State v. Collins

567 with all of the sub dissenting. I PALMER, J., agree in her points that Justice Katz raises dissent. stantive well therein, set forth as as for For the reasons in in her State Kitch reasons set forth concurrence (Katz, J., 942 ens, (2011) A.3d my Kitchens; id., concurrence concurring), I also dissent. (Palmer, J., concurring); COLLINS STATE CONNECTICUT v. RICARDO OF (SC 18297) Palmer, McLachlan, Norcott, Katz, Vertefeuille, Js.* Zarella * seniority justices listing reflects their status on this court as of argument. the date of oral April 26, officially January 5,

Argued released 2011** **January 5, 2011, slip the date that this was released decision as a opinion, operative procedural purposes. is the date for all substantive and Mattel, special deputy

AdamE. attor- assistant state’s Smriga, were John C. ney, whom, brief, with on the Benedict, former state’s Jonathan C. attorney, state’s S. Stein, and Howard attorney, assistant state’s attor- ney, appellant for the (state).

Pamela Nagy, S. special defender, for the public appellee (defendant).

Opinion in principal J. The issue this certified NORCOTT, appeal properly admitted, is the trial court whether of Evidence,1 under of the Connecticut Code § 4-5 uncharged concerning misconduct evidence the defen- prior in a shooting using dant’s involvement the same present murder in the case. weapon that was the petition appeals, upon The state our of its for grant Appellate the of the Court certification,2 judgment from 1 provides Section 4-5 of the Connecticut Code of Evidence in relevant crimes, part: “(a) wrongs prove Evidence of other or acts inadmissible to crimes, person wrongs a character. Evidence of other or acts of is inadmissi prove person. ble to character or criminal tendencies of that the bad crimes, wrongs “(b) When of other or acts is Evi- admissible. crimes, wrongs person purposes dence of or acts a for other of admissible specified prove intent, identity, (a), other than in subsection such as to those malice, plan accident, motive, scheme, or of common absence mistake or knowledge, system activity, crime, of criminal or an element the or to testimony. prosecution ...” corroborate crucial 2 petition granted following limited to We the state’s certification properly Appellate “Did that the trial abused issue: Court conclude court defendant’s involvement in its discretion when it admitted evidence of the Collins, prior (2009). shooting?” A.2d State Conn. 546 reversing judgment defendant, conviction of the Collins, Ricardo of murder in violation of General Stat- felony utes 53a-54a murder in (a), § violation of General robbery Statutes 53a-54c and in § the first in degree violation of General Statutes 53a-134 (a) (2). § Collins, App. 730, 961 A.2d 986 (2008). Appellate state claims that the Court improperly deter- mined that the trial court had abused its discretion admitting evidence of the defendant’s involvement the earlier Stephen nonfata! Rose, his cous- in’s husband (Rose shooting). The defendant contends otherwise, and also posits, as alternative grounds for affirming judgment Appellate of the Court, that the improperly: trial court instructed (1) jury that the adequacy police of the investigation was not at issue in the case; and (2) determined that he had waived his right voluntarily counsel knowingly, and intelligently. We reverse the judgment Appellate of the Court.

The record reveals the following facts, relevant which reasonably could have found, procedural history, much of which are set opinion forth Appellate Court.3 “The victim, Calvin [murder] Hopkins,4 Quiana and his former girlfriend, Staton, jointly operated a ‘business’ which Staton sold mari- juana Hopkins sold crack cocaine. At approxi- mately 10:30 on the night of 2, 2002, Hopkins December went to Staton’s Bridgeport apartment public in a hous- Appellate We note that the Court’s recitation of the facts in this case description jury reasonably includes a detailed of the facts that the could separate have found after charges arising the defendant’s trial on numerous shooting, Collins, from the Rose App. 833, as set forth in State 100 Conn. 836, 1087, denied, 919 A.2d (2007). cert. 284 Conn. 931 A.2d 937 See Collins, supra, App. State v. 111 Conn. 734-35. Because that evidence was present and, therefore, not adduced at the trial in the case was not considered jury herein, agree appropriate we with the state that it is not for us appeal. deciding to consider that evidence in this ” 4“[Hopkins] alternatively ‘C-Hop.’ was known as Calvin Atkins and Collins, supra, App. 732 n.2. apart- Greens. He came known as the project ing an and retrieved ‘wad of cash’ large a carrying ment testi- $600 safe. Staton $500 from Staton’s additional to money purchase to use the Hopkins intended fied that apart- Staton’s Hopkins left crack cocaine. additional 12 a.m. on money approximately at with the ment on to Staton spoke 2002. He of December morning later one hour approximately telephone cellular his complex. apartment in the lot of parking from his car from her win- looked conversation, Staton During two unknown Hopkins talking to see in his car dow Hopkins’ cel- attempted later to call individuals. Staton at 3 again 2 a.m. and telephone approximately at lular of those calls. no answer to either a.m. but received 7:15, Bridge- approximately at morning, “Later that a short distance dispatched were to a scene port police where a sedan apartment complex green from Staton’s from a school bus parked preventing in the road vehicle, the door to the Upon opening passing. ‘reclined in the front seat Hopkins police discovered be a appeared and what with his head back leaning of the vehicle.’ of blood in the interior large amount the medical examin- scene, physician from “At the Hopkins’ from casing recovered a bullet shell er’s office carrying had been currency Hopkins collar, and the on was not found morning hours of the the earlier on were found body. fingerprints Two anomalous his was found on fingerprint the defendant’s the vehicle: and that of rear driver’s side door the exterior of the Berrios, was found on the individual, Anthony another autopsy An later front door. passenger exterior of the wound to Hopkins gunshot died from revealed that recovered from and bullet were head, fragments head. his because suspect a in this case

“The defendant became August, in shooting] in the of his involvement [Rose 2002. A firearms examiner testified at trial that the shell Hopkins’ recovered from casing collar at the scene of the homicide was weapon fired from the same that had been used in the shooting].” Id., 732-34. [Rose

“The defendant turned in himself to the Bridgeport police in January, 2003, for the Rose shooting. During police course of the questioning, admitted to Rose a chrome and black [with nine millimeter but also handgun] indicated that he had since gun.5 sold the . . . While in police custody for 5Specifically, Winkler, Bridgeport in his statement taken Robert police detective, the defendant averred that he had shot Rose after Rose physically: attacked him you regarding “Q. What do have to tell me the incident that occurred on August 28, 2002, on Pembroke Street? my leaving apartment Street, only “A. I living on Pembroke I was weeks, number, there for about two . . . I don’t remember the but it was Marlborough my husband, near Court. I saw cousin’s He was in a [Rose]. livery cab, circling white he was around and came back. He threw the car park up and ran on me. you long “Q. How have known [Rose]? my cousin, “A. He’s married to Jessenia. you showing picture, you you person? “Q. I’m can tell me if know this Yea, [Rose], “A. that’s he’s married to Jessenia.” “’*”|!*[The signed photo and dated the defendant] back of the at this time*’1”1’ “Q Go on. yelling screaming accusing “A. He was crashing at me. He was me of his wife’s car. “Q. What kind of car? Corolla, grey. “A. A Okay. you yelling “Q. He’s at and then? trying away kept getting my “A. I was to walk and he face. He took a

swing at me. He hit me hard in the face. you you “Q. What did do after he hit in the face? my gun side, “A. I had a on so I shot him. many you “Q. How times did shoot him? “A. I don’t know. “Q. What kind of was it? just “A. I trigger keep know it was a nine. You touch the and the bullets

coming out. It was a chrome with black in it. “Q. Did of the bullets hit him? thought “A. At first I I again. didn’t hit him he went to hit me [because] you keep shooting? “Q. Did “A. There were no bullets left. questioned was also shooting, Rose In his statement homicide. Hopkins

with regard Hopkins with meeting defendant admitted police, of Decem- night purchase drugs during in his car to omitted.) (Citation him.” killing but denied 2, 2002, ber 735. Id., following found the reasonably could have the defen- however, that demonstrating, facts

additional and black the chrome actually dispose of did not dant in the Rose he had used handgun nine millimeter in the Hopkins kill it to and, indeed, used Penix, the Ryshon Specifically, him. robbing course housing in the Greens cousin, also lived defendant’s him there on visited When the defendant project. death, Hopkins’ days several before 28,2002, November noticed roommate, his Ramos, and Ivan both Penix then? “Q. And up, swinging at me. he was still “A. We were locked then? “Q. And way. just cops I left. get were on their and then he said the “A.I him off me you go? “Q. Where did Street, my [e]nd, aunt’s house. to Smith “A. To the [e]ast you get did to Smith Street? “Q. How up brought my phone, picked my me he I called uncle from cell “A. to the east end. me happened gun? “Q. What someone, got I for it. I don’t know who. [$300] “A. I sold it to you staying incident? been since this “Q. Where have Everywhere once, Everywhere, to New York. the state I went “A. I left Bridgeport. else was in you? police looking you were for “Q. know the Did

“A. Yea. your arrest? that there was a warrant “Q. And “A. Yea. Why you yourself turn in? “Q. did step my telling talking I can’t even I was her that I was mother. “A. brought jail, from outside, being She someone like I can’t work. it was police. we decided to call the church to talk to me and you you feel is anything like to add that else that would “Q. Is there important? my job Basically regret it me to lose I do it caused “A. [because] apartment.” that the had with him a and black defendant chrome Further, Kimberly who handgun. Finney, had been incarcerated Bridgeport with defendant at the cor- center, rectional testified that the defendant had con- dayroom a fessed to him in conversation in the there that Hopkins robbing he had murdered while him. Fin- ney specifically defendant, testified that the while evad- ing police the investigation shooting, the Rose had unsuccessfully attempted to himself support selling in the to drugs housing project, robbery Greens turned instead, Hopkins and elected rob the defen- because dant, purchased Hopkins who had drugs before, from had money. seen him with lot of After arranging to ostensibly meet with Hopkins, purchase the drugs, attempted defendant then in Hopkins car, rob his Hopkins and shot him when The resisted. defendant Finney told that he had turned himself for the Rose shooting attempt being in an to avoid considered a suspect Hopkins case, that “he figuring [would] never suspect become a in the case [Hopkins] because jail already.” he had been in “The defendant’s initial trial Hopkins’ for murder was declared a after jury mistrial returned deadlocked. At the subsequent trial,6 which in the resulted convic- tion, from which the defendant appeals, the state sought to introduce evidence of the role in defendant’s Rose to which [shooting], objected.7 defendant, who himself at the representing time, argued any testimony that Rose regarding the shooting prejudicial’ would probative be little ‘highly and of value. He that . . . argued further state has me ‘[t]he 6Finney testify he testified that decided to inform on defendant and hope leniency receiving pending at this second trial in the on his own cases, and realized that because he the defendant’s admissions would be prosecution, valuable to the because the first trial had defendant’s resulted hung jury. in a objection testimony “The defendant’s initial took the form of an Collins, supra, App. oral motion in State v. limine.” 735 n.4. evidence, it I had other got testifying I see a need really I don’t it, and was convicted of testimony it would for this here because ... inflame I’m for this murder jury right .... on trial now shooting It’s cases. case, and it’s a case. two no if I think ... matter they [Rose], And was to bring . . . it your jury be to the what instruction would somebody got be in them that shot. lingering still would I in.’ you And would ask that not allow it that the value of “The court determined unfair potential preju- its outweighed dice; 4-3;8 Evid. and overruled the § see Conn. Code objection. did, defendant’s It instruct the however, bad evidence could not be used to infer charac- tendency ter of defendant his to commit criminal the or objected testimony, acts. later to The defendant similar which was also overruled. jury deliberations, the twice communicated

“During it to a to the court that was unable reach unanimous one of counts After each charged. verdict as to the jury, from the the court instructed it communication to the time deliberations, giving continue its second Chip jury eventually a Smith The formal instruction.9 felony of of murder, returned a verdict murder guilty robbery in the on The degree first March 2006. jury’s court in the judgment rendered accordance with forty-five verdict, and the defendant sentenced years on prison merged the counts of murder and felony years robbery on of murder ten the count provides: the of Section 4-3 of Connecticut Code Evidence “Relevant by may probative outweighed danger be excluded if value its the issues, prejudice surprise, misleading of unfair or the or confusion jury, presenta by delay, or considerations undue waste of time or needless tion of evidence.” cumulative purpose [Chip prevent hung “The instruction is to Smith] by jurors attempt agreement. part urging to reach It is settled quotation jurisprudence (Internal omitted.) . Connecticut . . .” marks Collins, supra, App. 111 Conn. 736 n.5. first degree.” Collins, supra, State v. App. 735-36. appealed defendant from the judgment of convic-

tion Appellate Court, claiming, alia,10 inter that the introduction of evidence his concerning involvement in the Rose deprived him of a fair trial because prejudice its to the defense exceeded its Id., value. 737. The Appellate Court agreed, concluding that the trial court by had abused its discretion admit- ting uncharged misconduct Id., evidence. 743-44. The Appellate Court further concluded that the defen- proven dant had improper admission of this evidence was harmful, given the lack of direct evidence linking Hopkins’ him to death and multiple reports of jury deadlock in Id., this case. 744. Accordingly, Appellate Court reversed judgment of conviction and ordered a new trial. Id. appeal This certified fol- lowed. See footnote 2 of opinion. this appeal,

On the state contends that the Appellate Court improperly determined that the trial court had abused its discretion admitting evidence of the Rose shooting, because: (1) such evidence was relevant prove the identity defendant’s as the shooter in this case, as well as his motive for robbing Hopkins; and the (2) jury trial court’s instructions, and the limited nature of specific the evidence that admitted, ren- dered unduly prejudicial. it not In response, the defen- dant contends otherwise, and also posits, as alternative grounds for affirming the judgment of the Appellate 10 likely remand, Because it did Appellate not deem them to arise on appeal, Court did not address namely, the defendant’s other claims on “(1) improper jury regarding theory an deprived instruction the defense him rights pursuant fifth, of his to the sixth and fourteenth amendments to the first, 8, United States § constitution and article of the Connecticut constitu (2) permitted right competent tion and the court the defendant to waive his properly determining counsel voluntary, without that such waiver was intelli Collins, supra, gent knowing.” State v. App. and 732 n.1.

577 that the trial 84-11, Book § to Practice pursuant Court that the ade- improperly instructed (1) court: an issue in was not investigation quacy police the defendant inadequately canvassed case; (2) and his to counsel right his waiver of to determine whether We address voluntary intelligent. and was knowing, relevant facts set forth additional turn, claim in and each of each claim. history in the context procedural and I Sharpe, Conn. 195 on, alia, inter Relying Higgs, United States A.2d 345 (1985), 999, 125 denied, cert. 543 U.S. 2003), F.3d 281 Cir. (4th state claims 2d 456 (2004), Ct. 160 L. Ed. S. that the improperly concluded Appellate that the Court by evidence of admitting discretion trial court abused its probative value of such shooting, the Rose because, when any unduly prejudicial effect exceeding testimony by Penix and Ramos in the context of viewed possession was in of a black that the defendant showing shortly before handgun and chrome nine millimeter and used the defen murder, it linked a owned The state Hopkins this case. dant to the testimony was corroborative argues also that this testimony. The state Finney’s jailhouse informant unduly could not have emphasizes that the evidence not tes jury’s because Rose did aroused the emotions extent of his tify, the evidence did not involve the had been convicted injuries or whether the defendant state therewith; indeed, of a crime connection only from the defendant’s contends, any details came in self- that he had shot Rose police statement defense.11 Appellate that the response, argues

In had the trial court properly Court determined evidence, even if the admission of this The state also contends that improper, was harmless. because,

abused its discretion evidence that although possessed relevant, he had used in this case was by the trial court failed to limit the evidence excluding prejudicial the highly fact that the defendant had shot defendant relies on State someone with the gun. v. Mortoro, 160 Conn. 279 A.2d 546 (1971), v. Dunbar, App. 313, 51 Conn. 721 A.2d 1229 (1998), denied, cert. 724 A.2d 1126 and (1999), Thompsons. State, 690 N.E.2d 224 in further (Ind. 1997), support of his argument the evidence of the shoot ing solely portray was irrelevant and served him in a bad The defendant also light. argues that the shooting necessary prove was not that the murder by this case was motivated robbery, and that there was in fact namely, testimony of Robert evidence — Winkler, a Bridgeport police detective, Finney —to the effect that the defendant had in fact been convicted of a crime in connection with the Rose shooting. We with agree the state and conclude that the trial court did not abuse its discretion admitting limited evidence about the Rose shooting.

The record reveals the following additional relevant procedural history. facts and testimony After the Tillson, Jessica a Bridgeport police officer who was the state’s first witness, defendant, who at the time was himself with representing standby the aid of counsel; part see III of this opinion; argued against admissi- bility of testimony.12 Rose’s The defendant claimed that testimony Rose’s would be “highly prejudicial to the clearly outweighs value. The state . . . has me testifying that I had a gun and it [has] 12Shortly testimony, before Tillson’s the defendant had broached this first, testimony stating, Rose, highly prejudicial.” issue “the it’s The court replied: you testimony, your argue have an issue with his we’ll . . . “[I]f objection prior before he takes the stand.” The court considered the issue testimony Joseph Gallagher, Bridgeport police detective, because prosecutor testimony likely had advised the court that his to encom pass shooting. the Rose really and I it, I of evidence, and was convicted other . . . testimony here because need for this don’t see a already I’m convicted jury because it would inflame this now for right . . . and I’m on trial ... of this case shooting It’s two it’s a case. case, shooting murder I testify], to they bring And if cases. [Rose [were] would be your what instruction ... no matter think in them . . would be jury, lingering that it . still you not And I would ask that somebody shot. got Joseph Gal- prosecutor, noting in.” The allow it his testify would about detective, a Bridgeport lagher, of the Rose in the crime scene processing activities in Bridgeport, and Jane Streets at Pembroke shooting cause probable at the observed that Rose had testified Robinson, the state’s and stated that Marshall hearing upon his testify would “that based expert, firearms that was used experience . . . the firearm training and firearm was, fact, of the same shooting in the [Rose] [Hopkins].” of The causing that was used in the death shooting that the defendant’s act of prosecutor argued that was admissible “prior Rose was misconduct” who was testify person Rose would that “the because time of his of this common firearm at the possession . . . .” on Relying was . . . the defendant shooting prosecutor Sharpe, supra, State v. availability instruc- limiting noted the of the “common which about to tion” that “the evidence [the is] purpose showing offered for the of being hear is not anything character or bad propensity crime,” argued to commit regarding his be actions in Rose would that the defendant’s Code of under 4-5 of the Connecticut (b) admissible § identity as an element Evidence, prove identity, provision catchall “to crime and under the charged, testimony.” prose- prosecution crucial corroborate “to defendant’s access proof stated that cutor permit “the instrumentality the crime” would jury, develop circumstantial evidence ... through a chain of evidence that would tend to indicate that the responsible defendant was for this crime.” The state argued then that the value of the evidence prejudicial particularly would its outweigh effect, given limiting instruction, prosecutor the which the noted successfully was used in the defendant’s first trial.13 The trial court concluded that the evidence of the prove Rose could be admitted to the defen- specific identity dant’s intent to commit the murder, person the who shot and Hopkins, to corroborate the testimony exception crucial person because “one who . . . allegedly can tie in the defendant to . . . that gun on that date Rose.” The court then concluded that [is] prejudicial the effect of the evidence did not outweigh its value with respect case, to the state’s and noted that limiting prior instructions would be given testimony. and Rose’s Gallagher 13 response, testimony In the defendant reiterated that Rose’s would be “highly prejudicial” case, because of the nature of the and he noted that already “admitting having gun the state had his statement . . . . . . they casings.” prosecutor that shot. . . Rose and the shell then [have] any testimony by Gallagher “very narrow”; stated that and Rose would be testimony Gallagher’s physical would be limited to the evidence recovered scene; testimony “plac[ing] at the and Rose’s would be limited to him at time, place Pembroke and Jane on a and date to indicate that he [Streets] location, had been shot the defendant on that date at that which would loop then, any go close the and not to . into further detail. . . no [T]here’s go matter, need to into the facts of that other than that the defendant was person who, fact, possession was in on that date.” part, standby suggested prosecutor For his the defendant’s counsel that the shot, merely place have Rose eliminate his statement that he was and “firing gun identify,” defendant at that scene that he can to be linked to shooting Hopkins by testimony. Standby Gallagher’s counsel indicated prejudicial aspect that the most of the evidence would be Rose’s statement him,” “certainly jury’s that the defendant “shot which would affect the opinion character, propensity or his for violence.” The [the defendant’s] disagreed, however, emphasized testimony state that Rose’s that the testimony defendant him shot would be crucial identification § under 4-5 (b) of the Connecticut Code of Evidence. at the regarding

After testified his actions Gallagher shifted his case, prosecutor crime scene this focus on direct examination to the scene of the Rose continuing After the defendant noted his shooting. objection, identified five nine millimeter shell Gallagher that he had collected from the scene of the casings Rose shooting.14 day

On the second of the defendant’s cross-examina- tion of Gallagher, prior questioning, to the start of jury trial court delivered a instruction to the limiting advising that, respect it with to the events of August 28,2002, shooting, the date of the Rose it could consider testimony only pur- or evidence for the “limited poses intent, ... on the issues of element of a crime opportunity,” or “expressly pro- hibited from that evidence as evidence of bad using any character of the defendant, or as evidence a [of] tendency part on his to commit criminal acts.”15 The jury trial court reminded the of this instruction limiting several times, testimony Finney after the including that, request defendant, We note at the of the the trial court directed charges the redaction of references to assault on the evidence labels on the bags shooting casings. that held the five Rose shell complete limiting instruction, objec to which the defendant had no tion, testimony directed the that it “can consider the or evidence for purpose only purpose. purposes a limited and for no other The limited are intent, opportunity. on the issues of element of a crime or The evidence you which have will heard and hear about these issues is limited to those purposes. very simply very limited The bottom line is that these are limited purposes testimony being for which the offered and those are the —those just you. expressly prohibited using which I have identified for You are from any defendant, any that evidence as evidence of bad character of the or as tendency part you evidence aas on his to commit criminal If acts. find the credible, logically rationally supports and further find it and the being state, you may issues for which it is offered consider it for the purposes sole and limited that I have indicated. It cannot be considered for any purpose. other hand, you evidence, you “On the if other do not believe such and even if do, you logically rationally support if find it does not and the issues being offered, you any purpose.” for which it is would not consider it for the final We note Robinson, during charge. only trial, at this and that the Rose never testified that described the Rose evidence admitted statement, which was any was the defendant’s detail footnotes 5 and 20 with his See agreement. admitted opinion. of this Appellate Court, the decision of examining

Before rule, prior evidence of that, general a we note “[a]s prove that a criminal misconduct is inadmissible of which the defendant defendant is of the crime guilty . . . cannot be used to sug- is accused. Such evidence propen- or a that the defendant has bad character gest hand, ... On the other sity for criminal behavior. principal evidence of crimes so connected with pecu- innate by circumstance, motive, design, crime or that the commission of the collateral crime tends liarity, directly prove principal crime, the commission application policy is admissible. The rules of have no directly tends whatever to evidence of crime which prove guilty specific that the accused is offense developed which he is trial. . . . We have on part admissibility two test to determine the of such evidence. the evidence must be relevant and mate- First, encompassed by rial to at least one of the circumstances exceptions forth in 4-5 of the Connecticut (b) § [set Second, . . . Code of value Evidence]. prejudicial evidence must its effect. outweigh . . . Because of the difficulties inherent in this balanc- will process, the trial court’s decision be reversed ing only of discretion is manifest or abuse whe[n] whe[n] injustice appears an to have been done. ... On review court, therefore, every presumption this reasonable should be in favor of the trial court’s given ruling.” quotation marks omitted; omitted.) internal (Citations Randolph, 328, 340, v. 284 Conn. 933 A.2d 1158 State (2007). exceptions prohi- to the general

“The well established misconduct uncharged bition the admission of against Connecticut Code of are set forth in 4-5 of the (b) § provides part in relevant Evidence, which ‘[e]vi- person crimes, dence of other or acts of is wrongs identity, malice, ... prove intent, admissible to plan scheme, or absence of mistake motive, common accident, system activity, or of criminal knowledge, an or to corroborate crucial crime, or element of the ” Beavers, State testimony.’ prosecution Conn. 386, 400, 963 A.2d 956 (2009). Appellate

The Court’s decision did not address the inquiry, first of the misconduct prong uncharged specifically without indicat- appearing assume, to but trial had ing, properly court determined that evidence that the defendant had shot Rose with Hopkins the same that was used to murder handgun iden- was relevant under either of the corroboration16 or exception (b) § Under the of the Connecticut Code of Evidence 4-5 permitting uncharged misconduct evidence to be used to “corroborate cru prosecution testimony,” prosecution permitted is cial “the not wholesale proof purposes. guise into evidence under the of corroboration ... To potential prosecutorial required abuse, proponent avoid we have relationship proffered evidence to demonstrate a close between the evidence, therefore, and the evidence to be corroborated. Other crimes only purposes, admissible for corroborative if the corroboration is direct significant. . and the matter corroborated is . . test, significant important, opposed “Under this evidence is defined as as trivial, corroborating evidence. . . . Direct evidence is that which is not wholly disconnected, remote, . . . or collateral to the matter corroborated. requirement necessary corroborating that the evidence be direct is order to ensure that the link between the corroborative evidence and the nonprobative; facts to be not attenuated or inferred therefrom is too other wise, might unfairly upon propensity the evidence reflect the defendant’s omitted; quotation (Citations omitted.) to commit crimes.” internal marks Mooney, 85, 128-29, denied, 588 A.2d cert. 502 U.S. 919, 112 id., (1991); (permitting S. Ct. 116L. Ed. 2d 270 see also 129-30 testimony by peipetrated by it victim of other larcenies defendant because directly testimony impeached corroborated of witness about defendant’s practice purpose meeting gay robbing stealing with men for or from them); Sharpe, supra, (noting State v. 195 Conn. 659-60 that “extensive testimony concerning purchase apistol subsequent the defendant’s and his 584 the Connecticut

tity17 (b) set forth in 4-5 of exceptions § just prior shooting” report to corroborate “tended also of its theft testimony casings at the scene of the direct that shell found the other type purchased by defendant”); shooting probably gun the came from a of the App. 100, 110, (evidence Blango, v. 927A.2d 964 defen State 103 Conn. separate displayed gun during incidents” corroborated victim’s dant “two testimony gun with a in order “that the defendant threatened her contested charges compel perform sex, element of the to her to oral an essential that, approximately against particularly “it established two him” because possession assault, gun in after the the defendant had a his weeks sexual gun assault”), was used in the cert. that was similar to the she testified denied, 919, (2007). 933 A.2d 721 284 Conn. 17 ordinarily signature is used to determine whether evidence “The test identity exception. uncharged is admissible under ... the of misconduct Specifically, (b). § Evid. 4-5 the test is used to discern See Conn. Code prove uncharged the iden whether evidence of misconduct is admissible tity perpetrator charged.” v. the defendant as the of the crime State 351; Boyd, 707, 743, Randolph, supra, also v. 295 Conn. 284 Conn. see identity exception propensity (2010) (admissibility under is not 992 A.2d1071 evidence, “similarity” prior charged and conduct “to show but relies on defendant, person, engaged in and not another had that conduct toward purpose, victim”). the factual characteristics “To be admissible for that sufficiently charged uncharged must be distinctive shared crimes unique signature logically as be like a it could be inferred [so that] guilty guilty he of the other.” that if the defendant is of one must be [crime] Snelgrove, 742, 765, (Internal quotation omitted.) marks State v. (2008). A.2d 165 954 that, have concluded in the context Numerous federal and state courts misconduct, gun uncharged a defendant’s use of the same used to commit identity “signature” purposes charged offense constitutes a of the Stewart, 1030, exception. See, e.g., (9th Cir.) 441 1040 Williams F.3d (“[t]hat gun belonging at was used to shoot same [the defendant] signature kill is a element that links and to [another victim] [one victim] denied, 1002, burglaries”), cert. 549 U.S. 127 S. Ct. to both [the defendant] Higgs, supra, (2006); 353 F.3d 166 L. Ed. 2d 381 United States properly nightclub shooting (evidence in of defendant’s involvement identity exception it linked him “to the same caliber admitted under because weapon owned and retrieved testified defendant] [the witness] [the murders, night which drawer on the and one shared from the State, rifling weapon”); murder Fernandez v. same characteristics as did the (Fla. App. 1998) (“[B]oth crimes occurred in the same 2d So. area, Evidence of the and involved the same and the same automobile. identity properly prior shooting to issues of and motive and was was relevant Lemons, 335, 352, (evi (1998) admitted.”); 501 S.E.2d 309 State v. 348 N.C. identity prove uncharged was relevant to murder case dence of robberies alia, using because, the head one victim “was shot the back of inter

585 Rather, Appellate analy Code of Evidence.18 Court’s test, sis focused on the second of the and the prong probative defendant’s claim “that the value of evidence shooting preju of the Rose did not overcome the risk of dice, by even with the instruction limiting given may court. He further it although asserts have been produced that he once owned a shell gun casings casing Hopkins’ match the shell found on collar, the fact that he shot Rose with that was not gun necessary prove any element of the state’s case.” v. Collins, supra, State App. Appel 111 Conn. 742. The v. Dunbar, supra, State late Court relied on 51 Conn. Mortoro, supra, and State v. App. 313, 387-91, 160 Conn. gun”), grounds, 1018, 2363, same vacated on other 527 U.S. 119 S. Ct. 144 (1999); Reid, 508, 513, L. Ed. 2d 768 Commonwealth 533 Pa. 626A.2d 118 empty (1993) (“[b]ecause casings weapon shell from the same were found scenes, handgun at both murder and was identified as the [the defendant] murder, millimeter shooter in the second in which a ten bullet was found head, in the victim’s evidence of the second murder is admissible to establish identity Stokes, first”); as the shooter in the [the defendant’s] 390, 405, (2009) (evidence S.C. 673 S.E.2d 434 that same was used in subsequent by identity break-in defendant was relevant to establish “[s]ince identify attackers”); the victims in the instant case were unable to their cf. Llera, App. (2009) (“the State v. 969 A.2d 225 existence Luger, of the Glock was irrelevant to the existence of the nine millimeter except improper purpose propen- showing for the of that the a defendant had sity carrying gun”). for instruction, Relying limiting on the trial court’s which directed the shooting proof intent, to limit its use the Rose evidence to the element opportunity; opinion accompa of a crime or see footnote 15 of this and the nying text; posits presume, the dissent that it no reason to as the “see[s] majority does, Appellate that the Court assumed that the evidence was purposes, prove identity” relevant for other such as corroboration or to exceptions (b) §of 4-5 of the Connecticut Code of Evidence. See footnote opinion. Particularly dissenting disagree. given 11 of the We the absence of limiting attack the defendant on the substance of the trial court’s instruction, assumption notwithstanding, the dissent’s criticisms our is based contemporaneous evidentiary explanation ruling, on the trial court’s for its in which the court stated that the Rose evidence within “fall[s] exceptions generally precluding . . one or more . to the rule” the admission prior misconduct,” naming specifically intent, identity, corroboration of testimony, opportunity applicable crucial and element of the crime as the exceptions. had abused its dis- that the trial court determined probative value determining that the cretion concluding prejudicial effect, exceeded its [shooting] to the Rose testimony relating that “[t]he that would of evidence clearly category into the fits hostility. jury’s emotions unduly have aroused with criminal gun toting defendant as a painted It was not The evidence shooting people. proclivity Collins, supra, purpose.” that State admissible for that testi- Court also noted Appellate 743. The “[t]he at trial individuals was introduced mony of several of the testi- portion shooting. the Rose regarding for which the defendant mony relevant to the crimes prove which would that simply on trial was that produces shell gun had at some time owned he Hopkins’ on collar. that match the one found casings simply for the state to have been sufficient It would into the going evidence to that effect without introduce involvement with the details of the defendant’s [Rose Appellate Id. The Court then concluded shooting].” this evidence was harmful improper admission of required it to order a new trial for the defendant. and jury and fact report id. deadlock Id., 744; (noting see eyewitness crime, to the and the was no “[t]here only the defendant tangible linking and a casing fingerprint”). was the shell crime case, in this we conclude reviewed the record Having determined that Appellate improperly Court that the determining its discretion in the trial court had abused evidence that the defen- prejudicial that the effect of the Hopkins’ in had shot Rose with the same used dant unduly its value.19In murder did not exceed appeal Although decision in this certified is on the our focus Saucier, 207, 221, Appellate Court; see, e.g., State 283 Conn. 926 A.2d 633 prong uncharged (2007); misconduct on the second which focused prong inquiry, claim under the first of that we also address the defendant’s shooting inquiry, namely, relevant in this of the Rose was not that evidence dissent, argues Along that evidence of the Rose with the case. identity shooter, prove shooting as the the defendant’s itself is irrelevant determining prejudicial whether the effect of otherwise outweighs probative value, relevant evidence its we . . . may consider whether: the facts offered “(1) unduly jury’s emotions, hostility sympa- arouse the or thy, proof . . . the (2) pro- and evidence it answering may vokes will unduly create side issue that distract from the main . . . issues, (3) the evidence counterproof offered and the will consume an undue . . time, defendant, amount of . the no (4) having anticipate unfairly reasonable ground evidence, v. DeMatteo, meet it.” surprised unprepared 702-703, 443 A.2d 915 (1982). only First, evidence that described the Rose in detail was the defendant’s statement defendant, but concedes the relevance of evidence that the several months Hopkins’ murder, possessed weapon before and fired the in used this case. disagree, We and conclude that the trial court did not abuse its discretion determining that evidence of the defendant’s involvement the Rose shooting, using case, prove the same as was used in this was relevant to identity case, the defendant’s as the in shooter this as well as to corroborate Finney’s testimony evidence, to that effect. “Within law of relevance is very concept. tendency any a broad Evidence is relevant if it has to make any proceed- the existence of fact that is material to the determination of the ing probable probable more or less than it would be without the evidence. logical tendency . . . Relevant evidence is evidence that has a to aid the trier in the determination of an issue. . . . One fact is relevant to another one, if in the common course of events the existence of alone or with facts, other renders the existence of the other either more certain or more probable. . . . Evidence is not rendered inadmissible because it is not con- required support clusive. All that is is that the evidence tend to a relevant slight degree, long prejudicial merely fact even to a as it is not or [as] (Citation omitted; emphasis added; quotation cumulative.” internal marks omitted.) Bonner, 468, 496-97, v. (2009), State 290 Conn. 964 A.2d 73 dis- cussing definition, § Conn. Code Evid. 4-1. Given this broad we view the namely, distinction drawn and the defendant that between dissent— simple prior possession weapon, of the murder and its actual use in the shooting degree Thus, Rose one of rather than kind. as is reflected in —as Appellate case, analytical key particular Court’s decision in this to this evidentiary prong uncharged decision lies under the second of the miscon- test, namely, degree prejudicial duct to which the effect of the otherwise outweighs relevant evidence its value. his consent20 admitted with police, which was

to the See footnote 5 it as an act of self-defense. portrayed “[u]ncharged because This is opinion. significant of this unduly prejudi- held not evidence has been misconduct vicious evidentiary substantiation of the cial when the far charged, the defendant was conduct, with which prior of his mis- severity, in the character outweighed, State v. quotation marks omitted.) conduct.”21 (Internal id. Beavers, 405; (finding signifi- 290 Conn. see supra, admitted prior misconduct evidence cant “that or threat- only actual, the defendant’s claimed involved compared as property personal gain, for damage ened case, contem- present crime in the which charged to the person of a for financial plated killing the intentional Mooney, see also State 85, 131, 218 Conn. reasons”); subsequent crime, 588 A.2d 145 seriousness of the (“the robbery felony pales comparison in to the larceny, any way agreement ultimate We do not intimate in that the defendant’s evidentiary this claim. The defendant the admission of his statement waived per continuing objection made his to the admission of evidence clear taining shooting. to the Eose Appellate the evidence The dissent echoes the Court’s conclusion that “clearly category shooting in fits into the of the Eose offered this case jury’s hostility unduly that would have aroused the emotions and evidence painted proclivity gun toting as a criminal with a [because it] supra, App. people.” Collins, shooting 743. Acknowl shooting, edging “the not adduce details of the Eose and the state did death,” argues shooting the dissent nevertheless did not result Eose’s shooting, suggest that that “it is unreasonable to [Eose] case], just prior [shooting in did which occurred three months this prejudice.” Although agree give significant degree we not rise to certainly had some the evidence of the Eose adduced this case prejudicial effect, prejudicial undue or we do not view that effect to be standby proffered light of the alternatives the defendant’s unreasonable placing trial, namely, suggestion a that evidence be limited to counsel at particular city Bridgeport discharging at a location in the opinion. jury Even if the were an identifiable firearm. See footnote 13 of this simply gun having as fired his into the air somehow to view the defendant reasonably prior occasion, its on that the trial court could have exercised prejudicial find that alternative no less to the defendant’s discretion to responsible owner, image than his statement that he shot Eose as self-defense.

589 standing defendant was for which the charges murder L. 330, 112 Ct. 116 919, 502 U.S. S. denied, cert. trial”), Zubrowski, App. State v. 101 Conn. 270 (1991); Ed. 2d mis (2007) (uncharged 921 A.2d 667 379, 393, 395-96, past physically evidence of defendant’s conduct his wife admissible behavior toward verbally abusive appeal dismissed, case), intent in murder prove to denied, 555 U.S. A.2d 578 cert. 55, (2008), Conn. Thus, it L. Ed. 2d 663 1533, (2009). 129 S. Ct. any no direct evidence of that there was is significant notwith shooting, from the Rose arising conviction Finney acknowl statements to the defendant’s standing of that imprisonment because exposure his edging Henry, See State App. 169, 41 Conn. shooting. properly that trial court (1996) (noting 674 A.2d 862 testimony respect misconduct with prior admitted testimony fact of threat assault, but limited to sexual . . . any “without additional details and sexual assault informed that ruled that the would not be [and] of and incarcerated the defendant had been convicted crimes”). for other we find the trial court’s efforts

Second, significant prosecution have the admonish its witnesses was to be limited testimony shooting about the Rose only fact that there was a with no other shooting, day. of that We also note regarding details events that, request defendant, at the the trial court of references to assault charges directed the redaction labels on the that held the five bags on the evidence shell These actions are casings. signifi- Rose with which the court cant because “the care [trial] measures reduc- the evidence and devised weighed prejudicial finding effect militates ing against its quotation marks omit- (Internal abuse of discretion.” Beavers, supra, see id. ted.) 406; egregious that trial court excluded “most (noting . . . [including] misconduct prejudicial uncharged 590 financial

defendant’s comments about the benefits that family mother, would inure to his from the death of his portion the homicidal of his threat to former [his wife] early 1990s, prior in the and the arson see conviction”); Blango, also State v. App. 100, 111, 103 Conn. 927 A.2d 964 on trial court’s limitation of (relying uncharged only display misconduct evidence to defendant’s separate same in without gun incidents, detail, further in alleged case wherein victim that defendant threat compel ened her with her gun perform oral sex on him), denied, cert. 284 Conn. 933 A.2d 721 (2007).

Third, any we find in significant mitigating possible prejudice instructions; see 15 limiting footnote opinion; given this the trial court both during the testimony jury of relevant witnesses and the final during charge, presume jury which we to have in followed the absence of State contrary. indication to the v. Beavers, supra, State 407-408; 290 Conn. see also, e.g., v. Cutler, 977 314-15, A.2d 209 (2009) (emphasizing repeated delivery of limiting instructions trial and in final during charge that miscon- uncharged duct evidence was solely limited to proving defendant’s Mooney, supra, intent); 218 Conn. 131 (trial court’s balancing was not “abuse of injus- discretion or especially tice . . . light limiting instruction on given this issue”).

Finally, we find instructive decisions from numerous other federal and rejected state courts that have chal- lenges, prejudice, founded on undue to the use of misconduct uncharged cases wherein the offenses charged were committed the same using gun that the defendant prior had utilized in shootings.22 See disagree We with the defendant’s extensive reliance on an Indiana deci sion, Thompson State, supra, First, Thompson inapposite 690 N.E.2d 224. because it was not a case wherein the defendant had used the same previous crime, rather, to commit a but utilized evidence of the defendant’s prior shooting, during weapon involvement in a which he stole the murder charged. id., (noting used in the crime See that evidence of defendant’s prior shooting prove important involvement in was relevant “to an element of Higgs, supra, 353 F.3d 312 United States (evidence v. unduly prejudicial was not gun with same prior shooting which was dis weapon, the murder “placed it because found, and never in the Anacostia River posed of murders a short time before the hand defendant’s] [the necessary of proving function and, therefore, served his use of of the murderers and identity his as one State v. murders”); in connection with the the firearm Williams, 330, App. 2008) (admis 2d 334 (Fla. 992 So. eye robberies, of wherein uncharged sion of evidence testimony had established defendant as witness unduly when ballistics evi perpetrator, prejudicial not was used in weapon that “the identical proved dence People Brown, v. 13 armed robberies”); all three of the 145, 146, (2004) (evidence Div. 3d 786 N.Y.S.2d 55 App. proba same “was using highly crime uncharged and its value identity, tive of defendant’s [the] was mini any potential prejudice, which outweighed appeal limiting instruction”), court’s mized [trial] N.Y.S.2d 583 828, 676, 4 N.Y.3d 829 N.E.2d 796 denied, Lemons, S.E.2d 335, 352-53, 501 348 N.C. (2005); limiting mitigated 309 court’s instructions (1998) (trial identity rob prejudicial uncharged effect of evidence of testimony by gun, including beries same using and victim’s victim and of that crime scene photographs on other 527 U.S. 119 grounds, vacated injuries), Stokes, State 144 L. Ed. 2d (1999); S. Ct. 390, 406, S.C. 673 S.E.2d 434 claim (2009) (rejecting same involving misconduct evidence uncharged unduly prejudicial prove identity, admitted to gun, “ be a violent prove ‘might as offered to that defendant weapon [sjtate’s case —that had access to the murder [the defendant] pres- Moreover, Thompson distinguishable killings”). from the before the Supreme emphasized the volume ent case because the Indiana Court sheer unduly presented prior shooting, prejudicial evidence therein about the shooting, lengthy including murder conviction for that the defendant’s testimony “execution-style” recounting gruesome details of the nature of prior shooting. Id., 234^-36. may possess Sharpe, cf. State v. person gun’ ”);23 who rejected the defen- supra, (The 195 Conn. 659-60 court testimony that “extensive concerning dant’s claim purchase pistol subsequent of a and his defendant’s just prior theft was irrele- report shooting” its unduly prejudicial because “evidence that the vant acquired committing defendant had the means of evidence that would tend to render logically crime was probable more identification of the defen- [the victim’s] as his It tended also to corroborate the dant assailant. testimony at casings other direct that shell found probably scene of the came from a shooting type purchased by the defendant.”).

Thus, Appellate improp- we conclude that the Court erly analysis failed to defer to the trial balancing court’s in determining whether to admit evidence of the Rose shooting evidence, into as well as the trial court’s efforts prejudice to minimize undue that resulted from the It, admission of that misconduct uncharged evidence. therefore, ran afoul of our well established recognition of “the difficulties inherent in this balancing process permits . . . disturbance the trial court’s [which of] only decision . . . abuse of discretion is mani- whe[n] injustice appears fest or an to have been done. whe[n] by ... court, therefore, every On review this reason- presumption able should be in favor of the trial given ruling.”24 (Internal quotation court’s marks omitted.) 23 Higgs, supra, 312, The dissent contends that v. United States 353 F.3d Williams, supra, 334, People Brown, supra, App. v. State 992 So. 2d v. 13 146, Stokes, supra, 406, “inapposite” Div. 3d and State v. 381 S.C. are provide support” because, cases, “no for our conclusion herein in those responsibility prior acknowledged shooting “the defendant had not for the distinguishing is, however, . . . .” The dissent’s reliance on this factor over stated because none of the cited cases state that the defendant’s failure to responsibility prior acknowledge for the was even a factor analysis, controlling court’s let alone a one. dissent, Appellate Court, similarly like the fails to afford the trial evidentiary ruling proper deference, given court’s the well established discre tionary relevancy prejudice See, e.g., nature of the determinations. State Randolph, respect due, supra, Giving v. 284 Conn. 340. the dissent the it is Moreover, we 284 Conn. 340. Randolph, supra, v. State reliance, endorsed Appellate with the Court’s disagree 160 Conn. Mortoro, supra, v. defendant, on State App. 51 Conn. Dunbar, supra, 378, and State they did not inapposite since those cases are because in which the same prior misconduct involve evidence of charged.25 the offenses was utilized to commit weapon Appellate Court we conclude Accordingly, had abused that the trial court improperly determined should receive and that the defendant its discretion in this case. new trial applicable dictates affirmance of of review nevertheless standard evidentiary precisely ruling the reasonable nature because of trial court’s Sanchez, App. 576, See, e.g., disagreement. of our broader, may very (2002) (“If we well of review were A.2d 597 our standard [autopsy] photograph graphic the second [of that the nature of conclude supporting prejudicial value more than its limited victim] broad, rather is of review is not but instantaneous death. Our standard clearly The fact that we court abused its discretion. limited to whether the may photograph not mean was not relevant does be able to conclude that a persons might . otherwise.” . . conclude [Internal that other reasonable Indeed, quotation omitted.]). abuse of discretion standard reflects marks “the evidentiary specific rulings, which are made in the nature of the context position’ by ‘unique judge, to who is in a ‘[observe] heat of battle the trial evidentiary particular arise and who is therefore in which issues the context accompanying potential position weigh benefits and harms in the best to particular result, have been constructed evidence. As a rules the admission of application judge degree of those rules.’ some of choice in to allow the trial Law,’ Leonard, Responsibility L. in 63 S. Cal. Rev. Evidence D. 'Power'and Saucier, (Citation omitted.) (1990) 283 Conn. . . . .” State 956-57 J., concurring part). 207, 238-39, (2007) (Norcott, 926 A.2d 633 Mortoro, supra, (tape recording of defen Conn. 389-90 See State v. unduly robbery prejudicial planning at his conversation armed dant’s because, accessory charges being to contradict to narcotics sale trial on occurred, “it would have been that conversation never defendant’s claim only portion recording quite of the for the state to have offered sufficient Dunbar, supra, concerning narcotics”); relating to the conversation improperly App. (concluding refused to that trial court 51 Conn. 325-26 report portion police noting arrested that defendant had been redact painted day previous weapons charges the defen because that “evidence only by gun illegally carrying a one who flouted the law dant as a recidivist particularly day charge,” trial court because “the after his arrest on a similar jury evidence”). gave how it could use the no instructions to the as to

II We next address the defendant’s first alternative ground for affirming judgment Appellate of the Court, namely, that the trial court violated his constitu- tional rights process present to due and to a defense that “the instructing ultimate issue before you is not the thoroughness of the or the investigation competence police” of the but, rather, whether the state proved beyond “has a reasonable doubt that the defen- dant is on guilty one or more of the counts for which he is Before charged.” we consider the merits this claim, which the defendant acknowledges that he failed preserve by to request a written filing to or charge an taking exception to the given, instruction as we first must determine, however, whether, accordance with request, defendant’s it is pursuant reviewable State v. Golding, 239-40, 567 A.2d 823 We (1989). conclude that the defendant is entitled to Golding review of his claim, but also that the trial court’s instruction did not violate his right present a defense.

The record reveals the following additional relevant procedural facts and history. Prior to closing argu- ments, the trial court held a charge conference in cham- bers with all counsel. The defendant did not file a request prior to charge to the conference; the state filed request but charge, did not address therein the topic adequacy of the police investigation. The parties’ record and the briefs do not indicate whether or when the trial provided court parties copy with a of its draft in advance of charge the conference.

The following day, the trial court summarized on record the at the proceedings charge conference, noting specifically, alia, inter that “the court will allow in final argument the defendant police compe- concerning tency in not following up on the fingerprint for . . . to be competency and not limited to Berrios; that it’s culpabil- party third shape or form for any way, used in reviewing the court concrete, more make that ity. To there will indicate that jurors with the information the crime.” in this participant of another no evidence any had fur- defendant nor the prosecutor Neither summary the trial court’s objected or comment ther conference. charge of the defendant, alia, inter argument,

In closing his In police investigation. adequacy of challenged that, although state response, argued investigation, this cops “the botched” claimed that had inadequate. There- that it was was no evidence there you have jury: “Now, charged trial court after, the by counsel discussion of arguments heard in the course investi- thorough conducted a police whether the as to about the heard some discussion You have also gation. and gen- in this arrest. Ladies police competency opinion, a matter of be tlemen, question might this you and the before put has its evidence but the state investigation to make an was entitled defendant not you And, course, of before also. put his evidence on evidence put defense has only the state but also the defendant. on behalf of the the ultimate gentlemen, ladies and say you, “I the investi- thoroughness is not the you issue before ultimate police. competence or the gation the state .. . determine is whether have to you issue proved you has all the evidence light in the before guilty doubt that the beyond a reasonable defendant charged.” he is the counts which on one or more of for not take The defendant did added.) (Emphasis at trial. to this instruction exceptions unpreserved claim is undisputed that this It is “unless and, therefore, unreviewable appellate review error plain under the entitled to review the defendant is in v. Golding, [supra, doctrine or the rule set forth party 213 Conn. ... A . . . obligated is 239-40]. affirmatively request to review under these doctrines.” (Citation omitted; quotation internal marks omitted.) Cutler, supra, State v. 293 Conn. 324. Under Golding, however, prevail “a defendant can on a claim of consti- tutional preserved only error not at trial if all of the are following adequate conditions met: the record is (1) to review the claim alleged error; the claim is (2) of constitutional magnitude the violation of a alleging fundamental right; (3) the constitutional viola- alleged clearly tion clearly deprived exists and the defendant of a fair if trial; (4) subject analy- to harmless error sis, the state has failed to demonstrate harmlessness of alleged beyond constitutional violation a reasonable In any doubt. the absence of conditions, one of these the defendant’s claim will fail. appellate tribunal free, is therefore, respond to the defendant’s claim on focusing whichever condition is most relevant particular circumstances.” State v. Golding, supra, 239-40.

A beginWe with the state’s argument that the defendant waived his right Golding review unpreserved of his jury instruction claim when his trial counsel consented expressed to and satisfaction with the instruction. The state’s waiver claim requires apply us to the implicit recently waiver standard articulated State v. Kitch- ens, 10 A.3d 942 wherein (2011), we that, concluded “when provides the trial court counsel with copy proposed jury instructions, allows opportunity a meaningful review, for their solicits com- ments from counsel or regarding changes modifications affirmatively and counsel accepts pro- the instructions posed or given, may be deemed to have knowledge potential flaws therein and to have implicitly waived the constitutional right challenge Id., direct 482-83. appeal.”26 Noting the instructions on analysis rule, line we bright that this waiver not a not be to emphasized that “a defendant will deemed unless have claim the court waived [an instructional] the provided copy proposed has counsel with a of meaningful opportunity a review instructions and in any which can comment, given be determined only the record. The case a close examination of for review and meaningful opportunity of a significance (Emphasis comment be underestimated.” cannot n.28; see id. an on-the- original.) Id., (“[h]olding also conference, record and even counsel providing charge will copy instructions, with an of the not neces- advance sarily in all constitute of be sufficient cases to waiver Golding review if defense counsel has not been afforded to adequate circumstances, under the examine time, identify and to potential flaws”). the instructions trial con- present case, In the the court although which counsel had during ducted conference charge in the formulation of the opportunity participate an to on jury instructions, there no indication the record provided the trial court the defendant with an proposed jury Thus, copy charge. advance summary court’s of the conference although the trial 26 Kitchens, In we noted that the defendant had twice declined to file request request charge, charge along to be considered with the state’s to to subsequently charging and the trial court held two conferences. State conference, Kitchens, supra, Conn. 498-99. At the first appeal, raised issues to the and then that he not relevant claim on stated Id., conference, did not have issues to discuss. 499. At the second other days “any later, two defendant that he did have held confirmed not major prepared. Finally, Id. revisions” the draft that court had neither to charge exception given. an the defendant nor the state took to the as Id. record, Golding concluded, with We on that the defendant’s claims respect to the intent waived “counsel trial court’s instructions were because opportunities participate fashioning meaningful had several object any language instructions review and contained therein and to counterpart, prosecutor, repeatedly was able his because his to make Id., own views to the court.” 500. known topics namely, indicates that one discussed — quality police about the investi- closing arguments topic instructions now gation —related say appeal, certainty with challenged on we cannot meaningful opportunity whether the defendant had a to review the written instruction itself and to challenge any objectionable Thus, therein. we decline language Kitchens, implicitly to find this claim under waived Golding. pursuant will review its merits B State defendant, relying primarily Hernan on dez, 590 A.2d 112 and a New (1991), People Rodriguez, App. York v. Div. case, 382, 141 2d 318, appeal 529 N.Y.S.2d N.Y.2d denied, 1049, 72 531 668, N.E.2d 534 N.Y.S.2d 948 claims that the (1988), trial respect court’s instruction with to the adequacy of police investigation “destroyed the by defense [his] by consideration of it precluding and also conveying the judge’s impression worthy that his was not defense In response, consideration.” the state contends that this previously upheld in, instruction has been inter alia, Williams, State v. 169 322, 363 Conn. A.2d 72 (1975), and State v. Nieves, 106 Conn. App. 358, A.2d 40, 941 cert. denied, 286 Conn. 949 A.2d (2008), 482 argues that it was a to legally keep jury correct measure the from with being speculation, sidetracked and did not jury adequacy foreclose the from considering the police as it related investigation weaknesses in the against state’s case the We agree defendant. with the state and conclude that the challenged instructions did not the deprive defendant of right present his a defense. fundamental element of of law process due is the

“[A] right of a charged defendant with a crime establish a Where, defense. . . . here, jury as the challenged instructions a right, applica- involve constitutional is a reasonable is whether there of review ble standard its ver- juiy reaching was misled possibility issue, at charges particular In evaluating dict. ... charge rale that a the well settled must adhere to we read as entirety, in its to be considered jury to the rather than by its total effect whole, judged . test of a . . component parts. its individual [T]he fairly presents it is . . . whether charge court’s way injustice is not in such a jury case to the rales of law.” under the established party done to either J., State Nathan v. marks quotation omitted.) (Internal see also State 982 A.2d 1067 243, 261, (2009); 294 Conn. Ash, 493-94, (1994) (“[a] 651 A.2d 231 Conn. critically dissected jury to the is not to be charge inaccuracies of possible purpose discovering its rather as to statement, but it is to be considered them to a cor- upon jury guiding effect probable marks omit- quotation in the case” rect verdict [internal validity instructions “A ted]). challenge plenary of law over which presents question have] [we quotation omitted.) marks review.” (Internal A.2d 679 Singleton, 734, 746, (2009). conducted abstract, government “In whether the is not relevant professional investigation a thorough, the defendant commit jury must decide: Did to what the acquit instructed to offense? Juries are not alleged the investigation if the government’s inves professional superficial. Conducting thorough, case.” government’s is not an element of the tigation Burnett, Morris marks quotation omitted.) (Internal 540 U.S. denied, 1272 cert. 1254, (10th Cir.), 319 F.3d L. see also 284, (2003); 124 S. Ct. 157 Ed. 2d 198 909, testimony expert id., 1273 must show (defendant interview police investigation about deficiencies validity of complainant charge relates to of sexual abuse however, rely upon rele may, A defendant against him). lapses police investigation in the vant deficiencies or 600 specter doubt,

to raise the of reasonable and the trial by court violates his to a fair trial the right precluding jury considering from evidence to that effect. See Com v. Bowden, monwealth 379 Mass. 399 485-86, (trial improperly N.E.2d 482 court instructed (1980) jury not to consider of investigators’ failure perform to certain scientific tests when defendant’s presentation at trial raising focused on inference that “police had contrived much of him” against the case and he emphasized that failure “in order to call into question police of the integrity see investigation”); also Commonwealth v. Avila, 744, 767, 454 Mass. 912 N.E.2d may not (2009) (“a judge remove the issue faulty of a biased or police from investigation jury”);27 Peoplev. Rodriguez, supra, App. Div. 2d 385 (trial court denied defendant fair trial “eliminat[ing] jury’s from the consideration an essential element of defense,” namely, police testing yield that did not on fingerprints gun at issue).

Again, the defendant challenges the trial court’s jury instruction to the “that the ultimate issue before you is not the thoroughness or the investigation competence police. of the you ultimate issue have to . . . determine is whether the state in the light all you the evidence before proved beyond has a reason- able doubt that the defendant on guilty one or more of the counts for which he is charged.” We conclude that this instruction did jury not mislead the or violate right present defendant’s a defense because it jury did not direct the not adequacy to consider the may Although adequacy trial courts not remove the issue of the police investigation jury’s consideration, Massachusetts, from the trial judge give pursuant retains the discretion whether an instruction Bowden, supra, Commonwealth “advising 379 Mass. guilt finding reasonable doubt as to the defendant’s could arise from a adequately investigate (Citation that law enforcement failed to the crime.” Seng, omitted.) 490, 501-502, Commonwealth v. 456 Mass. 924 N.E.2d 285 (2010).

601 of the strength as it related investigation the specific aspects of the case, or not to consider state’s Rather, case.28 the instruction theory of the defendant’s portions parties’ arguments the of the highlighted adequacy police investigation, the of the addressed its task was to properly jury reminded the core of the guilty determine whether all the admitted offenses in charged light adequacy the of the trial, at rather than to evaluate v. Wil police investigation in the abstract. See State liams, supra, 169 and n.3 identical Conn. 335-36 (nearly jury the properly instruction “left the free to decide Seng, cf. Commonwealth v. 456 questions fact”);29 285 490, 502-503, (rejecting Mass. 924 N.E.2d (2010) jury specu trial to not to claim that court’s instruction “ ‘this real late about nonexistent evidence because is Inves program life and not television “Crime Scene [the ” trial violated defendant’s to fair tigation”]’ right 28 People Rodriguez, supra, App. v. 141 Div. The defendant’s reliance on Rodriguez, is, therefore, defendant, misplaced. In who had 2d the police, fleeing a revolver from the was convicted of criminal discarded while weapons possession. Id., During summations, had 385. defense counsel that, weapon, fingerprints “stressed since no were found on the recovered claiming could have defendant had the officers been mistaken [that the] testimony possession handgun,” corroborating of a thus the defendant’s jury possessed gun. trial court then the to he never Id. The instructed “ ‘[f]orget fingerprints, talking that’s not what we are about because ” “ here,’ nothing ‘[fingerprints and that have to do with the issues this ” Appellate Id. The concluded that instruction violated case.’ Division this right present fair the defendant’s a defense and a trial “in that it eliminated jury’s In from the consideration an essential element of the defense. other words, jury the trial court all told the not to consider evidence.” but [that] Rodriguez quotation omitted.) inapposite (Internal marks Id. because the present jury in the trial court case did not instruct not to consider theory arguments reject but, rather, defendant’s his case drew or investigation adequacy reminding issue of attention to the while guilt innocence. that the central issue in the trial was the defendant’s or 29 Nieves, supra, App. (nearly See also State identical 106 Conn. 57-58 proof or instruction did not dilute state’s burden of shift to defendant burden Tate, prove innocence); Conn. raise reasonable or his doubt 282, 287-88, denied, App. (same), cert. 761 A.2d A.2d 984 (2000). 602 “asperse

because it did not the defendant’s argument” adequacy about of forensic investigation). Moreover, notwithstanding the defendant’s arguments to the con- trary, the trial court’s phrased instruction was in neutral and language improperly did not disparage the defen- claims, dant’s or improperly or highlight endorse the state’s arguments and evidence. See State Hernan- v. dez, supra, 218 Conn. (“a 463 court must take care to improper avoid making remarks which are indicative of favor or condemnation . . . and must not indulge in an argumentative rehearsal of the claims of one side only” omitted; quotation internal marks omit- [citation ted]). Accordingly, we conclude that the defendant’s claim fails under the third prong Golding because the instruction did not violate right present his to a defense.

Ill Finally, we turn to the defendant’s second alternative ground for affirming of the judgment Appellate Court, namely, that the trial court failed to conduct a canvass that complied with the sixth amendment to the United States constitution,30 as well as Practice Book 44-3,31prior to § permitting represent defendant 30‘"rhg provides sixth amendment to the United States constitution part: prosecutions, eqjoy relevant ‘In all criminal right the accused shall ... to have the assistance of counsel for his defense.’ right applicable “The prosecu- sixth amendment to counsel is made to state process through tions the due clause of the fourteenth amendment. See Wainwright, 335, 342, 792, Gideon v. 372 U.S. 83 S. Ct. 9 L. Ed. 2d 799 (1963).” Diaz, n.9, State v. 274 (2005). Conn. 828 878 A.2d 1078 31 provides: permitted § Practice Book 44-3 “Adefendant shall be to waive right permitted represent to counsel and shall be himself or herself any stage proceedings, prior following appointment at of the either to or accepted only judicial authority A counsel. waiver will be after the makes thorough inquiry and is satisfied that the defendant: “(1) clearly right counsel, Has been advised of the to the assistance of including right assignment entitled; of counsel when so “(2) intelligence capacity appreciate Possesses the and the conse- quences represent oneself; of the decision to “(3) Comprehends charges proceedings, range the nature of the and permissible punishments, additional facts essential to a broad understanding case; of the unpre- trial. This claim is portions during himself State seeks review under and the defendant served on, alia, inter Golding, supra, Relying Conn. 239-40. A.2d 1000 T.R.D., (2008), Diaz, and State (2005), Conn. 878 A.2d 1078 of the right that his waiver the defendant claims intelligent and voluntary, knowing was not counsel “convey a realistic failed to: (1) because the canvass because it did what faced if convicted picture of [he] felony for the murder any punishment of give range not it used imprisonment’ ‘life and it did not define charge, concept of when the example explaining a misleading the fact that his sen- sentences,” including consecutive twenty- his be consecutive to tence in this case could “there the Rose year shooting; (2) five sentence from comprehended defendant is no evidence [the] or that he proceedings, of the or the charges nature necessary for abroad understand- enough knew of facts the new regard with case, especially of the ing trial felony robbery”; and and (3) of murder charges of the and dangers court did not advise the defendant self-representation. response, In disadvantages of proper court’s canvass was state contends that the trial knowledge defendant’s further thorough, and and the justice by familiarity with the criminal was informed his repre- system prior two trials wherein he was through as well as his work with counsel counsel, sented emphasizes The state also that present case. a life sentence respect with to the definition of omission to overstate only parlance length in common served sentence, and that Diaz and T.R.D. are possible of the canvass as a whole left because the distinguishable meaningful understanding with a exposure. We with sentencing agree of his magnitude of and that the trial court’s canvass the state conclude constitutionally adequate. defendant was self-repre- dangers disadvantages “(4) of Has been made aware of the sentation.” the following

The record reveals additional relevant procedural history. day jury facts and On the first selection, attorney the defendant’s advised the trial represent court that the defendant desired to At himself. time, the trial court advised the defendant strongly decision, and to “take the benefit” of his against appointed attorney. The defendant then elected to have attorney represent him purposes his selecting jury day. on that day jury

The next selection, the defendant’s attor- ney advised the trial court the defendant now represent desired to himself for the remainder of the trial, already including selection, had filed a pro appearance. se After again strongly advising the defendant against himself,32the trial court representing proceeded to canvass the defendant: Okay.

“The Well, Court: let me go through ques- some you. tions with Mr. Collins, how old are you, sir? Twenty-five. “[The Defendant]: you “The Court: How far did in school? go grade]. “[The Defendant]: [tenth your “The Court: Until you incarceration were employed, sir? Yes.

“[The Defendant]: your “The Court: And what . . . employment? “ [M]ystrongest The trial court stated to the defendant: recommendation you [proceed pro just many things is that not because there’s so that se] happen during appointed attorney] compe a trial that defendant’s as a [the suspect perhaps tent defense counsel knows how to react to. And I you you. you guide won’t know and I cannot I have to hold to the same competency acceptable question level of . . . terms of what’s a acceptable question you help during what’s not and I can’t at all the trial. you that, Do understand sir? Yes, sir.” “[The Defendant]: A home. nursing Defendant]: “[The you doing been had long And how “The Court: that, sir? year. Almost Defendant]:

“[The before? on trial you have ever been Now “The Court: Yes. Defendant]: “[The yourself represented ever you Have

“The Court: trial? before No. Defendant]:

“[The lawyer before your with you speak “The Court: Did yourself? represent you wanted you decided that Yes. Defendant]: “[The charges you understand

“The Court: Do you’re facing, sir? Yes. Defendant]:

“[The of murder charge is the charge The first “The Court: you intended prove have to and the state would that? you understand Do [Hopkins]. the death of cause Yes. “[The Defendant]: the mini- you’re if found guilty And that

“The Court: maxi- twenty-five years and the be penalty mum would just for that imprisonment life would be penalty mum that, sir? you Do understand crime. Yes. Defendant]:

“[The . . of . is that your charge And second “The Court: you acting . . . is that charge And that felony minder. crime of did commit the else alone or with someone crime or furtherance of said robbery and in the Do [Hopkins]. death of cause the therefrom did flight understand that? you Yes.

“[The Defendant]: “The Court: And that very that also carries a heavy ,. penalty which could be . . consecutive to the first you count. Do understand that? Yes.

“[The Defendant]: “The Court: may there Although jeop- be some double ardy issues . . . on that which in yourself representing you’ve got to bring up and I . . . I again, just don’t know . . . you’re how to be able going to do that. Maybe you . . . will be able to, but . . . there could be some jeopardy double issues with the second count and the first count. The third count robbery in the first degree you and that property stole certain from [Hopkins] and in the course of the commission of that crime of stealing property from [Hopkins] you or another participant was armed with a deadly weapon wit, a handgun. you’re That if found guilty of that you could be given twenty years. another youDo under- stand that? Yes.

“[The Defendant]: “The Court: And twenty years that that could be run consecutive to prior you counts. Do understand that, sir? Yes.

“[The Defendant]: you “The Court: Now understand what I mean consecutive? It means I put could at twenty-five one years forty years or twenty years add more for the robbery, sixty-five years. you Do understand that? Yes.

“[The Defendant]: “The Okay. Court: you And still represent want to yourself, sir? Yes.

“[The Defendant]: with you . . . familiar Okay. Are “The Court: criminal cases? which procedure govern rules Yes. Defendant]: “[The of evi- with the rules you Are familiar

“The Court: to criminal cases? apply which dence Yes. Defendant]: “[The evi- the rules of that you Do understand

“The Court: when even procedure apply the rules of dence and without the assistance yourself you’re representing counsel? Yes. Defendant]:

“[The I give cannot you Do understand “The Court: defense? your conducting advice you legal Yes. Defendant]: “[The you say you understand what

“The Court: Do of an the outcome the trial can affect during and do you in the event remedy any postconviction appeal or found guilty? are Yes. Defendant]:

“[The competent that a you Court: Do understand “The training the skill and attorney possesses . . . trained issues, your to assess protect rights and to defend pros- and weaknesses strengths to understand the to evi- objections case, appropriate to make ecution’s of conviction the record in the event dence, preserve you . . . appeal and otherwise purposes [d]o that, sir? understand Yes. Defendant]:

“[The possess you . also you Do . . feel “The Court: skill? experience training that kind of Yes. Defendant]: “[The you lay person “The Court: Do understand that aas you’d be at a and significant disadvantage face obvious dangers yourself? in representing Yes.

“[The Defendant]: you you “The Court: Do understand that have a right to counsel under the federal and state constitution^]? you that, Do understand sir? Yes.

“[The Defendant]: “The Court: you And that have the have an right to attorney represent you you if are unable to afford an attorney? you Do that, understand sir? Yes.

“[The Defendant]: “The you any Court: Do have questions your about representation yourself? of No.”

“[The Defendant]: The court then found that “the defendant answer questions of ing appears the court competent to waive counsel and that his waiver is and knowingly intelligently voluntarily and made.”33 The trial court appointed then attorney defendant’s former to serve 33Following recess, findings, abrief the trial court elaborated further on its stating: gave questions “Based on the answers that me to the [the defendant] clearly right ... I’msatisfied that he has been advised of his to have counsel. intelligence capacity appreciate consequences That he has the and of represent comprehends the action that he has decided to himself. That he charges, range permissible punishment the nature of the and understanding other additional facts essential to a broad of the crime. I robbery, twenty years. . . . don’t think I mentioned on the There’s five years nonsuspendable on that subsection are or nonmodifiable and has [he] dangers disadvantages self-representation. been made aware of the and going He decided that he wants to do this himself. I’m to also order that leg prosecutor] his shackles be taken off and that [the [the defendant] panel Okay, Collins, will both address the from in back of their desk. Mr. you your questions you’ll prosecutor] when ask be in back of the desk. [The thing.” will be . . . ordered do the same 44-434and see Practice Book standby counsel; §§ as his understanding the defendant’s 44-5;35 and confirmed him if present be to assist standby counsel would the defen explained then The trial court requested.36 necessity as the process, as well selection dant practice, the rules of courtroom following decision this is a good him “I’m not sure again: informed you it and the to make right made. You have you’ve you’re as self-representation long as have the for right you can lose then disruptive court not [because] the court and you removed from I can have right. that you that, I . . . fear you. without But the trial continue and don’t well things go . . . back if know, you’ll look that. I have done you know, maybe shouldn’t say, boy, you strongly and if feel your . . choice But . it’s do certainly have the to it, you right about enough you to advantages just significant are such it. There evidence, have rules. Rules of you know, we because, upon them enforcing . . . I’ll be procedure of rules on enforcing I’ll be them same extent you to the 34 permitted provides: “When a defendant has been § Book 44-4 Practice may judicial authority counsel, proceed of the without the assistance to compli expected long appoint standby counsel, especially or in cases to be special public multiple or defendants. A defender or in which there are cated only standby may appointed if defendant public counsel the defender be as appointment qualifies General Statutes indigent of counsel under for is authority, extraordinary judicial except 51-296, that in circumstances § discretion, may appoint special public for a defendant who defender in its indigent.” not 35 by defendant, requested provides: “If to do so § Practice Book 44-5 procedural standby legal and the defendant as to counsel shall advise may objection by defendant, counsel also such matters. If there is no authority’s judicial the defendant. to matters favorable to attention call the presentation interfere with the defendant’s Such counsel shall not request.” may only upon give case and advice go [standby that he “can counsel] trial court advised the defendant you you court unless want will offer advice to the advice if want. He not you to, . . . available to the him he can make him And he—if want to. you to him in the trial. as it comes out information that is favorable court you. you representation. It’s and he is It’s not both of is not But this [dual] standby counsel.” if prosecutor]. you do, So this is what want to we’ll [the ... ... you it, very let do but I feel strongly it’s your your not best interests. But that’s . . . sir. call, We’ll have a short recess so that we can bring down jury panel jury and then we’ll start selection.” The represented defendant then himself for the remainder day selection37 until the first of evidence, after testimony of the first responding Bridgeport police officer, testimony and the direct examination of Gal Standby a detective. lagher, represented counsel then the defendant for the trial, remainder of the commenc with ing the cross-examination of Gallagher. We begin that we noting agree with the defendant unpreserved this claim pursuant is reviewable State v. Golding, supra, Conn. 239-40, because, under the first two prongs Golding, the record is adequate for review and the claim is of constitutional conclude, dimension. We however, that the defendant’s claim fails under the third prong Golding because the trial court’s thorough canvass of the pro- defendant tected his sixth amendment right to counsel.

“We with begin applicable standard of review. We review the trial court’s respect determination with to whether the defendant knowingly voluntarily and elected proceed pro to se for abuse of . . . discretion. Recognizing implications constitutional attendant Golding to review, we do not review the proceedings for strict compliance with the prophylactic rule of Practice Book 44-3, but rather for § evidence that the waiver of counsel was made and knowledgeably voluntarily. legal during The state notes that the defendant took numerous actions time, including asserting potential juror challenge pursuant this a to a to Batson Kentucky, (1986), 476 U.S. 106 S. Ct. L. 90 Ed. 2d 69 and moving charges ground to dismiss the on the that the statute under which charged enabling he was lacked an clause. self-representa- to right

“The to counsel and right A mutually alternatives. criminal present exclusive tion interest in constitutionally protected a defendant has be exercised the two cannot each, rights but since must choose between simultaneously, a defendant counsel ceases competent When the to have right them. waiver, the of self- right result of a sufficient as the way, a defen- . . . Put another representation begins. self-representation to properly right dant exercises his repre- right his by knowingly intelligently waiving . . . sentation counsel. adopted was in order to

“Practice Book § [44-3] in a criminal case of a defendant implement right a court attorney .... Before trial to act as his own counsel, waiver of it must may accept a defendant’s [44-3], in accordance with order inquiry § conduct an waive satisfy that the defendant’s decision to itself . . . made. knowingly intelligently counsel simultaneously inquiry triggers Because the § [44-3] represent himself constitutional of a defendant to right waiver of the constitutional right and enables the cannot counsel, provisions of § defendant [44-3] more than is constitu- require anything be construed to . . . tionally mandated. need not himself have the skill and defendant

“[A] competently and intelli- experience lawyer of a order self-representation Rather, choose .... gently to affirmatively literate, record that shows [he] and that he was volunta- competent, understanding, and sufficiently sup- informed free will rily exercising his inquiry . . that must ports a waiver. . The nature of has to substantiate an effective waiver be conducted in various fed- explicitly been articulated decisions . . appeals. eral courts of . stands for the authorities, however,

“None of these specifically must be proposition that defendant particular informed of the elements of the crimes waive and permitted before counsel charged being proceed pro comprehension se. . . . of each [P]erfect charge appear element of a criminal does not to be necessary to a of a and finding knowing intelligent ... A waiver. discussion of elements may crimes would be be one of charged helpful, the factors involved in the ultimate determination of whether the defendant understands the nature of the charges description him. A of the elements of against not, however, qua the crime is a sine non of the defen- dant’s constitutional in rights Indeed, this context. our approved cases we have of a defendant’s assertion of the right proceed pro se in a case in which the affirmatively record did not disclose that the trial court explained specific charged elements of the crimes as long defendant as the defendant understood the nature of the crimes . . . charged. analysis

“The multifactor 44-3], Book § [Practice therefore, is designed to assist the court in answering two questions: first, fundamental whether a criminal minimally defendant is competent to make the decision counsel, to waive and second, whether the defendant actually voluntary made that decision in a knowing, fashion. ... As the intelligent Supreme United States recently Court recognized, questions these two are sep- arate, with the former logically antecedent to the latter. . . . competence Inasmuch as the defendant’s is uncon- tested, proceed we to whether the trial court abused its discretion that the concluding defendant made the waiver decision in a voluntary, and knowing, intelligent fashion.” (Citations omitted; quotation internal marks State D’Antonio, omitted.) 658, 709-12, 877 A.2d 696 (2005).

We conclude that the trial court’s extensive canvass prior of the defendant his proceed pro election to se was a model canvass that afforded him the constitu-

613 protections tional to which he was entitled. The trial clearly multiple court advised the defendant times of his right assigned counsel, to and him to exercise urged in right light self-representation, dangers including responsible cautions that he would be held applicable with all complying procedural and evi dentiary rules,38 and that his trial during actions adversely subsequent appellate postcon could affect or viction remedies. The trial court then reminded the attorney defendant that a trained requi would have the site skill protect to better while training rights his trying Thus, his case. canvassing defendant, the trial court satisfied its responsibility critical of cau the defendant tioning potentially about the disastrous consequences pro se. proceed to electing Webb, 238 Conn. 389, 430, 680 A.2d 147 see also (1996); State Frye, 224 253, Conn. 261, 617 A.2d 1382 (1992) (“the trial court must fulfill duty explain prob its to self-representation lems of person to a not trained the law”); United v. Fore, States 169 F.3d 104, (2d 109 Cir.) properly Court (District advised defendant that “a proceed pro choice to se was devastating and entailed near-certain cert. conviction”), denied, 527 U.S. 119 S. Ct. 144 L. Ed. 2d 783 (1999).

Moreover, we with disagree the defendant’s con- tention that the canvass did not adequately inform him of his sentencing exposure, mistakenly since he could 38 disagree that, Frye, We with the defendant’s claim under State v. 253, 261, (1992), Conn. 617 A.2d 1382 the canvass was deficient because “explain the trial court did not it was vital that defendant know [that] [the] especially how to regard cross-examine witnesses and know about the rules ing prior statements,” given already inconsistent the fact that this case had Frye distinguishable because, case, been tried once. in that there was virtually ostensibly, improperly, no canvass at all because the trial court required prior permitting concluded that one was not hybrid representation. id., 255-57; id., undertake (noting See see also obligated point painful legal “the trial court was not out in detail the arguments strategic present subsumed within this decision” of “whether to drug dependency”). “ was in the imprisonment’ ‘life have concluded sixty years.” and not forty forty-five years, of range seeking a defendant that, canvassing is well settled It self-representation, a trial court his of right to exercise pen of criminal apprise possible range must him of exposed. See, he is e.g., or to which punishments alties differently, State v. 274 Conn. 711. Put D’Antonio, supra, constitutionally canvass is one that leaves a valid appreciation period with a “meaningful defendant charges he if convicted of the of incarceration face[s] T.R.D., supra, That State v. 286 Conn. 206. he face[s].” be made with mathematical exac explanation need not a “realistic titude, as it leaves the defendant with long so United States v. exposure. of his picture” sentencing Fore, require 108; (declining 169 F.3d see id. supra, hypothetical to “inform defendant about judge trial year when sentence that 125-year prison sentence” ten with explained sentencing guide court was consistent twenty-seven only his sentence was lines and actual eveiy see also id. discussion of months); (“detailed component potential punishment of a could allowable duty detract from the trial court’s to inform defendant self-representation upon could have of the effect State trial, rights defenses”); his imminent his Gaston, App. 218, 233-34, 860 (2004) 86 Conn. A.2d 1253 that consecutive could warning sentencing court’s (trial spend prison rest of fife in cause defendant adequate explanation potential of range penalties), denied, (2005); cert. 273 Conn. 867 A.2d 840 Porter, App. 477, 501-502, 76 Conn. 819 A.2d 909 . practice require rules of do not . . (noting “[t]he precise satisfy itself that the defendant has a the court to and conclud of the maximum sentence” understanding explain exposure period that failure to additional ing twenty-one improper months did not render canvass twenty- when trial court had made defendant aware year period [emphasis in cert. exposure original]), three denied, (2003). 826 A.2d 181

In view, our there is no doubt that the trial court’s adequately conveyed canvass to the defendant the grav- ity of the significant sentencing exposure faced, that he that, if he were including to be convicted of either felony murder, murder or the trial impose court could twenty-five year a minimum sentence, and then add on twenty years robbery consecutive sentence of for the differently, count. Put it is clear from the context of the entire canvass that the trial possible court’s mention of twenty-five forty year or sentences on the murder in counts, twenty year exposure addition to a on the robbery count, were possi- illustrative of the of gravity by ble sentences faced defendant, plainly and were cap not a exposure. on his Although the canvass did specifically not define the meaning of the term legal “life imprisonment,” that omission is rendered inconse- quential by virtue of the fact that the common under- standing of the term “life” in the context of imprisonment, “a namely, imprisonment sentence of for the remainder of a life”; convict’s Merriam-Webster’s Dictionary Collegiate (10th Ed. is even 1993); more than grave statutory definition imprisonment, of life provides which for a sixty years “definite sentence of . . . .”39General Statutes 53a-35b.40 § 39Thus, Diaz, supra, disagree with the defendant’s reliance on State v. we 832, inadequate because, 274 Conn. wherein we concluded that a canvass was despite charges pending against the trial court’s reference to “the the defen Very ‘big prison dant as substantial’ and to the defendant’s cases as time cases,’ provided guidance those comments no real to the defendant with respect prison exposed,” namely, fifty to the actual time to which he was years, particularly juxtaposition plea bargain in to the offered of fifteen years. concluding, may utility In so we noted that terms have some “[s]uch aiding convey consequences by in the court to the serious faced a defendant expresses proceed pro se, but, they standing alone, who a desire to are far imprecise satisfy requirement too nebulous and the constitutional range permissible punishments.” Id., 832; defendant be advised of the of T.R.D., supra, accord State (deficient 286 Conn. 205-206 canvass did any explanation potential year not reveal exposure). one to five provides: imprisonment § General Statutes 53a-35b “A sentence of sixty years, life shall mean a definite sentence of unless the sentence is imprisonment possibility release, imposed pursuant life without argu- with the defendant’s

Moreover, disagree we also explain the sentenc- failure to the trial court’s ment that rendered the felony murder itself options for ing felony simply is murder inadequate. Because canvass see murder; committing method of an alternative A.2d 285 803-804, (2001); Cator, provision; see sentencing the same subject trial court’s canvass 53a-35a;41the General Statutes § any way ill-informed or leave the defendant did not faced the risk that he convey to the defendant fail to event behind bars of his natural life the rest of conviction. the defendant’s characterization reject

We further respect explanation to its canvass, particularly with and the dan robbery felony charges, murder any way per self-representation, as in inherent in gers in a detailed functory. engaged The trial court allegations and the of the information explanation charges. to the elements of therein that related any request confusion or express did not defendant and at point, at explanation charges of the further of the trial court’s understanding indicated his all times himself in this representing repeated statements Thus, a idea. he cannot poor trial was indeed criminal from “protect rely Practice Book 44-3 § on [himself] warning heed the court’s failing in poor judgment his people most con something oneself is representing Caracoglia, idea”; State App. v. 95 Conn. sider a bad 922, Conn. 901 denied, cert. 278 95, 114, 895 A.2d ample prior especially light in of his 1222 (2006); A.2d impris- 53a-46a, (g) shall be in which case the sentence of section subsection natural life.” the remainder of the defendant’s onment for 41 any felony part: provides “For § in relevant General Statutes 53a-35a imprisonment July 1, 1981, shall be the sentence of on or after committed by (1) fixed the court as follows: and the term shall be a definite sentence possibility imprisonment capital felony, without the of of life a a term For imposed with section in accordance a sentence of death release unless twenty- felony murder, 53a-46a; not less than (2) A of term for the class years . . . .” more than life five nor justice experience system, including with the criminal represented two trials at which he was counsel— namely, shooting trial, the Rose and his first trial and pretrial proceedings given all this that there case — opportunity is no indication that he lacked the com Thus, municate with his counsel. the trial court could . . . “appropriately presume that defense counsel explained the nature of the detail.” offense sufficient 537, 480 A.2d 435 Gethers, State v. (1984); Diaz, supra, cf. State v. 274 Conn. 832 n.14 (concluding support presumption that “the record does not apprised by the defendant had been counsel of the range possible penalties that he faced if convicted” because represented by only briefly “the defendant was counsel never, reflects, insofar as the record in connection with except purposes the narcotics for bond charges Frye, supra, only”); Conn. 262 defen (noting expressed dant’s attorney’s dissatisfaction with his level “ preparation they and fact that had talked ‘no more [twenty] than minutes at the most’ ”).

Thus, we cannot conclude that the trial court abused its discretion in that the determining defendant’s waiver of his to counsel was right knowing, intelligent and voluntary. The record plainly indicates that the defen- dant what he and his choice doing “kn[ew] [was] [was] eyes made with open.” (Internal quotation marks omit- California, Faretta ted.) 806, 835, U.S. 95 S. Ct. L. 2525, 45 Ed. 2d 562 (1975).

The judgment Appellate Court is reversed and the case is remanded to that court with direction to affirm the trial judgment court.

In opinion KATZ, this ZARELLA VERTEFEUILLE, McLACHLAN,Js., concurred. PALMER, J., majority’s I with the dissenting. disagree that, contrary conclusion to the determination of the 618 Collins, is not defendant, Ricardo Court, the

Appellate improper admission trial due to the to a new entitled I Specifically, believe evidence. prejudicial highly that the determined properly Court Appellate that the permitted when it harmful error committed trial court that the testimony establishing introduce the state to that in an incident Stephen shot Rose defendant had of the prior shooting three months occurred namely, Hopkins.1 Calvin present case, in the victim was entitled to that the state undisputed it is Although had gun of the possession prove the defendant’s the circum- shooting, Rose under used in the been no reason legitimate the state had presented, stances actually had used that the defendant to adduce evidence Furthermore, Rose. to shoot gun any purpose. other was not relevant shooting Rose that the Appellate with the Court I also agree Because evidence con- admission of the improper court’s trial of a deprived the defendant shooting the Rose cerning respectfully I dissent.2 trial, fair facts summary of the relevant I with a brief begin dispute a verbal with history. Following procedural a nine 2002, the defendant removed Rose on August and fired four from his waistband handgun millimeter was pavement standing. near where Rose shots into the the ensu- physical and, during became The altercation shot that struck the defendant fired a fifth scuffle, ing Five shell upper casings in his arm. lodged Rose and were recovered at the scene. from the defendant’s Appellate that evidence of the Rose Court concluded far value of that evidence was because the minimal inadmissible Collins, danger prejudice. outweighed See of unfair explain fully hereinafter, (2008). App. 730, 732, A.2d 986 As I more any may lacking probative value because evidence also be viewed as event, wholly case. In either contested issue it was irrelevant however, inadmissible. the evidence was Appellate Court, judgment I need not I would affirm the Because grounds for affirmance. address the defendant’s alternative Thereafter, 2002, city Bridge- on in the of 2, December person in fatally was the head a port, Hopkins shot police a nine handgun. millimeter wielding had shell from that that casing shooting retrieved Hopkins’ police the unable collar, on but were lodged immediately following murder in weeks to solve that the shooting. the January,

In 2003, Bridge- the defendant contacted the port police shooting involving confessed in Rose but claimed that he had acted self-defense. The that he the police gun defendant also told the had sold shortly to an for person after unknown shooting $300. During police, his interview course of with the questioned Hopkins the defendant also was about the murder. The defendant that he with admitted had been in Hopkins Hopkins’ of night car on December purpose of denied purchasing drugs for but Hopkins in Thereafter, involvement murder. testing casing ballistics on the shell recovered from Hopkins’ collar and on testing casings similar shell recovered from the scene the Rose estab- of shooting in lished that the bullets each of incidents used those fired had been from the same nine handgun. millimeter was ultimately The defendant convicted of offenses of out the Rose and also arrested arising for Hopkins. and tried the murder At the defendant’s first in the Hopkins case, trial the state evi introduced dence defendant establishing had shot Rose purpose that the demonstrating defendant Hopkins had used the same connection with the trial, however, jury ultimately murder. In initial reported that it was hopelessly deadlocked, and the trial court declared a Thereafter, mistrial. Hopkins

was tried second time for the murder.3 At trial, felony charges murder, At the second the defendant faced murder robbery degree. the first to evidence sought the state introduce trial, again that in shooting. involvement the Rose of the defendant’s was him- defendant, representing the time The who at any testi- objected evidence, that self, claiming that he Rose would mony the fact had shot concerning “clearly prejudicial” prejudice and that such “highly be probative The defen- any possible value. outweigh[ed]” the no need to further maintained that state had dant him to purpose linking that evidence for the present that had in the Rose because shooting been used gun already possessing the defendant had acknowledged to shooting when he confessed Rose.4 gun objection, The trial court overruled defendant’s under 4-5 concluding that the evidence relevant § prove intent, of the Connecticut Code Evidence5 to opportunity. a also crime, an element of The court value out- probative concluded that the of the evidence any prejudice of unfair under 4-3 of weighed danger § court, of Evidence.6 trial the Connecticut Code 4During colloquy an the same in which the defendant himself raised objection Rose, to the evidence shot state’s use of that he had standby spoke support objection. in In defendant’s counsel also of that those remarks, standby properly that the state introduce counsel indicated could person identifying evidence the defendant as who fired those shots but improper present establishing that it would be for the state also to evidence injured that one of those shots had struck and Rose. provides of the in relevant Section 4-5 Connecticut Code Evidence part: crimes, wrongs prove “(a) Evidence of or inadmissible to other acts crimes, wrongs person or inadmissi character. Evidence of other acts of a is prove person. the bad character or criminal tendencies of that ble crimes, wrongs “(b) When evidence of or acts is admissible. Evi- other crimes, person purposes wrongs of other or acts of a admissible for dence specified prove intent, identity, (a), than those such other subsection as to malice, motive, scheme, accident, plan common or absence of mistake or system crime, knowledge, activity, an of criminal or element of the or prosecution testimony. . . .” corroborate crucial provides: Section 4-3 of the Connecticut Code of Evidence “Relevant may by danger outweighed be if value is excluded its prejudice issues, misleading surprise, or of unfair confusion or delay, presenta jury, waste of or considerations of undue time or needless cumulative tion of evidence.” instruction with

however, limiting gave Although use of the evidence.7 respect proper to the con- adduced evidence testify, did not the state Rose wit- several other shooting through the Rose cerning who firearms examiner nesses, expert an including was used to fire the bullets testified that the same Hopkins and the murder. in both the Rose that the defendant After the state adduced evidence consented to the state’s Rose, had shot that he had given introduction of the statement he had shot Rose acknowledged in which he police In that state- claimed that he did so self-defense. but that he had sold the ment, the defendant also claimed shortly after that incident. used in the Rose gun instructions, jury the com- the court’s Following jury deliberations, which the twice during menced its reach a to the court that it could not communicated verdict as to one of the counts of the infor- unanimous occasions, the court instructed mation. On both such the second jury deliberating, and, the to continue on occasion, jury Chip the court a Smith instruc- gave jury subsequently guilty tion.8 The found the defendant charged. as actually limiting gave that the trial court 7 I note that the instruction initially jury precisely does not mirror the reasons that the court offered particular, support was In of its conclusion that the evidence relevant. jury purposes jury which the the court instructed the that limited [for “[t]he intent, of of a could consider the evidence on the issues element were] expressly jury opportunity.” that it crime or The court also instructed the could not consider the evidence that the defendant had shot Rose as “evi any tendency dence of bad character of the defendant” or as “evidence [of] part on his to commit criminal acts.” purpose [Chip prevent hung “The instruction is to Smith]

by jurors attempt agreement. part urging the to reach It is a settled of jurisprudence .... Better than other statement ... it Connecticut necessity, hand, unanimity jurors among makes clear the on the one any verdict, duty by and on the other hand of careful consideration jurors juror opinions . . . .” each of the views and of each of his fellow O’Neil, omitted; quotation omitted.) State (Citation internal marks 49, 60, (2002). Conn. 801 A.2d 730 appeal Appellate Court,

On improperly inter that the trial court had claimed, alia, establishing allowed the state to introduce evidence that he had shot Rose and that the state’s use of that deprived had him a fair trial. v. Collins, App. 730, 737, 961 A.2d 986 He (2008). asserted, specifically, probative “that the value of evi- injured dence that he had shot and Rose did not over- prejudice defense, come the risk of to his even with instruction hmiting given court. He further may although it have been that assertfed] produced he once owned a gun casings shell Hopkins’ collar, match the one found on the fact that he shot Rose with that irrelevant to proving ” anything for which such evidence would be admissible. entirety Id. The state maintained that the of the Rose evidence, including the fact that the defendant had shot Rose, prove identity was relevant to and motive.9 principles

After forth the setting 4-3 and 4-5 of §§ the Connecticut Code of Evidence, Appellate Court expressed agreement defendant, its with the explaining: testimony “The to the Rose relating [shooting] clearly fits into the of category evidence that would have unduly aroused the [jurors’] emotions and hostilities]. painted It gun as a criminal with toting proclivity a people. The shooting evidence was not admissible for purpose. that See Code 4- Evid. § [Conn. 5]---- testimony

“The of several individuals was introduced at trial the regarding portion Rose shooting. testimony relevant to the crimes for which the defen- 9 appeal Appellate Court, On to the the state contended that the defendant’s responsibility shooting for the Rose was relevant to establish a motive for Hopkins murder, namely, that the defendant had been on the run and unemployed shooting, robberies, since the Rose and had resorted to includ ing robbery Hopkins, support of himself. The state raised this claimed admissibility ground appeal Appellate of for the first time on Court.

623 prove which would simply trial was that dant was on produces that gun at some time owned that he had Hopkins’ found on that match the one casings shell simply for the state have been sufficient collar. It would into effect without going evidence to that to introduce involvement with the of the defendant’s the details Collins, State v. omitted.) Rose.” [shooting (Citation of] “the concluding After that App. 111 Conn. 743. supra, from the admission prejudice resulting of unfair danger probative value”; its outweighed that evidence far of concluded that the Appellate Court also id., 732; demonstrating of had satisfied his burden defendant and that he therefore impropriety was harmful that the 744. Id., was entitled to a new trial.10 granting our appeal following On to this court Appellate that the Court certification, the state claims proved that concluded that the evidence improperly was inadmissible. In defendant had shot Rose that the that the evidence was particular, the state contends and, motive in addi- identity to establish relevant testimony Kimberly Finney, tion, to corroborate the had inmate whom the defendant confided allegedly an and the his involvement in the Rose about testimony explaining portion relevant to the crimes In “[t]he simply prove that which would for which the defendant was on trial was produces casings shell that he had at some time owned collar”; Collins, supra, Hopkins’ match the one found on App. 743; Appellate suggesting be that evidence of the Court seemed to Court, however, repeatedly Appellate shooting itself was irrelevant. The probative prejudicial outweighed that the effect of that evidence its stated id., prejudice resulting (“the danger of unfair from the admis value. See probative shooting] outweighed far its sion of the Rose [the] [of id., testimony [concerning shooting] value”); (“the the Rose would have unduly prejudiced jury, probative minimal”). value was These while its Appellate concerning value Court the minimal statements shooting, coupled concerning the Rose with the court’s of the evidence balancing §of 4-3 of the Connecticut Code of reliance on the standard evidence, minimally Evidence, although reflect the court’s view that the prejudice probative, danger unfair that was inadmissible because of the posed it to the defendant. men

Hopkins murder while the two were incarcerated at the correctional center. The state together Bridgeport that, contrary further maintains to the conclusion of Appellate Court, reasonably the trial court deter- probative mined that the value of the evidence establish- ing the defendant had shot Rose its outweighed potential unfair prejudice. The defendant contends that the Appellate correctly Court concluded that the prejudicial effect of the outweighed its mini- mal value. Alternatively, asserts that evidence of the Rose was irrele- shooting vant and, therefore, case, inadmissible. In either defendant claims that the trial court’s admission of the evidence was harmful and that a new trial therefore required.

In presented by the issue resolving appeal, this majority Appellate states as follows: “The Court’s deci sion did not address the first prong of the uncharged inquiry misconduct (b) 4-5 of the Connecticut § [under Evidence], Code of appearing assume, but without specifically trial indicating, properly court had determined that evidence that the defendant had shot Rose with the [gun] same that was used to murder Hopkins was relevant under either of the corroboration identity exceptions or set forth in . . . .11 (b) 4-5§ that, although expressly jury 11 Inote the trial court instructed the only purpose evidence of proving the Rose was relevant for the intent, crime, opportunity, majority an element of a or asserts that the Appellate “appear[s] Court that the evidence “was [have] assume[d]” identity exceptions” relevant under either of the § corroboration or of 4-5 (b) that, colloquy of the Connecticut Code of Evidence. It is true in a with concerning admissibility evidence, counsel the trial court did prove identity state that the evidence was relevant to and to corroborate testimony, purposes. Thereafter, however, as well as for other in its instruc jury, expressly jury’s tions to the court limited the consideration of the intent, opportunity.” evidence “to the issues of element of crime or In view of the fact that the trial court informed the that the evidence was only, presume, relevant as to those issues and those issues I see no reason to majority does, Appellate as the that the Court assumed that the evidence purposes, prove identity. was relevant for other such as corroboration or to on the analysis focused Appellate Court’s Rather, 4-3 of the Connecticut of the test prong § second [under ‘that the the defendant’s claim Evidence], and Code of Rose did not shooting of evidence of the probative value limiting even with the prejudice, the risk of overcome further asserts that by the court. He instruction given owned that he once may probative it have been although that match the shell casings shell produced gun fact that he shot Hopkins’ collar, the found on casing necessary prove any not with that gun Rose Collins, supra, the state’s case.’ State element of proceeds explain then App. majority 742.” The Conn. improperly deter- view, Appellate “the Court why, its its discretion in trial court had abused mined that the effect of the evidence prejudicial that the determining with the same the defendant had shot Rose unduly exceed its Hopkins’ murder did not used majority rejects so, value.” In probative doing that the evidence was defendant’s threshold contention inadmissible, concluding and therefore irrelevant prove “was relevant the defendant’s the evidence case, in this as well as to corrobo- identity as the shooter Finney’s testimony to that effect.” Footnote 19 of rate majority opinion. fully hereinafter, the trial court explain As I more permitted present the state to evidence of improperly that evidence was not rele- the Rose because Even if prove any vant to fact at issue in the case. relevant, however, it was may that evidence be deemed Appellate explained, as the Court because, inadmissible may have had was minimal value that it prejudice. for unfair potential far its outweighed whether the evidence is viewed as irrele- Furthermore, minimally relevant, the state’s use of that evi- vant or it to a new trial because dence entitles the defendant’s due prejudicial was so as to violate trial. process to a fair right majority’s Before conclusion that the addressing properly permitted present trial court the state to evi firmly dence of the Rose I first note the shooting, estab principles materiality lished of relevance a govern Except provided review of that conclusion. as by the state and federal constitutions, state statute or the Connecticut Code Evidence, of relevant evi “[a]ll is .... dence admissible Evidence that is not relevant is inadmissible.” Conn. Code Evid. 4-2. “Relevant evi § any dence is evidence tendency to make having existence of fact that is material to the determina tion of the proceeding probable more or probable less than it would be without the evidence.” (Internal quota State Hedge, tion marks omitted.) 621, 635, 1 A.3d 1051 (2010). Thus, is not rendered “[e]vidence inadmissible because it is not conclusive. All that is required is that the support evidence tend to a relevant fact even to a slight degree, prejudi as it long is not [as] merely cial or (Internal quotation cumulative.” marks Bonner, omitted.) 290 Conn. 468, 497, 964 A.2d 73 (2009). previously As this court noted, has “[e]vi dence is only prove admissible to facts, material say, directly is to those facts probative issue or those issue; matters in evidence prove offered to other facts is immaterial.” (Internal quotation marks omitted.) DiLieto v. County Obstetrics & Gynecology Group, P.C., 265 Conn. 79, 106, 828 A.2d 31 (2003). respect With to the issue of materiality, is if immaterial “[e]vidence objector tempted respond what,’ ‘so ‘who ” cares,’ or ‘that is not in issue.’ C. Tait & E. Prescott, Connecticut Evidence (4th 4.1.3, p. Ed. 2008) § 136.

Furthermore, of a defendant’s -uncharged “[e]vidence misconduct prove is inadmissible to that the defendant committed the charged crime or to show the predisposi- tion of the defendant to commit crime. charged . Exceptions . . to this rule have been recognized, how- ever, to render if, misconduct evidence admissible iden- intent, prove evidence is offered example, the activity or system of criminal malice, motive, a tity, evi- whether ... To determine of a crime. elements exception within an falls prior misconduct dence we have admission, its prohibiting rule general First, . . . the evi- analysis. adopted two-pronged one to at least and material must be relevant dence exceptions. by the encompassed circumstances of the must out- value of such Second, other crime evidence. effect of the prejudicial weigh evi- misconduct uncharged . the admission . . Since trial within the discretion a decision dence is every presumption reasonable will draw court, we . will reverse . . We ruling. trial court’s favor of the discre- it has abused its only when court’s decision trial quotation injustice (Internal has occurred.” tion or an Cutler, 303, 311-12, omitted.) marks A.2d 209 (2009). dispute does not the defendant indicated, As I have in Rose used the gun of the possession the fact that his he shot issue of whether is relevant to the shooting Indeed, in of the state’s Hopkins. light and murdered was used in both gun the same indicating that evidence had a legitimate that the state inarguable it is shootings, in the gun used the defendant linking interest also of that connection proof because Rose Hopkins in the murder.12 the defendant implicates whether appeal, however, is not presented by this issue adduce permitted the state to properly court the trial prior possession defendant’s the concerning evidence rather, shooting but, the Rose at the time of gun of the the defendant’s properly overruled whether the court prior possession essence, demonstrating defendant’s In evidence identity weapon that evidence insofar as is relevant to establish the murder words, perpetrator. identify In evidence other the defendant as the tends to possessed gun occasion, used that, prior that was the defendant on a Hopkins implicates it demon him in that murder because murder in the weapon. murder his access to the strates objection to evidence that the defendant establishing actually shot Rose. Ordinarily, when, present as in the case, the state’s against case includes evidence that the a weapon defendant used in the com- mission crime, of the and the state place can weapon in the hands of the defendant during his com- prior mission of a crime, the defendant will not acknowledge having prior committed the In crime. such circumstances, only way prove the state to possessed defendant on the earlier occasion present is to establishing defendant’s com- mission of that prior crime. prior Because that crime evidence generally is a vital element proof of the state’s that the accused, anyone as distinguished else, from guilty the crime charged, likely the court is to con- clude that the risk prejudice unfair from arising the state’s use of that evidence is outweighed by its probative Indeed, value. the cases on which the majority support relies in of its conclusion that the value of the evidence concerning the Rose shooting outweighs prejudicial its squarely effect fall into this category, is, each case, such evidence of the prior possession defendant’s weapon was critical to the state’s case, and, because the defendant had not acknowledged possessing weapon in the commis- sion of a prior crime, the state was entitled to adduce evidence of the commission of that prior prove crime to the defendant’s prior possession of the weapon. See, e.g., United States v. Higgs, 353 F.3d 281, 290-93, 311-12 (4th Cir. 2003), denied, cert. 543 999, U.S. 125 S. Ct. 627, 160 L. Ed. 2d 456 (2004); State Williams, 992 v.

So. 2d 330, 332-34 (Fla. App. People v. Brown, 2008); App. 13 Div. 3d 145, 146, 786 N.Y.S.2d 55 (2004), appeal denied, 4 828, N.Y.3d 829 676, N.E.2d 796 N.Y.S.2d 583 (2005); State v. Stokes, 381 S.C. 390, 404-406, 673 S.E.2d cf. State v. 434 Lemons, 348 N.C. 335, 351-53, (2009); 501 S.E.2d 309 (1998) (although defendant admitted prior crime possession weapon, evidence of prior vacated on prove identity), grounds, to other admissible 144 L. 2363, (1999). U.S. 119 S. Ct. Ed. 2d 768 those contrary majority, the assertion the Thus, to majority’s no for the conclusion provide support cases present case, in the the defendant confessed because, Rose, never police he had shot and he has to the that accuracy of validity the or that confession. challenged disputed that he words, In other he never has the fact acknowledgment shot Rose. Because the defendant’s necessarily shot also constitutes an that he Rose was possessed that he acknowledgment gun simply used in that there was no basis for shooting, permit present to state to evidence of court reason, itself. evidence of that shoot- For that any disputed in the case. ing was irrelevant to issue inadmissible; see Conn. Because irrelevant evidence subject no reason such 4-2; Code Evid. there is to § 4- prescribed by standard balancing § determining 3 of the Connecticut Code of Evidence for probative be whether evidence should excluded due United States prejudicial See, effect. overriding e.g., its be Figueroa, (2d 618 F.2d Cir. 1980) (to rele- admissible, prior evidence of misconduct “must be disputed vant to some issue in the trial”). Alternatively, may that, be evi argued although it Rose dence that the defendant shot was relevant prove possession the defendant’s used value of shooting, probative that evidence evidence, namely, minimal because other uncontested estab the defendant’s confession to the Rose shooting, Indeed, definitively. majority lished that fact as the Appellate rele notes, appears Court assume the however, vance of the Rose shooting, concluding, minimal value was far its outweighed its Collins, potential prejudice. for undue See supra, 111 Conn. When is viewed App. 732, 743. the issue perspective from the that the but, evidence was relevant only under the circumstances presented, so, marginally Appellate correctly the Court concluded, contrary the determination court, of the trial that the risk of prejudice unfair posed substantially that the evidence outweighed slight probative its value. majority

The nevertheless concludes that the trial properly court determined that the evidence was rele- vant and probative that its value poten- its outweighed tial for unfair prejudice. majority’s conclusion is unsupportable. respect

With to the issue of relevance, majority reasons that, “[wjithin the law of evidence, relevance very is a broad ... concept. All that is required is that support evidence tend to a relevant fact even to a slight degree, long prejudicial as it not merely or [as] cumulative. . . . Given this broad definition, we view the distinction drawn the defendant and the dis- namely, that simple prior between possession of sent — the murder weapon, its actual use the Rose one of rather degree than kind. Thus . . . —as analytical key particular to this evidentiary decision lies under the second prong of the uncharged miscon- duct test, namely, the degree prejudicial which the effect of the otherwise relevant evidence outweighs its value.” (Citations omitted; emphasis in original; quotation internal marks omitted.) Footnote majority of the opinion.

In asserting that the evidence of the Rose shooting was relevant, only albeit to a “slight degree”; (internal quotation marks omitted) footnote 19 of majority opinion; majority does not address the defendant’s claim that the merely evidence was cumulative —and therefore inadmissible —in light fact that proof, state’s which was uncontested by defendant, established that the defendant confessed having pos- Specifi- shooting. of the Rose at the time gun sessed the why, in of the explains light never majority the cally, gun defendant linking the undisputed improp- Appellate the Court shooting, in used the Rose reason legitimate had no that the state erly concluded itself. Instead shooting the Rose evidence of present relied improperly Court why Appellate the of explaining court had in that the trial reasoning concluding on that prove the state to permitting in abused its discretion the Rose, majority ignores the defendant shot that the state’s use of evidence between the critical distinction the state’s use hand, the one fact, on proving possessed that the defendant establishing of evidence Indeed, the in that on the other. shooting, used gun in the record reviewed majority that, “[hjaving states improp- Appellate that the Court case, this we conclude had abused its dis- that the trial court erly determined effect of the prejudicial that the determining cretion with the defendant had shot Rose evidence that unduly murder did not Hopkins] used in same [the The added.) value.” probative (Emphasis exceed its majority simply justify reversing judgment cannot without and resolv- Appellate considering of the Court provides primary which basis issue, ing defendant’s Court’s decision and for the Appellate appeal. state’s opposition to the explain why evidence of the Rose Despite its failure to majority needlessly cumulative, not shooting was properly the trial court nevertheless concludes evidence, of the that the value determined preju- for unfair potential exceeded its slight, however of the Rose that “the evidence Although conceding dice. effect”; certainly prejudicial . . . had some majority majority opinion; gives footnote conclusion that the evidence four reasons for its persua- None of these reasons unduly prejudicial. not sive of the fact that the light evidence was both inflammatory and served no legitimate purpose. majority’s support first reason in of its determina- tion is the fact that the state did present not detailed evidence of the Rose and that that incident Hopkins less serious than the murder. it Although is true that presented the state could have more extensive evidence about the Rose shooting, which, of course, would have been even prejudicial more if Rose had not survived the Appellate as the shooting, Court observed, testimony relating to the Rose [shooting] clearly “[t]he fits into the category of evidence that would have unduly aroused the [jurors’] emotions and hostilities] . painted . . the defendant as a tot- [because] [i]t ” ing criminal with a proclivity for shooting people. State v. Collins, supra, 111 Conn. App. 743. Even though state did not adduce details of the Rose shooting, and the shooting did not result in Rose’s death, it is unrea- sonable to suggest that evidence of the shooting, which just occurred prior three months Hopkins to the mur- der, did not give rise to a significant prejudice. risk of The mere fact that the evidence could have been more prejudicial support does not the contention that it was only minimally prejudicial. majority

The next significant the trial court’s “findfs] efforts to prosecution have the admonish its witnesses testimony about the Rose shooting was to be only limited to the fact that there was a shooting, with no other details regarding day.” events of that For purposes of performing the balancing required under 4-3 of the § Connecticut Code of Evidence, this con- tention has no significance independent of the first rea- son that majority support advances in of its con- clusion. majority’s third basis for the conclusion is the

limiting instruction that the trial gave court

633 the Rose for which purpose restricted concerning The court’s admitted. had been shooting con majority’s supports a factor that instruction is serve generally instructions because such clusion evi prior misconduct prejudicial effect minimize G., v. James 382, Conn. 397- State 268 See, e.g., dence. acknowledged, this court has A.2d 810 As 98, (2004). invariably flows from the prejudice that however, the State v. see, e.g., is high; of such evidence admission State A.2d 45 DeJesus, 418, 473, (2008); 288 Conn. and, Jones, (1995); 662 A.2d 1199 234 Conn. when limiting must instruction give the court although 1-4; Evid. there are so; to do Conn. Code requested § instruction is insuffi limiting in which a circumstances E.g., of the defendant. protect rights cient to A.2d 911 Wright, 273, 278-79, (1986) not have by trial court could given instructions (limiting jurors would infer that defen likelihood that eliminated previously he of crime because guilty charged dant was see also Conn. misconduct); in similar had engaged possibil commentary 1-4, (contemplating Code Evid. § adequately protect “will not ity that instruction limiting has recognized This court also rights parties”). predisposition a probability jury inferring that “the of a stands the crime with which the defendant to commit when the evidence increased charged logically [of similar to prior pertains to misconduct misconduct] trial such evidence that involved in the case on because lay jurors on to believe that pressure creates inevitable this probably did it before he did so if [the defendant] omitted.) marks quotation time.” (Internal quite are Jones, supra, Thus, prior 345. “when crimes tried, preju a being high degree similar to the offense value and a strong showing dice is created admissibility.” necessary (Internal to warrant would be Griggs, State Conn. quotation omitted.) marks case, the present In the 116, 141, (2008). 951 A.2d 531 prior misconduct, alleged shooting involving gun, very similar to the conduct for which the defendant considerations, was on trial. These with the vio- along prior misconduct, lent nature of the defendant’s alleged undermine whatever effectiveness limiting the court’s instruction otherwise have had.13 might

Finally, majority relies on “decisions from numer- rejected ous other federal and state courts that have challenges, prejudice, founded on undue to the use of uncharged misconduct evidence in cases [in which] offenses charged were committed the same using gun that the defendant had utilized in prior In shootings.”14 fact, as I explained previously, have those decisions provide support majority’s no for the In conclusion. cases, present each of those as in the case, prosecut- ing authority had sought prove that the defendant had committed another crime with the same was used in the offense for which the defendant was on trial. Moreover, in each of cases, those as in the present case, state had a strong legitimate inter- est that the demonstrating person same who had committed the other crime also committed the crime for which the defendant was on trial. In contrast to the present case, however, all but one of cases, those the defendant had not acknowledged responsibility for prior and, only in the shooting, case in which the limiting hardly 13 Ialso note that the trial court’s instructions were a model clarity, and, fact, likely confusing helpful of in the instruction was more than jury. particular, jury, elaboration, to the In the court told the without further shooting purposes that it could consider the evidence of the Rose determining “opportunity” proof “intent” or or as of an “element of a crime explanatory . . . .” At least in the absence of some additional comments by court, limiting the I do not see how the court’s instruction would have provided guidance respect proper to the with to its use of the evidence demonstrating that the defendant had shot Rose. 14 majority Higgs, supra, The cases that the cites are: United States v. 353 312, Williams, supra, 330, People Brown, supra, F.3d State v. 992 So. 2d v. App. Lemons, supra, 13 Div. 3d State v. 348 N.C. and State v. Stokes, supra, 381 S.C. 390.

635 crime, other admit involvement the defendant did an altogether crime was admitted under evidence of that Lemons, supra, N.C. theory. See different admit- prior properly misconduct 351-53 (evidence Thus, cases, in those evidence). crime signature ted as prosecution’s the use present case, in contrast to the link necessary was to prior of the misconduct evidence used in the the that had been gun necessary to link the proof of which was crime, other being used in the case tried.15 gun defendant to the therefore, completely inapposite are cases, Those prior case, shooting in which evidence of the present wholly unnecessary gun to link the defendant to prior that he used on that occasion.16 similarity case, present fact, In that bears the most the one case supports namely, Thompson State, (Ind. 1997), the conclu 690 N.E.2d permitted Appellate improperly Court that the trial court sion of the Thompson, defendant, present shooting. In state to evidence of the Rose id., Jerry Thompson, charged K. was with two counts of murder. See 227-28. Thompson, prove sought against to introduce evidence To its case the state weapon, handgun, he the murder in the course of commit that had stolen ting approximately Id. The trial court a different murder one month earlier. surrounding allowed the to adduce evidence of the circumstances state Thompson’s handgun, including evidence of his involvement in theft of the id., Following Thompson’s earlier murder. See 231-32. and conviction of the appealed, alia, prior conviction, claiming, the evidence of the he inter that unnecessary unduly prejudicial. id., See 233-37. In murder was both reversing Thompson’s conviction, Supreme Court of Indiana concluded that, generally although was entitled to how and when the state establish unnecessary, Thompson weapon, and there had obtained the murder it was prejudicial testimony improper, highly fore for the state to have elicited the prior Id., Thompson, present murder. 236-37. As in the state in the about the every prove possessed gun right had that the defendant had case shooting, but, proof was used in the Rose because of the Rose unnecessary prior possession completely was to establish the defendant’s prejudicial improper. gun, the state’s use 16 majority prejudicial asserts that the effect of the evidence was The also suggested light at trial not “undue or unreasonable” of the alternative standby counsel, namely, proof the state’s be limited the defendant’s prior showing discharged had on a occasion. to a that the defendant majority opinion. majority reaches this conclusion Footnote 21 of the appreciable difference in the on the basis of its contention that there is no prejudicial demonstrating that the defendant once had effect of evidence sum, absolutely

In because the state had no need to purpose adduce evidence of the Rose for the shooting the defendant in linking gun the used that shooting, properly the evidence is characterized as either irrele- needlessly however, vant or cumulative. The majority, completely to address that concluding fails fact properly the trial court determined probative that the value of the challenged outweighed prejudi- its Indeed, majority simply cial effect. the ignores that aspect despite of the test balancing having acknowl- edged probative the value the slight evidence in rejecting defendant’s claim that the evidence was and, therefore, irrelevant Moreover, inadmissible. as the Appellate Court explained, evidence that the defendant just had shot Rose three prior Hopkins months prejudicial murder was highly to the defendant because jury of the likelihood that the would view the defendant as a person propensities, with violent including pro- a pensity for shooting people. See State v. Collins, supra, In App. circumstances, is, 743. such when evidence is devoid of value and its potential prejudice for unfair is great, the evidence nec- opposed discharged gun demonstrating as to evidence that the defendant actually person, namely, my view, majority had shot another Rose. In reality equating prejudice blinks at the nature and extent of the attendant discharge gun to the innocent of a and the intentional of another. Indeed, significance many, most, of this distinction is self-evident: if not gun discharged gun, exceedingly gun owners have whereas few owners person any reason, intentionally. ever have shot another let alone More- over, any possible prejudice arising establishing out of the evidence merely discharged gun had would have minimal been jury because the court would have instructed the that it could not consider any purpose that evidence for other than to demonstrate the defendant’s possession gun. essence, jury required of the In would have been presume entirely discharge innocuous, that the innocent or difficulty following an instruction that the would have had no in view of the fact that there would have been no evidence at trial adduced even suggest contrary conclusion. No such instruction could have ameliorated prejudice demonstrating associated with evidence that the defendant had at fired and struck Rose.

637 of the with 4-3 § in accordance essarily is inadmissible even if the evi- Indeed, Code of Evidence. Connecticut relevance, slight to have some may be deemed dence value probative maintains, its minimal majority as the by prejudicial effect.17 its clearly outweighed is on contention contrary to the state’s Moreover, was not admissi- shooting of the Rose appeal, evidence Finney’s to corroborate motive or prove ble either to the state respect motive, argues to testimony.18 With shooting, in the Rose his involvement that, because of police, and he to evade the trying was steady successfully maintaining while could not do so 17 proper to majority afforded deference that I have not maintains admissibility evidentiary ruling concerning Rose the trial court’s admissibility pertaining are course, rulings of evidence shooting. Of shooting of the Rose deference. Because evidence to substantial entitled potential value, however, for lacking and because its was so reasonably have prejudice great, could not so the trial court unfair was shooting. In such circum permitted evidence of that the state to adduce ruling stances, it because proper cannot save to the trial court’s deference reject obligation to eviden relieve this court of its deference does not such tiary rulings that are unreasonable. 18 ordinarily shooting Although would be relevant of the Rose identity in the sense that such evidence of the defendant to establish the opinion; perpetrator; I identify 12 of this see footnote him as the tends majority’s suggestion was admissible disagree that the evidence with the majorify opinion identity. prove signature 17of the See footnote as a crime to purpose, accompanying the factual “To be admissible for and text. uncharged charged must be suffi crimes shared characteristics logically unique signature ciently it as to be like a [so that] distinctive guilty he must be of one inferred that if the defendant is [crime] could be Snelgrove, quotation omitted.) (Internal State v. guilty marks of the other.” required Thus, (2008). more 954 A.2d 165 “[m]uch class. The device used fall into the same than the fact that the offenses signature.” (Internal be like a and distinctive as to must be so unusual 348, 354, Ibraimov, quotation omitted.) Conn. 446 A.2d marks Hopkins (1982). were shot with the fact that Rose and Aside from shootings. unique gun, nothing those two unusual or about same there is according apparent; example, important fact, are dissimilarities In certain shooting proof, and the motive for for the Rose to the state’s the reason absolutely Consequently, completely Hopkins it is different. murder were signature as a was not admissible evidence of the Rose clear that identify. proving purpose crime for the job; consequently, the defendant was unemployed, and, support himself, he resorted to robbing people, among them, Hopkins. may it Although possible be trace the unemployment defendant’s to the Rose shoot- the fact that ing, employed the defendant was not undisputed, unemployed and it was his status that alleg- edly caused him to turn to robberies as a means of support. Thus, the state would have difficulty had no in establishing the defendant’s need money, for and thus his motive for robbing and shooting Hopkins, without evidence of the Rose shooting. Indeed, even if it is proof assumed that required of motive evidence that the defendant was police on the run from the when Hopkins murdered, was why there is no reason state could not have established that fact without use highly prejudicial evidence relating to the Rose shooting. Thus, evidence of the Rose was not shooting necessary prove motive and, therefore, not admissi- ble for that purpose.

The state’s claim and majority’s unsupported assertion that the evidence was admissible to corrobo prosecution rate the testimony Finney in accordance with 4-5 (b) § the Connecticut Code of Evidence also lacks merit.19 “Other crimes only evidence ... is admissible for purposes corroborative ... if the cor roboration is direct and the matter corroborated sig is nificant.” quotation State v. (Internal marks omitted.) Mooney, 218 Conn. 85, 129, 145, 588 A.2d denied, cert. 502 U.S. 919, 112 S. Ct. 116 L. Ed. 2d 270 (1991); see also United States v. Mohel, 604 F.2d 748, 754 (2d Cir. 1979) (applying identical standard). Thus, other wise inadmissible prior misconduct evidence that directly only portions corroborates those of a witness’ testimony that are themselves irrelevant and inadmissi- 19 majority merely asserts, conclusory The fashion, that evidence of Finney’s testimony. the Rose was admissible to corroborate majority, provides however, explanation support no its assertion.

639 purposes neither nor significant ble is direct See, Llera, exception. e.g., corroboration 969 A.2d App. 343-44, (2009). Conn. shot present case, In the evidence testimony effect, Finney’s Rose, including evidence that the defendant Thus, itself inadmissible. merely because Rose “is not rendered admissible shot equally inadmissible statement it corroborates another supra, Mohel, States v. subject.” on the same United was not Furthermore, 754. the corroboration 604 F.2d only that direct because the evidence corroborated Finney’s testimony relating to the Rose shoot- aspect of which was to the issue of whether ing, irrelevant supra, Hopkins. Llera, defendant murdered See State App. crimes (rule “[o]ther . purposes . . . is . . for corroborative admissible . . if the is the matter [only] . corroboration direct and . meaningless . . would be significant corroborated merely if it was because evidence of another satisfied tendency a the testi- general crime had corroborate mony about coincidentally of a witness who testified quota- omitted; unrelated internal [that crime]” [citation Finney Finally, proof might tion marks omitted]). witness a concerning have been truthful on the stand wholly hardly matter unrelated to the crimes at issue “is jurisprudence].” within the ‘significant’ meaning [our 755. Mohel, supra, Thus, United States evidence could not have been used the defendant shot Rose Finney’s testi- the state to corroborate inadmissible mony to that same effect.20 shooting highly state also that evidence of the Rose “was contends helped jury it how became because understand suspect Hopkins] Although frequently will be murder.” state [the permitted came attention of the to demonstrate how an accused police, right nothing affords the to do so. there is in our law that state unimportant Indeed, generally case. In the such evidence the state’s case, absolutely get present into that there no need for the state to aspect investigation, and, evidence to whatever limited extent such jurors’ curiosity, any appealed might interest have to one or more

Finally, agree Appellate I with the Court that the trial improper prejudicial highly court’s admission of the concerning evidence the Rose was not harm supra, App. less. See v. Collins, State 744. proper determining “[T]he standard for whether an evidentiary ruling erroneous is harmless should be jury’s substantially swayed by whether the verdict was Accordingly, . the error. . . a nonconstitutional error appellate is harmless when an court has a fair assurance substantially that the error did not affect the verdict.” (Citation quotation omitted.) omitted; internal marks (2009). v.Beavers, 290Conn.386, 419, 963A.2d956 Appellate succinctly explained, As the Court “[t]he jury hung defendant’s first trial resulted in a and a Similarly, mistrial. in the trial that [his resulted in con viction] . . . the twice indicated that it was dead eyewitness locked .... There was no to the crime, only tangible linking and the the defendant to casing fingerprint. the crime was the shell and a Given strength say the overall of the state’s case, we cannot that we have a fair assurance that the error did not substantially supra, affect the verdict.” State v. Collins, impropriety 744. Because the was not harmless, the defendant is entitled to a new trial. respectfully

Therefore, I dissent. STATEOF CONNECTICUTv. RANDALLBROWN

(SC 17891) Rogers, J., Norcott, Katz, Palmer, Vertefeuille, C. Zarella and * McLachlan, Js. may using the state purpose vastly have had in the evidence for that outweighed potential high prejudice. its for unfair * justices listing seniority reflects their status on this court as argument. of the date of oral

Case Details

Case Name: State v. Collins

Court Name: Supreme Court of Connecticut

Date Published: Jan 5, 2011

Citation: 10 A.3d 1005

Docket Number: SC 18297

Court Abbreviation: Conn.