DiPENTIMA, C. J.
The defendant, Rashid A. Johnson, appeals from the judgment of conviction, rendered following a jury trial, of murder in violation of General Statutes § 53a-54a (a), felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) and carrying a pistol without a permit in violation of General Statutes § 29-35.
The evidence at trial revealed the following facts. On October 21, 2012, at 7:50
On the same date, at approximately 8:02 p.m., police received a report that the defendant walked into Yale-New Haven Hospital, Saint Raphael Campus, with a gunshot wound to his left knee.
Detective Nicole Natale of the New Haven Police Department, who had been investigating the death of Garcia, went to the hospital to determine if the shootings of Garcia and the defendant were related. The defendant told Natale that he had been shot in front of the Southern Hospitality Soul Food restaurant on the corner of Whalley and Ellsworth Avenues, and that he had decided to travel on foot to the hospital because he had no cell phone to call for assistance. Detectives, however, examined the hospital surveillance camera footage, which showed the defendant arriving at the emergency room in an automobile. A subsequent investigation led police to the automobile owner, Tywan Samuels, who acknowledged that he had picked up the defendant on Norton Street and had driven him to the hospital on the evening of October 21, 2012.
On October 22, 2012, detectives interviewed Fernando Perez Morales (Perez), a resident of Brendan Towers, who was with Garcia moments before his death. During that interview, Perez provided the following information. On the morning of October 21, 2012, Perez bumped into Garcia in Brendan Towers at which time Garcia told him that he would call him later to come upstairs to his apartment to smoke marijuana together. When Garcia later called Perez, Perez left his first floor apartment and met Garcia in the hallway of the second floor. When Perez arrived, Garcia told him that he was meeting someone who was coming to purchase marijuana from him. Garcia explained that he wanted to have someone with him because he was concerned. When the customer arrived, Garcia was talking to someone who had called his cell phone. Perez described the customer as a young black man who was in his late teens to mid-twenties, stood several inches taller than Perez' height of five feet ten inches and was wearing a black hooded sweatshirt with a Monster Energy
During the interview, police showed Perez a photographic array to see if he could identify the man with the gun. Perez said he was not certain which photograph showed the man with the gun, but that photograph number three, which was a photograph of the defendant, looked most like him. During his trial testimony, Perez was also unable to say whether the defendant was the man he had seen with the gun and testified that he did not see the man fire the gun.
On October 23, 2012, after being released from the hospital, the defendant voluntarily went to the police station with detectives who conducted a video recorded interview. During the interview, the defendant was shown a photograph of Garcia in response to which he denied knowing Garcia and having any dealings with persons in the Brendan Towers. Next, the defendant denied having a cell phone, but provided the police with a number after telling them that he had lost the phone on the morning of October 21, 2012. Shortly after the defendant left the police station at noon, his cell phone, which had been inactive during his hospitalization, was activated and used to place a call to a phone that was registered to the mother of a female acquaintance of the defendant. In addition, the police obtained cell phone records from the defendant's cell phone that revealed several outgoing and incoming calls throughout the entire day of October 21, 2012. The cell phone records also confirmed that there was a cell phone call between the defendant and Garcia moments prior to the murder. Moreover, detectives interviewed Garcia's father who, after being shown seven photographs, identified the photograph of the defendant as a person who had stayed at Garcia's apartment in Brendan Towers in the past.
After further investigation, on May 6, 2013, the police arrested the defendant pursuant to a warrant charging him with Garcia's murder. In February, 2014, an intelligence officer employed by the Department of Correction reviewed a letter that had been handwritten by the defendant while he was incarcerated at the Northern Correctional Institution. The letter was dated February 6, 2014, and addressed to Christopher Graham by his street name "Ugg" and was contained in an envelope addressed to Graham's girlfriend in New Haven. The letter provided in pertinent part: "They don't got shit. It's just this one dumb ass Poppy
Following a trial, the jury returned a verdict finding the defendant guilty of
The defendant first claims that the trial court committed harmful error in admitting hearsay testimony into evidence. Specifically, the defendant challenges the admission of certain portions of Jackson's testimony in which he stated that no one in the Southern Hospitality Soul Food restaurant reported hearing or seeing gunshots. The defendant claims this statement suggested to the jury that one or more restaurant patrons communicated to Jackson, whether verbally or nonverbally, that they had not heard or seen gunshots fired, which was offered to prove that these patrons had not, in fact, heard or seen gunshots fired.
The following additional facts are relevant to our analysis. As previously noted, Jackson was the police officer who responded to the hospital to investigate the report of a gunshot victim, namely, the defendant. After speaking with the defendant, who reported being shot on Whalley Avenue near the Southern Hospitality Soul Food restaurant, Jackson left the hospital to canvass Whalley Avenue between Ellsworth Avenue and Norton Street in an attempt to locate the crime scene, whether it be "any shell casings from a weapon ... a blood scene ... and [to] ... try to interview any people that may have witnessed something."
During direct examination of Jackson, the prosecutor asked whether he had received any information while canvassing in and around the Southern Hospitality Soul Food restaurant. In response, Jackson began to testify: "The only information I got was somebody put" before he was interrupted by defense counsel's objection. In considering defense counsel's objection, the trial court stated: "Well, I think the answer — the question put can be answered yes or no. Did you get any information? Yes or no?" Jackson then responded in the affirmative. The prosecutor probed further as to Jackson's canvass of the Southern Hospitality Soul Food restaurant, and asked him whether anyone in the restaurant reported to him that they had heard or seen gunshots.
On appeal the defendant claims that, when considered together, Jackson's testimony that (1) he made an inquiry as to whether any patrons at the Southern Hospitality Soul Food restaurant had heard or seen shots fired; (2) he did receive information in response to that inquiry; and (3) no one responded in the affirmative, described the content of "a statement, other than one made by the declarant while testifying at the proceeding, [which was] offered in evidence to establish the truth of the matter asserted" and was thus inadmissible pursuant to our rules governing hearsay. See Conn. Code Evid. § 8-1 (3).
We begin by setting forth our well established standard of review for the defendant's evidentiary claim. "To the extent [that] a trial court's admission of evidence is based on an interpretation of the Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review.... We review the trial court's decision to admit evidence, if premised on a correct view of the law, however, for an abuse of discretion." (Citation omitted; internal quotation marks omitted.) State v. Foster,
Before analyzing the defendant's claim, we first summarize the relevant law regarding hearsay. "Hearsay means a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted.... Hearsay is generally inadmissible unless an exception in the Code of Evidence, the General Statutes or the rules of practice applies." (Citations omitted; internal quotation marks omitted.) State v. Foster, supra, 293 Conn. at 334, 977 A.2d 199.
For the purpose of resolving this claim we will assume, without deciding, that the trial court improperly admitted hearsay statements through the testimony of Jackson where he stated that no one in the Southern Hospitality Soul Food restaurant reported hearing or seeing gunshots. We thus turn to the question of whether the improper admission of Jackson's challenged testimony amounted to harmful error. "When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful.... We have concluded that a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict.... We previously have considered a number of factors in determining whether a defendant has been harmed by the admission or exclusion of particular evidence. Whether such error is harmless in a particular case depends [on] 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 of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.... Considering these various factors, we have declared that the proper standard for determining whether an erroneous evidentiary ruling is harmless should be whether the jury's verdict was substantially swayed by the error." (Citations omitted; internal quotation marks omitted.) State v. Bonner, 290 Conn. 468, 500-501, 964 A.2d 73 (2009).
We conclude that the defendant has failed to show that the claimed impropriety by the court in admitting hearsay statements was in fact harmful. For the reasons that follow, our conclusion is premised on "the weight of the state's evidence absent the contested testimony, as well as the fact that the challenged testimony largely was cumulative of testimony from others ...." State v. Kerr, supra, 120 Conn.App. at 215, 991 A.2d 605.
Turning first to whether the challenged testimony was largely cumulative, we compare the testimony of Natale, who also canvassed the area of Whalley Avenue near Brendan Towers in an attempt to locate the crime scene where the defendant alleged he was shot.
On direct examination by the prosecutor, Jackson testified, without any objection, in a very similar fashion. Specifically, Jackson testified that he did not find any evidence of cartridge casings, expended bullets, a weapon or blood in the location the defendant alleged he was shot.
From our review, it is apparent that the testimony from Natale and the unobjected to testimony from Jackson is largely corroborative, e.g., despite two canvasses of the area by two different groups of police officers, the defendant's account of being shot on Whalley Avenue was not substantiated. Moreover, even without Jackson's challenged testimony, the jury might reasonably and logically have found from the testimony from Natale and the unobjected to testimony from Jackson
In assessing the defendant's claim of harm, we look, as well, to the strength of the state's case absent the disputed statements. Our review of the record convinces us that the state presented a substantial amount of evidence tying the defendant to the crimes charged. As noted previously, the state submitted evidence from which the jury reasonably could have found that: (1) the defendant suffered a gunshot injury on the same night, at approximately the same time and that he arrived wounded at a hospital near to where Garcia was murdered;
The defendant argues, nevertheless, that due to the weakness of the state's case, Jackson's testimony that no patrons at the restaurant reported hearing or seeing gunshots improperly influenced the jury. Specifically, the defendant claims that the improperly admitted hearsay statements in Jackson's testimony were the state's strongest evidence supporting its position that the defendant had lied about where he was shot, as there was no evidence that a witness positively identified the defendant as having been at the scene of the crime, in possession of a gun or shooting Garcia. We disagree.
Although the record reflects that Perez could not identify the defendant when he was shown a photographic array by police, that he was unable to identify the defendant in court and that the DNA evidence did not specifically link the defendant to the victim or the crime scene at Brendan Towers,
In light of the foregoing, the challenged testimony from Jackson was "not likely to have distorted the jury's perception of the remaining evidence ... or to have affected the outcome of the trial." (Citation omitted.) State v. Carpenter, 275 Conn. 785, 840, 882 A.2d 604 (2005), cert. denied, 547 U.S. 1025,
The defendant next claims that the trial court erred in excluding evidence that the police failed to properly investigate another party whom they considered a suspect in this case. Specifically, the defendant argues that he sought to introduce evidence that (a) the police continued to investigate Carmichael as a suspect after the defendant's arrest and (b) the police failed to test Carmichael's hands and clothing for gunshot residue. This evidence, the defendant asserts, would reveal deficiencies in the police investigation, giving rise to reasonable doubt as to his guilt. The defendant further contends that the trial court's error in excluding this evidence violated his right to present a defense pursuant to the sixth and fourteenth amendments of the United States Constitution. We disagree.
The following facts and procedural history are relevant to our resolution of this claim. At trial, the state called as a witness Carmichael, who lived in an apartment at Brendan Towers at the time Garcia was murdered. Carmichael testified that she was friendly with Garcia and would call him on both of his cell phones. Carmichael further testified that she also knew the defendant, whom she met through Graham. Graham had a key to Carmichael's apartment, and the defendant and Graham spent time in her apartment as well as the area surrounding Brendan Towers. Carmichael also testified that the defendant and Graham knew Garcia. On cross-examination by defense counsel, Carmichael acknowledged that she initially lied to the police about knowing Graham and his having access to her apartment. Carmichael testified that at the time of Garcia's murder, she was out with a friend, Crystal Mimms, who was later questioned by police. Carmichael testified that when she returned to Brendan Towers that evening she encountered police officers. She further acknowledged that she may have called Garcia at 10:45 a.m. on the day of his murder, but she did not recall telling this to the police.
The lead detective in this case, Bertram Ettienne of the New Haven Police Department, testified for the state regarding his interview with and investigation of Carmichael. Ettienne provided the following testimony. On the night of Garcia's murder, Ettienne met Carmichael at Brendan Towers. Carmichael voluntarily consented to a cursory search of her apartment, which did not produce anything of evidentiary value, and Carmichael was not tested for gunshot residue. After the search of her apartment, Carmichael came to the police station where she was interviewed. While being interviewed by Ettienne, Carmichael lied about (1) not knowing the defendant's name when she was shown a photograph of the defendant; (2) being at Brendan Towers at one point during the day of Garcia's murder; (3) having had phone contact with Garcia on the day he was murdered; (4) knowing Graham; and
Ettienne confirmed that the police had obtained cell phone records for Carmichael, Garcia and the defendant. The cell phone records established that Carmichael's phone was used to call Garcia's phone at 8:17 p.m. on the night he was murdered. The cell phone records also showed that during the period which Carmichael claimed to have been with Mimms, Carmichael's cell phone received six telephone calls from Mimms. Ettienne also testified that after the defendant was arrested in May, 2013, the police continued its investigation.
During cross-examination of Ettienne, defense counsel asked: "Then ultimately, you couldn't rule out Rochelle Carmichael as a suspect in this case?" In sustaining the state's objection to defense counsel's question, the court noted that this is the "witness's opinion as to who may be a suspect" which is just an opinion and Ettienne was a fact witness. Defense counsel proceeded to ask Ettienne: "Well, you established that [Carmichael] lied to you," to which Ettienne responded in the affirmative. Defense counsel then asked Ettienne: "You never tested her hands or clothes for gunshot residue, and you did continue to investigate her —" at which point the prosecutor objected and the court sustained the objection.
During closing argument, defense counsel identified Carmichael as a third party culprit. After recounting the foregoing evidence to suggest reasonable doubt existed as to the defendant being the perpetrator of the charged crimes, defense counsel questioned that if Carmichael "had nothing to do with anything, [w]hy is she lying to the police ... about what she did all day? Why did she lie about knowing people.... Why does she inject herself into this?" Moreover, defense counsel highlighted Ettienne's testimony that the investigation was ongoing after the defendant's arrest and he pointed out that the police had obtained cell phone records during the continued investigation. Accordingly, the court provided instructions relating to third party culpability in its final charge to the jury.
On appeal, the defendant claims that the court erred in excluding the evidence that (a) the police had continued to investigate Carmichael after the defendant was arrested and (b) the police had failed to test Carmichael's hands and clothing for gunshot residue, as this evidence demonstrated deficiencies in the police investigation. The state, in turn, contends that the record is inadequate for review of the defendant's claim that the court erred in excluding evidence that the police had continued to investigate Carmichael after the defendant was arrested. The state also argues that the evidence that the police failed to test Carmichael's hands and
"At the outset, we note that our standard of review for the trial court's evidentiary rulings depends on whether the claimed error is of constitutional magnitude.... [I]f an [evidentiary] impropriety is of constitutional proportions, the state bears the burden of proving that the error was harmless beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Randolph, 284 Conn. 328, 377, 933 A.2d 1158 (2007). "We recognize, of course, that a violation of constitutional magnitude may be established even though there has not been a complete abridgement or deprivation of the right. A constitutional violation may result, therefore, when a constitutional right has been impermissibly burdened or impaired by virtue of state action that unnecessarily chills or penalizes the free exercise of the right." (Internal quotation marks omitted.) State v. Jenkins, 271 Conn. 165, 190, 856 A.2d 383 (2004).
As a preliminary matter, we set forth the relevant legal principles that govern the admissibility of evidence regarding the inadequacy of a police investigation. "[T]his court has recognized that defendants may use evidence regarding the inadequacy of the investigation into the crime with which they are charged as a legitimate defense strategy.... Conducting a thorough, professional investigation is not an element of the government's case.... A defendant may, however, rely upon relevant deficiencies or lapses in the police investigation to raise the specter of reasonable doubt, and the trial court violates his right to a fair trial by precluding the jury from considering evidence to that effect." (Citation omitted; internal quotation marks omitted.) State v. Wright, 322 Conn. 270, 282, 140 A.3d 939 (2016).
"A defendant, however, does not have an unfettered right to elicit evidence regarding the adequacy of the police investigation. The reference in [State v. Collins, 299 Conn. 567, 599, 10 A.3d 1005, cert. denied, 565 U.S. 908, 132 S.Ct. 314, 181 L.Ed.2d 193 (2011)] to relevant deficiencies or lapses in the police investigation suggests that the defendant must do more than simply seek to establish that the police could have done more.... Even when such evidence has some probative value, the court must consider whether the probative weight of the ... evidence exceed[s] the risk of unfair prejudice to the [state] from diverting the jury's attention to collateral matters....
"All of these factors must be evaluated by the trial court in determining whether the particular inadequate investigation evidence should be admitted. That evaluation necessarily is framed by the theory of the proffering party. It is well settled that [t]he proffering party bears the burden of establishing the relevance of the offered testimony. Unless a proper foundation is established, the evidence is irrelevant.... Relevance may be established in one of three ways. First, the proffering party can make an offer of proof.... Second, the record can itself be
The defendant first argues that the trial court erred in excluding evidence that the police continued to investigate Carmichael after the defendant was arrested for the charged crimes, and that such error was not harmless beyond a reasonable doubt. Specifically, the defendant asserts that the evidence that the police continued to investigate Carmichael demonstrated deficiencies or lapses in the police investigation that raised a reasonable doubt as to his guilt. We conclude that the defendant failed to preserve this claim of error for appellate review.
"[A] reviewing court may be unable to determine the propriety or effect of the excluded facts unless the substance of the proffered evidence is disclosed in the record." C. Tait & E. Prescott, Connecticut Evidence (5th Ed. 2017), § 1.29.4, p. 82, citing State v. Benedict, 313 Conn. 494, 512-15, 98 A.3d 42 (2014). Accordingly, "[a]n offer of proof is the accepted procedure to preserve the record for appeal if evidence is excluded." C. Tait & E. Prescott, supra, p. 82; see State v. Conrod, 198 Conn. 592, 597-98, 504 A.2d 494 (1986) (noting that offer of proof serves, in part, to create adequate record for appellate review). "An offer of proof, properly presented, serves three purposes. First, it should inform the court of the legal theory under which the offered evidence is admissible. Second, it should inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility. Third, it thereby creates a record adequate for appellate review." (Internal quotation marks omitted.) State v. Conrod, supra at 597, 504 A.2d 494. "Without an adequate record to review the ruling of the trial court, this court must assume that the trial court acted properly." Id., at 598, 504 A.2d 494.
In the present case, Ettienne did not answer the following questions from defense counsel: "Then ultimately, you couldn't rule out Rochelle Carmichael as a suspect in this case" and "You did continue to investigate her." No offer of proof appears in the record thereafter to reveal the content of the testimony the defendant sought to introduce.
The defendant, however, claims that an offer of proof is not necessary to preserve the record after every sustained objection. To support this contention, the defendant relies on our Supreme Court's decision in State v. Barnes, 232 Conn. 740, 748, 657 A.2d 611 (1995), and State v. Santiago, 224 Conn. 325, 330-31 n.6, 332, 618 A.2d 32 (1992), and argues that because the questions at issue were asked during cross-examination, they were leading questions, which by their nature indicate the response that counsel expected to elicit. We disagree.
Contrary to the view of the defendant, "State v. Santiago, [supra, 224 Conn. at 330-31 n.6, 618 A.2d 32], does not support the proposition that no offer of proof was needed to establish the relevance of the testimony sought in the present case. As this court previously explained in State v. Barnes, supra, 232 Conn. at 748, 657 A.2d 611, when we rejected the same proposition, [i]n light of our review of the record in Santiago, we concluded that the defendant's line of inquiry was clearly supported by the evidence and relevant to the witness' bias, despite the fact that the defendant had made no offer of proof.... Thus, in Santiago, the record independently was adequate to establish the relevance of [the] evidence sought to be elicited.... Indeed, in Barnes, the court cited case law that previously established this proposition ... and rejected the propriety of allowing a defendant to attempt to use cross-examination as a tool to investigate purely speculative sources of witness bias, rather than as a tool to discredit testimony on the basis of [an offer of proof, the record itself, or] a preexisting good faith belief that bias existed." (Citation omitted; internal quotation marks omitted.) State v. Benedict, 313 Conn. 494, 514, 98 A.3d 42 (2014).
Here the precluded evidence concerns defense counsel's questions of Ettienne: "Then ultimately, you couldn't rule out Rochelle Carmichael as a suspect in this case," and "You continued to investigate her," which merely called for yes or no responses. Upon the state's objection to both questions, the defendant made no offer of proof as to what evidence he expected to elicit from Ettienne with respect to this line of questioning. The record also does not reflect any information as to how Ettienne would have answered those questions, what details he would have provided in answering those questions or what type of suspect Carmichael was in this case. See id., at 515, 98 A.3d 42. "It is therefore impossible to determine whether those details were so important to the defendant's case that their preclusion ... impaired his constitutional rights." (Internal quotation marks omitted.) Id. Therefore, absent an offer of proof, this court cannot rule on the defendant's claim of error. See State v.
The defendant finally argues that the trial court erred in excluding evidence that the police failed to test Carmichael's hands and clothing for gunshot residue, and that such error was not harmless beyond a reasonable doubt. We disagree that the error, if any, was harmful.
Assuming, without deciding, that the trial court violated the defendant's right to present a defense by excluding evidence that the police failed to test Carmichael's hands and clothing for gunshot residue, we consider whether the error was harmless beyond a reasonable doubt. See State v. Santos, 318 Conn. 412, 425, 121 A.3d 697 (2015). As previously noted, "[i]f the claim is of constitutional magnitude, the state has the burden of proving the constitutional error was harmless beyond a reasonable doubt.... Whether a constitutional violation is harmless in a particular case depends upon the totality of the evidence presented at trial.... If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless.... Whether such error 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 of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.... Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial.... In order to assess the harmfulness of the impropriety, we review the record to determine whether there is a reasonable possibility that the evidence ... complained of might have contributed to the conviction ...." (Citation omitted; internal quotation marks omitted.) Id.
We conclude that the state has proved that any error that the trial court committed in excluding evidence that the police failed to test Carmichael's hands and clothing for gunshot residue was harmless beyond a reasonable doubt. At trial, the state presented a strong case and, even without the expected negative answer in response to defense counsel's question to Ettienne: "You never tested [Carmichael's] hands or clothes for gunshot residue," that evidence was before the jury. Prior to that question, the following colloquy between Ettienne and defense counsel occurred:
The foregoing testimony establishes that the excluded evidence, that police failed to test Carmichael's hands and clothes for gunshot residue, was cumulative of the evidence already before the jury.
The judgment is affirmed.
In this opinion the other judges concurred.