Opinion
In addition to responding to the state's claims, the defendant asks us to consider, pursuant to Practice Book § 84-11 (a), numerous alternative grounds on which to affirm the judgment of the Appellate Court. In particular, the defendant contends that the trial court improperly (1) admitted into evidence, over his relevance objection, testimony by Kemorine Parker about a conversation she overheard between the defendant and Taylor while they were passengers on the bus shortly after the commission of the home invasion, (2) admitted into evidence, over his hearsay objection, certain testimony by Dennis Minott, the driver of the bus, indicating that Taylor had asked him for a tissue upon boarding, (3) determined that defense counsel had asked a question of a police detective that invited an answer otherwise barred by Crawford v. Washington , supra,
The Appellate Court's opinion aptly sets forth the following facts and procedural
"When the defendant and Taylor fled the victim's residence, the defendant was in possession of property belonging to the victim, specifically, cash and a shoe box. At 3:24 p.m., the victim attempted to dial 911 on his cell phone but he was unable to do so and dialed '922' instead. He perished on his kitchen floor from a gunshot wound in the area of his left chest. A neighbor of the victim, alerted to the sound of uncharacteristically loud music, fighting, gunshots, and pleas for help originating from the victim's residence, called 911 at 3:25 p.m. By 3:30 p.m., the police arrived at the scene, where they discovered the lifeless victim.
"Immediately upon leaving the victim's residence, the defendant and Taylor proceeded to a nearby bus stop that was one-tenth of a mile from the crime scene, from which, at 3:22 p.m., they boarded a bus that transported them to downtown Hartford. At this time, the defendant was carrying a backpack that contained the cash and a shoe box. [Upon boarding, Taylor asked Minott for a tissue.] A fellow passenger, [Parker, then overheard] Taylor comment to the defendant that Taylor had been bitten by a dog, and the defendant was overheard remarking that '[i]t was a big dog.' Images of the defendant and Taylor running toward the bus stop were captured by a video surveillance camera located at a nearby convenience store, and images of the defendant and Taylor while they were on the bus were captured by a video surveillance camera located on the bus. In the video from the bus, the defendant appears to remove cash from his backpack and appears to hand something to Taylor from his backpack.
"By disseminating to the public some of the still images of the defendant and Taylor from the surveillance
The state subsequently charged the defendant with, inter alia, felony murder, home invasion, conspiracy to commit home invasion, burglary in the first degree, and robbery in the first degree. Id., at 582,
The defendant appealed from the judgment of conviction to the Appellate Court, raising numerous claims, including an unpreserved claim that his constitutional right to present a defense had been infringed by the trial court's conditional evidentiary ruling with respect
I
We begin with the state's claim that the Appellate Court improperly concluded that the trial court had violated the defendant's sixth amendment right to present
"On December 6, 2012, the court heard oral argument on the motion in limine.
"Following additional oral argument related to the issue on January 7, 2013, the court ruled that ... it would permit the state to present evidence of Taylor's statement to the police that he had sustained a bite wound. The state argued that the statement was relevant to one or more issues in the case in light of the evidence of the 'big dog' comments made by the defendant and Taylor on the bus, shortly after the shooting.
"On January 8, 2013, outside of the jury's presence, the state called Taylor to the witness stand. Despite being ordered to do so by the court, Taylor refused to answer any questions posed to him concerning the events underlying the trial. The court held Taylor in contempt and sentenced him to six months incarceration.
"On January 9, 2013, the court revisited its ruling to admit evidence of Taylor's statement that he had sustained a bite wound. At this juncture, the court disallowed
"Later, Olson testified that he interviewed Taylor on July 16, 2009, [and] observed injuries on Taylor's hands, and [that] the injuries [were photographed]. The photographs were admitted into evidence. During his testimony, Olson testified: 'He appeared to have a bite mark on his wrist and some lacerations on his other hand.' The defendant objected to Olson's testimony. The court, noting that the testimony
"In addition to Olson's testimony and the photographs depicting Taylor's injuries, the state presented evidence that was relevant to the issue of Taylor's injuries from ... Minott, the operator of the bus on which the defendant and Taylor were passengers on June 30, 2009. Minott testified that one of the two black males who got on his bus at Main Street and Brewer Street asked him for 'a tissue,' [from which it could be inferred that Taylor needed to tend to a wound ] .... [T]he jury also heard evidence related to a bite injury from Parker, who described the conversation that she overheard on the bus." (Emphasis altered; footnotes added and omitted.) Id., at 602-606,
On appeal, the Appellate Court acknowledged that the defendant's constitutional challenge was unpreserved and reviewed it pursuant to the bypass rule of State v. Golding ,
On appeal to this court, the state claims that the Appellate Court improperly concluded that the trial court violated the defendant's right to present a defense by imposing a condition on its decision to preclude the statements to the police by Taylor that were otherwise barred under Crawford.
"It is fundamental that the defendant's rights to confront the witnesses against him and to present a defense are guaranteed by the sixth amendment to the United States constitution.... A defendant's right to present a defense is rooted in the compulsory process and confrontation clauses of the sixth amendment .... Furthermore, the sixth amendment rights to confrontation and to compulsory process are made applicable to state prosecutions through the due process clause of the fourteenth amendment....
"In plain terms, the defendant's right to present a defense is the right to present the defendant's version of the facts as well as the prosecution's to the jury so that it may decide where the truth lies.... It guarantees the right to offer the testimony of witnesses, and to compel their attendance, if necessary .... Therefore,
"Although it is within the trial court's discretion to determine the extent of cross-examination and the admissibility of evidence, the preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements [of the confrontation clause] of the sixth amendment....
"These sixth amendment rights, although substantial, do not suspend the rules of evidence .... A court is not required to admit all evidence presented by a defendant; nor is a court required to allow a defendant to engage in unrestricted cross-examination.... Instead, [a] defendant is ... bound by the rules of evidence in presenting a defense .... Nevertheless, exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights .... Thus, [i]f the proffered evidence is not relevant [or constitutes inadmissible hearsay], the defendant's right[s] to confrontation [and to present a defense are] not affected, and the evidence was properly excluded." (Citations omitted; internal quotation marks omitted.) Id., at 818-19,
Because the defendant did not raise this claim at trial, we review it under the framework of State v. Golding , supra,
Because Golding does not excuse an inadequate record, the absence or inadequacy of an offer of proof
Similarly, in State v. Crespo , supra,
The conditional nature of the trial court's ruling in the present case, allowing counterproof in the form statements otherwise barred under Crawford if the defendant were to challenge the provenance of Taylor's injuries as bites, does not relieve the defendant of the need to make a record demonstrating the existence of harm to his right to present a defense. In reaching this conclusion, we find particularly instructive the decision by the United States Court of Appeals for the Seventh Circuit in United States v. Wilson ,
Having reviewed the record in the present case, we agree with the state that the defendant's claim fails under the first and third prongs of State v. Golding , supra,
Thus, notwithstanding the unpreserved nature of this claim, the defendant's failure to make an offer of proof at trial renders it impossible for us to determine whether he was deprived of his right to present a defense because the record does not disclose the evidence that he would have offered to rebut the inference that Taylor had been bitten by the victim. Put differently, with no indication in the record that the defendant was prepared to offer admissible evidence in support of the theory
Moreover, the trial court's ruling was not an absolute bar to the admission of evidence pertaining to Taylor's injuries. Rather, it warned the defendant that if he introduced such evidence, the trial court would admit into evidence statements by Taylor that were otherwise barred under Crawford , if subsequently offered by the state. To be sure, the trial court's conditional ruling left the defendant with a strategic choice, one that required him to balance the benefits of attacking the provenance of Taylor's injuries with the risks of the admission of Taylor's statement that the victim had bitten him, evidence that otherwise would be barred by Crawford. This dilemma did not necessarily deprive the defendant of his right to present a defense because "[t]he criminal process ... like the rest of the legal system, is replete with situations requiring the making of difficult judgments as to which course to follow." (Internal quotation
Indeed, given the conditional nature of the trial court's ruling, we do not know whether, in the subsequent trial proceedings, the state would have used Taylor's potentially inadmissible statements. It is not inconceivable that, even if the defendant had introduced evidence concerning Taylor's injuries, the state might well have decided to avoid handing the defendant a potentially strong appellate issue founded on his objection to Taylor's statement under Crawford. See Luce v. United States , supra,
II
We turn next to the state's evidentiary claims, namely, that the Appellate Court
Our consideration of these claims is informed by the following general principles concerning lay opinion testimony. Section 7-1 of the Connecticut Code of Evidence
"Because of the wide range of matters on which lay witnesses are permitted to give their opinion, the admissibility of such evidence rests in the sound discretion of the trial court, and the exercise of that discretion,
A
We begin with the state's bite mark claim. The record and Appellate Court opinion reveal the following additional relevant facts and procedural history. At trial, Olson testified that he interviewed Taylor on July 16, 2009, and directed Officer Woodrow Tinsley to take photographs of the injuries to Taylor's hands.
On appeal, the state claims that the Appellate Court improperly determined that Olson's testimony was an improper lay opinion under § 7-1 of the Connecticut Code of Evidence. Relying on the rule's text and commentary, the state contends that, on the basis of the various matters upon which nonexpert opinion testimony has been held admissible, including the physical and mental condition of another person, it is entirely proper for a trial court to admit testimony that a witness had observed what he or she perceived to be a bite mark. The state further claims that Olson's observation was one that he or any other person could derive from their common experiences in life and that no expertise was required.
In response, the defendant claims that the Appellate Court correctly determined that Olson's testimony violated the limitation on lay opinion testimony under § 7-
In determining whether the trial court abused its discretion in deeming Olson's testimony to be permissible lay opinion; see, e.g., State v. Finan , supra,
With respect to opinion evidence concerning the appearance of persons or things, we find instructive State v. Grant , supra,
We conclude that it was within the trial court's broad discretion to determine that Olson, as a lay witness, was competent to testify regarding the appearance of wounds that he had observed. Indeed, it was well within the trial court's discretion to determine that Olson's testimony that Taylor's wounds appeared to be a bite mark, based on Olson's personal observation and rational perception of Taylor's injuries, was more beneficial to the jury than a more abstract recitation or description of the size, location, and shape of the wound. See Conn. Code Evid. § 7-1, commentary; see also Turner v. State , Docket No. 1495,
The Appellate Court's decision in State v. Ingram , supra,
Finally, having accepted the defendant's invitation to view the photographic exhibits ourselves, we believe that the trial court reasonably could have determined that Olson's description of Taylor's injuries as apparent bite marks was within the realm of reason. Accordingly, we conclude that the Appellate Court improperly determined that the trial court had abused its discretion in determining that Olson's testimony was permissible lay opinion evidence.
B
We turn next to the state's claim that the Appellate Court improperly determined that the trial court had abused its discretion by admitting Smola's testimony regarding the object that had been inside of the defendant's backpack on the bus. The record and Appellate Court opinion reveal the following relevant facts and procedural history. The defendant filed a motion in limine seeking to preclude Smola from testifying that the item in the defendant's backpack, as viewed on the
After Smola began testifying, the state asked Smola to narrate the events depicted in the bus surveillance video as it was played for the jury. He testified, over objection, that it was his "belief through investigation [that] it was a sneaker box" visible inside the backpack. The court then instructed the jury: "But once again ... the narrative that [was] provided, you determine what the facts are in the case." On cross-examination, Smola conceded that he did not know whether the item in the
In its analysis of the defendant's claim that the trial court improperly permitted Smola to testify that the visible contours of an object in the backpack was a shoe box, the Appellate Court emphasized that the state did not present Smola as an expert witness, and Smola
On appeal, the state claims that it was within the trial court's discretion to permit a witness, who was narrating portions of the bus surveillance video as it was played for the jury, to refer to identifiable objects visible on the screen. The state argues that the commentary to § 7-1 of the Connecticut Code of Evidence expressly contemplates that a lay witness may testify to the appearance of persons or things, which extends to the identity or similarity of objects. Finally, the state contends that any error was harmless because the trial court instructed the jury about its responsibility to determine what the surveillance bus video depicted, and that it could reject Smola's testimony accordingly. In response, the defendant contends that the Appellate Court properly determined that the trial court had abused its discretion in admitting the challenged testimony because Smola lacked personal knowledge and, thus, was not competent to testify about these facts. We, however, agree with the state and conclude that any impropriety in the admission of Smola's description of the item inside of the backpack was harmless error.
Although there is some division in the federal and state courts on this point, there is significant authority under rule 701 of the Federal Rules of Evidence to support the proposition that a lay witness narrating a video to a jury may state his or her impressions of what
It is well settled that, "[w]hen an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful.... [W]hether [an improper ruling] is harmless in a particular case depends upon a number of factors, such as the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength
Although we acknowledge that Smola's description of the object in the defendant's backpack as a shoe box was probative evidence connecting the defendant to the scene of the crime, we nevertheless have the requisite fair assurance that this testimony did not substantially affect the jury's verdict. First, Taylor was linked to the crime through DNA evidence, the injuries to his hands, and his sale of the murder weapon. The defendant's link to Taylor in the immediate aftermath of the crime was established through the surveillance video from the convenience store, which showed the two men traveling together within mere minutes of the crime, the bus surveillance video, and other evidence, such as Parker's testimony about the conversation between the defendant and Taylor on the bus, which clearly evidenced that the two men were together when Taylor was bitten.
Second, the bus surveillance video was admitted into evidence, and the jury had the opportunity to view it, along with a still image captured from the video depicting the backpack partially open to reveal a grayish white object. See State v. Edwards ,
Significantly, the trial court instructed the jury that Smola's testimony was "offered as assistance," but that the jury remained "the ultimate arbiters of what the facts are in the case," and it was free to "reject all, part, or none of the testimony if you wish, but you determine what it is that you see in that" video. The trial court reiterated this instruction during the final charge, as well.
Finally, Smola was subject to extensive cross-examination, in which he acknowledged that he had never physically obtained or examined the object in the backpack
III
In light of our conclusions in parts I and II of this opinion, we must address the defendant's proffered alternative grounds for affirming the judgment of the Appellate Court ordering a new trial, specifically that the trial court improperly (1) admitted Parker's testimony regarding the dog bite conversation between the defendant and Taylor, (2) admitted Minott's testimony that Taylor had asked for a tissue when boarding the bus, (3) admitted Smola's testimony that Taylor told him the backpack came from the victim's apartment in violation of Crawford v. Washington , supra,
We can quickly dispose of the defendant's claim that the trial court improperly admitted into evidence Parker's testimony regarding the dog bite conversation between the defendant and Taylor because it was not relevant to a material issue in the case.
B
The defendant's next claim, that the trial court improperly admitted hearsay evidence by permitting Minott to testify regarding Taylor's request for a tissue, similarly requires little discussion. For the reasons aptly stated by the Appellate Court, we conclude that, because Minott's testimony that Taylor had asked him for a tissue was elicited on cross-examination by the defendant, under State v. Smith ,
The defendant's claim that the trial court improperly admitted Smola's testimony that Taylor had told him that the item in the backpack came from the victim's apartment, however, requires a more comprehensive
The record reveals the following additional relevant facts and procedural history. The defendant's motion in limine seeking to preclude Taylor's hearsay statements included Taylor's statement to Olson that the defendant had a pair of boxed sneakers in his backpack that had been taken from the victim's apartment. The trial court granted the motion, indicating that such testimony would violate the defendant's confrontation rights under Crawford. As previously noted, the state subsequently called Taylor as a witness at trial, and he refused to testify.
Thereafter, during Smola's testimony; see part II B of this opinion; the defendant cross-examined him about his perceptions with respect to the shoe box in the video, in comparison to one taken from the victim's apartment. The following colloquy ensued:
"[Defense Counsel]: Detective, isn't it true that you cannot testify with any degree of certainty that thatthing in the backpack came from [the victim's] apartment?
"The Court: Well, it's two questions, with any degree of certainty or cannot testify.
"[Defense Counsel]: Isn't it true that you cannot testify that [the] item, that thing in the backpack-
"[The Witness]: Someone told me that [it ] was -
"[Defense Counsel]: Objection, Your Honor.
"The Court: Well, you asked the question, counsel.
"[The Witness]: Donele Taylor said that.
"[Defense Counsel]: Your Honor-
"The Court: Quiet." (Emphasis added.)
At the request of defense counsel, the trial court excused the jury and the witness. After argument on the defendant's objection that Smola's answer was nonresponsive because the defendant had sought a yes or no answer, the trial court agreed with the state that Smola's answer was responsive to the defendant's question, albeit in greater elaboration than the defendant had sought.
It is well settled that, "[s]o long as the answer is clearly responsive to the question asked, the questioner may not later secure a reversal on the basis of any invited error." State v. Brokaw , supra,
Although defense counsel framed the question to Smola in a somewhat leading manner, insofar as the question conceivably could be answered "yes" or "no," this did not mean that the trial court was required to
Having reviewed authorities on both sides of this issue, we conclude that the trial court did not abuse its discretion in determining that Smola's answer was responsive to the defendant's question about his ability to testify. First, the question-although somewhat leading in nature-was ambiguous and imprecise, insofar as it questioned Smola's ability to testify about the link between the shoe box and the defendant's backpack. This was a particularly high risk question for the defendant, given his awareness that the Crawford material had been the subject of the motion in limine, with the possibility that any questioning that might hint at the source of his purported knowledge could trigger the disclosure of that material. Accordingly, we conclude
D
Finally, we address the defendant's claim that the trial court improperly denied his motion for a mistrial in response to Olson's testimony that Taylor had stated that the injury on his hand was a bite. The defendant contends that the trial court had abused its discretion in declining to declare a mistrial because the jury was present for arguments on his motion and because the court's curative instruction was delivered late and "did more harm than good" by "stress[ing] the significance" of Olson's improper testimony. The defendant further contends that Olson's testimony, when coupled with Parker's testimony about the conversation between Taylor and the defendant on the bus, was itself "sufficient to support a conviction, at a minimum, on the three conspiracy charges with which the defendant had been charged." Finally, the defendant contends that the jury reasonably could infer that Taylor did not testify because he was guilty, and that this evidence was critical to tying the defendant to Taylor. In response, the state contends that the trial court properly denied the defendant's motion for a mistrial because the trial court struck the improper testimony and instructed the jury to disregard it. The state also argues that a mistrial is unwarranted because Olson's improper testimony was a
"In reviewing a claim of abuse of discretion, we have stated that [d]iscretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.... In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors.... Therefore, [i]n those cases in which an abuse of discretion is manifest or where injustice appears to have been done, reversal is required." (Citation omitted; internal quotation marks omitted.) State v. Nash ,
Second, given the presumed curative effect of these instructions, we disagree with the defendant's assessment that the trial court's refusal to excuse the jury, which caused him to make a motion for a mistrial in its presence, "thereby highlight[ed] the significance of the testimony that the jurors had just heard." Cf. State v. Edge ,
Finally, the statement that Taylor had previously indicated that his injury was a bite-even if considered more definitive evidence than the jury's interpretation of the photographic exhibits-was not overly prejudicial when considered in the light of other evidence linking Taylor to the crime scene, namely, DNA evidence from the baseball hat he dropped at the scene, the surveillance videos showing his flight, and the fact that he sold the murder weapon shortly after the murder. "Although the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial ... and the whole proceedings are vitiated.... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided." (Internal quotation marks omitted.) State v. Guilbert ,
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.
In this opinion ROGERS, C.J., and EVELEIGH and ESPINOSA, Js., concurred.
D'AURIA, J., with whom PALMER and McDONALD, Js., join, dissenting.
I agree with the Appellate Court's conclusion that the trial court improperly admitted certain testimony as lay opinions over the objections of
I
I begin with Olson's testimony that Taylor had a bite on his wrist. Olson had interviewed Taylor in the weeks after the murder. During the interview, Taylor told
The testimony concerning the cause of the marks on Taylor's wrist was critical evidence for the state. The state had strong evidence linking Taylor to the victim's murder, but lacked similarly strong evidence against the defendant. To implicate the defendant in the victim's murder, the state relied on testimony about a conversation between Taylor and someone else, apparently the
The Appellate Court concluded, however, that Olson's testimony was not a proper lay opinion because a lay witness generally may not testify about the cause of a wound. See State v. Holley , supra,
A
Taylor told Olson that his wounds were the result of a bite. But Olson could not testify as to what Taylor had told him because admitting Taylor's hearsay statements into evidence would have violated the defendant's constitutional right to confront his accusers. The confrontation clause of the Sixth Amendment to the United States constitution guarantees that "[i]n all criminal prosecutions,
Taylor's statements to Olson concerning his wound being a bite mark were unquestionably testimonial in nature, as he made the statements when he confessed to Olson of having participated in the victim's murder, and, thus, were barred from admission unless they comported with Crawford. The state intended to use them as evidence of the defendant's guilt, but Taylor was unavailable for cross-examination. When called to the stand outside the presence of the jury, Taylor refused to answer any questions and was held in contempt. The defendant, thus, could not cross-examine him concerning his statements, and, consequently, they could not be admitted into evidence against the defendant. See Crawford v. Washington , supra,
B
To avoid this confrontation clause problem, the state argues that the trial court properly admitted Olson's
At the time the evidence was admitted, no foundation whatsoever had been laid to establish that Olson's testimony was an opinion formed on the basis of his personal observations, rather than a parroting of what Taylor had told him. Indeed, all of the information put before the trial court up to the point it admitted Olson's testimony established only that Olson had learned that Taylor's wounds were caused by a bite because Taylor had told him so.
Before trial, the defendant filed a motion in limine to exclude any of Taylor's statements to police from being admitted into evidence. As recounted by defense counsel during argument on the motion, Taylor gave two separate confessions to police. In the first, Taylor implicated himself as the shooter and said that someone else had been inside the apartment, but he did not know who that person was or what they were doing there. In the second, Taylor said that he had been in the apartment when the victim was murdered, but that the defendant had shot the victim. While giving these confessions to Olson, Taylor indicated that he still had bite marks and scratches from the struggle with the victim, and he said that the victim had bit him on his wrist. During argument on the motion, the state explained that it did not intend to offer into evidence Taylor's statement implicating the defendant, but would offer his statement that he had a bite on his wrist and that it came from the victim. The state argued that Taylor's statement was admissible because, although hearsay, it was against the speaker's penal interest, rendering it admissible. See State v. Smith ,
The admissibility of Taylor's statement, which had significant inconsistencies, came up again early in the trial. During the first day of trial, the state called as a witness Officer Woodrow Tinsley, who had photographed Taylor's injuries. When the state asked Tinsley whether he had been asked to take photographs of Taylor, the defendant's counsel objected and asked to be
Two days later, on the third day of trial, the trial court changed its mind about admitting Taylor's statement concerning the bite mark. The court explained: "Now, I did some research on my own on the statements and right now, based on what the evidence is, because the defense hasn't challenged anything concerning that statement, I'm going to disallow the statement concerning the bite. I understand that it is a statement against penal interest; the entire confession was a statement against penal interest. But if there's even a hint anywhere that that bite was anything other than where it came from, that statement does come in, and that includes during closing argument as well. I will reopen this case if there's a hint during closing argument that the bite was anything other than what it is. So, remember, I'll stop the trial and allow it in at that point."
When Olson testified, however, the state asked him whether Taylor had any injuries on him and the nature of those injuries. The following colloquy took place:
"[Olson]: Yes.
"[The Prosecutor]: And did you speak to [Taylor], yes or no?
"[Olson]: Yes.
"[The Prosecutor]: And, as a result of your conversations with [Taylor] and what you knew to date in the investigation, did you ask [Tinsley] to take any photographs of injuries to [Taylor]?
"[Olson]: Yes.
"[The Prosecutor]: What was the nature of the injuries?
"[Olson]: He had a bite on his wrist and-"
"[Defense Counsel]: Objection, Your Honor.
"[The Court]: I'm going to allow the testimony. That's what he observed. Thank you. You can cross-examine him about that."
The state argues that, contrary to the Appellate Court's conclusion, the trial court properly admitted Olson's testimony as a lay opinion about what had caused Taylor's injuries based on his observations of Taylor's wounds. I disagree.
Without any foundation that Olson's testimony was an opinion based on his own perceptions, rather than
After the evidence was admitted-and after the trial court's unfounded conclusion that the testimony was based on the witness' observations-Olson clarified that Taylor "appeared to have a bite mark on his wrist ...." (Emphasis added.) In my view, this was too little and too late to cure the trial court's error. This comment was too late to serve as a foundation for Olson's testimony because it came after the trial court had ruled the testimony admissible and, therefore, it could not possibly have served as a valid basis for the court's exercise of its discretion in admitting the testimony. Even if this after the fact remark could have somehow cured the trial court's error, it was too little because it did not establish whether Olson had reached an independent opinion based solely on the appearance of the
"[The Prosecutor]: After talking to [Taylor], yes or no, did you learn what that injury was on his wrist?
"[Olson]: Yes.
"[The Prosecutor]: And what was it?
"[Olson]: A bite."
The defendant's counsel then objected, and the trial court sustained the objection, but the import of the testimony is clear-Olson learned that Taylor's wounds were caused by a bite on the basis of what Taylor had told him.
I acknowledge that the trial court has broad discretion when ruling on evidentiary
C
Besides the lack of a proper foundation, the trial court's admission of Olson's testimony runs afoul of another requirement for admitting lay opinion testimony. A lay opinion must not only be based on the witness's perceptions, but also must be "helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue." Conn. Code Evid. § 7-1. Olson's supposed opinion on the origin of Taylor's wound was unhelpful and unnecessary because the police had taken photographs depicting how the wounds looked when Olson interviewed Taylor. Olson testified that those photographs were a fair and accurate representation of the marks on Taylor as he saw them. The helpfulness of a lay opinion describing a
II
I also agree with the Appellate Court that the trial court improperly allowed Smola to testify as to his belief that the defendant was carrying a shoebox in a backpack shortly after the crime occurred. According to the information put before the trial court, the state had a video recording from a bus depicting Taylor and another person, apparently the defendant, getting onto the bus near the location of the murder shortly after it occurred. The defendant is seen carrying a backpack, which he opened to retrieve money to pay
The defendant moved to preclude Smola from identifying the object in the backpack because he lacked personal knowledge of what it was, but the trial court allowed him to testify as to his opinion about what the object looked like. While the video was playing before the jury at trial, the prosecutor noted that there appeared to be a backpack depicted in the video and asked Smola, "[w]ere you able to determine through your investigation what you believe is contained within that backpack?" (Emphasis added.) After the trial court overruled the defendant's objection, Smola answered: "It's my belief through investigation it was a sneaker box." (Emphasis added.) The testimony was significant for the state because the victim was known to sell shoes, and the defendant's possession of a shoebox shortly after the crime could implicate him in the robbery and murder.
In my view, however, Smola's testimony was not properly admitted as a lay opinion. The majority does not directly address the propriety of admitting his testimony, but, before concluding that any error was harmless, cites to mixed authority about whether witnesses generally may narrate events depicted in a video that the witness did not personally observe. Compare United States v. Begay ,
III
Although the Appellate Court concluded that Olson's and Smola's challenged testimony could not properly be admitted as lay opinions, it did not conduct a harmful error analysis because it had separately concluded that
The state had strong evidence implicating Taylor in the victim's murder, including DNA evidence placing him inside the victim's apartment and Taylor's confessions, but the state's case against the defendant was not nearly as strong. With Taylor's statements inadmissible against the defendant, the state's case turned on its ability to present other evidence to show that the defendant had actually participated in the robbery and/or the murder. The state had no forensic evidence to accomplish this-investigators did not find either the defendant's fingerprints or DNA in the apartment. Other than Taylor's inadmissible statements, the state had no eyewitness testimony to directly implicate the defendant. Unlike Taylor, the defendant did not give any self-incriminating statements to police.
Without the challenged testimony from Olson and Smola, the state's evidence linking the defendant to the murder was limited. The state had video recordings that put Taylor together with the defendant as they ran to a bus stop and boarded a bus near the crime scene around the time the crime occurred. Those recordings, however, did not show whether the defendant had been inside the apartment with Taylor when the victim was
The only other evidence that arguably could have placed the defendant inside the apartment was the testimony from another passenger on the bus, who had overheard the defendant make the "big dog" comment. The passenger testified, however, that she did not see any injuries or blood on the person who said he had been bitten. The state also called the bus driver to testify that, after boarding the bus, Taylor had asked for a tissue, presumably for his wounds, but the driver testified that he did not see anything about Taylor that would have required use of a tissue.
To connect the defendant to the murder with this evidence, the jury was required to draw a chain of inferences. The jury would first have to conclude that the defendant was the person with Taylor and then infer from their comments on the bus that Taylor had recently been bitten, that the "big dog" that bit Taylor was actually the victim, and that the defendant's knowledge of the victim's size suggested that the
Olson's and Smola's challenged testimony thus significantly filled in holes in the state's case. Olson's testimony that Taylor, in fact, had a bite wound on his wrist in the days after the murder corroborated the passenger's testimony and helped mitigate the impact
The state nevertheless asserts that the admission of Olson's and Smola's challenged testimony, even if improper, was harmless. I disagree.
The state first asserts that Olson's testimony about Taylor having been bitten on his wrist was harmless because the jury could have viewed the photographs and likely would have concluded for itself that the marks were from a bite, even in the absence of Olson's testimony. I have viewed those same photographs, and, like the Appellate Court, I am not persuaded. The marks on Taylor's wrist, as depicted in the photographs, appear to be a series of small, parallel scratches, rather than a small arc of impressions that one might normally associate with a bite wound.
Moreover, the lack of clarity about what the photographs depict is demonstrated by the state's arguments to this court, which express some confusion about which of Taylor's marks were the result of a bite. Olson testified that the marks from what he believed to be a bite were on Taylor's wrist and that Taylor also had other lacerations on his hand. But, in its brief and at oral argument, the state directed this court's attention to the photographs and argued that the bite might have
That the marks on Taylor's wrist do not obviously resemble bite marks, along with the state's supposition that Olson might have testified incorrectly about where the bite marks were located, also undercuts, in my view, a conclusion that Olson was testifying from his own observation when he identified the marks on Taylor's wrist as being caused by a bite. The state did not seek to qualify Olson as an expert in recognizing whether marks on a person's skin were caused by a bite. Because it is not at all clear what the marks depicted in the photograph are, or what caused them, admitting Olson's testimony created a danger that the jury might infer that he knew they were bite marks from some source
As for Smola's testimony identifying the shoebox, the state asserts that the trial court's instructions to the jury mitigated any harm it might have caused. The state notes that the trial court instructed that it was up to the jury members to determine for themselves what was depicted in the video from the bus. The state argues that we must presume the jury followed this instruction and reached its own conclusions about what the video depicted, without placing added weight on Smola's testimony.
Lastly, I do not believe that subsequent testimony from Smola during cross-examination eliminated any harm from the improper admission of Smola's testimony regarding the shoebox. During cross-examination, the defendant's counsel asked a question presumably aimed at having Smola agree that he had no personal knowledge of what was contained in the backpack. In the course of responding, however, Smola stated that Taylor had told the police that the defendant had a shoebox with him. The defendant's counsel asked, "[i]sn't it true that you cannot testify that that item, that thing in the backpack," at which point Smola interrupted and responded, "[s]omeone told me that that was ... Taylor said that." The defendant moved to strike the answer, but the trial court allowed it because it was responsive to the question. Because the defendant
Because I am persuaded that these evidentiary errors require reversal of the defendant's
Notes
We granted the state's petition for certification, limited to the following issues: (1) "Did the Appellate Court correctly determine that the defendant's convictions should be reversed on the basis of his claim that the trial court violated his right to present a defense by preventing him from presenting evidence regarding a bite mark on [Taylor's] hand?" (2) "Did the Appellate Court correctly determine that testimony regarding a witness' observation of a bite mark on [Taylor's] hand violated the limitation on lay opinion testimony [set forth in § 7-1 of the Connecticut Code of Evidence ]?" (3) "Did the Appellate Court correctly determine that [the admission of testimony indicating that] an item visible in the defendant's backpack in a surveillance video was a [shoe box] violated the limitation on lay opinion testimony [set forth in § 7-1 of the Connecticut Code of Evidence ]?" And (4) "[i]f the answer to questions two [or] three is in the affirmative, was any error harmless?" State v. Holley ,
We note that the defendant was also convicted of conspiracy to commit home invasion in violation of General Statutes §§ 53a-48 (a) and 53a-100aa (a) (1), and burglary in the first degree in violation of General Statutes § 53a-101 (a) (2). See footnote 3 of this opinion.
The state also charged the defendant with conspiracy to commit burglary in the first degree in violation of §§ 53a-48 (a) and 53a-101 (a) (2), and conspiracy to commit robbery in the first degree in violation of §§ 53a-48 (a) and 53a-134 (a) (2). State v. Holley , supra,
The Appellate Court rejected the defendant's claim that there was insufficient evidence to sustain his conviction of robbery in the first degree, burglary in the first degree, and felony murder. See State v. Holley , supra,
"Under Crawford v. Washington , supra,
"The motion in limine provided in relevant part: '[The defendant] and Taylor were charged with almost identical crimes. After confessing to the police on July 16, 2009, Taylor was arrested for felony murder, murder, conspiracy to commit murder, robbery in the first degree and burglary in the first degree.... On February 27, 2012, Taylor [pleaded] guilty to felony murder, robbery in the first degree, and conspiracy to commit robbery in the first degree under the Alford doctrine. [See North Carolina v. Alford ,
" 'On July 16, 2009, Taylor gave a written confession after speaking with [the] police about his version of the facts and circumstances of the June 30, 2009 incident. After providing [the] police with the ... written confession, Taylor was immediately arrested and incarcerated on a $2.5 million ... bond. On July 20, 2009, four ... days after his arrest, from prison, Taylor recanted his first confession but refused to sign a written statement. The next day [the] police returned to meet with Taylor [and] he participated in a photo[graphic] identification of [the defendant]. Undersigned counsel is led to believe that Taylor may be unavailable to testify at trial and is refusing to cooperate with the state....
" 'If the state offered the statements of Taylor into evidence, it would clearly be an attempt to prove the truth of the matter asserted in the state's case against [the defendant] in that the statements allege that the defendant was present for and participated in the crime which occurred inside of the [victim's] apartment.
" 'Further, and more importantly, upon information and belief, Taylor will not be available for cross-examination relative [to] the aforementioned statements....
" 'In Taylor's written confession he admits to shooting the [victim] and indicates that he does not know what the other person was doing in the apartment while he was struggling with the [victim]. In this statement, Taylor implicates the involvement of [the defendant] by acknowledging that another person was with him inside of the apartment as this crime took place. Further, it indicates that the "other kid" had a shoe box in his backpack.' " (Footnote omitted.) State v. Holley , supra,
At the defendant's request, after the luncheon recess, the trial court instructed the jury that "earlier this afternoon before the lunch break ... Olson was on the stand and there was some testimony of his concerning marks, what may or may not be marks on ... Taylor's hand, left and right hands. First of all, it's for you to determine whether ... there were marks on the hands and where those marks came from. Any statements ... Olson heard from ... Taylor are obviously not admissible because we don't have ... Taylor here to discuss what those statements are and he's not subject to cross-examination.... That's why I told you that information that comes from out of court is not necessarily reliable. So that's stricken. As I said ... Olson's observations are just that: observations for you to determine what [exists] on the hands of ... Taylor, if anything. You have the photographs in evidence."
In its final charge to the jury, the trial court instructed the jury that "[c]ertain things are not evidence and you may not consider them in deciding the facts. These include ... [t]estimony that has been excluded or stricken. This testimony would include any comment that ... Taylor allegedly made in the presence of ... Olson concerning bite marks."
Under Golding , "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation ... exists and ... deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." (Emphasis in original; footnote omitted.) State v. Golding , supra,
The Appellate Court observed specifically that the "court's ruling, occurring in the middle of the trial, did not merely infringe upon the defendant's ability to present evidence, but broadly precluded the defense from even 'hinting' during closing argument that the injury was 'anything other' than a bite. The court's ruling was very significant to the defense because the evidence related to Taylor's injuries, and the state's arguments concerning the origin of those injuries, was a key component of the state's case, which was based on circumstantial evidence. After the state presented evidence from Olson, Parker, and Minott that supported a finding that Taylor had sustained a bite injury, the prosecutor suggested in argument that Taylor had been bitten by the victim. By arguing, as it did, that, shortly after the events at issue, the defendant and Taylor referred on the bus to a 'big dog' that had bitten Taylor, the state was able to present a compelling argument that supported a finding that the defendant was present with Taylor in the victim's apartment and guilty of the crimes with which he was charged. In light of all of the circumstances, we conclude that the defendant was deprived of a fair trial." State v. Holley , supra,
In rejecting the state's arguments with respect to the defendant's failure to make an offer of proof, the Appellate Court stated that the trial court, "in conditioning its Crawford ruling in the manner that it did, made an integral component of the state's case off limits to the defense. Moreover, the [trial] court did not merely prohibit the introduction of evidence, but precluded the defendant from challenging, in any manner, the state's evidence concerning Taylor's injuries. The ruling broadly restricted the defendant's right to cross-examine Olson (and other witnesses) and to challenge during argument before the jury the state's evidence related to Taylor's injuries." State v. Holley , supra,
The state also claims that the Appellate Court improperly acted sua sponte to consider limitations on the defendant's right to present closing argument on this point, insofar as the defendant's briefing of this claim before that court was limited to the preclusion of evidence, rather than argument. Because we agree with the merits of the state's constitutional arguments, we need not address this claim.
It is well settled that "[o]ffers of proof are allegations by the attorney ... in which he represents to the court that he could prove them if granted an evidentiary hearing.... The purpose of an offer of proof has been well established by our courts. First, it informs the court of the legal theory under which the evidence is admissible. Second, it should inform the trial [court] of the specific nature of the evidence so that the court can judge its admissibility. Third, it creates a record for appellate review.... Additionally, an offer of proof should contain specific evidence rather than vague assertions and sheer speculation.... The offer of proof may be made in the absence of the jury by the testimony of a witness or by a good faith representation by counsel of what the witness would say if questioned." (Citations omitted; internal quotation marks omitted.) State v. Shaw ,
Although the question in Wright as to whether the trial court's limitation on cross-examination was of constitutional dimension was not explored in the context of Golding review, the inquiry is effectively the same. See State v. Wright , supra,
In Luce , the United States Supreme Court observed that in the absence of such testimony, a "reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context." Luce v. United States , supra,
This court adopted the rule of Luce in State v. Harrell ,
In State v. Perez ,
We note that the recitation of facts in the Appellate Court's opinion may be read to suggest that Olson had taken the photographs personally. See State v. Holley , supra,
The state also contends that any error in admitting Olson's testimony was harmless because it was cumulative of the photographs admitted into evidence.
Section 7-2 of the Connecticut Code of Evidence provides: "A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue."
Our independent research has revealed numerous cases on point, including United States v. Begay , supra,
We note that, because the Appellate Court addressed the defendant's evidentiary claims in the context of issues likely to arise on remand, it did not consider whether any of the evidentiary rulings constituted harmless error. See State v. Holley , supra,
During the final charge, the trial court instructed the jury as follows: "Some testimony and exhibits have been admitted for limited purposes. When I have given a limiting instruction you must follow it. For example ... Smola supplied a narration concerning alleged events on the bus video. It is for you, the jury, to decide if those events did occur and if so the identity of the individuals in that video."
On January 27, 2016, we denied the state's motion to strike the defendant's statement of alternative grounds filed pursuant to Practice Book § 84-11 (a), although we granted the state's motion to strike the defendant's statement of adverse rulings, namely, a challenge to the sufficiency of the evidence. See footnote 4 of this opinion.
We note that the defendant concedes that the trial court properly determined that Parker's testimony was not inadmissible hearsay.
The Appellate Court did not reach this issue, deeming it unlikely to arise on retrial. See State v. Holley , supra,
With respect to further colloquy on this point, we note that defense counsel stated that, "[a]t the probable cause [hearing, Smola] testified that he could not indicate [if] that item came from [the victim's] apartment; he testified under oath then.
"The Court: The testimony here is he could. So you can impeach him about it, but the testimony here is that he could. There's nothing I can do about his testimony. You asked if he could testify to any degree of certainty, yes, he could .... Taylor told him so. It was responsive.
"[Defense Counsel]: That's not responsive, Your Honor.
"The Court: That is responsive, Counsel. You asked repeatedly if he could testify."
After the state argued that Smola's testimony was indeed responsive, defense counsel argued as follows: "Your Honor, I asked him could you-first, I asked that, and then I changed the question: Can you testify that that thing came from the apartment?
"That's what I said. That calls [for]-
"The Court: No. Then you asked could you testify with any degree of certainty and ... he answered .... You're stuck with the response, Counsel. You certainly can impeach him with the probable cause testimony, but apparently you were aware that that would have been his testimony, that he knew from ... Taylor.
"[Defense Counsel]: Your Honor ... he didn't even interview Taylor. "The Court: But he said he knew from ... Taylor. He didn't say he interviewed him; he said he knew from ... Taylor.
"[Defense Counsel]: My question called for a yes or no answer, Your Honor. It was nonresponsive ....
"The Court: It was very responsive, Counsel, he just elaborated on the yes or no, is the difficulty.
"[Defense Counsel]: So, Your Honor, if I impeach him now, is the witness going to be allowed to talk about ... Taylor's confession?
"The Court: Counsel, I'm not going to tell you how to conduct your cross-examination."
We note that the defendant has briefed this claim in the context of the open door doctrine, under which "a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject.... The party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it [when] the party initiating inquiry has made unfair use of the evidence.... [T]his rule operates to prevent a defendant from successfully excluding inadmissible prosecution evidence and then selectively introducing pieces of this evidence for his own advantage, without allowing the prosecution to place the evidence in its proper context." (Internal quotation marks omitted.) State v. Payne ,
Our research indicates that previous Connecticut case law applying this principle does not provide significant guidance, insofar as it considered witness responses to open-ended, nonleading questions on cross-examination. See State v. Brokaw , supra,
But see Fulton v. State ,
In light of this conclusion, we need not address the state's contention that any error in declining to strike Smola's testimony was harmless.
The defendant challenged this ruling on appeal to the Appellate Court, which concluded that this conditional Crawford ruling violated the defendant's right to present a defense. State v. Holley , supra,
Because the federal rule of evidence governing opinion testimony by a lay witness is sufficiently similar to § 7-1 of the Connecticut Code of Evidence, federal case law may assist our analysis. Jacobs v. General Electric Co. , supra,
Because Olson had not taken the photographs, the trial court could not infer from the existence of the photographs alone that Olson might have observed the marks closely enough when photographing them to form an opinion about their cause.
As a result of this exchange, the defendant's counsel immediately moved for a mistrial, arguing that the state had violated the trial court's Crawford ruling, and counsel asked to heard outside of the jury's presence. The trial court denied the motion and the request. Like the Appellate Court, I do not reach the defendant's alternative claim on appeal that the trial court should have granted the motion for a mistrial. Nevertheless, it is impossible to overlook that excluding the evidence barred by Crawford (i.e., Taylor's hearsay statements) was fundamental to a fair trial. As evidenced by the Appellate Court's decision, and the majority's decision not to address its merits head on, the trial court's conditional Crawford ruling was highly questionable-another issue I do not reach. See footnote 1 of this opinion. Whatever the merits of the trial court's conditional Crawford ruling, however, the state almost immediately violated it, eliciting testimony the trial court had expressly barred. Under those circumstances, granting the motion for a mistrial would have been defensible.