State v. Brown

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STATE v. BROWN—DISSENT

SHELDON, J., dissenting. The majority has rejected

the claim by the defendant, Christopher Brown, that

the trial court erred in admitting evidence of his prior

involvement with his alleged accomplice and coconspir-

ator, Frederick Johansen, in committing certain Litch-

field car burglaries to prove his motive and intent to

commit the offenses charged against him in this case on

two related grounds: first, that the challenged evidence

tended logically to prove his motive and intent to com-

mit the charged offenses; and second, that the probative

value of such evidence on those issues outweighed its

prejudicial effect, as measured by the risk that it would

cause his jury to find him guilty on a basis other than

his proven guilt. Because I cannot accept either of these

conclusions, I respectfully dissent.

The majority sets forth the correct rules and princi-

ples under which the defendant’s claim must be ana-

lyzed. ‘‘As a general rule, evidence of guilt of other

crimes is inadmissible to prove that a defendant is guilty

of the crime charged against him. State v. Harris, 147

Conn. 589, 599, 164 A.2d 399 [1960]. State v. Fredericks,

149 Conn. 121, 124, 176 A.2d 581 (1961); McCormick,

Evidence (2d Ed. 1972) § 190; 1 Wharton, Criminal Evi-

dence (13th Ed.) § 170. The rationale of this rule is to

guard against its use merely to show an evil disposition

of an accused, and especially the predisposition to com-

mit the crime with which he is now charged. See State

v. Williams, 190 Conn. 104, 108, 459 A.2d 510 (1983);

State v. Howard, 187 Conn. 681, 684, 447 A.2d 1167

(1982); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d

382 (1982); State v. Barlow, 177 Conn. 391, 393, 418

A.2d 46 (1979); 1 Wigmore, Evidence (3d Ed.) §§ 215–18.

. . . State v. Braman, 191 Conn. 670, 675, 469 A.2d 760

(1983). The fact that such evidence tends to prove the

commission of other crimes by an accused does not

render it inadmissible if it is otherwise relevant and

material. Id.; State v. Ibraimov, supra, 352; State v.

Hauck, 172 Conn. 140, 144, 374 A.2d 150 (1976); State

v. Marshall, 166 Conn. 593, 600, 353 A.2d 756 (1974).

Such evidence is admissible for other purposes, such

as to show intent, an element in the crime, identity,

malice, motive or a system of criminal activity. State

v. Ibraimov, supra, 352; State v. Falby, 187 Conn. 6, 23,

444 A.2d 213 (1982); State v. Brown, 169 Conn. 692,

701, 364 A.2d 186 (1975).

‘‘Our analysis of whether evidence of the uncharged

misconduct is admissible is two-pronged. First, the evi-

dence must be relevant and material to at least one of

the circumstances encompassed by the exceptions to

the propensity rule. Second, the probative value of such

evidence must outweigh the prejudicial effect of the

other crimes evidence. State v. Braman, supra, 191

Conn. 676; State v. Howard, supra, 187 Conn. 685; State

v. Ibraimov, supra, 187 Conn. 352; State v. Onofrio,

179 Conn. 23, 28–29, 425 A.2d 560 (1979). The primary

responsibility for conducting the prejudicial-probative

balancing test rests with the trial court, and its conclu-

sion will be disturbed only for a manifest abuse of

discretion. State v. Morowitz, 200 Conn. 440, 446, 512

A.2d 175 (1986); State v. Mandrell, 199 Conn. 146, 152,

506 A.2d 100 (1986); State v. Shindell, 195 Conn. 128,

136, 486 A.2d 637 (1985); State v. Johnson, 190 Conn.

541, 548–49, 461 A.2d 981 (1983); State v. Tucker, 181

Conn. 406, 416, 435 A.2d 986 (1980); 1 F. Wharton, Crimi-

nal Evidence (13th Ed.1972) § 241. [W]e will indulge in

every reasonable presumption in favor of the trial

court’s ruling. State v. Mooney, [218 Conn. 85, 131, 588

A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116

L. Ed. 2d 270 (1991)]; State v. Sierra, 213 Conn. 422,

435, 568 A.2d 448 (1990); State v. Braman, supra, [677];

State v. Johnson, supra, 549; State v. Howard, supra,

[685]; State v. Ryan, 182 Conn. 335, 337, 438 A.2d 107

(1980).’’ (Internal quotation marks omitted.) State v.

Figueroa, 235 Conn. 145, 161–63, 665 A.2d 63 (1995).

Where I part company with the majority is in its

application of the foregoing rules and principles to the

challenged evidence of the Litchfield car burglaries, as

admitted by the trial court to prove the defendant’s

motive and intent to commit the offenses charged

against him in this case. Although evidence of certain

types of prior misconduct is admissible to prove both

motive and intent, motive and intent are distinct and

different exceptions to the general rule prohibiting the

use of prior misconduct evidence against a criminal

defendant. Therefore, the application of these excep-

tions to the challenged evidence must be separately con-

sidered.

Proof of motive is a well established exception to

the general rule prohibiting the admission of prior mis-

conduct evidence against a criminal defendant when

the probative value of such evidence on that issue out-

weighs its prejudicial effect. Although proof of motive

is not typically required to obtain a criminal conviction,

it can furnish powerful and appropriate evidence of

guilt on the traditional theory that, if the defendant had

a special reason or incentive to commit the charged

offense in the manner alleged and proved—against the

particular victim, to accomplish a particular result, or

otherwise—then it reasonably can be inferred that he

acted in furtherance of that motive by committing that

offense. State v. Lopez, 280 Conn. 779, 795, 911 A.2d

1099 (2007) (prior misconduct that tends to show defen-

dant harbored hostility toward victim of violent crime

admissible to establish motive). Whether the defen-

dant’s motive is one of revenge, self-protection, self-

enrichment or otherwise, evidence of the defendant’s

involvement in prior misconduct tending to establish

that motive is admissible to prove both that he engaged

in the conduct claimed to constitute the charged offense

and that he did so with the intent required for commis-

sion of that offense, provided its probative value on

that issue is found to outweigh its prejudicial effect.

Where, then, the connection between proffered evi-

dence of the defendant’s prior misconduct and his

motive to commit the charged offense is sufficiently

strong that a properly instructed jury can be counted

on to confine its use of the evidence to that purpose,

such evidence is properly ruled admissible on that issue

as an exception to the general rule. See State v. Mar-

shall, supra, 166 Conn. 599–601 (evidence of murder

suspect and murder victim’s joint involvement in notori-

ous gang rape as to which victim had considered coop-

erating with state ruled admissible to prove defendant’s

motive to kill victim).

Proof of intent is also a well established exception to

the general rule prohibiting the use of prior misconduct

evidence to prove the guilt of a criminal defendant.

Such evidence is admissible to prove the defendant’s

intent, provided it is relevant and its probative value

on that issue outweighs any prejudice naturally arising

from its tendency to cause the jury to find the defendant

guilty for reasons other than his proven guilt. Import-

antly, however, evidence admitted under the intent

exception to the general rule can only be used to prove

that, if the defendant engaged in the conduct claimed

to constitute the charged offense, he did so with the

intent required for commission of that offense. State

v. Meehan, 260 Conn. 372, 396, 796 A.2d 1191 (2002)

(emphasizing distinction between using prior miscon-

duct evidence to prove an alleged act and to prove an

alleged intent); see also State v. Baldwin, 224 Conn. 347,

355–56, 618 A.2d 513 (1993) (prior misconduct evidence

irrelevant and inadmissible to prove defendant’s subse-

quent act of possession, but relevant and admissible to

prove intent with which that subsequent act, if other-

wise established, was committed, particularly the

intent to sell); State v. Tucker, supra, 181 Conn. 415

(trial court properly admitted evidence of prior acts of

child abuse against same victim to prove specific intent

to murder and lack of accident, but not to prove act of

murder itself).1 Such evidence cannot be used to prove

that the defendant actually engaged in the underlying,

allegedly criminal conduct, unless it was also admitted

under a different exception to the general rule which

permits substantive use of such evidence to prove the

defendant’s acts as well as his intent due to the direct

relationship between the prior misconduct and the

charged offense. Prior misconduct that has such a direct

relationship to the charged offense as to permit evi-

dence of such misconduct to be used to prove the defen-

dant’s acts as well as his intent includes, for example,

misconduct tending to prove the defendant’s motive to

commit the charged offense; see State v. Marshall,

supra, 166 Conn. 599–601; misconduct tending to prove

that the charged offense was a ‘‘signature crime,’’ com-

mitted in such a distinctive manner as to identify the

defendant as its likely perpetrator; see State v. Figue-

roa, supra, 235 Conn. 163–64; and misconduct tending

to prove that the charged offense was committed as

part of a system of criminal activity. See State v. McFar-

lane, 88 Conn. App. 161, 164–65, 868 A.2d 130, cert.

denied, 273 Conn. 931, 873 A.2d 999 (2005).

Although evidence of prior misconduct that is admit-

ted solely to prove the defendant’s intent cannot law-

fully be used to prove that he actually committed the

acts claimed to constitute the charged offense, such

evidence nonetheless carries with it the risk that,

despite its expressly limited purpose, it will lead the

jury to find that the defendant is a person of bad charac-

ter who has, and has acted on, a propensity or predispo-

sition to commit similar offenses. This problem is

especially significant when, as is often the case, there

are generic, albeit nonsignature, similarities between

the prior misconduct and the charged offense. Great

care must be taken in admitting evidence of prior, unre-

lated misconduct to prove the defendant’s later intent,

for as Professor Tait and Judge Prescott have observed,

‘‘when the prior uncharged misconduct is ‘extrinsic,’

namely, separate and distinct from the crime charged,

the use of uncharged misconduct to prove intent is . . .

practically indistinguishable from prohibited propen-

sity evidence. . . . [T]o use misconduct at one time to

prove an intent to do the same thing at another time

borders on the forbidden theme of ‘once a thief always

a thief.’ ’’ (Citation omitted.) C. Tait & E. Prescott, Con-

necticut Evidence (4th Ed. 2008) § 4.19.6, p. 164.

In light of these concerns, the admission of prior

misconduct evidence solely to prove a defendant’s

intent to commit a charged offense is properly limited

to cases in which there is a genuine dispute as to

whether, if the defendant actually engaged in the con-

duct claimed to constitute the charged offense, he

engaged in such conduct with the mental state required

for conviction of that offense. State v. Gilligan, 92 Conn.

526, 536–37, 103 A. 649 (1918); see also State v. Ves-

sichio, 197 Conn. 644, 664–65, 500 A.2d 1311 (1985),

cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed.

2d 187 (1986). Such is the case, for example, when the

defendant concedes that his allegedly guilty conduct

has been proven, but claims that he engaged in such

conduct by accident or mistake or with some other

innocent purpose. See State v. Perry, 195 Conn. 505,

522, 488 A.2d 1256 (1985) (evidence of other robberies

in which defendant participated probative in negating

his claims of duress and ignorance of companion’s crim-

inal intent). In that event, proof of the defendant’s guilty

purpose when he engaged in similar misconduct in the

past can logically be used to disprove his current claim

of accident, mistake or other innocent purpose when he

so acted in the case at bar without having any prejudicial

impact on the undisputed nonissue of whether or not

he actually engaged in the allegedly criminal conduct.

When, by contrast, there is no genuine dispute that, if

the defendant actually engaged in the conduct claimed

to constitute the charged offense, he did so with the

mental state required for commission of that offense,

evidence of prior misconduct cannot be admitted to

prove his intent because, having no probative value on

that issue, its only logical use by the jury would be to

support the illicit inference that the defendant commit-

ted the charged offense because he had the propensity

or predisposition to do so. See State v. Meehan, supra,

260 Conn. 395–97.

The majority begins its analysis of the relevancy of

the challenged evidence on the issues of motive and

intent by noting, unobjectionably, that intent is an

essential element of each of the crimes with which the

defendant was charged in this case. On this score, it

notes, more particularly, that to convict the defendant

of burglary in the third degree or larceny in the third

degree, the two substantive crimes with which the

defendant was charged as an alleged accessory to

Johansen, the state was required to prove that the defen-

dant acted with the mental state required for commis-

sion of a larceny, which it refers to colloquially as the

intent to steal. It further notes that to convict the defen-

dant of conspiracy to commit burglary in the third

degree or conspiracy to commit larceny in the third

degree, the two remaining, inchoate crimes with which

he was charged as Johansen’s alleged coconspirator,

the state was required to prove that he acted with two

related intents: first, the intent to agree with Johansen

to commit each essential element of the substantive

crime which was the alleged object of the charged con-

spiracy, here, either burglary or larceny, as appropriate

to the charge; and second, as part of its proof of his

intentional agreement with Johansen to commit that

substantive crime—the intent required for commission

of that substantive crime—here, to reiterate, the intent

to steal.

Thereafter, however, instead of explaining how evi-

dence of the defendant’s involvement in the Litchfield

car burglaries tended logically to prove that he acted

with any such necessary intent, by establishing his

motive to act with that intent or otherwise, the majority

addresses the relevancy of the challenged evidence to

the defendant’s motive and intent simply by paraphras-

ing and agreeing with the following argument advanced

by the state: ‘‘[T]he defendant’s prior dealing with

Johansen in the Litchfield car burglaries, which

involved some acts of parallel behavior in terms of the

relationship between Johansen and the defendant in

the manner in which the underlying crimes were com-

mitted, provided some evidence of the defendant’s

motive and intent to commit the subject crimes with

Johansen. We agree with the state.’’

Here, although the majority suggests that there are

certain ‘‘acts of parallel behavior’’ between the defen-

dant’s admitted conduct in Litchfield and his alleged

conduct in Ellington approximately six months later, it

offers no specifics as to what those parallels are or

why, in its judgment, they tend to prove that the defen-

dant had the motive or intent to conspire with Johansen

to commit the crimes charged against him in connection

with the burglary at the Ellington home of Gerald Har-

grave. Instead, it offers only brief, and in my judgment

unconvincing, explanations of its reasoning in reaching

its previously stated conclusions.

As for the defendant’s motive to commit the charged

offenses, the majority adds only that it agrees with the

state’s further argument that ‘‘the admission of evidence

of the defendant’s past misconduct with Johansen pro-

vided some evidence of the defendant’s motive to entice

and conspire with Johansen to commit the Hargrave

burglary and larceny because Johansen was indebted

to the defendant, who had previously posted bail for him

due to past arrests.’’ ‘‘As noted,’’ the majority continues,

‘‘the jury heard from Johansen that he was indebted to

the defendant before [the date of the Hargrave burglary]

February 4, 2010, and that when the defendant con-

spired with him for the commission of the burglary and

larceny, the defendant indicated that he would expect

a small finder’s fee. Although the defendant argues that

there was no evidence that Johansen repaid him,

Johansen’s failure to satisfy that obligation to the defen-

dant serves only to create an implication that the defen-

dant’s financial motive in enticing Johansen may not

have been realistic and that his expectation may not

have been fulfilled.’’ I disagree.

Implicit in the foregoing observations is the sugges-

tion that the defendant’s motive for enticing and con-

spiring with Johansen to commit the Hargrave burglary

was to obtain repayment of a debt which Johansen

owed to him, at least in part, for posting his bail follow-

ing his arrest for the Litchfield car burglaries. Respect-

fully, I believe that this theory is unsupported by the

evidence.

First, although Johansen did indeed state to the police

that at the time of the Hargrave burglary he owed the

defendant money for previously bailing him out of jail,

he never stated that he had incurred any part of that

unpaid debt in connection with the Litchfield car bur-

glaries. The evidence did not show that Johansen was

released on bail after his arrest in Litchfield, much less

that, if he was so released, it was the defendant who

posted his bail. Absent such a connection between the

Litchfield car burglaries and the debt from Johansen

to the defendant, which assertedly motivated the defen-

dant to entice Johansen to commit the Hargrave bur-

glary, evidence of the defendant’s involvement in

committing the Litchfield car burglaries was completely

irrelevant to his motive to recruit and conspire with

Johansen in the manner claimed.

Second, consistent with the absence of any proven

connection between the Litchfield car burglaries and

the debt Johansen owed to the defendant at the time

of the Hargrave burglary, Johansen never claimed,

either in his statement to the police or in his trial testi-

mony, that part of the defendant’s inducement to him

to commit the Hargrave burglary was to lower the

amount or modify the terms of repayment of any such

preexisting debt. Instead, as the majority itself acknowl-

edges, the defendant’s only proposed compensation in

connection with the Hargrave burglary was claimed to

have been a small finder’s fee which he was to have been

given for setting up the burglary and giving Johansen the

opportunity to commit it. Johansen, on the other hand,

was to have kept most of the profits from the burglary

because, as the defendant reportedly put it, Johansen

would be doing ‘‘the dirty work . . . .’’ There was noth-

ing in the evidence to suggest that any part of Johansen’s

small payment to the defendant from the profits of the

Hargrave burglary was to have been made not as a

finder’s fee, but as a partial repayment of Johansen’s

preexisting debt to the defendant for previously bailing

him out of jail.

Third, even if evidence had been adduced at trial to

suggest that part of Johansen’s debt to the defendant

had been incurred when the defendant posted his bail

after the Litchfield car burglaries, such an evidentiary

link between the two crimes, had in fact there been

one, would not have justified the state in introducing

evidence of the defendant’s involvement in committing

those unrelated offenses to prove him guilty of the

Hargrave burglary. The complete story of the defen-

dant’s alleged recruitment of Johansen to commit the

Hargrave burglary in order to repay a debt he owed to

the defendant for posting his bail in connection with

the Litchfield car burglaries could readily have been

told in all necessary detail without revealing that the

defendant had played any role in committing the Litch-

field car burglaries. For all of these reasons, I disagree

with the majority that the defendant’s involvement in

the Litchfield car burglaries had any logical tendency

to prove that the defendant had a debt repayment

motive for enticing and conspiring with Johansen to

commit the Hargrave burglary.

Alternatively, the majority submits that the evidence

was relevant to prove the defendant’s intent. The major-

ity’s only explanation of its reasoning as to its asserted

relevancy for this purpose appears in footnote 9 of its

opinion, as follows: ‘‘In the case at hand, evidence of

the defendant’s past relationship with Johansen in the

commission of the Litchfield car burglaries was relevant

to the issue of intent. That is, such evidence is not

admitted to prove relationship as an end; rather, the

relationship between the defendant and another actor

as past misconduct is some evidence of the defendant’s

intent to conspire with that same person. Contrary to

the defendant’s claim, the evidence is not admitted to

prove the defendant’s propensity to commit crimes;

rather, it provides some evidence of an intent to form

a conspiracy with that particular person.’’ I do not agree.

Here, as previously noted, although the majority sug-

gests that there are ‘‘certain parallels’’ between the

defendant’s admitted conduct in Litchfield and his

alleged conduct in Ellington approximately six months

later, it offers no specifics as to what those parallels

might be or why, in its judgment, they tend to prove

that the defendant intended to conspire with Johansen

to commit the crimes charged against him in connection

with the Hargrave burglary. This, I think, is not surpris-

ing, for there is no direct connection between the Litch-

field car burglaries and the Hargrave burglary, and the

only parallels between them are very general and super-

ficial, while the distinctions between them are apparent

and very significant. Both criminal episodes, to be sure,

involved break-ins and thefts, generic burglaries and

larcenies. As previously noted, however, the Litchfield

car burglaries targeted cars of unknown victims for

random valuables, while the Hargrave burglary targeted

the residence of a known victim, Hargrave, for prescrip-

tion drugs and, ultimately, household electronic equip-

ment. Both episodes, moreover, were allegedly

committed by Johansen as a principal offender with

the defendant as his accessory. The Litchfield car bur-

glaries, however, involved the defendant as an active

participant in the commission of crimes proposed to

him by Johansen, whereas the Hargrave burglary alleg-

edly involved the defendant only as an absent setup

man for a break-in that he had allegedly proposed to

Johansen. There was thus nothing about the manner

in which the two sets of crimes were instigated or

perpetrated that supported the logical inference that,

if the defendant committed the former, then logically

he intended to commit the latter. At most, evidence of

the defendant’s involvement in committing the Litch-

field car burglaries tended to show that he was a thief,

who had previously committed property crimes of the

same general sort together with Johansen.

Reducing the majority’s explanation for its contrary

conclusion to its essence, one finds a single troubling

rationale: if, on a prior occasion, in different circum-

stances, the defendant and Johansen conspired

together to commit the Litchfield car burglaries, then

logically it can be inferred from their prior relationship

that they later renewed or continued that relationship

by conspiring once again, six months later, to commit

the otherwise unrelated Hargrave burglary and larceny.

That inference, however, is nothing more than an infer-

ence of guilt based upon propensity or predisposition,

under the forbidden logic of ‘‘once a thief, always a

thief.’’

The challenged evidence does not tend to prove that

the defendant intended to steal property from Hargrave,

as required to convict him of each charged offense, nor

does it tend to prove his alleged intent to agree with

Johansen to commit all of the essential elements of

burglary or larceny, as required to convict him of con-

spiracy to commit either such substantive offense in this

case. Instead, it bears only on the defendant’s identity as

one of the perpetrators of the charged offenses on the

theory that since he once before conspired with

Johansen to commit generically similar crimes, then he

intended to do so again in this case.

This is not a case in which there is a genuine dispute

as to whether, if the defendant engaged in the conduct

claimed to constitute the four charged offenses, he

acted with the intent required for commission of any

such offense. According to Johansen’s police statement,

the defendant contacted him with information that the

Hargrave home was full of prescription drugs and other

valuables which he could simply go in and take on the

date of the burglary, that Hargrave, who was dying,

would not be home at that time, and that the defendant

would arrange to have the door to the home left open

for him. Johansen further stated that the defendant

told him that if he agreed to do ‘‘the dirty work’’ by

committing the break-in and theft of Hargrave’s prop-

erty, he could keep most of the profit as long as he

paid the defendant a small finder’s fee. If the defendant

engaged in such conduct, as alleged, then surely he

did so with the intent to steal Hargrave’s property, for

otherwise he would not have made plans for its removal

in secret or referred to the break-in and taking of prop-

erty as ‘‘the dirty work . . . .’’ If, by the same token,

the defendant agreed with Johansen to commit the pro-

posed crimes in order to realize a profit they would

later share, then just as surely his agreement with

Johansen to commit the resulting burglary and larceny

was intentional, for he obviously had the financial

incentive to work together with Johansen to commit

those crimes.

There is nothing in the record, moreover, to show

that the defendant ever engaged in any ambiguous,

potentially incriminatory conduct in relation to the Har-

grave burglary which he later claimed to have engaged

in by accident or mistake or without a guilty purpose.

He was never seen in Johansen’s company at any time

before, during or after the break-in, and was never

shown to have possessed or been in the presence of

the fruits or instrumentalities of the break-in, either

before or after its occurrence. Most significantly, he

never claimed or was shown to have had any potentially

innocent discussion with or in the presence of Johansen

concerning Hargrave’s illness or absence from his

home, much less the presence in the home of drugs or

electronic equipment, that might have given Johansen

the incentive to commit the ensuing burglary and lar-

ceny entirely on his own initiative. Had he so claimed,

then evidence of his and Johansen’s prior misconduct

in Litchfield might conceivably have been relevant to

rebut the defendant’s claim of innocence when dis-

cussing what amounted to an available opportunity to

commit, in the case at bar, a potentially profitable break-

in. Here, however, the defendant consistently denied

all involvement in planning, setting up or otherwise

facilitating the Hargrave burglary, innocent or other-

wise, and thus never defended himself against any of

the offenses charged against him based on a claim of

accident, mistake or other innocent purpose, which

evidence of his prior misconduct in similar circum-

stances might appropriately have been used to rebut.

In short, this is not a case in which evidence of such

misconduct shed any light at all on the defendant’s

intent to commit the Hargrave burglary.

Concluding, as I have, that evidence of the defen-

dant’s involvement in the unrelated Litchfield car bur-

glaries fails to support a logical inference of his motive

or intent to commit or conspire with Johansen to com-

mit the Hargrave burglary, I must next determine if

the prejudicial effect of such evidence outweighed its

probative value. The majority focuses its discussion of

prejudice on factors affecting the admissibility of prior

misconduct evidence when it is shown to have at least

some discernible relevance to issues potentially justi-

fying its admission under one or more established

exceptions to the general rule. When it does, of course,

the question presented for the court’s consideration

is whether it should be excluded despite its logical

relevance because of its collateral tendency to arouse

the jury’s passions, to waste its time, to divert its atten-

tion from the central issues of the case or unfairly to

surprise the party against whom it is offered. State v.

James G., 268 Conn. 382, 398, 844 A.2d 810 (2004). The

majority concludes that the trial court did not abuse

its discretion in determining that the probative value

of the evidence outweighed its prejudicial effect.

I disagree with the majority’s conclusion because, as

previously explained, I reject its underlying premise

that the evidence had any relevance at all on the limited

issues of motive and intent for which it was admitted.

The prejudice arising from the admission of such evi-

dence in the absence of any such potentially appropriate

use was simply and obviously its tendency to support

the forbidden inference that the defendant is a person

of bad character who has the propensity or predisposi-

tion to commit similar crimes. I conclude that the evi-

dence should not have been admitted because its

significant prejudicial effect far outweighed its nonexis-

tent probative value on the issues of motive and intent.

Having concluded that the court improperly admitted

evidence of the defendant’s prior misconduct and that

the probative value of the evidence did not outweigh

its prejudicial effect, I turn finally to the question of

whether the court’s decision constituted harmful error.

I conclude that it did.

‘‘When an improper evidentiary ruling is not constitu-

tional in nature, the defendant bears the burden of dem-

onstrating that the error was harmful . . . . [W]hether

[the improper admission of a witness’ testimony] is

harmless in a particular case depends upon a number

of factors, such as the importance of the witness’ testi-

mony in the prosecution’s case, whether the testimony

was cumulative, the presence or absence of evidence

corroborating or contradicting the testimony of the wit-

ness 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 [improperly admitted]

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. Favoccia,

306 Conn. 770, 808–809, 51 A.3d 1002 (2012). On the

contrary, ‘‘[a]ny improper evidence that may have a

tendency to . . . influence the judgment . . . of the

jury . . . cannot be considered as harmless.’’ (Internal

quotation marks omitted.) State v. Onofrio, supra, 179

Conn. 32.

The defendant argues that the evidence in this case

was not particularly strong, and that without the addi-

tional, improperly admitted evidence of his prior mis-

conduct, the jury likely would not have returned a guilty

verdict against him. He claims that the jury found him

guilty not on the evidence of his guilt in the Hargrave

burglary, but rather on the illicit inference of his propen-

sity or predisposition to commit property crimes based

upon the evidence of his prior misconduct. I agree with

the defendant.

The state’s evidence linking the defendant to the

charged crimes was weak. Over the course of three days

of trial, the state presented the testimony of thirteen

witnesses, eleven of whom in no way implicated the

defendant in the Hargrave burglary2 and two of whom—

Johansen and Frederick Colby—recanted their prior

written statements insofar as they had implicated the

defendant in the Hargrave burglary.3 In light of the mani-

fest weakness of the state’s case,4 it is not surprising

that it devoted substantial time in the presentation of

evidence and final argument to the improperly admitted

evidence of the defendant’s prior misconduct. The

state’s evidence proving the defendant’s and Johansen’s

joint commission of the Litchfield car burglaries was

lengthy and detailed. It consisted of three live witnesses

who testified over a period of two trial days and read

two complete witness statements into the record. In

all, such evidence of the defendant’s involvement in the

Litchfield car burglaries consumed forty-five pages of

trial transcript.

Moreover, in its closing argument, the state specifi-

cally argued to the jury the impact of the improperly

admitted evidence of the defendant’s prior misconduct

as follows: ‘‘If you recall, this case has some similarities

to the Litchfield case. Six months before this happened,

in August of 2009, the defendant and Johansen are

arrested for breaking into ten cars. And you do have a

copy of the defendant’s statement about that incident.

‘‘Specifically, the defendant states that a person by

the name of Jeff . . . solicits him, calls him and says,

I need you to break into some trucks and steal some

chain saws. Jeff also says I’ll make sure that the doors

to the trucks are left open and the defendant could steal

those chain saws. And the defendant was supposed to

get three thousand dollars for stealing the chain saws

once he brought them back to Jeff . . . .

‘‘However, when they arrived to the scene and tried

to get into these trucks for this particular tree service

company, the trucks were left open, but there were no

chain saws.

‘‘That is when they moved on to plan b. . . .

Johansen and the defendant decide, we’ll break into

some cars and make money that way. And so . . .

Johansen goes to the different areas after . . . the

defendant . . . drops him off at one location, breaks

into cars. He gets back inside the vehicle, and then they

drive to another location.

‘‘And it was at that point that . . . Johansen is

caught, and he gives a statement to the police, and he

also implicates the defendant. And the defendant is

eventually arrested. . . .

‘‘Six months later, February 4, 2010—in that area—

the defendant now is the one making the solicitation.

He requests that . . . Johansen break into the home

to steal Percocets and Oxycontin and anything else

he wanted.

‘‘Just like Jeff, he tells him when to go, February 4.

Just like Jeff, he tells him he would arrange to have

someone leave the door open. And he tells . . .

Johansen . . . that he . . . could profit from breaking

into the home.

‘‘By this point, the defendant has a mistaken belief

that as long as someone else committed the criminal

activity, he can’t get into trouble. The laws of our state

hold the planner of a criminal agreement—of an

agreement to commit a crime, accountable, just as the

one who actually does it.’’

The theme throughout the state’s closing argument

was that the defendant mistakenly believed that as long

as Johansen did the ‘‘dirty work,’’ he would not be found

guilty of conspiracy to commit or accessory to burglary

or conspiracy to commit or accessory to larceny.5 This

use of the prior misconduct evidence, as argued by the

state in its closing argument, amounted to nothing more

than a claim that if the defendant committed a similar

crime with Johansen in the past, he likely committed

such a crime with him on this occasion, in effect show-

ing that he is the sort of person who would do so. Not

only was this evidence not admitted for that purpose

but it was not admissible for that purpose because the

crimes were not shown to have been committed as part

of a common scheme or plan or to have had such unique

commonalities between them as to make proof of the

commission of the one crime evidence of identity as

the perpetrator of the other. The Litchfield car bur-

glaries were not committed pursuant to a common

scheme or plan for the obvious reason that the alleged

plan to commit those crimes was not concocted until

the defendant and Johansen found no chain saws in

the truck that had been left unlocked for them. The

whole purpose of the car burglaries was for Johansen

‘‘to make some real money’’ to pay for the gas that

he had used to drive his car to Litchfield that night.

Meanwhile, the Hargrave burglary, as described in

Johansen’s statement, was not conceived of or under-

taken for any purpose related to the Litchfield car bur-

glaries. The crimes were not signature crimes,

moreover, because they were committed in different

ways, against different kinds of victims, in different

communities, and had little else in common except the

technical names of the offenses allegedly committed

and the identities of Johansen and the defendant as

two of their alleged perpetrators.

Against this background, the harm suffered by the

defendant was substantial. The jury’s attention was

directed at trial and in the state’s closing argument to

evidence that showed that the defendant was a person

who had previously committed the Litchfield car bur-

glaries, thus suggesting the defendant’s propensity or

predisposition to commit similar crimes, upon which

the jury relied, substantially affecting the verdict. From

this inference, the jury was tempted to find the defen-

dant guilty based on the illicit inference that he had

acted in accordance with his propensity or predisposi-

tion. This is precisely the type of inference that is

intended to be avoided by the general rule prohibiting

evidence of a defendant’s prior uncharged misconduct,

as it ‘‘borders on the forbidden theme of ‘once a thief

always a thief.’ ’’ C. Tait & E. Prescott, supra, § 4.19.6,

p. 164.

It is true, of course, that the trial court issued repeated

curative instructions to the jury that the disputed evi-

dence concerning the Litchfield car burglaries was to

be considered only on the issues of motive and intent,

and that if the jury found that it had no relevance to

those issues, then it was to be disregarded. In addition,

the court specifically instructed the jury that the evi-

dence was not to be used as a basis for inferring that

the defendant was a person of bad character. Notwith-

standing such instructions, I conclude that the court’s

error in admitting the disputed evidence was not harm-

less. I reach this conclusion for two reasons. First, the

challenged evidence was so extensive and so centrally

featured in the state’s evidence and closing argument

that it would have been virtually impossible for the jury

to ignore. Second, in the absence of any explanation

from the court as to how precisely the evidence could

have been used on the issue of intent, I think it is highly

likely that the jury used the evidence precisely as the

state argued it to them and of which the majority has

approved, for the illicit purpose of inferring that if he

once agreed with Johansen to commit certain generi-

cally similar property crimes, then he likely did so here

as well.

In summary, I conclude that the prior misconduct

evidence was improperly used to support the illicit

inference that the defendant committed the Hargrave

burglary because, as shown by his involvement in the

Litchfield car burglaries, he had a propensity or predis-

position to commit such crimes. Because, for that rea-

son, there can be no substantial assurance that the

challenged evidence did not affect the jury’s verdict, I

would reverse the defendant’s conviction on all counts

and order a new trial.

1

Professor Wigmore has described the proper use of evidence of prior

bad acts or offenses admitted to show intent as follows: ‘‘It will be seen

that the peculiar feature of this process of proof is that the act itself is

assumed to be done,—either because (as usually) it is conceded, or because

the jury are instructed not to consider the evidence from this point of view

until they find the act to have been done and are proceeding to determine

the intent. . . . [T]he attempt is merely to discover the intent accompanying

the act in question . . . .’’ (Footnote omitted.) 2 J. Wigmore, Evidence

(Chadbourn Rev. Ed. 1979) § 302, p. 245.

2

On the first day of trial, the state presented five witnesses, none of whom

implicated the defendant in the burglary. Norma Hargrave’s only testimony

regarding the defendant was that she knew him as her nephew’s son. Gerald

Hargrave testified that he did not know the defendant. James Hargrave

testified that he knew the defendant only as his ‘‘relative.’’ Ellen Riemer

testified that on the day of the burglary, she was driving home and saw two

‘‘young men’’ in their ‘‘late teens to mid-twenties,’’ who appeared to be

securing a tarp to an older white sedan and ‘‘stuffing things under’’ it, but

did not identify the defendant as one of these two men. Kozubenko testified

that he knew the defendant through other friends, but not closely, and at

no time during his testimony did he implicate the defendant in the burglary.

Moreover, Kozubenko specifically stated that the defendant was not present

at Hargrave’s home at the time of the burglary and that he did not speak

to the defendant on the day of the burglary.

On the second day of trial, in addition to Johansen and Colby, the state

called Robert Given, a resident state trooper in Ellington, who testified that

he had assisted Ellington Resident State Trooper Veronica Carpenter in the

execution of the warrant to search Kozubenko’s residence for the items

stolen from Hargrave’s home, but did not offer any evidence about the

defendant’s alleged involvement in the burglary of Hargrave’s home.

Similarly, none of the state’s witnesses on the third day of trial implicated

the defendant in the Hargrave burglary. Carpenter read Colby’s and

Johansen’s recanted statements into the record in their entirety. Ellington

Resident State Trooper Bart Alexander briefly testified that he was one of

the officers who first responded to the report of the burglary of Hargrave’s

home, but did not testify as to the defendant’s alleged involvement in the

burglary. Steven Koss of the Manchester Police Department testified about

his oral interviews of Colby and Johansen regarding the burglary of Har-

grave’s home and testified that both Colby and Johansen mentioned the

involvement of a ‘‘cousin’’ in the Hargrave burglary, but could not recall if

either of them ever mentioned the defendant by name.

3

Contrary to his written statement to the police, in which he had impli-

cated the defendant in setting up the burglary, Johansen testified that the

defendant was not involved in the burglary, did not advise him that there

would be drugs in Hargrave’s home, and did not tell him that the house

would be left unlocked for him on February 4, 2010. Like Johansen, Colby,

at trial, recanted that portion of his written statement in which he had

implicated the defendant in the burglary. Colby explained that he ‘‘didn’t

know anything about’’ the burglary and ‘‘didn’t even have a statement to

give without [Johansen] telling [him]’’ the names of those allegedly involved.

4

The lack of evidence presented to the jury supporting the state’s theory

of the case is particularly noteworthy. Specifically, the state’s theory that

the defendant conspired with Johansen by informing him that there would

be ‘‘piles of drugs’’ at Hargrave’s home and that Johansen would be able to

enter the home on February 4, 2010, because the defendant would have

someone leave the door open, is unsupported by the evidence. To the

contrary, Johansen and Kozubenko arrived at the home on that date not

only to find the doors and windows locked, but also rid of drugs. There

also was no evidence supporting the state’s theory that the defendant had

conspired with Johansen in order to receive a finder’s fee or repayment for

an outstanding debt owed to him. No evidence was presented establishing

that after the burglary, Johansen gave the defendant any amount of money

or stolen goods as payment for any purpose—either as a finder’s fee or as

a partial payment for previously bailing him out of jail. There also was no

evidence that the defendant was ever present at Hargrave’s home on the

day of the burglary.

Similarly, none of the state’s forty-seven photographic exhibits tended to

show the defendant’s presence at Hargrave’s home. In fact, the only evidence

that ever implicated the defendant in the burglary was the initial statements

of Johansen and Colby, which were recanted in relevant part at trial.

5

The state also argued to the jury that the live testimony of Johansen and

Colby as to the defendant’s noninvolvement in the burglary was unreliable

because ‘‘they seem to have a poor recollection of what took place when

the state would ask them questions about the crime,’’ and they ‘‘testified in

a poor manner’’ by not ‘‘look[ing] up when answering any of the questions’’

and mumbling. The state also argued to the jury that Johansen and Colby

‘‘[b]oth had a strong bias to testify falsely on behalf of the defendant’’

because ‘‘Johansen owed the defendant money for bailing him out’’ and is

the defendant’s first cousin, and that Colby ‘‘had a strong bias to lie’’ because

the defendant ‘‘is, again, a good friend of his.’’ The state claimed that ‘‘both

of these individuals . . . weren’t concerned about the consequences for

lying on the [witness] stand because they are already incarcerated.’’ The state

also asserted that Colby’s and Johansen’s ‘‘testimony was unreasonable,’’ in

that they claimed to have been high when they gave their statements, but

testified that portions of their statements still should be believed, even

though some other portions implicating the defendant were false.