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*********************************************** 
STATE OF CONNECTICUT v. DONALD RAYNOR

(AC 41018)

Keller, Elgo and Eveleigh, Js.

Syllabus

Convicted of the crime of murder in connection with the shooting death of

the victim, the defendant appealed. On appeal, he claimed, inter alia,

that the trial court improperly denied his motion in limine in which he

sought to exclude or to limit the scope of the testimony of S, the state’s

expert witness on firearm and toolmark identification. Specifically, he

claimed that because recent studies and reports had established that

the methodology underlying firearm and toolmark identification was

not sufficiently reliable, the court improperly denied his request for a

hearing, pursuant to State v. Porter (241 Conn. 57), to determine the

reliability of firearm and toolmark identification. Held:

1. The trial court did not abuse its discretion by denying the defendant’s

motion in limine to exclude or limit S’s testimony and request for a

Porter hearing: a Porter hearing to determine the validity of firearm and

toolmark identification was not required, as this court previously has

determined that the science of firearm and toolmark identification is

well established, and although this court’s prior decision predated certain reports and studies, and other certain sources that questioned the

validity of firearm and toolmark identification, those sources did not

overrule or otherwise abrogate the controlling case law in this state;

moreover, although the testimony of S included the flaws and criticisms

of firearm and toolmark identification, to which the jury was free to

give as much or as little weight as it saw fit, the defendant did not

proffer his own expert witness to testify that the science of firearm and

toolmark identification was not reliable.

2. The defendant could not prevail on his claim that the trial court improperly

granted the state’s motion for the admission of uncharged misconduct

evidence related to a shooting that occurred eight months after the

shooting of the victim, the trial court not having abused its discretion

in determining that the probative value of the uncharged misconduct

evidence outweighed its prejudicial effect; the admission of the

uncharged misconduct evidence did not unduly arouse the jury’s emotions because the uncharged misconduct, which involved an attempted

shooting that did not result in any deaths or injuries, was much less

severe than the charged conduct, which involved the shooting death of

the victim, the admission of the uncharged misconduct evidence did

not create a distracting side issue, as the evidence admitted linked an

assault rifle and the perpetrator of the uncharged shooting to the murder

at issue in the present case, the presentation of evidence related to the

attempted shooting did not take up an inordinate amount of time, the

defendant was not unfairly surprised by the admission of the uncharged

misconduct evidence, as it was admitted in the defendant’s prior trial,

which had resulted in a mistrial, and the state had filed a pretrial motion

for admission of uncharged misconduct evidence, and any possible

prejudice was further mitigated by the trial court’s limiting instructions

that the uncharged misconduct evidence was being admitted solely to

establish the identity of the person who committed the crimes alleged

and the availability of the means to commit those crimes.

Argued January 31—officially released May 8, 2018

Procedural History

Substitute information charging the defendant with

the crime of murder, brought to the Superior Court in

the judicial district of Hartford and tried to the jury

before the court, Kwak, J.; verdict and judgment of

guilty, from which the defendant appealed. Affirmed.

Andrew O’Shea, with whom was Damon Kirsch-
baum, for the appellant (defendant).

James A. Killen, senior assistant state’s attorney,

with whom, on the brief, were Gail P. Hardy, state’s

attorney, and Patrick Griffin, state’s attorney, for the

appellee (state).
Opinion

EVELEIGH, J. The defendant, Donald Raynor,

appeals from the judgment of conviction, rendered following a jury trial, of murder in violation of General

Statutes § 53a-54a (a). On appeal, the defendant claims

that the trial court (1) improperly denied the defendant’s motion in limine to exclude or limit the scope

of the testimony of the state’s expert witness on firearm

and toolmark identification, and (2) abused its discretion by granting the state’s motion for uncharged misconduct related to a shooting that occurred

approximately eight months after the events of this

case. We disagree and, accordingly, affirm the judgment

of the trial court.

The following facts, which a jury reasonably could

have found, and procedural history are relevant to this

appeal. The defendant and Jose Rivera1 were members

of the Money Green Bedrock (Bedrock) street gang in

Hartford. The victim was a member of The Avenue,

another Hartford street gang. Bedrock and The Avenue

are rival gangs, and the defendant and Rivera viewed

members of The Avenue as ‘‘the enemy.’’ Prior to the

events giving rise to this case, there were two incidents

between the rival gangs involving the defendant and

the victim. The first incident involved the victim firing

shots at the defendant and another Bedrock member.

The second incident, which occurred approximately

one week prior to the events of this case, involved

the victim spotting the defendant and Rivera on The

Avenue’s territory and subsequently taking a picture of

the defendant’s vehicle leaving the area. Following the

second incident, the defendant stated to Rivera that the

victim ‘‘had to go,’’ which Rivera understood to mean

that the victim ‘‘had to get killed for what he did.’’

During the early morning hours of June 18, 2007, the

defendant called Rivera and stated that he wanted to

find members of The Avenue and test out a .223 caliber

assault rifle. Rivera understood this to mean that,

‘‘[b]asically, he wanted to go look [for] and kill somebody.’’ The defendant picked up Rivera and drove to a

parking lot located behind Bedford Street where there

was an abandoned vehicle in which the defendant and

Rivera stored guns and drugs. The defendant then put

on latex gloves, removed a .223 caliber assault rifle

from the trunk of the abandoned vehicle, and loaded

the rifle. The defendant and Rivera then got back into

the vehicle that they were driving; Rivera drove the

vehicle and the defendant sat in the backseat.

Rivera drove the vehicle around areas that he and

the defendant knew were frequented by members of

The Avenue. While Rivera was driving on Enfield Street,

he informed the defendant that he saw the victim standing on the sidewalk having a conversation with a

woman. The defendant instructed Rivera to go around
the block, and Rivera complied. As Rivera turned back

onto Enfield Street, he lowered the back window and

began to slow down. As the vehicle approached the

victim and the woman, the defendant hung out the back

window and began shooting at the victim. The victim

attempted to run away but made it only three steps

before he fell to the ground. The defendant continued

to fire at the victim while he was on the ground. He

fired at least ten to fifteen shots at the victim, who died

as a result of gunshot wounds to the chest and neck.

In 2008, the police recovered a .223 Kel-Tec assault

rifle in an unrelated investigation. In 2011, Rivera gave

a statement to the police in which he confessed to his

involvement in the victim’s murder and implicated the

defendant. Rivera also identified the .223 Kel-Tec

assault rifle that the police had recovered in 2008 as

the weapon that the defendant used to shoot the victim.

In 2014, the defendant was charged, in a long form

information, with murder in violation of § 53a-54a (a),

conspiracy to commit murder in violation of § 53a-54a

(a) and General Statutes § 53a-48 (a), and criminal use

of a firearm in violation of General Statutes § 53a-216

(a). A trial on these charges commenced in September,

2014, and ended in a mistrial because the jury was

unable to reach a verdict. A second trial commenced

in March, 2015, in which the defendant was charged

only with one count of murder in violation of § 53a-54a

(a). The jury found the defendant guilty, and the court

sentenced him to a total effective sentence of sixty

years of imprisonment. This appeal followed. Additional

facts and procedural history will be set forth as necessary.

I

The defendant’s first claim on appeal is that the court

abused its discretion by denying his motion in limine

in which he sought to exclude or limit the scope of

the testimony of James Stephenson, the state’s expert

firearm and toolmark examiner. The defendant raises

the following arguments in support of this claim: (1)

recent studies have established that the methodology

underlying firearm and toolmark identification is not

sufficiently reliable; (2) the court improperly denied his

request for a hearing pursuant to State v. Porter, 241

Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S.

1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), to determine the reliability of firearm and toolmark identification; (3) the court improperly allowed Stephenson to

opine that various cartridge casings recovered from the

crime scene were fired from a particular firearm; and

(4) the court improperly denied his motion to limit the

scope of Stephenson’s testimony. We disagree.

‘‘It is axiomatic that [t]he trial court’s ruling on the

admissibility of evidence is entitled to great deference.

In this regard, the trial court is vested with wide discretion in determining the admissibility of evidence. . . .
Accordingly, [t]he trial court’s ruling on evidentiary

matters will be overturned only upon a showing of a

clear abuse of the court’s discretion. . . . Because a

trial court’s ruling under Porter involves the admissibility of evidence, we review that ruling on appeal for an

abuse of discretion.’’ (Internal quotation marks omitted.) State v. Legnani, 109 Conn. App. 399, 418, 951 A.2d

674, cert. denied, 289 Conn. 940, 959 A.2d 1007 (2008).

‘‘In [Porter], our Supreme Court held that scientific

evidence should be subjected to a flexible test, with

differing factors that are applied on a case-by-case

basis, to determine the reliability of the scientific evidence. . . . The court, however, did not define what

constituted scientific evidence, thereby allowing the

courts to maintain some flexibility in applying the test.

As a result, a court’s initial inquiry should be whether

the [evidence] at issue . . . is the type of evidence

contemplated by Porter. . . . In Porter, our Supreme

Court noted that some scientific principles have

become so well established that an explicit . . . analysis [under Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469

(1993)] is not necessary for admission of evidence thereunder. . . . Evidence derived from such principles

would clearly withstand a Daubert analysis, and thus

may be admitted simply on a showing of relevance.’’

(Citations omitted; internal quotation marks omitted.)

State v. Legnani, supra, 109 Conn. App. 419.

The following additional facts and procedural history

are relevant to the resolution of this claim. Prior to

Stephenson’s testimony, the defendant filed a motion

in limine in which he requested a Porter hearing to

determine whether the methodology underlying firearm

and toolmark identification was reliable. In the alternative, the defendant sought to limit Stephenson’s testimony so that he could not state his conclusions to a

particular degree of certainty but, instead, would have

been required to state that his conclusions were ‘‘merely

more likely than not . . . correct.’’ In support of his

request for a Porter hearing, the defendant relied on

multiple studies that called into question the scientific

validity of firearm and toolmark identification.2 The

defendant also relied upon United States v. Glynn, 578

F. Supp. 2d 567 (S.D.N.Y. 2008), to support his alternative argument that the scope of Stephenson’s testimony

should be limited to opining that his conclusions were

‘‘more likely than not’’ correct.3

Following argument on the motion, the court denied

the defendant’s motion in limine and request for a Porter

hearing, relying on State v. Legnani, supra, 109 Conn.

App. 399. The court reasoned that firearm and toolmark

evidence is ‘‘forensic science [that] has been well established, and we have a case, [Legnani] . . . which

stands for the proposition that this is not a new science.

Therefore, a Porter hearing is not necessary.’’ The court
also denied the defendant’s request to limit Stephenson’s testimony to state that his conclusions were ‘‘more

likely than not . . . correct.’’

Stephenson subsequently testified before the jury

that it was possible to determine whether the bullets

or cartridge casings recovered from a crime scene could

be identified as having been fired from a particular

firearm. In fact, twelve of the fifteen cartridge casings

recovered from the Enfield Street shooting were ‘‘positively matched’’ to the .223 Kel-Tec assault rifle that

Rivera had identified as the firearm that the defendant

used to shoot the victim. Although the three remaining

cartridge casings were the same size and weight as a

.223 caliber shell casing and contained similar toolmarks, there was not sufficient detail for a positive identification to the particular firearm in evidence. The

examiner determined that the three remaining cartridge

casings produced inconclusive results.

Stephenson also testified regarding the Association

of Firearm and Tool Mark Examiners (association) and

its theory of identification. The association’s theory of

identification is generally accepted in the science of

firearm and toolmark identification, and the Connecticut Forensic Science Laboratory follows the guidelines

from this theory. Stephenson conceded, however, that

recent studies and reports have critiqued the science

of firearm and toolmark identification. Stephenson testified regarding the NAS Report and the Ballistic

Imaging studies; see footnote 2 of this opinion; and

explained that he viewed some, but not all, of the critiques in those studies as valid. Defense counsel also

highlighted the ways in which firearm and toolmark

identification does not follow precisely the scientific

method—i.e., by not protecting against confirmation

bias—and that the association’s theory of identification

is not a completely objective theory.

On appeal, the defendant claims that the court abused

its discretion by denying his motion in limine and

request for a Porter hearing. The defendant argues that

the NAS Report and the Ballistic Imaging studies establish that the methodology underlying firearm and toolmark identification is not reliable, and as a result, the

court should have precluded Stephenson from opining

that particular cartridge casings positively matched the

firearm in evidence. In the alternative, the defendant

argues that the court should have limited Stephenson’s

testimony so that he could opine only that his conclusions were ‘‘more likely than not . . . correct.’’ The

state argues that the court properly relied upon State

v. Legnani, supra, 109 Conn. App. 399, in concluding

that the admissibility of firearm and toolmark identification evidence is well established and, therefore, properly denied the defendant’s motion. We agree with

the state.

This court’s decision in Legnani controls our resolu-
tion of this claim. In Legnani, the defendant requested

that the trial court hold a Porter hearing to determine

whether the comparison between a firearm’s magazine

that was recovered from the defendant’s home and fired

cartridge casings that were recovered from the crime

scene was relevant and supported by a valid methodology. Id., 415–16. The state argued that a Porter hearing

was not necessary, as the evidence fell within the general category of firearm and toolmark identification,

which courts routinely have held admissible. Id., 416.

The trial court held an evidentiary hearing—not a Porter

hearing—during which the state called an expert witness in the field of firearm and toolmark identification.

Id. The defendant did not call any witnesses during the

evidentiary hearing, and the court subsequently denied

the defendant’s request for a Porter hearing. Id., 417.

In so doing, the court stated that it ‘‘need not conduct

a Porter type hearing in this case because the scientific

principles of ballistics and firearms analysis are very

well established and can be admitted on a mere showing

[of] relevance.’’ (Internal quotation marks omitted.) Id.

On appeal, the defendant in Legnani argued that the

trial court improperly denied his request for a Porter

hearing. Id., 415. This court noted that ‘‘[s]everal times

during the cross-examination of [the expert], defense

counsel attempted to inquire into the specific methodology used by [the firearm and toolmark examiner]. The

court precluded defense counsel from delving too

deeply into the specific methodology used, sustaining

the state’s objection that the specific methodology used

pertains to the weight of the evidence and not to the

request for a Porter hearing.’’ Id., 417. This court concluded that ‘‘identifying marks made on the magazine

by the cartridge casings is merely a subset of the science

of firearm and tool mark identification, which has been

well established and admissible evidence under prior

case law. . . . Because identifying the magazine markings is a subset of the well established and admissible

science and practice of firearm and tool mark identification, the court did not have to subject evidence

related thereto to a Porter hearing. As a result, we

conclude that the court did not abuse its discretion in

refusing to hold a Porter hearing.’’ (Citations omitted;

emphasis added.) Id., 420–21.

Legnani is controlling precedent on the issue of

whether the science of firearm and toolmark identification is well established, and thus binds our resolution

of this claim.4 The defendant argues that Legnani is

inapplicable because it predates the NAS Report, the

Ballistic Imaging study, and other sources that question

the validity of firearm and toolmark identification.

Although Legnani was decided prior to these reports

being published, these reports do not overrule or otherwise abrogate the existing case law in this state; nor

do the district court cases or the cases from other states

that the defendant has cited in support of this claim.
More importantly, the defendant did not proffer his own

expert witness to testify that the science of firearm and

toolmark identification is not reliable.

The evidence admitted during the cross-examination

of Stephenson included the flaws and criticisms of firearm and toolmark identification. The jury was free to

give this evidence as much or as little weight as it saw

fit. See State v. Osbourne, 138 Conn. App. 518, 533–34,

53 A.3d 284 (‘‘[i]t is axiomatic that it is the jury’s role

as the sole trier of the facts to weigh the conflicting

evidence and to determine the credibility of witnesses’’

[internal quotation marks omitted]), cert. denied, 307

Conn. 937, 56 A.3d 716 (2012). A Porter hearing to determine the validity of firearm and toolmark identification

was not required. The state had to establish only that

the firearm and toolmark evidence was relevant, which

it did. Therefore, we conclude that the court properly

relied upon Legnani, and did not abuse its discretion

by denying the defendant’s motion in limine to exclude

or limit Stephenson’s testimony.

II

The defendant’s second claim on appeal is that the

court abused its discretion by granting the state’s

motion for the admission of uncharged misconduct evidence. The defendant argues that the probative value

of the uncharged misconduct evidence was outweighed

by the risk of unfair prejudice. The state argues that

the court properly admitted the evidence to establish

identity and means. We agree with the state.

The following additional facts and procedural history

are relevant to the resolution of this claim. Prior to the

start of the second trial, the state filed a motion in

which it sought to introduce uncharged misconduct

evidence related to a shooting on Baltimore Street that

had occurred eight months after the shooting of the

victim. The state argued that the uncharged misconduct

evidence was admissible to establish identity and

means. The defendant opposed this motion, arguing

that the evidence was more prejudicial than probative

because the evidence showed only ‘‘that this gun was

used on a separate occasion potentially by [the defendant] to shoot at another person that he’s not charged

with [shooting] in this case. . . . It’s the very sort of

thing that yields the prejudice/probative . . . calculus

. . . in the prohibition against propensity evidence.

. . . [W]e think the state has everything it needs to

prove the manner and means of the homicide as

charged, [and] that to introduce another shooting, the

gun charged in this case, is prejudicial, and in mar of

the propensity of evidence rule.’’ The court granted the

state’s motion for uncharged misconduct on the basis

of its interpretation of the rules of evidence,5 and concluded that evidence of the Baltimore Street shooting

fell within the identity and means exceptions of § 4-5

(c) of the Connecticut Code of Evidence.6
At trial, Deborah Parker, the target of the Baltimore

Street shooting, testified that at approximately 2:30

a.m., on February 16, 2008, she and Daryl Spence

returned to their residence on Baltimore Street in Hartford, where they resided with their two sons. As Parker

and Spence prepared to exit their vehicle, Parker

noticed two men walking in the street. As the men

approached, one man fired a handgun in Parker’s direction. The other man then raised a rifle and began firing

it in Parker’s direction. Parker took cover underneath

a vehicle and Spence ran away to hide elsewhere. Parker saw the faces of both shooters, which were made

visible due to the streetlight. She also noticed that the

man with the rifle was wearing white or light colored

gloves. Neither Parker nor Spence was injured.

Later that morning, Parker’s sons were looking online

through pictures of a concert that they had attended

the night before. While Parker was passing by, she saw

on the computer screen a photograph of two men,

whom she recognized as the men who had shot at her

just hours before. She identified the defendant as the

man who had shot the rifle in her direction. Parker

testified that she called the detective who was assigned

to investigate the shooting to report the identity of the

shooters. Because the detective never got back to her,

however, she ‘‘left the whole situation alone.’’

In August, 2011, Parker met with a cold case detective

in Hartford to review photographs related to the Baltimore Street shooting. During this meeting, Parker identified the defendant’s picture in a photographic array

and circled it to indicate that he was involved in the

shooting. In a separate photographic array, Parker identified the second shooter as an individual named

Ezekiel.

Stephenson testified regarding the cartridge casings

that were recovered from the Baltimore Street shooting.

There were twenty-two cartridge casings recovered,

seventeen of which were positively matched to the .223

Kel-Tec assault rifle that Rivera identified as the firearm

the defendant had used in the Enfield Street shooting.

See part I of this opinion.

On appeal, the defendant does not challenge the

court’s conclusion that the uncharged misconduct evidence was relevant to establish identity and means.

Accordingly, the only question we must resolve with

respect to this claim is whether the court abused its

discretion in concluding that the probative value of the

uncharged misconduct evidence outweighed its prejudicial effect. The defendant argues that the evidence is

more prejudicial than probative because ‘‘Parker’s identification of the defendant was exceedingly unreliable,’’

that the similarities between the charged and uncharged

conduct render admission of the uncharged misconduct

overly prejudicial, and that the uncharged misconduct
evidence painted the defendant as a ‘‘deranged gunman.’’ We disagree.

‘‘[A]s a general rule, evidence of prior misconduct is

inadmissible to prove that a criminal defendant is guilty

of the crime of which the defendant is accused. . . .

Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal

behavior. . . . On the other hand, evidence of crimes

so connected with the principal crime by circumstance,

motive, design, or innate peculiarity, that the commission of the collateral crime tends directly to prove the

commission of the principal crime, is admissible. The

rules of policy have no application whatever to evidence

of any crime which directly tends to prove that the

accused is guilty of the specific offense for which he

is on trial. . . . We have developed a two part test to

determine the admissibility of such evidence. First, the

evidence must be relevant and material to at least one

of the circumstances encompassed by the exceptions

[set forth in § 4-5 (b) of the Connecticut Code of Evidence].7

. . . Second, the probative value of the evidence must outweigh its prejudicial effect. . . .

Because of the difficulties inherent in this balancing

process, the trial court’s decision will be reversed only

whe[n] abuse of discretion is manifest or whe[n] an

injustice appears to have been done. . . . On review

by this court, therefore, every reasonable presumption

should be given in favor of the trial court’s ruling. . . .

‘‘The well established exceptions to the general prohibition against the admission of uncharged misconduct

[evidence] are set forth in § 4-5 (b) of the Connecticut

Code of Evidence, which provides in relevant part that

[e]vidence of other crimes, wrongs or acts of a person

is admissible . . . to prove intent, identity, malice,

motive, common plan or scheme, absence of mistake

or accident, knowledge, a system of criminal activity,

or an element of the crime, or to corroborate crucial

prosecution testimony.’’ (Citation omitted; footnote

added; internal quotation marks omitted.) State v. Collins, 299 Conn. 567, 582–83, 10 A.3d 1005, cert. denied,

565 U.S. 908, 132 S. Ct. 314, 181 L. Ed. 2d 193 (2011).

‘‘In determining whether the prejudicial effect of otherwise relevant evidence outweighs its probative value,

we consider whether: (1) . . . the facts offered may

unduly arouse the jury’s emotions, hostility or sympathy, (2) . . . the proof and answering evidence it provokes may create a side issue that will unduly distract

the jury from the main issues, (3) . . . the evidence

offered and the counterproof will consume an undue

amount of time, and (4) . . . the defendant, having no

reasonable ground to anticipate the evidence, is unfairly

surprised and unprepared to meet it.’’ (Internal quotation marks omitted.) Id., 586–87.

Our Supreme Court’s decision in State v. Collins,

supra, 299 Conn. 567, guides our resolution of this claim.
In Collins, the trial court admitted evidence of

uncharged misconduct related to another shooting in

which the defendant allegedly was involved. Id., 569–70,

580. The state’s firearm and toolmark examiner testified

that cartridge casings recovered from the scene of the

murder at issue were fired from the same weapon that

had been used in the uncharged crime. Id., 572. The

state argued that such evidence was admissible because

‘‘it linked a gun owned and used by the defendant [in

the uncharged shooting] to the shooting of [the victim]

in this case.’’ Id., 577. The defendant argued that the

admission of such evidence was ‘‘highly prejudicial and

of little probative value,’’ and that the evidence ‘‘would

inflame the jury’’ due to the similarities between the

charged and uncharged shootings. (Internal quotation

marks omitted.) Id., 574–75.

On appeal, this court agreed that the trial court

abused its discretion in admitting the uncharged misconduct evidence and reversed and remanded the case

for a new trial. Id., 576. The state appealed to our

Supreme Court, which reversed this court’s judgment.

Id., 586. In so doing, the court noted, inter alia, that

‘‘[u]ncharged misconduct evidence has been held not

unduly prejudicial when the evidentiary substantiation

of the vicious conduct, with which the defendant was

charged, far outweighed, in severity, the character of his

prior misconduct.’’ (Internal quotation marks omitted.)

Id., 588. The court also stated that it found ‘‘significant

in mitigating any possible prejudice the limiting instructions . . . given by the trial court both during the testimony of relevant witnesses and during the final jury

charge, which we presume the jury to have followed

in the absence of any indication to the contrary.’’ Id.,

590. In addition, the court cited ‘‘numerous other [decisions from] federal and state courts that have rejected

challenges, founded on undue prejudice, to the use of

uncharged misconduct evidence in cases wherein the

charged offenses were committed using the same gun

that the defendant had utilized in [the uncharged] prior

shootings.’’ Id.

Here, the severity of the charged conduct outweighed

the severity of the uncharged conduct. The charged

conduct derived from the drive-by shooting of the victim, which resulted in the death of the victim. The

uncharged conduct derived from the attempted shooting of Parker and Spence, and did not result in any

deaths or even any injuries. Cf. id., 588 (uncharged

conduct related to prior, less severe shooting found

admissible, where defendant charged with murder, felony murder, and robbery in first degree in connection

with shooting death).

Additionally, the court in the present case gave the

jury limiting instructions on three occasions: (1) prior

to the state first presenting evidence of the Baltimore

Street shooting; (2) following Parker’s testimony; and
(3) during its final charge to the jury. These limiting

instructions provided, inter alia, that the uncharged misconduct evidence was being admitted ‘‘solely to show

or establish [the] identity of the person who committed

the crimes alleged in this information, and the availability of the means to commit those crimes.’’8

On the basis of our review of the record, we conclude

that the court did not abuse its discretion in determining

that the probative value of the uncharged misconduct

evidence outweighed its prejudicial effect. Although the

facts of the uncharged misconduct involved the defendant attempting to shoot Parker and Spence, they were

much less severe than those of the charged conduct

and, therefore, admission of the uncharged misconduct

evidence cannot be said to have unduly aroused the

jury’s emotions. Nor can we say that admission of the

uncharged misconduct evidence created a distracting

side issue, as the evidence admitted linked the rifle and

the perpetrator of the uncharged shooting to the murder

at issue in this case. Additionally, the presentation of

evidence related to the Baltimore Street shooting did

not take up an inordinate amount of time, as the presentation of the uncharged misconduct evidence comprised at most one and one-half days of a six day trial.9

Finally, the defendant was not unfairly surprised by the

admission of this evidence, as it was admitted in the

defendant’s first trial and the state filed a pretrial motion

for the admission of uncharged misconduct evidence.

Accordingly, we conclude that the court did not abuse

its discretion by admitting the uncharged misconduct

evidence related to the Baltimore Street shooting.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Rivera pleaded guilty to one count of conspiracy to commit murder in

violation of General Statutes §§ 53a-54a (a) and 53a-48 in connection with

the murder of the victim in this case. See State v. Rivera, Superior Court,

judicial district of Hartford, Docket No. CR-13-0670080-T (August 4, 2015).

2 One such study was the Committee on Identifying the Needs of the

Forensic Sciences Community, National Research Council, ‘‘Strengthening

Forensic Science in the United States: A Path Forward,’’ (2009), available

at https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf (last visited April 30,

2018) (NAS Report). The NAS Report explained that ‘‘[b]ecause not enough

is known about the variabilities among individual tools and guns, we are

not able to specify how many points of similarity are necessary for a given

level of confidence in the result. Sufficient studies have not been done to

understand the reliability and repeatability of the methods.’’ Id., 154. The

study added that ‘‘[a]lthough some studies have been performed on the

degree of similarity that can be found between marks made by different

tools and the variability in marks made by an individual tool, the scientific

knowledge base for toolmark and firearms analysis is fairly limited.’’ Id., 155.

Another such study was the Committee to Assess the Feasibility, Accuracy,

and Technical Capability of a National Ballistics Database, ‘‘Ballistic

Imaging,’’ (2008), available at http://www.nap.edu/catalog/12162.html (last

visited April 30, 2018) (Ballistic Imaging). The Ballistic Imaging study found

that ‘‘[t]he validity of the fundamental assumptions of uniqueness and reproducibility of firearms-related toolmarks has not yet been fully demonstrated.’’

(Emphasis omitted.) Id., 3.

3 The court in United States v. Glynn, supra, 578 F. Supp. 2d 567, stated

that ‘‘ballistics examination not only lacks the rigor of science but suffers

from greater uncertainty than many other kinds of forensic evidence. Yet

its methodology has garnered sufficient empirical support as to warrant its
admissibility. . . . The problem is how to admit it into evidence without

giving the jury the impression . . . that it has greater reliability than its

imperfect methodology permits. The problem is compounded by the tendency of ballistics experts . . . to make assertions that their matches are

certain beyond all doubt, that the error rate of their methodology is zero, and

other such pretensions. Although effective cross-examination may mitigate

some of these dangers, the explicit premise of Daubert and Kumho Tire

[Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238

(1999)] is that, when it comes to expert testimony, cross-examination is

inherently handicapped by the jury’s own lack of background knowledge,

so that the [c]ourt must play a greater role, not only in excluding unreliable

testimony, but also in alerting the jury to the limitations of what is presented.’’

(Citation omitted; internal quotation marks omitted.) United States v. Glynn,

supra, 574. The court ordered that any testimony from the ballistics expert

would be limited to ‘‘only that a firearms match was more likely than not

. . . .’’ (Internal quotation marks omitted.) Id., 574–75.

4 The defendant urges this court to overrule Legnani. ‘‘[T]his court’s policy

dictates that one panel should not . . . reverse the ruling of a previous

panel. The reversal may be accomplished only if the appeal is heard en

banc.’’ (Emphasis added; internal quotation marks omitted.) Boccanfuso v.

Conner, 89 Conn. App. 260, 285 n.20, 873 A.2d 208, cert. denied, 275 Conn.

905, 882 A.2d 668 (2005). On November 27, 2017, the defendant filed a motion

for consideration en banc, which this court denied on January 10, 2018.

Additionally, the entire court has not ordered that this case be considered

en banc pursuant to Practice Book § 70-7 (b), nor are we persuaded that

en banc review is warranted. Therefore, we will not overrule Legnani.

We do acknowledge, however, that there has been some evolvement in

the field of firearm and toolmark identification since this court decided

Legnani. As the defendant pointed out before the trial court and in his

briefs to this court, recent studies and cases have questioned the scientific

validity of firearm and toolmark identification. We are familiar with the

findings and conclusions of the NAS Report and the Ballistic Imaging studies,

which explain the limitations that exist in the science of firearm and toolmark

identification; see footnote 2 of this opinion; as well as the holding of United

States v. Glynn, supra, 578 F. Supp. 2d 567, which limited the scope of the

testimony regarding firearm and toolmark identification in that case. See

footnote 3 of this opinion; see also State v. Burton, Superior Court, judicial

district of New Haven, Docket No. CR-14-0150831-S (February 1, 2017) (court

applied Legnani in ruling that firearm and toolmark identification evidence

is reliable and not subject to Porter, but limited testimony of state’s firearm

and toolmark identification expert to be that recovered cartridge casing

was consistent with being fired from particular firearm, and expert could

not opine that recovered casing was match to particular firearm). Defense

counsel also extensively cross-examined Stephenson regarding the recent

criticisms of firearm and toolmark identification, during which Stephenson

acknowledged the validity of at least some of those criticisms. Even if

we were inclined to review the scientific validity of firearm and toolmark

identification—and therefore inclined to review the holding of Legnani—

the circumstances of the present case do not warrant a departure from our

precedent. The defendant has not proffered his own expert to rebut the

notion that firearm and toolmark evidence is sufficiently reliable as to be

admitted without first requiring a Porter hearing. Therefore, we adhere to

our precedent that holds that the admissibility of firearm and toolmark

identification is well established.

5 The court also noted that its decision was based, in part, on the law of

the case doctrine, as the evidence had been admitted in the defendant’s

first trial.

6 On three occasions, the court gave the jury a limiting instruction regarding the use of the uncharged misconduct evidence.

7 When State v. Collins, 299 Conn. 567, 10 A.3d 1005, cert. denied, 565

U.S. 908, 132 S. Ct. 314, 181 L. Ed. 2d 193 (2011), was decided, the 2009

edition of the Connecticut Code of Evidence was applied in that case. In

the 2009 edition, the exceptions to the propensity of the evidence rule were

found in § 4-5 (b). By the time of the trial in the present case, however, a

new edition of the Code of Evidence had been released, and § 4-5 (b) has

been transferred to § 4-5 (c).

8

‘‘In the absence of a showing that the jury failed or declined to follow

the court’s instructions, we presume that it heeded them.’’ (Internal quotation

marks omitted.) State v. Santiago, 269 Conn. 726, 762, 850 A.2d 199 (2004).

9

In addition, as the state notes, three of the witnesses who testified
about the uncharged Baltimore Street shooting testified primarily about the

charged conduct.