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STATE OF CONNECTICUT v. JOHN A. MASSARO
(SC 20653)
Robinson, C. J., and McDonald, D’Auria,
Mullins and Ecker, Js.
Syllabus
Convicted of the crime of the sale of a narcotic substance, the defendant
appealed. F, a police officer, had observed M and her boyfriend, R,
engage in what F believed to be a hand-to-hand narcotic transaction
with the defendant. After the transaction, F confronted M and R, and
M surrendered the cocaine that she was holding in her hand. M also
emptied her purse, which contained drug paraphernalia used to smoke
cocaine. At the defendant’s trial, M testified that she had bought cocaine
from the defendant. On cross-examination, M denied that she told the
defense’s private investigator, P, that she had provided drugs to the
defendant on the day in question. After the state rested its case, defense
counsel notified the trial court that he would be calling P to testify
regarding M’s prior oral inconsistent statement. Defense counsel sought
to introduce, but failed to disclose to the state, a memorandum P created
after meeting with M months after the alleged drug sale but prior to
trial. In that memorandum, P memorialized that, when he interviewed
M, she admitted that she had given the defendant drugs. The trial court
sanctioned the defendant for the failure to timely disclose the memoran-
dum to the state by precluding him from admitting it as evidence. The
defendant appealed from the judgment of conviction to the Appellate
Court, claiming that the trial court had improperly imposed a discovery
sanction precluding the admission of P’s memorandum and had improp-
erly permitted the prosecutor to elicit expert opinion testimony from
P during cross-examination when P had been neither offered nor quali-
fied as an expert witness. The Appellate Court concluded that any error
was harmless and affirmed the judgment of conviction. On the granting
of certification, the defendant appealed to this court. Held:
1. The Appellate Court correctly concluded that the trial court’s improper
discovery sanction precluding the admission of P’s memorandum was
harmless:
The jury was presented with substantial, independent evidence, including
physical evidence and testimony, demonstrating that the defendant had
sold cocaine to M, and, therefore, this case did not turn on a credibility
contest between M and P, as the defendant claimed.
Moreover, although the trial court precluded the admission of P’s memo-
randum, defense counsel nevertheless was able to challenge M’s credibil-
ity on the basis of her prior, allegedly inconsistent statement to P and had
ample opportunity to cross-examine witnesses and challenge physical
evidence that was contrary to the defense’s theory that M had given
drugs to the defendant.
Furthermore, the state presented a strong case, as it introduced incrimi-
nating statements from M and R that they had met with the defendant
to purchase drugs and that M had purchased drugs from the defendant;
physical evidence, including recovered narcotics, drug paraphernalia and
text messages between M and the defendant indicating M’s request to
purchase from the defendant; and eyewitness testimony from F confirm-
ing M’s and R’s testimony regarding the hand-to-hand exchange with the
defendant and their interaction with the police immediately thereafter.
In addition, the excluded evidence was of questionable reliability, as P
admitted that, when he interviewed M, she was under the influence of
what he believed to be heroin, and P did not record M’s statement or
ask M for a written and sworn statement.
Accordingly, the improper exclusion of P’s memorandum did not substan-
tially sway the jury’s verdict.
2. The Appellate Court correctly concluded that any error in allowing the
prosecutor, during cross-examination of P, to convert him into an expert
witness regarding the general characteristics of the narcotics trade
was harmless:
Although the prosecutor’s cross-examination of P regarding the general
characteristics of the narcotics trade may have bolstered M’s testimony
that she was the buyer and, in turn, diminished the importance of P’s
testimony in the defendant’s case, the significance of P’s testimony to
the defendant’s case was that M told P that she had given the defendant
drugs, and the prosecutor’s questions about the general characteristics
of the narcotics trade did not prevent the admission of or undermine
P’s testimony about what M had told him.
Moreover, P’s testimony about the general characteristics of the narcotics
trade was largely cumulative of the testimony of M, R and F, P gave the
jury reason to believe that he could not be relied on as an expert in the
narcotics trade, as some of his answers to the prosecutor’s questions did
not weigh in the state’s favor or reveal that he had extensive knowledge
of the narcotics trade, some of P’s testimony on cross-examination sup-
ported the defense’s theory that M was the drug dealer, and the state’s
case against the defendant was strong.
Accordingly, the defendant did not meet his burden of proving that any
error in allowing the prosecutor to convert P into an expert witness
substantially swayed the jury’s verdict.
Argued December 14, 2022—officially released July 11, 2023
Procedural History
Substitute information charging the defendant with
the crime of sale of narcotics, brought to the Superior
Court in the judicial district of Litchfield, geographical
area number eighteen, and tried to the jury before
Danaher, J.; verdict and judgment of guilty, from which
the defendant appealed to the Appellate Court, Moll,
Alexander and DiPentima, Js., which affirmed the trial
court’s judgment, and the defendant, on the granting
of certification, appealed to this court. Affirmed.
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, was David R. Shannon, state’s
attorney, for the appellee (state).
Opinion
MULLINS, J. After a trial, a jury found the defendant,
John A. Massaro, guilty of the sale of a narcotic sub-
stance in violation of General Statutes (Rev. to 2017)
§ 21a-277 (a). The trial court rendered a judgment of
conviction in accordance with the jury’s verdict and
imposed a total effective sentence of ten years of impris-
onment, execution suspended after six years, followed
by five years of probation.
The defendant appealed to the Appellate Court, rais-
ing three claims, two of which are relevant to this
appeal. See State v. Massaro, 205 Conn. App. 687, 690,
258 A.3d 735 (2021). First, he claimed that the trial court
erred in imposing a discovery sanction precluding the
admission of a written memorandum that contained
the inconsistent statement of one of the state’s main
witnesses. See id., 692–93. Second, he claimed that the
trial court erred in permitting the prosecutor to elicit
expert opinion testimony on cross-examination of
defense counsel’s private investigator, Benjamin Pagoni,
who had been neither offered nor qualified as an expert
witness. See id., 704. The Appellate Court agreed with
the parties that the discovery sanction was improper,
but it concluded that such error was harmless. See id.,
699, 701. Likewise, with regard to the second issue, the
Appellate Court concluded that the cross-examination
of Pagoni, even if improper, was also harmless. See id.,
704, 707. As a result, the Appellate Court affirmed the
judgment of conviction. Id., 690, 718. We thereafter
granted the defendant’s petition for certification to
appeal.1 In this appeal, the defendant asserts that the
Appellate Court’s judgment must be reversed because
any errors related to the improper discovery sanction
and expert testimony were harmful. We disagree.
Accordingly, we affirm the judgment of the Appellate
Court.
The opinion of the Appellate Court sets forth the
following facts that the jury reasonably could have
found. ‘‘On July 13, 2017, Matthew Faulkner, a Torring-
ton police officer assigned to the narcotics division,
was on duty when he observed two known narcotics
users, Sarah Mikuski2 and her boyfriend, Anthony Roig,
walking on East Main Street. Faulkner then saw the
defendant approaching Mikuski and Roig. Faulkner
continued his surveillance of these individuals and
watched as the defendant exchanged ‘something’ with
Mikuski. After this brief exchange, the defendant trav-
elled in an opposite direction away from Mikuski and
Roig.3 Believing that a ‘hand-to-hand’ illegal narcotic
transaction had just occurred, [Faulkner followed
Mikuski and Roig because he believed they had received
an illegal narcotic substance from the defendant.] Faulkner
called for assistance, requesting that the responding officer
intercept the defendant before he returned to his resi-
dence. The police, however, were unable to locate the de-
fendant that day.
‘‘Faulkner approached Mikuski and Roig. He instruct-
ed Mikuski to surrender the item that the defendant
had given her. She complied and placed a small, clear
plastic bag containing a white powdery substance, later
determined to be . . . cocaine, on the wall next to
them. Mikuski also emptied her purse, which contained
an assortment of used drug paraphernalia, including
empty wax packets, needles, crack pipes containing a
burnt residue, and Brillo pads used to filter . . .
cocaine when it is smoked. Mikuski admitted [to Faulk-
ner] that she handed the defendant a cigarette packet
with $26 tucked inside it and purchased $30 worth of
. . . cocaine from the defendant.4 Mikuski also admit-
ted that she had purchased illegal substances from the
defendant in the past. Mikuski did not have any other
illegal substances or cash in her possession.’’5 (Footnote
altered; footnotes in original; footnote omitted.) Id.,
690–91.
Additional facts and procedural history will be set
forth as necessary.
I
The first issue on appeal is related to the trial court’s
improper discovery sanction. This claim arises from
the fact that, when the defense disclosed Pagoni as a
witness who would testify at trial, defense counsel
failed to disclose to the state a memorandum Pagoni
created after meeting with Mikuski. In that memoran-
dum, Pagoni memorialized that, when he interviewed
Mikuski prior to trial, she stated that she was the one
who gave the drugs to the defendant. Because this mem-
orandum was not timely disclosed to the state, the trial
court sanctioned the defendant by precluding him from
admitting the memorandum as evidence. We now address
whether the Appellate Court correctly concluded that
the trial court’s improper sanction was harmless. The
following facts are relevant to this claim.
Before trial began, the state filed a motion, pursuant
to Practice Book §§ 40-7, 40-13, 40-18 and 40-27, ‘‘request-
ing that the defendant disclose any statements of the
witnesses other than the defendant in his possession
or in the possession of an agent of the defendant which
statement relates to the subject matter about which
such witness will testify . . . .’’ (Internal quotation
marks omitted.) Id., 692. Defense counsel disclosed the
defendant and Pagoni as potential witnesses but dis-
closed no statements. See id.
At trial, the state called Mikuski to testify.6 She testi-
fied that, around the time of this incident, she was
addicted to heroin and cocaine, and, on the day in
question, she bought cocaine from the defendant. On
cross-examination, Mikuski testified that, prior to trial,
she met and had spoken with Pagoni. Defense counsel
asked Mikuski if she had told Pagoni during their meet-
ing that she had drugs on her prior to meeting the
defendant and that she was the one who provided drugs
to the defendant. Mikuski denied ever saying that to
Pagoni.
After the state rested its case, defense counsel noti-
fied the trial court that he would be calling Pagoni to
testify regarding a prior oral inconsistent statement of
Mikuski. As an offer of proof, defense counsel stated
that Pagoni would testify that Mikuski had told him
that she was carrying narcotics on her person prior to
meeting with the defendant on July 13, 2017, and that
she gave narcotics to the defendant prior to her arrest.
Defense counsel represented that he had communi-
cated this information via email to the prosecutor the
day before. Defense counsel mentioned that Pagoni had
provided him with a memorandum detailing his conver-
sation with Mikuski and that this memorandum had
been in counsel’s possession since approximately March
12, 2018.7
The prosecutor objected to the introduction of the
memorandum and argued that Pagoni’s memorandum
was inadmissible because it was a statement of a trial
witness in defense counsel’s possession that had not
been disclosed to the state and thereby constituted a
violation of the rules of discovery, specifically, Practice
Book § 40-15 (2).8 The trial court inquired whether
defense counsel had provided Pagoni’s memorandum
to the state. He replied in the negative, indicating that, in
his view, this document constituted protected attorney
work product and, thus, was exempt from disclosure.
The trial court rejected defense counsel’s position and
held that the memorandum was a statement by Mikuski
and should have been disclosed pursuant to Practice
Book §§ 40-13 (b)9 and 40-15 (2).10 Consequently, the
trial court sanctioned the defendant by precluding him
from introducing Pagoni’s memorandum, stating that
‘‘evidence . . . as to the existence of that written state-
ment is not admissible, and it will not be the subject
of testimony by Pagoni or questioning by any attorney
or argument by any attorney.’’ The trial court concluded
that the testimony of Pagoni, if permitted, would be
limited to impeaching Mikuski’s testimony that she had
purchased the cocaine from the defendant and could
not be used for the purpose of establishing that she
had sold it to him.11
Defense counsel then called Pagoni as a witness.
Pagoni testified that he had met with Mikuski on March
5, 2018, and drove her to a nearby Wendy’s restaurant.
They ordered food and spoke for approximately ten
minutes. He testified that, during their meeting, Mikuski
told him that she had provided narcotics to the defen-
dant on July 13, 2017.
On cross-examination, the prosecutor inquired about
the circumstances of the interview. Pagoni testified that
Mikuski appeared to be under the influence of a drug,
most likely heroin. He acknowledged that people under
the influence of drugs tend to be less accurate. He
testified that he did not record Mikuski’s statement or
take a written, signed statement under oath, despite his
extensive training as a state trooper teaching him that
doing so is the best way to ensure the accuracy and
truth of a statement. Pagoni acknowledged that he had
not asked Mikuski whether she had purchased narcotics
from the defendant in the past or why she would have
given narcotics to the defendant. He testified that he
never interviewed Roig to verify any of Mikuski’s
statements.
Pagoni was also asked how many hours he had worked
on this case. Pagoni replied that he was uncertain. The
prosecutor then asked: ‘‘So, as you sit here today, you
remember specifically what . . . Mikuski said to you,
but you can’t remember—you can’t even approxi-
mat[e]—how many hours you worked on the case?’’
Pagoni, referring to his memorandum, answered: ‘‘I can
remember what . . . Mikuski said to me because it’s
written down.’’ The prosecutor objected on the ground
that Pagoni’s answer was nonresponsive.12 The trial
court subsequently instructed the jury to disregard any
reference in Pagoni’s testimony to a written memo-
randum.
After the cross-examination resumed, the prosecutor
asked Pagoni whether defense counsel discussed with
him what other witnesses had said in court just one
day prior. Pagoni said ‘‘I don’t know,’’ ‘‘I don’t recall,’’
and then, ‘‘I have no recollection of him talking to me
about [what witnesses said in court].’’ Subsequently,
Pagoni was asked, ‘‘[d]o you have any problems with
your memory?’’ Pagoni answered, ‘‘[w]ell, as [I]
approach seventy, yes, I do.’’ Pagoni then proceeded
to give conflicting testimony regarding how long his
interview with Mikuski lasted. Initially, he testified that
he met with Mikuski for approximately ten minutes.
After being questioned about his memory, Pagoni testi-
fied that he met with Mikuski for a total of around
fifteen minutes, and, when asked again, he changed his
answer and said the meeting was around thirty-five
minutes long.
In the Appellate Court, the defendant ‘‘claim[ed] that
the [trial] court abused its discretion when it deter-
mined that defense counsel had violated discovery rules
and by imposing a sanction as a result of that violation.’’
State v. Massaro, supra, 205 Conn. App. 692. The Appel-
late Court agreed that ‘‘the trial court [incorrectly had]
determined that the Pagoni memorandum constituted
Mikuski’s statement’’; however, it concluded that the
evidentiary error and the resulting sanction were harm-
less. Id., 701.
On appeal to this court, the defendant claims that
the improper preclusion of Pagoni’s memorandum sub-
stantially swayed the jury’s verdict, rendering the trial
court’s error harmful. Specifically, the defendant asserts
that, because Pagoni was unable to verify, with his
written recollection, that Mikuski told him that she had
provided drugs to the defendant, Pagoni’s testimony
was undermined, and the defense was weakened in a
manner that substantially swayed the jury’s verdict. The
defendant also claims that the trial court’s ruling prohib-
iting him from admitting the memorandum into evi-
dence made Pagoni appear to have selective memory,
and, as a result, it bolstered Mikuski’s testimony.
Our review of the record assures us that, although
the error was not insignificant to the defendant’s case,
ultimately, the error was harmless. The defendant argues
that Pagoni’s memorandum was direct evidence to sup-
port his theory that Mikuski gave drugs to the defen-
dant, and that the court’s error was magnified because
the case turned on this credibility contest between
Mikuski and Pagoni. We are mindful that, if this case
presented the jury purely with a credibility contest char-
acterized by equivocal evidence, then ‘‘an error affect-
ing the jury’s ability to assess a [witness’] credibility is
not harmless error.’’ (Internal quotation marks omit-
ted.) State v. Fernando V., 331 Conn. 201, 223–24, 202
A.3d 350 (2019); see, e.g., id., 203, 215–16, 224 (conclud-
ing that exclusion of testimony in child sexual assault
case was improper and not harmless because state’s
case was not exceedingly strong considering absence
of physical evidence). Here, however, the case was not
solely ‘‘a credibility contest characterized by equivocal
evidence . . . .’’ (Internal quotation marks omitted.)
Id., 215. Indeed, the jury was presented with substantial,
independent physical and eyewitness testimonial evi-
dence establishing that the defendant had sold cocaine
to Mikuski, allowing the jury to return a verdict that was
not contingent on a credibility contest. Accordingly,
we conclude that the improper exclusion of Pagoni’s
memorandum did not substantially sway the jury’s ver-
dict and render the trial court’s error harmful.
‘‘When an improper evidentiary ruling is not constitu-
tional in nature, the defendant bears the burden of dem-
onstrating that the error was harmful.’’ (Internal
quotation marks omitted.) State v. Favoccia, 306 Conn.
770, 808, 51 A.3d 1002 (2012); see, e.g., State v. Cavell,
235 Conn. 711, 721, 670 A.2d 261 (1996) (improper dis-
covery sanction was nonconstitutional in nature, and,
therefore, defendant bore burden of proving harm). It
is well settled that ‘‘[w]hether [an improper evidentiary
ruling] is harmless in a particular case depends [on] a
number of factors, such as the importance of the wit-
ness’ testimony in the [defendant’s] case, whether the
testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony
of the witness on material points, the extent of cross-
examination otherwise permitted, and, of course, the
overall strength of the prosecution’s case. . . . Most
importantly, we must examine the impact of the . . .
evidence on the trier of fact and the result of the trial.
. . . [T]he proper standard for determining whether
an erroneous evidentiary ruling is harmless should be
whether the jury’s verdict was substantially swayed by
the error.’’ (Internal quotation marks omitted.) State
v. Qayyum, 344 Conn. 302, 316, 279 A.3d 172 (2022).
‘‘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. Favoccia, supra, 809.
Pagoni’s primary importance to the defendant was
that, nearly eight months after the drug sale, Mikuski
told Pagoni, during their meeting, that she gave the
drugs to the defendant. Pagoni was able to testify to
that. At trial, Pagoni testified that Mikuski had told him
‘‘that she was walking . . . with . . . Roig and that
. . . she met the defendant, and they made an
exchange. And that [Mikuski] was the one [who] gave
[the defendant] the drugs.’’ On cross-examination, in
response to different questions asked by the prosecutor,
Pagoni affirmed several times that Mikuski told him
that she ‘‘gave [the defendant] drugs . . . .’’ Thus,
although the trial court precluded admission of the
memorandum, the defendant was able to challenge
Mikuski’s credibility on the basis of her prior, allegedly
inconsistent statement to Pagoni.
The defendant contends that, without the memorandum,
Pagoni appeared to have selective memory because
he could remember what Mikuski told him but not, in
response to the prosecutor’s question, how many hours
he worked on the case. This argument carries some
force. Indeed, after admitting that he could not recall
whether defense counsel talked to him about what wit-
nesses had said in court just one day prior, Pagoni also
admitted that, as he approached seventy years of age,
he had problems with his memory. He then proceeded
to give conflicting accounts of how long his meeting
with Mikuski lasted, ranging from ten minutes to more
than one-half hour. In light of this testimony, we can
appreciate that the memorandum would have bolstered
Pagoni’s credibility and strengthened his testimony. It
was evidence recorded prior to trial suggesting that
Mikuski had provided the drugs to the defendant. The
defendant’s inability to present this evidence makes the
harmless error determination a closer question. How-
ever, after assessing the other harmless error factors,
the other testimonial, as well as physical, evidence con-
sidered by the jury, and, most important, the overall
strength of the state’s case, we are confident that the
defendant has not met his burden of proving that the
trial court’s improper exclusion of the memorandum
substantially swayed the jury’s verdict.
We recognize that the state presented a strong case.
See, e.g., 3B C. Wright et al., Federal Practice and Proce-
dure (4th Ed. 2013) § 854, p. 507 (‘‘[p]erhaps the single
most significant factor in weighing whether an error
was harmful . . . is the strength of the case against
the defendant’’). At trial, the state introduced (1) incrim-
inating statements from Mikuski and Roig that they met
with the defendant to purchase drugs and that Mikuski
did purchase drugs, (2) physical evidence, including
recovered narcotics, drug paraphernalia and text mes-
sages between Mikuski and the defendant, and (3) eye-
witness testimony from Officer Faulkner confirming
Mikuski’s and Roig’s testimony regarding their hand-
to-hand exchange with the defendant and interaction
with the police immediately thereafter.
Mikuski testified at trial that she was a daily user of
cocaine and heroin and that she had previously bought
drugs from the defendant. She testified that, on the
day in question, she contacted the defendant via text
message and asked him if he would ‘‘do a 30 for $26
. . . .’’ They agreed to meet by the stone wall near his
apartment building. When they met, she gave him a
cigarette package with $26 in it, and he gave her a
baggie of cocaine.
On cross-examination, defense counsel asked Mikuski
if she told Pagoni that she had given drugs to the defen-
dant. Mikuski responded, while under oath, that the
assertion was not true and denied telling Pagoni as
much. Defense counsel also asked Mikuski if she told
Pagoni that she had drugs on her before meeting the
defendant. Mikuski responded, ‘‘[n]o.’’ She further
stated that she used any income to buy drugs and that
her only income derived from shoplifting items and then
returning them with receipts that were thrown away.
Roig testified at trial and corroborated Mikuski’s tes-
timony. Roig testified that, on the day of the transaction,
he and Mikuski planned to get drugs and immediately
consume them. Roig testified that Mikuski had no drugs
on her before walking up the hill to meet with someone.
Roig also provided the state with a sworn statement a
few days before his testimony in which he said, ‘‘I went
with [Mikuski] to the area of, I think, East Main Street,
Torrington . . . so she could buy crack from someone
. . . and [Mikuski bought] the crack from him. I don’t
know how much [Mikuski] paid for the crack or how
much crack she got.’’ When asked at trial whether he
actually saw a transaction, Roig, who was nearby when
the exchange occurred, testified that ‘‘there had to be
a transaction’’ because Mikuski had money before meet-
ing with the man, but, when she returned to Roig, she
only had drugs that she did not possess beforehand.
Roig further testified that the person Mikuski bought
drugs from was an older male with gray hair—a physical
description matching the defendant’s description.
Both Roig’s and Mikuski’s testimony was corrobo-
rated by Officer Faulkner’s recollection of events. Spe-
cifically, Faulkner testified that he knew that Mikuski
and Roig were heavy drug users. Faulkner testified that
he observed a quick hand-to-hand transaction in which,
he believed, the defendant gave Mikuski ‘‘product.’’
Faulkner testified that he kept a visual on Mikuski and
Roig from the time of the transaction to the point in
time that he recovered narcotics from Mikuski and that
he ‘‘never lost sight of [Mikuski] or [Roig].’’ He then
followed Mikuski and Roig, and confronted them,
demanding that Mikuski give him what the defendant
had given her. According to Faulkner, Mikuski opened
the same hand involved in the hand-to-hand transaction
with the defendant and placed the cocaine that she was
holding in that hand on top of the nearby wall.
The testimony provided by the state’s witnesses was
also corroborated by physical evidence recovered in
this case. When the police apprehended Mikuski, they
recovered 0.218 grams of cocaine, all of which Mikuski
had been holding in her hand when Faulkner stopped
her.13 The police also recovered drug paraphernalia on
Mikuski’s person, including crack pipes with burnt resi-
due and steel wool pads.14 Notably absent from the
police search of Mikuski and Roig was any money,
which contradicts the theory that the defendant paid
Mikuski for cocaine.15 The fact that Mikuski possessed
drugs but not money supports Roig’s testimony and his
statement to the police that Mikuski had money before
meeting with the defendant and intended to use the
money to buy cocaine that she did not possess prior
to meeting the defendant. The physical evidence also
corroborates Faulkner’s testimony that he saw Mikuski
take something from the defendant with the hand that
she revealed, moments later, to be holding cocaine.
Furthermore, the state presented evidence of text
messages between Mikuski and the defendant. Most
relevant were text messages that Mikuski sent to the
defendant, asking if he would ‘‘do a 30 for $26’’ and
where he wanted to meet. Viewed in context and consid-
ering that Mikuski was arrested moments after the
transaction with only cocaine and no money on her
person, these texts tend to suggest that Mikuski was
asking to buy a ‘‘30,’’ or 0.3 grams of cocaine, as Faulk-
ner testified, for $26. If it were the other way around,
and Mikuski was the seller, as the defendant asserts, it
makes little sense that Mikuski and Roig would possess
cocaine but not money after their exchange with the
defendant.
One of the factors we consider in assessing the impact
of the excluded evidence on the jury is the extent of
cross-examination otherwise permitted. See, e.g., State
v. Qayyum, supra, 344 Conn. 316. In the present case,
we note that defense counsel had ample opportunity
to cross-examine witnesses and to challenge physical
evidence that was contrary to the defense’s theory that
Mikuski had given drugs to the defendant. Besides ask-
ing Mikuski, while she was under oath, if she gave or
sold drugs to the defendant, which she answered in the
negative, defense counsel was also able to challenge
her credibility by attempting to show that she had a
motive to deny being the seller because her testimony
in this case was part of the plea agreement to sale of
narcotics in an unrelated case. Defense counsel also
cross-examined Roig, who was subpoenaed to testify
in court, and asked him whether he felt forced to pro-
vide the police with a written statement before trial
stating that Mikuski bought drugs moments before she
and Roig were apprehended by Faulkner. Roig
answered, ‘‘I don’t feel like I was forced to do that
. . . .’’
Finally, we consider the quality of the excluded evi-
dence. The circumstances under which Pagoni secured
the excluded memorandum were questionable. Indeed,
Pagoni himself admitted that, when he interviewed
Mikuski, she was under the influence of what he
believed to be heroin. He told the jury that people under
the influence tend to be less accurate than sober people.
Pagoni also told the jury that, although recordings or
written and sworn statements are typically the best
evidence, he did not record Mikuski’s statement or ask
Mikuski for a written and sworn statement. Thus, even
if the memorandum had been admitted into evidence,
given the inadequacies of the interview, the jury would
still have had reason to question the accuracy of what
Mikuski allegedly told Pagoni.
On the basis of the foregoing, considering the exclud-
ed memorandum in juxtaposition with the nature and
quality of the evidence that was admitted, we have
a fair assurance that the trial court’s ruling did not
substantially affect the verdict. The state’s case was
strong. It consisted of independent evidence, separate
from Mikuski’s testimony, demonstrating that the
defendant was the seller and that the excluded evidence
was of questionable reliability. Furthermore, despite
the preclusion of Pagoni’s written memorandum, Pagoni
was able to impeach Mikuski by testifying that she told
him she had given drugs to the defendant. Ultimately,
we agree with the Appellate Court that any error by
the trial court in precluding Pagoni’s memorandum
was harmless.
II
The defendant next claims that the Appellate Court
incorrectly concluded that any error in allowing the
prosecutor to convert Pagoni into an expert witness
regarding the narcotics trade during cross-examination
was harmless. The defendant contends that Pagoni’s
expert testimony about the general characteristics of
narcotics dealers bolstered Mikuski’s testimony and
credibility, and, therefore, the jury was substantially
swayed by it. The state responds that questions about
the general characteristics of the narcotics trade did
not substantially sway the jury’s verdict because the
importance of Pagoni’s testimony was diminished by
all of the other evidence, which independently showed
that Mikuski was the buyer and, thus, that her state-
ments were credible.
The opinion of the Appellate Court sets forth the
following additional facts necessary for our consider-
ation of this claim. ‘‘During the trial, the defense called
Pagoni as a witness. He stated that he had been a Con-
necticut state trooper for approximately thirty-four
years and that in his career he had worked in a variety
of assignments, including the narcotics division. During
cross-examination, the prosecutor asked if people who
possessed drugs normally carried them in their hands
while walking down the street. The [trial] court over-
ruled an objection based on speculation, and Pagoni
responded that sometimes that does, in fact, occur. . . .
‘‘After the cross-examination addressed other topics,
the prosecutor asked Pagoni whether drug dealers gen-
erally prefer not to conduct sales inside their homes
or apartments. Defense counsel objected, arguing that
it called for speculation and improper opinion testi-
mony, as Pagoni had not been offered as an expert
witness.16 The [trial] court overruled the objection, stat-
ing that defense counsel had questioned Pagoni about
his law enforcement background on direct examination.
The prosecutor then asked a series of questions regard-
ing the sale and use of drugs.’’ (Footnote added.) State
v. Massaro, supra, 205 Conn. App. 704–705.
Defense counsel again objected, this time to the
entire line of questioning, and that objection also was
overruled.17 After trial, the defendant filed a motion for
a new trial. In that motion, he challenged the following
topics that Pagoni was questioned about: (1) drug deal-
ers do not sell in their homes, (2) drug users become
‘‘ ‘dope sick’ ’’ if they are unable to obtain drugs for
some period of time, (3) street level addicts are not
wealthy, (4) dealers sometimes carry scales, more than
one cell phone, cash in various small denominations,
and weapons to protect themselves, (5) users carry
drug paraphernalia such as crack pipes and a ‘‘Chore
Boy’’ to smoke cocaine and needles to inject heroin,
and (6) the power lies with the dealer in a dealer/
addict relationship.18
The Appellate Court assumed that the trial court’s
evidentiary rulings regarding the prosecutor’s cross-
examination of Pagoni constituted an abuse of discre-
tion but concluded that any such error was harmless.
State v. Massaro, supra, 205 Conn. App. 707. The Appel-
late Court reasoned that the jury’s verdict was not sub-
stantially swayed given the testimony of Faulkner,
Mikuski, and Roig, and the accompanying evidence,
particularly the text message from Mikuski to the defen-
dant, asking, ‘‘[h]ey u do a 30 for $26?’’ (Internal quota-
tion marks omitted.) Id., 702; see also id., 708. After
reviewing the record in the present case, we agree with
the Appellate Court that, even if the trial court’s rulings
were improper, the admission of Pagoni’s testimony
regarding the general characteristics of the narcotics
trade was not harmful.
‘‘If we determine that a court acted improperly with
respect to the admissibility of expert testimony, we will
reverse the trial court’s judgment and grant a new trial
only if the impropriety was harmful to the appealing
party.’’ (Internal quotation marks omitted.) State v.
Edwards, 325 Conn. 97, 123, 156 A.3d 506 (2017); see
also, e.g., id., 133–34 (concluding that improper admis-
sion of expert testimony was harmless). In part I of
this opinion, we outlined the factors that we consider
in determining whether an erroneous evidentiary ruling
substantially swayed a jury’s verdict. See, e.g., State v.
Qayyum, supra, 344 Conn. 316; see also, e.g., State v.
Edwards, supra, 133. We consider those factors as they
relate to the defendant’s claim.
First, we acknowledge that the prosecutor’s cross-
examination of Pagoni, regarding the general character-
istics of the narcotics trade, may have bolstered Mikuski’s
testimony that she was the buyer and, in turn, dimin-
ished the importance of Pagoni’s testimony in the defen-
dant’s case. However, as we previously explained in
this opinion, in light of the defendant’s theory of the
case, the significance of Pagoni’s testimony to the
defendant’s case was that Mikuski told Pagoni that she
had given drugs to the defendant. The prosecutor’s
questions about the general characteristics of the nar-
cotics trade did not prevent the admission of or under-
mine Pagoni’s testimony about what Mikuski had told
him. During closing arguments, the prosecutor refer-
enced only one relevant portion of Pagoni’s testimony
as it related to the general characteristics of the narcot-
ics trade, stating that ‘‘the defense’s own witness agreed
with . . . the state . . . [that the drug dealer] gener-
ally holds the power in this situation . . . [over] the
addict.’’
Second, Pagoni’s testimony about the general charac-
teristics of the narcotics trade was largely cumulative
of other evidence. Indeed, Faulkner, Mikuski, and Roig
testified about many of the same characteristics of drug
dealers to which Pagoni testified. Specifically, Faulkner
testified that the stone wall in front of the church where
Mikuski and the defendant met is a common location
used to facilitate drug deals, signaling to the jury that
drug transactions typically happen outside of the deal-
er’s home. Mikuski explained that addicts become
‘‘dope sick’’ when withdrawing from heroin. Roig testi-
fied that drug users often do not hold onto drugs for very
long, using them ‘‘[v]ery soon after getting them . . . .’’
Third, Pagoni gave the jury reason to believe that he
could not be relied on as an expert in the narcotics
trade. Indeed, Pagoni’s answers to the prosecutor’s
questions about the general characteristics of drug deal-
ers did not all weigh in the state’s favor or reveal that
he had extensive knowledge in the area. For instance,
Pagoni did not know whether cocaine is generally sold
in $10 increments or the term ‘‘Chore Boy . . . .’’ If
these are actual characteristics of narcotics dealers that
the state wished to prove, Pagoni did not do so. Pagoni
also rebutted the prosecutor’s assumption that dealers
carry scales or weapons, stating that very rarely do
dealers carry scales and that he is aware of very few
dealers who carry weapons. Pagoni’s testimony regard-
ing these facts actually lends support to the defendant’s
theory that Mikuski was the dealer considering that
the police did not recover any scale or weapon from
her person.
Fourth, as analyzed in part I of this opinion, the state’s
case was strong. Specifically, the state introduced testi-
monial and physical evidence supporting the conclusion
that the defendant had sold Mikuski the narcotics.
Mikuski testified and admitted that she had paid the
defendant and received cocaine in exchange. The state
introduced evidence of texts between Mikuski and the
defendant in which she asked him whether he can ‘‘do
a 30 for $26 . . . .’’ When stopped by the police
moments after making a transaction with the defendant,
Mikuski was apprehended with more than two tenths
of a gram of cocaine in her hand and paraphernalia
used to smoke cocaine on her person, but the police
did not find any money. This essentially confirms that
Mikuski’s text to the defendant was a request to buy
drugs from him. The testimony of Faulkner and Roig
also confirmed that Mikuski had engaged in a transac-
tion with the defendant to purchase cocaine.
Thus, because Pagoni’s responses to the challenged
topics did not all weigh in the state’s favor and the
state’s case was strong, the defendant has not met his
burden of proving that any error by the trial court in
allowing the prosecutor to convert Pagoni into an
expert witness substantially swayed the jury’s verdict.
Accordingly, we agree with the Appellate Court that
allowing Pagoni to testify regarding the general charac-
teristics of the narcotics trade, even if improper, was
harmless.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
We granted the defendant’s petition for certification to appeal, limited
to the following issues: ‘‘(1) Did the Appellate Court correctly conclude that
any sanction the trial court improperly imposed on counsel for violating
discovery rules was harmless?’’ And ‘‘(2) [e]ven if, as the Appellate Court
assumed, the trial court’s rulings on the [prosecutor’s] cross-examination
of the defendant’s investigator improperly permitted the prosecutor to con-
vert him into an expert witness regarding the narcotics trade after the parties
had agreed not to present expert testimony on that topic, did the Appellate
Court correctly conclude that any such error was harmless?’’ State v. Mas-
saro, 340 Conn. 908, 264 A.3d 1001 (2021). As these questions demonstrate,
we do not address the Appellate Court’s conclusions with respect to whether
the trial court’s rulings on these evidentiary claims were erroneous. In
this appeal, we address only the question of harm as reflected in the two
certified questions.
2
Mikuski testified that, at the time of the transaction with the defendant,
she was using cocaine or heroin. She also admitted that, during this time,
she was not working and stole money for the purpose of using drugs daily,
namely, heroin and cocaine.
3
‘‘Mikuski had planned to walk to her mother’s home, which was nearby,
where she and Roig [intended to] smoke the . . . cocaine purchased from
the defendant.’’ State v. Massaro, supra, 205 Conn. App. 691 n.2.
4
‘‘Faulkner stated that . . . cocaine was sold at a rate of $10 per one
tenth of a gram, so that a ‘30’ meant 0.3 grams of . . . cocaine and would
sell for $30, [whereas] 0.2 grams of the narcotic substance, often referred
to as a ‘doub,’ would sell for $20.’’ State v. Massaro, supra, 205 Conn. App.
691 n.4.
5
Mikuski was arrested and charged with possession of narcotics.
6
At the time of the defendant’s trial, Mikuski had pleaded guilty to, but
had not yet been sentenced for, the sale of narcotics in a matter unrelated
to this case. In exchange for that plea and providing truthful, sworn testimony
in the present case, Mikuski reached an agreement with the state that her
maximum exposure would be a sentence of five years of imprisonment,
execution suspended after twelve months, followed by a three year period
of probation. Per the agreement, the ultimate decision regarding her sentence
would be made by the sentencing judge.
7
The record reflects that the memorandum was sent to defense counsel
on or around March 12, 2018, about seven days after Pagoni interviewed
Mikuski. This memorandum stated in relevant part: ‘‘On March 5, 2018, at
approximately 1300 [hours], this [i]nvestigator met [Mikuski] . . . . The
interview was conducted away from her home, within the [i]nvestigator’s
vehicle, specifically the Wendy’s restaurant parking area . . . .
‘‘In her verbal statement, [Mikuski] stated that she met up with [the
defendant] on the day of her arrest, but [she] had the drugs on her already.
She stated she walked east on East Main Street with Roig to meet with [the
defendant] to provide him some drugs. She stated at the time she did not
see the officer or his unmarked vehicle. She stated she and Roig did meet
with [the defendant] and gave some drugs to him. They turned around and
headed west on East Main Street, at which point the officer stopped them.
‘‘When questioned if Roig would support her statement, [Mikuski] said
yes, that he was presently in a rehabilitation facility . . . . When questioned
again who had the drugs, she confirmed she had them, not [the defendant].
‘‘When questioned where the police found the drugs on her, she stated
they were in her hand at the time she was stopped.’’
8
Practice Book § 40-15 provides: ‘‘The term ‘statement’ as used in Sections
40-11, 40-13 and 40-26 means:
‘‘(1) A written statement made by a person and signed or otherwise
adopted or approved by such person; or
‘‘(2) A stenographic, mechanical, electrical, or other recording, or a tran-
scription thereof, which is a substantially verbatim recital of an oral state-
ment made by a person and recorded contemporaneously with the making
of such oral statement.’’
9
Practice Book § 40-13 (b) provides in relevant part: ‘‘Upon written request
by the prosecuting authority . . . the defendant . . . shall . . . disclose
to the prosecuting authority any statements of the witnesses other than
the defendant in the possession of the defendant or his or her agents,
which statements relate to the subject matter about which each witness
will testify.’’ (Emphasis added.)
10
Pursuant to Practice Book § 40-15, the trial court determined that
Pagoni’s memorandum constituted a substantially verbatim recital of
Mikuski’s oral statement that had been recorded sufficiently contemporane-
ously. State v. Massaro, supra, 205 Conn. App. 696. As a result, the trial
court ‘‘ordered defense counsel to provide the prosecutor with a redacted
copy of the Pagoni memorandum and to make Pagoni available for ques-
tioning.’’ Id., 694–95.
11
The trial court instructed the jury in relevant part: ‘‘Some testimony has
been allowed for a limited purpose. Testimony that was limited to a specific
purpose can be considered only as it relates to the limits for which it was
allowed and cannot be considered in finding any other facts as to any other
issue. Specifically, the testimony offered through . . . Pagoni is limited to
the purpose of impeaching . . . Mikuski’s testimony that she bought
cocaine from the defendant. It is not admissible and may not be used to
find that . . . Mikuski sold cocaine to the defendant.’’ We note that the
memorandum did not state that Mikuski sold the defendant drugs; rather,
it stated that she gave the defendant drugs. See footnote 7 of this opinion.
12
‘‘The [trial] court excused the jury and reminded counsel that, during
conversations in chambers and on the record, it had indicated that the
Pagoni memorandum would not [be admitted] into evidence. The court then
admonished Pagoni and directed him to refrain from mentioning that he
had written down or memorialized Mikuski’s statements during his testi-
mony.’’ State v. Massaro, supra, 205 Conn. App. 697.
13
‘‘Joseph Voytek, a forensic examiner employed by the Department of
Emergency Services and Public Protection, testified that he had examined
the seized substance and determined that it was cocaine in a rock form and
weighed 0.218 grams.’’ State v. Massaro, supra, 205 Conn. App. 691 n.3.
14
At trial, Faulkner and Mikuski testified that the crack pipes and steel
wool pads were used to smoke cocaine.
15
The defendant surmises, without referring to any evidence in the record,
that Mikuski transferred the money to Roig. This assertion is unsupported
by any physical evidence and is discredited by Faulkner’s testimony regard-
ing his search on scene. Specifically, Faulkner testified that the officers on
scene patted down Roig and found no money inside his pockets. Considering
Faulkner testified that he never lost sight of Mikuski and Roig, it is doubtful
that the money could have been hidden in the short period of time between
the transaction and the search of Roig and Mikuski moments thereafter.
16
Prior to trial, the parties reached an agreement that the state ‘‘would not
present expert testimony from its witnesses regarding narcotics trafficking.’’
State v. Massaro, supra, 205 Conn. App. 704.
17
Upon defense counsel’s objection to the entire line of questioning, the
trial court excused the jury to hear arguments pertaining to the legal issues
underlying the objection. The trial court ruled that Pagoni had not testified
as an expert for the defense or the state. It further determined that the
prosecutor was entitled to cross-examine Pagoni to challenge his credibility
regarding his law enforcement background and, specifically, his experience
in the narcotics division.
18
On appeal to this court, the defendant challenges questions asked earlier
in the cross-examination by claiming that defense counsel challenged the
‘‘whole line of questioning . . . .’’ The questions asked earlier in the cross-
examination were not challenged with any specificity in his motion for a
new trial or in his brief to the Appellate Court. The Appellate Court thus
did not consider any claims beyond those identified in the motion for a new
trial and raised in his appellate brief. See State v. Massaro, supra, 205 Conn.
App. 703 and n.17, 705 and n.18. Because our certified question is limited
to whether the Appellate Court correctly concluded that the error was
harmless, we do not consider claims not raised in the Appellate Court. See,
e.g., State v. Turner, 334 Conn. 660, 686 n.13, 224 A.3d 129 (2020).