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STATE OF CONNECTICUT v. ISMAIL H.
ABDUS-SABUR
(AC 41515)
Keller, Prescott and Pellegrino, Js.
Syllabus
Convicted, after a jury trial, of the crimes of murder and criminal possession
of a firearm in connection with the shooting death of the victim, the
defendant appealed to this court. He claimed, inter alia, that that there
was insufficient evidence to support his murder conviction because the
state did not establish that he had the specific intent to cause the death
of the victim. Held:
1. The defendant’s claim that there was insufficient evidence to prove the
specific intent element necessary to support his murder conviction was
unavailing: the jury reasonably could have inferred from the evidence
and testimony that the defendant had the requisite intent to kill, as an
intent to kill could have been inferred from his use of a deadly weapon
when he repeatedly shot a firearm into a group of people who were
standing together within a close range, striking and killing the victim,
and the shooting followed an altercation earlier in the night between
the defendant and the victim’s two sons and, thus, the defendant had
a motive to seek retribution; moreover, there was evidence of the defen-
dant’s conduct after the shooting from which the jury could have inferred
an intent to kill, as the defendant threatened the victim’s sons the day
after the shooting, and the defendant displayed a consciousness of guilt
by immediately fleeing the scene following the shooting, travelling out
of town the following day, and leaving the state later that week.
2. The defendant could not prevail on his claim that the court improperly
denied his request for a third-party culpability instruction, as the defen-
dant did not establish a direct connection between the third party, C,
and the offense with which the defendant was charged; the only evidence
before the jury suggesting that C was the shooter was the testimony of
a witness that another person had told her that C was the shooter, which
was admitted as a prior inconsistent statement for the sole purpose of
impeaching the witness, and defense counsel conceded at oral argument
before this court that there was no evidence regarding C’s culpability
that was admitted for substantive proposes.
3. The defendant’s claim that the trial court abused its discretion in admitting
into evidence testimony regarding the defendant’s alleged gang affilia-
tion, which he claimed constituted improper uncharged misconduct
evidence, was not reviewable; the defendant failed to address in his
principal or reply brief to this court how the allegedly improper admis-
sion of the uncharged misconduct evidence constituted harmful error,
and although he addressed the prejudicial effect of the uncharged mis-
conduct evidence in his principal brief, prejudicial effect and harmful
error are not necessarily equivalent and must be briefed separately.
Argued February 11—officially released June 18, 2019
Procedural History
Substitute information charging the defendant with
the crimes of murder, manslaughter in the first degree
with a firearm, and criminal possession of a firearm,
brought to the Superior Court in the judicial district of
Waterbury and tried to the jury before Cremins, J.;
thereafter, the court denied the defendant’s motion for
a judgment of acquittal as to the count of murder; ver-
dict and judgment of guilty of murder and criminal
possession of a firearm, from which the defendant
appealed to this court. Affirmed.
Jodi Zils Gagné, for the appellant (defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Cynthia S. Serafini and Don E. Therkildsen,
Jr., senior assistant state’s attorneys, for the appellee
(state).
Opinion
PRESCOTT, J. The defendant, Ismail H. Abdus-Sabur,
appeals from the judgment of conviction, rendered after
a jury trial, of murder in violation of General Statutes
§ 53a-54a and criminal possession of a firearm in viola-
tion of General Statutes § 53a-217 (a) (1). The defendant
claims on appeal that (1) there was insufficient evidence
to prove beyond a reasonable doubt that he possessed
the specific intent to kill, as required for the crime of
murder, (2) the trial court improperly denied his request
for a third-party culpability instruction, and (3) that
the court improperly admitted evidence of his gang
affiliation. We disagree and, accordingly, affirm the
judgment of the trial court.
The facts, as could have been reasonably found by
the jury, and procedural history, are as follows. On the
evening of January 17, 2014, the defendant was at an
apartment on the third floor of a Waterbury housing
complex known as ‘‘Brick City.’’ The defendant’s
friends, Arvaughn Clemente and Daniel Clinton, were
hosting a house party at the apartment. The defendant’s
brother, Isa Abdus-Sabur (Isa), and Ryan Curry, Sthal-
ron Freeman, and Katrina Montgomery were also in
attendance. Clemente was dating Ja-Ki Calloway, who
was also in the apartment. Calloway’s father, Kareem
Morey, Sr. (victim), rented a second floor apartment in
the same complex, where he resided with his adult son,
Kareem Morey, Jr. (Kareem). On the evening of January
17, 2014, his other son, Kentrell Morey, was also at the
housing complex.
That night, Calloway’s brother, Kareem learned that
Clemente had assaulted Calloway, and became angry.
Kareem and Kentrell then presented themselves at the
third floor apartment and demanded that Calloway
leave the apartment, but she refused. Kareem wanted to
fight Clemente for having assaulted his sister. A verbal
altercation then ensued between the Morey brothers
and the men inside the apartment, which spilled onto
the landing outside the apartment. The altercation esca-
lated into a fist fight between a number of the party
attendees and the Morey brothers.
After the fight ended, the Morey brothers, upset by the
altercation, left and walked to a nearby neighborhood
to recruit additional people to renew the fight. They
also called the victim, who had not been present at the
initial altercation, and he informed them that he would
return home. When the Morey brothers left, the par-
tygoers returned to the third floor apartment. At this
point, Montgomery overheard the defendant mention a
gun to the other men at the party.
At about 10:30 p.m., the Morey brothers returned to
Brick City with four additional men. Around this time,
the victim also returned and parked his car on the street
outside of the housing complex. The Morey brothers
then entered the interior courtyard of Brick City
through a passage from the street and climbed the stairs
to the landing outside of Clemente and Clinton’s third
floor apartment. The victim remained standing at
ground level in the courtyard near the foot of the stairs.
The Morey brothers began kicking Clemente and Clin-
ton’s apartment door. Eventually, the door to the apart-
ment opened, but all the lights were off inside the
apartment. Shortly thereafter, Kareem heard the ‘‘click,
click’’ sound of a gun. The Morey brothers then fled by
descending the stairs toward the courtyard.
As the Morey brothers retreated down the stairs, the
occupants of Clemente and Clinton’s apartment
emerged onto the third floor landing overlooking the
courtyard. Within the crowd on the third floor porch
were the defendant, Isa, Clemente, Clinton, Curry, and
Freeman. The defendant then began firing a black hand-
gun from the railing of the landing toward the people
in the courtyard below.
By the time the defendant started shooting, the Morey
brothers had arrived at the bottom of the stairs, where
the victim was standing. When the victim heard the first
gunshot, he pushed Kareem out of the way. The victim
was then struck in the chest with a .45 caliber bullet.
He told his sons that he had been hit and ran out of
the courtyard through the passage toward his parked
vehicle. The victim was driven to St. Mary’s Hospital
in Waterbury, where he later died as a result of the
gunshot wound to his chest.
Following the shooting, the defendant and Isa ran to
the defendant’s car and left Brick City. The next day,
the defendant and Isa pulled up in a sports utility vehicle
alongside Kentrell’s girlfriend, Zyaira Cummings, while
she was walking on a street near Brick City. The defen-
dant then said to Cummings, ‘‘they’re next,’’ which she
interpreted to be a threat against the Morey brothers,
whom she then warned about the interaction. On Janu-
ary 18, 2014, the day after the shooting, the defendant
fled to Southington. On January 21, 2014, the defendant
traveled to New York City. That same day, the police
obtained a warrant for his arrest. The defendant eventu-
ally turned himself in on January 27, 2014.
After a trial by jury, the defendant was convicted of
murder and criminal possession of a firearm. The court
sentenced the defendant to forty-five years of incarcera-
tion for his conviction of murder and two years of
concurrent incarceration for his conviction of criminal
possession of a firearm, for a total effective sentence of
forty-five years of incarceration. This appeal followed.
I
The defendant claims that there was insufficient evi-
dence to prove beyond a reasonable doubt that he pos-
sessed the specific intent to cause the death of the
victim.1 We disagree.
The following additional procedural history is rele-
vant to this claim. At the close of the state’s evidence,
the defendant made a motion for a judgment of acquit-
tal, contending that the evidence was insufficient to
prove beyond a reasonable doubt that he intended to
cause the death of the victim. Specifically, defense
counsel argued that the evidence that the defendant
possessed and fired a firearm was insufficient to estab-
lish the requisite intent to cause the death of the victim.
The court denied the defendant’s motion.
‘‘The standard of review we apply to a claim of insuffi-
cient evidence is well established. In reviewing the suffi-
ciency of the evidence to support a criminal conviction
we apply a two-part test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [finder of fact] reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt.’’ (Citation omitted;
internal quotation marks omitted.) State v. Perkins, 271
Conn. 218, 246, 856 A.2d 917 (2004).
‘‘Because [t]he only kind of an inference recognized
by the law is a reasonable one [however] . . . any such
inference cannot be based on possibilities, surmise or
conjecture. . . . It is axiomatic, therefore, that [a]ny
[inference] drawn must be rational and founded upon
the evidence. . . . [T]he line between permissible
inference and impermissible speculation is not always
easy to discern. When we infer, we derive a conclusion
from proven facts because such considerations as expe-
rience, or history, or science have demonstrated that
there is a likely correlation between those facts and the
conclusion. If that correlation is sufficiently compelling,
the inference is reasonable. But if the correlation
between the facts and the conclusion is slight, or if a
different conclusion is more closely correlated with the
facts than the chosen conclusion, the inference is less
reasonable. At some point, the link between the facts
and the conclusion becomes so tenuous that we call it
speculation. When that point is reached is, frankly, a
matter of judgment.’’ (Internal quotation marks omit-
ted.) State v. Reynolds, 264 Conn. 1, 93, 836 A.2d 224
(2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158
L. Ed. 2d 254 (2004).
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multi-
tude of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [finder] of fact is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [finder of fact]
may draw whatever inferences from the evidence or
facts established by the evidence it deems to be reason-
able and logical. . . .
‘‘[A]s we have often noted, proof beyond a reasonable
doubt does not mean proof beyond all possible doubt
. . . nor does proof beyond a reasonable doubt require
acceptance of every hypothesis of innocence posed by
the defendant that, had it been found credible by the
[finder of fact], would have resulted in an acquittal.
. . . On appeal, we do not ask whether there is a reason-
able view of the evidence that would support a reason-
able hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports
the [finder of fact’s] verdict of guilty.’’ (Citation omitted;
internal quotation marks omitted.) State v. Perkins,
supra, 271 Conn. 246–47.
‘‘[I]t is well settled that the specific intent to kill is
an essential element of the crime of murder. To act
intentionally, the defendant must have had the con-
scious objective to cause the death of the victim. . . .
Because direct evidence of the accused’s state of mind
is rarely available . . . intent is often inferred from
conduct . . . and from the cumulative effect of the
circumstantial evidence and the rational inferences
drawn therefrom. . . . Intent to cause death may be
inferred from the type of weapon used, the manner in
which it was used, the type of wound inflicted and the
events leading to and immediately following the death.’’
(Internal quotation marks omitted.) State v. Bennett,
307 Conn. 758, 780, 59 A.3d 221 (2013).
Finally, ‘‘transporting a deadly weapon to the location
where that weapon ultimately is used supports an infer-
ence of an intent to kill.’’ State v. Otto, 305 Conn. 51,
71, 43 A.3d 629 (2012). Moreover, ‘‘an intent to kill can
be inferred merely from the use of a deadly weapon
on another person.’’ (Emphasis added.) State v.
McClam, 44 Conn. App. 198, 210, 689 A.2d 475, cert.
denied, 240 Conn. 912, 690 A.2d 400 (1997). ‘‘One who
uses a deadly weapon upon a vital part of another will
be deemed to have intended the probable result of that
act, and from such a circumstance a proper inference
may be drawn in some cases that there was an intent
to kill. . . . A pistol . . . or gun is a deadly weapon
per se.’’ (Citations omitted; internal quotation marks
omitted.) State v. Rasmussen, 225 Conn. 55, 72, 621
A.2d 728 (1993).
In the present case, the jury was presented with evi-
dence that the defendant repeatedly shot a firearm into
a group of people who were standing together within
a close range, striking and killing the victim. Therefore,
an intent to kill can be inferred based solely on the
defendant’s use of a deadly weapon on another person.
Moreover, even if Kareem was the intended target, the
fact that the defendant struck the victim does not under-
mine the existence of the necessary specific intent to
cause the death of another person. See State v. Gary,
273 Conn. 393, 411–12, 869 A.2d 1236 (2005) (defendant
who, under chaotic circumstances, shot bystander
rather than intended target possessed intent to kill).
‘‘The doctrine of transferred intent operates to render
a defendant culpable of the murder of a third person
when the defendant causes the death of that third per-
son with the intent to cause the death of someone else.
. . . The principle, which is reflected in the express
language of § 53a–54a (a),2 represents a policy determi-
nation by the legislature that a defendant who engages
in such conduct is no less culpable than if he had killed
his intended victim.’’ (Citations omitted; footnote
added.) State v. Courchesne, 296 Conn. 622, 719, 998
A.2d 1 (2010).
Furthermore, the events leading to and immediately
following the victim’s death support a finding that the
defendant possessed the intent to kill. The shooting
followed an altercation earlier in the night between
the partygoers, including the defendant and the Morey
brothers. Accordingly, the defendant had a motive to
seek retribution. See State v. Gary, supra, 273 Conn.
407 (evidence that defendant had been involved in alter-
cation with intended victim on night of murder, and
intended victim had punched defendant, supported
inference that defendant had motive to kill).
Additionally, there was evidence that the defendant
fled the scene directly after the shooting, travelled out
of town the next day, and travelled out of state later
that week. These facts are indicia of an intent to kill.
See State v. Melendez, 74 Conn. App. 215, 223 n.5, 811
A.2d 261 (2002) (‘‘[T]he defendant’s fleeing the scene
[of the murder] and subsequent flight to Puerto Rico
are evidence of his consciousness of guilt. ‘We have in
the past considered consciousness of guilt evidence as
part of the evidence from which a jury may draw an
inference of an intent to kill.’ ’’), cert. denied, 262 Conn.
951, 817 A.2d 111 (2003). Finally, there was evidence
that the defendant threatened the Morey brothers the
day after the murder by stating ‘‘they’re next’’ to Cum-
mings. This evidence further supports the conclusion
that the defendant had the specific intent to kill.
In sum, from the cumulative weight of this evidence,
the jury reasonably could have concluded beyond a
reasonable doubt that the defendant possessed the spe-
cific intent required for murder. Accordingly, we reject
the defendant’s claim that the trial court improperly
denied his motion for a judgment of acquittal.
II
The defendant next claims that the court improperly
denied his request for a third-party culpability instruc-
tion. We disagree.
The following facts are relevant to this claim. Nunez,
who lived in Brick City and was present at the shooting,
identified the defendant as the shooter on several occa-
sions during her testimony. Nunez also stated that she
did not see anyone other than the defendant with a gun.
Nunez was impeached, however, by a prior inconsistent
statement that she admitted she had made to her friend,
Queyla Martinez, that she did not see the shooter. She
also testified that Kareem told her that Clinton was
the shooter.
At the conclusion of the evidentiary portion of the
trial, the court instructed the jury that the testimony
of Nunez, Kareem, and Martinez given on December 7,
2016, that related to whether Clinton was the shooter
was not substantive evidence in the case but, instead,
could be considered only for impeachment purposes.3
Following closing arguments, but before the court
charged the jury, defense counsel, contending that Clin-
ton was the actual shooter on the night of the incident,
requested a jury charge on third-party culpability. Spe-
cifically, defense counsel relied on testimony from
Nunez that Kareem had told her that Clinton was the
shooter.4
The court denied the request for a third-party culpa-
bility instruction. After the court charged the jury,
defense counsel took an exception to the charge and
renewed his request for a third-party culpability charge.
The state argued that it would be inappropriate to give
such a charge because the only evidence before the
jury suggesting that Clinton was the shooter was admit-
ted for impeachment purposes only. The court again
declined to instruct the jury on third-party culpability,
stating that there must be more than a mere suspicion
that Clinton was the shooter, and that there was no
substantive evidence that Clinton was the shooter in
this case.
On appeal, defense counsel conceded during oral
argument that there was no evidence regarding Clin-
ton’s culpability that was admitted for substantive pur-
poses.5 Moreover, the defendant does not challenge on
appeal the court’s decision limiting the testimony to
impeachment purposes only.
‘‘In determining whether the trial court improperly
refused a request to charge, [w]e . . . review the evi-
dence presented at trial in the light most favorable to
supporting the . . . proposed charge. . . . A request
to charge which is relevant to the issues of [a] case and
which is an accurate statement of the law must be given.
. . . If, however, the evidence would not reasonably
support a finding of the particular issue, the trial court
has a duty not to submit it to the jury. . . . Thus, a
trial court should instruct the jury in accordance with
a party’s request to charge [only] if the proposed instruc-
tions are reasonably supported by the evidence. . . .
‘‘It is well established that a defendant has a right to
introduce evidence that indicates that someone other
than the defendant committed the crime with which
the defendant has been charged. . . . The defendant
must, however, present evidence that directly connects
a third party to the crime. . . . It is not enough to show
that another had the motive to commit the crime . . .
nor is it enough to raise a bare suspicion that some
other person may have committed the crime of which
the defendant is accused. . . .
‘‘The admissibility of evidence of third party culpabil-
ity is governed by the rules relating to relevancy. . . .
Relevant evidence is evidence having any tendency to
make the existence of any fact that is material to the
determination of the proceeding more probable or less
probable than it would be without the evidence. . . .
Accordingly, in explaining the requirement that the
proffered evidence establish a direct connection to a
third party, rather than raise merely a bare suspicion
regarding a third party, we have stated: Such evidence
is relevant, exculpatory evidence, rather than merely
tenuous evidence of third party culpability [introduced
by a defendant] in an attempt to divert from himself
the evidence of guilt. . . . In other words, evidence
that establishes a direct connection between a third
party and the charged offense is relevant to the central
question before the jury, namely, whether a reasonable
doubt exists as to whether the defendant committed the
offense. Evidence that would raise only a bare suspicion
that a third party, rather than the defendant, committed
the charged offense would not be relevant to the jury’s
determination. A trial court’s decision, therefore, that
third party culpability evidence proffered by the defen-
dant is admissible, necessarily entails a determination
that the proffered evidence is relevant to the jury’s
determination of whether a reasonable doubt exists as
to the defendant’s guilt. . . .
‘‘[I]f the evidence pointing to a third party’s culpabil-
ity, taken together and considered in the light most
favorable to the defendant, establishes a direct connec-
tion between the third party and the charged offense,
rather than merely raising a bare suspicion that another
could have committed the crime, a trial court has a duty
to submit an appropriate charge to the jury.’’ (Citations
omitted; emphasis added; internal quotation marks
omitted.) State v. Arroyo, 284 Conn. 597, 607–10, 935
A.2d 975 (2007).
In the present case, there simply was no evidence
that tended to establish a direct connection between
Clinton and the charged offense. The defendant cites
only to testimony by Nunez that she had told Martinez
that she did not know the identity of the shooter, and
that she had heard from Kareem that Clinton was the
shooter. Importantly, this testimony was not admitted
for its truth, but rather only to assess the credibility of
the witnesses’ testimony. Defense counsel conceded
at oral argument before this court that there was no
substantive evidence that Clinton was the shooter. See
footnote 5 of this opinion. Accordingly, we conclude
that the court properly determined that the defendant
was not entitled to a jury instruction on third-party cul-
pability.
III
Finally, the defendant claims that the court abused
its discretion by permitting Nunez and Kareem to testify
regarding the defendant’s gang affiliation. In particular,
the defendant argues that this evidence was improperly
permitted because it constituted uncharged misconduct
and did not fall within one of the exceptions provided
by § 4-5 (c) of the Connecticut Code of Evidence.6 More-
over, the defendant argues that the evidence was unduly
prejudicial and that its prejudicial effect outweighed its
probative value. We decline to reach this claim because
the defendant failed to brief whether the admission of
this testimony constituted harmful error. Accordingly,
we deem the claim abandoned.
The following additional facts and procedural history
are relevant to our resolution of this claim. Prior to
trial, the state filed a notice of uncharged misconduct
evidence, indicating that it intended to present evidence
of the defendant’s gang affiliation. The defendant
objected to admission of such evidence, and the court
deferred ruling on the evidentiary issue. Thereafter,
prior to the start of trial, the court directed that, until
it had ruled on an offer of proof outside the jury’s
presence, witnesses were not to mention the defen-
dant’s gang affiliation. The court stated that it would
consider each offer of each witness’ testimony individu-
ally, and would not make a blanket ruling on the issue.
At trial, during Nunez’ direct examination, the state
asked for the jury to be excused and, outside the jury’s
presence, notified the court that it anticipated asking
Nunez about the defendant’s gang affiliation. The state
then examined Nunez outside the presence of the jury,
where she stated that she had not reported the shooting
to the police on the night it occurred because she was
afraid ‘‘that somebody would do something to [her].’’
When asked who she meant by ‘‘somebody,’’ she replied,
‘‘the Bloods.’’ After hearing this proffer, the court ruled
that it would allow the examination, but that it would
provide a limiting instruction. The jury returned and
the prosecutor elicited the proffered testimony from
the witness that implied that the defendant was a mem-
ber of the Bloods.7
Kareem also testified that the defendant was in a
gang. There was a proffer of this testimony outside the
presence of the jury before it was admitted. At the
request of defense counsel, when the prosecutor ques-
tioned the witness he specifically used a transcript of
the approved questions from the proffer.
We now turn to the relevant law. ‘‘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 com-
mit the charged crime. . . . Exceptions 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 sys-
tem of criminal activity or the elements of a crime. . . .
To determine whether evidence of prior misconduct
falls within an exception to the general rule prohibiting
its admission, 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
evidence must outweigh the prejudicial effect of the
other crime evidence. . . . [Because] the admission of
uncharged misconduct evidence is a decision within
the discretion of the trial court, we will draw every
reasonable presumption in favor of the trial court’s
ruling. . . . We will reverse a trial court’s decision only
[if] it has abused its discretion or an injustice has
occurred. . . .
‘‘It is well settled that, absent structural error, the
mere fact that a trial court rendered an improper ruling
does not entitle the party challenging that ruling to
obtain a new trial. An improper ruling must also be
harmful to justify such relief. . . . It is a fundamental
rule of appellate review of evidentiary rulings that if
[the] error is not of constitutional dimensions, an appel-
lant has the burden of establishing that there has been
an erroneous ruling [that] was probably harmful to him.
. . . We do not reach the merits of [a] claim [if] the
defendant has not briefed how he was harmed by the
allegedly improper evidentiary ruling.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Toro,
172 Conn. App. 810, 815–17, 162 A.3d 63, cert. denied,
327 Conn. 905, 170 A.3d 2 (2017)
‘‘[W]hether [an improper ruling] is harmless in a par-
ticular case depends upon a number of factors, such
as the importance of the witness’ testimony in the prose-
cution’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 per-
mitted, and, of course, the overall strength of the prose-
cution’s case. . . . Most importantly, we must examine
the impact of the . . . evidence on the trier of fact and
the result of the trial. . . . [T]he proper standard for
determining whether an erroneous evidentiary ruling
is harmless should be whether the jury’s verdict was
substantially swayed by the error. . . . Accordingly, a
nonconstitutional error is harmless when an appellate
court has a fair assurance that the error did not substan-
tially affect the verdict.’’ (Internal quotation marks omit-
ted.) Id., 817.
Although the defendant in his brief discusses the
prejudicial effect of the evidence that he was a member
of a gang, he does so in the context of arguing that the
evidence was inadmissible because its prejudicial effect
outweighed its probative value. What the defendant has
failed to do, however, is to analyze whether the allegedly
erroneous admission of this evidence deprived him of
a fair trial, in other words, that the admission of the
evidence constituted harmful error.
As the court noted in State v. Toro, supra, 172 Conn.
App. 819, the concept of the prejudicial effect of evi-
dence and whether its admission constitutes harmful
error ‘‘may overlap with one another to some extent,
[but they] are not necessarily equivalent and must be
briefed separately. . . . Indeed, it is not inconsistent
for a reviewing court to conclude that, although evi-
dence was unduly prejudicial, and thus improperly
admitted at trial, its improper admission nevertheless
was harmless.’’ (Citation omitted.)
In the present case, beyond summarily concluding
that the court’s decision to allow witness testimony
regarding the defendant’s gang affiliation prejudiced
him, and stating in his reply brief that ‘‘[t]his error is
not harmless because it painted the defendant in a very
negative and violent light,’’ the defendant has failed
to address the issue of whether the alleged error was
harmful in light of the evidence as a whole and the
court’s limiting instruction. The defendant has the bur-
den of demonstrating that the court’s allegedly
improper ruling likely affected the outcome of the trial.
‘‘[W]e are not required to review issues that have
been improperly presented to this court through an
inadequate brief. . . . Analysis, rather than mere
abstract assertion, is required in order to avoid aban-
doning an issue by failure to brief the issue properly.
. . . [F]or this court judiciously and efficiently to con-
sider claims of error raised on appeal . . . the parties
must clearly and fully set forth their arguments in their
briefs. . . . The parties may not merely cite a legal
principle without analyzing the relationship between
the facts of the case and the law cited.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Buhl,
321 Conn. 688, 724, 138 A.3d 868 (2016). Because the
defendant has failed adequately to brief the question
of whether the allegedly erroneous admission of his
membership in a gang was harmful, we deem his claim
abandoned. See id.
The judgment is affirmed.
In this opinion the other judges concurred.
1
For jurisprudential reasons, we address the sufficiency of the evidence
claim first, although this differs from the order the claims were presented
by the defendant in his principal appellate brief.
2
General Statutes § 53a-54a (a) provides in relevant part: ‘‘A person is
guilty of murder when, with intent to cause the death of another person,
he causes the death of such person or of a third person . . . .’’
3
The court provided the following limiting instruction: ‘‘The testimony
that you heard today from Ms. Nunez, from [Kareem], and most recently
just now from Ms. Martinez, again, that testimony related to alleged prior
consistent and inconsistent statements made by other individuals. Therefore,
the only thing you could use those statements for is for credibility. You
cannot use them for substantive purposes to the truth of their content.
‘‘This is the situation under our rules that statements that were or were
not made—allegedly were or were not made go to the credibility of that
witness, not to the substance of what the person may or may not have said.
So it’s limited to credibility. It’s not for the truth of the matter asserted in
the counts.’’
4
Witnesses at the trial frequently referred to Daniel Clinton by the nick-
names of ‘‘Country’’ and ‘‘DaDa.’’
5
The panel at oral argument before this court asked defense counsel
whether there was ‘‘any evidence in this record that you say supports a third-
party culpability instruction where the evidence was admitted for something
other than impeachment purposes?’’ Defense counsel replied, ‘‘There was
none, Your Honor.’’
6
Section 4-5 (c) of the Connecticut Code of Evidence provides in relevant
part: ‘‘Evidence of other crimes, wrongs or acts of a person is admissible
. . . to prove intent, identity, malice, motive, common plan or scheme,
absence of mistake or accident, knowledge, a system of criminal activity,
or an element of the crime, or to corroborate crucial prosecution testimony.’’
7
The court provided the following limiting instruction: ‘‘There are certain
circumstances under which evidence is admitted for a limited purpose only.
The testimony that you just heard about any relationship to a gang is admitted
solely for purposes of establishing why this witness did not give a statement
earlier than the time that she did, that’s the only thing that it’s admitted for,
nothing else, it’s limited to that purpose, you can use it for nothing else.’’