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STATE OF CONNECTICUT v. STEVEN C. BELL
(AC 35532)
DiPentima, C. J., and Alvord and Pellegrino, Js.
Argued May 15—officially released September 2, 2014
(Appeal from Superior Court, judicial district of
Middlesex, geographical area number nine, Morgan, J.)
S. Max Simmons, assigned counsel, for the appel-
lant (defendant).
Jacob L. McChesney, special deputy assistant state’s
attorney, with whom, on the brief, were Peter A.
McShane, state’s attorney, and Jeffrey G. Doskos, senior
assistant state’s attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Steven C. Bell,
appeals from the judgment of conviction, rendered after
a jury trial, of sale of narcotics in violation of General
Statutes § 21a-278 (b) and conspiracy to commit sale
of narcotics in violation of General Statutes §§ 53a-48
(a) and 21a-277 (a). The defendant claims that the trial
court improperly admitted prior uncharged misconduct
evidence and that such error was harmful. We affirm
the judgment of the trial court.
The jury reasonably could have found the following
facts. On May 19, 2010, members of the Bristol and
Middletown Police Departments conducted several
undercover drug sales in the area of Main Street in
Middletown. Detective Robert Motel, in his role as an
undercover officer, purchased drugs from the defen-
dant on two separate occasions.
Prior to the undercover drug sales, Motel attended a
briefing with other assigned officers, during which he
looked at four to six ‘‘target’’ photographs of individuals
believed by the police to be selling drugs in the area.
Included among those photographs was an image of
the defendant.
After the briefing, Motel positioned himself on Main
Street. He then encountered two individuals, James Hall
and Arthur Moore, who escorted him to the defendant’s
building. The defendant lived in an apartment at 468
Main Street, one floor above street level. When the trio
arrived, they passed through two doors before
ascending a single flight of stairs. As Motel neared the
top step, the defendant emerged from behind a door to
the left and stood on the upstairs landing. The defendant
sold Motel crack cocaine and the two spoke briefly.
The exchange occurred almost directly outside the
defendant’s apartment and lasted no longer than two
minutes.
Motel left the building and joined other officers at a
nearby location. Once there, he detailed the events that
had occurred, handed over possession of the drugs, and
gave the other officers a description of the defendant.
Not long after that, Motel returned to Main Street and
approached Moore, who again accompanied him to the
defendant’s building, at which point the defendant once
more sold crack cocaine to Motel on the upstairs land-
ing. The exchange lasted approximately one minute.
A week later, on May 26, 2010, Motel met with Detec-
tive Marc DelMauro at the Middletown Police Depart-
ment. At that time, DelMauro had prepared two separate
photographic arrays of eight males, one related to the
first sale and the other to the second sale. The defendant
was depicted in both. Motel positively identified the
defendant in each photographic array as the individual
from whom he had purchased drugs on May 19, 2010.
The defendant was arrested and charged in two sepa-
rate dockets with two counts of sale of narcotics and
two counts of conspiracy to commit sale of narcotics.
The matters were joined and tried to a jury. The jury
returned a verdict of guilty on both counts relating to
the second sale, and not guilty on both counts relating
to the first sale. The court rendered judgment in accor-
dance with the verdict and sentenced the defendant.
This appeal followed.
On appeal, the defendant claims that it was harmful
error for the court to allow testimony that the defendant
was included in the target photographs of individuals
believed to be selling drugs.1 Before reaching that claim,
we address two issues raised by the state: whether the
evidentiary claim properly was preserved, and whether
the testimony was prior uncharged misconduct evi-
dence. We are not persuaded by the state’s arguments.
We further conclude that any error in admitting the
testimony was harmless.
I
The state argues that at trial the defendant objected
to the testimony only on the ground of prejudice, ren-
dering his current claim on appeal unreviewable. The
state further contends that the testimony cannot qualify
as prior uncharged misconduct evidence because the
individuals in the target photographs were character-
ized as ‘‘suspects possibly’’ selling drugs and not
‘‘known’’ to be selling drugs. Neither argument per-
suades us.
A
We first consider the issue of preservation. ‘‘[T]he
standard for the preservation of a claim alleging an
improper evidentiary ruling at trial is well settled. . . .
In order to preserve an evidentiary ruling for review,
trial counsel must object properly. . . . In objecting to
evidence, counsel must properly articulate the basis of
the objection so as to apprise the trial court of the
precise nature of the objection and its real purpose, in
order to form an adequate basis for a reviewable ruling.
. . . Once counsel states the authority and ground of
[the] objection, any appeal will be limited to the ground
asserted. . . . These requirements are not simply for-
malities. They serve to alert the trial court to potential
error while there is still time for the court to act. . . .
Assigning error to a court’s evidentiary rulings on the
basis of objections never raised at trial unfairly subjects
the court and the opposing party to trial by ambush.
. . . [T]he determination of whether a claim has been
properly preserved will depend on a careful review of
the record to ascertain whether the claim on appeal
was articulated below with sufficient clarity to place
the trial court on reasonable notice of that very same
claim.’’ (Citations omitted; internal quotation marks
omitted.) State v. Jorge P., 308 Conn. 740, 753–54, 66
A.3d 869 (2013).
On November 28, 2012, the defendant filed a motion
in limine for an order precluding any testimony about
the target photographs. At a pretrial hearing on the
motion, defense counsel voiced the basis for his objec-
tion: ‘‘I think that testimony will be highly prejudicial
because we basically indicate that my client . . . is
selling drugs there and they’re specifically looking for
him, so they’ve already . . . found him guilty, so to
speak, and . . . it’s just so highly prejudicial as to its
probative value.’’ (Emphasis added.) At a later point in
the hearing, defense counsel formulated his objection
differently, but with the same tenor: ‘‘[A]llowing it to
be known that he was the target or that he was in the
target photographs . . . is highly prejudicial in making
that determination of whether on . . . May 19, 2010
. . . he sold . . . Motel the drugs . . . .’’
The court denied the motion, which led defense coun-
sel to ask: ‘‘[B]ut would the court consider a curative
instructi[on] to the jury after they . . . discuss the tar-
get photographs indicating . . . just because he’s in a
target photograph does not mean he’s guilty of the crime
of May 19 or something to that effect . . . .’’ The court
agreed to the request, and in fact, after Motel testified, it
instructed the jury as follows: ‘‘You need to understand
that, just because there was a target photograph, does
not mean that [the defendant] did anything wrong. He
had a picture that was included in a series of other
photographs that were shown to this detective before
he went undercover. It also does not mean, in any way,
that [the defendant] committed any of the acts that
have been alleged by the state in connection with these
particular cases or that he is of bad character or that
he has a tendency to commit any criminal acts whatso-
ever.’’ Later, the court gave a similar instruction in its
charge to the jury.
The preceding excerpts confirm that the court had
reasonable notice that the defendant had objected to
the testimony on the ground that it would lead the jury
to prejudge the defendant as a drug dealer. It is true
that the defendant did not cite to § 4-5 of the Connecti-
cut Code of Evidence in his objection, nor did he use
the words ‘‘prior misconduct,’’ ‘‘bad acts,’’ or ‘‘other
crimes.’’ That does not mean, however, that we can
disregard the plain response from the court, in both its
limiting instruction and charge to the jury, which closely
conformed to the language of § 4-5 of the Connecticut
Code of Evidence. See also Connecticut Criminal Jury
Instructions (4th Ed. 2012) § 2.6-5, available at http://
www.jud.ct.gov/JI/criminal/part2/2.6-5.htm (last visited
August 21, 2014). It follows then that the court under-
stood the precise character of the defendant’s objec-
tion. Accordingly, the state’s claim regarding
preservation fails.
B
We next address whether the testimony regarding
the target photographs constituted prior uncharged mis-
conduct evidence.2 The testimony in dispute occurred
at different points in the trial with some variation. Motel
first testified that the target photographs were of
‘‘potential individuals that [the police] believed were
selling narcotics . . . .’’ The jury then heard Motel
describe the photographs as being of ‘‘possible targets
of people that were selling drugs . . . .’’ Later, during
cross-examination, Motel agreed that the photographs
were of ‘‘individuals possibly selling drugs,’’ but not of
individuals ‘‘known to be selling drugs.’’ The state
argues that the testimony in dispute was not prior
uncharged misconduct evidence because it suggested
that the defendant was ‘‘suspected’’ not ‘‘known’’ to be
selling drugs. That distinction is not responsive to the
threshold issue of whether the testimony concerning
the target photographs was misconduct evidence.
Section 4-5 (a) of the Connecticut Code of Evidence
provides: ‘‘Evidence of other crimes, wrongs or acts of
a person is inadmissible to prove the bad character or
criminal tendencies of that person.’’ In the present case,
the only inference that the jury reasonably could have
drawn from Motel’s testimony was that the defendant
sold drugs in the area previously, and as a result, had
been ‘‘targeted’’ by the police. Accordingly, we conclude
that the testimony regarding the target photographs
fell within the ambit of § 4-5 of the Connecticut Code
of Evidence.
We find support for that conclusion by looking first
to the actual language used by Motel to describe the
photographs. Although that language varied, it sug-
gested to the jury that the photographs were of individu-
als who had been selling drugs in the area. Indeed, all
variations of the testimony had as a common ingredient
the phrase ‘‘selling drugs.’’
We gather additional support for our conclusion by
looking to the manner and context in which the disputed
testimony was presented. First, police officers through-
out the trial characterized the photographs as ‘‘target’’
photographs. The word target has a negative connota-
tion; one detective equated the word with known drug
dealers.3 As used repeatedly during the trial, the word
target hinted at the defendant’s prior criminal conduct.
Second, the jury was told that Motel’s objective was
to make drug purchases. It then heard that the police
selected target photographs for him to examine, in prep-
aration for his task. When presented in such a linear
fashion, the only reasonable connection for the jury to
make was that the photographs were of drug dealers
in the area.
We find further support for our conclusion in case
law. In a comparable situation, our Supreme Court has
cautioned against the use of police mug shots because,
‘‘such photographs indicate prior arrests, not otherwise
admissible, which present an accused person in an unfa-
vorable light before the jury.’’ State v. Pecoraro, 198
Conn. 203, 205, 502 A.2d 396 (1985); see also State v.
Woods, 171 Conn. 610, 613, 370 A.2d 1080 (1976) (mug
shot may have raised implication of prior arrest). That
reasoning tends to establish that mug shots have been
perceived in our case law as prior misconduct evidence.
See State v. Hoover, 54 Conn. App. 773, 778, 738 A.2d
685 (1999); see also State v. Collins, 100 Conn. App.
833, 851–52, 919 A.2d 1087, cert. denied, 284 Conn. 916,
931 A.2d 937 (2007). Consistent with that precedent, we
are persuaded that the testimony regarding the target
photographs in the present case, like the admission of
mug shots, indicated prior criminal behavior on the
part of the defendant, and, therefore, constituted prior
uncharged misconduct evidence within the meaning of
§ 4-5 of the Connecticut Code of Evidence.
II
Having determined that the defendant properly pre-
served his claim and that the testimony constituted
prior uncharged misconduct evidence, we now turn
to the merits of the defendant’s claim. The defendant
contends that it was harmful error for the court to admit
Motel’s testimony about the target photographs. We
agree that the testimony improperly was admitted into
evidence, but conclude that its admission was harmless.
We iterate briefly the facts and procedural history
relevant to this claim. Before trial, the defendant filed
a motion in limine to preclude any testimony about the
target photographs. At the hearing on the motion, the
defendant argued that the testimony would be highly
prejudicial because it would create the impression that
he had a propensity to engage in the type of conduct
for which he was charged. The state, on the other hand,
countered that the testimony was highly probative and
not unfairly prejudicial. The court denied the motion.
Motel, and other witnesses at trial, testified about the
target photographs. After Motel’s testimony, the court
cautioned the jury that the testimony was being intro-
duced solely on the issue of identity, and not to show
that the defendant was a person of bad character or
that he had a tendency to commit crime. The court
repeated a similar instruction in its final charge to the
jury, stating: ‘‘I permitted the introduction of testimony
regarding a so-called target photo viewed by Motel on
the issue of the defendant’s identity and instructed you
that you could use that evidence, to the extent that you
find it should be given weight, only as to the issue of
the identity of the defendant.’’
The standard of review is well established. ‘‘To deter-
mine whether evidence of prior misconduct falls within
an exception to the general rule prohibiting its admis-
sion, we have adopted a two-pronged analysis. . . .
First, the evidence must be relevant and material to at
least one of the circumstances encompassed by the
exceptions. Second, the probative value of such evi-
dence must outweigh the prejudicial effect of the other
crime evidence. . . . Since the admission of uncharged
misconduct evidence is a decision within the discretion
of the trial court, we will draw every reasonable pre-
sumption in favor of the trial court’s ruling. . . . We
will reverse a trial court’s decision only when it has
abused its discretion or an injustice has occurred.’’
(Internal quotation marks omitted.) State v. Lynch, 123
Conn. App. 479, 484–85, 1 A.3d 1254 (2010).
The following legal principles inform our analysis.
‘‘Evidence of a defendant’s uncharged misconduct is
inadmissible to prove that the defendant committed the
charged crime or to show the predisposition of the
defendant to commit the charged crime. . . . Excep-
tions to this rule have been recognized, however, to
render misconduct evidence admissible if, for example,
the evidence is offered to prove intent, identity, malice,
motive, a system of criminal activity or the elements
of a crime.’’ (Internal quotation marks omitted.) Id.,
484. To be admissible under the identity exception,
‘‘the factual characteristics shared by the charged and
uncharged crimes must be sufficiently distinctive and
unique as to be like a signature [so that] it logically
could be inferred that if the defendant is guilty of one
[crime] he must be guilty of the other. . . . [See] State
v. Ibraimov, 187 Conn. 348, 354, 446 A.2d 382 (1982)
(Evidence of other crimes or misconduct of an accused
is admissible on the issue of identity where the methods
used are sufficiently unique to warrant a reasonable
inference that the person who performed one misdeed
also did the other. Much more is required than the fact
that the offenses fall into the same class. The device
used must be so unusual and distinctive as to be like
a signature. . . .). Thus, for evidence to be admissible
on the issue of identity, there must be sufficient inde-
pendent evidence relating to the precise method by
which the charged crime was committed to allow the
jury to determine that that method was identical to the
method previously used by the defendant.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Snelgrove, 288 Conn. 742, 765, 954 A.2d 165 (2008). In
the present case, there was no evidence relating to such
similarities between the charged and uncharged mis-
conduct.
Even assuming some relevance and materiality to the
issue of identity, the probative value of the uncharged
misconduct testimony in this case was outweighed by
its prejudicial effect. Here, the prejudicial effect was
magnified by the similarity between the charged
offenses and the misconduct testimony. See, e.g., State
v. Vega, 259 Conn. 374, 398–99, 788 A.2d 1221, cert.
denied, 537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56
(2002). Moreover, there was little probative value in
light of the fact that Motel had made identifications of
the defendant as the person who sold him drugs. We
therefore conclude that the court improperly admitted
the testimony about the target photographs. That deter-
mination does not, however, end our discussion.
We must address whether the improper admission
of the uncharged misconduct testimony was harmful.
‘‘When an improper evidentiary ruling is not constitu-
tional in nature, the defendant bears the burden of dem-
onstrating that the [impropriety] was harmful. . . . [A]
nonconstitutional [impropriety] is harmless when an
appellate court has a fair assurance that the [impropri-
ety] did not substantially affect the verdict.’’ (Internal
quotation marks omitted.) State v. Boyd, 295 Conn. 707,
743, 992 A.2d 1071 (2010), cert. denied, U.S. ,
131 S. Ct. 1474, 179 L. Ed. 2d 314 (2011). We conclude
that its admission was harmless.
The central and contested issue in this case was
whether the defendant or someone else sold Motel
drugs. The uncharged misconduct testimony, which
implied that the defendant previously had sold drugs
in the area, could have furnished the jury with the idea
that the defendant was the seller in the present case.
Even so, there was additional persuasive evidence that
also could have convinced the jury of that fact. See id.,
744. The two sales to Motel, for example, occurred on
the upstairs landing directly outside of the defendant’s
apartment. Moreover, Motel identified the defendant,
both in-court and out-of-court, as the individual from
whom he had purchased drugs. Although the defendant
challenged the accuracy of those identifications at trial,
the record establishes that Motel had two separate
opportunities, and a fair amount of time, to look closely
at the seller. He also stood, on both occasions, nearly
face-to-face with the seller. See, e.g., State v. Murrell,
7 Conn. App. 75, 91, 507 A.2d 1033 (1986).
Additionally, the uncharged misconduct testimony
was only a small aspect of a larger trial. Id. None of
the witnesses discussed the target photographs at
length. Nor did the target photographs feature promi-
nently in the state’s closing arguments.
Finally, any harm caused by the uncharged miscon-
duct testimony was minimized by the court’s limiting
instructions. See State v. Howard, 187 Conn. 681, 688,
447 A.2d 1167 (1982). The court twice instructed the
jury that it could not use the testimony to infer that the
defendant had a propensity to commit crime or had a
bad character. Nevertheless, the defendant argues that
the harm was not lessened in this case, because the
instructions improperly directed the jury to use the
testimony to prove the defendant’s identity. That argu-
ment ignores the accompanying portion of the court’s
instructions, which helped to make certain that the
defendant was not harmed by the admission of the
uncharged misconduct testimony. The jury is presumed
to follow the instructions in full. See, e.g., State v. Wil-
liams, 258 Conn. 1, 15 n.14, 778 A.2d 186 (2001).
For these reasons, we have a fair assurance that the
prior uncharged misconduct testimony did not substan-
tially affect the verdict.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The photographs were not preserved, and therefore never admitted
into evidence.
2
See State v. Boyd, 295 Conn. 707, 739, 992 A.2d 1071 (2010) (we review
interpretation of Connecticut Code of Evidence under plenary standard of
review), cert. denied, U.S. , 131 S. Ct. 1474, 179 L. Ed. 2d 314 (2011).
3
The following exchange occurred between the prosecutor and Detective
Nicholas Puorro:
‘‘[The Prosecutor]: Where did you go once you left the . . . briefing with
Detective Motel?
‘‘[The Witness]: We left the briefing. We headed to our target area, which
was the north end of Main Street. We were in a vehicle. We immediately
proceeded up there, did a quick surveillance of the area just to see who . . . .
‘‘[The Prosecutor]: Did a quick surveillance of the area. What was the
purpose of that?
‘‘[The Witness]: Just to see if any . . . of the known drug dealers, narcotic
dealers or targets for our investigation were out and about in the area. We
were focused on street level dealers and we just went to see if there was
anybody in the area that we knew of immediately.’’ (Emphasis added.)