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STATE OF CONNECTICUT v. LISSETTE

I. CHICLANA

(AC 34863)

DiPentima, C. J., and Keller and Dupont, Js.

Argued November 18, 2013—officially released April 1, 2014

(Appeal from Superior Court, judicial district of New

Haven, B. Fischer, J.)

Janice Wolf, assistant public defender, for the appellant (defendant).

Lisa Herskowitz, senior assistant state’s attorney,

with whom, on the brief, were Michael Dearington,

state’s attorney, and Eugene R. Calistro, Jr., senior

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

KELLER, J. The defendant, Lissette I. Chiclana,

appeals from the judgment of conviction,rendered after

a trial by jury, of manslaughter in the second degree

with a firearm in violation of General Statutes § 53a56a.1 On appeal, the defendant raises two evidentiary

claims relating to a portion of a recorded statement that

she made following her arrest, wherein she described an

incident involving the accidental discharge of a firearm

the night before the commission of this crime. The

defendant contends that the statement was inadmissible because (1) the trial court should have considered

it to be evidence of uncharged misconduct, and, if it

had done so, it would have concluded that its prejudicial

impact outweighed its probative value, and (2) it was

not relevant to the issues of the case. We disagree, and,

accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following

facts. On October 24, 2010, the defendant shot and killed

the victim, Jamese Hudson, in an apartment on Garden

Street in New Haven, where the defendant resided with

four other individuals.2 The victim was friends with

the defendant, as well as the other occupants of the

apartment, and had been staying there for several days

just prior to the shooting. On the day of the shooting,

the defendant and the victim were reclining on two

twin beds in the defendant’s bedroom and sending text

messages on their cell phones. While doing so, they

intermittently ‘‘played’’ with a .380 caliber handgun that

the defendant had purchased for self-protection.3 For

several weeks prior to the shooting, the defendant and

the victim had been, as the defendant described it, ‘‘playing’’ this ‘‘game’’ with the gun. As part of this ‘‘game,’’

the defendant and the victim took turns pointing the

gun at one another and pulling the trigger. They engaged

the safety mechanism so that it would not fire when the

trigger was pulled. They ‘‘played’’ this ‘‘game’’ between

twenty and thirty times over the course of several

weeks, despite being forewarned not to do so.

The day of the shooting, the defendant and the victim

each pulled the trigger of the gun several times without

its firing. The defendant was aware that the handgun

was loaded, but continued to pull the trigger because

she believed the safety mechanism to be engaged. At

approximately 1:30 p.m., however, the defendant

pointed the gun in the victim’s direction, pulled the

trigger, and the gun fired unexpectedly. As a result, the

defendant, at close range, inflicted a fatal gunshot to

the victim’s head.4 While fleeing the apartment, the

defendant informed another occupant, Jasmine Vreeland, that she accidentally had shot the victim. Vreeland

exited the apartment and asked a neighbor to call 911.

The defendant was arrested later that day and charged

with one count of manslaughter in the first degree with

a firearm in violation of General Statutes § 53a-55a (a)
and one count of carrying a pistol without a permit in

violation of General Statutes § 29-35 (a).

At trial, the state offered into evidence, outside the

presence of the jury, an audiotape of a statement made

by the defendant, following her arrest, to Detectives

Michael Wuchek and James Naccarato of the New

Haven Police Department. The defendant’s counsel

objected to a portion of the statement in which the

defendant described to the detectives an incident

involving the same gun that had occurred on October

23, 2010, the night before the shooting.5 The defendant

told the detectives that at approximately 10 p.m., she

had the gun in her pocket while she was in the kitchen

of the Garden Street apartment. The victim also was

present in the apartment at that time. The defendant

stated that because her pocket was not large enough

to fully fit the gun, it fell from her pocket and fired

a single time. The defendant stated that the gun had

‘‘jammed.’’ Although the defendant was not aware

where the bullet went, she recovered the shell and discarded it in the trash. After this accidental discharge,

the defendant told the detectives that three bullets

remained in the clip of the gun.6 Over defense counsel’s

objection, the court allowed the state to play the audiotape of the defendant’s statement in its entirety and to

provide the jury with a transcript thereof.

The defendant was charged with one count of manslaughter in the first degree with a firearm in violation

of § 53a-55a (a)7 and one count of carrying a pistol

without a permit in violation of § 29-35 (a). As an alternative to manslaughter in the first degree, the court

charged the jury as to the lesser included offenses of

manslaughter in the second degree with a firearm in

violation of § 53a-56a8 and criminally negligent homicide in violation of General Statutes § 53a-58.9

On April 12, 2012, the jury found the defendant not

guilty of manslaughter in the first degree with a firearm,

but guilty of manslaughter in the second degree with

a firearm and carrying a pistol without a permit. On June

8, 2012, the court imposed a total effective sentence of

fifteen years incarceration, execution suspended after

eleven years, and three years probation. This appeal

followed. Additional facts and procedural history will

be set forth as necessary.

I

The defendant first contends that the portion of her

statement relating to the accidental discharge of the

gun the night before the shooting constituted evidence

of prior uncharged misconduct and, accordingly, the

court should have assessed its admissibility as such.10

The defendant argues that if the court had done so, it

would have concluded that the statement did not meet

one of the exceptions to the general bar on evidence

of uncharged misconduct, its prejudicial impact out-
weighed its probative value, and it therefore constituted

inadmissible evidence of uncharged misconduct. In

response, the state argues that the defendant’s claim is

not reviewable because defense counsel did not object

on this basis at trial. We agree with the state and decline

to review this claim because it was not raised before

the trial court and, therefore, was not preserved for

our review.

The record reveals the following additional procedural history. At trial, the state sought, outside of the

presence of the jury and over defense counsel’s objection, to introduce into evidence the audiotape of the

defendant’s statement relating to the accidental discharge. In his offer of proof, the prosecutor argued that

the evidence was admissible pursuantto State v. McCoy,

91 Conn. App. 1, 879 A.2d 534, cert. denied, 276 Conn.

904, 884 A.2d 1026 (2005), and State v. McMahon, 257

Conn. 544, 778 A.2d 847 (2001), cert. denied, 534 U.S.

1130, 122 S. Ct. 1069, 151 L. Ed. 2d 972 (2002), indicating

that in McCoy, this court held that a ‘‘defendant’s state

of mind at the time he fatally shot the victim may be

proven by his conduct before, during, and after the

shooting.’’ The prosecutor argued that the statement

was thus admissible because it was relevant to establishing the defendant’s state of mind at the time of

the shooting, specifically, that she acted with reckless

disregard and extreme indifference to human life, as

required by §§ 53a-55 (a) and 53a-55a. See footnote 7

of this opinion. The court then took a brief recess to

permit the court and defense counsel to review the case

law that the prosecutor had brought to the attention of

the court.

After the recess, the defendant argued that the accidental discharge did not constitute conduct, as the gun

merely had fallen from her pocket and the discharge

was not volitional, and that the statement was not relevant to the subsequent accidental shooting of the victim.11 In ruling that the evidence was admissible, the

court, paraphrasing McCoy, stated: ‘‘[T]he defendant’s

state of mind at that time of the shooting may be proven

by his or her conduct before, during, and after the

shooting. Such conduct yields facts and inferences that

demonstrate a pattern of behavior and attitude toward

the victim by the defendant that is probative of the

defendant’s mental state. And the evidentiary issue in

front of this court, the weapon used is the same weapon

that the state alleges is used in the shooting that

occurred on October 24, 2010, and it’s within a twentyfour hour period of the date the state alleges that the

manslaughter occurred. So, the court makes the following finding, that this evidence is relevant, the jury can

consider it, the jury could give whatever weight they

feel—they see fit to give to this evidence concerning

the discharge of the same weapon the night before in

the apartment where the defendant and the victim were

also together the night before. So, I will allow it in.’’
(Emphasis added.)

‘‘[T]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled.

This court is not bound to consider claims of law not

made at the trial. . . . In order to preserve an evidentiary ruling for review, trial counsel must object properly. . . . In objecting to evidence, counsel must

properly articulate the basis of the objection so as to

apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate

basis for a reviewable ruling.’’(Internal quotation marks

omitted.) State v. Jorge P., 308 Conn. 740, 753, 66 A.3d

869 (2013). ‘‘Our review of evidentiary rulings made by

the trial court is limited to the specific legal ground

raised in the objection [to the trial court]. . . . This

court reviews rulings solely on the ground on which

the party’s objection is based. . . . [T]o afford petitioners on appeal an opportunity to raise different theories

of objection would amount to ambush of the trial court

because, [h]ad specific objections been made at trial,

the court would have had the opportunity to . . .

respond.’’ (Citation omitted; internal quotation marks

omitted.) DiLieto v. County Obstetrics & Gynecology

Group, P.C., 297 Conn. 105, 133–34, 998 A.2d 730 (2010).

Our careful review of the record and trial transcripts

reveals that the defendant did not object to the admission of her statement concerning the accidental discharge of the gun on the ground that the statement

constituted inadmissible uncharged misconduct evidence. The prosecutor offered the defendant’s statement as evidence relevant to proving the defendant’s

state of mind at the time she fatally shot the victim,

and the court admitted the statement on that ground.

The defendant acknowledges that the court admitted

her statement concerning the accidental discharge as

relevant evidence of the crime with which she was

charged, rather than as evidence of uncharged misconduct, and never during the course of trial did defense

counsel suggest that the statement constituted evidence

of uncharged misconduct. Notably, the defendant did

not file a motion in limine seeking the preclusion of

uncharged misconduct evidence or request a limiting

instruction as to the restricted purpose for which the

jury might consider the statement. Indeed, the defendant argued that the accidental dropping of the gun did

not, in fact, constitute conduct. The defendant did not

assert any alternate ground for the objection, or object

in any manner to other evidence, presented later at

trial, pertaining to the accidental discharge.

For instance, after the state offered the defendant’s

statement into evidence over the defendant’s objection,

it proceeded to present other evidence indicating that

the gun in question had discharged the day before the

shooting.12 The state presented the testimony of Detective Mark Harkins of the New Haven Police Department,
who testified that on October 25, 2010, he was assigned

to investigate an unlawful discharge incident that

occurred at the Garden Street apartment, and that he

recovered a bullet embedded in a closet of an adjacent

apartment. He indicated that, on the basis of the trajectory of the bullet, it likely came from the defendant’s

apartment. Moreover, the defendant herself testified on

cross-examination that on the night of October 23, 2010,

the gun had fallen from her pocket and unexpectedly

discharged when it struck the ground. She further testified that she believed that the gun had then ‘‘jammed.’’

This testimony was admitted without objection.

Our Supreme Court has explained that, to afford petitioners on appeal an opportunity to raise different theories of objection would ‘‘amount to ambush of the trial

court because, [h]ad specific objections been made at

trial, the court would have had the opportunity to . . .

respond.’’ (Internal quotation marks omitted.) DiLieto

v. County Obstetrics & Gynecology Group, P.C., supra,

297 Conn. 134. In her objection and the ensuing argument, the defendant failed to provide the court with

any notice that she was objecting on the ground that

the statement constituted inadmissible uncharged misconduct. She then failed to object to other evidence,

presented later at trial, pertaining to the accidental discharge. In sum, because the defendant’s theory of objection seemingly has changed, and never was articulated

with precision at trial, we conclude that the claim is

not reviewable.

We must, however, briefly address the defendant’s

argument that this claim is preserved because, in a

pretrial notice of prior uncharged misconduct, the state

identified the incident of the accidental discharge as

evidence of uncharged misconduct that it may seek to

adduce at trial.13 The defendant contends that this

notice preserved her claim for review because ‘‘[i]t is

clear . . . that the evidence of the unintentional discharge of the weapon from the night prior to the fatal

shooting of [the victim], if it was to be admitted at all,

would be limited in its admission to the rules that govern

uncharged misconduct.’’ This argument is without

merit. Although the state filed a notice of intent to offer

evidence of uncharged misconduct in which it identified

the accidental discharge, at trial, the state ultimately

did not offer the statement for that purpose. Rather,

it was offered generally as evidence relevant to the

defendant’s state of mind. We are aware of no authority

stating that once a party identifies evidence as

uncharged misconduct in a pretrial disclosure, it is precluded at the time of trial from offering such evidence

for a proper purpose under an alternative theory of

admissibility. Indeed, our case law suggests the opposite. See State v. Hill, 307 Conn. 689, 704, 59 A.3d 196

(2013) (‘‘once the evidence can be admitted for a proper

purpose, that evidence no longer should be barred as

misconduct evidence because it has not been proffered
for that impermissible purpose’’); State v. Gant, 231

Conn. 43, 58, 646 A.2d 835 (1994) (‘‘We also reject the

defendant’s assertion that this evidence [of his threatening someone with a gun] constituted ‘prior misconduct’

or ‘bad character’ evidence that prejudiced the defendant. The state never offered this evidence for the purposes argued by the defendant on appeal, and the trial

court never gave such instructions to the jury.’’), cert.

denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291

(1995); State v. Huckabee, 41 Conn. App. 565, 581, 677

A.2d 452 (Schaller, J., dissenting) (‘‘The evidence was

not offered as evidence of misconduct for the purpose

of impeaching the credibility of the defendant or for

showing a criminal propensity. I conclude, therefore,

that [the] testimony on this matter does not constitute

misconduct evidence.’’), cert. denied, 239 Conn. 903,

682 A.2d 1009 (1996).

Finally, we reject the defendant’s argument that this

claimed error, though unpreserved, should be reviewed

under the plain error doctrine. See Practice Book § 60-

5. ‘‘[T]he plain error doctrine is reserved for truly

extraordinary situations where the existence of the

error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.

. . . [T]he claimed error must be both clear and harmful enough such that a failure to remedy the error would

result in manifest injustice.’’ (Internal quotation marks

omitted.) State v. Hill, supra, 307 Conn. 704–705. We

are not persuaded by the defendant’s summary assertion that this evidentiary claim warrants such extraordinary review. The defendant has not demonstrated that

the alleged impropriety she raises is so clear and so

harmful that manifest injustice will result if the judgment is not reversed. Nor has she shown that her claim

affects the fairness and integrity of and public confidence in judicial proceedings. We therefore conclude

that this is not an occasion requiring the reversal of the

trial court’s judgment under the plain error doctrine.

II

The defendant next claims that the court abused its

discretion by admitting her statement to the police relating to the accidental discharge of the gun because the

statement was not relevant to the issues in the case.

Specifically, the defendant argues that her statement

concerning the gun accidentally falling from her pocket

the night before the fatal shooting was not relevant

and should not have been admitted for the purpose of

showing that she acted recklessly and with a disregard

for human life. She summarily asserts thatthe statement

‘‘did not have a visible connection to the facts of the

charged offense,’’ and that the ‘‘gun dropping from the

defendant’s pocket the night before [the fatal shooting]

was totally unconnected to [the victim] or to the shooting of [the victim] the next day.’’ We are not persuaded.

At the outset, we first set forth the appropriate stan-
dard of review and applicable legal principles. ‘‘This

court reviews evidentiary rulings under the abuse of

discretion standard of review. . . . The trial court has

wide discretion to determine the relevancy of evidence

. . . . Every reasonable presumption should be made

in favor of the correctness of the court’s ruling in

determining whether there has been an abuse of discretion.’’ (Citation omitted; internal quotation marks omitted.) State v. Stephen O., 106 Conn. App. 717, 724, 943

A.2d 477, cert. denied, 287 Conn. 916, 951 A.2d 568

(2008).

It is axiomatic that evidence that is not relevant is

inadmissible. Conn. Code Evid. § 4-2. ‘‘Relevant evidence is evidence that has a logical tendency to aid the

trier in the determination of an issue. . . . One fact is

relevant to another if in the common course of events

the existence of one, alone or with other facts, renders

the existence of the other either more certain or more

probable. . . . Evidence is irrelevant or too remote if

there is such a want of open and visible connection

between the evidentiary and principal facts that, all

things considered, the former is not worthy or safe to

be admitted in the proof of the latter. . . . Evidence

is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to

support a relevant fact even to a slight degree, so long

as it is not prejudicial or merely cumulative. . . . Evidence is material where it is offered to prove a fact

directly in issue or a fact probative of a matter in issue.

. . . Materiality is determined by the pleadings (or

information) and the applicable substantive law.’’ (Citation omitted; internal quotation marks omitted.) State

v. Kantorowski, 144 Conn. App. 477, 487–88, 72 A.3d

1228, cert. denied, 310 Conn. 924, 77 A.3d 141 (2013).

To obtain a conviction of manslaughter in the first

degree with a firearm in violation of § 53a-55a (a), as

charged, the state bore the burden of proving that the

defendant ‘‘commit[ed] manslaughter in the first degree

as provided in section 53a-55, and in the commission

of such offense [she] use[d] . . . a pistol, revolver . . .

or other firearm. . . .’’ In turn, ‘‘[t]o obtain a [manslaughter] conviction under [§ ] 53a-55 (a) (3) . . . the

state must prove that the defendant (1) engaged in

conduct which creates a risk of death, (2) in so doing,

[she] acted recklessly14 (3) under circumstances evincing an extreme indifference to human life and (4) that

[her] conduct caused the death . . . of another person.’’ (Internal quotation marks omitted.) State v.

McMahon, supra, 257 Conn. 567–68. The state argues,

as it did at trial, that the defendant’s statements concerning the accidental discharge of the gun the night

before the shooting were relevant to establishing that

the defendant acted recklessly and with an extreme

indifference to human life at the time of the shooting

the next day.
The relevant factual issue before the jury was

whether the defendant was ‘‘aware of and consciously

disregard[ed] a substantial and unjustifiable risk . . .

of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct

that a reasonable person would observe in the situation

. . . .’’ General Statutes § 53a-3 (13). ‘‘Where, as here,

factual issues exist that are related to a defendant’s

[state of mind], we recognize that such factual issues

are characteristically proven by circumstantial evidence. . . . It is obvious that direct evidence of the

accused’s state of mind is rarely available and, therefore, intent is often inferred from conduct . . . and

from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.

. . . Accordingly, the defendant’s state of mind at the

time of the shooting may be proven by [her] conduct

before, during and after the shooting.’’ (Citation omitted; internal quotation marks omitted.) State v. McCoy,

supra, 91 Conn. App. 7.

We agree with the state that the statement concerning

the accidental discharge was relevant to proving that

the defendant acted recklessly the day of the fatal shooting. The defendant’s statement indicates that the defendant was aware that the gun could discharge

unexpectedly, and proof of such awareness strongly

tends to demonstrate recklessness. See General Statutes § 53a-3 (13). The defendant stated that at the time

of the accidental discharge the gun had ‘‘jammed,’’ and

later, at trial, testified that she did not take any actions

to unjam it or ensure that it was functioning properly

the next day. She further acknowledged in her statement that she was aware that three bullets remained

in the clip of the gun. This evidence undoubtedly aided

the jury reasonably to determine that the defendant

acted recklessly and with extreme indifference to

human life when she decided to, by her own admission,

‘‘play’’ with the gun by pointing it in the direction of

her friend and pulling the trigger the day after it unexpectedly discharged. The jury was tasked with

determining the mental state of the defendant. It was

well within the court’s discretion to admit evidence of

conduct occurring less than twenty-four hours before

the time of the commission of the crime, where it goes

to her knowledge and awareness of the existing circumstances posing a substantial and unjustifiable risk. It

tended to show that she was aware that the gun could

discharge easily and that it was functional. Accordingly,

because awareness of the defective operation and dangerousness of the gun was integral to demonstrating

recklessness, the trial court did not abuse its discretion

in concluding that the defendant’s statement relating

to the accidental discharge was relevant.

Finally, even if the court improperly admitted the

statement relating to the accidental discharge, which
we conclude was not the case, the error was harmless.

‘‘When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. . . . [O]ur

Supreme Court [has] addressed harmless error review

and determined that the proper standard is whether the

jury’s verdict was substantially swayed by the error.

Our Supreme Court further held that a nonconstitutional error is harmless when an appellate court has a

fair assurance that the error did not substantially affect

the verdict.’’ (Citations omitted; internal quotation

marks omitted.) State v. Franko, 142 Conn. App. 451,

460, 64 A.3d 807, cert. denied, 310 Conn. 901, 75 A.3d

30 (2013).

The defendant argues that admitting the statements

relating to the accidental discharge ‘‘substantially

swayed’’ the jury, and had they not been admitted, ‘‘the

jury would have seen [the defendant’s] role in [the victim’s] death as it was, negligent.’’15 We disagree. The

remaining evidence amply supported the jury’s finding

that the defendant acted in a reckless manner and was

sufficient forthe jury to have found the defendant guilty

of manslaughter in the second degree with a firearm.

Although the defendant objected to the admissibility

of the statement, additional evidence concerning the

accidental discharge—including the defendant’s own

testimony on cross-examination—was admitted without objection. The jury, therefore, was aware that the

defendant knew that the gun could discharge unexpectedly. Furthermore, the defendant testified that she had

been ‘‘playing’’ with the gun when she pointed it in

the direction of the victim and intentionally pulled the

trigger. The jury heard testimony that she had been

‘‘playing’’ this ‘‘game’’ for several weeks, despite having

been warned not do so. The defendant testified that

she purchased the gun and bullets ‘‘on the street’’ and

nevertook a firearms safety course. The defendant testified that, although she was aware that guns have the

capacity to kill, the activity of pointing the gun at each

other and pulling the trigger was ‘‘just a game for [her

and the victim].’’ She stated that although she believed

that the safety mechanism was engaged, she did not

remove the clip or bullets from the gun prior to pointing

it at the victim and pulling the trigger. Given the cumulative impact of the undisputed facts, a jury reasonably

could have concluded that the defendant consciously

disregarded a substantial and unjustifiable risk of causing the death of another person by routinely pointing

a loaded gun at another individual and pulling the trigger—regardless of whether the safety mechanism is

engaged. On the basis of this evidence, we have a fair

assurance that the defendant’s statement describing the

accidental discharge did not substantially affect the

verdict.

Under the given circumstances, with due regard for

the broad leeway possessed by trial courts in determin-
ing the admissibility of evidence, we conclude that the

court did not abuse its broad discretion in admitting

the statement describing the accidental discharge of

the firearm that occurred the night before the death of

the victim.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The defendant also was charged with and convicted of carrying a pistol

without a permit in violation of General Statutes § 29-35 (a). She does not

appeal from the conviction of that crime.

2 On October 24, 2010, the defendant was nineteen years old and the victim

was sixteen years old.

3 The defendant purchased the gun for $600 in either March or April, 2010,

after her boyfriend had been fatally shot outside of her home. She testified

that she purchased the gun and the bullets with which it was loaded ‘‘on

the street.’’ Furthermore, the state presented the testimony of Detective

Michael Wuchek of the New Haven Police Department, who testified that

no gun permit had been issued to the defendant.

4 The state presented testimony from Dr. Ira Kanfer, an assistant medical

examiner who performed the autopsy of the victim. Kanfer opined that the

defendant fired the gun from a distance of eighteen inches from the victim.

He also identified the victim’s cause of death to be a gunshot wound to

the head.

5 The following colloquy between the defendant and the detectives constitutes the portion of the audiotape to which the defense objected:

‘‘[Detective Wuchek]: Okay, um is this the first time that gun ever went off?

‘‘[The Defendant]: No.

‘‘Q. By accident.

‘‘A. No, it went off by accident in the kitchen yesterday. It had fell out

of my pocket while I was trying to heat up some food.

‘‘Q. At what time did that happen about?

‘‘A. I don’t know what time that happened.

‘‘Q. Was it in the morning or at night?

‘‘A. It was at night.

‘‘Q. It was late night or just nighttime?

‘‘A. Mm, just nighttime like ten.

‘‘Q. And uh you had the gun on you while you were cooking food?

‘‘A. No, I wasn’t cooking food. I was trying to heat up my food that I had

just went and got from my family, my other family house.

‘‘Q. [All right]. And then what happened you dropped it?

‘‘A. Yeah cause my pocket wasn’t big enough to hold it so it just dropped

out of my pocket and [went] off.

‘‘Q. So when it fell it went off?

‘‘A. Mm hm.

‘‘Q. How many times did it go off?

‘‘A. Just went off once. It jammed.

‘‘Q. And was [the victim] in the house with you at that time?

‘‘A. Yes, she was.

‘‘Q. Okay.

‘‘A. She kind’a thought it was funny. Our ears were all ringing.

‘‘Q. Were either of you two hurt?

‘‘A. No.

‘‘Q. Do you know what happened to the bullet? Where the bullet went?

‘‘A. No, but I know where the shell was at.

‘‘Q. What did you do with the shell?

‘‘A. Discard of it.

‘‘Q. How did you discard of it? Did you throw it in the garbage can? Did

you flush it down the toilet? What did you do?

‘‘A. I discarded it. Do I have to say how I discarded it?

‘‘Q. Yeah if you could.

‘‘A. I was like I just threw it out in the trash. . . .

‘‘Q. And uh it had three bullets in the . . .

‘‘A. Three bullets.

‘‘Q. Left.

‘‘A. In the clip, yes.’’

6 At trial, Mark Harkins, a detective with the New Haven Police Department, testified that the bullet was recovered from an adjacent apartment

where it was found embedded in the ceiling of a closet.
7 General Statutes § 53a-55a (a) provides in relevant part: ‘‘A person is

guilty of manslaughter in the first degree with a firearm when he commits

manslaughter in the first degree as provided in section 53a-55, and in the

commission of such offense he uses, or is armed with and threatens the

use of . . . a pistol, revolver . . . or other firearm. . . .’’

General Statutes § 53a-55 (a) provides in relevant part: ‘‘A person is guilty

of manslaughter in the first degree when . . . (3) under circumstances

evincing an extreme indifference to human life, he recklessly engages in

conduct which creates a grave risk of death to another person, and thereby

causes the death of another person.’’

8 General Statutes § 53a-56a (a) provides in relevant part: ‘‘A person is

guilty of manslaughter in the second degree with a firearm when he commits

manslaughter in the second degree as provided in section 53a-56, and in

the commission of such offense he uses . . . a pistol . . . or other firearm. . . .’’

General Statutes § 53a-56 (a) provides in relevant part: ‘‘A person is guilty

of manslaughter in the second degree when: (1) He recklessly causes the

death of another person . . . .’’

9 General Statutes § 53a-58 (a) provides in relevant part: ‘‘A person is

guilty of criminally negligent homicide when, with criminal negligence, he

causes the death of another person . . . .’’

We note that in instructing the jury with respect to criminally negligent

homicide, the court referenced General Statutes § 53a-54 instead of § 53a58. The defendant has not raised any claim in this regard. Section 53a-54

was repealed in 1973. See Public Acts 1973, No. 73-137, § 15. Any discrepancy,

however, is harmless as the court applied the correct law. In instructing

the jury as to this charge, the court stated: ‘‘A person is guilty of criminal[ly]

negligent homicide when, with criminal negligence, she causes the death

of another person.’’ See State v. Johnson, 288 Conn. 236, 285, 951 A.2d 1257

(2008) (‘‘[a]s long as [the instructions] are correct in law, adapted to the

issues and sufficient for the guidance of the jury . . . we will not view the

instructions as improper’’ [internal quotation marks omitted]).

10 ‘‘Evidence of a defendant’s uncharged misconduct is inadmissible to

prove that the defendant committed the charged crime or to show the

predisposition of the defendant to commit the charged crime. . . . Exceptions to this rule have been recognized, however, to render misconduct

evidence admissible if, for example, the evidence is offered to prove intent,

identity, malice, motive, a system of criminal activity or the elements of a

crime. . . . To determine whether evidence of prior misconduct falls within

an exception to the general rule prohibiting its admission, we have adopted

a two-pronged analysis. . . . First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions.

Second, the probative value of such evidence must outweigh the prejudicial

effect of the other crime evidence.’’ (Internal quotation marks omitted.)

State v. Pena, 301 Conn. 669, 673–74, 22 A.3d 611 (2011).

11 Specifically, defense counsel stated: ‘‘[McCoy] does talk about conduct

before, during, and after the incident. The fact that something fell out of

someone’s pocket does not constitute conduct. . . . It is—it’s the same

weapon, that’s correct, but I think the offer of proof relates to the state of

mind and conduct on the part of the defendant, and, in fact, that really isn’t

conduct at all.I don’t think it’s relevant at all to what happened the following

day.’’ (Emphasis added.)

12 Reference was also made to the accidental discharge, without objection,

before the state offered the statement into evidence. Vreeland, the defendant’s housemate, had testified that on the night of October 23, 2010, she

was in the Garden Street apartment when she heard a gunshot. She testified

that the defendant and the victim were also both present in the Garden

Street apartment at the time. Vreeland, however, did not know the source

of the gunshot and, at the time, believed that it originated from outside

the apartment.

13 On January 13, 2011, the defendant filed a motion for disclosure of

uncharged misconduct, which the court granted on January 26, 2011. In

response, on November 29, 2011, the state filed a notice of prior uncharged

misconduct in which it notified the defendant of its intent to offer evidence

related to the ‘‘prior incident of discharge of a firearm on or about the

23rd day of October, 2010, in the [Garden Street apartment], by this same

defendant.’’ Trial commenced on April 9, 2012, some four months after the

state filed its notice.

14 General Statutes § 53a-3 (13) provides: ‘‘A person acts ‘recklessly’ with

respect to a result or to a circumstance described by a statute defining an
offense when he is aware of and consciously disregards a substantial and

unjustifiable risk that such result will occur orthat such circumstance exists.

The risk must be of such nature and degree that disregarding it constitutes

a gross deviation from the standard of conduct that a reasonable person

would observe in the situation . . . .’’

15 ‘‘A person acts with ‘criminal negligence’ with respect to a result or to

a circumstance described by a statute defining an offense when he fails to

perceive a substantial and unjustifiable risk that such result will occur or

that such circumstance exists. The risk must be of such nature and degree

that the failure to perceive it constitutes a gross deviation from the standard

of care that a reasonable person would observe in the situation . . . .’’

General Statutes § 53a-3 (14).