State v. Gore

• Decision Date: 07 February 2022
• Docket Number: SC 20211
• Parties: STATE of Connecticut v. Antron GORE
• Court: Connecticut Supreme Court

342 Conn. 129

269 A.3d 1

STATE of Connecticut

v.Antron GORE

SC 20211

Supreme Court of Connecticut.

Argued September 17, 2020

Officially released February 7, 2022^*

Julia K. Conlin, assigned counsel, with whom was Emily Graner Sexton, assigned counsel, for the appellant (defendant).

Linda F. Currie-Zeffiro, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, former state's attorney, and Chris A. Pelosi, former senior assistant state's attorney, for the appellee (state).

Lisa J. Steele filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.

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

MULLINS, J.

When the judges of the Superior Court adopted the Connecticut Code of Evidence in 1999, § 7-3 (a) codified the existing common-law evidentiary rule, which prohibited lay opinion testimony that embraced an ultimate issue to be decided by the trier of fact.¹ In accordance with that rule, this court held, in State v. Finan , 275 Conn. 60, 66–67, 881 A.2d 187 (2005), that lay opinion testimony identifying a defendant in video surveillance footage is prohibited when that identification embraces an ultimate issue.

In this appeal, we reconsider the wisdom of the "ultimate issue rule" as applied to lay witness identifications of persons depicted in video surveillance footage.² In this limited context, we join the majority of federal and state jurisdictions in concluding that the rule is neither tenable nor necessary. Accordingly, we hereby amend § 7-3 (a) of the Connecticut Code of Evidence to incorporate an exception to the ultimate issue rule for lay opinion testimony that relates to the identification of persons depicted in surveillance video or photographs, and overrule State v. Finan , supra, 275 Conn. 60, 881 A.2d 187.³ As we explain in part I of this opinion, we adopt a totality of the circumstances test for determining whether lay opinion testimony identifying a person in surveillance video or photographs is admissible.

The defendant, Antron Gore, 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 firearm in violation of General Statutes § 53a-217 (a)(1).⁴ The defendant raises two claims on appeal. First, he contends that the trial court improperly allowed an officer to testify regarding a witness’ identification of the defendant in a still photograph taken from video surveillance footage. Second, the defendant claims that the trial court improperly denied his motion for a new trial based on juror misconduct.

With respect to the defendant's first claim, the parties originally relied on State v. Finan , supra, 275 Conn. 60, 881 A.2d 187, in support of their respective positions. The defendant argued that, because the witness’ identification constituted a lay opinion that embraced the ultimate issue to be decided by the trier of fact, the admission of the officer's testimony recounting that lay opinion violated § 7-3 (a) of the Connecticut Code of Evidence. The state responded that the officer's testimony recounted the witness’ factual recognition of the defendant in the photograph, and, therefore, the testimony was not lay opinion testimony subject to § 7-3 (a) of the Connecticut Code of Evidence. Following oral argument, we ordered the parties to submit supplemental briefs addressing two issues: (1) "Whether this court should adopt [r]ule 704 (a) of the Federal Rules of Evidence⁵ and overrule State v. Finan , [supra, 275 Conn. 60, 881 A.2d 187] ?"

(Footnote added.) And (2) "[i]f the court adopts [r]ule 704 (a) of the Federal Rules of Evidence, what standard should govern the admission of lay opinion testimony identifying a defendant as depicted in photographic or video surveillance?"⁶

In his supplemental brief, the defendant urges the court to refrain from abandoning the ultimate issue rule and overruling Finan . The defendant contends that the rule change would be drastic, and that he would suffer unfair prejudice if the court applies the rule in the present case. The defendant argues that, if the court adopts rule 704 (a) of the Federal Rules of Evidence, the standard by which the admissibility of lay opinion testimony identifying a defendant in photographic or video surveillance should be crafted in a manner designed to protect, to the greatest extent possible, the jury's role as the fact finder.

As we explain subsequently in this opinion, our amendment of § 7-3 (a) to the Connecticut Code of Evidence to incorporate an exception for testimony relating to the identification of persons depicted in surveillance video or photographs does not affect the result in this appeal.⁷ We affirm the judgment of the trial court.

The jury could have found the following relevant facts. At approximately 1 p.m. on January 20, 2017, the defendant shot and killed the victim, Jason Reddick, at a Sunoco gas station located at 550 Albany Avenue in Hartford. Video surveillance cameras at the gas station, as well as cameras located at nearby buildings on Albany Avenue and Garden Street, captured the shooting. The video footage showed the victim, wearing a turquoise hooded sweatshirt, walking toward one of the gas pumps at the station. The shooter, subsequently identified as the defendant, wore blue and white Nike sneakers and a Los Angeles Lakers cap. He entered the frame, pulled out a gun and fired once at the victim, hitting him in the torso. The victim retreated on foot northbound on Garden Street. The shooter followed the victim, first in his vehicle, then on foot. The shooter's vehicle was an older model, green, four door Volvo, with mismatched front and rear rims, a blue sticker attached to the windshield and a unique license plate holder.

Officers who reported to the scene discovered the victim's body in a parking lot at 520 Albany Avenue. They also discovered one spent .25 caliber shell casing near one of the gas pumps in the gas station lot and a trail of blood leading northbound on Garden Street. When the police later searched the defendant's vehicle, they found, under the driver's seat, an unfired, .25 caliber bullet, with the same casing as the one found at the gas station.

On the day following the shooting, the police located an older model, green Volvo in the driveway at 31 Winchester Street in Hartford, the home of Caron Canty. The Volvo had mismatched rims, a blue sticker on the windshield and a license plate frame resembling the one depicted in the surveillance video. The license plates on the car were registered to a different vehicle, owned by Crystal Gore. Detectives spoke with Canty, who told them that the car belonged to the defendant. Canty accompanied the detectives to the major crimes division of the Hartford Police Department, where he gave a statement. Canty had never seen anyone other than the defendant drive the Volvo, and, as far as Canty knew, the defendant was the only person who had keys to the car. The defendant lived in Middletown and, when staying in Hartford, he sometimes left his car in Canty's driveway.

Canty described the defendant as a close friend, whom he had known for "half [his] life." He had seen the defendant, whom he referred to as his "cousin," on most days around the time of 2016 and 2017. He, in fact, had seen the defendant at approximately 5:30 p.m. on the day of the shooting. On that day, the defendant arrived at Canty's home in the Volvo, wearing what Canty described as a red "Nike outfit." The defendant, Canty, and the defendant's sister's boyfriend spent the evening in the south end of Hartford together. The next day, Canty and the defendant spent several hours together at Canty's house. The defendant departed before the police arrived, but he left his car in Canty's driveway.

At the station, the lead detective in the case, Jeffrey Placzek, showed Canty a photograph of the defendant that had been posted on the defendant's Facebook page in December, 2016, less than one month before the shooting. Canty identified the defendant in the photograph, then signed, dated, and wrote the defendant's nickname, "Tron," at the bottom of the photograph. In the photograph, the defendant wore a Lakers cap and blue and white sneakers. Placzek then showed Canty a 2015 booking photograph of the defendant. After identifying the defendant in the photograph, Canty signed, dated, and wrote "my cousin Tron" underneath the photograph.

Placzek next showed Canty a still photograph of the vehicle in the video surveillance footage. Canty identified the vehicle as the defendant's, then signed, dated, and indicated on the back of the photograph that it was the defendant's vehicle.⁸ Finally, Placzek showed Canty a still photograph taken from the video surveillance footage. Canty identified the person depicted in the photograph as the defendant. He signed, dated, and wrote "Tron" on the back of the photograph.

Subsequently, during the defendant's trial, Placzek testified that Canty identified the subject depicted in the still photograph as the defendant. Following his conviction, the defendant appealed directly to this court.

I

We first address the defendant's claim that the trial court improperly allowed Placzek to testify that Canty had identified the defendant as the person depicted in the still photograph taken from the video surveillance footage. The parties’ disagreement centers on whether the trial court properly concluded that Canty's identification was not a statement of opinion but, rather, a recounting of Canty's factual recognition of the defendant. The state posited that it was permissible factual testimony. The defendant countered that it was prohibited lay opinion. Until today, that distinction mattered.

As we explain in this opinion, the application of the ultimate issue rule, as set forth in § 7-3 (a) of the Connecticut Code of Evidence, to identifications of criminal defendants in video surveillance footage has spawned a line of c...