Case Information
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STATE OF CONNECTICUT KEVIN PATRICK CAMPBELL (AC 35571) Gruendel, Bear and Flynn, Js.
Argued November 12, 2013—officially released April 15, 2014 (Appeal from Superior Court, judicial district of Litchfield, Ginocchio, J.) Moira L. Buckley, for the appellant (defendant.) Timothy J. Sugrue , assistant state’s attorney, with whom, on the brief, were David M. Shepack , state’s attorney, and Dawn G. Gallo , senior assistant state’s attorney, for the appellee (state).
Opinion
GRUENDEL, J. The defendant, Kevin Patrick Camp- bell, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Stat- utes § 53a-54a, as enhanced by General Statutes § 53- 202k for having used a firearm. On appeal, the defendant claims that (1) the court improperly marshaled evidence during the jury charge; (2) the court abused its discre- tion in granting the state’s request to make a missing witness argument; (3) the court erroneously precluded the testimony of proffered defense expert witnesses, Peter Morgan and Gregory Danas; and (4) prosecutorial impropriety deprived the defendant of a fair trial. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On June 27, 2008, the five members of a group called the Forbidden Motorcycle Club (club) held a weekly meeting at their clubhouse in Torrington. The members of this group included the victim, Roland Lagasse; the defendant; the defendant’s brother, James Campbell (Campbell); Eugene Thebarge; and Jerome Welsh. These members sat around a table to discuss ‘‘usual club stuff . . . about what happened [in] previ- ous weeks, what club members have done, [and to] pay dues.’’ After finishing with old business, they moved on to new business. The victim announced that Welsh would receive his one year patch, demonstrating that he had fulfilled all his duties associated with the club. An argument thereafter ensued between the victim and Campbell. [1] Thebarge testified that ‘‘[the victim] was trying to make a point . . . and [Campbell] kept seem- ing to interrupt him.’’ The defendant ‘‘would chime in oncе in a while to [Campbell’s] defense to help [Camp- bell] make his point.’’ The victim ‘‘started to get a little steamed, a little angry’’ and ‘‘after [the victim] got fed up with [Campbell] interrupting him, he said, ‘Do you want to step outside and settle this old school?’ ’’ and Campbell said, ‘‘Yeah, if that’s what you wanna do.’’ The defendant also got up and said, ‘‘Yeah, I’ll go out- side.’’ All five members then went outside, led by the victim. The victim then ‘‘struck [Campbell] with his right hand on the left temple . . . knocking [him] up against the building, where [he] hit the building and slid down.’’ ‘‘[A]fter [the victim] knocked [Campbell] against the building . . . [the defendant] was approaching, and [the victim] . . . [said] ‘What, you want some too?’ [The defendant said] ‘Yeah, I want some . . . you fucked up now, you’re a dead man.’ ’’ Thebarge further testified that as the defendant was making that statement, he saw the defendant ‘‘kind of fumbling around on the right side . . . and that’s when the pistol came out, and [he] kind of cocked his head forward, drew the pistol up straight, and then pulled the trigger.’’ [2] The victim then stumbled back a step or step and a half and fell backward. Thebarge asked the *4 defendant, ‘‘What . . . did you do . . . ?’’ And the defendant said, ‘‘I . . . killed him.’’ Thebarge began cardiоpulmonary resuscitation on the victim and told his fiance´ , Jennifer Mercado, to call 911. Police officers arrived shortly thereafter and asked who the shooter was, to which the defendant replied, ‘‘I am.’’
The defendant thereafter was arrested and charged with murder with a firearm. The case proceeded to a jury trial, after which the jury found the defendant guilty. The court rendered judgment accordingly and sentenced him to a total effective term of thirty-five years incarceration, with a five year enhancement, for a total effective sentence of forty years. This appeal followed.
I The defendant first claims that the court improperly marshaled evidence during the jury charge, which he argues deprived him of his constitutional right to a fair trial. Assuming, without deciding, that the court improperly marshaled evidence, we conclude that, in considering the charge as a whole, the error was harmless.
The following additional facts are relevant to this claim. The defendant testified that the victim first hit Campbell with three or four quick punches to the head until he fell to the ground. The victim then continued to hit and kick Campbell while he was down. According to the defendant, Thebarge also was standing nearby, with brass knuckles in his right hand, striking his fist into his left palm. The defendant told the victim, twice, to stop hitting Campbell, and after the second time, the victim charged at the defendant asking him, ‘‘you want some too?’’ After the victim hit the defendant, the defen- dant reached for the gun in the waistband of his pants. The defendant testified that he drew his gun in order to stop any further violence, but that he did not intend to shoot it. Rather, he stated that he caused the victim’s death accidentally when the gun went off unintention- ally. As an alternative to the lack of intent defense, the defendant also claimed that he was acting in self- defense.
In its charge to the jury, the court instructed: ‘‘You must follow all my instructions and not single out some and ignore others. They are all equally important. You are the sole judges of the facts. It is your duty to find the facts. You are to recollect and weigh the evidence and form your own conclusions as to what the ultimate facts are.’’ The court cautioned: ‘‘In this case the defen- dant testified. An accused person having testified, stands before you just like any other witness. . . . You have no right to disregard his testimony or to disbelieve his testimony merely because he is accused of a crime.’’
The court then addressed the substance of the murder charge against the defendant, stating: ‘‘I will now *5 instruct you on the law applicable to the charge of murder. Following that I will instruct you on the ele- ments of what are called the lesser included offenses. And as I will advise you further, as I address such offenses, you are to consider . . . any of them only in the event that you find the defendant not guilty of the charge of murder. . . . A person is guilty of murder when with intent to cause the death of another person he causes the death of such person.’’ The court went on to address each element of the crime of murder with a firearm, and the state’s burden to prove each element. It further detailed the issue of self-defense and its appli- cation to the charge of murder.
The court thereafter addressed the lesser included offenses of manslaughter in the first and second degrees with a firearm, again instructing the jury that it must find that the defendant was not guilty of murder before considering the lesser included offenses. In its instruc- tions on the lesser included offenses, the court addressed the first element required for the state to prove a person guilty of manslaughter in the first degree: ‘‘The first element is that the defendant engaged in conduct that created a grave risk of death. Pointing a loaded weapon at another person may be considered conduct that inherently creates a risk of death. The inference is not a necessary one.’’ It further explained: ‘‘Displaying a loaded gun that accidentally discharges, even without the intent to achieve a wrongful purpose, may provide evidence of lack of due care sufficient to support a finding of reckless criminal culpability. . . . The state of mind amounting to recklessness may be inferred from conduct. The inference is not a neces- sary one.’’
‘‘The standard of review for a challenge to the propri-
ety of a jury instruction is well established. [J]ury
instructions are to be read as a whole, and instructions
claimed to be improper are read in the context of the
entire charge. . . . A jury charge is to be considered
from the standpoint of its effect on the jury in guiding
it to a correct verdict. . . . The test to determine if a
jury charge is proper is whether it fairly presents the
case to the jury in such a way that injustice is not done
to either party under the established rules of law. . . .
[I]nstructions to the jury need not be in the precise
language of a request. . . . Moreover, [j]ury instruc-
tions need not be exhaustive, perfect or technically
accurate, so long as they are correct in law, adapted
to the issues and sufficient for the guidance of the jury.’’
(Citations omitted; internal quotation marks omitted.)
McDermott Calvary Baptist Church
,
‘‘The purpose of marshalling the evidence, a more elaborate manner of judicial commentary, is to provide a fair summary of the evidence, and nothing more; to attain that purpose, the [trial] judge must show strict *6 impartiality. . . . The influence of the trial judge on the jury is necessarily and properly of great weight and his lightest word or intimation is received with deference, and may prove controlling. . . . To avoid the danger of improper influence on the jury, a recita- tion of the evidence should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side, which deserve equal atten- tion. . . . Even where the defendant has presented no evidence, the [trial] court’s summary of the evidence should try to give fair recognition to relevant points raised by the defense in cross-examination as well as to the general theory of the defense. . . .
‘‘In addition, a court must take care to avoid making
improper remarks which are indicative of favor or con-
demnation . . . and must not indulge in an argumenta-
tive rehearsal of the claims of one side only. . . . Such
proscriptions are of heightened importance in a crimi-
nal case, where considerations of due process require
that a criminal defendant be given a fair trial before an
impartial judge and an unprejudiced jury in an atmo-
sphere of judicial calm. . . . The right of an accused
in a criminal trial to due process is, in essence, the
right to a fair opportunity to defend against the state’s
accusations.
.
.
. [P]artisan commentary, if fairly
established by the record . . . deprives defendants of
the very essence of their constitutional right to a fair
trial by an impartial jury.’’ (Citations omitted; internal
quotation marks omitted.)
Hernandez
, 218
Conn. 458, 462–63,
Nevertheless, ‘‘[i]t is well established that a court
may comment to the jury on the weight of the evidence
as long as it does not direct the jury as to how to resolve
a particular question. . . . In fact, in some cases it is
the trial court’s duty to refer to testimony in order to
assist the jury in relating the facts to the law. . . . Jury
instructions must go beyond a mere recitation of legal
principles. . . . It would be a Herculean task, and not
one required under our law, for the trial court to achieve
exact parity in the time spent on comments of both the
prosecution and defense portions of a case. [T]he fact
that the claims or evidence of one party are stated at
much greater length than those of the other dоes not
by itself render the court’s summary of the evidence in
its charge unfair.’’ (Citations omitted; internal quotation
marks omitted.)
Cazimovski
, 20 Conn. App.
190, 192–93,
The defendant claims that because the court used the words ‘‘[p]ointing a loaded weapon,’’ it implicitly instructed the jury that the defendant intended to aim the gun in a particular direction. The defendant further argues that the marshaling during the instruction was harmful because, although the jury heard it in relation *7 to the manslaughter charge, the jury would have applied that instruction to the murder charge as well. He con- cludes, then, that he was deprived of his constitutional right to a fair trial. The state, in contrast, argues that the court’s instruction was given solely in the context of explaining the grave risk and reckless conduct ele- ments of the two lesser manslaughter offenses. It argues that the court stated and restated that the jury must first deliberate on the charge of murder and must stop if it reached a unanimous verdict of guilty. Because the jury found the defendant guilty of murder, the state claims that the jury never reached any of the lesser included offenses, and therefore did not consider the instruсtions that were given for those lesser offenses. We agree with the state.
We need not decide whether the marshaling of evi-
dence was done in error because, even if we assume
it was error, it was harmless beyond a reasonable doubt.
See
State
v.
Latour
,
We first note that the portion of the manslaughter
instructions that the defendant challenges on appeal
was repeated only twice in the court’s lengthy charge
that included instructions on the jury’s function in
weighing the evidence, the burden of proof, the ele-
ments of the crimes, and the requirement that the state
prove each and every element of the crime charged
beyond a reasonable doubt. Additionally, in instructing
the jury that pointing a weapon at an individual may
be considered conduct that inherently creates a risk of
death, the court did not state or infer that the state
had proved the factual predicate. Rather, the court was
simply instructing the jury on a point of law that such
behavior, if proven, would satisfy a legal requirement
for culpability. See
Ciullo
,
Furthermore, a court is allowed to refer to evidence
in order to help the jury understand how the facts relate
to the law. See
State
v.
Cazimovski
, supra, 20 Conn.
App. 192. In reading the instructions as a whole, we
conclude that the defendant’s theory of defense was
fairly presented.
[3]
The court did not state that
the defen-
dant
pointed his gun at the victim, which would have
directed the jury as to the defendant’s state of mind.
Rather, it made a general statement of law that ‘‘[p]oint-
ing a loaded weapon at another person may be consid-
ered conduct that inherently creates a risk of death.’’
[4]
The court further stated in its instructions that ‘‘[d]is-
playing a loaded gun that accidentally discharges . . .
may provide evidence of lack of due care sufficient to
support a finding of reckless criminal culpability.’’ The
latter statement reflects on the defendant’s theory of
the case, namely, that the gun went off unintentionally,
after he displayed it to stop any further violence from
occurring. The court therefore demonstrated strict
impartiality by not reciting the evidence ‘‘as to direct
the attention of the jury too prominently to the facts
in the testimony on one side of the case, while sinking
out of view, or passing lightly over, portions of the
testimony on the other side, which deserve equal atten-
tion.’’ (Internal quotation marks omitted.)
Her-
nandez
, supra,
In addition, any alleged improper marshaling
occurred during the instructions on, and applied solely
to, the lesser included offenses, and therefore it did not
cause harm to the defendant with regard to the murder
charge on which he was found guilty. ‘‘Our jurispru-
dence is clear . . . that unless there is a clear indica-
tion to the contrary, a jury is presumed to follow the
court’s instructions.’’ (Internal quotation marks omit-
ted.)
Boscarino
,
II The defendant next claims that the court abused its discretion and committed reversible error by allowing the state to comment on a missing witness during sum- mation. Although we conclude that the court erred in allowing the state to make a missing witness argument, the error was harmless.
The following faсts and procedural history are neces- sary for our analysis. The state requested permission through written motion, and through argument to the court, to make comments in its closing argument about the absence of Campbell from the defendant’s case. The state argued in its motion that ‘‘the defendant testi- fied that [Campbell] was beaten extensively by the vic- tim, which was the catalyst for the defendant drawing his firearm . . . [and] that he had [a] conversation with [Campbell] after the shooting. . . . During the first trial of this case, [5] the defense called [Campbell] as a witness, in an attempt to corroborate the defendant’s entire ver- sion of events, including his description of the beating which [Campbell] sustained at the hands of the victim, and the events which occurred thereafter. . . . Camp- bell is a witness that the jury would naturally expect the defendant to call; he is available; and his absence bears on the weakness of the defendant’s case.’’
The state argued to the court that, during cross-exam- ination of the defendant, it established Campbell’s avail- ability by asking the defendant if Campbell currently enjoyed good health, and it also confirmed that he resided in Plymouth. [6] The state then argued that Camp- bell had indicated in his prior testimony, at the defen- dant’s first trial, that he had been struck multiple times by the victim and that the defendant was on the ground when Campbell uncurled himself from the fetal posi- tion. The state also argued that because Campbell’s statement to the police was inconsistent with his testi- mony at the first trial, he was impeached; and this was the reason the defendant failed to call Campbell to testify. The state then argued that it was fair to make a missing witness argument to the jury.
Defense counsel rebutted the state’s argument and claimed that the testimony of the defendant about Campbell enjoying good health and residing in Plym- outh was a result of forceful cross-examination by the state, and that in fact, the defendant testified that he had not seen or talked to Campbell in two years. Defense counsel thus concluded that because the state failed to demonstrate that Campbell was available, failed to show that harm to the defendant was the only reason why the defendant would not call Campbell to testify, and failed to articulate how Campbell’s testimony would have been detrimental to the defendant, it could not make a missing witness argument.
The court ruled that the defendant ‘‘testified that . . . Campbell was either kicked or beaten a total of ten times. That goes to a very important issue in this case as to the amount of force that [the victim] was using on . . . Campbell, and the inference the jury could draw is that he was about to use that same force on [the defendant]. It’s a critical issue in the case, and one would naturally believe that the defendant would want to call the biological brother of the defendant to *10 at least corroborate that’s what, in fact, took place. . . . [T]he state did put on the record that there was availability.’’ The state, in its closing argument, was thus permitted to make the statement: ‘‘[T]he other thing you need to consider . . . when you look at the relative strength of the state’s [case], you have only [the defendant] telling his version of events. As it related to the strengths of the defendant’s case, where’s [Campbell]?’’
‘‘We review the court’s decision allowing the state
to include a missing witness argument in its closing
argument for abuse of discretion. . . . It is within the
discretion of the trial court to limit the scope of final
argument . . . . The broad discretion vested in trial
courts by [
State
v.
Malave
,
A
We first assess whether the court abused its discre-
tion in granting the state’s motion to make a missing
witness argument to the jury. ‘‘In
Malave
, [supra,
‘‘A missing witness argument is appropriate in limited
circumstances. Counsel may only invite the jury to draw
reasonable inferences on the basis of facts in evidence,
and the court’s exercise of discretion as to whether to
permit such argument is dependent on the facts made
known to it. For this reason, it is necessary for counsel,
through facts and argument, to justify a request to make
a missing witness argument. Our decisional law reflects,
for example, that . . . counsel should explain how the
[opposing party’s] decision not to call [a person as a
witness] exposed a weakness in the [opposing party’s]
case and should make an offer of proof regarding the
substance of [such person’s] potential testimony. . . .
Stated otherwise, counsel must demonstrate that such
witness was available to testify, set forth the substance
of the testimony that such witness would have given
had he been called to the witness stand and explain
how his testimony would have been detrimental to the
[opposing party’s] case. Evidence that would have been
merely cumulative or of no consequence to a reasonable
assessment of the [opposing party’s] case, for example,
would not warrant such an argument. (Citations omit-
ted; internal quotation marks omitted.) v.
Mun-
groo
,
The defendant argues that the missing witness argu- ment was made in error because the state did not dem- onstrate through his testimony that Campbell wаs available to testify, as the defendant had not even spo- ken with Campbell in two years. [7] We agree.
‘‘When proving availability, counsel seeking to make
the missing witness argument must first offer evidence
to support the witness’ availability and the court must
make a finding that the witness was actually available
to testify. . . . [A] party cannot merely comment on
the failure of the opposing party to present a witness
without first providing a factual or evidentiary founda-
tion from which to infer a weakness in the opposing
party’s case.’’ (Internal quotation marks omitted.)
State
Burns
,
We conclude that the court erred in finding that the
state put on sufficient evidence of Campbell’s availabil-
ity through its cross-examination of the defendant. ‘‘To
satisfy the availability requirement, the [party] must put
forth sufficient evidence before the jury to support a
conclusion that the witness was available at the time
of trial.’’
Owen
,
In fact, the present case is consistent with
State
v.
Jordan
, supra,
Moreover, we disagree with the state’s comparison
to
State
v.
Daniels
,
We therefore conclude that the court abused its dis- cretion in granting the state’s motion to permit a missing witness argument to the jury. Consequently, we now turn to the second part of our analysis, which is whether that abuse of discretion constituted harmful error.
B
Our conclusion that the court abused its discretion
in granting the state’s motion for a missing witness
argument does not end our inquiry; we also must deter-
mine whether the impropriety was harmful, thereby
entitling the defendant to a new trial. ‘‘If there was
such an abuse of discretion, the reviewing court must
determine whether the defendant has established that,
in light of the totality of evidence at trial and the trial
court’s subsequent instructions to the jury, the impro-
priety constituted harmful error.’’ (Internal quotation
marks omitted.)
Burns
,
The defendant failed to demonstrate that the jury’s verdict was substantially swayed by the court’s error in allowing the state to make a missing witness argu- ment. In the present case, the state made only one statement regarding Campbell’s absence: ‘‘[T]he other thing you need to consider . . . when you look at the relative strength of the state’s [case], you have only [the defendant] telling his version of events. As it related to the strengths of the defendant’s case, where’s [Camp- bell]?’’ The state’s reference to Campbell was isolated to one comment within two sentences during its entire closing argument. It was not emphasized throughout, but rather was of minimal impact in relation to the totality of the evidence and arguments presented at trial.
Furthermore, the state did not ask the jury to draw an
adverse inference from Campbell’s absence, but simply
asked the jury to consider ‘‘where’s [Campbell]?’’ In
fact, it would have been evident to the jury that Camp-
bell did not testify. On the basis of thе evidence before
it, the members of the jury reasonably could have seen,
even without the missing witness argument, that the
defendant did not produce Campbell as a witness. See
Ross
,
In addition, regardless of any inference the jury may have drawn from the state’s missing witness comment, the state’s evidence, including the defendant’s state- ment, ‘‘you fucked up now, you’re a dead man,’’ pro- vided a compelling case for conviction. Also, it is no more likely that the jury inferred that Campbell would have contradicted the defendant’s testimony as it is that the jury inferred that he would have supported the defendant’s testimony. See State Burns , supra, 140 Conn. App. 374–75.
In light of the evidence, we conclude that the jury’s verdict was not materially affected by the admission of the state’s isolated missing witness reference, and that the defendant received a fair trial. The court’s error, therefore, was harmless.
III The defendant next claims that the court erroneously precluded the testimony of two proffered defense expert witnesses. We disagree.
‘‘We first set forth the standard by which we review
the trial court’s determinations concerning the [admis-
sibility] of evidence. The trial court’s ruling on eviden-
tiary matters will be overturned only upon a showing
of a clear abuse of the court’s discretion. . . . The trial
court has wide discretion in ruling on the qualification
of expert witnesses and the admissibility of their opin-
ions. . . . The court’s decision is not to be disturbed
unless [its] discretion has been abused, or the error is
clear and involves a misconception of the law.
.
.
.
Generally, expert testimony is admissible if (1) the wit-
ness has a special skill or knowledge directly applicable
to a matter in issue, (2) that skill or knowledge is not
common to the average person, and (3) the testimony
would be helpful to the court or jury in considering the
issues.’’ (Citations omitted; internal quotation marks
omitted.)
Iban C.
,
‘‘[A] trial judge should, by one method or another,
serve as a ‘gatekeeper’ and make a preliminary assess-
ment of the validity of scientific testimony before
allowing the fact finder even to consider it.’’ v.
Porter
,
‘‘[E]vidence, even evidence with its roots in scientific
principles, which is within the comprehension of the
average juror and which allows the jury to make its
own conclusions based on its independent powers of
observation and physical comparison, and without
heavy reliance upon the testimony of an expert witness,
need not be considered scientific in nature for the pur-
poses of evidentiary admissibility.’’ (Internal quotation
marks omitted.)
Griffin
,
A The defendant first claims that the court erroneously precluded the testimony of his expert Morgan. We disagree.
The following additional facts are relevant to this claim. The defendant proffered Morgan, a psychiatrist, to testify about a phenomenon known as ‘‘fight or flight.’’ [9] The state filed a motion in limine and memoran- dum of law in support there of to exclude the testimony. The court excluded Morgan’s testimony because it found that the witness would not be testifying as to scientific knowledge. It stated: ‘‘The doctor testified that this is a phenomenon that has been around for several decades. . . . It’s something that [the jurors] possibly would know that anybody, based on their own common experience . . . would know that their heart- beat would probably increase, their blood pressure may go up.’’
The court further stated: ‘‘There is no history of this case or this type of science being subject to peer review, subject to this author publishing anything on it. . . . I think this testimony would be highly misleading to the jury explaining a phenomenon that really would eventu- ally go back to his state of mind at the time of the shooting, and it really does invade the province of the jury.’’ Because the court found that Morgan’s testimony did not pass Porter scrutiny and went to the ultimate issue of the case, the court granted the state’s motion in limine to exclude Morgan’s testimony.
Our standard for admitting expert testimony is well
established. ‘‘In
Porter
, our Supreme Court explicitly
adopted the
Daubert
test to determine the admissibility
of scientific evidence . . . [but it] did not explicitly
overrule Connecticut precedent regarding the evidence
to which such a test should apply. . . . Courts apply
the
Daubert
standard only when such testimony
involves innovative scientific techniques .
.
.
. To
determine if such a technique exists, we look to see
whether the trier of fact is in a position to weigh the
probative value of the testimony without abandoning
common sense and sacrificing independent judgment
to the expert’s assertions based on his special skill
or knowledge. . . . Furthermore, we determine if the
testimony is based on obscure scientific theories thаt
have the potential to mislead [the trier of fact] awed
by an aura of mystic infallibility surrounding scientific
techniques, experts and the fancy devices employed.
. . . If an expert’s testimony concerns a method, the
understanding of which is accessible to the [trier of
fact] . . . and the value of the expertise lay in its assis-
tance to the [trier of fact] in viewing and evaluating the
evidence, the testimony is not scientific even though
an expert’s skill and training are based on science.’’
(Citations omitted; internal quotation marks omitted.)
Vumback
,
The defendant claims that Morgan passed Porter scrutiny and should have been allowed to testify. He further argues that Morgan’s testimony did not go to the ultimate issue in the case because the ultimate issue focused on theories of self-defense and unintentional discharge, and Morgan’s testimony would not have included references to the defendant or opine how experiencing fight or flight proved self-defense or negated intent. The state agrees with the court that Morgan’s testimony embraced the ultimate issue of the defendant’s mental state and concerned material that was not scientific оr of specialized knowledge beyond the ken of the average juror. It argued that human reac- tions to stressful circumstances that give rise to a fight or flight response are matters that fall within the com- mon experience of the average juror. We agree with the court.
Morgan’s proffered testimony did not fall within the
ambit of scientific, technical, or other specialized
knowledge. As the court stated, the jury would likely
be aware of such fight or flight responses as a result
of their own experiences. The proffered testimony,
therefore, was an attempt to provide expertise on ‘‘infer-
ences which lay persons were equally capable of draw-
ing from the evidence. It is only when an expert witness
has a special skill or knowledge, beyond the ken of the
average juror, on the particular subject at issue that his
testimony can be helpful and, accordingly, should be
admitted.’’
George
,
B The defendant also claims that the court erroneously precluded the tеstimony of his expert Danas. We disagree.
The following additional facts are relevant to this claim. The defendant proffered the testimony of Danas, a self-employed firearms trainer, regarding firearm safety and the danger of unintentional discharge. The state filed a motion in limine and a memorandum of law in support thereof to exclude such expert testi- mony. The defendant objected, arguing that Danas expressed his opinion in reasonable probabilities, that he did not testify regarding the ultimate issue, and that the proffered testimony was beyond the ken of the average juror.
The court found that ‘‘there is no question that Greg- ory Danas appears to be qualified as an expert in the field of firearms, which would include operation, use, and maintenance of firearms, he also may be qualified as an expert in the safe handling of firearms. But the hypothetical question proposed by the defendant [11] appears to offer Mr. Danas as an expert in the area of firearms safety with regard to the unintentional dis- charge of a firearm and specifically the frequency of unintentional discharge of a firearm within the civilian population. If the court were to find [that] this proffered testimony of Mr. Danas was scientific or technical in nature and was to subject this witness’ testimony as it relates to the issue of frequency of unintentional discharge of a firearm by a civilian to a Porter analysis, it would most certainly fail.’’ The court went on to conclude that Danas ‘‘has indicated that he can count on one hand the number of times that he has had his trainees unintentionally discharge a firearm. . . . He has no statistics regarding the age, gender, or physical qualities of those trainees regarding said issue. All of Mr. Danas’ observations were made in a controlled set- ting, he has not made any observations or submitted *18 any studies, data, statistics as they relate to the uninten- tional discharge of a firearm by civilians who are placed in a similar situation to that of [the defendant]. He has never had his theories or techniques subject to peer review or publication. Absent in his testimony is the known or potential rate of error, including the existence and maintenanсe of standards controlling the tech- niques, operations, and whether the technique is gener- ally accepted in a relevant scientific community.’’
The court thus concluded that it was not ‘‘willing to compromise that standard of reasonable probability and move to a much lower standard which would permit an expert . . . to offer such an important conclusion or opinion couched in terms quite likely to be conducive to an unintentional discharge of a firearm. . . . [T]his expert witness wants to offer expert testimony, it goes to the heart of this case, and give[s] testimony that indirectly goes to the intent of the accused, which is ultimately within the sole function of the jury. The defense is asking the court to permit this testimony, which at best is couched in terms of possibility and arguably at worst it’s couched in terms more consistent with conjecture and speculation.’’
Our standard regarding expert opinions is well estab-
lished. ‘‘Expert opinions must be based upon reason-
able probabilities rather than mere speculation or
conjecture if they are to be admissible in establishing
causation. . . . To be reasonably probable, a conclu-
sion must be more likely than not. . . . Whether an
expert’s testimony is expressed in terms of a reasonable
probability that an event has occurred does not depend
upon the semantics of the expert or his use of any
particular term or phrase, but rather, is determined by
looking at the entire substance of the expert’s testi-
mony. . . . As long as it is clear that the opinion of
the expert is expressed in terms of probabilities, the
opinion should be submitted into evidence for a jury’s
consideration.’’ (Internal quotation marks omitted.)
Peatie Wal-Mart Stores, Inc.
,
The trial court has a duty to act as a gatekeeper
and must determine whether the method underlying
proffered scientific evidence is admissible. See v.
Porter
, supra,
IV The defendant lastly argues that the prosecutor misin- formed the jury on the law regarding murder and self- defense, thus depriving the defendant of a fair trial. We are not persuaded.
During rebuttal summation, the prosecutor argued: ‘‘[S]elf-defense is a justification defense. So the court will tell you that before you can consider self-defense on the charge of murder, you have to find that the defendant intentionally caused the death of [the victim], okay, then you consider self-defense. . . .
‘‘[T]he testimony of the defendant was that of acci- dent. He reiterated time and time again that he did not intentionally pull the trigger. So he’s asking you to adopt a defense, the opposite of that which he presented to you. . . . ‘Accident’ is just a simple failure of proof defense. All accident is, is the state failed to prove intent . . . that’s an entirely different concept from a justification defense. Because in order for you to find that he acted intentionally and shot the guy, you’ve already rejected that he did it in self-defense based on his facts. So pay attention to those instructions, because accident and self-defense are legally inconsistent defenses. Can you raise inconsistent defenses as a mat- ter of law? Absolutely. Is it practical? That’s for you to consider.’’
‘‘[T]he defendant’s failure to object at trial to [this
occurrence] that he now raises as . . . prosecutorial
impropriety, though relevant to our inquiry, is nоt fatal
to review of his [claim]. . . . This does not mean, how-
ever, that the absence of an objection at trial does not
play a significant role in the determination of whether
the challenged statements were, in fact, improper. . . .
To the contrary, we continue to adhere to the well
established maxim that defense counsel’s failure to
object to the prosecutor’s argument when it was made
suggests that defense counsel did not believe that it
was [improper] in light of the record of the case at the
time.’’ (Internal quotation marks omitted.)
Taft
,
The standard for prosecutorial impropriety is well
settled. ‘‘[T]he touchstone of due process analysis in
cases of alleged prosecutorial [impropriety] is the fair-
ness of the trial, and not the culpability of the prosecu-
tor. . . . The issue is whether the prosecutor’s conduct
*20
so infected the trial with unfairness as to make the
resulting conviction a denial of due process.’’ (Internal
quotation marks omitted.)
State
v.
Stevenson
, 269 Conn.
563, 571,
‘‘[I]n analyzing claims of prosecutorial [impropriety],
we engage in a two step analytical process. The two
steps are separate and distinct: (1) whether [impropri-
ety] occurred in the first instance; and (2) whether that
[impropriety] deprived a defendant of his due process
right to a fair trial.’’ (Internal quotation marks omitted.)
Stevenson
, supra,
Considered in light of the prosecutor’s entire remarks in rebuttal, we cannot agree with the defendant that the statement amounted to prosecutorial impropriety and so infected the trial with unfairness as to make the resulting conviction a denial of due process. We agree with the state when it argued in its appellate brief that ‘‘[v]iewed properly in context, the remark constituted an accurate statement of the mutually exclusive nature of accident and self-defense, and an accurate statement regarding the defendant’s testimonial claim of accident, not self-defense.’’ The prosecutor properly pointed out to the jury that the defendant had inconsistent defenses, and that the jury could rely on only one theory: either self-defense or unintentional discharge. The statement did not shift the burden to the defendant to disprove intent before considering self-defense. Having deter- mined that the defendant has not established impropri- ety by the prosecutor, the defendant’s claim that he was deprived of a fair trial necessarily fails.
The judgment is affirmed.
In this opinion the other judges concurred.
[1]
The defendant testified that both he and Campbell believed that before
a member received his one year patch, the club was required to discuss
and to vote on whether it was earned by that member.
pants, concealed by his shirt. He testified that he carried the gun every day
[2]
The defendant carried his gun in a holster clipped to the inside of his
since the September 11, 2001 terrorist attacks because he ‘‘thought it was
a good idea to be armed.’’
[3]
Unlike in
Hernandez
, supra,
[Campbell]?
‘‘[The Defendant]: Probably two years ago.’’ ‘‘[The Prosecutor]: And [Campbell] lives in where, Plymouth?
‘‘[The Defendant]: Yes. ‘‘[The Prosecutor]: Whereabouts in Plymouth, do you know?
‘‘[The Defendant]: Near the lakе there, Plymouth Lake. ‘‘[The Prosecutor]: Okay, still living there? ‘‘[The Defendant]: As far as I know, yes.’’ ‘‘[The Prosecutor]: Still living, conscious, competent, nothing happened to him? Today, as we sit here today?
‘‘[The Defendant]: I believe so.’’
[7]
The state did not offer any other evidence of Campbell’s availability
to testify.
[8]
The defendant did not testify that Campbell was available to testify, or
even that he ‘‘would probably be able to testify,’’ as was the case in
State
Anderson
,