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State v. Berrios

Court of Appeals of Connecticut

February 5, 2019

STATE OF CONNECTICUT
v.
DENNIS BERRIOS

          Argued September 12, 2018

         Procedural History

         Substitute information, in the first case, charging the defendant with two counts of the crime of manslaughter in the first degree, one count of the crime of murder, and with the commission of a felony while on release and the commission of an offense while on release, and substitute information, in the second case, charging the defendant with the crimes of tampering with a witness and intimidating a witness, and substitute information, in the third case, charging the defendant with the crime of evasion of responsibility in the operation of a motor vehicle, brought to the Superior Court in the judicial district of Fairfield, where the cases were consolidated; thereafter, the court, Kahn, J., granted the defendant's motion to dismiss the charge of having committed an offense while on release; subsequently, the matter was tried to the jury; thereafter, the court denied the defendant's motions to preclude certain evidence, and for a judgment of acquittal as to the charges of tampering with a witness and intimidating a witness; verdicts and judgments of guilty of one count of manslaughter in the first degree, and tampering with a witness, intimidating a witness and evasion of responsibility in the operation of a motor vehicle, from which the defendant appealed to this court. Affirmed.

          Pamela S. Nagy, assistant public defender, for the appellant (defendant).

          Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and C. Robert Satti, Jr., supervisory assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Alvord and Lavery, Js.

          OPINION

          DIPENTIMA, C. J.

         The defendant, Dennis Berrios, appeals from the judgments of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), tampering with a witness in violation of General Statutes § 53a-151 (a), intimidating a witness in violation of General Statutes § 53a-151a (A) (1) and evasion of responsibility in the operation of a motor vehicle in violation of General Statutes § 14-224 (a).[1] On appeal, the defendant claims that (1) there was insufficient evidence to support his conviction of tampering with a witness and intimidating a witness, (2) the trial court improperly permitted certain testimony from a state medical examiner, (3) the court abused its discretion in admitting certain prior misconduct evidence, (4) the court abused its discretion in admitting into evidence crude text messages sent by the defendant and (5) the court improperly instructed the jury with respect to self-defense. We disagree and, accordingly, affirm the judgments of conviction.

         The jury reasonably could have found the following facts. On August 9, 2014, Wilma Figueroa (Wilma) spent time with the defendant, her boyfriend, at his home on Park Street in Bridgeport. While in his kitchen after 7 p.m., the defendant angrily told Wilma that ‘‘the only thing he wanted for his [upcoming] birthday was to make everyone pay.'' He continued by stating that he had ‘‘unfinished business, '' that he was going to ‘‘hurt others'' and that ‘‘there was going to be bloodshed.'' The defendant identified Wilma's brother, William Figueroa (William), as one of his targets. The defendant further stated that he needed money to purchase a gun from his cousin in Hartford and that he would use it to kill William.

         Wilma went with the defendant to an automated teller machine, but purposefully entered an incorrect code to ‘‘lock out'' the bank card and prevent the defendant from getting cash to buy the gun. After returning to the defendant's home, Wilma and her son departed at about 9 p.m.

         Shortly thereafter, Justin Griffin walked from his residence to the home of the victim, Tyron Tate. Griffin saw a black Chevy Avalanche[2] with its headlights off proceed through the intersection at William Street and Arctic Street without stopping at a stop sign, even though it was dark outside. Another witness, Michael Shuler, claimed that he was with Griffin and the victim when the defendant drove past the stop sign, ‘‘hit the gas and swerved towards [them while driving the Avalanche], and [they] jumped on the sidewalk.''[3]

         Approximately thirty minutes later, Griffin and the victim were walking to a corner store in the vicinity of Noble Avenue and Jane Street. While crossing the intersection, Griffin, who was talking or texting on his phone, walked in front of the victim. The victim shoved Griffin forward while shouting, ‘‘there's [the defendant].'' While being pushed, Griffin looked to the left and saw a vehicle that had ‘‘just popped out of nowhere right there and had hit [the victim].'' Shuler, who also was present, observed the defendant ‘‘hit the gas'' and drive toward Griffin. Shuler also saw the Avalanche hit and drag the victim. Another witness to the incident, Jonathan Santos, observed the Avalanche depart in the wrong lane of travel at a high rate of speed.

         The victim, after being struck by the Avalanche, was pulled under the front of the vehicle. Griffin chased after the vehicle as the victim was trapped underneath. Griffin observed the victim ‘‘stuck'' under the Avalanche, which was ‘‘bouncing up and down on him.'' Eventually, the front tire on the driver's side of the Avalanche ‘‘bounc[ed]'' on the victim's head, and his body was freed as the vehicle was driven away. As Griffin approached the victim, he observed a significant blood loss from the head and face, as well as other injuries.

         As Shuler ran toward the home of the victim's mother, he noticed that the Avalanche had returned to the area of Jane Street and Noble Avenue. The driver's side window had been lowered, and Shuler identified the defendant as the operator of the vehicle. Shuler also stated that the defendant might have ‘‘laughed or something.''

         Anthony Caiazzo, a Bridgeport police officer, received a dispatch at approximately 10 p.m., and was directed to Noble Avenue between Arctic Street and Jane Street. Upon Caiazzo's arrival, he observed the victim on the ground receiving medical aid. Paramedics transported the victim to Bridgeport Hospital, where he died from his injuries.[4] Caiazzo retrieved a surveillance video from a store located on the corner of Arctic Street and Noble Avenue.

         The next morning, on August 10, 2014, Bridgeport police officers located the Avalanche and detained the defendant at his home. The defendant invited the officers into his home where he was interviewed by the officers, who audio recorded the interview. The defendant initially claimed to have left Bridgeport in the Avalanche at about 6:30 or 7 p.m. on August 9, 2014, to visit his brother in Dayville. The defendant then stated that he had returned to his Bridgeport home moments before the police officers detained him. Upon further questioning, the defendant again stated that he was at his brother's residence in Dayville and not in Bridgeport at the time of the incident involving the victim.

         The police informed the defendant of the existence of a video recording of his Avalanche in Bridgeport the prior night. The defendant's initial response was that the video must have been recorded earlier that evening, but he eventually acknowledged that the Avalanche was in Bridgeport at the time the victim was hit. The police then questioned the defendant regarding certain dam-age[5] to the Avalanche. At first, the defendant claimed that the damage had occurred in April, 2014, but subsequently stated that ‘‘two people [had thrown] rocks at his vehicle at the corner of Noble [Avenue] and Jane [Street] that night before.'' The defendant eventually acknowledged that he had hit the victim with the Avalanche on August 9, 2014. At the conclusion of this interview, the police arrested the defendant.

         The police interviewed Wilma on August 21, 2014. At that time, she did not discuss the verbal threats made by the defendant on August 9, 2014. During the next few months, the relationship between the defendant and Wilma waned, and they stopped being intimate in October, 2014. In the middle of January, 2015, the defendant sent her text messages that caused her to contact the police. The defendant texted Wilma a warning that she should ‘‘[c]hoose wisely, '' that the victim's mother had performed oral sex on him during the relationship, that his attorney was going to ‘‘rip [you all] a new [a]sshole, '' that she was going to find out what the defendant was ‘‘[a]bout, '' that ‘‘[d]ecisions come with consequences, '' that he hated her because she abandoned him, that she played ‘‘both sides of the fence'' and would ‘‘pay [for her] betrayal, '' and that he was standing on her ‘‘corner . . . .'' These text messages frightened Wilma. A police detective conducted a second interview with her on January 23, 2015.

         The state charged the defendant in three separate informations. The informations were consolidated for trial, which occurred over several days in October, 2016. The jury found the defendant guilty of manslaughter in the first degree, tampering with a witness (Wilma), intimidating a witness (Wilma) and evasion of responsibility in the operation of a motor vehicle. The court accepted the verdicts and, on December 9, 2016, sentenced the defendant to twenty years incarceration for the manslaughter conviction, ten years incarceration, execution suspended after five years for the evasion of responsibility conviction, ten years incarceration, execution suspended after five years for the intimidating a witness conviction and ten years incarceration for the tampering with a witness conviction. The sentences for the evasion of responsibility and intimidating a witness counts were to run consecutively to the sentence for the manslaughter count; the sentence for tampering with a witness was to run concurrently with the other counts. Thus, the defendant's total effective sentence was forty years incarceration, execution suspended after thirty years, and five years probation with certain conditions. This appeal followed. Additional facts will be set forth as needed.

         I

         The defendant first claims that there was insufficient evidence to support his conviction of tampering with a witness and intimidating a witness. Specifically, he argues that his conviction for these two crimes ‘‘must be vacated because the state failed to prove that any threats [he] made were intended to prevent or affect [Wilma's] testimony. The texts show that [the] defendant was infuriated with her because she had been supporting [the victim's] family and aligning herself with her brother behind his back. The threats were made because of her betrayal and were not about any future testimony she might give.'' The state counters that the evidence was sufficient to support the finding that the defendant's threats ‘‘were not simply rants motivated by anger over her perceived betrayal and disloyalty, but were intended to influence or prevent any testimony that she might give against him at a criminal trial.'' We agree with the state.

         As an initial matter, we set forth our standard of review and relevant legal principles. ‘‘A defendant who asserts an insufficiency of the evidence claim bears an arduous burden.'' (Internal quotation marks omitted.) State v. Reed, 176 Conn.App. 537, 545, 169 A.3d 326, cert. denied, 327 Conn. 974, 174 A.3d 194 (2017); State v. Leandry, 161 Conn.App. 379, 383, 127 A.3d 1115, cert. denied, 320 Conn. 912, 128 A.3d 955 (2015). ‘‘The standard of review [that] we [ordinarily] apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a [fact finder's] factual inferences that support a guilty verdict need only be reasonable. . . .

         ‘‘[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. . . . [I]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact . . . but the cumulative impact of a multitude of facts [that] establishes guilt in a case involving substantial circumstantial evidence.'' (Internal quotation marks omitted.) State v. Seeley, 326 Conn. 65, 72-73, 161 A.3d 1278 (2017); see State v. Dubuisson, 183 Conn.App. 62, 68-69, 191 A.3d 229, cert. denied, 330 Conn. 914, 193 A.3d 560 (2018). Simply stated, ‘‘[o]n appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty.'' (Internal quotation marks omitted.) State v. Chemlen, 165 Conn.App. 791, 817, 140 A.3d 347, cert. denied, 322 Conn. 908, 140 A.3d 977 (2016).

         Next, we turn to the relevant statutory language for §§ 53a-151 and 53a-151a. See, e.g., State v. Pommer, 110 Conn.App. 608, 613, 955 A.2d 637, cert. denied, 289 Conn. 951, 961 A.2d 418 (2008). Section 53a-151 (a) provides: ‘‘A person is guilty of tampering with a witness if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to testify falsely, withhold testimony, elude legal process summoning him to testify or absent himself from any official proceeding.'' Simply stated, ‘‘liability under § 53a-151 hinges on the mental state of the perpetrator in engaging in the conduct at issue-his intent to induce a witness to testify falsely [or withhold testimony, elude legal process or absent himself or herself from the proceeding]-not on whether he must overcome by coercive means the will of a witness reluctant to do so.'' State v. Coleman, 83 Conn.App. 672, 678, 851 A.2d 329, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004), cert. denied, 544 U.S. 1050, 125 S.Ct. 2290, 161 L.Ed.2d 1091 (2005); see also State v. Ortiz, 312 Conn. 551, 562-63, 93 A.3d 1128 (2014); State v. Cavallo, 200 Conn. 664, 668-72, 513 A.2d 646 (1986); State v. Bennett-Gibson, 84 Conn.App. 48, 59, 851 A.2d 1214, cert. denied, 271 Conn. 916, 859 A.2d 570 (2004).

         Section 53a-151a (a) provides: ‘‘A person is guilty of intimidating a witness when, believing that an official proceeding is pending or about to be instituted, such person uses, attempts to use or threatens the use of physical force against a witness or another person with intent to (1) influence, delay or prevent the testimony of the witness in the official proceeding, or (2) induce the witness to testify falsely, withhold testimony, elude legal process summoning the witness to testify or absent himself or herself from the official proceeding.'' Our Supreme Court has stated that ‘‘[i]n light of the close relationship between §§ 53a-151 (a) and 53a-151a (a), it is appropriate to give the same phrase in each statute the same meaning.'' State v. Sabato, 321 Conn. 729, 747, 138 A.3d 895 (2016).

         The following additional facts are necessary for our discussion. The defendant and Wilma began dating in late 2011. On August 9, 2014, she was with the defendant until approximately 9 p.m. She did not learn of the victim's death until the next morning. On August 21, 2014, when she spoke with a police detective, Heitor Teixeira, she did not reveal the threats made by the defendant, or his desire and efforts to obtain a gun on the night of the incident. She also agreed with the prosecutor's statement that the defendant ‘‘seemed just fine'' on that date. She subsequently informed the defendant of this police interview.

         After the incident but prior to the end of their relationship, Wilma, who knew that the defendant had been arrested and released on bail, made efforts not to be seen with him. Wilma saw the defendant only about three or four times after August, 2014. In January, 2015, Wilma attended court proceedings to support the mother of the victim.

         In mid-January, 2015, over the course of several days, the defendant sent Wilma a number of text messages, which were entered into evidence. In the text messages sent on January 14, 2015, the defendant expressed regret and sorrow over the end of their relationship.[6]Two days later, however, the content and tenor of the text messages abruptly changed into insults and threats.[7] Wilma did not respond to these texts; instead, she met with Teixeira on January 23, 2015.

         On appeal, the defendant challenges only the intent element of the tampering with a witness and intimidating a witness charges.[8] ‘‘[D]irect evidence of the accused's state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . [A]ny such inference cannot be based on possibilities, surmise or conjecture. . . . It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence.'' (Internal quotation marks omitted.) State v. Robert S., 179 Conn.App. 831, 836, 181 A.3d 568, cert. denied, 328 Conn. 933, 183 A.3d 1174 (2018); see also State v. Griffin, 184 Conn.App. 595, 615-16, 195 A.3d 723, cert. denied, 330 Conn. 941, 195 A.3d 692, 693 (2018); State v. O'Donnell, 174 Conn.App. 675, 687-88, 166 A.3d 646, cert. denied, 327 Conn. 956, 172 A.3d 205 (2017). ‘‘For example, intent may be inferred from the events leading up to, and immediately following, the conduct in question . . . the accused's physical acts and the general surrounding circumstances. . . . [W]hen a jury evaluates evidence of a defendant's intent, it properly rel[ies] on its common sense, experience and knowledge of human nature in drawing inferences and reaching conclusions of fact.'' (Internal quotation marks omitted.) State v. Williams, 172 Conn.App. 820, 828, 162 A.3d 84, cert. Denied, 326 Conn. 913, 173 A.3d 389 (2017). Additionally, ‘‘it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct.'' (Emphasis in original; internal quotation marks omitted.) State v. Bennett-Gibson, supra, 84 Conn.App. 53.

         The defendant argues that his ‘‘text messages had nothing to do with any trial testimony Wilma might have given. Rather, the threats pertained to her past action of siding with [the victim's] family and her brother. The most that can be gleaned from the texts was that he was threatening retaliation for her betrayal. There simply is no indication that he was threatening her to prevent her from testifying.'' This interpretation of evidence represents a conclusion that could have been reached by the fact finder. Nevertheless, a reasonable jury, in considering all of the evidence up to the time the defendant sent the text messages to Wilma and the surrounding circumstances, also could have inferred that he had intended to prevent her from testifying at his criminal trial. Thus, mindful of our limited review; see State v. Bush, 325 Conn. 272, 304, 157 A.3d 586 (2017) (reviewing court does not sit as thirteenth juror); the defendant's sufficiency claim must fail.

         The defendant sent the text messages to Wilma in the time period after his arrest, but prior to his criminal trial. Additionally, Wilma, following the end of her romantic relationship with the defendant, had attended court proceedings and supported the victim's mother. The defendant twice told Wilma to ‘‘[c]hoose wisely'' and that the victim's mother would not ‘‘be around'' at the conclusion of the proceedings. He referred to the upcoming legal proceedings when he cautioned Wilma that his attorney would ‘‘rip . . . y'all a new [a]sshole . . . .'' The defendant further stated that Wilma was being ‘‘us[ed]'' and that her decisions came with consequences. He then accused Wilma of ‘‘playing both sides of the fence'' and that stated she had betrayed him, despite his loyalty to her. Finally, he threatened her by proclaiming that he was ‘‘standing on [her] corner . . . .''

         Without resorting to speculation or conjecture, the jury reasonably could have inferred that the defendant intended to affect Wilma's testimony in violation of §§ 53a-151 (a) and 53a-151a (a). The state presented evidence that the defendant, by telling Wilma to choose between supporting him or the victim's family, by referencing their past romantic relationship and his loyalty to her, and by threatening and insulting her, sought either to prevent her from testifying or to induce her to testify falsely. Moreover, on the night of the victim's death, the defendant had spoken with Wilma about ‘‘hurting others'' and had attempted to obtain a gun. The jury reasonably could have concluded that the defendant wanted to prevent such evidence from being heard at his criminal trial. We conclude, therefore, that there was evidence supporting the jury's conclusion that he had the requisite mental state to violate §§ 53a-151 (a) and 53a-151a (a).[9] Accordingly, we conclude that his claim of evidentiary insufficiency must fail.

         II

         The defendant next claims that the court improperly permitted certain testimony from the medical examiner. Specifically, he argues that the court erred by allowing the medical examiner to testify that the manner of death in this case was homicide because this conclusion was not based on her medical expertise, but on information she had received from the police. The state counters that the court did not abuse its discretion in permitting such testimony and that certain aspects of the defendant's claim are not properly before this court. We agree with the state.

         The following additional facts are necessary for our discussion. The defendant filed a motion in limine dated October 17, 2016, seeking to preclude certain testimony from Susan Williams, a pathologist in the Office of the Chief Medical Examiner, who had performed the August 11, 2014 autopsy of the victim. The defendant argued that on the date of the autopsy, Williams listed the manner of death as ‘‘[c]ircumstances pending further investigation.'' On December 24, 2014, she amended the manner of death to homicide. The defendant contended that this amendment was based not on Williams' medical expertise but on the completion of the police investigation, and, therefore, the jury would not need her testimony on the manner of the victim's death, which was an ultimate issue in the case.

         On October 18, 2016, the court heard argument on the defendant's motion in limine outside of the presence of the jury. Defense counsel argued that Williams' determination as to the manner of death was not based on her medical expertise, and therefore her testimony would not assist the jury. The state responded that defense counsel had ‘‘gloss[ed] over'' the portion of § 7-3 of the Connecticut Code of Evidence, which provides that ‘‘an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue.'' The state also noted that the medical examiner's office had a statutory duty to investigate the victim's death, [10] and to issue a report[11] and a death certificate.[12] The state further represented to the court that the report from the medical examiner's office must classify the manner and cause of death as (1) unable to determine, (2) accidental, (3) suicide, (4) natural or (5) homicide. After further argument, defense counsel again claimed that Williams had amended her classification to homicide on the basis of the police investigation, and not her medical expertise. Therefore, her testimony was not necessary to explain the cause of death to the jury.

         The court denied the motion in limine. It reasoned that Williams had a statutory obligation to identify the cause and the manner of death, [13] and that defense counsel could cross-examine Williams as to whether her ultimate conclusion of homicide was based on the police investigation. It also determined that the objection went to the weight, and not the admissibility, of Williams' testimony.

         Williams testified later that day. At the outset of her testimony, Williams indicated that she was board certified in, inter alia, forensic pathology, which is the medical specialty of determining the cause and manner of death. She stated that the victim had died from his brain injuries and that the manner of death was homicide.

         During cross-examination, Williams testified that she had a statutory obligation to provide both the cause of death and the manner of death. Defense counsel posed the following question to Williams: ‘‘And when you did the autopsy on August 11, 2014, what was the manner of death that you had concluded at that point in time?'' Williams responded: ‘‘So, when the investigation is still ongoing, we say circumstances pending further investigation. . . . And that's what I did in this case.'' Williams further explained that when a pedestrian is struck by a motor vehicle, it could be an accident, or a suicide or a homicide, depending on the particular facts and circumstances of each particular incident. Williams stated that the information she received from the police investigation assisted with her decision to classify the manner of death as a homicide. On redirect examination, Williams noted that, similar to a motor vehicle incident, the manner of death from a single gunshot could be a homicide, a suicide or an accident. Williams further explained that pathologists would consider the context of the events, as obtained by the police, to assist in the determination of the manner of death.

         We begin by setting forth our standard of review and the relevant legal principles. ‘‘We review a trial court's decision [regarding the admission of] expert testimony for an abuse of discretion. . . . We afford our trial courts wide discretion in determining whether to admit expert testimony and, unless the trial court's decision is unreasonable, made on untenable grounds . . . or involves a clear misconception of the law, we will not disturb its decision. . . . Although we afford trial courts significant discretion, [w]here it clearly appears that an expert witness is qualified to give an opinion, the exclusion of his testimony may be found to be [an abuse of discretion]. . . . To the extent the trial court makes factual findings to support its decision, we will accept those findings unless they are clearly improper. . . . 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. . . .

         ‘‘We also note our standards for admitting expert testimony. Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . . . [T]o render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion.'' (Internal quotation marks omitted.) State v. Edwards, 325 Conn. 97, 123-24, 156 A.3d 506 (2017); see also State v. Beavers, 290 Conn. 386, 414, 963 A.2d 956 (2009); State v. Rivera, 169 Conn.App. 343, 368, 150 A.3d 244 (2016), cert. denied, 324 Conn. 905, 152 A.3d 544 (2017); see generally Conn. Code Evid. § 7-2.

         On appeal, the defendant argues that Williams testified regarding the ultimate issue in the case, that is, whether the defendant intentionally hit the victim with the Avalanche or had done so accidently. ‘‘By testifying that the death was a homicide, the expert [Williams] gave her opinion that the state's version of events was correct without basing it on any expertise or specialized knowledge.'' He then directs us to § 7-3 (a) of the Connecticut Code of Evidence, which provides: ‘‘Testimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that, other than as provided in subsection (b), an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue.'' Put a different way, the defendant contends that because Williams' testimony was not based on her medical knowledge and training, but on information obtained from the police investigation, her testimony regarding the manner of the victim's death did not provide the jury with expert assistance with respect to that issue. Thus, he argues that the general rule regarding the inadmissibility of testimony that embraced the ultimate issue applied, and the testimony should not have been permitted. In support of this argument, the defendant cites out-of-state authority.[14] He further contends that he was harmed as a result of this evidentiary impropriety. We are not persuaded.

         Section 7-3 of the Connecticut Code of Evidence adopted the common-law rule that a witness' opinion on an ultimate issue in the case is inadmissible. State v. Finan, 275 Conn. 60, 66, 881 A.2d 187 (2005); see also C. Tait & E. Prescott, Connecticut Evidence (5th Ed. 2014) § 7.17.2, pp. 486-87. ‘‘The common-law rule protects the defendant's right to have the jury determine his guilt or innocence.'' State v. Finan, supra, 66. The ultimate issue in a case is one that ‘‘cannot reasonably be separated from the essence of the matter to be decided [by the trier of fact].'' (Internal quotation marks omitted.) Id.; see also State v. Favoccia, 306 Conn. 770, 786, 51 A.3d 1002 (2012).

         Our law recognizes, however, that ‘‘[e]xperts can sometimes give an opinion on an ultimate issue if the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass.'' C. Tait & E. Prescott, supra, § 7.17.3, p. 487; see also Conn. Code Evid. § 7-3 (a) (‘‘an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue''); State v. Taylor G., 315 Conn. 734, 761, 110 A.3d 338 (2015); State v. Lamme, 19 Conn.App. 594, 603, 563 A.2d 1372 (1989), aff'd, 216 Conn. 172, 579 A.2d 484 (1990). In the present case, the defendant does not challenge, as a general matter, the propriety of Williams' expert testimony. Instead, the defendant contends that her opinion was improper, under these facts and circumstances, because it was not based on her medical expertise, but rather on information she had received from the police investigation. Put differently, the defendant claims that because Williams relied primarily on police information, and not on her medical expertise in reaching her conclusion that the manner of death was a homicide, this testimony was not that of an expert and thus inadmissible.

         The defendant acknowledges that there are no Connecticut cases to support his claim, and relies on out-of-state authority. For example, he directs us to State v. Jamerson, 153 N.J. 318, 324, 708 A.2d 1183 (1998), where the defendant, Charles L. Jamerson, was convicted of reckless manslaughter, in part on the basis of his having operated a motor vehicle while under the influence of alcohol. His strategy at trial was to show that his conduct did not amount to recklessness and that the victims' vehicle had failed to stop at a stop sign. Id. ‘‘The [s]tate introduced testimony through a county medical examiner that [Jamerson] was operating his vehicle in a reckless manner at the time it collided with the decedent's vehicle.'' Id.

         At the trial, the medical examiner, Claus Speth, was qualified as a forensic pathologist, but not as an accident reconstructionist. Id., 330. Nevertheless, Speth considered the facts and witnesses' statements to conclude that Jamerson had caused the accident and had driven under the influence of alcohol. Id. Speth also determined, on the basis of witness statements and his own personal observations, that there was no evidence that the victims ‘‘ ‘had violated the stop sign,' '' and that Jamerson had operated his vehicle in violation of numerous traffic laws. Id., 331-32. Finally, Speth personally interviewed a witness to the accident and concluded that from her vantage point, she could not have observed the stop sign that she claimed the victims had failed to observe. Id., 333.

         The New Jersey Supreme Court concluded that Speth had been qualified only as an expert in forensic pathology and, therefore, should not have been permitted to testify as to matters that would be within the purview of an accident reconstructionist. Id., 338-39. Additionally, under these facts, the circumstances of the accident were within the understanding of an average juror, and, thus, expert testimony was improper. Id., 340-41. Finally, Speth improperly commented on the credibility of another witness. Id., 341.

         The defendant also refers us to cases from other jurisdictions that have established a general rule that the opinion of a medical examiner is inadmissible when the medical examiner relies primarily or largely on the testimony of fact witnesses, such as police officers, rather than on his or her medical knowledge, to reach an opinion as to the manner of death. See, e.g., State v. Sosnowicz, 229 Ariz. 90, 95, 270 P.3d 917 (App. 2012) (medical examiner's opinion that manner of death was homicide and not accident was based on circumstances as reported to him by police and not on his specialized medical knowledge); State v. Tyler, 867 N.W.2d 136');">867 N.W.2d 136, 156 (Iowa 2015) (where medical examiner is too reliant on witness statement or information obtained through police investigation in forming opinions on cause or manner of death, such opinions may not assist trier of fact); State v. Vining, 645 A.2d 20, 20-21 (Me. 1994) (medical examiner's opinion of homicide was not product of her expertise and was based solely on her discussions with police investigators and thus amounted to assessment of credibility and investigatory acumen of police).

         The present case is distinguishable from the sibling authority cited in the defendant's brief. At the outset, we note that General Statutes § 19a-407 (c) specifically grants access to the Office of the Chief Medical Examiner to any object, writings or other articles of property in the custody of any law enforcement office when such items may be useful in determining the manner of death.[15] Upon such a request, such law enforcement officials shall deliver the items and any reports of the analysis of such items by law enforcement. See General Statutes § 19a-407 (c). Thus, our statutes clearly contemplate and support Williams' testimony that cooperation and coordination between law enforcement and the Office of the Chief Medical Examiner occur to determine the manner of death.

         Next, the facts and circumstances of the present case support a conclusion that Williams' determination of the victim's manner of death was based on her medical knowledge and expertise, and not solely or primarily on the police reports. Williams conducted the autopsy of the victim on August 11, 2014. She documented the injuries suffered by the victim, including abrasions to the left side of the head, forehead and left lower back, bruising on the left lower back and left flank, skull fractures, subarachnoid hemorrhage, signs of brain injury, skin lacerations, and numerous fractures of both scapula, the neck, lumbar vertebrae and the left femur. Williams consulted with Dean Uphoff, a neuropathologist, regarding the injuries to the victim's brain, and reviewed the victim's medical records from the hospital regarding the efforts to save his life. It is clear, therefore, that Williams' ultimate conclusion as to the manner of death was not made solely or largely on the basis of the police reports, but rather on her medical knowledge, training and experience.[16] These facts stand in stark contrast to those set forth in State v. Jamerson, supra, 153 N.J. 318. Accordingly, we conclude that the court did not abuse its discretion in denying the motion in limine and permitting Williams to testify as to the manner of death.

         III

         Next, the defendant claims that the court abused its discretion in admitting certain prior misconduct evidence. Specifically, the defendant argues that the court improperly admitted evidence that he (1) had damaged cars in his neighborhood, (2) had challenged Wilma's father to a physical fight and (3) while intoxicated, had thrown a bloody ice pack at hospital staff.[17] The defendant contends that this evidence was irrelevant, and that its prejudicial impact outweighed its probative value such that he was harmed, thereby necessitating a new trial. The state counters that the court did not abuse its discretion in admitting the challenged evidence and that, in any event, such error was harmless. We agree with the state that the court's evidentiary rulings did not constitute an abuse of discretion.

         The following additional facts are necessary for our review of this claim. During her direct examination, Wilma testified that on the evening of August 9, 2014, the defendant made threatening statements against various individuals, including her brother, William. During cross-examination, she indicated that during her January 23, 2015 interview with Detective Teixeira, she stated that the defendant had threatened to kill her and her father in addition to her brother and another individual. She then explained that she had continued her physical relationship with the defendant, despite his verbal threats, until October, 2014, to protect herself, her brother and her father.[18]

         Prior to its redirect examination, the state made a proffer as to certain misconduct evidence. Outside of the presence of the jury, Wilma stated that, in May, 2014, the defendant said that ‘‘he was going to get even for everything, '' and had challenged her father to a physical fight. Second, Wilma testified that, in November, 2013, the defendant had used a baseball bat to damage vehicles around Wilma's house because he lost his wallet containing recently collected rent money. Third, she indicated that, prior to August 9, 2014, the defendant had threatened her five or six times when he was angry. Finally, she stated that she did not go to the police after hearing his August 9, 2014 threats because she ‘‘thought . . . he would forget about it in the morning.''

         Defense counsel argued that breaking car windows in November, 2013, was not relevant evidence. The state claimed that during cross-examination, Wilma's ‘‘motives and reason'' were raised, and, therefore, the incidents of the defendant's prior misconduct were ‘‘highly probative and relevant.''

         The court then ruled: ‘‘All right. My ruling is that, based on what I've heard from the proffer, while certainly the fact that he damaged windows of people's cars in the neighborhood, and that he had threatened her father, agreed to-wanted to fight him, and her knowledge of his temper all are probative of the issue which defense opened up on cross-examination, the entire cross-examination was designed to make this witness appear to be lying about the threats the defendant made on August 9th and what she observed on August 9th as a fabrication after the fact. She was specifically asked and pointed to her testimony-her statements as to Detective Teixeira about she didn't know anything, and if she could make up a story, and her reasons for not being up front with police. And she was questioned extensively about what she told the police the second time she met with Detective Teixeira and why she wouldn't. She was-specifically said, you know, basically, you-someone threatens your father, your brother, you, and you do nothing about it, all to suggest that this is a fabrication, and that her motives for not coming to the police are false. Therefore, the door has been opened, and it is probative for the jury to understand. And she was asked about the nature of their relationship, why she maintained sexual relations with the defendant. All of which go to her experience with this defendant, her motives for doing what she did when-and when she did it. And so for those reasons, I will allow [it to come into evidence] . . . .

         ‘‘All of the cross-examination questions were designed to paint this witness as lying; therefore, her experience with the defendant directly relates to the cross-examination of the witness and her reasons for doing what she did. So, I will allow her testimony relating to the altercation with her father, that-that what he stated, that he wanted to get even, her observations about his temper, given the length of their relationship and her reasons, as well as the fact that he smashed windows. That he threatened her in the past goes to the believability of why she would or would not have gone to the police the day of August 9th. . . . And the state ought to be entitled to ask her about that, since she was extensively cross-examined about her credibility as to why she did or did not tell the police the entire story on August 21st when she met with them.''

         After a recess, the court summarized the basis for its ruling and indicated that it would provide the jury with a limiting instruction either prior to or at the conclusion of Wilma's testimony. Defense counsel then objected, arguing that the prejudicial effect of this evidence far outweighed its probative value. In a dialogue with defense counsel, the court noted that the cross-examination of Wilma ‘‘was very broad, very extensive, challenging her motivations, challenging her credibility . . . . You questioned her about the nature of their relationship and why it changed and when it changed and why she did what she did, suggesting that she made up the story. And therefore, because your cross-examination was so broad, it opened the door to her knowledge of your client's temper, and how he acts and reacts, to come in. And for that reason, I find the evidence to be-yes, it's prejudicial, but it's also highly probative in light of the cross-examination. The probative value far outweighs the prejudicial impact of this evidence.''

         After the jury returned, the state conducted its redirect examination of Wilma. She first testified that the defendant had a violent demeanor and a temper at times. She iterated that prior to August 9, 2014, he had threatened her five or six times. Wilma informed the jury that in May, 2014, the defendant had challenged her father to a fight. She further stated that in the year prior to August 9, 2014, the defendant had told her about an incident in which he damaged a number of automobiles with a crowbar. He explained that he had lost his wallet containing rents that had been paid to him as the reason for this conduct. At the conclusion of Wilma's testimony, the court provided the jury with a limiting instruction with respect to his conduct toward Wilma's father and the smashing of car windows.[19]

         The defendant subsequently testified. He stated that despite never shooting or owning a gun, he had wanted to purchase one for protection. He further testified that, with respect to his relationship with Wilma, they never had a serious argument and that it was a ‘‘pleasant, respectful [relationship] from both sides.'' He also stated that prior to January, 2015, he never verbally threatened or physically abused her. The defendant indicated that in January, 2015, he was very lonely and depressed, drinking heavily, and had contemplated taking his own life. On January 16, 2015, after drinking alcohol and feeling resentment toward Wilma for ‘‘disappearing'' from his ...


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