State v. Sumler

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    STATE OF CONNECTICUT v. JAMAL SUMLER
                 (AC 43024)
                      Prescott, Suarez and Bishop, Js.

                                   Syllabus

Convicted, after a jury trial, of the crimes of murder, conspiracy to commit
   robbery in the first degree and carrying a pistol without a permit, and,
   after a trial to the court, of the crime of criminal possession of a pistol or
   revolver, the defendant appealed. The defendant’s conviction stemmed
   from an incident in which he shot and killed a convenience store clerk
   while he and another individual were robbing the store. Prior to trial,
   the trial court denied the defendant’s motion in limine to preclude the
   state from introducing testimony from his former probation officer, D,
   regarding her identification of him in a surveillance video taken from
   the store and in a still photograph from that video. This court affirmed
   the defendant’s conviction, and the defendant filed a petition for certification to appeal to our Supreme Court, which granted the petition in
   part and vacated this court’s judgment in part and remanded the case
   to this court to consider whether, under our Supreme Court’s recent
   decision in State v. Gore (

), the trial court abused its
   discretion by admitting D’s testimony. The court in Gore articulated a
   new standard requiring courts to consider, under the totality of the
   circumstances, whether a witness was more likely than the jury to
   correctly identify the defendant from surveillance video or photographs,
   thereby meeting the requirements of the provision (§ 7-1) of the Connecticut Code of Evidence, and set forth four factors to be used in that
   consideration. Held that the trial court did not abuse its discretion by
   admitting D’s testimony, as the four factors outlined in Gore weighed
   in favor of admitting D’s testimony: under the first factor, which considers the witness’ general familiarity with the defendant’s appearance, D
   clearly had more than a minimal degree of familiarity with the defendant
   that enabled her to identify him more reliably than the jury based on
   the frequency, number and duration of their past contacts, the duration
   of their relationship and time since their last meeting, the relevant
   viewing conditions and the nature of their relationship; moreover, the
   second factor, which assesses the witness’ familiarity with the defendant’s appearance, weighed in favor of admitting D’s testimony in light
   of her familiarity with his appearance at the time the video was taken
   and with a lanyard worn by the defendant in the video that resembled
   a similar lanyard that D had seen the defendant wear, the third factor,
   which assesses whether there had been a change in the defendant’s
   appearance between the time the surveillance video or photographs
   were taken and trial, weighed in favor of admitting D’s testimony because
   the defendant wore eyeglasses at trial but was not known to wear
   eyeglasses when the video was recorded and this change in the defendant’s appearance put D in a better position to identify the defendant
   than the jury, which had only seen the defendant wearing eyeglasses,
   and, finally, the fourth factor, which addresses the quality of the video
   or photographs, as well as the extent to which the subject is depicted
   in the surveillance video or photograph, weighed in favor of admitting
   D’s testimony because the video contained multiple views from inside
   and outside of the store, the defendant was not clearly, fully or solely
   depicted in either the video or photograph, the video and the photograph
   were neither unmistakably clear nor hopelessly obscure, and they fell
   in the range of quality that favors admissibility.
        Argued October 25—officially released December 20, 2022

                             Procedural History

  Substitute information charging the defendant with
the crimes of felony murder, murder, conspiracy to
commit robbery in the first degree, criminal possession
of a pistol or revolver and carrying a pistol without a
permit, brought to the Superior Court in the judicial
district of New Haven, where the court, Vitale, J.,
granted the defendant’s motion to sever the charge of
criminal possession of a pistol or revolver; thereafter,
the charges of felony murder, murder, conspiracy to
commit robbery in the first degree and carrying a pistol
without a permit were tried to the jury before Vitale,
J., and the charge of criminal possession of a pistol or
revolver was tried to the court; verdict and judgment
of guilty; subsequently, the court vacated the conviction
of felony murder, and the defendant appealed to this
court, Prescott, Devlin and Bishop, Js., which affirmed
the trial court’s judgment; thereafter, the defendant, on
the granting of certification, appealed to our Supreme
Court, which vacated in part this court’s judgment and
remanded the case to this court for further proceedings.
Affirmed.
  Naomi T. Fetterman, with whom, on the brief, was
Peter G. Billings, for the appellant (defendant).
  Laurie N. Feldman, assistant state’s attorney, with
whom, on the brief, were Patrick Griffin and John P.
Doyle, Jr., state’s attorneys, and Lisa M. D’Angelo,
senior assistant state’s attorney, for the appellee (state).
                         Opinion

   PRESCOTT, J. This case returns to us on remand
from our Supreme Court with direction to consider
whether, in light of our Supreme Court’s decisions in
State v. Bruny, 

, 

 (2022), and
State v. Gore, 

, 

 (2022), the trial
court abused its discretion by admitting ‘‘testimony of
the defendant’s former probation officer identifying the
defendant [Jamal Sumler] in a still photograph and
video surveillance footage . . . .’’1 State v. Sumler, 

, 961,     A.3d      (2022). Having considered
the new rule governing the admissibility of opinion testimony identifying an individual in surveillance videos
or photographs set forth in Bruny and Gore, we conclude that the trial court did not abuse its discretion
by admitting testimony from the defendant’s former
probation officer with respect to the identity of the
defendant in a still photograph and video surveillance
footage.2 Accordingly, we affirm the judgment of the
trial court.
   The following relevant facts, which were previously
set forth in State v. Sumler, 

, 

 (2020), vacated in part, 

,
A.3d      (2022), or reasonably found by the trial court,
and procedural history are relevant to this claim. ‘‘On
April 6, 2015, the defendant and two other individuals,
Dwayne ‘Hoodie’ Sayles and Leighton Vanderberg, were
travelling together in a green Ford Focus driven by
Vanderberg. The defendant sat in the front passenger
seat and was wearing sweatpants, a gray hoodie, and
dark sneakers. . . .
  ‘‘The three men drove to Eddy’s Food Centre (Eddy’s)
located at 276 Howard Avenue in Bridgeport. Once they
arrived, the defendant exited the car, while Vanderberg
and Sayles remained inside. . . . [The defendant] went
into Eddy’s for a few minutes, returned to the car,
and then went back into the store a second time. [An
individual, later identified as the defendant, was captured on Eddy’s surveillance video footage.] Upon his
return to the car the second time, the defendant handed
Sayles a pair of black gloves. He also retrieved his
revolver and put it in the waistband of his sweatpants.
   ‘‘Thereafter, the three men drove to the Fair Haven
section of New Haven. Vanderberg pulled onto Kendall
Street toward Fulton Terrace and parked the car,
intending to smoke ‘dutches’.3 Not having enough
cigars, someone suggested that they buy more cigars
from a nearby store. The defendant and Sayles then
exited the vehicle and walked up Fulton Terrace, with
the defendant a few steps in front of Sayles, while Vanderberg remained in the car. The defendant entered the
Pay Rite convenience store (Pay Rite) connected to a
CITGO gas station located at 262 Forbes Avenue.
  ‘‘Pay Rite surveillance videos captured the defendant,
wearing a black mask, black gloves, a gray hoodie, gray
sweatpants, and dark sneakers, walk to the counter and
point a gun at the clerk, Sanjay Patel, the victim in this
case. While pointing the gun at the victim, the defendant
walked behind the counter. The surveillance footage
captured a second individual . . . later determined to
be Sayles . . . entering the store and walking up to
the counter. The victim struggled with the defendant
and picked up a wooden stool. Sayles then pulled out
a gun, aimed it at the victim, fired, and put the gun
away in his hoodie pocket. The defendant, pointing his
gun at the victim, used his other hand to pass items
over the counter to Sayles, who put the items in his
pocket before turning and leaving the store. As the
defendant bent down to take . . . items, the victim hit
him on his upper body with the stool. The defendant
then shot the victim and ran out of the store. The victim
subsequently died from his injuries.’’ (Footnote omitted;
footnote in original.) 

 190–91.
  ‘‘On April 17, 2015, detectives met with [Jayme]
DeNardis, the defendant’s previous probation officer.
DeNardis viewed a still photograph from video surveillance footage captured from Eddy’s on April 6, 2015.
She signed the photograph and identified the defendant
as the individual in the footage and as being one of her
probationers. The defendant filed a motion in limine to
preclude DeNardis from testifying at trial about the
identity of the individual captured on surveillance video
footage from Eddy’s.4 He claimed that her identification
of him in the video [and the photograph] would, pursuant to [State v. Finan, 

, 

 (2005),
overruled by State v. Gore, 

, 

(2022)], constitute improper testimony as to ‘the ultimate issue in question: identity.’
   ‘‘A hearing was held on October 26, 2017, during
which the state presented DeNardis [as a witness]
. . . . The defendant reiterated his objection to the
admission of DeNardis’ proffered testimony on the basis
that it constitutes her opinion about the ultimate issue
of fact—whether he was the individual on the surveillance video committing the crimes with which he was
charged—which is prohibited under Finan.
  ‘‘The court denied the defendant’s motion in limine,
concluding that the proffered evidence is not ‘tantamount to a legal opinion about the defendant’s criminal
culpability.’ ’’5 (Footnote added; footnotes omitted.)
State v. Sumler, supra, 

. In denying
the defendant’s motion in limine, the court made several
factual determinations regarding DeNardis’ familiarity
with the defendant. The court found that DeNardis met
with the defendant face-to-face fifty-nine times over a
period of one year and ten months. These meetings
took place at the defendant’s home, DeNardis’ office,
and police stations. DeNardis met with the defendant
as often as five to six times per month and the meetings
averaged between five and twenty minutes. DeNardis
last saw the defendant on April 1, 2015, and identified
the defendant only sixteen days later on April 17, 2015.6
On the basis of these circumstances, the court concluded that ‘‘her identification is reliable under the totality of circumstances based on her essentially unchallenged level of contact with the defendant over an
almost two year time period.’’
   ‘‘At trial, DeNardis testified, among other things . . .
that on April 17, 2015, she identified the defendant in
a still photograph shown to her by New Haven police.
She was shown at trial two segments from the surveillance video at Eddy’s and identified the defendant as
the person in the footage. At the conclusion of the trial,
the court instructed the jury that ‘identification is a
question of fact for you to decide, taking into consideration all of the evidence that you have seen and heard
in the course of the trial.’ ’’ State v. Sumler, supra, 

.
   ‘‘[The] jury found [the defendant] guilty of felony
murder in violation of General Statutes § 53a-54c, murder in violation of General Statutes § 53a-54a (a), conspiracy to commit robbery in the first degree in violation
of General Statutes §§ 53a-48 (a) and 53a-134 (a) (2),
and carrying a pistol without a permit in violation of
General Statutes § 29-35 (a), and the trial court, Vitale,
J., found him guilty of criminal possession of a pistol
or revolver in violation of General Statutes § 53a-217c
(a) (1).’’ Id., 189. The defendant appealed from the judgment of conviction, claiming that the court ‘‘(1) improperly failed to recuse itself from the defendant’s trial
because [the trial judge] previously had signed warrants
for the defendant’s arrest and for the search of his
home, (2) abused its discretion by allowing opinion
testimony of the defendant’s identity on video surveillance footage [and in a still photograph], and (3) improperly denied the defendant’s motion to suppress statements that he made to a police officer while being
transported to the police department.’’ Id., 189–90.
   This court affirmed the judgment of conviction, concluding that (1) the defendant’s claim that the court
improperly failed to recuse itself was unpreserved; (2)
the court did not abuse its discretion by allowing the
defendant’s probation officer to identify the defendant
in the still photograph and video surveillance footage
at trial because, according to the test set forth in Finan
and as applied by this court to a similar factual scenario
in State v. Holley, 

, 

(2015), rev’d on other grounds, 

, 

 (2018), the probation officer’s identification of the
defendant did not constitute an opinion on the ultimate
issue in the case; and (3), the court did not improperly
deny the defendant’s motion to suppress certain evidence. State v. Sumler, supra, 

, 202–
204. Following the release of this court’s decision, the
defendant filed a petition for certification to appeal
with our Supreme Court on September 3, 2020.
   After the defendant filed his petition for certification
to appeal our decision in State v. Sumler, supra, 

, our Supreme Court decided Gore and
Bruny. Gore effectively ‘‘amend[ed] § 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 . . . .’’7 State v.
Gore, supra, 

. Gore overruled Finan and
set forth new factors for courts to consider when
determining whether opinion testimony regarding the
identity of an individual in a surveillance video or photograph is admissible.8 Id., 148–49. Specifically, the court
in Gore articulated a new standard requiring courts to
consider whether, under the totality of the circumstances, a witness is more likely to correctly identify
the defendant than is the jury. Id., 150–51. This standard
replaced the rule in Finan that required courts to determine whether testimony from a witness about an individual’s identity in surveillance video or photographs
was barred by § 7-3 (a) as an opinion on the ultimate
issue in the case. State v. 

.
   On May 17, 2022, after the release of our Supreme
Court’s decision in Gore, our Supreme Court granted
the defendant’s petition for certification only ‘‘as to the
defendant’s claim that the testimony of the defendant’s
former probation officer identifying the defendant in a
still photograph and video surveillance footage constituted impermissible opinion testimony on the ultimate
issue . . . .’’ State v. Sumler, supra, 

. It
denied the petition for certification ‘‘as to all other
claims presented for review.’’9 Id. Subsequently, our
Supreme Court vacated in part this court’s judgment
in State v. Sumler, supra, 

, and
remanded the case to this court to reconsider the defendant’s claim regarding the allegedly improper opinion
testimony, in light of the new rule set forth in Gore.
State v. Sumler, supra, 

.
  On June 3, 2022, this court ordered the parties to file
supplemental briefs addressing ‘‘the defendant’s claim
that the testimony of the defendant’s former probation
officer identifying the defendant in a still photograph
and video surveillance footage constituted impermissible opinion testimony on the ultimate issue in light of
our Supreme Court’s decisions in [Bruny] and [Gore].’’
Both parties submitted supplemental briefs and this
court subsequently heard oral argument.10 Additional
facts will be set forth as necessary.
   The sole question presented to us on remand is
whether the trial court abused its discretion by admitting opinion testimony from the defendant’s probation
officer identifying the defendant in the photograph and
surveillance video. The defendant argues that the court
abused its discretion because, in his view, the Gore
factors weigh against admitting DeNardis’ testimony
identifying the defendant. The state argues that the
court did not abuse its discretion because the Gore
factors weigh in favor of admitting DeNardis’ testimony.
We agree with the state.
  The following standard of review and legal principles
are relevant to our resolution of this appeal. Whether
to admit opinion testimony identifying an individual in
a surveillance video or photograph is an evidentiary
ruling that will not be disturbed unless it amounts to
an abuse of discretion. See State v. Gore, supra, 342
Conn 159–63; see also State v. Rivera, 

, 

 (2016) (‘‘[t]he trial court has wide
discretion in its rulings on evidence and its rulings will
be reversed only if the court has abused its discretion
or an injustice appears to have been done’’ (internal
quotation marks omitted)), cert. denied, 

,

 (2017).
   As discussed previously in this opinion, Gore effectively ‘‘amend[ed] § 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 . . . .’’ State v. Gore, supra, 

. ‘‘[Our Supreme Court] now hold[s] that opinion
testimony that relates to the identification of persons
depicted in surveillance video or photographs is not
inadmissible solely because it embraces an ultimate
issue. Lay opinion testimony identifying a person in
surveillance video or photographs is admissible if that
testimony meets the requirements of § 7-1 of the Connecticut Code of Evidence. That is, such testimony is
admissible if the opinion is rationally based on the perception of the witness and is helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue.’’ (Footnote omitted; internal
quotation marks omitted.) Id., 148; see also Conn. Code
Evid. § 7-1.11
   ‘‘Testimony identifying a defendant as depicted in
surveillance video or photographs meets the requirements of § 7-1 of the Connecticut Code of Evidence
and is therefore admissible if there is some basis for
concluding that the witness is more likely to correctly
identify the defendant from the photograph [or video]
than is the jury. . . . In making this determination, we
evaluate the following four factors, considering the
totality of the circumstances: (1) the witness’ general
level of familiarity with the defendant’s appearance
. . . (2) the witness’ familiarity with the defendant’s
appearance, including items of clothing worn, at the
time that the surveillance video or photographs were
taken . . . (3) a change in the defendant’s appearance
between the time the surveillance video or photographs
were taken and trial, or the subject’s use of a disguise
in the surveillance footage . . . and (4) the quality of
the video or photographs, as well as the extent to which
the subject is depicted in the surveillance footage.’’
(Citations omitted; emphasis added; internal quotation
marks omitted.) State v. Bruny, supra, 342 Conn. 181–
82, citing State v. Gore, supra, 

. Because
we consider the totality of the circumstances to determine whether opinion testimony identifying an individual is admissible, no single factor is dispositive. State
v. Bruny, supra, 184.
  Accordingly, turning our attention to the present
case, we must apply the factors set forth in Gore to
determine whether DeNardis was more likely than the
jury to identify correctly the defendant from the photograph and video testimony, thereby meeting the requirements of § 7-1 of the Connecticut Code of Evidence.
The first factor—the witness’ general level of familiarity
with the defendant’s appearance—strongly weighs in
favor of admitting DeNardis’ testimony with respect to
the defendant’s identity in the photograph and surveillance video. ‘‘In order for the witness’ general familiarity
with the defendant’s appearance to weigh in favor of
admitting such testimony, the proponent of the testimony must demonstrate that the witness possesses
more than a minimal degree of familiarity with the
defendant. . . . [If] a witness who is familiar with the
defendant’s appearance views surveillance video or
photographs that may or may not depict him, that witness brings to the task of identification an ability the
jury cannot acquire in the context of a criminal trial. The
witness’ process of recognition is informed by having
observed the defendant in different contexts, over an
extended period of time. That wealth of experience
renders the testimony helpful to the jury.’’ State v. Gore,
supra, 

.
   To determine whether a witness has sufficient general familiarity with the defendant, courts may consider
a number of relevant circumstances indicative of the
witness’ relationship with the defendant and, in turn,
the reliability of the witness’ identification. Id., 159.
‘‘[C]ourts should consider the particular, relevant circumstances, including, but not limited to, the frequency,
number and duration of any individual prior contacts;
the duration of the entire course of contacts and the
length of time since the contacts; the relevant viewing
conditions; and the nature of the relationship between
the witness and the defendant, if any.’’ Id.
  In the present case, the court, although it was evaluating the admissibility of the testimony using a different
standard, considered the circumstances described in
the preceding paragraph and concluded that ‘‘DeNardis
possessed sufficient relevant familiarity with the defendant . . . .’’ Specifically, the court found that DeNardis
had known the defendant for one year and ten months
in her role as the defendant’s probation officer.
DeNardis first met the defendant during an intake interview on May 28, 2013, and last met with the defendant
on April 1, 2015.12 In that time, DeNardis met with the
defendant face-to-face fifty-nine times in a variety of
settings. DeNardis met with the defendant as often as
five to six times per month, and the meetings averaged
between five and twenty minutes. These regular meetings took place at the defendant’s home, DeNardis’
office, and police stations. On the basis of the frequency,
number, and duration of their past contacts, the duration of their relationship and time since their last meeting, the relevant viewing conditions and, finally, the
nature of their relationship, DeNardis clearly had more
than a minimal degree of familiarity with the defendant
that enabled her to identify him more reliably than
the jury.
   The second factor—the witness’ familiarity with the
defendant’s appearance, including items of clothing
worn at the time that the surveillance video or photographs were taken—also weighs in favor of admitting
DeNardis’ testimony about the identity of the defendant
in the surveillance video and photograph. The defendant wore eyeglasses throughout the trial.13 At the time
of the surveillance video, however, the defendant was
not wearing eyeglasses. DeNardis was familiar with the
defendant’s appearance at the time, having seen the
defendant only five days before the surveillance video
was recorded. During that time, the defendant was not
known to wear eyeglasses.14 DeNardis was also familiar
with the lanyard that the defendant was wearing around
his neck in the surveillance video. In their past interactions, DeNardis had seen the defendant wear a similar
lanyard. The lanyard depicted in the surveillance video
resembled a lanyard that the defendant wore attached
to his employee identification card. See United States
v. Saniti, 

 (9th Cir.) (per curiam) (court
properly admitted identification testimony of witnesses
who were able to identify clothing worn by individual
in surveillance photographs as clothing that belonged
to defendant), cert. denied, 

, 

,

 (1979); see also United States v. Pierce,

 (11th Cir.) (court properly admitted
identification of defendant by witness familiar with
defendant’s appearance when wearing baseball hat and
sunglasses, items defendant was wearing in surveillance photograph), cert. denied, 

, 

, 

 (1998).15 DeNardis’ familiarity
with the defendant’s appearance at the time of the video
and with the lanyard worn by the defendant in the video
enabled her to identify him more reliably than the jury.
  The third factor, which calls on us to consider
whether there has been a change in the defendant’s
appearance between the time the surveillance video or
photographs were taken and trial, or whether the subject used a disguise, also weighs in favor of admitting
DeNardis’ identification testimony. As previously dis-
cussed in this opinion, the defendant wore eyeglasses
at trial but was not known to wear eyeglasses when
the surveillance video was recorded. Although we agree
with the defendant that his wearing of eyeglasses in
the presence of the jury at the time of the trial does
not amount to a disguise, this change in the defendant’s
appearance put DeNardis in a better position to identify
the defendant than the jury, which had only seen the
defendant wearing eyeglasses. See, e.g., United States v.
Walker, 

, 205 (2d Cir. 2020) (court properly
admitted testimony identifying defendant when defendant wore eyeglasses at trial but was not wearing eyeglasses in surveillance video), cert. denied,   U.S.    ,

, 

 (2021).
   The defendant argues that his wearing of eyeglasses
throughout trial did not significantly change his appearance. Specifically, the defendant argues that, because
the eyeglasses did not obstruct his face from view, we
should not conclude that the third Gore factor weighs
in favor of admitting DeNardis’ testimony. The third
factor, however, does not require a significant change
in the defendant’s appearance or that the change in
appearance obstructs the view of the defendant in the
surveillance video or photograph. Rather, we must
determine if there has been a change in the defendant’s
appearance. We are not persuaded that a witness who
is familiar with an individual’s appearance without eyeglasses is unable to better identify that individual, when
the individual is not wearing eyeglasses, than a jury
who has only seen the individual wearing eyeglasses.
   Finally, the fourth factor, which addresses the quality
of the video or photographs, as well as the extent to
which the subject is depicted in the surveillance video
or photograph, also weighs in favor of admitting
DeNardis’ testimony. The video contained views from
directly behind Eddy’s counter where the cash register
is located, a side view adjacent to the counter, a view
of the outside of the store, and a view from inside the
store showing the entry door.16 Depending on the view
of the camera, the defendant’s face in the video is more
or less obscured, and the defendant is not the only
person in the surveillance video or photograph. The
photograph, which was taken from the surveillance
video, shows the body of the individual identified as
the defendant largely obscured by the store counter.
The defendant is wearing a hoodie and facing the camera. In the photograph, Eddy’s store clerk is pictured
in the foreground and the defendant is in the middle
ground of the photograph. Simply put, the defendant
was not clearly, fully, or solely depicted in either the
surveillance video or the photograph.
   Turning to the quality of the surveillance video and
the photograph, the court described the video as being
‘‘clear enough . . . .’’ ‘‘With respect to the quality of
the video or photographs . . . this factor favors admis-
sibility when the [video or] photographs are not either
so unmistakably clear or so hopelessly obscure that the
witness is no [better suited] than the jury to make the
identification.’’ (Internal quotation marks omitted.)
State v. Gore, supra, 342 Conn. 164–65. Thus, the surveillance video and the still photograph taken from it were
neither unmistakably clear nor hopelessly obscure and
fall within the range of quality that favors admissibility.
   The quality of the surveillance video and the photograph, as well as the extent to which the defendant was
depicted in them, both lead us to conclude that the
fourth factor also weighs in favor of admitting DeNardis’
testimony identifying the defendant. See, e.g., State v.
Davis, supra, 344 Conn. 143–44 (quality of video favored
admission of witness’ testimony identifying defendant
when video showed defendant with his face obscured
at certain angles and wearing hat and winter jacket);
see also, e.g., United States v. Jackman, 

 (1st Cir. 1995) (court properly admitted witnesses’
identifications of individual pictured in somewhat
blurred photographs that showed only part of individual’s face).
   The defendant argues on remand that the state
already conceded that the video was of clear quality.17
We do not agree. At oral argument before this court,
the state denied making any concession to the clear
quality of the video. The defendant appears to mistakenly rely on the state’s reference to the court’s description of the video as being ‘‘clear enough’’ for an individual to make an identification, to support his claim that
the state conceded to the court’s recognition of the
clarity of the video. The terms ‘‘clear enough’’ and
‘‘clear’’ are distinguishable from each other for purposes
of the fourth Gore factor, which favors the admission
of surveillance video and photographs that are neither
‘‘so unmistakably clear or so hopelessly obscure . . . .’’
State v. Gore, supra, 

. Although the jury
may have been able to compare the defendant as he
appeared before it at trial to the surveillance video
and photograph, DeNardis was in a better position to
reliably identify him.
   Finally, the defendant argues that it was neither
DeNardis’ general familiarity with the defendant, nor
her specific familiarity with the defendant’s appearance
at the time the surveillance video was recorded, that
enabled her to identify the defendant. Rather, the defendant argues that DeNardis was able to identify the
defendant only because of the clarity of the surveillance
video and photograph and the ‘‘ ‘unobstructed view’ ’’
of the defendant depicted in them. Simply put, the
defendant asserts that DeNardis was equally as well
situated as the jury to identify the defendant. First, as
we articulated in our preceding analysis of the fourth
factor, we are not persuaded by the defendant’s argument that the surveillance video or photograph shows
the defendant clearly and without obstruction. Furthermore, even if we assume, arguendo, that the surveillance video and photograph provide a clear and unobstructed view of the defendant, the clarity of the
surveillance video or photograph is only one of the four
factors set forth in Gore. We consider the Gore factors in
their totality and, thus, a single factor is not dispositive.
Accordingly, the defendant’s argument that DeNardis
was able to identify him only because he clearly was
depicted in the surveillance video and photograph is
unpersuasive and ignores the weight that we must give
to the first, second, and third factors.
   For the foregoing reasons, the factors articulated in
Gore all weigh in favor of admitting DeNardis’ testimony
about the identity of the defendant in the photograph
and surveillance video. Given the totality of the circumstances, the court did not abuse its discretion by admitting DeNardis’ testimony.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
     Our Supreme Court vacated in part this court’s judgment in State v.
Sumler, 

, 

 (2020), vacated in part, 

,        A.3d      (2022). In Sumler, this court addressed the defendant’s
three claims made on appeal, namely, that the trial court ‘‘(1) improperly
failed to recuse itself from the defendant’s trial, (2) abused its discretion by
allowing opinion testimony of the defendant’s identity on video surveillance
footage [and in a still photograph], and (3) improperly denied the defendant’s
motion to suppress statements that he made to a police officer . . . .’’ State
v. Sumler, supra, 199 Conn. App. 189–90. We disagreed with his claims and
affirmed the trial court’s judgment. Id., 190. Subsequently, the defendant
filed a petition for certification that our Supreme Court granted in part. See
State v. Sumler, 

, 

 (2022). The defendant’s petition
for certification was granted as to his second claim, that is, that the court
abused its discretion by allowing opinion testimony with respect to the
defendant’s identity in the video surveillance footage and still photograph. 

Our Supreme Court subsequently issued a corrected order on the defendant’s
petition for certification in which it vacated this court’s judgment as it
pertained to the defendant’s claim that the court abused its discretion by
allowing opinion testimony with respect to the defendant’s identity. State
v. Sumler, 

,         A.3d      (2022). The petition for certification
was denied as to the defendant’s other claims. 

 Thus, our judgment in
State v. Sumler, supra, 

, was unaffected as it pertains
to those claims, namely, that the trial court improperly declined to recuse
itself and improperly denied the defendant’s motion to suppress. Thus, our
prior decision as to those claims remains in effect. Further procedural
history will be set forth in more detail in the facts and procedural history
section of this opinion.
   2
     The new rule and factors set forth in Gore were rearticulated in our
Supreme Court’s decision in Bruny. The standard set forth in the two
opinions for admitting lay opinion testimony about the identity of an individual in surveillance video or photographs is the same. Going forward, the
new standard set forth in Gore and Bruny will be referred to simply by
reference to Gore.
   3
     ‘‘A ‘dutch’ is a marijuana filled cigar.’’ State v. Sumler, supra, 

 n.2.
   4
     We read the motion in limine to have requested that DeNardis be precluded from testifying about the identity of the defendant in both the photograph taken from the surveillance video and the surveillance video itself.
The motion in limine asked the court to exclude DeNardis’ testimony concerning the identification of the defendant in the surveillance video. During
the hearing on the motion in limine, the court established that the photograph
in which DeNardis identified the defendant was undisputedly taken from
the surveillance video. The state intended to elicit testimony from DeNardis
regarding her identification of the defendant in the photograph. The state
also intended to have DeNardis attempt to identify the defendant in the
surveillance video when she viewed the video for the first time at trial before
the jury. Thus, the motion in limine sought to preclude DeNardis from
testifying about the identity of the defendant in the surveillance video itself
as well as the identity of the defendant in the photograph taken from the
surveillance video.
   5
     ‘‘The court summarized its findings as follows: ‘The record reflects that
. . . DeNardis is not claimed to be an eyewitness to the crime that occurred
in Pay Rite . . . and, further, that the crime now before the court did not
occur at Eddy’s . . . .’ The court then explained that the proffered evidence
‘does not encompass an ultimate issue before the jury, namely, whether the
defendant was one of the individuals present inside of the Pay Rite . . . at
the time the crimes before the jury were committed.’ It explained that the
jury could ‘view the tape, the still photograph from the tape, and the defendant himself to determine if he is the person depicted in the video or not.’ ’’
State v. Sumler, supra, 199 Conn. App. 200–201.
   6
     The trial court stated that DeNardis last saw the defendant on April 1,
2015, and identified the defendant on April 17, 2015. The court, however,
mistakenly stated that DeNardis last saw the defendant ‘‘approximately five
days before the alleged crime . . . .’’
   7
     Section 7-3 of the Connecticut Code of Evidence provides in relevant
part: ‘‘(a) General Rule. Testimony in the form of an opinion is inadmissible
if it embraces an ultimate issue to be decided by the trier of fact, except
that, other than as provided in subsection (b), an expert witness may give
an opinion that embraces an ultimate issue where the trier of fact needs
expert assistance in deciding the issue. . . . ’’
   8
     The court in Gore stated: ‘‘To the extent that this court’s decision in
Finan is inconsistent with the rule we adopt today, that decision and its
progeny; see State v. 

; State v. Felder, [

, 

 (2007)]; are overruled.’’ State v. Gore, supra,
342 Conn. 148–49. The court in Finan interpreted § 7-3 (a) of the Connecticut
Code of Evidence to bar the admission of a witness’ opinion testimony
about the identification of the defendant as a perpetrator of the crime at
issue because the testimony encompassed an ultimate issue in the case.
State v. 

.
   9
     The May 17, 2022 order states: ‘‘The petition is granted as to the defendant’s claim that the testimony of the defendant’s former probation officer
identifying the defendant in a still photograph and video surveillance footage
constituted impermissible opinion testimony on the ultimate issue and
denied as to all other claims presented for review. It is further ordered that
the case is remanded to the Appellate Court with direction to consider the
defendant’s claim regarding the allegedly improper opinion testimony in
light of this court’s decisions in State v. Bruny, [supra] 

, and
State v. Gore, [supra] 

 . . . .’’ State v. Sumler, supra, 

. On October 20, 2022, our Supreme Court issued a corrected
order on the petition for certification that included the same language but
also vacated in part the Appellate Court’s judgment in State v. Sumler,
supra, 

. State v. Sumler, supra, 

.
   10
      After the parties submitted their supplemental briefs, our Supreme Court
issued its decision in State v. Davis, 

, 145, 

(2022), in which it applied the Gore factors retroactively. In Davis, the
defendant argued that it would be improper to apply Gore retroactively. 

144–45. Our Supreme Court was not persuaded and stated that, ‘‘as a general
rule, judicial decisions apply retroactively to pending cases . . . . A common-law decision will be applied nonretroactively only if: (1) it establishes
a new principle of law, either by overruling past precedent on which litigants
have relied . . . or by deciding an issue of first impression whose resolution
was not clearly foreshadowed . . . (2) given its prior history, purpose and
effect, retrospective application of the rule would [impede] its operation; and
(3) retroactive application would produce substantial inequitable results,
injustice, or hardship. . . .
   ‘‘Moreover, it is axiomatic that [t]he issue of retroactivity of decisional
law is a question of policy to be decided by [this court], and may be decided
by the policy consideration of whether litigants could be deemed to have
relied on past precedent or whether the new resolution of an old issue
was foreshadowed, or whether equity, given the particular facts, requires
a prospective application only. . . . In the present case, it is unpersuasive
to suggest that this court’s present application of the standard set forth in
Gore gives rise to any of the concerns set forth in the preceding paragraph.
That is, although Gore does establish a new principle of law by overruling
past precedent, the defendant has not argued, let alone demonstrated, that
he relied to his detriment on one legal standard over another during the
events underlying this case, the underlying trial, or in bringing the present
appeal . . . despite being afforded an opportunity to do so in the supplemental briefing ordered by this court to address the applicability of Gore
to this case.’’ (Citations omitted; internal quotation marks omitted.) 

145–46. Our Supreme Court went on to note that, even if Gore had not been
applied retroactively, application of the rule in Finan would reach the same
result. 

. In the present case, neither the defendant nor the state argue
against applying Gore retroactively.
   11
      Section 7-1 of the Connecticut Code of Evidence provides: ‘‘If a witness
is not testifying as an expert, the witness may not testify in the form of an
opinion, unless the opinion is rationally based on the perception of the
witness and is helpful to a clear understanding of the testimony of the
witness or the determination of a fact in issue.’’
   12
      DeNardis remained the defendant’s probation officer until April 15, 2015.
   13
      Both DeNardis and another witness described the defendant as wearing
eyeglasses in court.
   14
      Another witness, who had known the defendant during the time the
surveillance video was recorded, testified that he had never seen the defendant wear eyeglasses prior to trial.
   15
      ‘‘Because § 7-1 of the Connecticut Code of Evidence essentially mirrors
rule 701 of the Federal Rules of Evidence, we look to federal decisions for
guidance in determining whether the trial court . . . acted within its discretion in allowing the testimony.’’ (Footnote omitted.) State v. Gore, supra,

.
   16
      The court found that ‘‘[t]he tape has four different perspectives and the
tape is divided into four segments. Those segments are a view directly
behind the counter where the cash register is located, a side view adjacent
to the counter, a view of the outside of the store depicting the sidewalk,
and the streets and a view of the exterior of the front door as well as a
view from inside the store showing the entry door. The tape lasts in total
approximately fifteen minutes. There are several individuals depicted walking or standing during the video. So the defendant is not the only person
depicted in the video . . . .’’
   17
      The defendant refers us to the state’s principal brief in State v. Sumler,
supra, 

, in which it argued: ‘‘The trial court found that,
unlike, the ‘brief and difficult to discern’ videotape in [Finan] . . . the clear
quality of Eddy’s videotape gave a basis for making an identification as a
matter of fact and not mere suspicion . . . .’’ The state’s statement, however, relies on the court’s description of the surveillance video as being
‘‘clear enough . . . .’’ The court never described the surveillance video as
having a ‘‘clear quality.’’