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STATE OF CONNECTICUT v. JEAN BRUNY
(SC 20174)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
Convicted of the crimes of murder and criminal possession of a pistol or
revolver in connection with the shooting death of the victim inside a
nightclub, the defendant appealed to this court. Prior to the shooting,
the defendant and several other individuals, including T, H and M, arrived
at the nightclub. About forty-five minutes later, the victim arrived with
his cousin, W, and a few friends. The victim’s group and the defendant’s
group were at opposite ends of the nightclub’s main room. Soon there-
after, the defendant made his way toward the area where the victim’s
group was standing and stood behind them. Immediately after someone
in the defendant’s group threw a bottle at the victim’s group, the defen-
dant stepped forward, aimed a handgun at the back of the victim’s head,
and fired. The victim fell to the ground, and the defendant ran and
exited the nightclub. Video from before, during and after the shooting
was captured on surveillance cameras in or around the nightclub. Multi-
ple witnesses who either knew the defendant or were acquainted with
him provided testimony at the defendant’s trial identifying him in the
surveillance footage. On appeal to this court from the judgment of
conviction, held:
1. The defendant could not prevail on his claim that the trial court had
abused its discretion in admitting the testimony of four lay witnesses,
T, H, M, and S, identifying the defendant as one of the persons depicted
in the surveillance footage of the interior and exterior of the nightclub
where the shooting occurred insofar as their testimony improperly
embraced an ultimate issue to be decided by the jury, in violation of
the Connecticut Code of Evidence (§ 7-3 (a)): in State v. Gore (342 Conn.
129), this court amended § 7-3 (a) of the Code of Evidence to incorporate
an exception to the ban on lay opinion testimony that embraces an
ultimate issue for opinion testimony that relates to the identification of
a criminal defendant depicted in a surveillance video or photograph,
and such testimony is admissible if, in accordance with the provision
(§ 7-1) of the Code of Evidence governing the admissibility of lay opinion
testimony, it is rationally based on the perception of the witness and
is helpful to a clear understanding of that witness’ testimony or the
determination of a fact in issue; moreover, testimony identifying a defen-
dant in surveillance footage meets the requirements of § 7-1 if there is
some basis for concluding that the witness is more likely to correctly
identify the defendant from the footage than is the jury, and that determi-
nation should be based on consideration of several factors, in light of
the totality of the circumstances, including the witness’ general familiar-
ity with the defendant’s appearance, the witness’ familiarity with the
defendant’s appearance, including items of clothing worn, at the time
that the surveillance video or photographs were taken, a change in
the defendant’s appearance between the time the surveillance video or
photographs were taken and the time of trial, or the subject’s use of a
disguise in the surveillance footage, and the quality of the video or
photographs, as well as the extent to which the subject is depicted in
the surveillance footage; in the present case, S, T and H had sufficient
general familiarity with the defendant, as S was the defendant’s foster
mother, and all three witnesses had known the defendant for many
years, and, although the degree of M’s general familiarity with the defen-
dant was low, she, T and H were with the defendant on the day of the
shooting and were familiar with his appearance at the time that the
surveillance footage was taken; furthermore, the fact that the defendant’s
appearance had changed between the time that the surveillance footage
was recorded and the time of trial, as well as the quality of the video,
weighed in favor of the admissibility of the challenged testimony.
2. The defendant could not prevail on his claim that the trial court improperly
had admitted the expert testimony of E, a forensic examiner, regarding
an enhanced video that he compiled from the raw surveillance footage
of the nightclub and in which he tracked the movement of certain
individuals throughout the nightclub using alphanumeric codes, on the
ground that E’s testimony invaded the province of the jury, in violation
of § 7-3 (a) of the Connecticut Code of Evidence: this court determined
that expert testimony pertaining to the identification of a defendant in
surveillance footage is admissible if it comports with the requirements
of the provision (§ 7-2) of the Connecticut Code of Evidence governing
the admissibility of expert testimony, and the trial court correctly con-
cluded that E’s testimony met those requirements, as E’s experience
and training in the area of forensic video analysis were extensive, his
skill and knowledge were directly applicable to the jury’s task of interpre-
ting the surveillance footage, his expertise enabled him to analyze the
surveillance footage in a manner that was beyond the ability of the
average person, and his testimony and the enhanced video itself likely
were helpful to the jury; moreover, E never identified the defendant as
the shooter, the identity of the defendant as the shooter in the video
was a determination left to the jury, and, therefore, E’s testimony did
not invade the province of the jury; accordingly, the trial court acted
within its broad discretion in admitting E’s testimony.
3. This court declined to address the defendant’s claim concerning whether
the trial court had incorrectly concluded that defense counsel opened
the door to certain of E’s testimony on redirect examination regarding
the surveillance footage, because, even if that conclusion had been
incorrect, the defendant failed to demonstrate that any error was harm-
ful; although this court found it troubling that the trial court permitted
E to testify, during redirect examination, that the notes of a special
agent with the Federal Bureau of Investigation indicated that the individ-
ual labeled with a certain alphanumeric code in the enhanced video and
who shot the victim was the defendant, insofar as the trial court, in
doing so, undermined all attempts to distance E’s testimony from directly
identifying the defendant as the shooter, the state presented overwhelm-
ing evidence that the individual in the video who was assigned that
specific alphanumeric code shot the victim and that that individual was
the defendant.
4. The trial court did not abuse its discretion in denying the defendant’s
request for a special credibility instruction as to P, a witness who was
in prison at the time of the defendant’s trial and who, according to the
defendant, should have been treated as a jailhouse informant when he
testified that, one month before the shooting, he observed the defendant
with a gun and acknowledged on cross-examination that he was hoping
to receive favorable treatment in exchange for the information he pro-
vided: the rule requiring a special credibility instruction for jailhouse
informants did not apply to P’s testimony, as that testimony did not
relate to an inculpatory statement or confession that the defendant made
to P while they were incarcerated together but, rather, concerned P’s
observations of the defendant outside of the prison context; moreover,
although this court previously had expanded the special credibility
instruction requirement to include informants who receive no promise
from the state in exchange for their testimony and incarcerated wit-
nesses who testify that the defendant confessed or made inculpatory
statements to them outside of prison, it declined to adopt a rule requiring
such an instruction for testimony regarding observed events but did not
foreclose the possibility that a trial court could exercise its discretion
to give a special credibility instruction when the witness’ testimony
relates to an event rather than to a statement; furthermore, defense
counsel impeached P’s credibility effectively during cross-examination,
and counsel presented testimony from an expert witness who testified
about the unreliability of jailhouse informants.
(One justice concurring separately)
5. The defendant could not prevail on his claim that the trial court improperly
had denied his motion to suppress the out-of-court and in-court identifi-
cations of the defendant made by W, who was the victim’s cousin, was
present at the nightclub on the night of the shooting, and had ‘‘bad
blood’’ with one of the individuals in the defendant’s group, this court
having determined that, even if the identifications should have been
suppressed, any error in admitting them was harmless: the state’s case
was strong and did not rely on eyewitness testimony but relied, instead,
on the fact that the defendant was captured in the surveillance video
shooting the victim; moreover, defense counsel impeached W’s credibil-
ity thoroughly and effectively during cross-examination, highlighting
many inconsistencies in W’s stories as they evolved each time he met
with law enforcement, and also highlighting that W waited for approxi-
mately three and one-half years to come forward to the police, that he
was incarcerated and faced a lengthy sentence when he did finally come
forward, and that he had a motive to lie because he was testifying
pursuant to a cooperation agreement; furthermore, the testimony of
the defendant’s expert witness concerning the unreliability of jailhouse
informant testimony further reinforced W’s motivation to lie, the trial
court gave a special credibility instruction as to W, reminding the jury
that W was testifying pursuant to a cooperation agreement, and W’s
testimony was cumulative of other, more persuasive evidence.
6. The defendant’s claim that the state had presented insufficient evidence
to prove beyond a reasonable doubt the element of the crime of criminal
possession of a pistol or revolver that the gun in question have a barrel
length of less than twelve inches was unavailing: although the gun that
the defendant allegedly was holding when he shot the victim was not
introduced into evidence and no person testified that he or she saw the
gun on the night of the shooting, that gun was visible in the surveillance
footage and appeared to be approximately the size of the shooter’s hand;
moreover, the expert testimony of a firearm and tool mark examiner
and the testimony of P that, approximately one month prior to the
shooting, he saw the defendant in possession of a semiautomatic hand-
gun that was slightly larger than P’s own hand, provided further support
for a finding that the gun barrel was the requisite length.
Argued November 19, 2020—officially released February 7, 2022*
Procedural History
Substitute information charging the defendant with
the crimes of murder and criminal possession of a pistol
or revolver, brought to the Superior Court in the judicial
district of New Haven, where the court, Blue, J., denied
or denied in part the defendant’s motions to preclude
certain evidence; thereafter, the charge of murder was
tried to the jury before Blue, J.; verdict of guilty; subse-
quently, the charge of criminal possession of a pistol
or revolver was tried to the court; finding of guilty;
thereafter, the court, Blue, J., rendered judgment of
guilty in accordance with the jury’s verdict and the
court’s finding, from which the defendant appealed to
this court. Affirmed.
Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, Seth R. Garbarsky, senior assistant state’s
attorney, and Lisa M. D’Angelo, assistant state’s attor-
ney, for the appellee (state).
Opinion
MULLINS, J. This is the companion case to State v.
Gore, 342 Conn. 129, A.3d (2022), decided today.
In Gore, we amended § 7-3 (a) of the Connecticut Code
of Evidence to incorporate an exception to the ultimate
issue rule for opinion testimony that relates to the iden-
tification of criminal defendants and other persons
depicted in surveillance video or photographs.1 Our
decision in Gore addresses how the change to our Code
of Evidence affects the admissibility of lay opinion testi-
mony identifying a defendant in surveillance video or
photographs. In this appeal, we consider how the rule
change affects the admissibility of expert opinion testi-
mony relating to the identification of a defendant in
surveillance video or photographs. Put simply, we con-
clude that such testimony is admissible if it meets the
requirements of § 7-2 of the Connecticut Code of
Evidence.2
The defendant, Jean Bruny, appeals from the judg-
ment of conviction, rendered following a jury trial, of
murder in violation of General Statutes § 53a-54a (a)
and criminal possession of a pistol or revolver in viola-
tion of General Statutes (Rev. to 2013) § 53a-217c (a)
(1).3 In this appeal, the defendant claims that the trial
court (1) improperly admitted testimony from four lay
witnesses identifying the defendant in video surveil-
lance footage, (2) improperly admitted expert testi-
mony regarding an enhancement of the video
surveillance footage and incorrectly concluded that
defense counsel had opened the door to certain testi-
mony elicited during the prosecutor’s redirect examina-
tion of the expert, (3) improperly denied the defendant’s
motion to suppress the identifications of the defendant
made by Nigel Watts, and (4) improperly denied the
defendant’s request for a special credibility instruction
as to a witness whom the defendant claims should have
been treated as a jailhouse informant. Finally, the defen-
dant claims that there was insufficient evidence to sup-
port his conviction for criminal possession of a pistol
or revolver. We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. On the night of August 10, 2013, the defendant,
his foster brother, Teon Simons (Teon), and Teon’s
cousins, Solomon Graham (Solomon), Tyrone Graham
(Tyrone) and Jamal Hopper, were all at Tyrone’s home
in Waterbury. Also at Tyrone’s home were Latoya Maia,
Randy Hall and some of Maia’s friends. Sometime
between 11 and 11:30 p.m., the group decided to go to
the Cheetah Club in New Haven, where a rapper, Lil
Durk, was performing that night. Traveling in multiple
cars, the group left Waterbury sometime after 11:45
p.m. and arrived at the Cheetah Club at approximately
12:30 a.m. While they were at the club, the group spent
most of their time in a room called the Cheetah room.
About forty-five minutes after the defendant’s group
arrived at the club, the victim, Torrance Dawkins,
arrived with his cousin, Watts, and a few friends. The
victim’s group, who were celebrating the victim’s birth-
day that night, walked over to a corner of the Cheetah
room near the emergency exit and stood at the end of
a long bar that lined a wall in the room. The defendant’s
group, including Hall, was at the opposite corner of the
room, near a door that led to the patio area of the club,
where Lil Durk was performing. Watts recognized Hall,
with whom he had ‘‘bad blood . . . .’’ He warned the
others in his group to expect a fight.
Soon thereafter, the defendant gradually made his
way toward the area where the victim’s group was
standing and positioned himself at the emergency exit
door. From that position, the defendant stood behind
the victim’s group as they faced Hall. At that point, Hall
threw a bottle at the victim’s group.
Seconds after Hall threw the bottle, the defendant
stepped forward from the emergency exit to within a
foot or two from the victim, aimed a handgun at the
back of his head and fired. The victim fell to the ground.
Almost everyone else, including the defendant, ran from
the room. The defendant slid to the floor while he
sprinted toward the exit from the Cheetah room, and
then jumped up and raced out of the room. He then
ran out the front entrance of the club.
Shortly after the New Haven police responded to
reports of a shooting at the club, Detective David
Zaweski arrived at the scene and reviewed the video
surveillance footage, which had captured the shooting.
Zaweski downloaded the Cheetah Club surveillance vid-
eos to a thumb drive. A copy of the footage was later
sent to Anthony Imel, a forensic examiner with the
Federal Bureau of Investigation (FBI).
On January 15, 2015, Zaweski, Special Agent Jonathan
Lauria of the FBI and a third investigator interviewed
the defendant. During the interview, the defendant
declined to identify photographs of Tyrone and Solo-
mon and denied having been at the Cheetah Club on
the night of the shooting. He claimed that he had visited
Connecticut only once, when he was younger, with his
foster mother, Stephanie Simons (Stephanie).
On April 6, 2016, while the defendant was in federal
custody, Lauria again interviewed him. When Lauria
showed the defendant still photographs from the sur-
veillance videos, the defendant denied seeing himself
in the photographs and claimed that he did not recall
being present at the Cheetah Club. While he was in
federal custody, the defendant’s phone calls were
recorded. During a phone call he placed sometime after
his interview with Lauria, the defendant said that he
had seen the video surveillance footage, and ‘‘it’s look-
ing real bad.’’ When the person on the other end of the
line asked if the video footage was ‘‘clear as day,’’ the
defendant responded that it was not, but that it was
‘‘clear enough, damn it.’’ Speculating on his chances of
securing a plea deal, the defendant stated that he ‘‘might
be lucky’’ if he received ‘‘fifteen.’’
The defendant was subsequently charged with mur-
der in violation of § 53a-54a (a), criminal possession of
a pistol or revolver in violation of § 53a-217c (a) (1),
and carrying a pistol without a permit in violation of
General Statutes § 29-35 (a).4 Following a jury trial, he
was found guilty of murder. The trial court subsequently
found him guilty of criminal possession of a pistol or
revolver. The court imposed a total effective sentence
of fifty years of incarceration.
I
The defendant contends that the trial court abused
its discretion in admitting the testimony of four lay
witnesses, Tyrone, Hopper, Stephanie and Maia, identi-
fying him as one of the persons depicted in the surveil-
lance video of the interior and exterior of the Cheetah
Club. In his original brief to this court, the defendant
claimed that the lay opinion testimony improperly
embraced an ultimate issue to be decided by the jury
and, therefore, violated § 7-3 of the Connecticut Code
of Evidence.5 Following oral argument, we ordered the
parties to submit supplemental briefs addressing two
issues: (1) ‘‘Whether this court should adopt rule 704
(a) of the Federal Rules of Evidence and overrule State
v. Finan, 275 Conn. 60, 61, 881 A.2d 187 (2005)?’’ And
(2) ‘‘[i]f the court adopts rule 704 (a) of the Federal
Rules of Evidence, what standard should govern the
admission of expert opinion testimony, relating to the
identification of a defendant in surveillance photo-
graphs or video, that embraces an ultimate issue?’’ As
we explain in State v. Gore, supra, 342 Conn. 134–35,
rather than adopt rule 704 (a) of the Federal Rules of
Evidence, we amend § 7-3 (a) of the Connecticut Code
of Evidence to incorporate an exception to the ban on
lay opinion testimony that embraces an ultimate issue
for opinion testimony that relates to the identification
of criminal defendants and other persons depicted in
surveillance video or photographs.6 Applying that rule,
we conclude that the trial court did not abuse its discre-
tion in admitting the testimony.
The following additional facts and procedural back-
ground are relevant to our resolution of this issue. There
were multiple video surveillance cameras at the Chee-
tah Club, including cameras that captured video of the
exterior of the building, the interior entrance and two
different angles of the interior of the Cheetah room.
Prior to trial, the defendant moved to preclude the state
from presenting any testimony from witnesses identi-
fying him in the video surveillance footage. Relying on
§ 7-3 (a) of the Connecticut Code of Evidence and this
court’s decision in State v. Finan, supra, 275 Conn. 67,
the defendant argued that any testimony identifying
him in the video footage would constitute improper lay
opinion embracing an ultimate issue to be decided by
the trier of fact.
During argument on the motion to preclude opinion
testimony, defense counsel did not dispute that Steph-
anie, Tyrone and Hopper had general familiarity with
the defendant.7 The debate instead focused on the tim-
ing of the identifications. Specifically, the parties dis-
agreed regarding whether witness testimony that
identified the defendant in the video surveillance foot-
age, but did not identify him in the footage covering the
shooting or the few seconds preceding and following
it, would embrace an ultimate issue, in violation of
Finan. The trial court ruled that Finan did not bar
the state from presenting testimony that identified the
defendant in the surveillance video while engaged in
noncriminal activity before and after the shooting.
Stephanie was the only one of the four lay witnesses
identifying the defendant in the surveillance video who
did not accompany him to the Cheetah Club that night.
She had known the defendant since his placement as
her foster son in her home when he was twelve years
old, approximately nine years before the video surveil-
lance footage was recorded. She identified the defen-
dant entering the club, immediately behind Tyrone, at
7:03:55 a.m.8 in the video surveillance footage and at
7:03:54 a.m. in a still photograph from the video footage.
She also identified the defendant running out of the
club in the video footage and in a corresponding still
photograph.
The remaining three witnesses who identified the
defendant in the video, Tyrone, Maia and Hopper, were
with the defendant at the club on the night of the shoot-
ing. Tyrone identified himself in line entering the club
at 7:03:53 a.m. in the video surveillance footage and
identified the defendant as the person immediately
behind him. Tyrone had known the defendant for
approximately nine years, since the defendant became
Stephanie’s foster son. Although the defendant lived in
Brooklyn and Tyrone lived in Waterbury, they often
saw each other on weekends. Tyrone considered the
defendant to be his cousin and referred to him by the
nicknames ‘‘Cuz’’ and ‘‘L. B.,’’ short for ‘‘Little Blood.’’
Tyrone explained that ‘‘Little Blood’’ referred to the
defendant’s status as Tyrone’s family, his ‘‘blood.’’
Hopper identified the defendant as the person walk-
ing immediately behind Tyrone, whom Hopper identi-
fied as entering the club at 7:03:53 a.m. in the video
surveillance footage. Hopper first met the defendant
when Hopper moved to Connecticut, sometime around
2011. The record is unclear as to how frequently he
saw the defendant during the two years leading up to
the murder, but Hopper testified that he occasionally
visited the home of Stephanie, who was Hopper’s aunt,
and that he lived with her for a few months.
Like Tyrone, Hopper and Stephanie, Maia identified
Tyrone in the video surveillance footage entering the
club at 7:03:53 a.m., immediately followed by the defen-
dant at 7:03:54 a.m. Maia admitted that she ‘‘didn’t really
know’’ the defendant. She met the defendant through
Solomon, whom she had been dating for only a few
months by the time of the shooting. During those
months, Maia had seen the defendant approximately
five or six times. She had interacted and spoken with
him enough on those occasions to describe him as a
‘‘quiet guy’’ who went by the nickname, ‘‘L. B.’’ Maia
did not know the defendant’s real name.
As we explain in State v. Gore, supra, 342 Conn.
134–35, we have amended § 7-3 (a) of the Connecticut
Code of Evidence to incorporate an exception to the
ultimate issue rule for lay opinion testimony that relates
to the identification of criminal defendants or other
persons depicted in surveillance video or photographs.
Accordingly, ‘‘[l]ay opinion testimony identifying a per-
son in surveillance video or photographs is admissible
if that testimony meets the requirements of § 7-1 of the
Connecticut Code of Evidence. That is, such testimony
is admissible if the opinion is ‘rationally based on the
perception of the witness and is helpful to a clear under-
standing of the testimony of the witness or the determi-
nation of a fact in issue.’ Conn. Code Evid. § 7-1.’’
(Footnote omitted.) State v. Gore, supra, 148.
Testimony identifying a defendant as depicted in sur-
veillance video or photographs meets the requirements
of § 7-1 of the Connecticut Code of Evidence and is
therefore admissible ‘‘ ‘if there is some basis for con-
cluding that the witness is more likely to correctly iden-
tify the defendant from the photograph [or video] than
is the jury.’ United States v. Farnsworth, 729 F.2d 1158,
1160 (8th Cir. 1984).’’ State v. Gore, supra, 342 Conn. 150.
In making this determination, we evaluate the following
four factors, considering the totality of the circum-
stances: ‘‘(1) the witness’ general level of familiarity
with the defendant’s appearance . . . (2) the witness’
familiarity with the defendant’s appearance, including
items of clothing worn, at the time that the surveillance
video or photographs were taken . . . (3) a change
in the defendant’s appearance between the time the
surveillance video or photographs were taken and trial,
or the subject’s use of a disguise in the surveillance
footage . . . and (4) the quality of the video or photo-
graphs, as well as the extent to which the subject is
depicted in the surveillance footage.’’ (Citations omit-
ted.) Id., 151.
Three of the four witnesses had sufficient general
familiarity with the defendant to support admissibility.
As we explain in Gore, we depart from the majority of
jurisdictions that have set a low bar for general familiar-
ity. See id., 163–64. Pursuant to our decision in Gore,
‘‘[i]n order for the witness’ general familiarity with the
defendant’s appearance to weigh in favor of admitting
such testimony, the proponent of the testimony must
demonstrate that the witness possesses more than a
minimal degree of familiarity with the defendant. Some
illustrative examples of persons who may satisfy this
standard are friends, longtime acquaintances, neigh-
bors, coworkers, family members, and former class-
mates.’’ Id., 164.
This factor is satisfied as to Stephanie, Tyrone and
Hopper. Stephanie’s relationship with the defendant—
he was placed in her home as her foster son approxi-
mately nine years prior to the shooting—easily supports
admissibility. As his foster mother, Stephanie is pre-
cisely the type of witness whose testimony best aids
the jury. Her familiarity with the defendant’s appear-
ance and mannerisms, acquired during the years he
lived in her home, lends reliability to her identification
of him in the surveillance footage. Similarly, Tyrone’s
degree of general familiarity with the defendant is more
than sufficient to support admissibility. He testified that
he and the defendant knew each other since the defen-
dant’s placement in Stephanie’s home, and that they
were close. They saw each other often, and Tyrone
considered the defendant a cousin. Although Hopper
did not have a relationship with the defendant that
anyone would describe as ‘‘close,’’ he certainly had
more than a minimal degree of familiarity with the
defendant. Hopper had known the defendant for
approximately two years, had visited Stephanie’s home
during that time, and had lived with Stephanie for a
few months. His degree of general familiarity, therefore,
supports admitting his testimony identifying the defen-
dant in the surveillance footage.
This factor is not satisfied as to Maia. She knew the
defendant only through Solomon, whom she had been
dating for a scant few months. During that period, she
saw the defendant approximately five or six times, and
the record is unclear as to the length of each of these
encounters, the viewing conditions, or the nature of
her interaction with the defendant on those occasions.
Maia admitted that she did not ‘‘know’’ the defendant
and did not even know his real name. On the basis of
this record, we cannot say that she had more than a
minimal degree of familiarity with the defendant. As
we explain in Gore, ‘‘the concept of familiarity encom-
passes a broad range of possibilities.’’ State v. Gore,
supra, 342 Conn. 162. Along that continuum of possibili-
ties, Maia barely qualifies as a casual acquaintance. Her
low degree of familiarity with the defendant casts doubt
on the reliability of her identification of him in the
surveillance footage, particularly considering that more
than one and one-half years had passed between the
last time she saw him and the first time she viewed the
surveillance footage.
With respect to the second factor, Tyrone, Hopper
and Maia were with the defendant on the day of the
shooting—both at the club and beforehand, in Water-
bury. All three, therefore, were familiar with his appear-
ance at the time that the surveillance footage was taken.
Although Stephanie did not see the defendant on the
day of the shooting, and the record is unclear regarding
the last time she saw him prior to that day, her high
degree of general familiarity with the defendant more
than offsets this factor. Moreover, as we explain in
Gore, because we evaluate the factors under the totality
of the circumstances, the failure to satisfy a single factor
is not fatal. Id., 165 n.19.
With respect to the third factor, the defendant’s
appearance had changed between the time that the
surveillance footage was recorded and the time of trial.
In the video surveillance footage, the defendant wore
his hair very short. Although he had some facial hair,
he wore that short as well. Witnesses who identified
the defendant in court at the time of trial described
him as having dreadlocks, a beard and a mustache.
Courts have considered changes in a criminal defen-
dant’s hairstyle or facial hair between the recording of
the surveillance video and the time of trial to weigh in
favor of admissibility. See, e.g., United States v. Farn-
sworth, supra, 729 F.2d 1160–61 (defendant wore scarf
over his face at time of robbery and had grown beard
by time of trial); see also, e.g., United States v. Towns,
913 F.2d 434, 445 (7th Cir. 1990) (defendant shaved his
moustache between robbery and criminal trial); United
States v. Lucas, 898 F.2d 606, 610–11 (8th Cir.) (defen-
dant had facial hair in surveillance photographs but
none at trial), cert. denied, 498 U.S. 838, 111 S. Ct. 112,
112 L. Ed. 2d 81 (1990).
Finally, as for the quality of the video, it fell within
the range that favors admissibility. That is, the video,
in which the defendant frequently appeared, was ‘‘ ‘[nei-
ther] so unmistakably clear [nor] so hopelessly obscure
that the witness is no [better suited] than the jury to
make the identification.’ United States v. Jackman, [48
F.3d 1, 5 (1st Cir. 1995)].’’ State v. Gore, supra, 342
Conn. 165.
We conclude that, viewed under the totality of the
circumstances, the trial court acted within its discretion
in admitting the testimony of all four witnesses, which
was rationally based on their perception and helpful to
the jury. See Conn. Code Evid. § 7-1. The trial court
properly allowed those witnesses to identify the defen-
dant in the surveillance video footage and still photo-
graphs from the video. All four factors supported
admitting the testimony of Tyrone and Hopper. As to
Stephanie,
we have noted that, although she did not see the defen-
dant on the night of the shooting, her high degree of
general familiarity more than offsets the failure to sat-
isfy that single factor. With respect to Maia, although
her level of general familiarity is low, she was with the
defendant on the night of the shooting and therefore
was familiar with his appearance at the time of the
surveillance footage. That, taken together with the
remaining two factors, supports admitting her testi-
mony identifying the defendant in the surveillance video
and the still photographs.9
II
A
The defendant claims that the trial court abused its
discretion in allowing the state’s expert, Imel, a forensic
examiner, to testify regarding an enhanced video he
compiled from the raw video surveillance footage,
tracking the movement of certain individuals through
the club. The defendant contends that Imel’s testimony
invaded the province of the jury, in violation of § 7-3
(a) of the Connecticut Code of Evidence, as interpreted
by this court in State v. Finan, supra, 275 Conn. 60.
We conclude that the trial court acted within its discre-
tion in admitting the testimony.
We emphasize, at the outset, that Imel never identi-
fied the defendant as the shooter and was never asked
to do so. In his testimony, Imel explained, instead, how
he tracked the movements of various individuals, who,
except for the victim, were identified only by alphanu-
meric code, using video surveillance footage of the
Cheetah Club gathered from multiple camera angles.
Although the defendant was depicted in the video foot-
age, and Imel tracked images of the defendant using
the alphanumeric code, the identity of the defendant
was left to the jury. Against this backdrop, we hold that
expert opinion testimony that pertains to the identifica-
tion of a defendant in surveillance footage is admissible
if it comports with the requirements of § 7-2 of the
Connecticut Code of Evidence, which provides: ‘‘A wit-
ness qualified as an expert by knowledge, skill, experi-
ence, training, education or otherwise may testify in the
form of an opinion or otherwise concerning scientific,
technical or other specialized knowledge, if the testi-
mony will assist the trier of fact in understanding the
evidence or in determining a fact in issue.’’ (Empha-
sis added.)
Our task, therefore, is to consider whether the trial
court correctly determined that Imel’s testimony com-
ported with the requirements of § 7-2 of the Connecticut
Code of Evidence. The legal principles that guide our
review of the trial court’s ruling on the admissibility of
expert testimony are well settled. ‘‘The trial court has
wide discretion in ruling on the qualification of expert
witnesses and the admissibility of their opinions. . . .
The court’s decision is not to be disturbed unless [its]
discretion has been abused, or the error is clear and
involves a misconception of the law. . . . Generally,
expert testimony is admissible if (1) the witness has a
special skill or knowledge directly applicable to a mat-
ter in issue, (2) that skill or knowledge is not common
to the average person, and (3) the testimony would be
helpful to the court or jury in considering the issues.’’
(Internal quotation marks omitted.) State v. Leniart,
333 Conn. 88, 142, 215 A.3d 1104 (2019), quoting State
v. Taylor G., 315 Conn. 734, 760, 110 A.3d 338 (2015).
‘‘It is well settled that [t]he true test of the admissibility
of [expert] testimony is not whether the subject matter
is common or uncommon, or whether many persons
or few have some knowledge of the matter; but it is
whether the witnesses offered as experts have any pecu-
liar knowledge or experience, not common to the world,
which renders their opinions founded on such knowl-
edge or experience any aid to the court or the jury in
determining the questions at issue. . . . Implicit in this
standard is the requirement . . . that the expert’s
knowledge or experience . . . be directly applicable
to the matter specifically in issue.’’ (Internal quotation
marks omitted.) State v. Leniart, supra, 142. ‘‘To the
extent the trial court makes factual findings to support
its decision, we will accept those findings unless they
are clearly improper.’’ (Internal quotation marks omit-
ted.) Fleming v. Dionisio, 317 Conn. 498, 505, 119 A.3d
531 (2015).
In his motion to preclude the expert testimony, the
defendant argued that it improperly invaded the prov-
ince of the jury and violated this court’s decision in
Finan. Following the state’s proffer, and after hearing
argument on the motion, the trial court ruled that the
testimony was admissible. The court began by consider-
ing the requirements of § 7-2 of the Connecticut Code
of Evidence. The court was satisfied that Imel possessed
knowledge, skill, experience, training and education
that were both directly applicable to the matter at issue
and not common to the average person. The court also
found that the testimony would be helpful to the jury.
In order to avoid any conflict with § 7-3 (a) and Finan,
however, the court required Imel to remove all identi-
fying labels over the subjects in the video in the seconds
immediately before and after the shooting. The court
reasoned that, if the enhanced video did not display a
label over any persons depicted in the video at the
actual time of the shooting, the video and Imel’s testi-
mony would not invade the province of the jury.
The trial court correctly concluded that Imel’s testi-
mony met the standards of § 7-2 of the Code of Evi-
dence. Imel’s testimony regarding tracking individuals
in the surveillance video footage is akin to expert testi-
mony regarding facial and clothing comparison and
photogrammetry10 applied to surveillance video and
photographs. Those types of expert testimony have gen-
erally been held to be admissible under rule 702 of
the Federal Rules of Evidence, which ‘‘treat[s] expert
opinion testimony similarly to the Connecticut Code of
Evidence.’’11 State v. Favoccia, 306 Conn. 770, 837 n.8,
51 A.3d 1002 (2012) (Zarella, J., dissenting); see, e.g.,
United States v. Everett, 825 F.2d 658, 662 (2d Cir.
1987) (trial court did not abuse discretion in admitting
testimony of photogrammetry expert interpreting bank
surveillance photographs), cert. denied, 484 U.S. 1069,
108 S. Ct. 1035, 98 L. Ed. 2d 999 (1988); United States
v. Alexander, 816 F.2d 164, 167 (5th Cir. 1987) (exclu-
sion of facial comparison testimony of defense expert
interpreting bank surveillance video and photographs
was clearly erroneous); United States v. Green, 525 F.2d
386, 391–92 (8th Cir. 1975) (expert testimony comparing
clothing in bank surveillance photographs with clothing
worn by model in photographs taken by law enforce-
ment was admissible). But see, e.g., United States v.
Brown, 501 F.2d 146, 149–50 (9th Cir. 1974) (trial court
abused its discretion in admitting facial comparison
testimony when comparisons testified to by expert were
too general to be considered to require special exper-
tise), rev’d on other grounds sub nom. United States
v. Nobles, 422 U.S. 225, 95 S. Ct. 2160, 45 L. Ed. 2d
141 (1975).
One state appellate court recently rejected a chal-
lenge to expert testimony strikingly similar to that at
issue in the present case. In People v. Tran, 50 Cal.
App. 5th 171, 263 Cal. Rptr. 3d 740 (2020), review denied,
California Supreme Court, Docket No. S263358 (August
19, 2020), the California Court of Appeal for the Fourth
District held that the trial court did not abuse its discre-
tion in admitting the testimony of a forensic video ana-
lyst, Grant Fredericks, who created an enhanced video
of an assault in a crowded outdoor restaurant dining
area, compiled from videos taken from surveillance
cameras of nearby businesses and from the cell phones
of bystanders who witnessed the incident. See id., 174–
76, 179, 180, 188.
As Imel did in the present case, Fredericks added
markings to the video to track certain individuals and
to aid the jury in its task of interpreting the video. Id.,
188. The Court of Appeal reasoned that the ‘‘challenged
evidence was relevant, useful, and highly probative of
the circumstances that led to [the victim’s] paralysis.
[Fredericks’] testimony helped the jury to identify what
portions of the video evidence required closer examina-
tion and to interpret some of the information conveyed
by the video evidence. His expertise was necessary for
the [members of the] jury to accurately evaluate the
videos to appreciate who and what they were watching
as well as the chronology and relationship between
each video. As the trial court noted, the individuals in
the videos were very difficult to track ‘even with the
benefit of [Fredericks’] colored indicators,’ and ‘impos-
sible’ to track without his expert assistance.’’ Id.,
188–89.
Imel’s experience and training in the area of forensic
video and image analysis were extensive. As of the time
of trial, Imel had been analyzing video for approxi-
mately thirty years, approximately eight years of which
were for the FBI as a forensic examiner with the foren-
sic audio, video and image analysis laboratory. Over
the years, he had taken and taught many classes on
and conducted training in video forensics and image
enhancement, including teaching a course on the sub-
jects for the United States Department of State. He was
the primary forensics examiner for the Boston Mara-
thon bombing and performed video tracking analysis
for that investigation, as well as for the Pulse nightclub
shooting in Florida. In the Boston Marathon investiga-
tion, he tracked the movements of the bombing sus-
pects among thousands of individuals, utilizing multiple
camera views.
Imel’s skill and knowledge were directly applicable
to the jury’s task in the present case. Like the Boston
Marathon and Pulse nightclub investigations, the pres-
ent case involved video surveillance footage from multi-
ple cameras covering many individuals moving about
in a crowded area. The lighting was low, and individuals
moved in and out of view of the cameras—creating the
need for a significant amount of cross-referencing of
the footage from the various cameras. In order to create
his fifty-two minute enhanced video, Imel compiled
footage from multiple cameras, lightened images, added
alphanumeric labels over certain individuals, including
the defendant, tracked those individuals throughout the
enhanced video, inserted ‘‘halos’’ over images at crucial
points during the video in the minute leading up to and
including the shooting, and simultaneously displayed
coverage from two cameras in a slow motion, split
screen image. All of those enhancements were directly
applicable to the jury’s task of interpreting the surveil-
lance footage.
Imel’s training and expertise enabled him to analyze
the video surveillance footage in a manner that was
beyond the ability of an average person. He distilled the
enhanced video from hours of raw video surveillance
footage. The methodology that he used to accomplish
the task involved both his specialized experience in
tracking analyses and the adaptation of computer tech-
nology to enhance the video surveillance footage. His
analysis took hundreds of hours, over the course of
four months.
Imel described his methodology for undertaking a
tracking analysis. Once individuals have been identified
as the subjects of tracking, Imel tracks their movement
through the video surveillance footage by relying on
the appearance of the individuals and their clothing,
how they move, the direction in which they are moving,
and their positions and movement relative to other indi-
viduals depicted in the footage. Computer software
enables him to review the video surveillance footage
frame by frame. For each subject, Imel reviews that
individual’s movement forward—then backward—mul-
tiple times to confirm that subject’s movement through-
out the footage, one frame at a time. Once he has
completed his analysis of one subject’s movement
throughout the entire course of the raw video surveil-
lance footage, he performs the same analysis for the
next subject.
Given the difficulty of reviewing hours of video sur-
veillance footage from multiple camera angles, Imel’s
testimony, as well as the enhanced video itself, was
likely helpful to the jury. During Imel’s testimony, the
prosecutor played the enhanced video, which was
marked for identification only, periodically stopping the
playback to ask Imel questions. At the start of the video,
Imel identified the first labels on the video, FW-1 and
FW-2, which appeared above two women entering the
club. He explained that these tags would follow the
same two individuals throughout the video, marking
their movement through the club. The majority of the
footage in the enhanced video showed the Cheetah
room, which was covered by two different surveil-
lance cameras.
At about seven minutes before the end of the
enhanced video, Imel identified a subject standing in
front of the bar, tagged as ‘‘victim.’’ As with all the other
subjects, Imel tracked the victim from the entrance of
the club. Less than one minute before the shooting, the
image in the enhanced video split into two screens in
order to show the Cheetah room from both camera
angles, thus providing a fuller view of the scene. Sec-
onds before the shooting, Imel inserted a halo over an
individual labeled ‘‘MS-4,’’ who stood behind the victim
and appeared to be holding an object in his right hand.
Per the trial court’s ruling, the alphanumeric labels did
not appear in the few seconds before and after the
shooting. Immediately after the shooting, MS-4 could
be seen running across the Cheetah room, and Imel
inserted a halo over the right hand of MS-4 to highlight
that he appeared to be holding something in that hand.
The video shows that MS-4 then ran out of the front
door of the club, along with many other patrons.
At no point during Imel’s testimony did he state that
he believed that MS-4 was the defendant.12 Although
Imel’s testimony, understood in conjunction with the
video, constituted persuasive proof that MS-4 shot the
victim, the state was still required to prove that MS-4
was the defendant. Moreover, the tracking information
depicted in the enhanced video, and Imel’s expert testi-
mony explaining it, could not have been developed by
the average juror. That information thus assisted the
jury in carrying out its task, without allowing the expert
to identify the shooter. Accordingly, Imel’s testimony
did not invade the province of the jury. See, e.g., State
v. Guilbert, 306 Conn. 218, 251–52, 49 A.3d 705 (2012)
(expert testimony regarding reliability of eyewitness
identifications did not invade province of jury because
reliability of eyewitness identifications is not within
knowledge of average juror); State v. Borrelli, 227 Conn.
153, 174, 629 A.2d 1105 (1993) (expert testimony regard-
ing general characteristics of victims of domestic abuse
did not invade province of jury because information
testified to by expert was ‘‘beyond the jury’s experience
and knowledge’’); see also, e.g., United States v. Green,
supra, 525 F.2d 392 (expert testimony regarding detailed
comparison of articles of clothing did not invade prov-
ince of jury because average juror lacks skill and experi-
ence necessary to make such comparisons).
Accordingly, our review of the record persuades us
that the trial court acted within its broad discretion in
permitting Imel’s testimony, which the court correctly
concluded would assist the jury in its task of interpre-
ting the surveillance footage. Imel’s expertise was
directly applicable to the jury’s task, not common to
the average person, and likely was helpful to the jury.
B
The defendant next claims that the trial court incor-
rectly concluded that defense counsel opened the door
to certain of Imel’s testimony on redirect examination.
Specifically, during redirect, Imel testified that Lauria’s
notes, which Lauria had sent to Imel along with the
video surveillance footage, indicated that the individual
labeled MS-4 was the defendant, who shot the victim.
Even if we assume, without deciding, that the defendant
is correct, we conclude that any error was harmless.
During cross-examination of Imel, defense counsel
attempted to demonstrate that Lauria had influenced
Imel’s analysis of the raw video surveillance footage.
Defense counsel elicited testimony from Imel that,
when Lauria sent him the raw footage, he also included
his notes, indicating his beliefs regarding the identity
of certain individuals depicted in the video. In Lauria’s
notes, with respect to at least some of those individuals,
he tracked their movements and incorporated specific
time references from the raw video surveillance footage
for those movements. For example, defense counsel
asked Imel whether Lauria’s notes indicated that, at
7:08:36 a.m., and, again, at 7:47:37 a.m., the individual
labeled as MS-4 exited the Cheetah room to the patio.
Imel answered that the notes had so indicated.
During redirect examination, the prosecutor asked
Imel whether defense counsel had correctly stated dur-
ing cross-examination that Lauria had noted that, at
7:08:36 a.m., ‘‘MS-4 exits bar.’’ Over defense counsel’s
objection, Imel answered that Lauria actually had writ-
ten: ‘‘Jean Bruny exits bar and goes to patio.’’ Imel also
testified, over defense counsel’s objection, that Lauria’s
notes indicated that, at 7:56:53 a.m., ‘‘Jean Bruny shoots
Torrance Dawkins and exits toward hallway.’’
Because we conclude that any error was harmless,
we do not reach the question of whether the trial court
abused its discretion in allowing the testimony. We
emphasize, however, that the court’s ruling was trou-
bling. The ruling undermined all attempts to distance
Imel’s testimony from an identification of the defen-
dant. Additionally, although Imel did not testify that he
believed that MS-4 was the defendant, his testimony
that Lauria’s notes indicated that the defendant was
the shooter indirectly introduced the opinion of a law
enforcement officer that the defendant was depicted in
the video surveillance footage.13 Although we conclude
that the state’s overwhelming evidence proving that MS-
4 was the defendant rendered any error harmless, we
reiterate our concerns regarding testimony by members
of law enforcement identifying a defendant as depicted
in video surveillance footage, as we explain more fully
in State v. Gore, supra, 342 Conn. 158 n.16. See generally
G. Bach, ‘‘Moderating the Use of Lay Opinion Identifica-
tion Testimony Related to Surveillance Video,’’ 47 Fla.
St. U. L. Rev. 445 (2020) (highlighting problems pre-
sented by law enforcement testimony identifying defen-
dants in surveillance video).
Even if the trial court’s ruling constituted an abuse
of discretion, the defendant has failed to demonstrate
that the error was harmful. ‘‘The law governing harm-
less error for nonconstitutional evidentiary claims is
well settled. When an improper evidentiary ruling is not
constitutional in nature, the defendant bears the burden
of demonstrating that the error was harmful. . . .
[T]he proper standard for determining whether an erro-
neous 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 substantially affect the verdict.’’ (Internal
quotation marks omitted.) State v. Fernando V., 331
Conn. 201, 215, 202 A.3d 350 (2019).
The defendant has not demonstrated that the jury’s
verdict was substantially swayed by the admission of
Imel’s testimony regarding Lauria’s hearsay statements.
Under the circumstances of this case, the fact that
Lauria opined that the defendant was the individual
depicted in the video who shot the victim had little
impact on the jury making that determination itself.
Indeed, the state presented overwhelming evidence
both that the individual labeled as MS-4 shot the victim
and that MS-4 was the defendant. The video surveillance
footage provided powerful proof that the individual
labeled as MS-4 in the enhanced video shot the victim.
In the minutes preceding the shooting, the enhanced
video shows MS-4 moving from the corner near the
patio door and the raised platform, where his group
congregated, toward the emergency exit door, near the
victim’s group. When the enhanced video displays a
split screen in the minute before the shooting, both
camera angles are shown. On the right side of the
screen, MS-4 remains by the emergency door exit until
the individual labeled MS-1, shown on the left side of
the screen, throws a bottle in the direction of the vic-
tim’s group. At that point in the enhanced video, with
the exception of the victim, the labeling over individuals
no longer is displayed.
On the right side of the screen, immediately after the
bottle lands near the victim, however, an individual in
the exact spot where MS-4 had just been standing by
the emergency exit door moves a couple of feet away
from the wall to a spot just behind the victim. This
particular individual is highlighted by a halo of light in
the enhanced video, making it easy to see that, as he
moves, he reaches with his right hand to grab something
at his waist. As he raises his right arm, the video shows
that he is holding a small, dark object, which he points
at the back of the victim’s head. A small plume of light
shoots from the dark object in his hand, then dissipates.
As the victim immediately crumbles to the ground, the
individual begins to run away. As he crosses over from
the right side of the screen to the left side, the label
MS-4 appears above him. The enhanced video highlights
MS-4’s right hand, which is still holding the small,
dark object.
Although the enhanced video was a demonstrative
exhibit only, the jury watched it as Imel testified about
it. After having watched that video, the jury then was
able to review the raw video surveillance footage, which
was introduced as full exhibits, with a greater under-
standing of what to look for, from which camera angle,
and when, in the raw footage. The raw video surveil-
lance footage displays all of the same events as shown
in the enhanced video, including the moment when MS-
4 shoots the victim. Accordingly, the raw video surveil-
lance footage, as understood with the assistance of the
enhanced video and Imel’s testimony, provides over-
whelming proof that MS-4 shot the victim.
The state also produced strong evidence, through the
raw video surveillance footage, the enhanced video and
the testimony of Stephanie, Tyrone and Hopper, that
the defendant was the individual labeled as MS-4 in
the enhanced video. The enhanced video shows MS-4
entering the club at 7:03:54 or 7:03:55 a.m., immediately
behind a heavyset individual, whom the jury reasonably
could have identified as Tyrone.14 Because of his size,
Tyrone was particularly easy to identify in the surveil-
lance footage. Tyrone, Stephanie and Hopper each iden-
tified the defendant in the raw video surveillance
footage as he was entering the club, immediately behind
Tyrone, just as MS-4 did in the enhanced video.
All three of the witnesses identified the defendant
entering the club immediately behind Tyrone, at 7:03:54
or 7:03:55 a.m., precisely the same time that MS-4
entered the club in the enhanced video. Stephanie also
identified the defendant running out of the club at
7:56:59 a.m., at precisely the same time that the enhanced
video shows MS-4 running out of the club. All of this
testimony, understood in conjunction with the raw
video surveillance footage and the enhanced video,
proved that the defendant was MS-4. Finally, we observe
that the defendant’s physical characteristics matched
those of MS-4, a fact the jury could observe for itself.
Understood within this context, Lauria’s opinion that
MS-4 was the defendant, who shot the victim, was insig-
nificant and cumulative in the midst of all the other
evidence establishing the same point.
Further evidence of the unlikelihood that Lauria’s
opinion substantially swayed the jury’s verdict was the
strength of the state’s case. As we just explained, the
video provided powerful evidence of the defendant’s
guilt. In addition to the video surveillance footage, the
state produced the call detail records of the cell phones
used by the defendant and members of his group, show-
ing that they went to the Cheetah Club that night, and
DNA evidence proving that the defendant was inside
the Cheetah room that night. The state also produced
the testimony of a witness that established that the
defendant possessed a handgun approximately one
month prior to the shooting. See part III of this opinion.
Finally, the state produced substantial consciousness
of guilt evidence. In his two interviews with detectives,
the defendant claimed he was not at the Cheetah Club
on the night of the shooting, even when confronted
with the presence of his DNA in the Cheetah room. He
claimed that he had been to Connecticut only once,
with Stephanie, when he was much younger. And he
did not identify his ‘‘cousins’’ Tyrone and Solomon,
despite the fact that Tyrone testified that he knew the
defendant well. The defendant also claimed not to rec-
ognize himself when detectives showed him still photo-
graphs of the surveillance footage. The state produced
evidence that, after the defendant saw the video surveil-
lance footage, he placed a phone call, during which he
said to the person on the other end of the line that he
had seen the video, that ‘‘it’s looking real bad,’’ and
that he would be lucky if he received fifteen years of
imprisonment. During the call, the defendant said that,
although the video was not ‘‘clear as day,’’ it was ‘‘clear
enough, damn it.’’
Given the overall strength of the state’s case, the
overwhelming evidence that the state produced that
the defendant was the individual designated in the
enhanced video as MS-4, who shot the victim, and the
relative insignificance of Lauria’s opinion on that issue,
we conclude that the defendant has failed to demon-
strate that any error was harmful.
III
The defendant next claims that the trial court abused
its discretion in denying his request for a special credi-
bility instruction as to Leon Pruden, a witness who
the defendant claims should have been treated as a
jailhouse informant. The defendant contends that Pru-
den was a self-interested witness who had a motive
to testify against the defendant. Pruden’s credibility,
therefore, was inherently suspect. The defendant argues
that, because Pruden was the only witness who testified
that he had seen the defendant in the possession of a
gun on a prior occasion, the admission of Pruden’s
testimony was harmful error. We conclude that the trial
court acted within its discretion in declining to give the
requested instruction.
The following additional facts are relevant to our
resolution of this issue. At the time of the defendant’s
trial, Pruden was serving a sentence of six years of
imprisonment with ten years of special parole. He testi-
fied that, during the summer of 2013, he saw the defen-
dant on about five or six occasions at the home of
Michelle Saunders, in Waterbury. Pruden knew the
defendant only as ‘‘Gunner.’’ About one month prior to
the shooting, Pruden, Solomon and the defendant were
at Saunders’ home. When Solomon asked the defendant
to ‘‘show . . . something’’ to Pruden, the defendant
‘‘pulled out a black handgun from his waist’’ and
‘‘handed it’’ to Solomon. Solomon then handed the gun
back to the defendant, who said nothing. Pruden saw
the weapon only briefly and did not know specifically
what type of gun it was, only that it was a semiautomatic
handgun, ‘‘[a] little bigger than [Pruden’s] hand.’’
During cross-examination, defense counsel elicited
testimony from Pruden that, although he became aware
of the shooting at the Cheetah Club almost immediately,
he did not approach the police with the information
about his encounter with the defendant until more than
six months later, on March 5, 2014, the day that Pruden
was arrested. Pruden admitted that he hoped to receive
favorable treatment in exchange for the information.
During the charge conference, defense counsel
requested a special credibility instruction as to both
Watts and Pruden. The trial court granted defense coun-
sel’s request as to Watts but denied it as to Pruden.
The court observed that, because Watts had testified
pursuant to a cooperation agreement, it was reasonable
to infer that he was hoping for favorable treatment
in exchange for his testimony. By contrast, the court
reasoned, at the time of trial, Pruden had already
been sentenced.15
We begin our analysis of the defendant’s claim with
the well established standard of review. ‘‘When reviewing
the challenged jury instruction . . . we must adhere
to the well settled rule that a charge to the jury is to
be considered in its entirety, read as a whole, and judged
by its total effect rather than by its individual compo-
nent parts. . . . As long as [the instructions] are cor-
rect in law, adapted to the issues and sufficient for the
guidance of the jury . . . we will not view the instruc-
tions as improper.’’ (Internal quotation marks omitted.)
State v. Arroyo, 292 Conn. 558, 566, 973 A.2d 1254
(2009), cert. denied, 559 U.S. 911, 130 S. Ct. 1296, 175
L. Ed. 2d 1086 (2010).
‘‘Generally, a [criminal] defendant is not entitled to
an instruction singling out any of the state’s witnesses
and highlighting his or her possible motive for testifying
falsely.’’ (Internal quotation marks omitted.) State v.
Patterson, 276 Conn. 452, 467, 886 A.2d 777 (2005).
‘‘This court has held, however, that a special credibility
instruction is required for three types of witnesses,
namely, complaining witnesses, accomplices and jail-
house informants.’’ (Footnotes omitted.) State v. Diaz,
302 Conn. 93, 101–102, 25 A.3d 594 (2011).
We previously have defined a ‘‘classic jailhouse infor-
mant’’ as ‘‘a witness who has testified that the defendant
has confessed to him or had made inculpatory state-
ments to him while they were incarcerated together.’’
Id., 99 n.4. In Patterson, when we first recognized the
exception for jailhouse informants, we applied it to a
witness who testified that, while he and the defendant
were cellmates in prison, the defendant, who had been
charged with murder, confessed to the witness that he
had killed the victim. State v. Patterson, supra, 276
Conn. 459, 469–70. In exchange for his testimony, the
informant in Patterson was promised certain benefits.
Id., 465. We explained that ‘‘an informant who has been
promised a benefit by the state in return for his or
her testimony has a powerful incentive, fueled by self-
interest, to implicate falsely the accused. Consequently,
the testimony of such an informant, like that of an
accomplice, is inevitably suspect.’’ Id., 469; see State v.
Diaz, supra, 302 Conn. 102–103 (same).
Since Patterson, we have twice expanded the jail-
house informant exception to the general rule against
requiring a special credibility instruction. In State v.
Arroyo, supra, 292 Conn. 558, we extended Patterson to
require a special credibility instruction for all jailhouse
informants, regardless of whether they had received a
promise of a benefit in exchange for their testimony.
See id., 561. The mere expectation of a benefit, we
reasoned, is sufficient to render the testimony of a jail-
house informant suspect. See id., 568.
Then, more recently, in State v. Jones, 337 Conn. 486,
254 A.3d 239 (2020), we expanded the definition of
‘‘jailhouse informant’’ to include ‘‘witnesses . . . who
were incarcerated at the time they offered or provided
testimony regarding a defendant’s inculpatory state-
ments, regardless of the location where those state-
ments were made.’’ Id., 501. In extending the exception
to incarcerated witnesses who testify regarding inculpa-
tory statements that a defendant made to the witness
outside of prison, we were guided by two primary prin-
ciples.
First, we emphasized that ‘‘[t]he grave risks posed
by false confession testimony from incarcerated infor-
mants, and the difficulty of mitigating those risks
through meaningful cross-examination, do not depend
on the location where the allegedly false confession
occurs.’’ Id., 502. False confession evidence, we explained,
‘‘is difficult to impeach effectively because it is invari-
ably of the he said-she said variety. As long as the
[incarcerated informant] can plausibly testify that he
had an opportunity—no matter how fleeting—to speak
with the defendant, the [informant’s] claim that the
defendant confessed to him is practically unverifiable.’’
(Internal quotation marks omitted.) Id., 503.
Second, we recognized the wisdom of harmonizing
our definition of jailhouse informants with the legisla-
ture’s recent definition of a ‘‘jailhouse witness’’ as ‘‘a
person who offers or provides testimony concerning
statements made to such person by another person with
whom he or she was incarcerated, or an incarcerated
person who offers or provides testimony concerning
statements made to such person by another person who
is suspected of or charged with committing a criminal
offense.’’ (Emphasis in original; internal quotation
marks omitted.) Id., 506–507, quoting Public Acts 2019,
No. 19-132, § 6, codified at General Statutes (Supp.
2020) § 54-86o (d).
In summary, since our initial recognition that a spe-
cial credibility instruction should be required for jail-
house informants, we have expanded that requirement
to include informants who receive no promise of bene-
fits from the state in exchange for their testimony and
incarcerated witnesses who testify that the defendant
confessed or made inculpatory statements to them out-
side of prison. Just as important as understanding what
has changed in our definition of jailhouse informants,
however, is understanding what has not. For purposes
of the exception to the general rule against requiring
special credibility instructions, as harmonized with the
definition of ‘‘jailhouse witness’’ in General Statutes
§ 54-86o (d), a jailhouse informant is a person who
testifies regarding statements made by the defendant.
That is, the rule does not extend to testimony regarding
observed events.
Limiting the requirement for a special credibility
instruction to jailhouse informant testimony concerning
a defendant’s inculpatory statements is consistent with
one of the rationales underlying our adoption of the
rule. We repeatedly have emphasized ‘‘[t]he grave risks
posed by false confession testimony’’ of jailhouse infor-
mants. State v. Jones, supra, 337 Conn. 502. Indeed,
in Patterson, we recognized that ‘‘testimony about an
admission of guilt by the accused may be the most
damaging evidence of all . . . .’’ (Internal quotation
marks omitted.) State v. Patterson, supra, 276 Conn.
470 n.11.
In State v. Diaz, supra, 302 Conn. 93, we delineated
some limitations as to how far we will expand the jail-
house informant exception. See id., 106–13. In that case,
we declined to expand the jailhouse informant excep-
tion to ‘‘whenever a witness in a criminal case is incar-
cerated or is serving out a sentence, or otherwise is in
a position to receive a benefit from the state in exchange
for testifying, as long as there is some additional evi-
dence indicating that the witness is not wholly reliable
or that he expects some benefit from this testimony.’’
Id., 106. We specifically declined in Diaz to expand the
exception to include the testimony of ‘‘witnesses who
are not classic jailhouse informants because they have
testified about events that they observed rather than
inculpatory statements made by the defendant.’’ Id.,
107. We agreed with the defendant that some of the
same concerns about reliability are present for wit-
nesses who are involved with the criminal justice sys-
tem, yet are not treated as jailhouse informants because
they testify about observed events rather than the defen-
dant’s statements. Id., 109. We emphasized, however,
that those concerns are not ‘‘as weighty in cases [in
which] the witness is not testifying about a . . . con-
fession, but is testifying about events concerning the
crime that the witness observed.’’ Id.
We explained: ‘‘Testimony by a jailhouse informant
about a . . . confession is inherently suspect because
of the ease with which such testimony can be fabri-
cated, the difficulty in subjecting witnesses who give
such testimony to meaningful cross-examination and
the great weight that juries tend to give to confession
evidence. . . . In contrast, when a witness testifies
about events surrounding the crime that the witness
observed, the testimony can be compared with the testi-
mony of other witnesses about those events, and the
ability of the witness to observe and remember the
events can be tested. Accordingly, cross-examination
and argument by counsel are far more likely to be ade-
quate tools for exposing the truth in these cases than
in cases involving jailhouse confessions.’’ (Citations
omitted.) Id., 109–10.
We therefore reject the defendant’s invitation to
adopt a rule requiring trial courts to give a special credi-
bility instruction in the present context. In so holding,
we do not foreclose the possibility that a trial court
may exercise its discretion to give a special credibility
instruction even when the jailhouse informant’s testi-
mony relates to an event rather than a statement. For
example, if the trial court in the present case had deter-
mined that a special credibility instruction was war-
ranted as to Pruden, it had the discretion to give one.
It is well established that ‘‘it is within the discretion
of a trial court to give a cautionary instruction to the jury
whenever the court reasonably believes that a witness’
testimony may be particularly unreliable because the
witness has a special interest in testifying for the state
and the witness’ motivations may not be adequately
exposed through cross-examination or argument by
counsel. In determining whether to give such an instruc-
tion, the trial court may consider the circumstances
under which the witness came forward; the seriousness
of the [crimes] with which the witness has been charged
or convicted [of]; the extent to which the state is in a
position to provide a benefit to the witness and the
potential magnitude of any such benefit; the extent to
which the witness’ testimony is corroborated by other
evidence; the importance of the witness’ testimony to
the state’s case; and any other relevant factor.’’ Id., 113.
Because Pruden’s testimony did not relate to a state-
ment made by the defendant, the trial court acted within
its discretion in declining to give a special credibility
instruction. Pruden did not testify that the defendant
made any statement, incriminating or otherwise, to him.
Indeed, he could not, because the events to which Pru-
den testified occurred prior to the shooting. Although
he was incarcerated when he testified, Pruden did not
testify that the defendant confessed to him. Instead,
Pruden testified that he saw the defendant in possession
of a handgun approximately one month before the
shooting. Thus, the present case is distinguishable from
Jones, which involved testimony concerning statements
made by the defendant. See State v. Jones, supra, 337
Conn. 488.
Moreover, defense counsel impeached Pruden’s cred-
ibility effectively during cross-examination. Defense
counsel elicited testimony from Pruden that he did not
come forward with the information until the very day
that he was arrested, more than six months after he
heard about the shooting. Defense counsel also elicited
testimony from Pruden that, when he reached out to
law enforcement, he knew he was facing a possible
thirty years of imprisonment on drug charges and five
years of imprisonment for failing to appear. Pruden
admitted that he came forward because he was hoping
to obtain a benefit for himself. With respect to Pruden’s
motivation to testify at the time of trial, Pruden admitted
that, although he was already sentenced, he was aware
of the possibility of a sentence modification.
Defense counsel presented testimony from an expert
witness who testified about the unreliability of jailhouse
informants and specifically testified regarding benefits,
such as sentence modification, that incarcerated infor-
mants who are already sentenced may receive. Defense
counsel highlighted the problem during closing argu-
ment, saying of Pruden, ‘‘it is the hope for benefits that
causes the problem, the unreliability. Pruden had an
incentive to lie that is different from an ordinary wit-
ness; that’s why you need to look carefully at this tes-
timony.’’
In light of this record and our applicable precedent,
we conclude that the trial court acted within its discre-
tion in declining to give a cautionary instruction as
to Pruden.
IV
The defendant next claims that the trial court improp-
erly denied the defendant’s motion to suppress the out-
of-court and in-court identifications of the defendant
made by Watts. Even if we assume, without deciding,
that the identifications should have been suppressed,
we conclude that any error was harmless.16
The following additional facts and procedural back-
ground are relevant to our resolution of this issue. The
defendant moved to suppress Watts’ out-of-court identi-
fication of the defendant and to preclude him from
making an in-court identification, claiming that the iden-
tifications resulted from unduly suggestive procedures.
The trial court conducted a hearing on the motion prior
to trial but continued it until the day that Watts was
scheduled to testify. During the hearing, the court heard
testimony from Watts and Detective Zaweski, which
we summarize.
Zaweski first spoke to Watts on the night of the shoot-
ing. At that time, Watts told Zaweski only that he and
the victim had arrived at the club minutes before Watts
heard a gunshot. Watts ran out of the club and realized
only afterward that the victim had been shot.
Zaweski next interviewed Watts more than one year
later, on November 18, 2014, when Watts had been
subpoenaed to testify before a federal grand jury. Dur-
ing this interview, Watts told Zaweski that his group
had just arrived at the club and that they were waiting
at the bar for their drinks when Watts saw Hall, whom
he recognized. Hall saw Watts’ group, left the Cheetah
room through the patio door, and returned minutes
later with a number of people who Watts claimed he
did not recognize. Hall held a bottle in his hand. He
splashed liquid at the victim, who asked Watts to give
him his knife, which Watts had on his person. With the
exception of a man wearing a red shirt, the men with
Hall began to form a semicircle in front of Watts’ group.
The man in the red shirt, who was with Hall’s group,
moved away from his associates and positioned himself
near the emergency exit door. He wore a hat with the
brim low over his face, obscuring it. When Watts heard
the shot, he ran out of the club.
In January, 2017, Watts, who was in custody at the
time on pending criminal matters, told Zaweski that he
wanted to cooperate. During a meeting with Zaweski
that month, Watts told him that, a few days after the
shooting, when Watts was searching for the shooter,
an acquaintance of his texted Watts a photograph of
the defendant.
On July 26, 2017, Zaweski met with Watts for a fourth
time. For the meeting, Watts was transported to the
courthouse from prison and then placed in the court-
house lockup. On that same day, the defendant, who
was in custody for the murder of the victim, also was
being transported to the same courthouse. When Watts
was being placed in his cell in the lockup, the defendant
was already there, in another cell. Although the defen-
dant attempted to hide his face, Watts saw him, and he
recognized the defendant from the night of the shooting.
Although Watts consistently stated that he did not see
the shooting, he claimed that he was certain that the
defendant was the person who shot the victim.
When Watts arrived at the meeting with Zaweski, he
informed him that he had just seen the defendant. He
told Zaweski that he now realized that he had seen the
defendant not only on the night of the shooting, but
also on a prior occasion. In July, 2013, Watts attended
a memorial service in Waterbury. As Watts sat in his
car, about to leave the event, the defendant approached
the passenger door and looked into the vehicle. It was
nighttime, but there were streetlights, so Watts could
see the defendant’s face clearly. At that moment, the
police were driving down the street, so the defendant
walked away. Watts told Zaweski that the person he
saw at the memorial service was the same person he
saw at the Cheetah Club wearing a red shirt and hat.
Watts was not shown any photographs or any portion
of the surveillance video during this meeting.
On August 29, 2017, Zaweski showed Watts a photo-
graphic array. Because Zaweski was the investigating
officer for the case, he conducted the array using a
procedure called the blind folder shuffle method.17 Dur-
ing the procedure, which was not recorded, Watts iden-
tified the defendant. On the defendant’s photograph,
Watts wrote, ‘‘I’m very certain this person killed my
cousin, August 11, 2013.’’
During the August, 2017 interview, Watts likely also
viewed, for the first time, the enhanced video created
by Imel. Although Watts could not recall whether he
was shown the video during the July or the August,
2017 meeting, he acknowledged that he viewed it during
one of the two meetings. Detective Zaweski testified
that Watts was not shown any video surveillance foot-
age during the July 26, 2017 meeting. Watts admitted
that, by the time of trial, he had viewed the enhanced
video an additional three or four times during meetings
with the prosecutors in the case.
The trial court allowed Watts to testify regarding the
identifications but precluded him from referring to the
defendant as ‘‘the shooter.’’ The trial court reasoned
that the defendant’s objections to the identifications
went to their weight, not admissibility.
Even if we assume, without deciding, that the trial
court abused its discretion in admitting Watts’ identifi-
cation of the defendant, we conclude that any error
was harmless. We are not persuaded that the jury’s
verdict was swayed by the claimed error. See, e.g., State
v. Fernando V., supra, 331 Conn. 215. As we explained
in part II B of this opinion, the state’s case was strong—
we need not reiterate that portion of our analysis. We
emphasize, however, that the strength of the state’s case
did not stem from the testimony of any eyewitnesses
to the shooting. There were no such eyewitnesses. The
overwhelming nature of the state’s case hinged, instead,
on the fact that the defendant was captured on the
surveillance video shooting the victim.
Defense counsel impeached Watts’ credibility thor-
oughly and effectively during cross-examination, high-
lighting the many inconsistencies in Watts’ various
stories as they evolved each time he met with law
enforcement. Defense counsel particularly emphasized
Watts’ testimony before a federal grand jury in Novem-
ber, 2014, during which Watts stated that, with the
exception of Hall, he had never seen anyone in the
defendant’s group before.18 Before the grand jury, Watts
made no mention either of receiving a text message
with the defendant’s photograph, or of seeing the defen-
dant at a memorial service. He also testified before the
grand jury that the shooter wore a brimmed, black hat.
At trial, Watts claimed that, after he heard the gun
shot, he saw the defendant run and fall. When the defen-
dant fell, Watts saw that the defendant held a gun in
his hand. Watts admitted during cross-examination,
however, that he said nothing to the grand jury about
seeing a gun on the night of the shooting. He also admit-
ted that, by the time of trial, he had viewed the video
multiple times.
Defense counsel also highlighted, during cross-exam-
ination, that Watts waited for approximately three and
one-half years to come forward, even though the victim
was his ‘‘favorite little cousin,’’ whom he had known
his entire life. When Watts finally came forward, he was
incarcerated for various offenses, including assault in
the first degree, criminal possession of a firearm and
violation of probation—he admitted he could have
received up to forty years of imprisonment for the
charges. Defense counsel emphasized Watts’ motive to
lie because Watts was testifying pursuant to a coopera-
tion agreement, had not yet been sentenced and
expected that the prosecutor would inform the sentenc-
ing court about his cooperation in the present case.
The testimony of the defendant’s expert witness on
the unreliability of jailhouse informant testimony fur-
ther reinforced Watts’ motivation to lie. The expert wit-
ness also described the ways in which jailhouse
informants are able to learn information about a defen-
dant’s case that the informant may use to his benefit.
During closing argument, defense counsel once again
laid out the many inconsistencies in Watts’ various sto-
ries and emphasized the correspondence between the
change in Watts’ version of events and his need for
assistance with his own pending criminal matters.
The trial court gave a special credibility instruction
as to Watts, reminding the jury that Watts was testifying
pursuant to a cooperation agreement: ‘‘A witness who
has entered into such an agreement has an interest in
this case different from any ordinary witness. A witness
who realizes that he may be able to receive a lighter
sentence by giving testimony favorable to the state has
a motive to testify falsely. You must examine his testi-
mony with caution and weigh it with great care. If, after
scrutinizing his testimony, you decide to accept it, you
may give it whatever weight you find it deserves, and
all of these are factors that you may consider in finding
the facts.’’
Watts’ testimony was also cumulative of other, more
persuasive evidence. As we already observed, the video
surveillance footage displayed the defendant shooting
the victim. Three witnesses, including the defendant’s
foster mother and his cousin, who had both known him
for nine years, identified the defendant in the video
footage. Watts’ testimony—that he recognized the
defendant as one of the people in the club on the night of
the shooting, observed the defendant move to a position
behind the victim and saw a gun in the defendant’s
hand when he fell while running out of the Cheetah
room—merely echoed what the jurors saw with their
own eyes. Even if we assume that the trial court admit-
ted the identifications in an abuse of discretion, any
error was harmless.19
V
Finally, we address the defendant’s claim that there
was insufficient evidence to support his conviction for
criminal possession of a pistol or revolver in violation of
§ 53a-217c (a) (1). Specifically, the defendant contends
that the state failed to prove that the gun used in the
shooting had a barrel length of less than twelve inches.
We disagree.
We begin with the well established principles govern-
ing our review of a claim that there is insufficient evi-
dence to support a conviction. ‘‘In reviewing the
sufficiency of the evidence to support a criminal convic-
tion we apply a [two part] test. First, we construe the
evidence in the light most favorable to sustaining the
[jury’s] verdict [or the trial court’s finding]. Second, we
determine whether upon the facts so construed and the
inferences reasonably drawn therefrom the [finder of
fact] reasonably could have concluded that the cumula-
tive force of the evidence established guilt beyond a
reasonable doubt.’’ (Internal quotation marks omitted.)
State v. Davis, 324 Conn. 782, 793, 155 A.3d 221 (2017).
As we noted previously in this opinion, the criminal
possession of a pistol or revolver count was tried to
the court. Section 53a-217c provides in relevant part:
‘‘(a) A person is guilty of criminal possession of a pistol
or revolver when such person possesses a pistol or
revolver, as defined in section 29-27, and (1) has been
convicted of a felony . . . .’’ General Statutes § 29-27
defines ‘‘pistol’’ or ‘‘revolver’’ as ‘‘any firearm having a
barrel less than twelve inches in length.’’ The parties
stipulated to the trial court that the defendant was a
convicted felon prior to August 11, 2013. The court
addressed the criminal possession of a pistol or revolver
count after the jury had found the defendant guilty of
murdering the victim in the shooting on August 11, 2013.
Therefore, to secure a conviction under § 53a-217c (a)
(1), the state was required to prove that the gun the
defendant used in the shooting had a barrel length of
less than twelve inches.
In addressing a defendant’s sufficiency of the evi-
dence challenge to a conviction for carrying of a pistol
or revolver without a permit in violation of § 29-35 (a),
we expressly have held that ‘‘direct, numerical evidence
is not required to prove barrel length. . . . In the
absence of direct, numerical evidence of barrel length,
this element may be satisfied by evidence that is suffi-
ciently indicative of the size of the firearm so as to
permit the jury to reasonably and logically infer beyond
a reasonable doubt that its barrel is less than twelve
inches in length.’’ (Citation omitted; emphasis omitted.)
State v. Covington, 335 Conn. 212, 220, 229 A.3d 1036
(2020). In Covington, we held that the barrel length
element had been proven by sufficient evidence when
the state presented testimony from a witness who
observed the gun in question inside an average sized
glove compartment in a sedan and later observed the
defendant’s friend pull the gun ‘‘out of his waistband
and hand it to the defendant.’’ (Internal quotation marks
omitted.) Id., 221–22; see, e.g., State v. Williams, 231
Conn. 235, 252, 645 A.2d 999 (1994) (evidence was suffi-
cient to prove barrel length was less than twelve inches
when state presented witnesses who testified that
defendant pulled ‘‘ ‘small handgun’ ’’ from his ‘‘ ‘waist
length jacket’ ’’), overruled in part on other grounds by
State v. Murray, 254 Conn. 472, 757 A.2d 578 (2000);
State v. Miles, 97 Conn. App. 236, 242, 903 A.2d 675
(2006) (evidence was sufficient to prove barrel length
was less than twelve inches when witnesses testified
that they saw defendant with small, silver handgun).
In the present case, the state produced sufficient
evidence that the barrel length of the gun was less than
twelve inches. Although the gun was not introduced
into evidence and no person testified that he or she
saw the gun on the night of the shooting, the gun can
be seen in the video surveillance footage. Specifically,
in the video, when the shooter aims the gun at the
victim’s head, the weapon is visible in the shooter’s
hand and appears to be approximately the size of his
hand. James Stephenson, a firearm and tool mark exam-
iner at the state’s forensics lab, examined the bullet
fragments that were removed from the victim’s body.
He testified that the rifling characteristics of the bullet
jacket were consistent with that of a .38 caliber firearm.
He further testified that he entered the lands and
grooves on the surface of the bullet, as well as the
diameter of the bullet, into a general rifling characteris-
tics file compiled by the FBI, which yielded a nonex-
haustive list of fifteen possible manufacturers that made
firearms that could have fired the bullet. All of those
firearms were pistols with a barrel length of less than
twelve inches. Finally, the state introduced the testi-
mony of Pruden, who testified that, approximately one
month prior to the shooting, he saw the defendant in
possession of a semiautomatic handgun, ‘‘[a] little big-
ger than [Pruden’s] hand.’’
From this evidence, the trial court reasonably could
infer that the barrel of the handgun used by the defen-
dant was less than twelve inches long. It is highly
unlikely that Pruden would describe the gun as a little
bigger than his hand if the barrel was more than one foot
long. Stephenson’s testimony, although not conclusive,
does provide additional support for the finding that
the gun barrel was the requisite length. This finding is
further supported by the video surveillance footage,
which shows the shooter wielding a small handgun.
Accordingly, we conclude that the state produced suffi-
cient evidence to prove the barrel length element
beyond a reasonable doubt.
The judgment is affirmed.
In this opinion ROBINSON, C. J., and McDONALD,
D’AURIA, KAHN and KELLER, Js., concurred.
* February 7, 2022, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
As we note in State v. Gore, supra, 342 Conn. 129, ‘‘[n]otwithstanding
the codification of the common law in the Code of Evidence, this court
retains the authority to develop and change the rules of evidence through
case-by-case common-law adjudication.’’ (Internal quotation marks omit-
ted.) Id., 149 n.12, quoting State v. DeJesus, 288 Conn. 418, 421, 953 A.2d
45 (2008).
2
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.’’
3
Unless otherwise noted, all subsequent references to § 53a-217c are to
the 2013 revision of the General Statutes.
4
The state entered a nolle prosequi as to the charge of carrying a pistol
without a permit.
Moreover, although § 29-35 (a) was the subject of a technical amendment
in 2016; see Public Acts 2016, No. 16-193, § 9; that amendment has no bearing
on the merits of this appeal. In the interest of simplicity, we refer to the
current revision of the statute.
5
Section 7-3 of the Connecticut Code of Evidence provides: ‘‘(a) General
rule. Testimony in the form of an opinion is inadmissible if it embraces an
ultimate issue to be decided by the trier of fact, except that, other than as
provided in subsection (b), an expert witness may give an opinion that
embraces an ultimate issue where the trier of fact needs expert assistance
in deciding the issue.
‘‘(b) Mental state or condition of defendant in a criminal case. ‘No expert
witness testifying with respect to the mental state or condition of a defendant
in a criminal case may state an opinion or inference as to whether the
defendant did or did not have the mental state or condition constituting an
element of the crime charged or of a defense thereto, except that such
expert witness may state his diagnosis of the mental state or condition of
the defendant. The ultimate issue as to whether the defendant was criminally
responsible for the crime charged is a matter for the trier of fact alone.’
General Statutes § 54-86i.’’
The rule change we announce today effects no change to § 7-3 (b) of the
Connecticut Code of Evidence.
6
The change we make today to § 7-3 (a) of the Connecticut Code of
Evidence addresses the majority of the concerns raised by the defendant
in his supplemental brief arguing against the adoption of rule 704 (a) of the
Federal Rules of Evidence. As for the defendant’s arguments concerning
our abandonment of the ultimate issue rule in this narrow context, we
disagree with the defendant that the rule change will result in testimony
that invades the province of the jury. The rule that we have crafted, as set
forth in State v. Gore, supra, 342 Conn. 129, ensures that only witnesses
whose familiarity with the defendant puts them in a better position than the
jurors to do so will be allowed to identify a defendant in surveillance footage.
7
Because Maia was unavailable to testify at the suppression hearing, the
trial court postponed its ruling as to her identification of the defendant in
the surveillance video until the time of trial. The court subsequently ruled
that Maia’s identification of the defendant was admissible.
8
Zaweski testified that the time stamped on the video surveillance footage
was ‘‘approximately six hours and thirty-four minutes ahead of the actual
time.’’ For simplicity, we refer to the time stamped on the video surveillance
footage, not the actual time.
9
Although we reach our conclusion by applying the rule that we
announced today in State v. Gore, supra, 342 Conn. 129, we emphasize that
we would have arrived at the same result by applying § 7-3 (a) of the
Connecticut Code of Evidence, as interpreted by State v. Finan, supra, 275
Conn. 60. The testimony of the witnesses did not embrace an ultimate issue
to be decided by the trier of fact. None of the witnesses testified that they
saw the defendant shoot the victim. No witness identified the defendant in
the surveillance video or still photographs from the video at the time of the
shooting. Evidence that the defendant entered the Cheetah Club approxi-
mately fifty minutes before the shooting and was one of many, presumably
hundreds, of people who ran out of the club after the shooting does not
establish that he was the shooter and, therefore, would not have violated
Finan.
Because our application of the new rule does not change the result of
the appeal, we disagree with the defendant’s claim, in his supplemental
brief, that we should not apply the new rule in this appeal. As we explained
in Gore, ‘‘[r]ather than apply an analysis that we have determined to be
grounded on artificial and illusory distinctions, we believe that the better
approach is to provide the trial courts with an illustration of the application
of the totality of the circumstances test that we adopt today.’’ State v. Gore,
supra, 342 Conn. 139.
10
Photogrammetry is the science of ‘‘calculating the heights of objects
from their photographic images.’’ United States v. Everett, 825 F.2d 658,
662 (2d Cir. 1987), cert. denied, 484 U.S. 1069, 108 S. Ct. 1035, 98 L. Ed. 2d
999 (1988).
11
Rule 702 of the Federal Rules of Evidence provides: ‘‘A witness who is
qualified as an expert by knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if:
‘‘(a) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact
in issue;
‘‘(b) the testimony is based on sufficient facts or data;
‘‘(c) the testimony is the product of reliable principles and methods; and
‘‘(d) the expert has reliably applied the principles and methods to the
facts of the case.’’
Compare rule 702 of the Federal Rules of Evidence with § 7-2 of the
Connecticut Code of Evidence; see footnote 2 of this opinion; and § 7-4 of
the Connecticut Code of Evidence, which provides in relevant part: ‘‘(a)
Opinion testimony by experts. An expert may testify in the form of an
opinion and give reasons therefor, provided sufficient facts are shown as
the foundation for the expert’s opinion.
‘‘(b) Bases of opinion testimony by experts. The facts in the particular
case upon which an expert bases an opinion may be those perceived by or
made known to the expert at or before the proceeding. The facts need not
be admissible in evidence if of a type customarily relied on by experts in
the particular field in forming opinions on the subject. The facts relied on
pursuant to this subsection are not substantive evidence, unless otherwise
admissible as such evidence. . . .’’
12
We emphasize that, because Imel did not identify MS-4 as the defendant,
we need not address in this opinion under what circumstances, if any, an
expert witness may be permitted to do so. Imel’s testimony merely served
to explain the enhanced video and the nature of the tracking analysis Imel
performed. Certainly, although the tracking labels, except for the victim’s,
were removed in the seconds immediately preceding and following the
shooting, the video leaves little doubt that, whoever MS-4 may be, he shot
the victim. Before the alphanumeric labels disappear, the video shows MS-
4 aiming what appears to be a gun at the back of the victim’s head. After
the victim falls to the ground and the alphanumeric labels reappear, MS-4
is seen running away from the direction of the victim’s body. Accordingly,
Imel’s testimony would be valid even under § 7-3 (a) of the Connecticut
Code of Evidence, as interpreted by Finan.
13
We question whether Lauria would have been permitted—either under
the Finan rule or under the rule we announced today in Gore—to testify
regarding his opinion that the defendant was depicted in the video. The
indirect manner in which his opinion was introduced circumvented the
protections that would have been afforded to the defendant under either
Finan or Gore.
14
Witnesses consistently described Tyrone as being overweight. He also
testified at trial, so the jury was able to observe his physical characteristics.
15
The defendant contends that the trial court gave the instruction as to
Watts because it believed it had discretion to do so but did not believe the
law gave it discretion to give the same charge as to Pruden. Upon our review
of the record, we find this contention, at best, arguable. It is axiomatic that
‘‘we read an ambiguous trial court record so as to support, rather than
contradict, [the trial court’s] judgment.’’ Walton v. New Hartford, 223 Conn.
155, 167, 612 A.2d 1153 (1992). Therefore, we will not lightly conclude that
the trial court erroneously read the case law to deprive it of discretion.
Regardless, for the reasons we have discussed in part II B of this opinion,
we find any possible error in the trial court’s failure to give the requested
charge as to Pruden undoubtedly harmless.
16
Because we resolve the defendant’s claim on the basis that any error
was harmless, we need not address the parties’ arguments regarding whether
this court should revisit its holding in State v. Holliman, 214 Conn. 38, 46,
570 A.2d 680 (1990), that the admissibility of identification evidence resulting
from the actions of private citizens turns on the same due process analysis
that applies to identifications that are the result of state action.
17
See General Statutes § 54-1p (c) (2) (‘‘[t]he identification procedure
shall be conducted in such a manner that the person conducting the proce-
dure does not know which person in the photo lineup or live lineup is
suspected as the perpetrator of the offense, except that, if it is not practicable
to conduct a photo lineup in such a manner, the photo lineup shall be
conducted by the use of a folder shuffle method, computer program or other
comparable method so that the person conducting the procedure does not
know which photograph the eyewitness is viewing during the procedure’’).
18
At the time of his testimony before the grand jury, Watts was not
incarcerated, and he had no pending criminal charges.
19
The defendant also claims that Watts’ identification of the defendant
was ‘‘so unreliable that it deprived [the defendant] of his due process right
to a fair trial.’’ State v. Johnson, 312 Conn. 687, 705 n.20, 94 A.3d 1173 (2014).
For claims of constitutional magnitude, the state bears the burden of proving
that any error was harmless beyond a reasonable doubt. See, e.g., State v.
Joseph A., 336 Conn. 247, 268, 245 A.3d 785 (2020). We conclude that that
standard has been met in the present case. As we explained, defense counsel
successfully attacked Watts’ credibility on numerous fronts during cross-
examination and in closing argument. The defendant’s expert witness cast
further doubt on Watts’ testimony, and the trial court gave a special credibil-
ity instruction as to Watts. More important, the persuasive force of Watts’
cumulative testimony paled in comparison to the video surveillance footage
showing the defendant shooting the victim. For all these reasons, we are
‘‘persuaded ‘beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained.’ ’’ State v. Cushard, 328 Conn. 558,
582, 181 A.3d 74 (2018), quoting Chapman v. California, 386 U.S. 18, 24,
87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).