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STATE v. MARCELLO E.—DISSENT
BISHOP, J., dissenting. In 1990, noted scholar Profes-
sor Edward J. Imwinkelried1 wrote that the admissibil-
ity of uncharged misconduct evidence is the single most
important issue in contemporary law. While I am not
gifted with such an encyclopedic understanding of the
history of the law, it is evident that the issue of whether
evidence of prior misconduct should be admitted
against a defendant in a criminal trial continues to vex
our courts.2 This difficult case fits Imwinkelried’s pro-
file of cases involving this most important issue.
While I take no issue with the majority’s recitation
of facts from the underlying trial, I note only that many
facts relating to the identification of the defendant, Mar-
cello E., as the assailant and facts relating to his behav-
ior on the day of the assault were contested at trial.
The jury could, and apparently did, accept the facts as
presented by the state.
Prior to trial, the defendant filed a motion for disclo-
sure of uncharged misconduct. On October 31, 2019,
the court held a hearing on the admissibility of the prior
uncharged misconduct evidence. The defendant asked
the court to exclude, at trial, any evidence of the defen-
dant’s prior violence toward the victim. Before the trial
evidence started, the court indicated that the state
would be permitted to introduce the testimony of the
victim that, two and three years before the assault at
issue, the defendant had punched her in the face.3
At trial, the victim testified that, in 2008, three years
before the assault in question, while she and the defen-
dant were living together, they had an argument during
which she ‘‘asked [the defendant] to leave and it became
verbal and then it became physical.’’ The prosecutor
then asked: ‘‘And that was an argument where he even-
tually hit you in that incident. Correct?’’ The victim
responded, ‘‘[y]es.’’ The victim also testified to an inci-
dent in 2009 when she and the defendant were living
together in Hartford. The victim testified that she and
the defendant again got into an argument. In her answer
to the prosecutor’s question of whether he had punched
her in the face on that day, the victim said, ‘‘[y]es.’’
The majority has concluded that this evidence of the
defendant’s prior misconduct involving the victim was
admissible because it was relevant to prove intent, more
probative than prejudicial, and that the defendant was
not harmed by its admission. Respectfully, I disagree.
I believe, instead, that the evidence of the defendant’s
prior misconduct was not relevant to prove the intent
of the assailant to attack and stab the victim multiple
times with a knife or the assailant’s intent to thereby
cause her serious physical injury. Rather, I believe, the
only purpose and likely effect of this evidence was to
improperly demonstrate to the jury that the defendant
had the propensity to commit acts of domestic violence
against the victim.4 Additionally, and contrary to the
conclusion reached by the majority, I believe this evi-
dence was harmful to the defense. For these reasons,
I respectfully dissent.
As the majority has accurately reported, § 4-5 of the
Connecticut Code of Evidence generally prohibits the
admission of evidence of prior misconduct to prove the
bad character, propensity, or criminal tendency of the
defendant, with certain exceptions. One of those excep-
tions, the one relied on in the case at hand, is that such
evidence may be admissible to prove the defendant’s
intent to commit the crime with which he is charged.
But such evidence must be both relevant and material
to an issue in the case. In the case at hand, I believe it
was neither.
Section 4-1 of the Connecticut Code of Evidence
defines relevant evidence as ‘‘evidence having any ten-
dency to make the existence of any fact that is material
to the determination of the proceeding more probable
or less probable than it would be without the evidence.’’
It is significant that proof of relevancy requires, as well,
that the proffered evidence be material and, ‘‘[t]he mate-
riality of evidence turns upon what is at issue in the
case, which generally will be determined by the plead-
ings and the applicable substantive law.’’ Conn. Code
Evid. § 4-1, commentary.
At trial in this matter, the prior misconduct of the
defendant was purportedly admitted for the sole pur-
pose of proving his specific intent to commit the crime
of assault in the first degree in violation of General
Statutes § 53a-59 (a), which provides in relevant part
that a person is guilty of assault in the first degree
when, ‘‘(1) [w]ith intent to cause serious physical injury
to another person, he causes such injury to such person
. . . by means of a deadly weapon or dangerous instru-
ment . . . .’’ Thus, the state was required to prove that
the assailant assaulted the victim with the specific
intent to cause serious physical injuries.
At the outset, I note that our Supreme Court in the
venerable decision of State v. Gilligan, 92 Conn. 526,
103 A. 649 (1918), held that evidence of similar but
unconnected crimes must be excluded because it vio-
lates the rules of policy that forbids the state initially
to attack the character of the accused and that bad
character may not be proved by particular acts.5 I
believe, respectfully, that the overarching language of
Gilligan sets the table for the discussion of the admis-
sion of prior misconduct evidence in a criminal trial.
In the matter at hand, the prior misconduct evidence
should have been excluded as irrelevant and immaterial
to the issue of intent for separate but related reasons.
First, the evidence of the defendant’s prior miscon-
duct was irrelevant and immaterial to prove the assail-
ant’s intent to cause the victim serious physical harm
because such an intent was evident from the nature of
the attack itself and was not contested at trial. Addition-
ally, this evidence was irrelevant and immaterial
because of the important dissimilarity between the prior
incidents and the assault for which the defendant was
on trial.
There was no dispute during the trial of this matter
as to the issue of intent. The defense made no suggestion
that the assailant struck the victim accidently or by
mistake or that the assailant did not intend to cause
the victim serious physical injury. In short, the state’s
evidence that the assailant attacked the victim with a
knife and stabbed her multiple times was more than
adequate evidence of the intent the state was required
to prove to secure a conviction for the crime of assault
in the first degree. Previously, this court has stated:
‘‘Intent is generally proven by circumstantial evidence
because direct evidence of the accused’s state of mind
is rarely available. . . . Therefore, intent is often
inferred from conduct . . . and from the cumulative
effect of the circumstantial evidence and the rational
inferences drawn therefrom. . . . It is axiomatic that
a factfinder may infer an intent to cause serious physical
injury from circumstantial evidence such as the type
of weapon used, the manner in which it was used, the
type of wound inflicted and the events leading up to and
immediately following the incident.’’ (Internal quotation
marks omitted.) State v. Vasquez, 68 Conn. App. 194,
207, 792 A.2d 856 (2002); accord State v. Madagoski,
59 Conn. App. 394, 399–400, 757 A.2d 47 (2000), cert.
denied, 255 Conn. 924, 767 A.2d 100 (2001). Additionally,
it is axiomatic that, in assessing the intent of an assail-
ant, a jury may infer that a defendant intends the natural
consequences of his voluntary act. See, e.g., State v.
Pagan, 158 Conn. App. 620, 628, 119 A.3d 1259, cert.
denied, 319 Conn. 909, 123 A.3d 438 (2015). The court’s
charge to the jury in this matter was in accord with
these basic tenets.
Also, the prosecutor argued to the jury in closing
argument that the significant injuries to the victim were
sufficient to establish the defendant’s specific intent to
cause serious physical injury to the victim.
In sum, on this point, I believe that the admission of
the prior assaults against the victim by the defendant
were not relevant to prove that the defendant had the
specific intent to stab her and cause her serious physical
injury, as required by the applicable statute, because
the act itself was ample proof of the assailant’s intent
in this regard.
Recently, our Supreme Court revisited the question
of whether an element must be genuinely at issue in
order for evidence of prior misconduct to be admissible
at trial. See State v. Juan J., 344 Conn. 1, 4–5, 276 A.3d
935 (2022). In Juan J., the court concluded that, ‘‘in a
general intent crime case, in which the theory of defense
is that the conduct did not occur at all, rather than
a theory of defense in which the conduct occurred
unintentionally, uncharged misconduct is irrelevant and
inadmissible to prove intent.’’ Id.6 The court in Juan J.
‘‘noted the fine line between using uncharged miscon-
duct to prove intent and using it to show the defendant’s
bad character or propensity to commit the crime
charged. . . . The risk that the evidence will be used
improperly is particularly high when the uncharged mis-
conduct is ‘extrinsic,’ meaning, separate and distinct
from the crime charged, because the uncharged miscon-
duct ‘is practically indistinguishable from prohibited
propensity evidence. Uncharged misconduct may logi-
cally be used to rebut a claim of mistake or no knowl-
edge . . . but to use misconduct at one time to prove
an intent to do the same thing at another time borders
on the forbidden theme of ‘‘once a thief always a thief.’’
. . . E. Prescott, Tait’s Handbook of Connecticut Evi-
dence (6th Ed. 2019) § 4.15.6, p. 176; see also State
v. Conroy, 194 Conn. 623, 626, 484 A.2d 448 (1984)
(‘[E]vidence of similar but unconnected crimes is gener-
ally not admissible to prove a criminal defendant’s guilt.
Such evidence can show no more than the defendant’s
bad character or an abstract disposition to commit a
crime; it provides no proof of guilt of the specific offense
in question.’).’’ (Citation omitted.) State v. Juan J.,
supra, 20. In light of these concerns, the state’s introduc-
tion of uncharged misconduct is properly limited to
cases in which the evidence is needed to ‘‘prove a fact
that the defendant has placed, or conceivably will place,
in issue, or a fact that the statutory elements obligate
the government to prove.’’ (Internal quotation marks
omitted.) Id.
While I acknowledge that Juan J. involved a crime
of general intent, I believe the court’s reasoning in Juan
J. is equally applicable to the case at hand because the
defendant, in this instance, did not dispute any aspects
of the crime itself, including the assailant’s specific
intent; instead, he presented an alibi defense that he
was not present while the attack took place. In my view,
respectfully, the nature of the defense in the case at
hand makes irrelevant not only the issue of the attack-
er’s intent to stab the victim but his intent to cause her
serious physical harm. Accordingly, and contrary to the
majority’s assertion, I believe the reasoning of Juan J.
is directly applicable to the underlying facts at hand
and buttresses the defendant’s claim that evidence of
his prior misconduct incorrectly was admitted into evi-
dence.
I am aware, of course, of earlier decisional law in
Connecticut that prior instances of misconduct may be
admitted to prove intent even though intent may not
be a contested issue, if specific intent must be proven
by the state and if the prior acts are sufficiently similar
to the crime at issue.
In issuing its ruling permitting the state to offer the
uncharged misconduct evidence, the trial court specifi-
cally relied on State v. Anthony L., 179 Conn. App. 512,
525, 179 A.3d 1278, cert. denied, 328 Conn. 918, 181
A.3d 91 (2018), and State v. Morales, 164 Conn. App.
143, 180, 136 A.3d 278, cert. denied, 321 Conn. 916, 136
A.3d 1275 (2016), in support of its decision to permit
the state to adduce evidence of the defendant’s past
acts of violence against the victim. Although I agree
that the cases cited by the trial court appear facially to
support the court’s reasoning, there are also significant
legal and factual differences between those cases and
the facts at hand in this case.7 In Anthony L., the defen-
dant was convicted of sexual assault in the first degree,
risk of injury to a child, and sexual assault in the third
degree. There, the state was permitted to introduce
evidence that the defendant had sexually assaulted the
same victim on dates earlier than the time frame
charged in order to prove his intent. State v. Anthony
L., supra, 523. This court determined on appeal that the
admission of the prior misconduct evidence was not
an abuse of discretion. Id., 527. In part, this court’s
reasoning on review was that the defendant’s prior
uncharged sexual misconduct ‘‘was of the same nature
as the misconduct charged’’; id., 526; and thereby dem-
onstrated the defendant’s sexual interest in the minor
victim and, accordingly, was sufficiently material and
relevant on the issue of the defendant’s intent. Id., 525–
26. But there is no such similarity in the present case
between the prior acts of misconduct and the facts of
the case at hand.
In Morales, also cited by the trial court, the defendant
was convicted of strangulation in the second degree,
unlawful restraint in the first degree, threatening in the
second degree, and assault in the third degree. The trial
court in Morales permitted the state to elicit evidence
of a prior threat by the defendant to the victim as evi-
dence of his specific intent as to the charge of threaten-
ing in the second degree even though the defendant,
on appeal, asserted that there was no genuine issue of
intent at trial. State v. Morales, supra, 164 Conn. App.
177. But, unlike the incidents of prior misconduct at
issue in the present case, the incidents in Morales were
strikingly similar. The victim testified that in the prior
incident the defendant had held a knife to her while
threatening her—behavior nearly identical to the con-
duct for which the defendant was charged. Id., 173. On
appeal, the defendant claimed that the prior misconduct
evidence should not have been admitted because there
was no genuine issue regarding intent. He argued that
evidence of the prior threat was immaterial because he
had implicitly conceded the issue of intent by denying
that he had engaged in the behavior. Id., 177–78. In
rejecting the defendant’s argument, the court opined:
‘‘[I]ntent, or any other essential element of a crime, is
always at issue unless directly and explicitly admitted
before the trier of fact. . . . [The] prosecution’s burden
to prove every element of [a] crime is not relieved by a
defendant’s tactical decision not to contest an essential
element of the offense . . . .’’ (Citations omitted; inter-
nal quotation marks omitted.) Id.
I believe that, unlike the prior misconduct evidence in
Anthony L. and Morales, the evidence of the defendant’s
prior attacks on the victim was not material because
of the dissimilarity between these prior incidents and
the assault for which the defendant was on trial. Neither
prior incident demonstrated the defendant’s intent to
assault the victim with a knife or the intent to cause
her serious physical injury. It is also noteworthy that,
in both prior acts involving the defendant and the vic-
tim, the violence ensued from a heated argument
between them and did not involve the use of any extrin-
sic instrumentality, but, in the case at hand, the trial
evidence indicates that the attack on the victim was
sudden and did not follow any heated dispute between
the parties. Indeed, the victim testified that, since their
separation approximately two years before the incident
in question, she and the defendant had nothing to do
with each other and that, when she went to the home
of the defendant’s mother to pick up their daughter, S,
after school, she avoided contact with the defendant,
who also lived there. Accordingly, there was no evi-
dence of any interactions, let alone arguments or heated
exchanges between the victim and the defendant for a
period of two years leading up to the assault for which
the defendant was tried. But similarity between the
prior misconduct and the crime charged at trial must
be sufficient to make evidence of the prior misconduct
probative of the defendant’s intent. In State v. Chyung,
325 Conn. 236, 263–64, 157 A.3d 628 (2017), our Supreme
Court approved of the admission of evidence of prior
misconduct because there were ‘‘substantial similarit-
ies’’ between the prior misconduct and the charged
crimes, including the use of a firearm in both instances.
In sum, the similarity between the prior incidents and
the assault at issue must bear sufficient commonalities
to be probative of the defendant’s intent to commit the
crime in question, a requirement absent from the state’s
proof in the matter at hand, as the prior acts of miscon-
duct bore an insufficient nexus to the assault under
review to make them material at trial. Although the
prior acts involved the defendant’s striking the victim,
the differences in manner and severity and the circum-
stances surrounding each act are sufficiently dissimilar
to negate the probative value of the evidence of the
past acts.
Additionally, as to the issue of similarity, and in
regard to the element of specific intent required to prove
the crime of assault in the first degree, there is no
evidence that, in the prior incidents, the defendant uti-
lized a weapon or that he intended or did, in fact, cause
serious physical injury to the victim. Although the prior
misconduct by the defendant, as testified to by the
victim, was the result of the heat of the moment and
spontaneous, there can be no question that the assault
on the victim in the present case was deliberate and
vicious. Those important dissimilarities belie a suffi-
cient connection to make them probative of a specific
intent on the part of the defendant to cause the victim
serious physical injury by the use of a dangerous instru-
ment.
Additionally, the prior misconduct was, in the lan-
guage of one legal writer, extrinsic rather than intrinsic
to the brutal attack on the victim with a knife. In his
treatise on evidence, Judge Prescott discusses the dis-
tinction between intrinsic and extrinsic conduct as it
relates to the admissibility of prior misconduct to prove
intent—the latter defined as separate and distinct from
the crime charged. See E. Prescott, supra, § 4.15.6, p.
176. Judge Prescott comments: ‘‘If . . . the prior
uncharged misconduct is ‘extrinsic,’ namely, separate
and distinct from the crime charged, the use of
uncharged misconduct to prove intent is problematic
because it is practically indistinguishable from prohib-
ited propensity evidence.’’ Id.
In my view, the evidence of the defendant’s prior
assaults on the victim, both spontaneous and occurring
while the defendant was inflamed by some argument
with the victim, are significantly different from the facts
of the present assault to make evidence of the prior
acts immaterial on the issue of intent.
Having determined that the evidence of the defen-
dant’s past assaults on the victim were not relevant to
prove his intent to brutally attack her with a knife,
causing multiple stab wounds, I, nevertheless, briefly
discuss whether the admission of the prior misconduct
evidence was more prejudicial than probative. I believe
it was. ‘‘In determining whether the prejudicial effect
of otherwise relevant evidence outweighs its probative
value, we consider whether: (1) . . . the facts offered
may unduly arouse the [jurors’] emotions, hostility or
sympathy, (2) . . . the proof and answering evidence
it provokes may create a side issue that will unduly
distract the jury from the main issues, (3) . . . the evi-
dence offered and the counterproof will consume an
undue amount of time, and (4) . . . the defendant, hav-
ing no reasonable ground to anticipate the evidence, is
unfairly surprised and unprepared to meet it.’’ (Internal
quotation marks omitted.) State v. Patterson, 344 Conn.
281, 296, 278 A.3d 1044 (2022). In reaching my conclu-
sion that the evidence of the defendant’s prior miscon-
duct should not have been admitted into evidence, I
am aware of the great deference that must be given to
the trial court when it engages in this balancing analysis.
Nevertheless, the trial court’s discretion in this regard
is not boundless.8 As noted, I do not believe that the
prior misconduct evidence was probative of the defen-
dant’s intent to assault the victim with the intent to
cause her serious physical injury. My reasons have
already been stated. Assuming, arguendo, that this evi-
dence was minimally probative, I believe that it was
substantially more prejudicial than probative.
As to the prejudicial impact of the prior misconduct
evidence, I note that, at the outset of the victim’s testi-
mony, the prosecutor brought to the jury’s attention that
the defendant had twice before assaulted the victim. It
is difficult not to believe that this very damaging evi-
dence influenced the jury’s view of the ensuing evi-
dence, including the veracity of the defendant’s alibi
witnesses. In short, I believe that the likelihood that
this damaging evidence skewed the jury’s view of the
defendant is substantial. Although it cannot be said that
the prior misconduct was gruesome as compared with
the assault in question, I believe it may be particularly
difficult for a jury to hear that a defendant has twice
before assaulted a victim but now is innocent of yet
another assault. In short, by any reckoning, I believe
that the prejudicial impact of this evidence substantially
outweighed any remote relevance it may have had.
Also, the court’s provision of limiting instructions
regarding the defendant’s prior acts of misconduct may
not entirely cure any prejudice emanating from the
admission of those facts. See, e.g., State v. Juan J.,
supra, 344 Conn. 33 (holding that limiting ‘‘instructions
to the jury on the proper use of this evidence [only
for purposes of intent] could not cure the potential
prejudice to the defendant’’ because ‘‘[t]he uncharged
misconduct was admitted not to prove propensity but to
prove the irrelevant issue of intent’’ (internal quotation
marks omitted)).
Having determined that the court incorrectly admit-
ted evidence of the two prior occasions of the defen-
dant’s misconduct, I turn next to the question of
whether the admission of this evidence was harmful.
Under the particular circumstances of this case, I am
persuaded that it was.
At the outset, it is undisputed that it is the defendant’s
burden to prove that an evidentiary error was harmful,
but, unlike the state’s burden of proving that an error
of constitutional magnitude is harmless beyond a rea-
sonable doubt, the defendant’s burden is less strict. In
State v. Fernando V., 331 Conn. 201, 215, 202 A.3d 350
(2019), our Supreme Court recently articulated the well
established law governing harmless error review of non-
constitutional evidentiary claims. As enunciated in Fer-
nando V., ‘‘a nonconstitutional error is harmless when
an appellate court has a fair assurance that the error
did not substantially affect the verdict,’’ and ‘‘cases that
present the jury with a credibility contest characterized
by equivocal evidence . . . [are] far more prone to
harmful error.’’ (Internal quotation marks omitted.) Id.
Additionally, when the evidentiary error involves the
improper admission of uncharged misconduct evi-
dence, ‘‘the most relevant factors to be considered are
the strength of the state’s case and the impact of the
improperly admitted evidence on the trier of fact.’’
(Internal quotation marks omitted.) State v. Martin V.,
102 Conn. App. 381, 388, 926 A.2d 49, cert. denied, 284
Conn. 911, 931 A.2d 933 (2007).
On the basis of my careful review of the record, I
believe the scales heavily tip in favor of the defendant’s
argument on the question of harm because, without
the evidence of the defendant’s prior misconduct, the
evidence of the defendant’s guilt was in equipoise—
that is, the state’s case, shorn of the evidence of prior
misconduct, likely would not have led to a determina-
tion by the jury that the defendant was guilty beyond a
reasonable doubt. In short, I do not believe a reasonable
review of the evidence provides a basis for a fair assur-
ance that the evidence of prior misconduct did not
affect the verdict.
Unlike my colleagues in the majority and the argu-
ment of the state, I do not believe that the state’s case,
without the prior misconduct evidence, was strong. The
evidence at trial was a credibility contest in which the
only real issue was the identity of the assailant. Indeed,
as the prosecutor acknowledged in his closing rebuttal
argument, the issue in this case was the identification
of the assailant. This was, in fact, the only issue in the
case. Identification of the assailant was the only issue
argued by the prosecutor after he had indicated that
the jury could reasonably infer specific intent by refer-
ence to the circumstances of the crime itself and after
he had reminded the jury of the defendant’s prior mis-
conduct against the victim.
Additionally, although I understand that circumstan-
tial evidence may be a sufficient basis for the conviction
of a defendant, it is noteworthy that, other than the
victim’s identification of the defendant, there was no
direct evidence of the defendant’s involvement in this
assault. There was no forensic evidence, no inculpatory
statements, no weapon found that could be tied to the
defendant, no shoe prints, or any other similar evidence.
Additionally, as to circumstantial evidence, there was
no evidence that the defendant and the victim had any
contact for two years prior to the incident in question
and, accordingly, no argument between the victim and
the defendant, which, arguably, might have shed some
light on the defendant’s identity as the assailant. In sum,
the issue of identity, the only issue at trial, was clouded
because there was no evidence of any dispute between
the victim and the defendant or other participants that
might have given rise to this vicious attack—unlike the
defendant’s earlier assaults on the victim, both of which
arose following heated arguments between the defen-
dant and the victim.
Although there was identification evidence pointing
to the defendant, this evidence was conflicting and also
was rebutted by the defendant’s alibi defense. The
state’s first witness at trial was Sergeant Chris Hunyadi
of the Hartford Police Department. He stated that, when
this attack occurred, he had been a patrol officer and,
in that capacity, arrived at the scene at M Street in
Hartford where he saw the victim lying in a pool of
blood in ‘‘the back stairwell or the back entryway of
the home.’’9 He indicated that he also went to the hospi-
tal where he had the opportunity to speak with the
victim. Hunyadi testified that, during this conversation,
the victim told him that she had not seen her attacker
and that the person who attacked her was unknown to
her. On redirect examination by the prosecutor, Huny-
adi testified that he had spoken with the victim after
she had been administered a large amount of pain medi-
cation and after medical personal had stabilized her.
In its attempt to diminish the importance of this collo-
quy, the state, and the majority, in turn, point to the
medication administered to the victim when she was
hospitalized after the attack as a reason for her inability
to identify the defendant as her attacker at that time.
The jury, however, was provided no information con-
cerning the particular medications administered to the
victim or the potential impact they might have had on
her ability to recollect and to articulate the events as
she experienced them. Thus, it is not reasonable to
infer the likely affect any medications may have had
on the victim’s ability to recall and, specifically, to iden-
tify the person who had assaulted her. From this record,
we are left only with the evidence that the victim told
Hunyadi at the hospital shortly after the assault that
she did not see her attacker and did not know who had
attacked her.
Hunyadi’s testimony that the victim was unable to
identify her attacker and that the victim said she had
not seen him presented a contrast to the jury when the
victim herself later testified that she did recognize the
defendant as her attacker at the scene and told her son,
J, shortly after the attack that it had been the defendant
who attacked her. The jury, then, was left with conflict-
ing stories regarding the victim’s identification or non-
identification of the defendant as her assailant.
Furthermore, as noted previously in this dissenting
opinion, before the victim was asked any questions at
trial about the assault at issue, the prosecutor asked
her about being assaulted by the defendant on two
previous occasions. She testified that, in 2008, she and
the defendant had gotten into an argument that turned
physical, during which he hit her. The prosecutor then
moved to the second incident, which occurred in 2009.
The victim testified that she and the defendant had
gotten into another argument, during which the defen-
dant punched her in the face.10
Another pillar of the state’s evidence was the victim’s
positive identification of the defendant from the photo-
graphic array prepared by the Hartford Police Depart-
ment. But the array process was significantly flawed
because it included a photograph of the defendant, a
man with whom the victim had lived for several years
and with whom she had borne children. Such an array
can hardly be seen as a random selection of potential
suspects.11
The victim and the defendant’s son, J, testified, as
well. He was eleven years old at the time of the incident.
At trial, he was a difficult witness.12 At one point, he
testified that the victim probably had said that the defen-
dant had attacked her, but, he stated, he did not remem-
ber. Further in his testimony, he acknowledged that he
had given the police a statement in which he had said
that the victim had told him that the defendant had
attacked her. He stated, as well, that, when he came
upon the scene by the entryway, he saw a man moving
away fast whose features were like the defendant’s
features.
Another witness called by the state, Louis Poma, a
detective with the Hartford Police Department at the
time of the charged crime, testified that he had assem-
bled a photographic array that included a photograph
of the defendant, and, when shown to the victim, she
had identified the defendant as her assailant.
Against this identification testimony, the defendant
presented an alibi that he was in bed at the home of
his mother, O, at B Street in Hartford while the attack
on the victim took place. Supporting him in this alibi
defense were O and his sister, D.
O testified that the defendant lived in a bedroom on
the second floor of her home.13 She stated that, on the
day in question, the defendant had arrived at her home
at approximately 4:45 p.m. with S and that, shortly after
their arrival, the defendant went upstairs to his bed-
room. She explained that there had been an arrange-
ment between the victim and the defendant, both S’s
parents, that the defendant would pick up S from school
in the afternoon, bring her to B Street, often after stop-
ping for some fast food, and that, once there, S would
wait for the victim to pick her up after she had left
her workplace. That was the course, O indicated, on
November 16, 2011. She continued in her testimony
that, at approximately 6 p.m., she received a phone call
from an old friend, after which she called upstairs to
the defendant. Not receiving any response, she went to
the defendant’s room where she discovered him sound
asleep in his bed. She indicated that she had to shake
the defendant to awaken him. In response to ques-
tioning from defense counsel, she noted that there was
no sign of rainwater in the room, rain having fallen that
evening, and that the defendant was then wearing a T-
shirt and sweatpants. Notably, she testified that the
defendant could not have left the residence after his
return home with S because she would have heard the
squeaking of the door to the home when anyone left.
D testified that she also lived with her mother and
the defendant at the B Street residence. On the day in
question, she indicated that she had arrived home at
approximately 5:40 p.m., and recalled that O had
received a phone call at approximately 6 p.m., after
which O retrieved the defendant from his room and both
of them came downstairs. D testified that the defendant
‘‘looked [like] he just woke up, bed head. It looked like
she woke him up from a sleep.’’
Finally, as to the alibi defense, Sergeant Valentine
Olabisi of the Hartford Police Department, who was a
patrol officer at the time of the attack on the victim,
testified that he went to the B Street residence on the
night of the incident where he spoke with the defendant,
who asserted that he had been home during the day.
Olabisi acknowledged on cross-examination that, when
he was with the defendant, he did not appear to be wet
and that there was no water in the area of the first floor.
Because there was incomplete and conflicting identi-
fication evidence and alibi evidence, even from family
members, that the defendant was elsewhere at the time
of the attack, and an absence of any direct proof of the
defendant’s guilt, this circumstantial evidence case was
not strong. Without the evidence of the defendant’s
prior assaults on the victim, it is not reasonable to
conclude, with any assurance, that the jury would have
found the defendant guilty.
In conclusion, I believe that the reasoning of United
States v. Miller, 673 F.3d 688 (7th Cir. 2012), poignantly
illustrates the problem of permitting the admission of
prior misconduct evidence when the issue for which it
is purportedly offered is undisputed and the evidence
of prior misconduct tends to prove only the defendant’s
propensity to commit the charged offense. In Miller,
the United States Court of Appeals for the Seventh
Circuit was confronted with the admission at trial of
a defendant’s prior acts of misconduct involving the
possession of drugs with the intent to distribute them.
Id., 692. On review, the court in Miller observed that,
although the defendant’s prior acts did, in fact, demon-
strate an intent to distribute and the current charge
also included, as an element of the offense, the intent
to distribute, the trial court should not have admitted
the prior acts on the issue of intent because that issue
was ‘‘not meaningfully disputed by the defense.’’ Id.,
697. Rather, the defendant claimed that the drugs were
not in fact his and that he had not even been staying
in the room where the drugs were found. Id., 696. In
reversing the judgment of the trial court, the Seventh
Circuit opined: ‘‘And this is where the district court
erred . . . . The court focused on whether intent was
at issue based on [the defendant’s] defense and on the
government’s obligations of proof. Having concluded
that intent was at issue, the court turned to analyze
prejudice and . . . simply stated that the evidence was
highly probative of intent. Had the court asked more
specifically how the prior conviction tended to show
intent eight years later, it would have recognized that
it was dealing with propensity evidence all the way
down. Unless there is a persuasive and specific answer
to the question, ‘How does this evidence prove intent?’
then the real answer is almost certainly that the evi-
dence is probative only of propensity.’’ Id., 699. Miller’s
operative facts are strikingly similar to those we con-
front in the case at hand. The defendant’s intent to
strike the victim two and three years before the incident
in question was not probative of any intent by the defen-
dant to assault the victim with a knife with the intent to
cause her serious bodily harm. Simply put, this evidence
proved nothing more than that the defendant had the
propensity to be violent against the victim, which is
expressly excluded by § 4-5 (a) of the Connecticut Code
of Evidence.
For the foregoing reasons, I respectfully dissent.
1
Edward J. Imwinkelried is the Edward L. Barrett, Jr., Professor of Law
Emeritus at the University of California, Davis School of Law. Professor
Imwinkelried is the author of several treatises and law review articles dealing
with evidentiary issues, including, most notably, the topic of the admission
of prior misconduct evidence in a criminal trial.
2
See E. Imwinkelried, ‘‘The Use of Evidence of an Accused’s Uncharged
Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf
the Character Evidence Prohibition,’’ 51 Ohio St. L.J. 575, 576 (1990). In
making this assertion, Professor Imwinkelried was referring specifically to
rule 404 (b) of the Federal Rules of Evidence concerning the admissibility of
prior bad acts, a federal rule with relevant parallels to § 4-5 of the Connecticut
Code of Evidence. See id., 575–76. Indeed, a review of Westlaw indicates
that, since 2002, the admissibility of evidence of prior misconduct was an
issue in 355 cases in the United States Court of Appeals for the Second
Circuit and, in the same time period, the parallel issue of the admissibility
of prior misconduct under the Connecticut Code of Evidence was a salient
issue in 245 cases in this court. Whether those numbers support the accuracy
of Imwinkelried’s claim, the issue of the admission of prior misconduct
evidence in a criminal trial remains a dynamic issue for trial and reviewing
courts because the improper admission of prior misconduct evidence puts
at risk a defendant’s right to the presumption of innocence. As Judge Clark
of the United States Court of Appeals for the Fifth Circuit aptly put it: ‘‘A
concomitant of the presumption of innocence is that a defendant must be
tried for what he did, not for who he is. The reason for this rule is that it
is likely that the defendant will be seriously prejudiced by the admission
of evidence indicating that he has committed other crimes.’’ United States
v. Myers, 550 F.2d 1036, 1044 (5th Cir. 1977).
3
Unlike the situation in the present case, in which the court determined
the admissibility of the prior misconduct evidence before the start of evi-
dence, other jurisdictions resolve this issue after the close of the state’s
case-in-chief. To minimize the risk of undue prejudice in the introduction
of prior misconduct evidence, the United States Court of Appeals for the
Second Circuit has adopted an approach that appears fair to both the govern-
ment and the defendant. In United States v. Bok, 156 F.3d 157, 166 (2d Cir.
1998); the court opined: ‘‘Although it is generally the favored practice for
the trial court to require the government to wait before putting on its similar
act evidence until the defendant has shown that he will contest the issue
of intent . . . such evidence is admissible during the [g]overnment’s case-
in-chief if it is apparent that the defendant will dispute that issue.’’ (Citation
omitted; internal quotation marks omitted.) Id.; see also United States v.
Inserra, 34 F.3d 83, 90 (2d Cir. 1994); United States v. Muhammad, Docket
No. 3:12CR00206 (AVC), 2013 WL 6091860, *1 (D. Conn. November 19, 2013).
Most recently, in State v. Juan J., 344 Conn. 1, 24 n.12, 276 A.3d 935
(2022), our Supreme Court expressed its own concern about the procedures
utilized in Connecticut for the introduction of prior misconduct evidence
in criminal trials. The court acknowledged that it previously had expressed
a willingness to ‘‘leave it to the sound discretion of our trial courts to
determine the precise procedure to employ in a particular case, consistent
with their duty to safeguard against undue prejudice in cases involving
uncharged misconduct evidence.’’ (Internal quotation marks omitted.) Id.
The court continued: ‘‘We note with approval, however, procedures
employed by several other state and federal courts when defendants have
sought to remove the issue of intent through a particular defense theory,
thereby implicating how trial courts should handle the admission of
uncharged misconduct evidence. By detailing the procedures undertaken
in these jurisdictions, we merely intend to emphasize the caution that courts
must take in admitting this evidence and that, often, a court’s appropriate
exercise of its discretion becomes more informed as the trial plays out.’’
Id. The court then continued by citing examples in both state courts and
in the federal courts within the Second Circuit. Id., 24–25 n.12. Our Supreme
Court’s gentle reminder to the trial courts is noteworthy. A trial procedure
such as that recommended by the Second Circuit, which does not permit
the government to introduce prior misconduct evidence in its case-in-chief
unless it knows that the issue for which such evidence is offered is actually
at issue, would alleviate the risk of undue prejudice that lingers in our
present practice of permitting the state to introduce such evidence in its case-
in-chief whether or not the defendant actually contests the particular issue.
4
Although I believe that the evidence of the defendant’s prior assaults
on the victim should not have been admitted as proof of intent because the
only purpose of this evidence was to prove the defendant’s propensity
toward violence against the victim, there may, in fact, be merit in allowing
such evidence to prove propensity in a domestic violence case, as some
writers have urged. See, e.g., A. Kovach, note, ‘‘Prosecutorial Use of Other
Acts of Domestic Violence for Propensity Purposes: A Brief Look at its Past,
Present, and Future,’’ 2003 Ill. L. Rev. 1115 (2003); D. Ogden, comment,
‘‘Prosecuting Domestic Violence Crimes: Effectively Using Rule 404 (b) to
Hold Batterers Accountable for Repeated Abuse,’’ 34 Gonz. L. Rev. 361
(1998); P. Vartabedian, comment, ‘‘The Need to Hold Batterers Accountable:
Admitting Prior Acts of Abuse in Cases of Domestic Violence,’’ 47 Santa
Clara L. Rev. 157 (2007). But see E. Collins, ‘‘The Evidentiary Rules of
Engagement in the War against Domestic Violence,’’ 90 N.Y.U. L. Rev. 397,
415–22 (2015).
In Connecticut, our Supreme Court already has recognized what has been
termed battered women’s syndrome. In State v. Vega, 259 Conn. 374, 788
A.2d 1221, cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56
(2002), our Supreme Court concluded ‘‘that evidence of the defendant’s
prior incidences of violence toward the victim was relevant to the prosecu-
tion’s case in that it demonstrated the manifestation of the battered women’s
syndrome as it affected the victim’’ and, ‘‘therefore, that the evidence of
the defendant’s prior misconduct substantiates the theory that there existed
a system of criminal activity on the part of the defendant.’’ Id., 398; see also
State v. Borrelli, 227 Conn. 153, 172–73, 629 A.2d 1105 (1993).
Thus, it appears that we already have come part of the way toward
allowing prior misconduct in domestic violence cases as propensity evidence
without explicitly acknowledging we are doing so. For example, in State v.
Kantorowski, 144 Conn. App. 477, 72 A.3d 1228, cert. denied, 310 Conn.
924, 77 A.3d 141 (2013), this court opined: ‘‘When instances of a criminal
defendant’s prior misconduct involve the same victim as the crimes for which
the defendant presently is being tried, those acts are especially illuminative
of the defendant’s motivation and attitude toward that victim, and, thus, of
his intent as to the incident in question.’’ (Internal quotation marks omitted.)
Id., 488; accord State v. Morlo M., 206 Conn. App. 660, 690–91, 261 A.3d 68,
cert. denied, 339 Conn. 910, 261 A.3d 745 (2021). These cases reflect an
understanding that, in matters of domestic violence, past violent behavior
by a defendant against the victim is a reasonable predictor of future similar
bad acts. Perhaps it may be time for us to explicitly acknowledge this fact
in order not only to recognize that domestic violence is often a repeated
offense characterized by escalating levels of coercive control, often starting
out as verbal and emotional control and resulting, over time, in incidents
of serious physical violence, as already acknowledged by our Supreme Court
in State v. Vega, supra, 259 Conn. 396–98. Finally, it should be noted that
the phrase ‘‘battered women’s syndrome’’ has been criticized for its focus
on the victim and not on the behavior of the assailant; the suggestion has
been made that, in discussing this phenomenon of escalating bad behavior
in a domestic relationship, the term ‘‘coercive control’’ is more apt. See E.
Stark, ‘‘Re-Presenting Woman Battering: From Battered Woman Syndrome
to Coercive Control,’’ 58 Alb. L. Rev. 973, 975–76 (1995).
In addition to scholarly writings, the issue of whether in cases of domestic
violence, past acts of violence by a defendant against the same victim should
be admitted for propensity purposes has been the subject of recent rule
making and legislation in other states. In Alaska, the legislature amended
its Code of Evidence to provide, inter alia: ‘‘In a prosecution for a crime
involving domestic violence or of interfering with a report of a crime involv-
ing domestic violence, evidence of other crimes involving domestic violence
by the defendant against the same or another person or of interfering with
a report of a crime involving domestic violence is admissible. . . .’’ Alaska
R. Evid. 404 (b) (4).
California took a similar tack when its legislature enacted a provision
within the state’s Evidence Code in 1996 to permit the admission of prior
acts of domestic violence in certain situations as propensity evidence. See
generally People v. Merchant, 40 Cal. App. 5th 1179, 1192, 253 Cal. Rptr.
3d 766 (2019) (discussing § 1109 of Evidence Code, which ‘‘reflects the
[l]egislature’s determination that in domestic violence cases, similar prior
offenses are uniquely probative of a defendant’s guilt on a later occasion’’),
review denied, California Supreme Court, Docket No. S259179 (January
22, 2020).
Akin to California’s approach, Illinois amended its relevant statute,
although not as broadly, to permit evidence of a defendant’s prior conviction
for domestic battery against the same victim. In part, the Illinois statute
provides: ‘‘Evidence of a prior conviction of a defendant for domestic battery,
aggravated battery committed against a family or household member . . .
stalking, aggravated stalking, or violation of an order of protection is admissi-
ble in a later criminal prosecution for any of these types of offenses when
the victim is the same person who was the victim of the previous offense
that resulted in conviction of the defendant.’’ 725 Ill. Comp. Stat. Ann. 5/
115-20 (a) (West 2008). Interpreting that statute, the Illinois Supreme Court
in People v. Chapman, 965 N.E.2d 1119, 1124 (Ill. 2012), held that the statute
had partially abrogated the common-law rule against the admission of pro-
pensity evidence. See also People v. Dabbs, 239 Ill. 2d 277, 284–85, 940 N.E.2d
1088 (2010), cert. denied, 563 U.S. 964, 131 S. Ct. 2158, 179 L. Ed. 2d 942 (2011).
In Michigan, its legislative body amended that state’s Code of Evidence
in 2019 to permit the admission of evidence of past acts of domestic violence
for any purpose for which the offer is relevant, thus removing its ban against
propensity evidence in the domestic violence context. See Mich. Comp.
Laws Serv. § 768.27b (1) (LexisNexis Cum. Supp. 2021). Subsequent to the
passage of this amendment, the Michigan Appeals Court interpreted the
statute as permitting evidence of past acts of domestic violence as a demon-
stration of the defendant’s propensity to commit acts of violence against
women who were or had been romantically involved with him. See People
v. Farmer, Docket No. 345496, 2020 WL 3120259, *10 (Mich. App. June
11, 2020).
Although Iowa has not adopted a rule expressly permitting propensity
evidence in cases involving domestic violence, the Iowa Court of Appeals
tacitly acknowledged that such evidence may be admitted to prove propen-
sity in domestic violence cases because, in domestic violence, ‘‘each incident
is ‘connected to the others.’ ’’ State v. Syperda, Docket No. 18-1471, 2019
WL 6893791, *11 (Iowa App. December 18, 2019) (decision without published
opinion, 941 N.W.2d 596). In reaching this conclusion, the court in Syperda
appears to have carved out a common-law exception to the ban against
propensity evidence to accommodate the reality that domestic violence
cases are often repeated, interconnected offenses. See id.
Finally, Colorado amended its criminal code in 2021 to permit evidence
of prior misconduct in certain domestic violence criminal trials. In its intro-
duction to this amendment to its code, the Colorado General Assembly
opined: ‘‘The general assembly hereby finds that domestic violence is fre-
quently cyclical in nature, involves patterns of abuse and can consist of
harm with escalating levels of seriousness. The general assembly therefore
declares that evidence of similar transactions can be helpful and is necessary
in some situations in prosecuting crimes involving domestic violence.’’ Colo.
Rev. Stat. § 18-6-801.5 (1) (LexisNexis 2021).
Although these developments in other jurisdictions do not represent an
avalanche of change, they are an acknowledgment that the admission of
prior misconduct evidence in domestic violence cases is different because
these cases often involve repeated coercive behavior that often results in
physical injury. I believe, respectfully, that these developments may be
worthy of study in Connecticut.
5
At oral argument before this court, the state contended that State v.
Gilligan, supra, 92 Conn. 526, is inapplicable to the case at hand because,
in State v. Beavers, 290 Conn. 386, 405 n.20, 406, 963 A.2d 956 (2009), Justice
Norcott, in dicta, suggested that Gilligan should be confined to its facts.
Respectfully, given Gilligan’s history as a recitation of foundational law
regarding the use of prior misconduct evidence in a criminal trial, I believe
the dicta of Beavers should be closely scrutinized before discarding Gilli-
gan’s principal tenet that evidence of a defendant’s guilt of a prior crime
is inadmissible to prove that a defendant is guilty of the crime charged
against him. Citing Gilligan, our Supreme Court has stated: ‘‘The reason
for the rule is that in the setting of a jury trial the danger of prejudice from
evidence that the accused is a person of bad character and thus more likely
to have committed the crime charged is deemed to outweigh the probative
value of such evidence and may have no direct tendency to prove the crime
charged.’’ State v. Holliday, 159 Conn. 169, 172, 268 A.2d 368 (1970); see
also State v. Conroy, 194 Conn. 623, 626, 484 A.2d 448 (1984); State v.
Esposito, 192 Conn. 166, 169, 471 A.2d 949 (1984); State v. Onofrio, 179
Conn. 23, 28, 425 A.2d 560 (1979); State v. Jonas, 169 Conn. 566, 572–73,
363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S. Ct. 1132, 47 L. Ed. 2d
331 (1976); State v. Simborski, 120 Conn. 624, 630–31, 182 A. 221 (1936).
6
While this appeal was pending, our Supreme Court issued its decision
in State v. Juan J., supra, 344 Conn. 1, and, consequently, this court ordered
counsel in the present case to submit supplemental briefs on the impact of
Juan J. on the issues in this appeal. In response, the state takes the position,
and the majority concludes, that Juan J. is inapposite because Juan J.
involved a general intent crime and not one involving specific intent.
7
I acknowledge that I am troubled by our jurisprudence that permits the
state to offer evidence on an issue about which there is no dispute, but our
Supreme Court’s decision in State v. Juan J., supra, 344 Conn. 25 n.12,
regarding the proper procedure for determining whether prior misconduct
evidence should be admitted may be a signal that we are moving away from
that point of view. Learned treatises and other jurisdictions have taken a
different tack than our past cases have on this question. In his treatise on
evidence, Imwinkelried advanced the premise that, for prior misconduct
evidence to be admissible to prove intent, the question of intent must be
in genuine dispute. See E. Imwinkelried, Uncharged Misconduct Evidence
(Rev. Ed. 1998). In making this assertion, Imwinkelried acknowledged that
jurisdictions in the United States are not in agreement on this point. Id.;
see also E. Imwinkelried, ‘‘The Use of Evidence of an Accused’s Uncharged
Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf
the Character Evidence Prohibition,’’ 51 Ohio St. L.J. 575, 593–96 (1990).
8
As already noted herein, the court made the decision to admit this
evidence before the evidence portion of the trial had commenced. It is
difficult to understand how a judge, even the most diligent, can effectively
balance the probative value of this evidence against its prejudicial effect
without first hearing the state’s case-in-chief. For this reason, our Supreme
Court’s admonition in State v. Juan J., supra, 344 Conn. 25 n.12, and the
practice of the United States Court of Appeals for the Second Circuit, as
outlined in footnote 3 of this dissenting opinion, appear particularly appro-
priate because deferring a ruling until the finish of the state’s case in order
to determine which issues are actually in play enhances the likelihood that
any judicial ruling on this matter will be fair both to the state and to the
defendant.
9
Evidence from the trial reveals that, at the time of the attack, just before
6 p.m. on November 16, 2011, it was dark and the rain was heavy. Addition-
ally, a police photograph of the backdoor of the victim’s home in the area
in which she was attacked shows that the door was not illuminated by any
light on the door on the outside of the house. See state’s exhibit 3.
10
The court immediately thereafter gave an appropriate limiting instruc-
tion to the jury. Although there was no objection to the propriety of the
court’s limiting instruction, I note that, in reviewing it, the court’s statement
to the jury that it could consider the defendant’s past acts of misconduct
as evidence of his intent to assault the victim in this matter could easily
have been taken by the jury as a suggestion of identification, a result surely
not intended by the court but emblematic of the difficulty in admitting prior
misconduct evidence on the issue of intent when the only issue in the matter
is, in fact, the identity of the assailant.
Also, although we are instructed that we must presume that a jury will
abide by the proscriptions recited in a limiting instruction, our naivety
cannot be boundless. See, e.g., Jackson v. Denno, 378 U.S. 368, 388 n.15,
84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964) (reciting authorities debunking notion
that juries can overlook evidence they should not have heard); see also
Bruton v. United States, 391 U.S. 123, 129 n.4, 88 S. Ct. 1620, 20 L. Ed. 2d
476 (1968) (reciting authorities that have ‘‘refused to consider an instruction
as inevitably sufficient to avoid the setting aside of convictions’’); A. Diaz,
comment, ‘‘Restoring the Presumption of Innocence: Protecting a Defen-
dant’s Right to a Fair Trial by Closing the Door on 404 (b) Evidence,’’ 51
St. Mary’s L.J. 1001, 1015–16 (2020) (‘‘psychological research indicates that
juries are unable to ignore inadmissible evidence’’).
11
To be sure, the defendant makes no claim on appeal that evidence of
the photographic array was improperly admitted. Nevertheless, in assessing
the strength of the state’s case, it is reasonable to closely consider the
persuasiveness of the array because it included a photograph of the man
with whom the victim had lived for several years. The value of this array
to a jury not already swayed by the evidence of the defendant’s prior assaults
on the victim is dubious.
12
At one point, under questioning by the prosecutor, J blurted out, ‘‘I
don’t want to answer no more questions. I’m done. I don’t want to be involved
in this.’’ When the court admonished him that he was to answer the questions
that were being posed to him, he responded: ‘‘Crazy.’’ It is unlikely that
this exchange would have enhanced the witness’ credibility before a jury
untainted by the prior misconduct evidence.
13
Based on my review of the trial transcript, it does not appear that either
the state or the defense introduced any evidence regarding the distance
between the victim’s home and the home where the defendant was then liv-
ing.