State v. BrunyState v. Bruny
Convicted of the crimes of murder and criminal possession of a pistol or revolver in connection with the shooting death of the victim inside a nightclub, the defendant appealed to this court. Prior to the shooting, the defendant and several other individuals, including T, H and M, arrived at the nightclub. About forty-five minutes later, the victim arrived with his cousin, W, and a few friends. The victim‘s group and the defendant‘s group were at opposite ends of the nightclub‘s main room. Soon thereafter, the defendant made his way toward the area where the victim‘s group was standing and stood behind them. Immediately after someone in the defendant‘s group threw a bottle at the victim‘s group, the defendant stepped forward, aimed a handgun at the back of the victim‘s head, and fired. The victim fell to the ground, and the defendant ran and exited the nightclub. Video from before, during and after the shooting was captured on surveillance cameras in or around the nightclub. Multiple witnesses who either knew the defendant or were acquainted with him provided testimony at the defendant‘s trial identifying him in the surveillance footage. On appeal to this court from the judgment of conviction, held:
- The defendant could not prevail on his claim that the trial court had abused its discretion in admitting the testimony of four lay witnesses, T, H, M, and S, identifying the defendant as one of the persons depicted in the surveillance footage of the interior and exterior of the nightclub where the shooting occurred insofar as their testimony improperly embraced an ultimate issue to be decided by the jury, in violation of the Connecticut Code of Evidence (§ 7-3 (a)): in State v. Gore (342 Conn. 129), this court amended
§ 7-3 (a) of the Code of Evidence to incorporate an exception to the ban on lay opinion testimony that embraces an ultimate issue for opinion testimony that relates to the identification of a criminal defendant depicted in a surveillance video or photograph, and such testimony is admissible if, in accordance with the provision (§ 7-1 ) of the Code of Evidence governing the admissibility of lay opinion testimony, it is rationally based on the perception of the witness and is helpful to a clear understanding of that witness’ testimony or the determination of a fact in issue; moreover, testimony identifying a defendant in surveillance footage meets the requirements of§ 7-1 if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the footage than is the jury, and that determination should be based on consideration of several factors, in light of the totality of the circumstances, including the witness’ general familiarity with the defendant‘s appearance, the witness’ familiarity with the defendant‘s appearance, including items of clothing worn, at the time that the surveillance video or photographs were taken, a change in the defendant‘s appearance between the time the surveillance video or photographs were taken and the time of trial, or the subject‘s use of a disguise in the surveillance footage, and the quality of the video or photographs, as well as the extent to which the subject is depicted in the surveillance footage; in the present case, S, T and H had sufficient general familiarity with the defendant, as S was the defendant‘s foster mother, and all three witnesses had known the defendant for many years, and, although the degree of M‘s general familiarity with the defendant was low, she, T and H were with the defendant on the day of the shooting and were familiar with his appearance at the time that the surveillance footage was taken; furthermore, the fact that the defendant‘s appearance had changed between the time that the surveillance footage was recorded and the time of trial, as well as the quality of the video, weighed in favor of the admissibility of the challenged testimony. The defendant could not prevail on his claim that the trial court improperly had admitted the expert testimony of E, a forensic examiner, regarding an enhanced video that he compiled from the raw surveillance footage of the nightclub and in which he tracked the movement of certain individuals throughout the nightclub using alphanumeric codes, on the ground that E‘s testimony invaded the province of the jury, in violation of § 7-3 (a) of the Connecticut Code of Evidence : this court determined that expert testimony pertaining to the identification of a defendant in surveillance footage is admissible if it comports with the requirements of the provision (§ 7-2 ) of the Connecticut Code of Evidence governing the admissibility of expert testimony, and the trial court correctly concluded that E‘s testimony met those requirements, as E‘s experience and training in the area of forensic video analysis were extensive, his skill and knowledge were directly applicable to the jury‘s task of interpreting the surveillance footage, his expertise enabled him to analyze the surveillance footage in a manner that was beyond the ability of the average person, and his testimony and the enhanced video itself likely were helpful to the jury; moreover, E never identified the defendant as the shooter, the identity of the defendant as the shooter in the video was a determination left to the jury, and, therefore, E‘s testimony did not invade the province of the jury; accordingly, the trial court acted within its broad discretion in admitting E‘s testimony.- This court declined to address the defendant‘s claim concerning whether the trial court had incorrectly concluded that defense counsel opened the door to certain of E‘s testimony on redirect examination regarding the surveillance footage, because, even if that conclusion had been incorrect, the defendant failed to demonstrate that any error was harmful; although this court found it troubling that the trial court permitted E to testify, during redirect examination, that the notes of a special agent with the Federal Bureau of Investigation indicated that the individual labeled with a certain alphanumeric code in the enhanced video and who shot the victim was the defendant, insofar as the trial court, in doing so, undermined all attempts to distance E‘s testimony from directly identifying the defendant as the shooter, the state presented overwhelming evidence that the individual in the video who was assigned that specific alphanumeric code shot the victim and that that individual was the defendant.
- The trial court did not abuse its discretion in denying the defendant‘s request for a special credibility instruction as to P, a witness who was in prison at the time of the defendant‘s trial and who, according to the defendant, should have been treated as a jailhouse informant when he testified that, one month before the shooting, he observed the defendant with a gun and acknowledged on cross-examination that he was hoping to receive favorable treatment in exchange for the information he provided: the rule requiring a special credibility instruction for jailhouse informants did not apply to P‘s testimony, as that testimony did not relate to an inculpatory statement or confession that the defendant made to P while they were incarcerated together but, rather, concerned P‘s observations of the defendant outside of the prison context; moreover, although this court previously had expanded the special credibility instruction requirement to include informants who receive no promise from the state in exchange for their testimony and incarcerated witnesses who testify that the defendant confessed or made inculpatory statements to them outside of prison, it declined to adopt a rule requiring such an instruction for testimony regarding observed events but did not foreclose the possibility that a trial court could exercise its discretion to give a special credibility instruction when the witness’ testimony relates to an event rather than to a statement; furthermore, defense counsel impeached P‘s credibility effectively during cross-examination, and counsel presented testimony from an expert witness who testified about the unreliability of jailhouse informants. (One justice concurring separately)
- The defendant could not prevail on his claim that the trial court improperly had denied his motion to suppress the out-of-court and in-court identifications of the defendant made by W, who was the victim‘s cousin, was present at the nightclub on the night of the shooting, and had “bad blood” with one of the individuals in the defendant‘s group, this court having determined that, even if the identifications should have been suppressed, any error in admitting them was harmless: the state‘s case was strong and did not rely on eyewitness testimony but relied, instead, on the fact that the defendant was captured in the surveillance video shooting the victim; moreover, defense counsel impeached W‘s credibil-
ity thoroughly and effectively during cross-examination, highlighting many inconsistencies in W‘s stories as they evolved each time he met with law enforcement, and also highlighting that W waited for approximately three and one-half years to come forward to the police, that he was incarcerated and faced a lengthy sentence when he did finally come forward, and that he had a motive to lie because he was testifying pursuant to a cooperation agreement; furthermore, the testimony of the defendant‘s expert witness concerning the unreliability of jailhouse informant testimony further reinforced W‘s motivation to lie, the trial court gave a special credibility instruction as to W, reminding the jury that W was testifying pursuant to a cooperation agreement, and W‘s testimony was cumulative of other, more persuasive evidence. - The defendant‘s claim that the state had presented insufficient evidence to prove beyond a reasonable doubt the element of the crime of criminal possession of a pistol or revolver that the gun in question have a barrel length of less than twelve inches was unavailing: although the gun that the defendant allegedly was holding when he shot the victim was not introduced into evidence and no person testified that he or she saw the gun on the night of the shooting, that gun was visible in the surveillance footage and appeared to be approximately the size of the shooter‘s hand; moreover, the expert testimony of a firearm and tool mark examiner and the testimony of P that, approximately one month prior to the shooting, he saw the defendant in possession of a semiautomatic handgun that was slightly larger than P‘s own hand, provided further support for a finding that the gun barrel was the requisite length.
Argued November 19, 2020—officially released February 7, 2022*
Procedural History
Substitute information charging the defendant with the crimes of murder and criminal possession of a pistol or revolver, brought to the Superior Court in the judicial district of New Haven, where the court, Blue, J., denied or denied in part the defendant‘s motions to preclude certain evidence; thereafter, the charge of murder was tried to the jury before Blue, J.; verdict of guilty; subsequently, the charge of criminal possession of a pistol or revolver was tried to the court; finding of guilty; thereafter, the court, Blue, J., rendered judgment of guilty in accordance with the jury‘s verdict and the court‘s finding, from which the defendant appealed to this court. Affirmed.
Pamela S. Nagy, assistant public defender, for the appellant (defendant).
Matthew A. Weiner, assistant state‘s attorney, with whom, on the brief, were Patrick J. Griffin, state‘s attorney, Seth R. Garbarsky, senior assistant state‘s attorney, and Lisa M. D‘Angelo, assistant state‘s attorney, for the appellee (state).
MULLINS, J. This is the companion case to State v. Gore, 342 Conn. 129, A.3d (2022), decided today. In Gore, we amended
The defendant, Jean Bruny, appeals from the judgment of conviction, rendered following a jury trial, of murder in violation of
The jury reasonably could have found the following facts. On the night of August 10, 2013, the defendant, his foster brother, Teon Simons (Teon), and Teon‘s cousins, Solomon Graham (Solomon), Tyrone Graham (Tyrone) and Jamal Hopper, were all at Tyrone‘s home in Waterbury. Also at Tyrone‘s home were Latoya Maia, Randy Hall and some of Maia‘s friends. Sometime between 11 and 11:30 p.m., the group decided to go to the Cheetah Club in New Haven, where a rapper, Lil Durk, was performing that night. Traveling in multiple cars, the group left Waterbury sometime after 11:45 p.m. and arrived at the Cheetah Club at approximately 12:30 a.m. While they were at the club, the group spent most of their time in a room called the Cheetah room.
Soon thereafter, the defendant gradually made his way toward the area where the victim‘s group was standing and positioned himself at the emergency exit door. From that position, the defendant stood behind the victim‘s group as they faced Hall. At that point, Hall threw a bottle at the victim‘s group.
Seconds after Hall threw the bottle, the defendant stepped forward from the emergency exit to within a foot or two from the victim, aimed a handgun at the back of his head and fired. The victim fell to the ground. Almost everyone else, including the defendant, ran from the room. The defendant slid to the floor while he sprinted toward the exit from the Cheetah room, and then jumped up and raced out of the room. He then ran out the front entrance of the club.
Shortly after the New Haven police responded to reports of a shooting at the club, Detective David Zaweski arrived at the scene and reviewed the video surveillance footage, which had captured the shooting. Zaweski downloaded the Cheetah Club surveillance videos to a thumb drive. A copy of the footage was later sent to Anthony Imel, a forensic examiner with the Federal Bureau of Investigation (FBI).
On January 15, 2015, Zaweski, Special Agent Jonathan Lauria of the FBI and a third investigator interviewed the defendant. During the interview, the defendant declined to identify photographs of Tyrone and Solomon and denied having been at the Cheetah Club on the night of the shooting. He claimed that he had visited Connecticut only once, when he was younger, with his foster mother, Stephanie Simons (Stephanie).
On April 6, 2016, while the defendant was in federal custody, Lauria again interviewed him. When Lauria showed the defendant still photographs from the surveillance videos, the defendant denied seeing himself in the photographs and claimed that he did not recall being present at the Cheetah Club. While he was in federal custody, the defendant‘s phone calls were recorded. During a phone call he placed sometime after his interview with Lauria, the defendant said that he had seen the video surveillance footage, and “it‘s looking real bad.” When the person on the other end of the
The defendant was subsequently charged with murder in violation of
I
The defendant contends that the trial court abused its discretion in admitting the testimony of four lay witnesses, Tyrone, Hopper, Stephanie and Maia, identifying him as one of the persons depicted in the surveillance video of the interior and exterior of the Cheetah Club. In his original brief to this court, the defendant claimed that the lay opinion testimony improperly embraced an ultimate issue to be decided by the jury and, therefore, violated
The following additional facts and procedural background are relevant to our resolution of this issue. There were multiple video surveillance cameras at the Cheetah Club, including cameras that captured video of the exterior of the building, the interior entrance and two different angles of the interior of the Cheetah room. Prior to trial, the defendant moved to preclude the state from presenting any testimony from witnesses identifying him in the video surveillance footage. Relying on
During argument on the motion to preclude opinion testimony, defense counsel did not dispute that Stephanie, Tyrone and Hopper had general familiarity with the defendant.7 The debate instead focused on the timing of the identifications. Specifically, the parties disagreed regarding whether witness testimony that identified the defendant in the video surveillance footage, but did not identify him in the footage covering the shooting or the few seconds preceding and following it, would embrace an ultimate issue, in violation of Finan. The trial court ruled that Finan did not bar the state from presenting testimony that identified the defendant in the surveillance video while engaged in noncriminal activity before and after the shooting.
Stephanie was the only one of the four lay witnesses identifying the defendant in the surveillance video who did not accompany him to the Cheetah Club that night. She had known the defendant since his placement as her foster son in her home when he was twelve years old, approximately nine years before the video surveillance footage was recorded. She identified the defendant entering the club, immediately behind Tyrone, at 7:03:55 a.m.8 in the video surveillance footage and at 7:03:54 a.m. in a still photograph from the video footage. She also identified the defendant running out of the club in the video footage and in a corresponding still photograph.
The remaining three witnesses who identified the defendant in the video, Tyrone, Maia and Hopper, were with the defendant at the club on the night of the shooting. Tyrone identified himself in line entering the club at 7:03:53 a.m. in the video surveillance footage and identified the defendant as the person immediately behind him. Tyrone had known the defendant for approximately nine years, since the defendant became Stephanie‘s foster son. Although the defendant lived in Brooklyn and Tyrone lived in Waterbury, they often saw each other on weekends. Tyrone considered the defendant to be his cousin and referred to him by the nicknames “Cuz” and “L. B.,” short for “Little Blood.” Tyrone explained that “Little Blood” referred to the defendant‘s status as Tyrone‘s family, his “blood.”
Hopper identified the defendant as the person walking immediately behind Tyrone, whom Hopper identified as entering the club at 7:03:53 a.m. in the video surveillance footage. Hopper first met the defendant when Hopper moved to Connecticut, sometime around 2011. The record is unclear as to how frequently he saw the defendant during the two years leading up to the murder, but Hopper testified that he occasionally visited the home of Stephanie, who was Hopper‘s aunt,
Like Tyrone, Hopper and Stephanie, Maia identified Tyrone in the video surveillance footage entering the club at 7:03:53 a.m., immediately followed by the defendant at 7:03:54 a.m. Maia admitted that she “didn‘t really know” the defendant. She met the defendant through Solomon, whom she had been dating for only a few months by the time of the shooting. During those months, Maia had seen the defendant approximately five or six times. She had interacted and spoken with him enough on those occasions to describe him as a “quiet guy” who went by the nickname, “L. B.” Maia did not know the defendant‘s real name.
As we explain in State v. Gore, supra, 342 Conn. 134–35, we have amended
Testimony identifying a defendant as depicted in surveillance video or photographs meets the requirements of
Three of the four witnesses had sufficient general familiarity with the defendant to support admissibility. As we explain in Gore, we depart from the majority of jurisdictions that have set a low bar for general familiarity. See id., 163–64. Pursuant to our decision in Gore,
This factor is satisfied as to Stephanie, Tyrone and Hopper. Stephanie‘s relationship with the defendant—he was placed in her home as her foster son approximately nine years prior to the shooting—easily supports admissibility. As his foster mother, Stephanie is precisely the type of witness whose testimony best aids the jury. Her familiarity with the defendant‘s appearance and mannerisms, acquired during the years he lived in her home, lends reliability to her identification of him in the surveillance footage. Similarly, Tyrone‘s degree of general familiarity with the defendant is more than sufficient to support admissibility. He testified that he and the defendant knew each other since the defendant‘s placement in Stephanie‘s home, and that they were close. They saw each other often, and Tyrone considered the defendant a cousin. Although Hopper did not have a relationship with the defendant that anyone would describe as “close,” he certainly had more than a minimal degree of familiarity with the defendant. Hopper had known the defendant for approximately two years, had visited Stephanie‘s home during that time, and had lived with Stephanie for a few months. His degree of general familiarity, therefore, supports admitting his testimony identifying the defendant in the surveillance footage.
This factor is not satisfied as to Maia. She knew the defendant only through Solomon, whom she had been dating for a scant few months. During that period, she saw the defendant approximately five or six times, and the record is unclear as to the length of each of these encounters, the viewing conditions, or the nature of her interaction with the defendant on those occasions. Maia admitted that she did not “know” the defendant and did not even know his real name. On the basis of this record, we cannot say that she had more than a minimal degree of familiarity with the defendant. As we explain in Gore, “the concept of familiarity encompasses a broad range of possibilities.” State v. Gore, supra, 342 Conn. 162. Along that continuum of possibilities, Maia barely qualifies as a casual acquaintance. Her low degree of familiarity with the defendant casts doubt on the reliability of her identification of him in the surveillance footage, particularly considering that more than one and one-half years had passed between the last time she saw him and the first time she viewed the surveillance footage.
With respect to the third factor, the defendant‘s appearance had changed between the time that the surveillance footage was recorded and the time of trial. In the video surveillance footage, the defendant wore his hair very short. Although he had some facial hair, he wore that short as well. Witnesses who identified the defendant in court at the time of trial described him as having dreadlocks, a beard and a mustache. Courts have considered changes in a criminal defendant‘s hairstyle or facial hair between the recording of the surveillance video and the time of trial to weigh in favor of admissibility. See, e.g., United States v. Farnsworth, supra, 729 F.2d 1160–61 (defendant wore scarf over his face at time of robbery and had grown beard by time of trial); see also, e.g., United States v. Towns, 913 F.2d 434, 445 (7th Cir. 1990) (defendant shaved his moustache between robbery and criminal trial); United States v. Lucas, 898 F.2d 606, 610–11 (8th Cir.) (defendant had facial hair in surveillance photographs but none at trial), cert. denied, 498 U.S. 838, 111 S. Ct. 112, 112 L. Ed. 2d 81 (1990).
Finally, as for the quality of the video, it fell within the range that favors admissibility. That is, the video, in which the defendant frequently appeared, was ” ‘[neither] so unmistakably clear [nor] so hopelessly obscure that the witness is no [better suited] than the jury to make the identification.’ United States v. Jackman, 48 F.3d 1, 5 (1st Cir. 1995).” State v. Gore, supra, 342 Conn. 165.
We conclude that, viewed under the totality of the circumstances, the trial court acted within its discretion in admitting the testimony of all four witnesses, which was rationally based on their perception and helpful to the jury. See
II
A
The defendant claims that the trial court abused its discretion in allowing the state‘s expert, Imel, a forensic examiner, to testify regarding an enhanced video he compiled from the raw video surveillance footage, tracking the movement of certain individuals through the club. The defendant contends that Imel‘s testimony invaded the province of the jury, in violation of
We emphasize, at the outset, that Imel never identified the defendant as the shooter and was never asked to do so. In his testimony, Imel explained, instead, how he tracked the movements of various individuals, who, except for the victim, were identified only by alphanumeric code, using video surveillance footage of the Cheetah Club gathered from multiple camera angles. Although the defendant was depicted in the video footage, and Imel tracked images of the defendant using the alphanumeric code, the identity of the defendant was left to the jury. Against this backdrop, we hold that expert opinion testimony that pertains to the identification of a defendant in surveillance footage is admissible if it comports with the requirements of
Our task, therefore, is to consider whether the trial court correctly determined that Imel‘s testimony comported with the requirements of
In his motion to preclude the expert testimony, the defendant argued that it improperly invaded the province of the jury and violated this court‘s decision in Finan. Following the state‘s proffer, and after hearing argument on the motion, the trial court ruled that the testimony was admissible. The court began by considering the requirements of
The trial court correctly concluded that Imel‘s testimony met the standards of
One state appellate court recently rejected a challenge to expert testimony strikingly similar to that at issue in the present case. In People v. Tran, 50 Cal. App. 5th 171, 263 Cal. Rptr. 3d 740 (2020), review denied, California Supreme Court, Docket No. S263358 (August 19, 2020), the California Court of Appeal for the Fourth District held that the trial court did not abuse its discretion in admitting the testimony of a forensic video analyst, Grant Fredericks, who created an enhanced video of an assault in a crowded outdoor restaurant dining area, compiled from videos taken from surveillance cameras of nearby businesses and from the cell phones of bystanders who witnessed the incident. See id., 174–76, 179, 180, 188.
As Imel did in the present case, Fredericks added markings to the video to track certain individuals and to aid the jury in its task of interpreting the video. Id., 188. The Court of Appeal reasoned that the “challenged evidence was relevant, useful, and highly probative of the circumstances that led to [the victim‘s] paralysis. [Fredericks‘] testimony helped the jury to identify what portions of the video evidence required closer examination and to interpret some of the information conveyed by the video evidence. His expertise was necessary for the [members of the] jury to accurately evaluate the videos to appreciate who and what they were watching as well as the chronology and relationship between each video. As the trial court noted, the individuals in the videos were very difficult to track ‘even with the benefit of [Fredericks‘] colored indicators,’ and ‘impossible’ to track without his expert assistance.” Id., 188-89.
Imel‘s experience and training in the area of forensic
Imel‘s skill and knowledge were directly applicable to the jury‘s task in the present case. Like the Boston Marathon and Pulse nightclub investigations, the present case involved video surveillance footage from multiple cameras covering many individuals moving about in a crowded area. The lighting was low, and individuals moved in and out of view of the cameras—creating the need for a significant amount of cross-referencing of the footage from the various cameras. In order to create his fifty-two minute enhanced video, Imel compiled footage from multiple cameras, lightened images, added alphanumeric labels over certain individuals, including the defendant, tracked those individuals throughout the enhanced video, inserted “halos” over images at crucial points during the video in the minute leading up to and including the shooting, and simultaneously displayed coverage from two cameras in a slow motion, split screen image. All of those enhancements were directly applicable to the jury‘s task of interpreting the surveillance footage.
Imel‘s training and expertise enabled him to analyze the video surveillance footage in a manner that was beyond the ability of an average person. He distilled the enhanced video from hours of raw video surveillance footage. The methodology that he used to accomplish the task involved both his specialized experience in tracking analyses and the adaptation of computer technology to enhance the video surveillance footage. His analysis took hundreds of hours, over the course of four months.
Imel described his methodology for undertaking a tracking analysis. Once individuals have been identified as the subjects of tracking, Imel tracks their movement through the video surveillance footage by relying on the appearance of the individuals and their clothing, how they move, the direction in which they are moving, and their positions and movement relative to other individuals depicted in the footage. Computer software enables him to review the video surveillance footage
Given the difficulty of reviewing hours of video surveillance footage from multiple camera angles, Imel‘s testimony, as well as the enhanced video itself, was likely helpful to the jury. During Imel‘s testimony, the prosecutor played the enhanced video, which was marked for identification only, periodically stopping the playback to ask Imel questions. At the start of the video, Imel identified the first labels on the video, FW-1 and FW-2, which appeared above two women entering the club. He explained that these tags would follow the same two individuals throughout the video, marking their movement through the club. The majority of the footage in the enhanced video showed the Cheetah room, which was covered by two different surveillance cameras.
At about seven minutes before the end of the enhanced video, Imel identified a subject standing in front of the bar, tagged as “victim.” As with all the other subjects, Imel tracked the victim from the entrance of the club. Less than one minute before the shooting, the image in the enhanced video split into two screens in order to show the Cheetah room from both camera angles, thus providing a fuller view of the scene. Seconds before the shooting, Imel inserted a halo over an individual labeled “MS-4,” who stood behind the victim and appeared to be holding an object in his right hand. Per the trial court‘s ruling, the alphanumeric labels did not appear in the few seconds before and after the shooting. Immediately after the shooting, MS-4 could be seen running across the Cheetah room, and Imel inserted a halo over the right hand of MS-4 to highlight that he appeared to be holding something in that hand. The video shows that MS-4 then ran out of the front door of the club, along with many other patrons.
At no point during Imel‘s testimony did he state that he believed that MS-4 was the defendant.12 Although Imel‘s testimony, understood in conjunction with the video, constituted persuasive proof that MS-4 shot the victim, the state was still required to prove that MS-4 was the defendant. Moreover, the tracking information depicted in the enhanced video, and Imel‘s expert testimony explaining it, could not have been developed by the average juror. That information thus assisted the jury in carrying out its task, without allowing the expert to identify the shooter. Accordingly, Imel‘s testimony did not invade the province of the jury. See, e.g., State v. Guilbert, 306 Conn. 218, 251-52, 49 A.3d 705 (2012)
Accordingly, our review of the record persuades us that the trial court acted within its broad discretion in permitting Imel‘s testimony, which the court correctly concluded would assist the jury in its task of interpreting the surveillance footage. Imel‘s expertise was directly applicable to the jury‘s task, not common to the average person, and likely was helpful to the jury.
B
The defendant next claims that the trial court incorrectly concluded that defense counsel opened the door to certain of Imel‘s testimony on redirect examination. Specifically, during redirect, Imel testified that Lauria‘s notes, which Lauria had sent to Imel along with the video surveillance footage, indicated that the individual labeled MS-4 was the defendant, who shot the victim. Even if we assume, without deciding, that the defendant is correct, we conclude that any error was harmless.
During cross-examination of Imel, defense counsel attempted to demonstrate that Lauria had influenced Imel‘s analysis of the raw video surveillance footage. Defense counsel elicited testimony from Imel that, when Lauria sent him the raw footage, he also included his notes, indicating his beliefs regarding the identity of certain individuals depicted in the video. In Lauria‘s notes, with respect to at least some of those individuals, he tracked their movements and incorporated specific time references from the raw video surveillance footage for those movements. For example, defense counsel asked Imel whether Lauria‘s notes indicated that, at 7:08:36 a.m., and, again, at 7:47:37 a.m., the individual labeled as MS-4 exited the Cheetah room to the patio. Imel answered that the notes had so indicated.
During redirect examination, the prosecutor asked Imel whether defense counsel had correctly stated during cross-examination that Lauria had noted that, at 7:08:36 a.m., “MS-4 exits bar.” Over defense counsel‘s objection, Imel answered that Lauria actually had written: “Jean Bruny exits bar and goes to patio.” Imel also testified, over defense counsel‘s objection, that Lauria‘s notes indicated that, at 7:56:53 a.m., “Jean Bruny shoots Torrance Dawkins and exits toward hallway.”
Even if the trial court‘s ruling constituted an abuse of discretion, the defendant has failed to demonstrate that the error was harmful. “The law governing harmless error for nonconstitutional evidentiary claims is well settled. When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. ... [T]he proper standard for determining whether an erroneous evidentiary ruling is harmless should be whether the jury‘s verdict was substantially swayed by the error. ... 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. Fernando V., 331 Conn. 201, 215, 202 A.3d 350 (2019).
The defendant has not demonstrated that the jury‘s verdict was substantially swayed by the admission of Imel‘s testimony regarding Lauria‘s hearsay statements. Under the circumstances of this case, the fact that Lauria opined that the defendant was the individual depicted in the video who shot the victim had little impact on the jury making that determination itself.
Indeed, the state presented overwhelming evidence both that the individual labeled as MS-4 shot the victim and that MS-4 was the defendant. The video surveillance footage provided powerful proof that the individual labeled as MS-4 in the enhanced video shot the victim. In the minutes preceding the shooting, the enhanced video shows MS-4 moving from the corner near the patio door and the raised platform, where his group congregated, toward the emergency exit door, near the victim‘s group. When the enhanced video displays a
On the right side of the screen, immediately after the bottle lands near the victim, however, an individual in the exact spot where MS-4 had just been standing by the emergency exit door moves a couple of feet away from the wall to a spot just behind the victim. This particular individual is highlighted by a halo of light in the enhanced video, making it easy to see that, as he moves, he reaches with his right hand to grab something at his waist. As he raises his right arm, the video shows that he is holding a small, dark object, which he points at the back of the victim‘s head. A small plume of light shoots from the dark object in his hand, then dissipates. As the victim immediately crumbles to the ground, the individual begins to run away. As he crosses over from the right side of the screen to the left side, the label MS-4 appears above him. The enhanced video highlights MS-4‘s right hand, which is still holding the small, dark object.
Although the enhanced video was a demonstrative exhibit only, the jury watched it as Imel testified about it. After having watched that video, the jury then was able to review the raw video surveillance footage, which was introduced as full exhibits, with a greater understanding of what to look for, from which camera angle, and when, in the raw footage. The raw video surveillance footage displays all of the same events as shown in the enhanced video, including the moment when MS-4 shoots the victim. Accordingly, the raw video surveillance footage, as understood with the assistance of the enhanced video and Imel‘s testimony, provides overwhelming proof that MS-4 shot the victim.
The state also produced strong evidence, through the raw video surveillance footage, the enhanced video and the testimony of Stephanie, Tyrone and Hopper, that the defendant was the individual labeled as MS-4 in the enhanced video. The enhanced video shows MS-4 entering the club at 7:03:54 or 7:03:55 a.m., immediately behind a heavyset individual, whom the jury reasonably could have identified as Tyrone.14 Because of his size, Tyrone was particularly easy to identify in the surveillance footage. Tyrone, Stephanie and Hopper each identified the defendant in the raw video surveillance footage as he was entering the club, immediately behind Tyrone, just as MS-4 did in the enhanced video.
All three of the witnesses identified the defendant entering the club immediately behind Tyrone, at 7:03:54 or 7:03:55 a.m., precisely the same time that MS-4
Further evidence of the unlikelihood that Lauria‘s opinion substantially swayed the jury‘s verdict was the strength of the state‘s case. As we just explained, the video provided powerful evidence of the defendant‘s guilt. In addition to the video surveillance footage, the state produced the call detail records of the cell phones used by the defendant and members of his group, showing that they went to the Cheetah Club that night, and DNA evidence proving that the defendant was inside the Cheetah room that night. The state also produced the testimony of a witness that established that the defendant possessed a handgun approximately one month prior to the shooting. See part III of this opinion.
Finally, the state produced substantial consciousness of guilt evidence. In his two interviews with detectives, the defendant claimed he was not at the Cheetah Club on the night of the shooting, even when confronted with the presence of his DNA in the Cheetah room. He claimed that he had been to Connecticut only once, with Stephanie, when he was much younger. And he did not identify his “cousins” Tyrone and Solomon, despite the fact that Tyrone testified that he knew the defendant well. The defendant also claimed not to recognize himself when detectives showed him still photographs of the surveillance footage. The state produced evidence that, after the defendant saw the video surveillance footage, he placed a phone call, during which he said to the person on the other end of the line that he had seen the video, that “it‘s looking real bad,” and that he would be lucky if he received fifteen years of imprisonment. During the call, the defendant said that, although the video was not “clear as day,” it was “clear enough, damn it.”
Given the overall strength of the state‘s case, the overwhelming evidence that the state produced that the defendant was the individual designated in the enhanced video as MS-4, who shot the victim, and the relative insignificance of Lauria‘s opinion on that issue, we conclude that the defendant has failed to demonstrate that any error was harmful.
III
The following additional facts are relevant to our resolution of this issue. At the time of the defendant‘s trial, Pruden was serving a sentence of six years of imprisonment with ten years of special parole. He testified that, during the summer of 2013, he saw the defendant on about five or six occasions at the home of Michelle Saunders, in Waterbury. Pruden knew the defendant only as “Gunner.” About one month prior to the shooting, Pruden, Solomon and the defendant were at Saunders’ home. When Solomon asked the defendant to “show . . . something” to Pruden, the defendant “pulled out a black handgun from his waist” and “handed it” to Solomon. Solomon then handed the gun back to the defendant, who said nothing. Pruden saw the weapon only briefly and did not know specifically what type of gun it was, only that it was a semiautomatic handgun, “[a] little bigger than [Pruden‘s] hand.”
During cross-examination, defense counsel elicited testimony from Pruden that, although he became aware of the shooting at the Cheetah Club almost immediately, he did not approach the police with the information about his encounter with the defendant until more than six months later, on March 5, 2014, the day that Pruden was arrested. Pruden admitted that he hoped to receive favorable treatment in exchange for the information.
During the charge conference, defense counsel requested a special credibility instruction as to both Watts and Pruden. The trial court granted defense counsel‘s request as to Watts but denied it as to Pruden. The court observed that, because Watts had testified pursuant to a cooperation agreement, it was reasonable to infer that he was hoping for favorable treatment in exchange for his testimony. By contrast, the court reasoned, at the time of trial, Pruden had already been sentenced.15
We begin our analysis of the defendant‘s claim with the well established standard of review. “When reviewing the challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged
“Generally, a [criminal] defendant is not entitled to an instruction singling out any of the state‘s witnesses and highlighting his or her possible motive for testifying falsely.” (Internal quotation marks omitted.) State v. Patterson, 276 Conn. 452, 467, 886 A.2d 777 (2005). “This court has held, however, that a special credibility instruction is required for three types of witnesses, namely, complaining witnesses, accomplices and jailhouse informants.” (Footnotes omitted.) State v. Diaz, 302 Conn. 93, 101-102, 25 A.3d 594 (2011).
We previously have defined a “classic jailhouse informant” as “a witness who has testified that the defendant has confessed to him or had made inculpatory statements to him while they were incarcerated together.” Id., 99 n.4. In Patterson, when we first recognized the exception for jailhouse informants, we applied it to a witness who testified that, while he and the defendant were cellmates in prison, the defendant, who had been charged with murder, confessed to the witness that he had killed the victim. State v. Patterson, supra, 276 Conn. 459, 469-70. In exchange for his testimony, the informant in Patterson was promised certain benefits. Id., 465. We explained that “an informant who has been promised a benefit by the state in return for his or her testimony has a powerful incentive, fueled by self-interest, to implicate falsely the accused. Consequently, the testimony of such an informant, like that of an accomplice, is inevitably suspect.” Id., 469; see State v. Diaz, supra, 302 Conn. 102-103 (same).
Since Patterson, we have twice expanded the jailhouse informant exception to the general rule against requiring a special credibility instruction. In State v. Arroyo, supra, 292 Conn. 558, we extended Patterson to require a special credibility instruction for all jailhouse informants, regardless of whether they had received a promise of a benefit in exchange for their testimony. See id., 561. The mere expectation of a benefit, we reasoned, is sufficient to render the testimony of a jailhouse informant suspect. See id., 568.
Then, more recently, in State v. Jones, 337 Conn. 486, 254 A.3d 239 (2020), we expanded the definition of “jailhouse informant” to include “witnesses . . . who were incarcerated at the time they offered or provided testimony regarding a defendant‘s inculpatory statements, regardless of the location where those statements were made.” Id., 501. In extending the exception to incarcerated witnesses who testify regarding inculpa
First, we emphasized that “[t]he grave risks posed by false confession testimony from incarcerated informants, and the difficulty of mitigating those risks through meaningful cross-examination, do not depend on the location where the allegedly false confession occurs.” Id., 502. False confession evidence, we explained, “is difficult to impeach effectively because it is invariably of the he said-she said variety. As long as the [incarcerated informant] can plausibly testify that he had an opportunity—no matter how fleeting—to speak with the defendant, the [informant‘s] claim that the defendant confessed to him is practically unverifiable.” (Internal quotation marks omitted.) Id., 503.
Second, we recognized the wisdom of harmonizing our definition of jailhouse informants with the legislature‘s recent definition of a “jailhouse witness” as “a person who offers or provides testimony concerning statements made to such person by another person with whom he or she was incarcerated, or an incarcerated person who offers or provides testimony concerning statements made to such person by another person who is suspected of or charged with committing a criminal offense.” (Emphasis in original; internal quotation marks omitted.) Id., 506-507, quoting Public Acts 2019, No. 19-132, § 6, codified at
In summary, since our initial recognition that a special credibility instruction should be required for jailhouse informants, we have expanded that requirement to include informants who receive no promise of benefits from the state in exchange for their testimony and incarcerated witnesses who testify that the defendant confessed or made inculpatory statements to them outside of prison. Just as important as understanding what has changed in our definition of jailhouse informants, however, is understanding what has not. For purposes of the exception to the general rule against requiring special credibility instructions, as harmonized with the definition of “jailhouse witness” in
Limiting the requirement for a special credibility instruction to jailhouse informant testimony concerning a defendant‘s inculpatory statements is consistent with one of the rationales underlying our adoption of the rule. We repeatedly have emphasized “[t]he grave risks posed by false confession testimony” of jailhouse informants. State v. Jones, supra, 337 Conn. 502. Indeed, in Patterson, we recognized that “testimony about an admission of guilt by the accused may be the most
In State v. Diaz, supra, 302 Conn. 93, we delineated some limitations as to how far we will expand the jailhouse informant exception. See id., 106-13. In that case, we declined to expand the jailhouse informant exception to “whenever a witness in a criminal case is incarcerated or is serving out a sentence, or otherwise is in a position to receive a benefit from the state in exchange for testifying, as long as there is some additional evidence indicating that the witness is not wholly reliable or that he expects some benefit from this testimony.” Id., 106. We specifically declined in Diaz to expand the exception to include the testimony of “witnesses who are not classic jailhouse informants because they have testified about events that they observed rather than inculpatory statements made by the defendant.” Id., 107. We agreed with the defendant that some of the same concerns about reliability are present for witnesses who are involved with the criminal justice system, yet are not treated as jailhouse informants because they testify about observed events rather than the defendant‘s statements. Id., 109. We emphasized, however, that those concerns are not “as weighty in cases [in which] the witness is not testifying about a . . . confession, but is testifying about events concerning the crime that the witness observed.” Id., 109.
We explained: “Testimony by a jailhouse informant about a . . . confession is inherently suspect because of the ease with which such testimony can be fabricated, the difficulty in subjecting witnesses who give such testimony to meaningful cross-examination and the great weight that juries tend to give to confession evidence. . . . In contrast, when a witness testifies about events surrounding the crime that the witness observed, the testimony can be compared with the testimony of other witnesses about those events, and the ability of the witness to observe and remember the events can be tested. Accordingly, cross-examination and argument by counsel are far more likely to be adequate tools for exposing the truth in these cases than in cases involving jailhouse confessions.” (Citations omitted.) Id., 109-10.
We therefore reject the defendant‘s invitation to adopt a rule requiring trial courts to give a special credibility instruction in the present context. In so holding, we do not foreclose the possibility that a trial court may exercise its discretion to give a special credibility instruction even when the jailhouse informant‘s testimony relates to an event rather than a statement. For example, if the trial court in the present case had determined that a special credibility instruction was warranted as to Pruden, it had the discretion to give one.
It is well established that “it is within the discretion
Because Pruden‘s testimony did not relate to a statement made by the defendant, the trial court acted within its discretion in declining to give a special credibility instruction. Pruden did not testify that the defendant made any statement, incriminating or otherwise, to him. Indeed, he could not, because the events to which Pruden testified occurred prior to the shooting. Although he was incarcerated when he testified, Pruden did not testify that the defendant confessed to him. Instead, Pruden testified that he saw the defendant in possession of a handgun approximately one month before the shooting. Thus, the present case is distinguishable from Jones, which involved testimony concerning statements made by the defendant. See State v. Jones, supra, 337 Conn. 488.
Moreover, defense counsel impeached Pruden‘s credibility effectively during cross-examination. Defense counsel elicited testimony from Pruden that he did not come forward with the information until the very day that he was arrested, more than six months after he heard about the shooting. Defense counsel also elicited testimony from Pruden that, when he reached out to law enforcement, he knew he was facing a possible thirty years of imprisonment on drug charges and five years of imprisonment for failing to appear. Pruden admitted that he came forward because he was hoping to obtain a benefit for himself. With respect to Pruden‘s motivation to testify at the time of trial, Pruden admitted that, although he was already sentenced, he was aware of the possibility of a sentence modification.
Defense counsel presented testimony from an expert witness who testified about the unreliability of jailhouse informants and specifically testified regarding benefits, such as sentence modification, that incarcerated informants who are already sentenced may receive. Defense counsel highlighted the problem during closing argument, saying of Pruden, “it is the hope for benefits that causes the problem, the unreliability. Pruden had an incentive to lie that is different from an ordinary wit
In light of this record and our applicable precedent, we conclude that the trial court acted within its discretion in declining to give a cautionary instruction as to Pruden.
IV
The defendant next claims that the trial court improperly denied the defendant‘s motion to suppress the out-of-court and in-court identifications of the defendant made by Watts. Even if we assume, without deciding, that the identifications should have been suppressed, we conclude that any error was harmless.16
The following additional facts and procedural background are relevant to our resolution of this issue. The defendant moved to suppress Watts’ out-of-court identification of the defendant and to preclude him from making an in-court identification, claiming that the identifications resulted from unduly suggestive procedures. The trial court conducted a hearing on the motion prior to trial but continued it until the day that Watts was scheduled to testify. During the hearing, the court heard testimony from Watts and Detective Zaweski, which we summarize.
Zaweski first spoke to Watts on the night of the shooting. At that time, Watts told Zaweski only that he and the victim had arrived at the club minutes before Watts heard a gunshot. Watts ran out of the club and realized only afterward that the victim had been shot.
Zaweski next interviewed Watts more than one year later, on November 18, 2014, when Watts had been subpoenaed to testify before a federal grand jury. During this interview, Watts told Zaweski that his group had just arrived at the club and that they were waiting at the bar for their drinks when Watts saw Hall, whom he recognized. Hall saw Watts’ group, left the Cheetah room through the patio door, and returned minutes later with a number of people who Watts claimed he did not recognize. Hall held a bottle in his hand. He splashed liquid at the victim, who asked Watts to give him his knife, which Watts had on his person. With the exception of a man wearing a red shirt, the men with Hall began to form a semicircle in front of Watts’ group. The man in the red shirt, who was with Hall‘s group, moved away from his associates and positioned himself near the emergency exit door. He wore a hat with the brim low over his face, obscuring it. When Watts heard the shot, he ran out of the club.
In January, 2017, Watts, who was in custody at the time on pending criminal matters, told Zaweski that he wanted to cooperate. During a meeting with Zaweski that month, Watts told him that, a few days after the shooting, when Watts was searching for the shooter, an acquaintance of his texted Watts a photograph of
On July 26, 2017, Zaweski met with Watts for a fourth time. For the meeting, Watts was transported to the courthouse from prison and then placed in the courthouse lockup. On that same day, the defendant, who was in custody for the murder of the victim, also was being transported to the same courthouse. When Watts was being placed in his cell in the lockup, the defendant was already there, in another cell. Although the defendant attempted to hide his face, Watts saw him, and he recognized the defendant from the night of the shooting. Although Watts consistently stated that he did not see the shooting, he claimed that he was certain that the defendant was the person who shot the victim.
When Watts arrived at the meeting with Zaweski, he informed him that he had just seen the defendant. He told Zaweski that he now realized that he had seen the defendant not only on the night of the shooting, but also on a prior occasion. In July, 2013, Watts attended a memorial service in Waterbury. As Watts sat in his car, about to leave the event, the defendant approached the passenger door and looked into the vehicle. It was nighttime, but there were streetlights, so Watts could see the defendant‘s face clearly. At that moment, the police were driving down the street, so the defendant walked away. Watts told Zaweski that the person he saw at the memorial service was the same person he saw at the Cheetah Club wearing a red shirt and hat. Watts was not shown any photographs or any portion of the surveillance video during this meeting.
On August 29, 2017, Zaweski showed Watts a photographic array. Because Zaweski was the investigating officer for the case, he conducted the array using a procedure called the blind folder shuffle method.17 During the procedure, which was not recorded, Watts identified the defendant. On the defendant‘s photograph, Watts wrote, “I‘m very certain this person killed my cousin, August 11, 2013.”
During the August, 2017 interview, Watts likely also viewed, for the first time, the enhanced video created by Imel. Although Watts could not recall whether he was shown the video during the July or the August, 2017 meeting, he acknowledged that he viewed it during one of the two meetings. Detective Zaweski testified that Watts was not shown any video surveillance footage during the July 26, 2017 meeting. Watts admitted that, by the time of trial, he had viewed the enhanced video an additional three or four times during meetings with the prosecutors in the case.
The trial court allowed Watts to testify regarding the identifications but precluded him from referring to the defendant as “the shooter.” The trial court reasoned that the defendant‘s objections to the identifications went to their weight, not admissibility.
Defense counsel impeached Watts’ credibility thoroughly and effectively during cross-examination, highlighting the many inconsistencies in Watts’ various stories as they evolved each time he met with law enforcement. Defense counsel particularly emphasized Watts’ testimony before a federal grand jury in November, 2014, during which Watts stated that, with the exception of Hall, he had never seen anyone in the defendant‘s group before.18 Before the grand jury, Watts made no mention either of receiving a text message with the defendant‘s photograph, or of seeing the defendant at a memorial service. He also testified before the grand jury that the shooter wore a brimmed, black hat.
At trial, Watts claimed that, after he heard the gunshot, he saw the defendant run and fall. When the defendant fell, Watts saw that the defendant held a gun in his hand. Watts admitted during cross-examination, however, that he said nothing to the grand jury about seeing a gun on the night of the shooting. He also admitted that, by the time of trial, he had viewed the video multiple times.
Defense counsel also highlighted, during cross-examination, that Watts waited for approximately three and one-half years to come forward, even though the victim was his “favorite little cousin,” whom he had known his entire life. When Watts finally came forward, he was incarcerated for various offenses, including assault in the first degree, criminal possession of a firearm and violation of probation—he admitted he could have received up to forty years of imprisonment for the charges. Defense counsel emphasized Watts’ motive to lie because Watts was testifying pursuant to a cooperation agreement, had not yet been sentenced and expected that the prosecutor would inform the sentencing court about his cooperation in the present case.
The testimony of the defendant‘s expert witness on the unreliability of jailhouse informant testimony further reinforced Watts’ motivation to lie. The expert witness also described the ways in which jailhouse informants are able to learn information about a defen
The trial court gave a special credibility instruction as to Watts, reminding the jury that Watts was testifying pursuant to a cooperation agreement: “A witness who has entered into such an agreement has an interest in this case different from any ordinary witness. A witness who realizes that he may be able to receive a lighter sentence by giving testimony favorable to the state has a motive to testify falsely. You must examine his testimony with caution and weigh it with great care. If, after scrutinizing his testimony, you decide to accept it, you may give it whatever weight you find it deserves, and all of these are factors that you may consider in finding the facts.”
Watts’ testimony was also cumulative of other, more persuasive evidence. As we already observed, the video surveillance footage displayed the defendant shooting the victim. Three witnesses, including the defendant‘s foster mother and his cousin, who had both known him for nine years, identified the defendant in the video footage. Watts’ testimony—that he recognized the defendant as one of the people in the club on the night of the shooting, observed the defendant move to a position behind the victim and saw a gun in the defendant‘s hand when he fell while running out of the Cheetah room—merely echoed what the jurors saw with their own eyes. Even if we assume that the trial court admitted the identifications in an abuse of discretion, any error was harmless.19
V
Finally, we address the defendant‘s claim that there was insufficient evidence to support his conviction for criminal possession of a pistol or revolver in violation of
We begin with the well established principles governing our review of a claim that there is insufficient evidence to support a conviction. “In reviewing the sufficiency 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 [jury‘s] verdict [or the trial court‘s finding]. Second, we determine whether upon the facts so construed 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.” (Internal quotation marks omitted.)
As we noted previously in this opinion, the criminal possession of a pistol or revolver count was tried to the court. Section 53a-217c provides in relevant part: “(a) A person is guilty of criminal possession of a pistol or revolver when such person possesses a pistol or revolver, as defined in section 29-27, and (1) has been convicted of a felony . . . .”
In addressing a defendant‘s sufficiency of the evidence challenge to a conviction for carrying of a pistol or revolver without a permit in violation of
In the present case, the state produced sufficient evidence that the barrel length of the gun was less than twelve inches. Although the gun was not introduced into evidence and no person testified that he or she saw the gun on the night of the shooting, the gun can be seen in the video surveillance footage. Specifically,
From this evidence, the trial court reasonably could infer that the barrel of the handgun used by the defendant was less than twelve inches long. It is highly unlikely that Pruden would describe the gun as a little bigger than his hand if the barrel was more than one foot long. Stephenson‘s testimony, although not conclusive, does provide additional support for the finding that the gun barrel was the requisite length. This finding is further supported by the video surveillance footage, which shows the shooter wielding a small handgun. Accordingly, we conclude that the state produced sufficient evidence to prove the barrel length element beyond a reasonable doubt.
The judgment is affirmed.
In this opinion ROBINSON, C. J., and McDONALD, D‘AURIA, KAHN and KELLER, Js., concurred.