evid. § 4-5 (b), com-
mentary. Upon this basis, the court ruled that only the
evidence directly related to the signature elements of
the two crimes, rather than all of the misconduct evi-
dence, would be cross admissible. Due to the difficulty
inherent in balancing the probative and prejudicial
value of evidence, we review these decisions while mak-
ing every reasonable presumption in favor of the trial
court’s ruling. See State v. Merriam, 264 Conn. 617,
661, 835 A.2d 895 (2003). Accordingly, we reject the
defendant’s claim that the court improperly ruled on
the cross admissibility of evidence.
IV
The defendant next claims that the court erred when
it provided instructions that allowed the jury to consider
two areas of evidence as cross admissible. Specifically,
the defendant contends that because the court improp-
erly joined the two trials and improperly cross admitted
evidence, the court’s instruction regarding cross admis-
sibility amounted to harmful error. This, however, is
not a distinct claim on appeal, but rather derivative
of the defendant’s two previous claims. As we have
concluded that the court’s joinder and evidentiary rul-
ings were not improper, this claim must also fail.
V
The defendant last claims that the court committed
harmful instructional error when it denied his request
to charge the jury on the reliability of eyewitness testi-
mony and DNA evidence. We are not persuaded.
We begin by setting forth the appropriate standard
of review. The defendant urges that errors involving
identification instructions are of a constitutional magni-
tude. In support of this proposition, he cites State v.
Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995), where
the Supreme Court stated that ‘‘an improper instruction
on an element of an offense . . . is of constitutional
dimension’’; (internal quotation marks omitted); and
State v. Jackson, 37 Conn. App. 491, 499, 656 A.2d 1056
(1995), rev’d, 239 Conn. 629, 687 A.2d 485 (1997), which
held that ‘‘[i]dentity of a defendant . . . is an element
common to proof of all crimes . . . .’’ Although it is
true that an instructional error regarding the elements
of a crime is constitutional, the defendant here chal-
lenges instead an instruction related to the dangers of
misidentification. ‘‘Our Supreme Court has held that
identification instructions are not constitutionally
required and [e]ven if [a] court’s instructions were less
informative on the risks of misidentification . . . the
issue is at most one of instructional error rather than
constitutional error. A new trial would only be war-
ranted, therefore, if the defendant could establish that
it was reasonably probable that the jury was misled.
. . . 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. (Citations omitted; footnote omitted; internal
quotation marks omitted.) State v. Bullock, 155 Conn.
App. 1, 19–20, 107 A.3d 503, cert. denied, 316 Conn. 906,
111 A.3d 882 (2015).
We review nonconstitutional claims of instructional
error under the following standard. ‘‘While a request to
charge that is relevant to the issues in a case and that
accurately states the applicable law must be honored,
a [trial] court need not tailor its charge to the precise
letter of such a request. . . . If a requested charge is
in substance given, the [trial] court’s failure to give a
charge in exact conformance with the words of the
request will not constitute a ground for reversal. . . .
As long as [the instructions] are correct in law, adapted
to the issues and sufficient for the guidance of the jury
. . . we will not view the instructions as improper. . . .
Additionally, we have noted that [a]n [impropriety] in
instructions in a criminal case is reversible . . . when
it is shown that it is . . . reasonably probable for . . .
nonconstitutional [improprieties] that the jury [was]
misled.’’ (Internal quotation marks omitted.) State v.
Kitchens, 299 Conn. 447, 455, 10 A.3d 942 (2011).
The law regarding eyewitness identification recently
was substantially revised in State v. Guilbert, 306 Conn.
218, 49 A.3d 705 (2012). In Guilbert, our Supreme Court
‘‘overrruled State v. Kemp, [199 Conn. 473, 507 A.2d
1387 (1986)], and State v. McClendon, [248 Conn. 572,
730 A.2d 1107 (1999)], to the extent that those cases
had indicated that the reliability of eyewitness identifi-
cations was a matter within the knowledge of the aver-
age juror and that expert testimony on the topic
necessarily was unhelpful or would invade the province
of a jury.’’ State v. Williams, 317 Conn. 691, 700–701, 119
A.3d 1194 (2015). The court ‘‘disavowed the previously
expressed notions that the factors undermining the
reliability of eyewitness testimony were common
knowledge and that permitting expert testimony on
those factors amounted to an improper invasion of the
province of a jury to weigh evidence.’’ Id., 703. At the
same time, the court in Guilbert emphasized ‘‘that [its]
decision did not mean that expert testimony necessarily
was required in all cases involving eyewitness identifi-
cations. Rather . . . trial courts were to retain broad
discretion in ruling on the qualifications of expert wit-
nesses and determining whether their opinions are rele-
vant. . . . Consequently, whether to permit expert
testimony concerning the reliability of eyewitness iden-
tification evidence in any individual case ultimately is
a matter within the sound discretion of the trial court.’’
(Internal quotation marks omitted.) Id.
In overruling its past precedent, the court identified
several factors ‘‘affecting the reliability of eyewitness
identifications [that] are either unknown to the average
juror or contrary to common assumptions . . . .’’ State
v. Guilbert, supra, 306 Conn. 252. Relevant to this
appeal, these factors include: ‘‘(1) [that] there is at best
a weak correlation between a witness’ confidence in
his or her identification and its accuracy . . . (5) [that]
a person’s memory diminishes rapidly over a period of
hours rather than days or weeks . . . [and] (6) [that]
identifications are likely to be less reliable in the
absence of a double-blind, sequential identification pro-
cedure . . . .’’ (Footnotes omitted.) Id., 237–39.
‘‘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.’ 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.’
‘‘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.’’ (Citations
omitted; footnote omitted.) State v. Bullock, supra, 155
Conn. App. 24–25.9 We now consider the defendant’s
various instructional claims.
A
The defendant first claims that the court committed
error with regard to its instructions on eyewitness testi-
mony. Specifically, the defendant claims that under
State v. Guilbert, supra, 306 Conn. 245, the court was
required to provide instructions that would inform the
jury of the ‘‘weak correlation between a witness’ confi-
dence in his or her identification and its accuracy
. . . .’’ Id., 237. We disagree.
The court provided the following instructions regard-
ing the certainty of eyewitness identification evidence:
‘‘You may also consider the strength of the identifica-
tion, including the witness’ degree of certainty. Cer-
tainty, however, does not mean accuracy.’’ Prior to the
charging conference, the defendant requested the fol-
lowing instruction: ‘‘While the witness’ level of certainty
may be considered, bear in mind that certainty does
not ensure accuracy; in fact, it is now known that there
is little correlation between a witness’ degree of cer-
tainty and the reliability of the identification.’’
Although there exists modern science recognizing a
weak correlation between an identifying witness’ confi-
dence in the identification and its accuracy; State v.
Guilbert, supra, 306 Conn. 253; we conclude that the
defendant’s request was, in substance, adopted by the
court. State v. Fair, 118 Conn. App. 357, 364–65, 983
A.2d 63 (2009) (‘‘refusal to charge in the exact words
of a request . . . will not constitute error if the
requested charge is given in substance’’ [internal quota-
tion marks omitted]). Here, the court explained that
certainty was a factor in considering the testimony;
however, it cautioned the jury not to infer accuracy
from the witness’ certainty alone. The crux of this
instruction was that the jury should be careful not to
correlate certainty with accuracy, which was the
essence of the defendant’s request. The fact that the
court did not adopt the defendant’s explicit request did
not render its instruction improper.10
Further, the defendant has not established harm. The
defendant argues that the state repeatedly asked the
witnesses how certain they were at the time the identifi-
cations were made, thereby ‘‘intentionally perpetuating
[the] myth in order to get a conviction.’’ On this basis,
the defendant argues that the instruction was harmful
because it did not notify the jury of the lack of a correla-
tion between certainty and accuracy. We are not per-
suaded. First, our Supreme Court in Guilbert
recognized the weak correlation between confidence
and accuracy, concluding only that the jury should be
apprised of this information when considering the relia-
bility of eyewitness testimony. The court did not hold
that identification testimony was inadmissible, nor did
it state that the jury could not consider the witness’
confidence in the identification. Second, we do not
review jury instructions in isolation, but instead must
consider the challenged instruction in the context of
the entire charge. State v. Colon, 272 Conn. 106, 219,
864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S.
Ct. 102, 163 L. Ed. 2d 116 (2005). The court’s charge
also included the following statement: ‘‘When assessing
the credibility or the testimony as it relates to the issue
of identification, keep in mind, it’s not sufficient that
the witness be free from doubt as to the correctness
of the identification of the defendant; rather, you must
be satisfied beyond a reasonable doubt on the accuracy
of the identification of the defendant before you find
him guilty on any charge.’’ This instruction further clari-
fied to the jurors that it is their role to determine the
accuracy of the identification and that the witness’ cer-
tainty, even if ‘‘free from doubt,’’ is not enough to con-
clude that the identification is accurate. Thus, the
defendant’s claim fails to establish harm.
B
The defendant next challenges the court’s failure to
provide an instruction that warned the jury that eyewit-
ness identifications become less reliable the longer the
period of time between the initial observation and the
identification. The state argues that the defendant’s
request was, in substance, provided in the court’s
charge to the jury. We agree with the state and conclude
that, under the circumstances of this case, the requested
instruction was unwarranted.11
The following facts are relevant to our resolution of
this claim. During the trial, the state relied on eyewit-
ness identifications from Schroeder and Edwards. Each
witness was presented with a photographic array, and
both identified the defendant as the person they wit-
nessed. When Schroeder made an identification from
the photographic array, more than eight months had
passed since her observation. Edwards made an identi-
fication from the photographic array after twenty-six
months had passed since her observation.12
At trial, the defendant requested a jury charge that
would have instructed the jury as follows: ‘‘And lastly,
how did the passage of time between the witness’ view-
ing of the suspect and her subsequent identification of
him in a police photo array procedure affect its reliabil-
ity?—as courts have recognized that the more time that
goes by, the weaker the reliability of the identification.’’
The court denied the request and ultimately charged
the jury in relevant part: ‘‘Further, you [should] consider
the length of time that’s elapsed between the occur-
rence of the crime and the identification of the defen-
dant by the witness.’’
We conclude that the court instructed the jury on the
substance of the defendant’s request. The instruction
notified the jury that it should consider the length of
time between the witness’ observation and the identifi-
cation. The most reasonable conclusion that can be
drawn from this instruction is that as time passes, a
person’s memory fades and their recollections become
less reliable. We see no discernible difference between
the substance of the court’s charge and the defen-
dant’s request.
Further, the defendant’s claim does not fall within
one of the dangers of eyewitness identifications recog-
nized in Guilbert. In Guilbert, our Supreme Court recog-
nized that ‘‘memory diminishes most rapidly in the
hours immediately following an event and less dramati-
cally in the days and weeks thereafter . . . .’’13 State
v. Guilbert, supra, 306 Conn. 253–54. The concern in
Guilbert, however, was not simply that memories fade
rapidly, but rather that jurors ‘‘commonly are unaware
of the effect of . . . the rate at which memory fades
. . . .’’ Id., 242. In the present case, the identifications
by Edwards and Schroeder from photographic arrays
did not occur within hours or weeks of the initial obser-
vation. Edwards identified the defendant after more
than two years had passed since the event, and
Schroeder identified the defendant after more than
three-quarters of a year had passed. In such situations,
it is well within the knowledge of the average juror
that, as months and years pass, an identification, like
any other recollection of fact, may be based on faded
memories rather than clear recollection.14 See, e.g., Sell
v. United States, 539 U.S. 166, 180, 123 S. Ct. 2174, 156
L. Ed. 2d 197 (2003) (stating that memories fade ‘‘after
years’’); United States v. Horton, 270 Fed. Appx. 783,
788 (11th Cir. 2008) (trial court did not abuse discretion
in declining to deliver instruction requested by defen-
dant because its substance was included in court’s
charge, and ‘‘[t]he jury knew the events had occurred
. . . years before and that memory fades with the pas-
sage of time’’); United States v. Labansat, 94 F.3d 527,
530 (9th Cir. 1996) (trial court did not abuse discretion
in declining request for public funds to hire expert on
eyewitness identification in case where eyewitness
identifications ‘‘were not made until several months
after the robberies’’ because ‘‘[i]t is common knowledge
that memory fades with time’’), cert. denied, 519 U.S.
1140, 117 S. Ct. 1013, 136 L. Ed. 2d 890 (1997); State
Industrial Ins. System v. Jesch, 101 Nev. 690, 694, 709
P.2d 172 (1985) (noting ‘‘the likelihood of error or fraud
that may occur when evaluating factual matters
occurring many years before’’ because memories fade).
As the purpose of a cautionary instruction, under Guilb-
ert, is to notify the jury of established science that is
contrary to common assumptions and not within the
knowledge of the average juror, we cannot conclude
that such an instruction was necessary in the present
case.15
Even if we assume arguendo that the court committed
instructional error, the defendant would still be
required to establish harm. ‘‘When a defendant chal-
lenges the trial court’s failure to provide a requested
charge . . . [where] the error is merely of an eviden-
tiary nature . . . the defendant must prove that it was
reasonably probable that the jury was misled. (Citation
omitted.) State v. Ali, 233 Conn. 403, 422–23, 660 A.2d
337 (1995). ‘‘Accordingly, a nonconstitutional error is
harmless when an appellate court has a fair assurance
that the error did not substantially affect the verdict.’’
(Internal quotation marks omitted.) State v. Payne,
supra, 303 Conn. 559.
In reviewing the defendant’s claim, we conclude that
he has not carried his burden of establishing harm. At
trial, defense counsel cross-examined both Schroeder
and Edwards on the accuracy of their identifications,
given the amount of time between their observations
and their identifications. At closing argument, defense
counsel argued that the identifications were not credi-
ble, given the passage of time, and referred the jury to
the court’s instruction regarding eyewitness identifica-
tions. See State v. Payne, supra, 303 Conn. 552–53
(harmless error where improper joinder of cases did
not substantially sway verdict). Additionally, the cumu-
lative force of the other evidence at trial, especially the
DNA evidence recovered from the ends of duct tape
used to bind the arms and legs of the victims of the
Madison robbery, was independently sufficient to iden-
tify the defendant as one of the actors in the robbery.
See State v. Randolph, supra, 284 Conn. 376–80 (admis-
sion of medical examiner’s report harmless when other
ample evidence supported trial court’s probable cause
determination).
C
The defendant next claims that the court improperly
declined to give the jury his requested instruction
regarding DNA evidence presented by the state. Specifi-
cally, the defendant argues that the court’s instructions
must reflect relevant accepted science and social sci-
ence. By denying the request to charge, the defendant
contends, the court improperly instructed the jury on
how to consider the DNA evidence. We disagree.
The defendant sought the following charge related
to DNA evidence: ‘‘You have heard evidence from an
analyst at the state laboratory who testified about her
testing of various pieces of evidence that were submit-
ted for DNA analysis. While DNA analysis can be a
powerful tool in the area of law enforcement, its foren-
sic application is not a perfect science. Crime scene
DNA samples often do not come from a single source
obtained in immaculate conditions; they are sometimes
messy assortments of multiple unknown persons often
collected in less than ideal conditions. These samples
can be of poor or degraded quality, or they can be of
minimal or insufficient quantity, especially as investiga-
tors seek profiles from a few cells retrieved from swab-
bings of various items such as cigarette butts, envelopes
or soda cans, pushing the limits of DNA technology.
All of these factors make DNA testing in the forensic
context far more complex tha[n] simply reporting test
results; accordingly, the circumstances surrounding the
testing of the DNA samples, as well as the testing itself,
must be carefully scrutinized.’’ The court denied the
request, stating that the proposed charge requested the
court to ‘‘comment on [DNA] evidence in ways that
samples can be poor, degraded quality, minimal or insuf-
ficient.’’ The court then explained to defense counsel
that these topics, if a factual basis existed, could be
more appropriately raised during closing arguments.
The defendant cites State v. Guilbert, supra, 306
Conn. 218, and State v. Ledbetter, 275 Conn. 534, 881
A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct.
1798, 164 L. Ed. 2d 537 (2006), for the proposition that
‘‘instructions must reflect relevant accepted science
and social science.’’ The defendant, however, provides
no support that his assertions regarding the unreliability
of DNA evidence are accepted science. In Guilbert, our
Supreme Court recognized ‘‘the broad based judicial
recognition [that] tracks a near perfect consensus. . . .
The extensive and comprehensive scientific research,
as reflected in hundreds of peer reviewed studies and
meta-analyses, convincingly demonstrates the fallibil-
ity of eyewitness identification testimony and pinpoints
an array of variables that are most likely to lead to a
mistaken identification.’’ (Emphasis added; footnotes
omitted.) State v. Guilbert, supra, 234–36. The court
in Guilbert was concerned with the narrow issue of
eyewitness identifications and provided no discussion
of DNA evidence. In the present case, the defendant
points to no evidence, nor did he present any during
the trial, that supports the proposition that the scientific
community has identified and wholly adopted the vari-
ous ways in which DNA evidence may be fallible. Thus,
the court correctly determined that the defendant’s
position was better left for closing arguments, rather
than the jury charge. See State v. Berger, 249 Conn.
218, 240–41, 733 A.2d 156 (1999) (court has duty to
submit to jury no issue upon which evidence would not
reasonably support finding).16
The judgment is affirmed.
In this opinion KELLER, J., concurred.
1
The substitute information from July 11, 2012, charged the defendant
with the following, in relevant part: Count one charged the defendant with
conspiracy to commit robbery in the first degree. Counts two through six
charged the defendant with five counts of kidnapping in the first degree
with a firearm; count seven charged the defendant with robbery in the first
degree, count eight charged the defendant with larceny in the first degree,
and count nine charged the defendant with commission of a class A, B or
C felony with a firearm.
2
Prior to sentencing, the court denied the defendant’s motion for a
new trial.
3
Golding held that ‘‘a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation 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 harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail.’’ (Emphasis in original; footnote
omitted.) State v. Golding, supra, 213 Conn. 239–40. In In re Yasiel R., 317
Conn. 773, 781, A.3d (2015), our Supreme Court modified Golding’s
third prong by eliminating the requirement that the constitutional violation
be clearly demonstrated by an appellant.
4
Lirot testified that, although he saw only one of the perpetrators, he
heard two separate voices. He testified that the first man had a gun and
stayed with the victims, while the second man moved throughout the other
rooms in the store. Lirot heard the second man demanding to know where
the store cashbox was located.
5
Practice Book § 41-19 provides: ‘‘The judicial authority may, upon its
own motion or the motion of any party, order that two or more informations,
whether against the same defendant or different defendants, be tried
together.’’
6
Practice Book § 41-23 provides in relevant part: ‘‘Upon motion of the
prosecuting authority or the defendant, or upon its own motion, the judicial
authority may order that any pending criminal matter be transferred to any
other court location . . . (3) Where the joint trial of informations is ordered
pursuant to Section 41-19 and the cases are pending in different judicial
districts or geographic areas.’’
7
Practice Book § 41-19 provides: ‘‘The judicial authority may, upon its
own motion or the motion of any party, order that two or more informations,
whether against the same defendant or different defendants, be tried
together.’’
8
We recognize that the defendant’s argument regarding cross admissibility
is more appropriately framed as an evidentiary challenge, which is his third
claim. See part III of this opinion.
9
At the time of trial, Guilbert was pending before our Supreme Court.
The Supreme Court, in deciding Guilbert, cited approvingly to the New
Jersey Supreme Court in State v. Henderson, 208 N.J. 208, 296, 27 A.3d 872
(2011). See State v. Guilbert, supra, 306 Conn. 236–37. It is important to
note that although the court in Henderson revised the framework with
regard to jury instructions on eyewitness testimony, the court went on to
conclude that this new standard would not be applied retroactively. State
v. Henderson, supra, 302. In our state, however, we follow the ‘‘ general
rule that judgments that are not by their terms limited to prospective applica-
tion are presumed to apply retroactively . . . to cases that are pending
. . . .’’ (Citation omitted; internal quotation marks omitted.) State v. Kitch-
ens, supra, 299 Conn. 454.
10
In concluding that the court committed instructional error, the concur-
rence states that the court exacerbated the impropriety by instructing the
jury that it ‘‘may also consider the strength of the identification, including
the witness’ degree of certainty.’’ We note, however, that the defendant’s
requested instruction included the following language: ‘‘the witness’ level
of certainty may be considered.’’ Thus, any claimed error that is based on
this language would constitute error induced by the defendant and not
impropriety by the court. See State v. Gibson, 270 Conn. 55, 66, 850 A.2d 1040
(2004) (induced error defined as ‘‘[a]n error that a party cannot complain of
on appeal because the party, through conduct, encouraged or prompted the
trial court to make the erroneous ruling’’ [internal quotation marks omitted]).
11
The concurring opinion posits that we have created an assumption that
memories fade as months and years pass, and did so without any scientific
support. We disagree with that characterization and conclude that, in the
absence of scientific evidence furnished by a defendant that conclusively
establishes a danger inherent to eyewitness identification evidence that is
contrary to the common knowledge of jurors, a trial court is not compelled
to provide an instruction thereon.
Significantly, our Supreme Court in Guilbert emphasized that ‘‘a trial
court retains the discretion to decide whether, under the specific facts and
circumstances presented, focused and informative jury instructions’’ on
eyewitness testimony are warranted. State v. Guilbert, supra, 306 Conn.
257–58. In reviewing the discretionary determinations of a trial court, ‘‘every
reasonable presumption should be given in favor of the correctness of the
court’s ruling.’’ (Emphasis in original; internal quotation marks omitted.)
State v. Williams, supra, 317 Conn. 710 n.17. Accordingly, the court’s determi-
nation regarding the extent to which it was appropriate to include a focused
and specific eyewitness instruction should be reviewed for an abuse of dis-
cretion.
Our Supreme Court in Guilbert identified eight specific variables that
impact eyewitness identifications; see State v. Guilbert, supra, 306 Conn.
253–54; and were recognized by other courts, and track ‘‘a near perfect
scientific consensus.’’ Id., 234–35. Although one of these variable involves
the rate at which memory deteriorates, nowhere does the court assert that
jurors misunderstand that memory does, in fact, deteriorate. This, however,
does not end our inquiry. The court in Guilbert stated that ‘‘the foregoing
eight variables are not exclusive. . . . [T]rial courts [should not be limited]
from reviewing evolving, substantial, and generally accepted scientific
research. But . . . they must rely on reliable scientific evidence that is
generally accepted by experts in the community.’’ (Emphasis added; internal
quotation marks omitted.) Id., 258.
In the present case, the defendant cited only State v. Artis, 136 Conn.
App. 568, 607, 47 A.3d 419 (2012), rev’d, 314 Conn. 131, 101 A.3d 915 (2014),
for the proposition that as months and years pass, the reliability of an
identification weakens. The defendant, however, provided no support estab-
lishing that this is unknown or contrary to the common knowledge of jurors.
See State v. Williams, supra, 317 Conn. 710 n.17 (axiomatic that defendant
bears burden of furnishing evidentiary record to demonstrate that court
abused discretion). As a result, there was no scientific evidence before the
court that supported the defendant’s requested instruction. Because Guilbert
recognized the need for cautionary instruction only when the dangers of
misidentification were well established by science and unknown or contrary
to the jury’s understanding, it would be inappropriate for a court to tailor
such an instruction in the absence of such evidence. Accordingly, we cannot
conclude that the court abused its discretion when it refused to give the
requested instruction in the present case.
12
We further note that both witnesses’ observations were made prior to,
not during, the criminal incident and thus were made under less stressful cir-
cumstances.
13
Our Supreme Court in State v. Guilbert, supra, 306 Conn. 236–37, cited
approvingly to modern scientific research on eyewitness identifications iden-
tified in State v. Henderson, 208 N.J. 208, 27 A.3d 872 (2011). In Henderson,
the New Jersey Supreme Court stated that research on human memory
indicates that ‘‘memory rapidly and continuously decays . . . .’’ (Internal
quotation marks omitted.) Id., 246.
14
Upon concluding that the specific dangers recognized in Guilbert are
inapplicable to the present case, we follow the established precedent that
‘‘expert testimony on eyewitness identification . . . in most cases, deals
with general principles, such as the fact that memories fade over time . . . .
Obviously there are aspects of these general principles on which experts
might make some contribution in particular cases. However, juries are not
without a general understanding of these principles and . . . they see the
possible application of these principles in concrete circumstances. The jury
[must] have the opportunity to assess the witnesses’ credibility on the basis
of what is presented at trial and not solely on general principles.’’ (Internal
quotation marks omitted.) State v. McClendon, supra, 248 Conn. 589–90
(quoting Commonwealth v. Francis, 390 Mass. 89, 101, 453 N.E.2d 1204
[1983]). Accordingly, the defendant’s requested instruction, under these cir-
cumstances, would likely have ‘‘invade[d] the province of the jury to deter-
mine what weight or effect it wishes to give to eyewitness testimony.’’
(Internal quotation marks omitted.) State v. Kemp, supra, 199 Conn. 477.
15
The concurrence states that we misread Guilbert. Respectfully, we do
not believe Guilbert is as restrictive as the concurrence suggests. Guilbert
expressly held that ‘‘whether to permit expert testimony concerning the
reliability of eyewitness identification evidence in any individual case ulti-
mately is a matter within the sound discretion of the trial court. . . . [T]he
trial court may preclude such testimony if the court reasonably determines,
upon due consideration of the facts and circumstances of the case, that the
particular issue presented is not beyond the ken of the average juror . . . .’’
State v. Guilbert, supra, 306 Conn. 257. Guilbert also recognized that ‘‘a
trial court retains the discretion to decide whether, under the specific facts
and circumstances presented, focused and informative jury instructions’’
on eyewitness testimony are appropriate. Id., 257–58. Only recently, our
Supreme Court further emphasized the discretion afforded to a trial court
in addressing a disputed eyewitness identification, stating that because
‘‘Guilbert makes it abundantly clear that trial courts retain the discretion
to admit or preclude expert testimony on eyewitness identifications,
depending on the particular facts and circumstances of the case . . . we
reject the defendant’s contention that Guilbert instead held that such expert
testimony presumptively is admissible in any case involving a disputed
eyewitness identification.’’ (Citation omitted.) State v. Williams, supra, 317
Conn. 704 n.12.
In addition, we note that ‘‘the science’’ of any field should not be the
exclusive consideration of the court, nor did Guilbert so hold. See State v.
Guilbert, supra, 306 Conn. 257. Not unlike eyewitness identifications, social
science research itself is fallible. See, e.g., B. Carey, ‘‘Many Psychology
Findings Not as Strong as Claimed, Study Says,’’ The New York Times,
August 27, 2015, available at http://www.nytimes.com/2015/08/28/science/
many-social-science-findings-not-as-strong-as-claimed-study-says.html? r=
0 (last accessed October 27, 2015) (noting that ‘‘[t]he past several years
have been bruising ones for the credibility of the social sciences’’).
16
In support of his claim on appeal, the defendant cites only to a concur-
rence written by Justice Alito in District Attorney’s Office v. Osborne, 557
U.S. 52, 79–85, 129 S. Ct. 2308, 174 L. Ed. 2d 38 (2009), which stated that
DNA evidence ‘‘often fails to provide absolute proof of anything.’’ (Internal
quotation marks omitted.) Id., 80–81. Justice Alito, however, also acknowl-
edged that ‘‘DNA testing often produces highly reliable results.’’ Id., 80.
Thus, the defendant has not established that his DNA concerns track the
same ‘‘near consensus’’ in the scientific community as the dangers of eyewit-
ness identifications discussed in Guilbert.