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State v. Holley

Supreme Court of Connecticut

January 12, 2018

STATE OF CONNECTICUT
v.
KENNY HOLLEY

          Argued March 27, 2017

          Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and John F. Fahey, senior assistant state's attorney, for the appellant (state).

          Raymond L. Durelli, assigned counsel, for the appellee (defendant).

          Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and D'Auria, Js. [*]

          OPINION

          ROBINSON, J.

         A jury found that, in the afternoon of June 30, 2009, the defendant, Kenny Holley, and his accomplice, Donele Taylor, invaded the East Hartford apartment of the victim, William Castillo, intending to commit a robbery. After the victim was shot fatally in the ensuing struggle, the defendant and Taylor fled by bus, taking cash and sneakers with them. The state now appeals, upon our grant of its petition for certification, [1]from the judgment of the Appellate Court reversing the judgment of the trial court, rendered in accordance with the jury's verdict, convicting the defendant of, inter alia, felony murder in violation of General Statutes § 53a-54c, home invasion in violation of General Statutes § 53a-100aa (a) (1), and robbery in the first degree in violation of General Statutes § 53a-134 (a) (2).[2] State v. Holley, 160 Conn.App. 578, 127 A.3d 221 (2015). On appeal, the state claims that the Appellate Court improperly concluded that the trial court had (1) violated the defendant's right to present a defense under the sixth amendment to the United States constitution by conditioning its ruling that certain out-of-court statements indicating that the victim had bitten Taylor were inadmissible under Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), on the defendant not presenting evidence regarding the circumstances relating to that wound, (2) abused its discretion by admitting testimony from a police detective indicating that he had observed what appeared to be a bite mark on Taylor's hand, and (3) abused its discretion by admitting testimony from a police detective narratinga surveillance video recorded on a bus and opining that the contours of an object in the defendant's backpack appeared to be a shoe box.

         In addition to responding to the state's claims, the defendant asks us to consider, pursuant to Practice Book § 84-11 (a), numerous alternative grounds on which to affirm the judgment of the Appellate Court. In particular, the defendant contends that the trial court improperly (1) admitted into evidence, over his relevance objection, testimony by Kemorine Parker about a conversation she overheard between the defendant and Taylor while they were passengers on the bus shortly after the commission of the home invasion, (2) admitted into evidence, over his hearsay objection, certain testimony by Dennis Minott, the driver of the bus, indicating that Taylor had asked him for a tissue upon boarding, (3) determined that defense counsel had asked a question of a police detective that invited an answer otherwise barred by Crawford v. Washington, supra, 541 U.S. 68, and (4) denied the defendant's motion for a mistrial. Insofar as we agree with the state's claims and disagree with the defendant's proffered alternative grounds for affirmance, we reverse the judgment of the Appellate Court.

         The Appellate Court's opinion aptly sets forth the following facts and procedural history. On the basis of the evidence adduced at trial, the ‘‘jury reasonably could have found that, at the time of the events at issue, the victim . . . lived in an apartment in East Hartford with his girlfriend, Tami Schultz. The victim earned money from selling sneakers both from his automobile and from his residence. At approximately 3:15 p.m. on June 30, 2009, while Schultz was out shopping, the defendant and . . . Taylor entered the victim's residence. A violent struggle involving the victim ensued, during which both Taylor and the victim sustained physical injuries. Notably, the victim bit Taylor on his right wrist. Before the defendant and Taylor left the victim's residence, which they [had] ransacked in search of valuables, the victim sustained multiple gunshot wounds.

         ‘‘When the defendant and Taylor fled the victim's residence, the defendant was in possession of property belonging to the victim, specifically, cash and a shoe box. At 3:24 p.m., the victim attempted to dial 911 on his cell phone but he was unable to do so and dialed ‘922' instead. He perished on his kitchen floor from a gunshot wound in the area of his left chest. A neighbor of the victim, alerted to the sound of uncharacteristically loud music, fighting, gunshots, and pleas for help originating from the victim's residence, called 911 at 3:25 p.m. By 3:30 p.m., the police arrived at the scene, where they discovered the lifeless victim.

         ‘‘Immediately upon leaving the victim's residence, the defendant and Taylor proceeded to a nearby bus stop that was one-tenth of a mile from the crime scene, from which, at 3:22 p.m., they boarded a bus that transported them to downtown Hartford. At this time, the defendant was carrying a backpack that contained the cash and a shoe box. [Upon boarding, Taylor asked Minott for a tissue.] A fellow passenger, [Parker, then overheard] Taylor comment to the defendant that Taylor had been bitten by a dog, and the defendant was overheard remarking that ‘[i]t was a big dog.' Images of the defendant and Taylor running toward the bus stop were captured by a video surveillance camera located at a nearby convenience store, and images of the defendant and Taylor while they were on the bus were captured by a video surveillance camera located on the bus. In the video from the bus, the defendant appears to remove cash from his backpack and appears to hand something to Taylor from his backpack.

         ‘‘By disseminating to the public some of the still images of the defendant and Taylor from the surveillance footage captured on the bus, the police gained information about their identities. When the police interviewed Taylor on July 16, 2009, police observed injuries on or about his hands. Following an unrelated shooting incident in Hartford, the police came to possess a .22 caliber Beretta and determined that it previously had been owned by Taylor. Forensic analysis of the gun and of shell casings found at the crime scene involving the victim linked the gun, and thus Taylor, to the crimes. Moreover, forensic analysis of DNA samples from Taylor and of DNA obtained from the brim of a baseball cap that was found at the crime scene linked Taylor to the crimes.'' State v. Holley, supra, 160 Conn.App. 582-84.

         The state subsequently charged the defendant with, inter alia, felony murder, home invasion, conspiracy to commit home invasion, burglary in the first degree, and robbery in the first degree. Id., 582. The case was tried to a jury, which returned a verdict of guilty on all counts. Id. The court rendered a judgment of conviction in accordance with the jury's verdict, and imposed a total effective sentence of 105 years incarceration, with a mandatory minimum sentence of twenty-five years incarceration.[3] Id., 582 and n.1.

         The defendant appealed from the judgment of conviction to the Appellate Court, raising numerous claims, including an unpreserved claim that his constitutional right to present a defense had been infringed by the trial court's conditional evidentiary ruling with respect to Taylor's statement to the police about the injuries to his hand.[4] The Appellate Court agreed that the trial court had violated his right to present a defense because, ‘‘after the court properly excluded evidence concerning Taylor's statements to the police [pursuant to Crawford v. Washington, supra, 541 U.S. 68], it improperly restricted his right to challenge the evidence related to Taylor's wounds that it had permitted the state to introduce at trial.'' State v. Holley, supra, 160 Conn.App. 607; see id., 611-12. Although it determined that this impropriety required a new trial, the court also considered certain claims as presenting issues likely to arise on remand. Specifically, the Appellate Court determined that the trial court had abused its discretion by admitting lay opinion testimony by two police detectives, one stating that Taylor's wound was a bite, and the other describing an object in the defendant's backpack, based on the officer's observations of the video from the bus, as a shoe box. Id., 621-22, 631-32. The Appellate Court rejected the defendant's claims, however, that the trial court improperly (1) concluded that Parker's testimony about the conversation on the bus between the defendant and Taylor about a dog bite was relevant evidence, and (2) permitted Minott to testify that one of the two men who had boarded the bus had asked him for a tissue. Id., 625-26, 630-31. This certified appeal followed. Additional relevant facts and procedural history will be set forth in detail as necessary.

         I

         We begin with the state's claim that the Appellate Court improperly concluded that the trial court had violated the defendant's sixth amendment right to present a defense by, in essence, precluding him from presenting evidence regarding the nature, source, and timing of Taylor's injuries. The record and the Appellate Court's opinion reveal the following additional facts and procedural history relevant to this claim. The defendant filed a motion in limine seeking to preclude the state from introducing certain statements that were made by Taylor to the police on the ground that they were inadmissible under Crawford, [5] as testimonial hearsay from an unavailable witness.[6] State v. Holley, supra, 160 Conn.App. 602-603. ‘‘In his memorandum of law in support of his motion in limine, the defendant went on to state in relevant part: ‘On July 16, 2009 . . . Taylor told Detectives [Donald] Olson and [Jeffrey] Cutler that [the victim] bit him during a struggle in [the victim's East Hartford] apartment . . . . At the time, [Taylor] was in the police department's interview room confessing to the murder of [the victim] in the presence of the two detectives. He signed a confession on that date accepting responsibility for the homicide while stating [that] he did not know what the other male was doing in the apartment at the time of the killing. In the signed confession he stated [that] ‘[during] the struggle with [the victim], I got a small cut on my left hand and [the victim] bit my right wrist.' He further informed [the] police on July 16, 2009, that he did not know the name of the other person that he was with in the apartment. In his confession, he stated that [the victim] unexpectedly drew a gun on him and the other person in the apartment, leading to a struggle involving Taylor and [the victim] and the eventual shooting by Taylor. . . . Four days later he contacted the police . . . blaming [the defendant] for the shooting and taking the position that he . . . was unaware that any homicide was going to take place.'

         ‘‘On December 6, 2012, the court heard oral argument on the motion in limine. After the defendant's attorney described the facts, generally as set forth in his motion and memorandum of law in support thereof, he argued that if Taylor did not testify, the court should exclude his statements from the evidence. The prosecutor responded that the state did not intend to offer all evidence of Taylor's statements to the police, characterizing them generally as ‘statements against penal interest' that may be barred under Crawford. The prosecutor, however, stated that he intended to offer evidence that Taylor told the police that he had bite marks and scratches on his hands, including a bite mark inflicted by the victim. The prosecutor characterized this portion of Taylor's statements to the police as being nontestimonial in nature. The defendant's attorney argued that the evidence was unduly prejudicial and, because Taylor would not be available for cross-examination, its admission would violate the defendant's right to confront an adverse witness. It appears that the court deferred ruling on the issue until the time of trial.

         ‘‘Following additional oral argument related to the issue on January 7, 2013, the court ruled that . . . it would permit the state to present evidence of Taylor's statement to the police that he had sustained a bite wound. The state argued that the statement was relevant to one or more issues in the case in light of the evidence of the ‘big dog' comments made by the defendant and Taylor on the bus, shortly after the shooting.

         ‘‘On January 8, 2013, outside of the jury's presence, the state called Taylor to the witness stand. Despite being ordered to do so by the court, Taylor refused to answer any questions posed to him concerning the events underlying the trial. The court held Taylor in contempt and sentenced him to six months incarceration.

         ‘‘On January 9, 2013, the court revisited its ruling to admit evidence of Taylor's statement that he had sustained a bite wound. At this juncture, the court disallowed the statement related to the bite wound. The court stated: ‘[R]ight now, based on what the evidence is, because the defense hasn't challenged anything concerning that statement, I'm going to disallow the statement concerning the bite. I understand that it is a statement against penal interest; the entire confession was a statement against penal interest. But if there's even a hint anywhere that that bite was anything other than where it came from, that statement does come in, and that includes during closing argument as well. I will reopen this case if there's a hint during closing argument that the bite was anything other than what it is. So, remember, I'll stop the trial and allow [Taylor's statement] in at that point.' The court stated that it would permit Olson to testify that he had interviewed Taylor and that during the course of his interview he photographed Taylor's injuries. The court also stated that the state could present such photographs in evidence. Later, in response to an inquiry by the defendant's attorney concerning the court's ruling, the court stated that it wanted to make it ‘very clear that if there's even a hint that that bite mark came from anywhere else, [then evidence of Taylor's statement] comes in.' The defendant's attorney replied, ‘Right. And I made a note of that, opening the door.'

         ‘‘Later, Olson testified that he interviewed Taylor on July 16, 2009, [and] observed injuries on Taylor's hands, and [that] the injuries [were photographed]. The photographs were admitted into evidence. During his testimony, Olson testified: ‘He appeared to have a bite mark on his wrist and some lacerations on his other hand.' The defendant objected to Olson's testimony. The court, noting that the testimony was Olson's observation of the injury, overruled the defendant's objection. During subsequent examination by the state, however, Olson testified that he learned from talking to Taylor that the injury on his wrist was ‘[a] bite.' The court sustained the defendant's objection to this inquiry and denied the defendant's motion for a mistrial related to it. The court, however, provided the jury with a curative instruction directing it to disregard any testimony from Olson concerning what Taylor may have stated to him about the injury. The court instructed the jury that the nature of any marks on Taylor's hands was a factual matter for the jury to decide.[7]

         ‘‘In addition to Olson's testimony and the photographs depicting Taylor's injuries, the state presented evidence that was relevant to the issue of Taylor's injuries from . . . Minott, the operator of the bus on which the defendant and Taylor were passengers on June 30, 2009. Minott testified that one of the two black males who got on his bus at Main Street and Brewer Street asked him for ‘a tissue, ' [from which it could be inferred that Taylor needed to tend to a wound] . . . . [T]he jury also heard evidence related to a bite injury from Parker, who described the conversation that she overheard on the bus.'' (Emphasis altered; footnotes added and omitted.) Id., 602-606. At no point before or during the trial did the defendant indicate that there was evidence, or the nature of any such evidence, to rebut the circumstantial evidence that Taylor had sustained a bite during the robbery and that the defendant had been with Taylor when he sustained that bite.

         On appeal, the Appellate Court acknowledged that the defendant's constitutional challenge was unpre-served and reviewed it pursuant to the bypass rule of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).[8] See State v. Holley, supra, 160 Conn.App. 608. The Appellate Court observed that the trial ‘‘court unmistakably conveyed in its ruling that any attempt by the defense to contest the state's evidence that the injuries were the result of ‘a bite' would open the door for the state to present evidence that the court had deemed inadmissible under Crawford.'' Id., 609. Considering the sixth amendment right to confrontation and to present a defense, as set forth in well established case law, which extends to closing arguments; see id., 610-11; the Appellate Court concluded that the ‘‘defendant has demonstrated that a constitutional violation exists and deprived him of a fair trial. Rather than considering the admissibility of Taylor's statements to the police and the defendant's ability to challenge other evidence presented by the state related to Taylor's injuries as distinct matters, the [trial] court issued a ruling that joined the two matters and, in so doing, issued a ruling that effectively precluded the defendant from making any effort to undermine the state's evidence that Taylor's injuries resulted from a bite. The [trial] court improperly left the defense in the untenable position of having to choose between a violation of the defendant's right to confrontation [under Crawford] and a violation of the defendant's right to present a defense.''[9] Id., 611; see id., 611-12 (‘‘[t]he state has not presented this court with any authority that would permit a court to condition a defendant's right of confrontation on the defendant's not exercising his right to challenge the state's evidence''). The Appellate Court rejected the state's argument that the defendant's failure to make an offer of proof with respect to ‘‘what evidence he would have presented to the jury to counter the state's evidence concerning Taylor's injuries'' precluded review of this claim.[10] See id., 612-13 n.13. Observing that the state had not argued that any constitutional error was harmless, the Appellate Court concluded that the defendant was entitled to a new trial. Id., 612-14.

         On appeal to this court, the state claims that the Appellate Court improperly concluded that the trial court violated the defendant's right to present a defense by imposing a condition on its decision to preclude the statements to the police by Taylor that were otherwise barred under Crawford.[11] Specifically, the state first contends that the trial court's ruling did not preclude the defendant from introducing evidence with respect to the origin of Taylor's injuries, but merely suggested that such evidence would be subject to counterproof in the form of Taylor's statement about the bite, notwithstanding the court's determination that Taylor's statement was otherwise inadmissible under Crawford. Relying on, inter alia, State v. Crespo, 303 Conn. 589, 35 A.3d 243 (2012), the state further argues that any violation of the defendant's right to present a defense is purely ‘‘speculative'' or ‘‘hypothetical, '' insofar as the defendant's failure to make an offer of proof in response to the trial court's ruling rendered it impossible for him to demonstrate on appeal the adverse effect of the trial court's ruling on his right to present defense.

         In response, the defendant contends that the Appellate Court properly determined that the trial court's preclusion of evidence about the nature of Taylor's injuries, under penalty of the admission of statements otherwise barred under Crawford, deprived him of a meaningful defense. The defendant argues that ‘‘[e]vidence of the source, nature, and timing of Taylor's injuries was relevant to refute the testimony of Olson, Parker, and Minott, '' insofar as it would have allowed the defendant to refute the prosecutor's argument, based on circumstantial evidence, that the defendant and Taylor had been present in the apartment together. The defendant further argues that the trial court's ruling and the resulting harm were clear from the record, and amounted to ‘‘implicitly instruct[ing] the defense to not challenge the nature, source, or timing of Taylor's injuries, while warn[ing] the defense of the consequences of doing so.'' We agree with the state, however, and conclude that the defendant has failed to establish that the trial court's ruling deprived him of the right to present a defense.

         ‘‘It is fundamental that the defendant's rights to confront the witnesses against him and to present a defense are guaranteed by the sixth amendment to the United States constitution. . . . A defendant's right to present a defense is rooted in the compulsory process and confrontation clauses of the sixth amendment . . . . Furthermore, the sixth amendment rights to confrontation and to compulsory process are made applicable to state prosecutions through the due process clause of the fourteenth amendment. . . .

         ‘‘In plain terms, the defendant's right to present a defense is the right to present the defendant's version of the facts as well as the prosecution's to the jury so that it may decide where the truth lies. . . . It guarantees the right to offer the testimony of witnesses, and to compel their attendance, if necessary . . . . Therefore, exclusion of evidence offered by the defense may result in the denial of the defendant's right to present a defense.'' (Citations omitted; internal quotation marks omitted.) State v. Wright, 320 Conn. 781, 816-17, 135 A.3d 1 (2016).

         ‘‘Although it is within the trial court's discretion to determine the extent of cross-examination and the admissibility of evidence, the preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may resultin aviolation of the constitutional requirements [of the confrontation clause] of the sixth amendment. . . .

         ‘‘These sixth amendment rights, although substantial, do not suspend the rules of evidence . . . . A court is not required to admit all evidence presented by a defendant; nor is a court required to allow a defendant to engage in unrestricted cross-examination. . . . Instead, [a] defendant is . . . bound by the rules of evidence in presenting a defense . . . . Nevertheless, exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights . . . . Thus, [i]f the proffered evidence is not relevant [or constitutes inadmissible hearsay], the defendant's right[s] to confrontation [and to present a defense are] not affected, and the evidence was properly excluded.'' (Citations omitted; internal quotation marks omitted.) Id., 818-19; see also State v. Fay, 326 Conn. 742, 754 n.12, 167 A.3d 897 (2017) (‘‘the right to present a defense, though deeply rooted, rests on somewhat indeterminate grounds-at times, its existence has been attributed to the fourteenth amendment and at times to various clauses of the sixth amendment'').

         Because the defendant did not raise this claim at trial, we review it under the framework of State v. Golding, supra, 213 Conn. 239-40; see footnote 8 of this opinion; which is ‘‘a narrow exception to the general rule that an appellate court will not entertain a claim that has not been raised in the trial court.'' State v. Brunetti, 279 Conn. 39, 55, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S.Ct. 1328, 167 L.Ed.2d 85 (2007). It is important to underscore that Golding permits the defendant to raise an unpreserved constitutional claim on appeal, and the appellate tribunal to review it, ‘‘only if the trial court record is adequate for appellate review. The reason for this requirement demands no great elaboration: in the absence of a sufficient record, there is no way to know whether a violation of constitutional magnitude in fact has occurred. Thus, as we stated in Golding, we will not address an unpreserved constitutional claim [i]f the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred . . . .'' (Emphasis added; footnotes omitted; internal quotation marks omitted.) Id., 55-56; see also State v. Medina, 228 Conn. 281, 300-302, 636 A.2d 351 (1994). Although the defendant's claim in the present case is constitutional in nature, satisfying Golding's second prong, the state of the record renders the defendant unable to satisfy the first or third prongs of Golding, namely, the record is alternately inadequate for review, or even if deemed adequate for review, does not demonstrate the existence of a constitutional violation.

         Because Golding does not excuse an inadequate record, the absence or inadequacy of an offer of proof[12]may prevent a criminal defendant from proving on appeal that the trial court's preclusion of certain evidence violated his right to present a defense. In State v. Wright, 322 Conn. 270, 272, 140 A.3d 939 (2016), we recently considered whether the trial court's limitation of a defendant's cross-examination of police witnesses violated his right to present a defense, namely, his theory that the police investigation was inadequate. In that case, we concluded that we did not need to consider whether the Appellate Court had properly determined that ‘‘the trial court's limitation on cross-examination was of constitutional dimension because it precluded the defendant from placing the police officers' investigation in to a meaningful context for purposes of the defendant's inadequate investigation defense.''[13] Id., 281. This was because our review of the record demonstrated that ‘‘neither the defendant's proposed questions nor his offer of proof established the basis for a claim that the police, in not pursuing certain avenues of investigation, had failed to act in accordance with past established practices or standard police investigative procedures, '' meaning that the defendant could not ‘‘establish that the trial court improperly precluded him from advancing an inadequate investigation defense on this basis.'' Id., 281-82. Citing State v. Brunetti, supra, 279 Conn. 63, we emphasized that the defendant's questions failed to satisfy his ‘‘duty to put the trial court on notice of his defense theory and to ensure that evidence to support that theory is placed on the record for appellate review.'' State v. Wright, supra, 322 Conn. 290; see also id., 290-91 (‘‘Stated simply, the record does not reflect that the defendant expressed an intention to qualify any of the testifying officers as experts and to inquire about standard operating procedures or routine practices that had not been followed in the investigation at hand. Nor does the record establish such facts. The defendant's claim that the trial court improperly precluded his inadequate investigation defense strategy as to such a line of inquiry therefore necessarily fails.'').

         Similarly, in State v. Crespo, supra, 303 Conn. 611-12, upon which the state relies heavily, we rejected a defendant's unpreserved claim, raised under Golding, that the trial court had violated his rights to confrontation and to present a defense by precluding him from questioning the victim about specific sexual acts in which she had engaged in the past, insofar as she had claimed that she was a virgin when the defendant sexually assaulted her. Beyond noting that the trial court had allowed the defendant to undertake a comprehensive cross-examination of the victim, including discussing her past engagement, relationships, and sexual history, we observed that the defendant's ‘‘failure to raise this ground of relevance prevented the trial court from ruling on its admissibility on that ground, '' complicating the constitutional inquiry because ‘‘[a] clear statement of the defendant's theory of relevance is all important in determining whether the evidence is offered for a permissible purpose.'' (Internal quotation marks omitted.) Id., 612-13; see also State v. Fay, supra, 326 Conn. 771-72 (‘‘Because the defendant provided no other evidence demonstrating that the victim's psychiatric records were necessary to his defense, he cannot make the required preliminary showing, without improperly supplementing the record on appeal, that he was entitled to an in camera review of those records. Accordingly, the defendant is not entitled to review of his unpreserved claim that the trial court's failure to conduct an in camera review of the records deprived him of his right to present a defense.''); cf. State v. Roger B., 297 Conn. 607, 615, 999 A.2d 752 (2010) (declining to review claim that delay in seeking arrest warrant deprived defendant of due process rights because record ‘‘simply does not contain a sufficient underlying set of facts for [the court] to assess whether the defendant suffered actual prejudice as a result of [the] delay in seeking an arrest warrant''); State v. Moye, 214 Conn. 89, 97-99, 570 A.2d 209 (1990) (rejecting unpreserved confrontation clause claim raised under Golding, with respect to preclusion of questioning of victim about her arrest and detention, on ground of inadequate record because ‘‘[a] defendant cannot claim a confrontation clause violation regarding an issue on which he chose not to cross-examine the witness''); State v. Banks, 117 Conn.App. 102, 110-11, 978 A.2d 519 (rejecting unpreserved confrontation clause claim because there ‘‘was no specific ruling'' on whether defense counsel could question witness regarding certain ‘‘pending [criminal] charges to show motive, interest or bias, '' and concluding that claim therefore ‘‘fail[ed] under the third prong of Golding''), cert. denied, 294 Conn. 905, 982 A.2d 1081 (2009).

         The conditional nature of the trial court's ruling in the present case, allowing counterproof in the form statements otherwise barred under Crawford if the defendant were to challenge the provenance of Taylor's injuries as bites, does not relieve the defendant of the need to make a record demonstrating the existence of harm to his right to present a defense. In reaching this conclusion, we find particularly instructive the decision by the United States Court of Appeals for the Seventh Circuit in United States v. Wilson, 307 F.3d 596 (7th Cir. 2002). In that case, the defendant, Robert Wilson, claimed that his fifth amendment right to remain silent was violated by a district court's conditional ruling allowing the admission of evidence of selective silence during his interview with an agent from the Federal Bureau of Investigation, if Wilson used evidence from that interview in support of his alibi defense. Id., 598- 600. In rejecting this claim, the Seventh Circuit relied on Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). In that case, the United States Supreme Court declined to review a criminal defendant's challenge to a trial court's ruling on his motion in limine seeking to preclude impeachment by prior conviction because the defendant's ultimate failure to testify deprived the reviewing court of ‘‘a complete record detailing the nature of petitioner's testimony, the scope of the cross-examination, and the possible impact of the impeachment on the jury's verdict, '' thus rendering any possible harm flowing from the ruling ‘‘wholly speculative.''[14] Id., 41. The Seventh Circuit observed that ‘‘Wilson was given a choice by the district court. This choice, he argues, put him on the horns of a dilemma: he could either explore the issue of his alleged associate, at the price of having the jury hear about his invocation of his right to silence, or he could say nothing about the associate and keep out the testimony about the selective silence. At the trial, Wilson resolved the problem by declining to introduce the part of his [postarrest] statement that related to an associate; thus, the government never introduced the other part of the statement in which Wilson declined to name the associate.'' United States v. Wilson, supra, 599-600. The Seventh Circuit deemed it ‘‘inappropriate . . . to review Wilson's claim on the merits . . . . He exercised his constitutional right to refrain from introducing certain evidence at the trial and cannot now attack a potential introduction of evidence by the government in response to his potential testimony. We therefore do not address his arguments with respect to the alleged violation of his [f]ifth [a]mendment rights.'' Id., 600-601.

         Having reviewed the record in the present case, we agree with the state that the defendant's claim fails under the first and third prongs of State v. Golding, supra, 213 Conn. 239-40, because the record does not demonstrate the existence of the violation of his right to present a defense. There is no indication in the record as to the substance of any evidence that the defendant would have proffered but for the conditional ruling on his motion in limine-whether the defendant would have sought to prove that Taylor had been bitten by a person other than the victim or by an animal, that Taylor's wound was caused by something other than a bite, that Taylor's wound had been sustained before the crime occurred, or that Taylor had sustained no wound at all. There is no indication whether the source of this evidence would have been documentary or testimonial, and, if the latter, whether through an expert, the defendant, or another lay witness.

         Thus, notwithstanding the unpreserved nature of this claim, the defendant's failure to make an offer of proof at trial renders it impossible for us to determine whether he was deprived of his right to present a defense because the record does not disclose the evidence that he would have offered to rebut the inference that Taylor had been bitten by the victim. Put differently, with no indication in the record that the defendant was prepared to offer admissible evidence in support of the theory that Taylor's injuries were not caused by the victim, the defendant cannot prove that the trial court's ruling violated his right to present a defense. See, e.g., State v. Wright, supra, 320 Conn. 818-19; see also State v. O'Brien-Veader, 318 Conn. 514, 563-64, 122 A.3d 555 (2015) (failure to establish that evidentiary ruling was improper meant that defendant could not satisfy third prong of Golding with respect to claim of confrontation clause violation).

         Moreover, the trial court's ruling was not an absolute bar to the admission of evidence pertaining to Taylor's injuries. Rather, it warned the defendant that if he introduced such evidence, the trial court would admit into evidence statements by Taylor that were otherwise barred under Crawford, if subsequently offered by the state. To be sure, the trial court's conditional ruling left the defendant with a strategic choice, one that required him to balance the benefits of attacking the provenance of Taylor's injuries with the risks of the admission of Taylor's statement that the victim had bitten him, evidence that otherwise would be barred by Crawford. This dilemma did not necessarily deprive the defendant of his right to present a defense because ‘‘[t]he criminal process . . . like the rest of the legal system, is replete with situations requiring the making of difficult judgments as to which course to follow.'' (Internal quotation marks omitted.) McGautha v. California, 402 U.S. 183, 213, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), vacated in part on other grounds sub nom. Crampton v. Ohio, 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972); see also, e.g., United States v. Valenti, 60 F.3d 941, 945 (2d Cir. 1995) (‘‘one of the risks any criminal defendant must run is the difficult choice on whether the value of his anticipated evidence would outweigh whatever damaging rebuttal evidence the government might produce'' [internal quotation marks omitted]); State v. Moye, supra, 214 Conn. 99 (‘‘[w]hen a party chooses not to cross-examine a witness in order to avoid the possibility of eliciting harmful testimony, his right to confront and cross-examine that witness as guaranteed by the sixth and fourteenth amendments of the United States constitution is in no way abridged'' [internal quotation marks omitted]); State v. Fisher, 52 Conn.App. 825, 828-30, 729 A.2d 229 (The court rejected a criminal defendant's unpreserved claim, raised under Golding, that the denial of a motion in limine deprived him of the right to testify and the right to a fair trial because, ‘‘[a]fter hearing the state's offer of proof on the prior misconduct evidence and the trial court's ruling, the defendant and his attorney made a tactical decision to withdraw the alibi defense to prevent the admission of evidence that could have weighed heavily in the jurors' minds, despite limiting instructions by the court on its purpose. The defendant cannot now complain that he was deprived of his constitutional rights because his trial tactic failed.''), cert. denied, 249 Conn. 912, 733 A.2d 232 (1999).

         Indeed, given the conditional nature of the trial court's ruling, we do not know whether, in the subsequent trial proceedings, the state would have used Taylor's potentially inadmissible statements. It is not inconceivable that, even if the defendant had introduced evidence concerning Taylor's injuries, the state might well have decided to avoid handing the defendant a potentially strong appellate issue founded on his objection to Taylor's statement under Crawford. See Luce v. United States, supra, 469 U.S. 42 (‘‘[i]f, for example, the [g]overnment's case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible prior conviction''); United States v. Monell, 801 F.3d 34, 49 (1st Cir. 2015) (‘‘the government might have elected not to risk a reversible appellate issue, and ultimately might have decided not to introduce the prison recording''), cert. denied, U.S., 136 S.Ct. 864, 193 L.Ed.2d 761 (2016); Bailey v. United States, 699 A.2d 392, 401- 402 (D.C. 1997) (declining to review in limine ruling allowing prior misconduct evidence in event sexual assault defendant raised consent defense because given subsequent developments in testimony, ‘‘the prosecutor might well have decided not to introduce into the record material which would bring with it a potentially thorny appellate issue, and which would thus have created the danger that a conviction would be reversed on appeal''). This disincentive for the state to introduce the challenged Crawford material, any objection to which the trial court might well have sustained when ultimately offered, renders any violation of the defendant's right to present a defense even more speculative. Accordingly, we conclude that the Appellate Court improperly ordered a new trial on the basis of its determination that the trial court's conditional ruling violated the defendant's right to present a defense.

         II

         We turn next to the state's evidentiary claims, namely, that the Appellate Court improperly determined that the trial court had abused its discretion in admitting certain lay opinion testimony from two police officers, namely, (1) Olson's testimony that he had observed a bite mark on Taylor's hand, and (2) testimony by Jason Smola, the police detective who narrated the presentation of the bus surveillance video, indicating that an object in the defendant's backpack appeared to be a shoe box. We conclude that the trial court did not abuse its discretion as to the first matter, and that its ruling as to the second matter would be harmless even if it were an abuse of discretion.

         Our consideration of these claims is informed by the following general principles concerning lay opinion testimony. Section 7-1 of the Connecticut Code of Evidence provides: ‘‘If a witness is not testifying as an expert, the witness may not testify in the form of an opinion, unless the opinion is rationally based on the perception of the witness and is helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue.'' ‘‘Section 7-1 is based on the traditional rule that witnesses who did not testify as experts generally were required to limit their testimony to an account of the facts and, with but a few exceptions, could not state an opinion or conclusion. . . . Section 7-1 attempts to preserve the common-law preference for testimony of facts, but recognizes there may be situations in which opinion testimony will be more helpful to the fact finder than a rendition of the observed facts.'' (Citations omitted.) Conn. Code Evid. § 7-1, commentary. ‘‘In some situations, a witness may not be able to convey sufficiently his or her sensory impressions to the fact finder by a mere report of the facts upon which those impressions were based. For example, a witness' testimony that a person appeared to be frightened or nervous would be much more likely to evoke a vivid impression in the fact finder's mind than a lengthy description of that person's outward manifestations. . . . As a matter of practical necessity, this type of nonexpert opinion testimony may be admitted because the facts upon which the witness' opinion is based are so numerous or so complicated as to be incapable of separation, or so evanescent in character [that] they cannot be fully recollected or detailed, or described, or reproduced so as to give the trier the impression they gave the witness . . . .'' (Citation omitted; internal quotation marks omitted.) Conn. Code Evid. § 7-1, commentary.

         ‘‘Because of the wide range of matters on which lay witnesses are permitted to give their opinion, the admissibility of such evidence rests in the sound discretion of the trial court, and the exercise of that discretion, unless abused, will not constitute reversible error.'' (Internal quotation marks omitted.) State v. Finan, 275 Conn. 60, 65-66, 881 A.2d 187 (2005). Under the abuse of discretion standard, ‘‘[w]e will make every reasonable presumption in favor of upholding the trial court's ruling . . . .'' (Internal quotation marks omitted.) State v. Grant, 286 Conn. 499, 532, 944 A.2d 947, cert. denied, 555 U.S. 916, 129 S.Ct. 271, 172 L.Ed.2d 200 (2008).

         A

         We begin with the state's bite mark claim. The record and Appellate Court opinion reveal the following additional relevant facts and procedural history. At trial, Olson testified that he interviewed Taylor on July 16, 2009, and directed Officer Woodrow Tinsley to take photographs of the injuries to Taylor's hands.[15] The state then asked Olson, ‘‘[w]hat was the nature of the injuries?'' Olson began to respond to that question by stating that Taylor ‘‘had a bite on his wrist, '' but was interrupted by an objection from defense counsel. ‘‘The court, noting that the testimony was Olson's observation of the injury, overruled [that] objection.'' State v. Holley, supra, 160 Conn.App. 606. Olson then completed his statement, testifying that Taylor ‘‘appeared to have a bite mark on his wrist and some lacerations on his other hand.'' Following that statement, the state introduced into evidence, without objection, the photographs of Taylor's injuries taken on July 16, 2009.

         The Appellate Court concluded that the trial court improperly admitted Olson's testimony under § 7-1 of the Connecticut Code of Evidence because he ‘‘was not testifying as an expert witness with any type of training or experience related to the recognition of bite marks. . . . By replying . . . that Taylor appeared to have ‘a bite mark on his wrist, ' Olson did not merely describe what he had observed in terms of the physical appearance of the skin on Taylor's wrist. Instead, by describing the injury as ‘a bite mark, ' he unquestionably expressed his opinion that Taylor had been bitten without establishing the necessary expertise or qualifications.'' State v. Holley, supra, 160 Conn.App. 621. Ultimately, the Appellate Court concluded that it is not ‘‘proper for a lay witness to describe observed injuries in such a manner that suggests the origin of them.'' Id., 622.

         On appeal, the state claims that the Appellate Court improperly determined that Olson's testimony was an improper lay opinion under § 7-1 of the Connecticut Code of Evidence. Relying on the rule's text and commentary, the state contends that, on the basis of the various matters upon which nonexpert opinion testimony has been held admissible, including the physical and mental condition of another person, it is entirely proper for a trial court to admit testimony that a witness had observed what he or she perceived to be a bite mark. The state further claims that Olson's observation was one that he or any other person could derive from their common experiences in life and that no expertise was required.[16]

         In response, the defendant claims that the Appellate Court correctly determined that Olson's testimony violated the limitation on lay opinion testimony under § 7-1 of the Connecticut of Code of Evidence. Relying upon State v. Ingram, 132 Conn.App. 385, 31 A.3d 835 (2011), cert. denied, 303 Conn. 932, 36 A.3d 694 (2012), the defendant contends that Olson's testimony was inadmissible because it was in the nature of expert testimony and (1) no evidence established that Olson was medically qualified to testify about the bite mark, (2) it was the jury's function to determine whether Taylor's injuries were bite marks, and (3) this court will see that the photographic exhibits, when viewed directly, do not depict bite marks. The defendant further claims that the trial court improperly concluded that Olson's testimony was based on his personal observation, because Olson did not describe what he had observed, but rather, expressed his opinion that Taylor had been bitten. Finally, the defendant contends that Olson's testimony was not helpful to the jurors, as the photographic exhibits were fair and accurate representations of Taylor's injuries, from which the jury could have determined the nature and source of the injuries. We, however, agree with the state and conclude that the Appellate Court improperly determined that the trial court had abused its discretion by admitting into evidence Olson's testimony that Taylor's injuries appeared to be bite marks.

         In determining whether the trial court abused its discretion in deeming Olson's testimony to be permissible lay opinion; see, e.g., State v. Finan, supra, 275 Conn. 65-66; we note that the governing rule of evidence requires that the lay opinion testimony (1) must be rationally based on the perception of the witness and (2) helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue. Conn. Code Evid. § 7-1. Indeed, the commentary to the rule cites as illustrative ‘‘matters upon which nonexpert opinion testimony has been held admissible include: the market value of property where the witness is the owner of the property . . . the appearance of persons or things . . . sound . . . the speed of an automobile . . . and physical or mental condition.'' (Citations omitted; emphasis added.) Conn. Code Evid. § 7-1, commentary.

         With respect to opinion evidence concerning the appearance of persons or things, we find instructive State v. Grant, supra, 286 Conn. 499, in which we considered whether a lay person could testify about whether a substance observed by that person appeared to be blood. We determined that ‘‘[a] person of ordinary knowledge and experience generally is competent to testify that a substance personally observed by that person appeared to be blood. Although the particular facts and circumstances surrounding the witness' observation of the substance might affect the weight to be given to the testimony, the fact that the substance was not subject to scientific testing to rule out any possibility that it was not blood does not render the testimony inadmissible.'' Id., 535; see also Jewett v. Jewett, 265 Conn. 669, 680, 830 A.2d 193 (2003) (‘‘[t]he fact that evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight'' [internal quotation marks omitted]). In reaching this conclusion, this court relied on State v. Schaffer, 168 Conn. 309, 362 A.2d 893 (1975), in which we determined that ‘‘[i]t is permissible to admit into evidence the opinions of common observers in regard to common appearances, facts and conditions . . . in a great variety of cases. . . . When the question involved can be answered by the application of ordinary knowledge and experience, expert testimony is not required . . . although [t]o render opinions of common witnesses admissible it is indispensable that the opinions be founded on their own personal observation, and not [on] the testimony of others, or on any hypothetical statement of facts, as is permitted in the case of experts.'' (Citations omitted; internal quotation marks omitted.) Id., 318-19; see id., 319 (‘‘[c]onsidering the substance identified, its location, and the normal human experience of the witness . . . the trial court did not abuse its discretion in determining that under the circumstances the [lay] witness was competent to give testimony characterizing as blood the stain she observed on the window of the defendant's car'').

         We conclude that it was within the trial court's broad discretion to determine that Olson, as a lay witness, was competent to testify regarding the appearance of wounds that he had observed. Indeed, it was well within the trial court's discretion to determine that Olson's testimony that Taylor's wounds appeared to be a bite mark, based on Olson's personal observation and rational perception of Taylor's injuries, was more beneficial to the jury than a more abstract recitation or description of the size, location, and shape of the wound. See Conn. Code Evid. § 7-1, commentary; see also Turner v. State, Docket No. 1495, 2016 WL 3220541, *6 (Md. Spec. App. June 10, 2016) (police detective had properly offered ‘‘his opinion as to what the mark on [the] appellant's hand appeared to be'' because he ‘‘had [firsthand] knowledge of the mark, having viewed it in person and, as a law enforcement officer, his opinion testimony was helpful to the jury as [the detective] may have encountered more bite marks and wounds than the average juror, '' and emphasizing that detective's ‘‘testimony was not admitted into evidence as expert testimony based on his specialized training or knowledge'' and that ‘‘[h]e did not testify that the mark was made by the victim, or that there were bite patterns from which it could be concluded that they were inflicted by the victim''); Mitchell v. State, 270 P.3d 160, 179 (Okla. Crim. App. 2011) (lay fact witness could testify to ‘‘his observations and opinions based on those observations'' with respect to description of victim's injuries as ‘‘bite marks''); cf. State v. Neal, 34 Kan.App.2d 485, 494, 120 P.3d 366 (2005) (The court concluded that a lay witness ‘‘was competent to testify that she had an overbite as a result of not wearing a retainer. Furthermore, it was reasonable for her during rebuttal to provide her opinion regarding the comparison of the bite marks in the photographs with her own bite, which she had observed on previous occasions.''), review denied, Kansas Supreme Court, Docket No. 04-92522-A (February 14, 2006). Put differently, Olson's testimony regarding the appearance of Taylor's wounds stands in contrast to bite mark evidence that is the proper subject of expert testimony, such as the identification of the origin of a bite mark. See, e.g., State v. Ortiz, 198 Conn. 220, 227-28, 502 A.2d 400 (1985) (bite mark identification is proper subject of expert testimony).

         The Appellate Court's decision in State v. Ingram, supra, 132 Conn.App. 385, upon which the defendant relies, is not to the contrary. In that case, three witnesses, a police officer with training in dog handling, a police officer with emergency medical training, and a board certified physician's assistant, testified that the defendant had an injury that appeared to be a dog bite. Id., 400-401. The dog handler, in particular, testified that he had commanded his dog to locate and bite the perpetrator of a robbery and that the dog had done so as commanded. Id., 389. The defendant challenged the admission of evidence regarding his injury provided by the three witnesses, claiming that, because they were not qualified as scientific or medical experts in dog bite identification, the trial court improperly admitted their testimony under § 7-2 of the Connecticut Code of Evidence, which governs the admission of expert testimony.[17] Id., 400. The Appellate Court determined that the trial court did not abuse its discretion in admitting the expert testimony because all three witnesses had relevant training and experience relating to their testimony, and that the court reasonably could have determined that their testimony was not within the common knowledge of the jury and therefore would be helpful to the jury in considering the issues. Id., 402. In our view, Ingram is inapposite to the present case because the three witnesses in that case testified as to the source or nature of the bite, and went beyond the scope of Olson's testimony in this case, which was based on his firsthand perception and was not admitted into evidence on the basis of any specialized training or knowledge.

         Finally, having accepted the defendant's invitation to view the photographic exhibits ourselves, we believe that the trial court reasonably could have determined that Olson's description of Taylor's injuries as apparent bite marks was within the realm of reason. Accordingly, we conclude that the Appellate Court improperly determined that the trial court had abused its discretion in determining that Olson's testimony was permissible lay opinion evidence.

         B

         We turn next to the state's claim that the Appellate Court improperly determined that the trial court had abused its discretion by admitting Smola's testimony regarding the object that had been inside of the defendant's backpack on the bus. The record and Appellate Court opinion reveal the following relevant facts and procedural history. The defendant filed a motion in limine seeking to preclude Smola from testifying that the item in the defendant's backpack, as viewed on the bus surveillance video, was a shoe box. The trial court denied the motion and ruled that it would permit Smola to testify ‘‘as to what it looks like. This is not [an] expert opinion.'' Before Smola testified and narrated portions of the bus surveillance video as it played for the jury, the defendant again objected, arguing that the contents of the backpack in the bus surveillance video presented a question of fact for the jury to determine. The trial court overruled the objection, stating that lay opinion evidence is admissible if it is relevant and comes from a competent witness. The trial court then instructed the jury that, ‘‘during this testimony there's going to be the introduction of a video. . . . What's in the video is for you to determine. You obviously are the ultimate arbiters of what the facts are in the case, and the testimony is offered as assistance but it's for you to determine. You can reject all, part, or none of the testimony if you wish, but you determine what it is that you see in that.'' The court then reminded the jury, that ‘‘once again, the narration is an aid but it's for you to determine what's actually in that video.''

         After Smola began testifying, the state asked Smola to narrate the events depicted in the bus surveillance video as it was played for the jury. He testified, over objection, that it was his ‘‘belief through investigation [that] it was a sneaker box'' visible inside the backpack. The court then instructed the jury: ‘‘But once again . . . the narrative that [was] provided, you determine what the facts are in the case.'' On cross-examination, Smola conceded that he did not know whether the item in the backpack actually was a shoe box, as that item was never recovered.

         In its analysis of the defendant's claim that the trial court improperly permitted Smola to testify that the visible contours of an object in the backpack was a shoe box, the Appellate Court emphasized that the state did not present Smola as an expert witness, and Smola had no firsthand knowledge of the item in the backpack. State v. Holley, supra, 160 Conn.App. 635. The Appellate Court then stated that it was unaware of any case law ‘‘under which a lay witness who lacks firsthand knowledge of matters in evidence may render his or her opinion as to such matters by presenting his interpretation of the evidence to the jury.'' Id., 635-36. Ultimately, the Appellate Court ‘‘conclude[d] that it was improper for the court to have permitted Smola to offer a lay opinion with regard to the contents of the backpack depicted in the bus video.'' Id., 636-37.

         On appeal, the state claims that it was within the trial court's discretion to permit a witness, who was narrating portions of the bus surveillance video as it was played for the jury, to refer to identifiable objects visible on the screen. The state argues that the commentary to § 7-1 of the Connecticut Code of Evidence expressly contemplates that a lay witness may testify to the appearance of persons or things, which extends to the identity or similarity of objects. Finally, the state contends that any error was harmless because the trial court instructed the jury about its responsibility to determine what the surveillance bus video depicted, and that it could reject Smola's testimony accordingly. In response, the defendant contends that the Appellate Court properly determined that the trial court had abused its discretion in admitting the challenged testimony because Smola lacked personal knowledge and, thus, was not competent to testify about these facts. We, however, agree with the state and conclude that any impropriety in the admission of Smola's description of the item inside of the backpack was harmless error.

         Although there is some division in the federal and state courts on this point, there is significant authority under rule 701 of the Federal Rules of Evidence to support the proposition that a lay witness narrating a video to a jury may state his or her impressions of what is depicted in the video, even if he or she did not observe those events firsthand. See, e.g., United States v. Begay, 42 F.3d 486, 502-503 (9th Cir. 1994), cert. denied sub nom. McDonald v. United States, 516 U.S. 826, 116 S.Ct. 93, 133 L.Ed.2d 49 (1995).[18] Nonetheless, we need not consider whether the Appellate Court properly determined that Smola's narration of the bus surveillance video was not based on his personal observations for purposes of § 7-1 of the Connecticut Code of Evidence, insofar as he did not witness the events on the bus firsthand. See State v. Holley, supra, 160 Conn.App. 635-36. Even if we assume, without deciding, that the trial court improperly allowed Smola to testify that he perceived the object to be a shoe box, we believe that any error in that regard was harmless and, therefore, does not require reversal.[19]

         It is well settled that, ‘‘[w]hen an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. . . . [W]hether [an improper ruling] is harmless in a particular case depends upon a number of factors, such as the importance of the witness' testimony in the prosecution'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 ofcross-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. . . . 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. Bouknight, 323 Conn. 620, 626-27, 149 A.3d 975 (2016).

         Although we acknowledge that Smola's description of the object in the defendant's backpack as a shoe box was probative evidence connecting the defendant to the scene of the crime, we nevertheless have the requisite fair assurance that this testimony did not substantially affect the jury's verdict. First, Taylor was linked to the crime through DNA evidence, the injuries to his hands, and his sale of the murder weapon. The defendant's link to Taylor in the immediate aftermath of the crime was established through the surveillance video from the convenience store, which showed the two men traveling together within mere minutes of the crime, the bus surveillance video, and other evidence, such as Parker's testimony about the conversation between the defendant and Taylor on the bus, which clearly evidenced that the two men were together when Taylor was bitten.

         Second, the bus surveillance video was admitted into evidence, and the jury had the opportunity to view it, along with a still image captured from the video depicting the backpack partially open to reveal a grayish white object. See State v. Edwards, 325 Conn. 97, 134, 156 A.3d 506 (2017) (improper admission of detective's testimony about cell tower coverage, without qualification as expert, was harmless because, even without his ‘‘testimony, the jury still could conclude from the cell phone records themselves that the defendant's cell phone accessed cell towers in Rocky Hill and Wethersfield on the date of the robbery, which coincides with the victim's testimony that she was followed from the grocery store in Rocky Hill and robbed at her home in Wethersfield''); see also Callaway v. State, Docket No. 2376, 2016 WL 7379300, *13 (Md. Spec. App. December 20, 2016) (any error in admitting testimony of detective who narrated video of event he had not watched was harmless because jurors were ‘‘free to view the video for themselves, as the parties reminded them during closing arguments'').

         Significantly, the trial court instructed the jury that Smola's testimony was ‘‘offered as assistance, '' but that the jury remained ‘‘the ultimate arbiters of what the facts are in the case, '' and it was free to ‘‘reject all, part, or none of the testimony if you wish, but you determine what it is that you see in that'' video. The trial court reiterated this instruction during the final charge, as well.[20] We presume the jury followed these instructions, particularly because the instructions were given immediately before Smola testified, and ‘‘such instructions are far more effective in mitigating the harm of potentially improper evidence when delivered contemporaneously with the admission of that evidence, and addressed specifically thereto.'' (Internal quotation marks omitted.) State v. Paul B., 315 Conn. 19, 32, 105 A.3d 130 (2014).

         Finally, Smola was subject to extensive cross-examination, in which he acknowledged that he had never physically obtained or examined the object in the backpack that appeared in the video to be a shoe box. Smola also acknowledged during cross-examination that he could not tell from the video whether the item in the backpack bore any logos, brands, or other distinctive marks like the shoe box that was recovered from the victim's apartment, which was admitted into evidence as Defendant's Exhibit E1. See State v. Edwards, supra, 325 Conn. 134-35 (improper admission of testimony without qualifying detective as expert in cell tower data was harmless error because, inter alia, ‘‘defense counsel rigorously cross-examined [detective] on the accuracy of the cell phone data''). ...


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