State v. Bruny

• Citation: 269 A.3d 38,342 Conn. 169
• Decision Date: 07 February 2022
• Docket Number: SC 20174
• Parties: STATE of Connecticut v. Jean BRUNY
• Court: Supreme Court of Connecticut

342 Conn. 169

269 A.3d 38

STATE of Connecticut

v.Jean BRUNY

SC 20174

Supreme Court of Connecticut.

Argued November 19, 2020

Officially released February 7, 2022^*

Pamela S. Nagy, assistant public defender, for the appellant (defendant).

Matthew A. Weiner, assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, Seth R. Garbarsky, senior assistant state's attorney, and Lisa M. D'Angelo, assistant state's attorney, for the appellee (state).

Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn, Ecker and Keller, Js.

MULLINS, J.

This is the companion case to State v. Gore , 342 Conn. 129, 269 A.3d 1 (2022), decided today. In Gore , we amended § 7-3 (a) of the Connecticut Code of Evidence to incorporate an exception to the ultimate issue rule for opinion testimony that relates to the identification of criminal defendants and other persons depicted in surveillance video or photographs.¹ Our decision in Gore addresses how the change to our Code of Evidence affects the admissibility of lay opinion testimony identifying a defendant in surveillance video or photographs. In this appeal, we consider how the rule change affects the admissibility of expert opinion testimony relating to the identification of a defendant in surveillance video or photographs. Put simply, we conclude that such testimony is admissible if it meets the requirements of § 7-2 of the Connecticut Code of Evidence.²

The defendant, Jean Bruny, appeals from the judgment of conviction, rendered following a jury trial, of murder in violation of General Statutes § 53a-54a (a) and criminal possession of a pistol or revolver in violation of General Statutes (Rev. to 2013) § 53a-217c (a) (1).³ In this appeal, the defendant claims that the trial court (1) improperly admitted testimony from four lay witnesses identifying the defendant in video surveillance footage, (2) improperly admitted expert testimony regarding an enhancement of the video surveillance footage and incorrectly concluded that defense counsel had opened the door to certain testimony elicited during the prosecutor's redirect examination of the expert, (3) improperly denied the defendant's motion to suppress the identifications of the defendant made by Nigel Watts, and (4) improperly denied the defendant's request for a special credibility instruction as to a witness whom the defendant claims should have been treated as a jailhouse informant. Finally, the defendant claims that there was insufficient evidence to support his conviction for criminal possession of a pistol or revolver. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the night of August 10, 2013, the defendant, his foster brother, Teon Simons (Teon), and Teon's cousins, Solomon Graham (Solomon), Tyrone Graham (Tyrone) and Jamal Hopper, were all at Tyrone's home in Waterbury. Also at Tyrone's home were Latoya Maia, Randy Hall and some of Maia's friends. Sometime between 11 and 11:30 p.m., the group decided to go to the Cheetah Club in New Haven, where a rapper, Lil Durk, was performing that night. Traveling in multiple cars, the group left Waterbury sometime after 11:45 p.m. and arrived at the Cheetah Club at approximately 12:30 a.m. While they were at the club, the group spent most of their time in a room called the Cheetah room.

About forty-five minutes after the defendant's group arrived at the club, the victim, Torrance Dawkins, arrived with his cousin, Watts, and a few friends. The victim's group, who were celebrating the victim's birthday that night, walked over to a corner of the Cheetah room near the emergency exit and stood at the end of a long bar that lined a wall in the room. The defendant's group, including Hall, was at the opposite corner of the room, near a door that led to the patio area of the club, where Lil Durk was performing. Watts recognized Hall, with whom he had "bad blood ...." He warned the others in his group to expect a fight.

Soon thereafter, the defendant gradually made his way toward the area where the victim's group was standing and positioned himself at the emergency exit door. From that position, the defendant stood behind the victim's group as they faced Hall. At that point, Hall threw a bottle at the victim's group.

Seconds after Hall threw the bottle, the defendant stepped forward from the emergency exit to within a foot or two from the victim, aimed a handgun at the back of his head and fired. The victim fell to the ground. Almost everyone else, including the defendant, ran from the room. The defendant slid to the floor while he sprinted toward the exit from the Cheetah room, and then jumped up and raced out of the room. He then ran out the front entrance of the club.

Shortly after the New Haven police responded to reports of a shooting at the club, Detective David Zaweski arrived at the scene and reviewed the video surveillance footage, which had captured the shooting. Zaweski downloaded the Cheetah Club surveillance videos to a thumb drive. A copy of the footage was later sent to Anthony Imel, a forensic examiner with the Federal Bureau of Investigation (FBI).

On January 15, 2015, Zaweski, Special Agent Jonathan Lauria of the FBI and a third investigator interviewed the defendant. During the interview, the defendant declined to identify photographs of Tyrone and Solomon and denied having been at the Cheetah Club on the night of the shooting. He claimed that he had visited Connecticut only once, when he was younger, with his foster mother, Stephanie Simons (Stephanie).

On April 6, 2016, while the defendant was in federal custody, Lauria again interviewed him. When Lauria showed the defendant still photographs from the surveillance videos, the defendant denied seeing himself in the photographs and claimed that he did not recall being present at the Cheetah Club. While he was in federal custody, the defendant's phone calls were recorded.

During a phone call he placed sometime after his interview with Lauria, the defendant said that he had seen the video surveillance footage, and "it's looking real bad." When the person on the other end of the line asked if the video footage was "clear as day," the defendant responded that it was not, but that it was "clear enough, damn it." Speculating on his chances of securing a plea deal, the defendant stated that he "might be lucky" if he received "fifteen."

The defendant was subsequently charged with murder in violation of § 53a-54a (a), criminal possession of a pistol or revolver in violation of § 53a-217c (a) (1), and carrying a pistol without a permit in violation of General Statutes § 29-35 (a).⁴

Following a jury trial, he was found guilty of murder. The trial court subsequently found him guilty of criminal possession of a pistol or revolver. The court imposed a total effective sentence of fifty years of incarceration.

I

The defendant contends that the trial court abused its discretion in admitting the testimony of four lay witnesses, Tyrone, Hopper, Stephanie and Maia, identifying him as one of the persons depicted in the surveillance video of the interior and exterior of the Cheetah Club. In his original brief to this court, the defendant claimed that the lay opinion testimony improperly embraced an ultimate issue to be decided by the jury and, therefore, violated § 7-3 of the Connecticut Code of Evidence.⁵ Following oral argument, we ordered the parties to submit supplemental briefs addressing two issues: (1) "Whether this court should adopt rule 704 (a) of the Federal Rules of Evidence and overrule State v. Finan , 275 Conn. 60, 61, 881 A.2d 187 (2005) ?" And (2) "[i]f the court adopts rule 704 (a) of the Federal Rules of Evidence, what standard should govern the admission of expert opinion testimony, relating to the identification of a defendant in surveillance photographs or video, that embraces an ultimate issue?" As we explain in State v. Gore , supra, 342 Conn. at 134–35, 269 A.3d 1, rather than adopt rule 704 (a) of the Federal Rules of Evidence, we amend § 7-3 (a) of the Connecticut Code of Evidence to incorporate an exception to the ban on lay opinion testimony that embraces an ultimate issue for opinion testimony that relates to the identification of criminal defendants and other persons depicted in surveillance video or photographs.⁶ Applying that rule, we conclude that the trial court did not abuse its discretion in admitting the testimony.

The following additional facts and procedural back-ground are relevant to our resolution of this issue. There were multiple video surveillance cameras at the Cheetah Club, including cameras that captured video of the exterior of the building, the interior entrance and two different angles of the interior of the Cheetah room. Prior to trial, the defendant moved to preclude the state from presenting any testimony from witnesses identifying him in the video surveillance footage. Relying on § 7-3 (a) of the Connecticut Code of Evidence and this court's decision in State v. Finan , supra, 275 Conn. at 67, 881 A.2d 187, the defendant argued that any testimony identifying him in the video footage would constitute improper lay opinion embracing an ultimate issue to be decided by the trier of fact.

During argument on the motion to preclude opinion testimony, defense counsel did not dispute that Stephanie, Tyrone and Hopper had general familiarity with the defendant.⁷ The debate instead focused on the timing of the identifications. Specifically, the parties disagreed regarding whether witness testimony that identified the defendant in the video surveillance footage, but did not identify him in the footage covering the shooting or the few seconds preceding and following it, would embrace an ultimate issue, in violation of Finan . The trial court ruled that Finan did not bar the state from presenting testimony that identified the defendant in the surveillance video while engaged in noncriminal activity before and after the...