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STATE OF CONNECTICUT v. BILLY RAY WRIGHT

(AC 35507)

Lavine, Sheldon and Borden, Js.

Argued January 9—officially released August 19, 2014

(Appeal from Superior Court, judicial district of New

Haven, B. Fischer, J.)

Lisa J. Steele, assigned counsel, for the appellant

(defendant).

Ronald G. Weller, senior assistant state’s attorney,

with whom, on the brief, were Michael Dearington,

state’s attorney, and John M. Waddock, supervisory

assistant state’s attorney, for the appellee (state).
Opinion

BORDEN, J. The dispositive issue in this appeal is

whether the trial court improperly precluded the defendantfrom challenging the adequacy ofthe police investigation into the murder of which he was convicted. We

conclude that the court did improperly restrict the

degree of cross-examination of certain police officers

regarding the adequacy of the investigation and, accordingly, we reverse the judgment of conviction.

The defendant, Billy Ray Wright, was originally tried

in 2010 for the April 27, 2008 murder of Ronald Bethea

in violation of General Statutes § 53a-54a (a).1 After a

hung jury, the court declared a mistrial, and this retrial

took place in 2011. The jury found him guilty, and the

court imposed a sentence of sixty years imprisonment.

This appeal by the defendant followed.

On the basis ofthe state’s evidence,2

including surveillance videos of the location where the events at issue

took place, the jury reasonably could have found the

following facts. At approximately 1 a.m. on April 27,

2008, the defendant, whose nickname was ‘‘Wild Billy,’’

Brandon Bellamy, and John Brown arrived at the

Cardinal’s Club, a New Haven bar.3 Outside the bar they

met Denard Lester and Corey Gnomes. All five men

entered the bar at approximately 1:15 a.m. At approximately 1:42 a.m., when the bar was about to close, the

defendant left the bar with Lester and Brown. Outside

of the bar there was a large crowd of people who had

left the bar because of its closing. The defendant walked

down the street to a parked car, where he procured a

.44 caliber revolver. At about the same time, the victim

left the bar, stood on the street outside the front door,

talked with a friend, Rydel Bailey, and then talked on

his cell phone. While the victim was on the phone, the

defendant circled behind him, and then approached his

friend, Lester, who was standing on the street corner

talking with a woman, Simone Watson. Lester then gave

the defendant a brief hug and handshake, known on

the street as ‘‘dap.’’ At approximately 1:47 a.m., the

defendant walked behind the victim, pointed the

revolver at him from underneath his jacket and shot

the victim in the back. At that point, the large crowd

that had gathered outside the bar scattered in various

directions. The victim stumbled back into the bar and

fell to the floor, where he died from the gunshot wound.

The police responded to the scene within minutes of

the shooting.

The defendant claims that the trial court violated his

constitutional right to present a defense by limiting his

cross-examination of the investigating police officers,

which was intended to establish that the police investigation into the shooting was inadequate. This claim

comes to us in two parts. The first part is specific, in

that it focuses on the trial court’s preclusion of the
defendant’s cross-examination of an investigating

police officer as to an altercation that the victim had

in another bar approximately two hours before the

shooting in question. The second part is more general,

in that it focuses on the trial court’s limitation of the

defendant’s cross-examination of the investigating

police officers as to what they did or did not do by way

of investigation on the night in question, and the court’s

preclusion of the defendant’s broader scope of crossexamination as to proper police investigative procedures that would generally be followed in a case such

as the present one. We reject the first, specific part

of the defendant’s claim. We agree, however, with the

second, more general part of his claim.

We first set forth the legal principles underlying our

analysis. ‘‘[A] fundamental element of due process of

law is the right of a defendant charged with a crime to

establish a defense.’’ (Internal quotation marks omitted.) State v. Collins, 299 Conn. 567, 598, 10 A.3d 1005,

cert. denied, U.S. , 132 S. Ct. 314, 181 L. Ed. 2d

193 (2011). Further, ‘‘[i]t is fundamental that proof of

guilt in a criminal case must be beyond a reasonable

doubt. . . . The [reasonable doubt concept] provides

concrete substance for the presumption of innocence—

that bedrock axiomatic and elementary principle whose

enforcement lies at the foundation of the administration

of our criminal law.’’ (Citation omitted; internal quotation marks omitted.) State v. Jackson, 283 Conn. 111,

116, 925 A.2d 1060 (2007). Therefore, ‘‘[a] defendant

may . . . 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.’’ State v. Collins, supra, 599–600.

The United States Supreme Court has recognized that

a defendant has the right to challenge the adequacy of

a police investigation to raise reasonable doubt as to his

guilt, stating that ‘‘indications of conscientious police

work will enhance [the] probative force [of evidence]

and slovenly work will diminish it.’’ Kyles v. Whitley,

514 U.S. 419, 446 n.15, 115 S. Ct. 1555, 131 L. Ed. 2d

490 (1995). Notably, within our body of case law, State

v. Collins, supra, 299 Conn. 567, is the only case that

examines this right. In Collins, our Supreme Court

relied upon several cases decided by the Massachusetts

Supreme Judicial Court with respect to a defendant’s

constitutional right to challenge the adequacy of a

police investigation. Id., 599–600. Indeed, Massachusetts has developed a large body of case law on this

issue, which we find persuasive with respect to the

defendant’s claims on appeal. Therefore, like our

Supreme Court, we rely upon Massachusetts authority

in setting forth the principle that a defendant has a

constitutional right to challenge the adequacy of a

police investigation.4
The Massachusetts Supreme JudicialCourt has stated

that ‘‘[t]he fact that certain tests were not conducted

or certain police procedures not followed could raise

a reasonable doubt as to the defendant’s guilt in the

minds of the jurors.’’ Commonwealth v. Bowden, 379

Mass. 472, 486, 399 N.E.2d 482 (1980). A defendant

‘‘ha[s] the right to base [his] defense on the failure of

police adequately to investigate a murder in order to

raise the issue of reasonable doubt as to the defendant’s

guilt . . . .’’ Commonwealth v. Phinney, 446 Mass. 155,

165–66, 843 N.E.2d 1024 (2006). Although a defendant’s

right to cross-examination is not without limitation; see

State v. Davis, 298 Conn. 1, 9–10, 1 A.3d 76 (2010); State

v. Cerreta, 260 Conn. 251, 261, 796 A.2d 1176 (2002);

an undue limitation on cross-examination regarding

deficiencies in the police investigation may constitute

a violation of the defendant’s right to confront the witnesses against him, under the sixth and fourteenth

amendments to the United States constitution. See

Commonwealth v. Mattei, 455 Mass. 840, 857–60, 920

N.E.2d 845 (2010).

I

Having set forth the legal landscape, we now turn to

the first, specific part of the defendant’s claim, namely,

that the trial courtimproperly prevented him from introducing evidence of an investigating police officer’s failure to conduct an adequate investigation into an

altercation between the victim, his girlfriend, and two

men at another bar just hours before he was murdered.

The following additional facts and procedural history

are relevant to our analysis of this claim.

The record reflects that the victim was involved in

an altercation with two unidentified men in another

bar, Solomon’s Cafe ́, approximately one and one-half

hours before the shooting at the Cardinal’s Club. More

specifically, during the cross-examination of Herbert

V. Johnson III, a sergeant with the New Haven Police

Department, the defendant sought to inquire of the victim’s whereabouts prior to the shooting that evening.

Upon the state’s objection, the jury was excused. The

defendant stated that he wanted to challenge the adequacy of the police investigation by inquiring into what

steps Johnson took or failed to take to determine

whether the unknown persons at the other bar had

anything to do with the shooting at the Cardinal’s Club.

The defendant then made an offer of proof through the

testimony of Johnson, still in the absence of the jury.

Johnson testified that as part of his investigation of

the murder at the Cardinal’s Club he spoke with the

bartender of Solomon’s Cafe ́, who indicated to him that

the victim had been involved in an argument with his

girlfriend, which resulted in what the bartender characterized as a ‘‘tussle’’ between them. Two men, one

wholly unidentified and the other known only as ‘‘Perry’’
or ‘‘Player,’’ broke up the argument by grabbing the

victim, and the victim’s girlfriend then ran out of the

bar. The bartender told Johnson that the two men were

not fighting with the victim, but were his friends who

were trying to calm the situation. The defendant asked

Johnson whether he had done anything to find out if

the unidentified man matched the image of the shooter

on the video. Johnson responded that, after becoming

aware of the physical description of the shooter at the

Cardinal’s Club, he did not investigate this incident further, or show the image of the person in the video to

the bartender at Solomon’s Cafe ́.

The trial court sustained the state’s objection to this

evidence on the ground that it was proffered as third

party culpability evidence, and that it did not meet the

standard for admissibility of such evidence. See, e.g.,

State v. Ortiz, 252 Conn. 533, 564, 747 A.2d 487 (2000)

(evidence of third party culpability must directly connect third party to crime charged in order to be admissible). The next day, the defendant renewed his claim

for admissibility, clarifying that the basis of his claim

was to challenge the adequacy of the police investigation, and that contrary to the mischaracterization of his

offer of proof by both the state and the court, it was

never offered as third party culpability evidence. The

trial court affirmed its ruling, making clear that it

regarded the proffered evidence only as third party

culpability evidence, and affirming its conclusion that

the evidence fell short of the standard of admissibility

for such evidence.

In analyzing the defendant’s appellate claim, we first

note that we agree with the defendant that the trial

court improperly ignored his clearly stated basis for

the admissibility of the evidence, namely, to support his

claim of an inadequate police investigation. Evidence of

an inadequate police investigation need not meet the

strict standard of establishing a direct connection

between a third party and culpability for the crime

charged. See Commonwealth v. Silva-Santiago, 453

Mass. 782, 800–803, 906 N.E.2d 299 (2009). Its purpose

is not to establish that someone other than the defendant is culpable; rather, it is to establish that, because

the police investigation was inadequate, there may be

reasonable doubt about the defendant’s guilt. Id. Furthermore, the court was not entitled to recharacterize

the defendant’s claim—namely, that the evidence was

being offered to show the inadequacy of the police

investigation—into a third party culpability claim.

Although there are, as the state suggests, times when

the court is permitted to look at the evidence offered

and rule on what it sees as the ‘‘true’’ nature of its

relevance; see, e.g., State v. Cornelius, 120 Conn. App.

177, 188, 990 A.2d 927 (Harper, J., concurring), cert.

denied, 296 Conn. 910, 993 A.2d 467 (2010); see also

State v. DeJesus, 260 Conn. 466, 481, 797 A.2d 1101

(2002); this is not such a case.
This does not mean, however, that the defendant may

prevail on this claim, because he was not harmed by

the court’s mischaracterization of the nature of his

claim. ‘‘[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.

. . . In a harmless error analysis, the question is

whether the trial court’s error was so prejudicial as to

deprive the defendant of a fair trial . . . .’’ (Citation

omitted; internal quotation marks omitted.) State v.

Ramirez, 101 Conn. App. 283, 286–87, 921 A.2d 702,

cert. denied, 283 Conn. 909, 928 A.2d 539 (2007), cert.

denied, 552 U.S. 1109, 128 S. Ct. 895, 169 L. Ed. 2d 747

(2008). The defendant was not hindered in any way in

making his offer of proof. And that offer of proof did

not establish any inadequacy of the police investigation

of the incident at Solomon’s Cafe ́. We can discern nothing in Johnson’s testimony, elicited by the defendant

as his offer of proof, to suggest that further police investigation of the incident was warranted or would have

helped establish a reasonable doubt about the defendant’s guilt regarding the shooting at the Cardinal’s

Club. Johnson’s testimony showed no more than that,

about one and one-half hours before the shooting at

the Cardinal’s Club, the victim got into a tussle with

his girlfriend and that two of his friends intervened to

calm the situation.

II

Despite our determination that the defendant’s more

specific claim fails on appeal, we reach a different conclusion with regard to his second, more general claim.

Namely, the defendant claims that the trial court

improperly limited the scope of his cross-examination

of the investigating police officers as to what they did

or did not do by way of investigation on the night in

question, and correspondingly, that the court improperly precluded a broader scope of cross-examination

into proper police investigative procedures generally

followed in a case such as the present one. We conclude

that the trial court’s limitation of the scope of the defendant’s cross-examination into proper police investigative procedures generally followed in a case such as

this deprived the defendant of a fair trial. The following

additional facts and procedural history guide our analysis of this claim.

On numerous occasions throughout the trial, the

court sustained the state’s objections to cross-examination of four police witnesses, whereby the defendant

sought to elicit testimony as to whether the police, in

not pursuing certain avenues of investigation or possible procedures, were acting in accord with past practices or with what could be regarded as standard police

investigative procedures.

David Parker was one of the two first New Haven
police officers to respond to the scene. On cross-examination, the defendant established that when Parker

arrived there were several people outside the bar, many

of whom were in the process of leaving the scene.

Parker testified that he took no steps to determine

whether there were any witnesses to the shooting, or

to interview any of the people who were leaving the

scene. The defendant then asked: ‘‘And would you agree

with me that once those people leave, they are gone?

You are not going . . . to have an opportunity to question them, correct?’’ The court sustained the state’s

objection on the ground that the question called for

speculation. The defendant then asked a more general

question: ‘‘And when you [arrive] at a shooting, do . . .

you try to determine whether nor not any witnesses

were at the scene?’’ Upon the state’s objection that the

question had been asked and answered, and that ‘‘it is

not relevant to what happened on this particular night,’’

the defendant responded: ‘‘It’s not just what he did,

Your Honor, that’s relevant. It’s also what he didn’t do

that’s relevant.’’ The court sustained the objection.

The next witness, Terrence McNeil, testified that he

had been a patrol officer for thirteen years, and that

he also responded immediately to the scene of the

shooting. He first went inside the club, where he saw

the victim on the floor receiving treatment, and then

went back outside to the sidewalk. He made several

efforts to speak to the people there, but ‘‘[n]obody

wanted to get involved.’’ On cross-examination, he testified that atthattime he was acting underthe assumption

that the shooting had taken place inside the club, rather

than outside on the sidewalk. The defendant asked: ‘‘So,

operating on the assumption that the shooting occurred

in the club, it wasn’t necessary for you to go across the

street and canvass whether or not somebody had seen

anything?’’ McNeil answered: ‘‘No.’’ The defendant then

asked: ‘‘Okay. And had you been aware of information

that the shooting occurred outside of the club, it’s something you would have done, correct?’’ The court sustained the state’s objection on the ground that the

question called for speculation. The defendant then

asked: ‘‘Well, you’ve responded in your thirteen years

to many shootings in New Haven, correct?’’ McNeil

answered: ‘‘Yes.’’ When the defendant asked, ‘‘And one

of the things you want to determine is where the shooting occurred, correct?’’ the state objected on the ground

that ‘‘[w]hat is relevant is what that officer did that

night. What he did with regard to other investigations

is not relevant.’’ The defendant claimed: ‘‘Well, again,

the state claims to think that the only relevance of an

officer’s testimony is what he did, where in fact, it is

also relevant what he didn’t do.’’ The court sustained

the objection: ‘‘It’s not relevant. What’s relevant is his

actions on the evening of April 27, 2008. So, I will not

allow the question.’’

Upon redirect examination, McNeil testified that
while he was outside the bar, no one came up to him

and volunteered any information, that no one from

across the street approached him with an offer to cooperate, and that when he approached people to attempt

to speak to them ‘‘they didn’t want to get involved. They

started walking away from me into their cars.’’ Upon

recross-examination, when the defendant sought to ask

McNeil about whether witnesses are often reluctant to

speak to the police and whether that was ‘‘a reaction

that was new to [him], people not wanting to get

involved . . . ?’’ the court sustained the state’s objection, stating, ‘‘Counsel, it has to be related to this day.’’

Following this exchange, the defendant asked: ‘‘When

you are faced with this noncooperation by the people

you spoke to, was there anything you could have done

in light of that noncooperation to secure their cooperation?’’ McNeil answered: ‘‘No, no.’’ When the defendant

sought to follow up on this inquiry by asking, ‘‘Well,

wouldn’t some of the people not want to give you information in front of other people? . . . Is that . . . one

of the things you were cognizant of?’’ the court sustained the state’s objection as calling for speculation.

The defendant then asked: ‘‘Well, if you had their names,

that you didn’t secure, and you approached them when

they were home and not in front of a crowd of people,

is that something that is done . . . on occasion?’’ The

court sustained the state’s objection. The defendant

then asked: ‘‘You couldn’t have done that?’’ The court

sustained the state’s objection, stating: ‘‘He answered

no to the question. And . . . I will not allow a followup on that line of question[ing].’’

In the jury’s absence, the defendant then made the

following claim: ‘‘In regard to . . . my cross-examination to what was done by the police officers in this

case, the state is going to get up and argue during closing

argument, at least in everything humanly possible, as—

and they were unable to have any witnesses, it’s not

their fault. The fact of the matter is, Your Honor, that

they didn’t do everything humanly possible. And what

they didn’t do is as relevant in this case as what they

did do because they do not have any eyewitness to this

shooting, and what steps they . . . took or didn’t take

to secure an eyewitness is important. Now, for me not

to be able to ask an officer when you . . . canvass

a crowd of people and say, does anybody have any

information and . . . we all know in the real world a

lot of people don’t come forward to be labeled a snitch

in front of a crowd . . . but had he gotten identification, which he could have gotten, then he could have

approached these people when they had been alone to

try to determine whether or not anybody had seen

anything.

‘‘I’m sure the state is going to say the police did

everything they could but nobody cooperated. And,

Your Honor, nobody cooperated at the scene, but that

did not foreclose them from pursuing other avenues
with the same people had they gotten their names. And

for me not to ask a police officer, isn’t it true that

some people are not forthcoming in groups but when

approached later in a one-to-one situation have provided information? And why didn’t you take steps to

ensure that you identified those people so you could

at a later date go to them outside of a group of people

to ask them if they had seen anything? I mean, I . . .

don’t understand why I would be foreclosed from . . .

inquiring as to why [they] didn’t do those things.’’ The

court responded: ‘‘All right. . . . I made my rulings

based on what this witness said here. I don’t know what

else I’m going [to] hear from detectives who were in

charge and investigating this case. But I . . . made my

rulings with relevancy with this patrol officer concerning his activities on April 27, 2008.’’

Next, Sergeant Johnson testified that he, then a detective, arrived at the scene approximately one hour and

ten minutes afterthe shooting. He was the first detective

to arrive, the second being Detective Mike Hunter, who

arrived some time thereafter.5

Johnson determined that

there were nine security cameras at the scene, and he

took steps to record all nine videos onto a memory

stick. He was informed that the shooting had taken

place outside the club. On cross-examination, the defendant asked him whether he was able to ‘‘determine

whether anybody was outside smoking when the shooting occurred . . . .’’ The state objected on the ground

of relevance. The defendant claimed that, ‘‘again, Your

Honor, what steps were taken to secure witnesses to

the shooting is relevant and what steps were not taken.’’

The court sustained the objection as irrelevant.

Bridgett Brosnahan, a detective who had been with

the New Haven Police Department for more than eleven

years, testified that she was assigned to the department’s bureau of identification, responsible for processing the crime scene for any physical evidence of

evidentiary value, which she described as ‘‘respond[ing]

to crime scenes, . . . and recogniz[ing] evidence at a

scene, collect[ing] evidence and preserv[ing] evidence.’’

She had arrived at the scene approximately three hours

after the shooting. Among the items that she took into

her possession of possible evidentiary value were some

‘‘fiber-like materials’’ recovered from the crime scene.

On cross-examination, she testified that, with respect

to the fiber-like material, ‘‘the possibility exist[ed]’’ that

it came from the shirt of the shooter. She further testified that, although the fiber-like material could have

been tested at the state police forensic laboratory for

color and composition, it was not tested because there

was nothing to which it could be compared. The state

objected when the defendant asked her ‘‘who would

have made [the] call’’ as to whether the items would be

further tested. After a discussion in the jury’s absence,

Brosnahan was permitted to testify that ‘‘[d]etectives
working on the case’’ would determine whether the

fiber-like material she believed had potential evidentiary value would be tested. The defendant sought to

follow up on this answer by asking, ‘‘not just . . . about

this case,’’ but ‘‘when you work on [a] case with the

detectives, since you are the forensic person . . . do

you ever suggest to them that further testing is necessary?’’ Upon the state’s objection, the defendant stated:

‘‘I’m asking about general procedures between [the

bureau of identification] and detectives.’’ The court

ruled, again, that the defendant could not ask about

general procedures and was limited to asking about the

procedures in this particular case. Similarly, when the

defendant questioned Brosnahan as to whetherit would

have been helpful to test the fiber-like material, given

its potential evidentiary value—particularly, given that

such testing could reveal the color and composition

of the shooter’s shirt—the court sustained the state’s

objection as calling for speculation.

We conclude that the court improperly limited the

scope of the defendant’s cross-examination of these

police officers, and that this limitation violated his right

to a fair trial. We do so for two reasons.

First, we note the tenuous nature of the state’s case.

The victim was shot in the presence of about twentyfive people. Although the shooting was captured on

video, no one identified the defendant in the video footage. Of the approximately twenty-five persons who

were within a few feet of the shooter and victim when

he was shot, only four testified, and none of those

four said they saw the shooting. Only one of them had

identified the defendant as being present outside the

bar at the time in question and, inferentially, identified

the defendant as the shooter; but that witness unequivocally disclaimed that identification at trial. There was

a noteworthy lack of effort by the police to identify and

question any of the other persons shown on the video

as potential witnesses to the shooting. There was no

effort to canvass the area or houses across the street

to see if anyone there had seen the shooting. Only two

persons, namely, the two owners of the bar, identified

the defendant as being present in the bar that night,

but their testimony was subject to the classic vagaries

and frailties of eyewitness identification by strangers.

There was no evidence of motive, and no evidence that

the victim and defendant even knew each other. Indeed,

there was no evidence that the defendant even knew

Bellamy, Brown or Gnomes, with whom, the state

claimed, solely on the basis of the video, he arrived at

and entered the bar. There was no forensic evidence

connecting the defendant to the crime.6 Thus, in our

view, this was a case in which the defendant’s claim

of reasonable doubt might well have succeeded, and he

should have been given appropriate leeway to challenge

the adequacy of the police investigation in the way he

sought at trial and renews here: to challenge not only
what the police did or did not do on the night in question, but also what they, as trained and experienced

investigating police officers, are expected to do generally when investigating a murder case such as the present one.

As the defendantrepeatedly claimed in the trial court,

what the police did not do was arguably as important

as what they did do. And, in that connection, it was

equally important for the defendant to be permitted to

bring to the attention of the jury any differences there

may have been between what they did not do in this

investigation and general or ordinary police procedures

that they had followed in other murder cases. The

court’s insistence on limiting the defendant to the conduct of the police on the night in question significantly

curtailed that important inquiry in the present case.

Second, we note that this court and our Supreme

Court have often recognized that police officers, by

virtue of their training and experience, may be considered expert witnesses in various contexts other than

ordinary police procedures. See, e.g., State v. Vilalastra,

207 Conn. 35, 45, 540 A.2d 42 (1988); State v. Palmer,

196 Conn. 157, 168, 491 A.2d 1075 (1985); State v. Cosgrove, 181 Conn. 562, 587–88, 436 A.2d 33 (1980); State

v. Williams, 169 Conn. 322, 334, 363 A.2d 72 (1975);

State v. Grayton, 163 Conn. 104, 111, 302 A.2d 246, cert.

denied, 409 U.S. 1045, 93 S. Ct. 542, 34 L. Ed. 2d 495

(1972); State v. Del Vecchio, 145 Conn. 549, 553, 145

A.2d 199 (1958); State v. Pjura, 68 Conn. App. 119,

127–28, 789 A.2d 1124 (2002); State v. Holeman, 18

Conn. App. 175, 179–81, 556 A.2d 1052 (1989). We can

see no reason why the same breadth of permissible

testimony should not be applied when the police were

asked, on the basis of their training and experience,

whether general or ordinary procedures of police investigation were followed in the present case.

We recognize the obligation of the trial court to avoid

lengthy cross-examination on hypothetical or collateral

issues that might distract the jury from its task of deciding guilt or innocence in the case at hand. See, e.g.,

State v. Annulli, 309 Conn. 482, 493, 71 A.3d 530 (2013).

That obligation, however, must be balanced against the

defendant’s constitutional right to challenge the evidence against him in order to raise reasonable doubt

as to his guilt. In this case, we conclude that the court

could have given the defendant further leeway in crossexamining the investigating police officers regarding

standard police procedures, without injecting collateral

issues into the trial, and should have done so. We therefore conclude that the court’s limitations on the defendant’s cross-examination of the police witnesses

violated his right to a fair trial.

It is true, as the state argues, that the court permitted

the defendant to inquire into what the police did not

do that night—for example, that they did not canvass
people in the houses across the street for possible witnesses to the shooting, and that they did not attempt

to identify by name any of the people still standing

outside the club when the police arrived. But the court

did not, as the defendant rightly points out, permit him

to expand on that inquiry by comparing what they had

and had not done in this case to what they had done

by following standard procedures in other similar cases.

We have referred to the tenuous nature of the state’s

case. We turn, now, to a further explication of that

characterization in order to demonstrate the harmfulness of the court’s limitation on the defendant’s

cross-examination.

The principal source of evidence in the state’s case

was two videos comprised of footage captured from

security surveillance cameras at the bar. The first video

was a composite video, taken from nine surveillance

cameras, showing scenes outside and inside the bar

before the shooting, and including footage showing the

actual shooting outside the bar. The second video

depicted the segment of the composite video footage

showing the actual shooting outside of the bar, which

had been enlarged for the intended purpose of increasing the clarity of the images. The videos were supported

by the testimony of a police forensic expert who

explained to the jury how the videos had been composed and, to some extent, what the videos showed.

The videos were of a grainy, indistinct nature and,

despite the unsuccessful efforts of the police expert to

enhance the videos, the face of the shooter was not

recognizable. The videos showed that the shooting took

place in the presence of approximately twenty-five persons, all of whom were within a few feet of the shooter

and the victim.

The videos showed that, shortly before the shooting,

Lester gave ‘‘dap’’—a brief hug and handshake—to a

person who then circled behind the victim and shot

him. The defendant did not dispute that the person to

whom Lester gave ‘‘dap’’ was the shooter. The videos

also showed a person, whom the state claimed to be

the defendant, entering the bar at 1:15 a.m. where he

remained until 1:42 a.m., shortly before the shooting.

At that time, the person whom the state claimed to be

the defendant left the bar and stood on the sidewalk

outside the bar with approximately twenty-five other

persons, including the victim. He then left the sidewalk

area in front of the bar and went to a nearby area where

there was a car,7 and then returned to the area in front

of the bar where he shot the victim, as previously

described. There was also testimony, which the videos

corroborate, that just after the shooting some of the

other persons in the area ran away. Thus, it was critical

to the state’s case to establish identification, namely,

that the person to whom Lester gave ‘‘dap,’’ and who,

therefore, was the shooter, was the defendant. The evi-
dence supporting that identification, along with the evidence undermining that identification, was as follows.

First, Lester testified that he knew the defendant only

by the name of ‘‘Wild Billy.’’ He acknowledged that, at

the first trial, he had identified the defendant as the

person to whom he gave ‘‘dap’’ and with whom he

had a brief conversation on the night in question. He

testified further that, as he was walking away from the

sidewalk in front of the bar with Watson,8 he heard

gunshots and that the two of them ran to his car, which

was parked on a nearby street. They met Gnomes at

the car, and the three of them drove away. Lester also

testified, however, that he was ‘‘under the influence’’

that night, and he ended his testimony with the unequivocal assertion that the defendant was not the person

to whom he gave ‘‘dap’’ that night.9

Second, although the state’s theory, which was based

on the video, was that the defendant arrived at the club

with Bellamy and Brown, where they then met Lester

and Gnomes, and the five of them then entered the

club, Gnomes testified that he arrived at the club only

with Lester, where they met Bellamy, and the three of

them entered the club. Gnomes also testified that he

did not know or recognize anyone outside the club

other than Lester and Bellamy. He further testified that

upon leaving the club with Lester and upon hearing a

gunshot, he, Lester and Watson ran to his car, which was

parked on a nearby street, and they drove off without

returning to the scene of the shooting. He further testified that he did not see who fired the shot. Thus, he

did not identify the defendant in any way or connect

him to the shooting.10

The only other individuals to identify the defendant

as being present in the bar that night were the bar

owners, Jeffrey Dominic Parker and Joyce Bellamy,

both of whom were inside the bar when the shooting

took place, and neither of whom had been acquainted

with the defendant before that night. On May 10, 2008,

Parker identified a photograph of the defendant as

someone who was in the bar on the night in question.11

He could not, however, identify the defendant in the

courtroom as having been in the bar that night. Similarly, Bellamy, on May 10, 2008, identified a photograph

of the defendant as being in the bar that night. In addition, she identified the defendant on the video of the

interior of the bar as the person whose photograph she

had identified. Both sets of identifications, by Parker

and Bellamy, were made pursuant to simultaneous photographic arrays12 conducted by Detectives Hunter, the

detective in charge of the investigation of the case, and

Steven Teague.

These identifications by Parker and Bellamy must,

however, be viewed with some degree of skepticism.

Recently, our Supreme Court has noted the wide scientific acceptance of a number of factors that may under-
mine the reliability of certain eyewitness

identifications. See State v. Guilbert, 306 Conn. 218,

237–39, 49 A.3d 705 (2012). Among the most important

of those is the fact that ‘‘a person’s memory diminishes

rapidly over a period of hours rather than days or

weeks,’’ and the fact that ‘‘identifications are likely to be

less reliable in the absence of a double-blind, sequential

procedure . . . .’’ (Footnotes omitted.) Id., 238–39.

These identifications took place on May 10, 2008,

approximately two weeks after the event in question;

they were simultaneous, not sequential; and they were

not ‘‘double blind.’’13

When, as in the present case, we have identified a

violation of the defendant’s constitutional right to a fair

trial, it is the state’s burden to establish harmlessness

beyond a reasonable doubt. See State v. Ramirez, supra,

101 Conn. App. 286. The frailties in the state’s case

lead us to conclude that the state cannot meet that

substantial burden in the present case. In summary,

neither the surveillance videos nor witness testimony

definitively placed the defendant at the scene of the

crime. The video footage was captured from a distance,

and was of a grainy and indistinct quality that obscured

the shooter’s facial features. Two of the state’s witnesses identified the defendant as being present inside

the bar on the night in question, but we view those

identifications with the necessary degree of skepticism

attributed to eyewitness identifications of strangers.

Moreover, of the approximately twenty-five witnesses

present at the scene of the shooting, only four testified

at trial. Yet, of those four, none testified to having witnessed the shooting, and the only explanation of the

absence of any attempt to identify any of the other

approximately twenty-one potential witnesses to the

shooting was that they, the witnesses, appeared at the

scene not to want to get involved. No attempt was made

to see if any person across the street at the time of the

shooting had seen the shooting. The fiber-like material

taken at the scene, which, according to Brosnahan,

might have come from the shooter’s shirt, was not

tested. Finally, Lester, the only witness who previously

had testified that the defendant was present at the scene

of the shooting, recanted that testimony, and emphatically stated on cross-examination that the defendant

was not the individual to whom he gave ‘‘dap,’’ whom

the parties agreed was the shooter. Thus, under the

circumstances of the present case, we conclude that

the state has failed to meet its heavy burden of establishing that the court’s undue limitation on the defendant’s

cross-examination regarding the adequacy of the police

investigation was harmless beyond a reasonable doubt.

The judgment is reversed and the case is remanded

for a new trial.

In this opinion the other judges concurred.

1

‘‘A person is guilty of murder when, with intent to cause the death of

another person, he causes the death of such person . . . .’’ General Statutes
§ 53a-54a (a).

2 The defendant did not offer any evidence.

3 Notably, the time line set forth herein corresponds with the state’s theory

of the case that the time-stamps that appear in the surveillance videos

were approximately ten minutes fast. This inference was supported by the

testimony of John Brunetti, a forensic science examiner with the state police

forensic laboratory, who testified that the time is programmed manually on

the surveillance video cameras. That inference also was supported by the

testimony of various investigating police officers regarding the times at

which they were dispatched to the crime scene.

4

In addition to Massachusetts, several other jurisdictions have developed

case law supporting the proposition that a defendant has a constitutional

right to challenge, by way of evidence, the adequacy of a police investigation,

in order to raise reasonable doubt as to his or her guilt. See, e.g., Smith v.

United States, 27 A.3d 1189, 1197, 1199 (D.C. 2011); Hall v. Lewis, 286 Ga.

767, 782, 692 S.E.2d 580 (2010); Atkins v. State, 421 Md. 434, 452–53, 26

A.3d 979 (2011); State v. Hester, 127 N.M. 218, 222, 979 P.2d 729 (1999);

Commonwealth v. Waddler, 65 Va. Cir. 418, 432 (2004).

5 Hunter did not testify at the trial.

6 The only physical forensic evidence introduced at trial was that the

shooter used a .44 caliber revolver. This determination was made from the

bullet fragments taken from the victim’s body.

7

It was the state’s theory of the case that, because the defendant, along

with all the other bar patrons, had been searched for weapons by the bar

owners upon entering the bar, he obtained the .44 caliber revolver from

the car.

8 Watson was unavailable to testify at trial, and her testimony was thus

presented from the transcript of the first trial. The substance of hertestimony

was that she had been at the club that night, that she left the club with

Lester, that as they stood outside the club, a man, whom she could not

identify, talked briefly with Lester and gave Lester ‘‘dap,’’ and that, as she

and Lester were walking away, she heard gunshots and they ran away.

9 The defendant’s counsel asked Lester: ‘‘Look over here at this man, a

real good look. This is not the man you gave dap to that night, is it?’’ Lester

responded: ‘‘No.’’

10 The state also presented the testimony of Bailey, a friend of the victim,

who had arrived at the bar with the victim and Perry Flowers. Bailey testified

that the victim was ‘‘[r]ight in front of’’ him when the victim was shot, that

Bailey ran when the shooting took place, and that he then went back into

the bar to try to help the victim, who had staggered back into the bar. He

also testified that, although the police had showed him some photographs,

he could not identify anyone in them.

11 Jeffrey Dominic Parker also identified, from two other, separate photographic arrays, Brandon Bellamy and Brown, whom he knew as previous

customers, as having been in the club that night.

12 A simultaneous photographic array is one in which the witness is shown

a photograph board containing six or eight photographs, only one of which

is of the suspect. This is in contrast to a sequential photographic array, in

which the witness is shown the photographs one at a time. See State v.

Williams, 146 Conn. App. 114, 129 n.16, 75 A.3d 668, cert. granted on other

grounds, 310 Conn. 959, 82 A.3d 626 (2013).

13 A double blind photographic array is ‘‘administered by an uninterested

party without knowledge of which photograph represents the suspect.’’ State

v. Marquez, 291 Conn. 122, 132, 967 A.2d 56, cert. denied, 558 U.S. 895, 130

S. Ct. 237, 175 L. Ed. 2d 163 (2009).