State v. Rivera

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    STATE OF CONNECTICUT v. XAVIER RIVERA
                 (SC 20539)
             Robinson, C. J., and McDonald, D’Auria, Mullins,
                       Kahn, Ecker and Keller, Js.

                                   Syllabus

Convicted of murder, conspiracy to commit assault in the first degree,
     unlawful restraint in the first degree, unlawful discharge of a firearm,
     and carrying a pistol or revolver without a permit in connection with
     the shooting death of the victim, the defendant appealed. The defendant
     had gone with two other individuals, V and C, to an automobile parts
     store in Bridgeport to confront the victim about a break-in in which the
     defendant believed the victim was involved. The victim was ultimately
     shot and killed on a street adjacent to the store parking lot. V testified
     at the defendant’s trial that he had witnessed the defendant strike the
     victim in the face with a gun and drag him across the parking lot. V
     also testified that he had heard gunshots and witnessed the defendant
     drive away from the scene in his car. In addition, approximately two
     weeks after the shooting, the police approached V about the victim’s
     death, and V thereafter used a cell phone to surreptitiously record a
     conversation between him and the defendant in which the defendant
     allegedly confessed to his commission of the murder. V returned to the
     police station, played the audio recording of the conversation on his
     cell phone for the police, and e-mailed an electronic copy of the recording
     to the police. The police transferred a copy of the recording to a DVD,
     which was admitted into evidence. V testified that he had listened to
     the recording on the DVD proffered by the state and that the recording
     had not been manipulated since it was recorded. V also testified that
     he no longer possessed the cell phone that he had used to record the
     conversation, and, as a result, the original recording was no longer
     available. Another eyewitness to the events in question, R, testified that
     he saw a man dressed in all white pistol whip the victim multiple times.
     The state and the defense entered into a stipulation, which was provided
     to the jury, that R was unable to identify the defendant as the individual
     whom R identified as wearing all white when, prior to trial, R was
     presented with a photographic array that included a photograph of the
     defendant. The Appellate Court affirmed the judgment of the trial court,
     and the defendant, on the granting of certification, appealed to this
     court. Held:
1. The defendant could not prevail on his claim that the Appellate Court
     incorrectly concluded that the trial court had not abused its discretion
     in admitting into evidence the DVD containing the audio recording of
     his alleged confession:
    a. There was no merit to the defendant’s claim that the recording was
    inadequately authenticated and, therefore, was inadmissible under the
    Connecticut Code of Evidence (§ 9-1): the fact that the recording proffered by the state was stored electronically did not require a meaningful
    departure from well established methods of authentication; moreover,
    the state made a prima facie showing of the recording’s authenticity, as
    V testified that he personally recorded the conversation, that he subsequently e-mailed an electronic copy of the recording to the police, that
    the recording proffered by the state had not been altered, and that he
    was familiar with the voices on that recording, and the detective who
    received the electronic copy of the recording testified that he had
    received that copy from V via e-mail and then transferred it to the DVD
    that the state was seeking to introduce; furthermore, once the state made
    its prima facie showing, the evidence was admissible, and the ultimate
    determination of authentication and what weight to give that evidence
    was for the jury.
    b. The defendant’s claim that the unavailability of the original recording
    stored on V’s cell phone rendered subsequent electronic copies of that
    recording inadmissible under the best evidence rule was unavailing;
    unchallenged testimony established that the original recording was no
    longer available, the defendant conceded that there was no indication
    that V lost or destroyed his cell phone with the intention of making the
    original recording unavailable for trial, and, in the absence of any claim
    that the state had destroyed or lost the original in bad faith in order to
    avoid producing it, the DVD containing an electronic copy of the original
    recording was admissible under the Connecticut Code of Evidence (§ 10-
    3) as a form of secondary evidence of the contents of the original recording.
2. The defendant could not prevail on his claim that the Appellate Court
     incorrectly concluded that the trial court had not abused its discretion
     when it directed the jury to disregard portions of defense counsel’s
     closing argument concerning the prosecutor’s failure to ask R for an
     in-court identification of the defendant, as any error on the part of the
     trial court was harmless: the state conceded R’s inability to identify the
     defendant as the person whom he identified as the man in white through
     its stipulation to the fact that R was unable to pick the man wearing
     all white out of a photographic array that included a photograph of the
     defendant, defense counsel emphasized this point repeatedly during his
     closing argument without comment or contradiction by the prosecutor,
     and, therefore, this court could not conclude that the exclusion of a
     single, inferential argument relating to R’s continued inability to identify
     the defendant at trial would have changed the result that the jury
     reached; moreover, it was undisputed that the state’s case against the
     defendant did not include a definitive identification from any neutral
     witnesses, as all of the witnesses to the events in question could provide
     only a general description of the person in white, and R’s testimony
     accounted for only a small portion of the evidence presented in the
     state’s strong case against the defendant.
           Argued January 12—officially released June 21, 2022

                             Procedural History

   Two part substitute information charging the defendant, in the first part, with the crimes of murder, conspiracy to commit assault in the first degree, unlawful
restraint in the first degree, unlawful discharge of a
firearm and carrying a pistol or revolver without a permit, and, in the second part, with criminal possession
of a firearm, brought to the Superior Court in the judicial
district of Fairfield, where the first part of the information was tried to the jury before Kavanewsky, J.; verdict
of guilty; thereafter, the state entered a nolle prosequi
as to the second part of the information, and the court,
Kavanewsky, J., rendered judgment in accordance with
the verdict; subsequently, the defendant appealed to
this court, which transferred the appeal to the Appellate
Court, Alvord, Elgo and Pellegrino, Js., which affirmed
the trial court’s judgment, and the defendant, on the
granting of certification, appealed to this court. Affirmed.
  Lisa J. Steele, assigned counsel, for the appellant
(defendant).
  Kathryn W. Bare, senior assistant state’s attorney,
with whom, on the brief, were Joseph T. Corradino,
state’s attorney, and Marc R. Durso, senior assistant
state’s attorney, for the appellee (state).
                          Opinion

   KAHN, J. The defendant, Xavier Rivera, appeals from
the judgment of the Appellate Court, which affirmed
the judgment of the trial court, rendered after a jury
trial, convicting him of the crimes of murder in violation
of General Statutes § 53a-54a (a), conspiracy to commit
assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-48, unlawful restraint in
the first degree in violation of General Statutes § 53a-95,
unlawful discharge of a firearm in violation of General
Statutes § 53-203, and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a).
In the present appeal, the defendant claims that the
Appellate Court incorrectly concluded that the trial court
had not abused its discretion by (1) admitting an audio
recording allegedly containing his confession into evidence, and (2) directing the jury to disregard portions
of defense counsel’s closing argument relating to the
absence of an in-court identification from one of the
state’s witnesses. For the reasons that follow, we reject
both of those claims and, accordingly, affirm the judgment of the Appellate Court.
   The following undisputed facts and procedural history are relevant to our consideration of the present
appeal. The victim, Miguel Rivera,1 was shot and killed
on North Avenue in the city of Bridgeport at 12:22 a.m.
on December 24, 2016. A specialized group of detectives
in the Bridgeport Police Department gathered video
surveillance footage from various security cameras in
the area around that shooting. Video surveillance footage from one set of cameras located at an auto repair
shop one block south from the scene of the shooting
shows two vehicles turning onto North Avenue from
River Street at approximately 12:18 a.m. The first of
those two vehicles pulled into the parking lot of a strip
club located near that intersection. Two individuals
dressed in black exited from that vehicle, crossed to
the other side of North Avenue, and then can be seen
walking north toward the parking lot of a nearby AutoZone store. That footage also shows the second vehicle,
which the police subsequently identified as a Cadillac
DTS,2 driving north for a few hundred feet and eventually parking in front of an office building located across
the street from the southern entrance to the AutoZone
parking lot.
   A second set of video surveillance cameras, located
at a fast food restaurant just north of that office building
and directly across North Avenue from AutoZone, shows
one individual dressed in all white, and then later two
individuals dressed in black, walking into the AutoZone
parking lot. Moments later, footage from those same
video surveillance cameras shows the person in white
dragging the victim back toward the parking lot’s southern entrance.3 At that same moment, one of the two
people in black can be seen extending his arm as if he
was pointing a handgun at the cars located behind them.
   Additional footage from video surveillance cameras
at the auto repair shop shows the victim being forced
across North Avenue by the person in white and by one
of the two people in black. The victim is then eventually
pushed out of view alongside of the southern wall of
the office building. A few seconds later, the victim can
be seen running back out onto the street and fleeing
north for a short distance, where he ultimately collapsed
and died on the sidewalk in front of the fast food restaurant.4 The Cadillac can then be seen moving in reverse,
turning around, and driving away to the south without
its headlights on. Two individuals dressed in black then
walk to the car parked near the strip club and drive away
at approximately 12:23 a.m.
   The state presented physical and forensic evidence
at trial. The medical examiner assigned to this case,
Frank Evangelista, testified that the victim had suffered
blunt force trauma to the face and a total of four gunshot
wounds to his torso and lower extremities. One of those
gunshot wounds entered the victim’s back and exited
from his chest. The victim sustained two other gunshot
wounds to his thighs, and a fourth gunshot wound to
his left knee. Three of these shots went completely
through the victim’s body; the fourth, however, left a
bullet lodged in the victim’s left thigh. Evangelista testified that the victim had bled to death and stated that
the process would not have been instantaneous.
   A firearms examiner, Marshall Robinson, testified that
bullets and casings connected to this crime came from
two distinct guns: a .22 caliber revolver and a nine millimeter Luger semiautomatic firearm. Robinson testified
that the bullet recovered from the victim’s left thigh and
another found by the police on North Avenue came from
the .22 caliber weapon, whereas four bullet casings discovered on the southern side of the office building came
from the nine millimeter Luger firearm. Neither of these
weapons was ever found by the police.
   The state also presented testimony from various witnesses who were near the scene of the shooting. The
first of those witnesses, McDonald Bogues, was in his
car outside of the fast food restaurant with his wife,
Rosemarie Dixon. Bogues testified that he heard what
he had initially thought was a car backfiring across the
street at AutoZone, and then started to see cars speeding
out of the nearby parking lot. Bogues then saw four men
on the other side of North Avenue: (1) the victim, who
was wearing black, (2) a second man dressed in black
who was pulling the victim, (3) a taller,5 lighter-skinned
man dressed in ‘‘full white’’ that was pushing the victim
and holding a semiautomatic pistol, and (4) a third man
dressed in black who was standing farther away and
‘‘wasn’t in the mix of things.’’ Bogues eventually lost sight
of the altercation after the victim was forced across the
street but then heard a single gunshot followed by three
more in quick succession. After the victim had run back
onto the street and collapsed on the sidewalk in front
of the fast food restaurant, Bogues saw the man in white
get into a ‘‘dark[er]’’ colored car parked on North Avenue,
turn around in reverse, and then drive away without its
headlights on.
   Like Bogues, Dixon testified that a man dressed in
white and one of the men dressed in black had dragged
the victim across the street and that, shortly after they
moved out of sight, she heard a series of gunshots. Dixon
also described the individual in white as a taller man
with a fair complexion and stated that she had called
the police after seeing a black handgun in his right hand.
After the victim had run out onto North Avenue and
collapsed on the sidewalk in front of the fast food restaurant, Dixon saw the man in white getting into a dark
colored car and turning around on North Avenue.
   A third eyewitness, Jesus Rodriguez, was seated in his
car in the AutoZone parking lot when the fight initially
broke out. Specifically, Rodriguez testified that three men
approached the car parked next to him and that a man
dressed in all white had pulled the victim out of the
passenger seat of that vehicle. Similar to the descriptions
provided by both Bogues and Dixon, Rodriguez described
the man in white as a tall, Hispanic male of average build.
According to Rodriguez, the man in white then began
asking where ‘‘his shit’’ was, pistol whipped the victim
multiple times, and then pointed a gun at the victim’s
legs. Rodriguez heard a gunshot,6 began to drive away,
and called 911. As Rodriguez was leaving the parking
lot, he saw a gold Cadillac driving away to the south on
North Avenue.7
   The most comprehensive account of the events preceding the victim’s death, however, came from Alexis Vilar,
who told the jury that he had gone with the defendant
and a third individual, Moises Contreras, to the AutoZone
that night in order to confront the victim about a break-in
that had recently occurred at the home of the defendant’s
girlfriend. Vilar indicated that the defendant had lost
marijuana, money, and certain other personal items during that break-in, and that the defendant had strongly
suspected that the victim, who had previously dated the
defendant’s girlfriend, was responsible. According to
Vilar, the three men left a concert on the eastern side of
Bridgeport and began heading toward the AutoZone
around midnight, the defendant, driving alone in his
grey 2006 Cadillac DTS, and Vilar and Contreras driving
together inside of Vilar’s Acura TL. Vilar stated that, on
that particular evening, both he and Contreras were
wearing dark colors, whereas the defendant was wearing white.
   Vilar testified that he and Contreras parked at the
strip club near the intersection of River Street and North
Avenue, while the defendant continued up the street
for a short distance and parked across the street from
the AutoZone. By the time Vilar and Contreras eventually caught up to the defendant, he was already confronting the victim with a black nine millimeter handgun.
Vilar testified that the defendant then began smacking
the victim in the face with that gun and dragging the
victim toward the southern end of the parking lot. Vilar
indicated that, around that same time, Contreras fired
a single shot from a small caliber revolver.
   Vilar told the jury that that he was already heading
back toward his Acura in the strip club’s parking lot
by the time Contreras and the defendant had dragged
the victim across North Avenue. Vilar then heard another
‘‘small caliber shot,’’ saw Contreras walking quickly
toward him, and then heard a series of several louder
shots in quick succession. Vilar testified that, after he
and Contreras got back into the Acura, Contreras
remarked, ‘‘I think [the defendant] finished him.’’ Vilar
stated that he then saw the defendant driving away in
the Cadillac with the headlights off.
   Finally, Vilar testified that, on January 11, 2017, police
officers approached him to ask about the victim’s death.
Vilar subsequently retained an attorney, returned to
meet with the police the following day, and proceeded
to recount the events previously described. Vilar testified that, a few days after that meeting, he used a cell
phone to surreptitiously record a conversation relating
to the victim’s death between him and the defendant.
On January 19, 2017, Vilar returned to the police station,
played the recording on his phone for the police, and
then e-mailed a copy of it to one of the detectives. The
police, in turn, saved a copy of that recording on to a
DVD, which itself was introduced into evidence at trial
as a full exhibit over defense counsel’s objection. The
person speaking with Vilar on that recording can be
heard stating that ‘‘all [he] wanted to do was beat [the
victim’s] ass’’ that night but that he was forced to kill
the victim in order to prevent him from going to the
police after Contreras had shot the victim twice.8
   The jury subsequently returned a verdict finding the
defendant guilty of murder, conspiracy to commit
assault in the first degree, unlawful restraint in the first
degree, unlawful discharge of a firearm, and carrying
a pistol without a permit. The trial court rendered a
judgment of conviction in accordance with that verdict
and imposed a total effective sentence of fifty-five years
of incarceration. The defendant then appealed from
that conviction, claiming, inter alia, that (1) his alleged
confession was improperly authenticated and inadmissible under the best evidence rule, and (2) the trial
court improperly instructed the jury to disregard an
argument made by defense counsel in closing relating
to the absence of an in-court identification from Rodriguez. See State v. Rivera, 

, 488–89,
491, 501, 

 (2020). The Appellate Court
rejected both claims and affirmed the defendant’s con-
viction. Id., 505. This certified appeal followed.9 Additional facts and procedural history will be set forth as
necessary.
                             I
   The defendant’s first claim is that the Appellate Court
incorrectly concluded that the trial court had not abused
its discretion by admitting the electronic recording of
his alleged confession into evidence. Although his briefing on the issues are somewhat entwined, the defendant
appears to raise two analytically distinct legal grounds
on this point: (1) the recording was improperly authenticated and, therefore, inadmissible under § 9-1 of the
Connecticut Code of Evidence, and (2) the unavailability of the original electronic recording stored on Vilar’s
cell phone and its associated metadata rendered subsequent electronic copies of that recording inadmissible
under our state’s best evidence rule. See Conn. Code Evid.
§§ 10-1 through 10-3. The state responds by arguing,
inter alia, that Vilar’s testimony about the creation and
contents of the recording provided a sufficient foundation for the purpose of admission under § 9-1. The state
also argues that, in the absence of evidence that Vilar’s
cell phone was destroyed for the purpose of avoiding
production of the original recording, the electronic copy
proffered by the state at trial was admissible pursuant
to § 10-3. For the reasons that follow, we agree with
the state on both points.
   The following additional facts and procedural history
are relevant to our consideration of this issue. The exhibit
presently at issue is a DVD containing a single multimedia file with a .3gp file extension. The recording on
the DVD is approximately three minutes in length and
contains a file date of January 19, 2017. The state’s
foundation for the admission of this exhibit came from
two separate witnesses. Vilar testified that he secretly
used his cell phone to record a conversation that he
had with the defendant inside of a car outside a hookah
lounge in Fairfield on January 15, 2017. Vilar then
brought that recording to the police department on
January 19, 2017, played it for the police on his cell
phone, and sent a copy to them by e-mail. Vilar testified
that he had listened to the recording on the DVD being
proffered by the state and that the audio recording had
not been manipulated since it was first recorded. Vilar
specifically indicated that he recognized the two voices
on the recording as the defendant’s and his own.10
Finally, Vilar testified that he no longer possessed the
phone that he had used to record his conversation with
the defendant and that, as a result, the original recording
was no longer available. A police detective, Jorge Cintron, likewise testified that he had heard the audio
recording when Vilar played it at the police department
on January 19, 2017, that Vilar had e-mailed a copy of
that recording to him later that same day, and that he
had then saved a copy of that recording to the DVD
being proffered by the state. Cintron testified that he
had listened to that recording and that it was the same
as the one previously played for him by Vilar.
  Defense counsel ultimately objected to the admission
of the recording saved to the DVD, citing the absence
of the original recording. Specifically, defense counsel
argued that the gap in time between when Vilar allegedly
recorded the conversation and when it was provided
to the police was ‘‘enough to raise questions’’ about the
recording’s authenticity and its chain of custody. The
prosecutor argued that the foundation previously laid
was sufficient for admission.
   The trial court overruled defense counsel’s objection
and admitted the recording into evidence, stating: ‘‘I
think there’s ample evidence of a sufficient chain of
custody between how he says he recorded it; when he
says he recorded it; how it was transmitted from his
cell phone, apparently by e-mail, to the police. . . .
Cintron . . . testified . . . as to how he made the DVD
from the e-mail . . . [and] that what [Vilar] played for
him at the police station was . . . the same . . . as
what later went onto the DVD. . . . [Vilar] has testified
to the same effect, [and] recognizes the . . . voices.
. . . I think the rest of it goes to . . . the weight of
the evidence but not the admissibility of the evidence.
So, the objection is overruled.’’
   The Appellate Court determined that there was no
error with respect to this ruling. State v. 

. Although not addressed directly,
the Appellate Court decision appears to implicitly reject
the defendant’s claim that the foundation laid by the
state was insufficient to satisfy the standards for authentication required by our code of evidence.11 See 

 502–503.
It was likewise unpersuaded by the defendant’s best evidence argument. 

 501–502. The following passage from
that court’s comprehensive decision on this point is,
we think, particularly instructive: ‘‘Section 10-3 of the
Connecticut Code of Evidence . . . provides that the
original of a recording is not required, and other evidence of the contents of the recording is admissible, if
[a]ll originals are lost or have been destroyed, unless
the proponent destroyed or otherwise failed to produce
the originals for the purpose of avoiding production of
an original . . . . [I]t is clear that the original recording
is no longer available, as it was on Vilar’s cell phone,
which was no longer in his possession at the time of
the trial. . . . The defendant has failed to point to any
evidence in the record demonstrating that the original
recording was made unavailable for the purpose of
avoiding its production at trial. Vilar played the original
recording for the police and then e-mailed a copy of
the recording to the police, per . . . Cintron’s instructions. At no time did the police request or order that
Vilar turn over the cell phone containing the original
recording. Furthermore, both Vilar and . . . Cintron
verified that the copy of the recording e-mailed to the
police was an exact copy of the original. On the basis
of these facts, [the court] cannot conclude that the
original recording was made unavailable for the purpose of avoiding its production. . . . Accordingly, the
copy of the recording satisfies the requirement of § 10-
3 of the Connecticut Code of Evidence . . . [and was
therefore] admissible under [the code].’’ (Citation omitted; internal quotation marks omitted.) Id.
   For the sake of simplicity, we address separately the
defendant’s claims with respect to authentication and
the best evidence rule. The standard of review applicable to both of these claims is well established. ‘‘To the
extent [that] a trial court’s admission of evidence is
based on an interpretation of the [c]ode of [e]vidence,
our standard of review is plenary.’’ State v. Saucier,

, 

 (2007). ‘‘We review
the trial court’s decision to admit evidence, if premised
on a correct view of the law, however, for an abuse of
discretion.’’ 

 ‘‘Under the abuse of discretion standard
[an appellate court] make[s] every reasonable presumption in favor of upholding the trial court’s rulings, considering only whether the court reasonably could have
concluded as it did.’’ State v. Annulli, 

,
491, 

 (2013).
                            A
                     Authentication
   We begin by rejecting the defendant’s claim that the
foundation laid by the state at trial was inadequate to
authenticate the recording of the defendant’s alleged
confession. The relevant provision of our code of evidence provides: ‘‘The requirement of authentication as
a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the offered
evidence is what its proponent claims it to be.’’ Conn.
Code Evid. § 9-1 (a). This bedrock requirement, as the
parties accurately observe, ‘‘applies to all types of evidence, including writings, sound recordings, electronically stored information, real evidence . . .
demonstrative evidence . . . and the like.’’ Conn. Code
Evid. § 9-1 (a), commentary. The burdens imposed by
this rule are, however, not intended to be onerous. See,
e.g., M. Baldwin et al., A Practical Guide to Evidence
in Connecticut (2d Ed. 2021) § 9.2.1. ‘‘Once this prima
facie showing is made, the evidence may be admitted,
and the ultimate determination of authenticity rests
with the fact finder.’’ Conn. Code Evid. § 9-1 (a), commentary; see also State v. Carpenter, 

, 

 (2005), cert. denied, 

,

, 

 (2006).
  Although evidence may be authenticated in several
different ways, two specific methods suggested by the
commentary to our code of evidence are notable in this
case: (1) ‘‘[a] witness with personal knowledge may
testify that the offered evidence is what its proponent
claims it to be’’; and (2) ‘‘[a]ny person having sufficient
familiarity with another person’s voice, whether acquired
from hearing the person’s voice firsthand or through
mechanical or electronic means, can identify that person’s voice or authenticate a conversation in which the
person participated.’’ Conn. Code Evid. § 9-1 (a), commentary; see E. Prescott, Tait’s Handbook of Connecticut Evidence (6th Ed. 2019) § 9.8, p. 685 (‘‘[T]he maker
of an oral . . . communication may be identified by
anyone familiar with the voice of the speaker. . . . If
a minimal showing has been made, the statement should
be admitted and the finder of fact will determine the
weight to be given to the identification testimony.’’ (Citations omitted.)); see also 2 R. Mosteller et al., McCormick on Evidence (8th Ed. 2020) § 228, pp. 115–16.
   The fact that an audio recording proffered by the
state was stored electronically does not, in our view,
require a meaningful departure from these well established methods of authentication under the facts presented.12 Cf. State v. Manuel T., 

, 

 (2020) (‘‘[w]e see no justification for constructing unique rules of admissibility of electronic
communications such as instant messages; they are to
be evaluated on a case-by-case basis as any other document to determine whether . . . there has been an adequate foundational showing of their relevance and
authenticity’’ (internal quotation marks omitted)). Vilar
testified that he personally recorded the conversation,
that he subsequently e-mailed a copy of the recording
to the police, and that the recording proffered by the
state had not been altered in any way. Vilar then identified the voices on that recording on the basis of his
own familiarity with them. Cintron, likewise, testified
that he had received a copy of that recording from Vilar
via e-mail and then saved it to the DVD that the state
was seeking to introduce. Once this prima facie showing
was established, the evidence was admissible, and the
ultimate determination of authentication and what
weight to give that evidence was for the jury. See, e.g.,
State v. 

. On the record
before us, we decline to conclude that the trial court
abused its discretion by finding that the state had laid an
adequate foundation for the admission of this recording
into evidence.13
                             B
                The Best Evidence Rule
  We likewise reject the defendant’s argument that the
admission of the DVD containing an electronic copy of
his alleged confession violated the strictures of our
state’s best evidence rule. The defendant argues that,
because the recording on the DVD was made from
Vilar’s e-mailed copy, it cannot be considered either an
original in its own right or a copy admissible in lieu of
the original. See Conn. Code Evid. §§ 10-1 and 10-2.
Although not raised before the trial court, the defendant
now argues on appeal that the copy of the recording
proffered by the state should not have been admitted
because, without the original recording, he lacked
access to the metadata associated with the original
recording. Even if we were to agree with the defendant’s
reading of §§ 10-1 and 10-2, however, the unchallenged
testimony relating to the loss of the original recording
would nonetheless compel us to uphold the trial court’s
admission of the DVD as a permissible form of secondary evidence. See Conn. Code Evid. § 10-3.
   We begin with a brief review of the relevant rules
of evidence. Section 10-1 of the Connecticut Code of
Evidence provides: ‘‘To prove the content of a writing,
recording or photograph, the original writing, recording
or photograph must be admitted in evidence, except as
otherwise provided by the Code, the General Statutes
or any Practice Book rule adopted before June 18, 2014,
the date on which the Supreme Court adopted the Code.
An original of electronically stored information includes
evidence in the form of a printout or other output,
readable by sight or otherwise shown to reflect the
data accurately.’’ This rule generally applies to audio
recordings offered to prove the content of a previous
conversation. See 2 R. Mosteller et al., supra, § 234, pp.
138–39 (‘‘[A] conversation between two people is an
event that may be proved either by testimony from
the participants (or from anyone else who heard the
conversation) as to what was said or a tape recording
made of the conversation. If the proponent chooses to
prove what was said during the conversation by use of
[a] tape recording, then [that] tape is being offered to
prove its own contents. The requirement of the original
tape would apply.’’ (Footnote omitted.)).14
   When the original writing, recording or photograph is
unavailable, courts should begin by examining the exceptions set forth in § 10-3 of the Connecticut Code of
Evidence. That rule provides in relevant part: ‘‘The original of a writing, recording or photograph is not required,
and other evidence of the contents of such writing,
recording or photograph is admissible if: (1). . . [a]ll
originals are lost or have been destroyed, unless the
proponent destroyed or otherwise failed to produce the
originals for the purpose of avoiding production of an
original . . . .’’ Conn. Code Evid. § 10-3. These exceptions are rooted in the fact that the common-law best
evidence rule expresses ‘‘a rule of preference rather
than one of exclusion.’’ Conn. Code Evid. § 10-3, commentary; see also 2 R. Mosteller et al., supra, § 237, p.
152 (‘‘[t]he requirement of producing the original of a
writing, recording or photograph is principally aimed,
not at securing an original document at all hazards and
in every instance, but at securing the best obtainable
evidence of its contents’’ (emphasis added)).
  As stated previously in this opinion, the testimony
adduced by the state at trial demonstrated that the
original recording on Vilar’s cell phone was no longer
available. Although the defendant characterizes the
unavailability of Vilar’s cell phone as ‘‘suspicious’’ in
briefing the present appeal, a detailed review of the
record shows that this argument was never raised,
either explicitly or implicitly, during the course of trial.
The defendant himself candidly concedes in his brief
that there is ‘‘no evidence that Vilar lost or destroyed
his [cell] phone with the intention of making the original
recording unavailable for trial.’’ We agree with the
Appellate Court’s assessment that, in the absence of any
claim that the state had destroyed or lost the original
in order to avoid its production before the trial court,
the DVD copy made by Cintron was admissible under
the exception set forth in § 10-3 as a form of secondary
evidence of the contents of that original recording. See,
e.g., United States v. Lanzon, 

, 1301–1302
(11th Cir.) (concluding that ‘‘transcripts were admissible under [rule 1004 of the Federal Rules of Evidence]
because they contain evidence of the conversations and
the originals were not destroyed in bad faith’’), cert.
denied, 

, 

, 

(2011); United States v. Knohl, 

, 439–41
(2d Cir.) (copy of audio recording made by federal law
enforcement officers was admissible as secondary evidence after original recording was lost by government
witness), cert. denied, 

, 

, 

 (1967); see also, e.g., United States v. Gerhart, 

, 809–10 (8th Cir. 1976) (photocopy of
photocopy was admissible when govenrment established that ‘‘the original photocopy was lost, that the
proffered photocopy was what it purported to be and
it accurately reflected the contents of the original photocopy’’); 2 R. Mosteller et al., supra, § 234, pp. 138–39
(secondary evidence, such as written transcripts, is
admissible to prove contents of conversation when original audio recording is ‘‘shown to be unavailable’’).
Because there was no claim that the original recording
was lost in bad faith, the defendant’s challenge under
the best evidence rule must fail.
                             II
   The defendant’s final claim is that the trial court
abused its discretion by impermissibly restricting the
scope of defense counsel’s closing argument. Specifically, the defendant argues that the trial court improperly instructed the jury to disregard defense counsel’s
statements relating to the absence of an in-court identification from Rodriguez. The state responds by arguing
that the trial court’s instruction was proper and that,
even if it was not, any error was harmless. For the
reasons that follow, we agree with the state that any
error by the trial court related to this claim was
harmless.15
  The following additional facts and procedural history
are relevant to our consideration of the defendant’s
claim. The state presented testimony from Rodriguez
on the third day of trial. During his direct examination,
the prosecutor asked Rodriguez whether he was ‘‘asked
[by the police] to make an identification of . . . the
individual who [he] witnessed as the male in white on
the night in question.’’ Before Rodriguez answered that
question, the trial court called for a discussion with
counsel at side bar. After that off-the-record discussion,
the prosecutor withdrew his question and concluded
his direct examination. Later that same day, the trial
court provided the jury with the following oral stipulation at the request of the parties: ‘‘As to . . . Rodriguez’
testimony . . . counsel stipulate . . . that, on [January 21, 2017] . . . Rodriguez was at the Bridgeport
Police Department for an interview. He was shown a
photo[graphic] array of eight photographs, one of which
was a photograph of the defendant. Then he was asked
to see if he could identify anyone from those eight
photo[graphs] as the person he saw all in white at the
scene that evening. And he did not make any identification from that photograph[ic] array.’’
   Defense counsel ultimately presented the following
argument to the jury in closing: ‘‘Rodriguez, the state’s
own witness, came in . . . and he testified . . . about
what happened or what he saw in the lot. And, at the
end, when he finished, there was a stipulation that was
entered on agreement between the prosecutor and me.
And you ask to hear it. It’s there. He was shown photographs, an array of photographs that included [the
defendant’s photograph] and . . . he did not pick [the
defendant out] as the shooter, okay, as the guy in white,
as anybody being involved in any of that situation over
there. And he was in court. He was on the witness
stand. Did the prosecutor . . . say to him, hey, do you
see the guy in this courtroom who you saw? And he’s
sitting in the car. You remember what he said, ladies
and gentlemen? He’s sitting in a car right here, right
across the street from the [office] building in the AutoZone parking lot, and his car is facing North Avenue,
and he sees all this stuff happening over here. He’s
looking at all the stuff going on here. Does . . . the
[prosecutor] say to him, hey . . . Rodriguez, do you
see the guy here in the courtroom? No, never says
anything.’’ Defense counsel’s closing argument ended
just prior to the luncheon recess.
   After excusing the jury for lunch, the trial court raised
three areas of concern that it noted in defense counsel’s
argument and advised counsel it would hear any arguments relating to them after the recess. With respect
to the line of argument relating to the prosecutor’s
failure to ask Rodriguez for an in-court identification,
the trial court expressed its own view that the argument
was improper ‘‘because the law is that, if somebody
cannot make an out-of-court identification . . . the
state is precluded by law from asking the witness
[whether he sees that] guy in court . . . [a]nd, so, you
know, you can’t have it both ways so to speak.’’ The
trial court explained its understanding of the developments of the law in this area. Prior to the recess, the
prosecutor agreed with the trial court’s view of the law
and requested a curative instruction.
   When the trial court reconvened, the prosecutor, citing this court’s decision in State v. Dickson, 

, 

 (2016), cert. denied,       U.S.    , 

, 

 (2017), agreed with the trial
court’s concern and offered to address it on rebuttal or,
alternatively, requested a curative instruction. Defense
counsel responded by asserting that an in-court identification would have been permissible under the law
‘‘when a witness cannot make a [photographic identification] or has not [been] given an . . . opportunity to
make a [photographic identification]’’ and that, as a
result, his arguments about the absence of such an
identification were proper.
   The trial court then provided the jury with the following instruction: ‘‘You heard me say before that arguments of the attorney are just that, arguments, but not
evidence, but I’m going to instruct you to disregard two
lines of questions or two areas of questioning, I should
say of part of [defense counsel’s] closing argument, two
parts of his closing argument; and that is when the defense
said—and I’m paraphrasing now—when [Rodriguez]
. . . who testified as a witness in court, I think it was
suggested the, well, the state did not ask him whether
or not he could identify the defendant here in court.
Disregard that question and any thought of that question. All right. You don’t need to know the reason why,
but I’m telling you just to disregard that line of questioning.’’ After briefly turning to address a second issue
that is not relevant to the present appeal,16 the trial
court told the jury that ‘‘[t]he rest of [defense counsel’s]
argument can stand . . . .’’
    The parties do not contest the trial court’s broad
authority over the scope of the arguments before it. As
the Appellate Court in the present case aptly observed,
‘‘it is within the discretion of the trial court to limit final
arguments for the purpose of preventing comments on
facts not properly in evidence, [and to] . . . [prevent]
the jury from considering matters in the realm of speculation . . . .’’ (Internal quotation marks omitted.) State
v. 

, quoting State v.
Arline, 

, 

 (1992). ‘‘A trial
court has wide discretion to determine the propriety
of counsel’s argument and may caution the jury to disregard improper remarks in order to contain prejudice.’’
State v. Herring, 

, 

, cert.
denied, 

, 

, 

(1989); see also Herring v. New York, 

,

, 

 (1975) (‘‘The presiding
judge must be and is given latitude in controlling the
duration and limiting the scope of closing summations.
[The judge] may limit counsel to a reasonable time and
may terminate argument when continuation would be
repetitive or redundant. [The judge] may ensure that
argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial.
In all these respects [the judge] must have broad discretion.’’).
  The principles of law animating the trial court’s invocation of this authority in the present case, as the prosecutor accurately observed at trial, arise from this court’s
decision in State v. 

. In
that case, we concluded that ‘‘first time in-court identifications, like in-court identifications that are tainted by
an unduly suggestive out-of-court identification, implicate due process protections and must be prescreened
by the trial court.’’ 

. This court detailed that
procedure at length: ‘‘In cases in which there has been
no pretrial identification . . . and the state intends to
present a first time in-court identification, the state
must first request permission to do so from the trial
court. . . . The trial court may grant such permission
only if it determines that there is no factual dispute as
to the identity of the perpetrator, or the ability of the
particular eyewitness to identify the defendant is not
at issue. . . .
  ‘‘If the trial court determines that the state will not
be allowed to conduct a first time identification in court,
the state may request permission to conduct a nonsuggestive identification procedure, namely, at the state’s
option, an out-of-court lineup or photographic array,
and the trial court ordinarily should grant the state’s
request. If the witness previously has been unable to
identify the defendant in a nonsuggestive identification
procedure, however, the court should not allow a second nonsuggestive identification procedure unless the
state can provide a good reason why a second bite at
the apple is warranted. If the eyewitness is able to
identify the defendant in a nonsuggestive out-of-court
procedure, the state may then ask the eyewitness to
identify the defendant in court.
   ‘‘If the trial court denies a request for a nonsuggestive
procedure, the state declines to conduct one, or the
eyewitness is unable to identify the defendant in such
a procedure, a one-on-one in-court identification should
not be allowed. The prosecutor may still examine the
witness, however, about his or her observations of the
perpetrator at the time of the crime, but the prosecutor
should avoid asking the witness if the defendant resembles the perpetrator.’’ (Citations omitted; footnotes omitted.) 

 445–447. Dickson further provides that, when
an in-court identification is prohibited by the trial court
pursuant to these procedures, the prosecutor may request
an instruction indicating that ‘‘an in-court identification
was not permitted because inherently suggestive first
time in-court identifications create a significant risk of
misidentification and because either the state declined
to pursue other, less suggestive means of obtaining the
identification or the eyewitness was unable to provide
one.’’ 

.
   The dispute in this appeal centers on the indirect
impact that Dickson may have had on the permissible
scope of closing arguments. The defendant claims that
remarks made by defense counsel relating to the state’s
failure to elicit an in-court identification from Rodriguez
amounted to no more than a routine comment on the
absence of evidence. The state argues in response that,
under Dickson, the results of the previously administered photographic array precluded it from eliciting a
subsequent in-court identification from Rodriguez and
that, as a result, defense counsel’s remarks on the point
were unfair. Put differently, the state claims that defense
counsel’s argument misled the jury to believe that the
reason the Rodriguez was not asked to undertake an
in-court identification was because he was incapable
of identifying the defendant, rather than that the law
prohibits such an identification due to its suggestive
nature and unreliability. In the alternative, the state
argues that the Appellate Court’s affirmance of the trial
court’s judgment may be upheld on the ground that any
error on the point was harmless. We agree with the
state’s latter contention for three reasons.17
   First, Rodriguez’ inability to identify the defendant
as the man in white had already been conceded by the
state through its stipulation to the fact that Rodriguez
had been unable to pick the man in white out of a
photographic array that had included a photograph of
the defendant. Indeed, defense counsel emphasized this
point repeatedly during the course of his closing argument and expressly invited the jury to review the stipulation during its deliberations. In light of the fact that
these repeated references went without comment or
contradiction by the prosecution, we are unable to
accept the defendant’s assertion that the exclusion of
a single, inferential argument relating to Rodriguez’ continued inability to identify the defendant at the time of
trial would have ultimately changed the result reached
by the jury.18
  Second, on a broader level, it was undisputed that
the state’s case against the defendant did not include
a definitive identification from any neutral witnesses.
There is no dispute that Bogues, Dixon, and Rodriguez
were able to provide the jury only with a general
description of the person in white as a taller Hispanic
male with an average build.
  Finally, Rodriguez’ testimony accounted for only a
small portion of the evidence arrayed against the defendant. The most critical witness in this case was Vilar,
who testified that the defendant had gone to AutoZone
that night in order to confront the victim about the
break-in, subsequently forced him across North Avenue,
and fatally shot him in a secluded area next to the
office building. Although Vilar, who was present and a
potential suspect in the victim’s death, undoubtedly
possessed a significant motivation to lie, the account
he provided to the jury was corroborated in nearly all
relevant respects by the video surveillance footage from
the area of the shooting, the various observations made
by Bogues and Dixon, the .22 caliber bullet discovered
in the victim’s leg, the multiple nine millimeter casings
discovered alongside of the office building, and—perhaps most important—the defendant’s recorded confession. The overlaps between these various pieces of
evidence, detailed at length previously in this opinion,
made the state’s case against the defendant an undeniably strong one.
  For these reasons, we conclude that any error by
the trial court in precluding arguments related to the
absence of an in-court identification from Rodriguez
was harmless.
      The judgment of the Appellate Court is affirmed.
      In this opinion the other justices concurred.
  1
     Although the defendant and the victim share the same surname, they
are not related. State v. Rivera, 

, 489 n.1, 

 (2020).
   2
     The police showed footage from these security cameras to a Cadillac
dealer in Shelton, who identified this vehicle as a Cadillac DTS manufactured
between 2006 and 2011. At trial, the defendant stipulated to owning a 2006
grey Cadillac DTS. Although that particular vehicle was seized by the police
and processed for evidence, it was later stolen out of the police department’s
parking lot.
   3
     A thirty-seven second portion of the video surveillance footage from the
feed labeled ‘‘CAMERA02,’’ which would have captured the initial confrontation between these three individuals and the victim, was not included in
the copy of the video surveillance footage introduced by the state at trial.
The record contains no apparent explanation for this omission.
   4
     A stipulation entered into evidence by the parties indicates that a blood
trail found in the area had been left by the victim.
   5
     Bogues estimated that the man in white was between five feet, nine
inches, and six feet tall. Evidence adduced by the state at trial shows that
the defendant matches this description.
   6
     Rodriguez testified that he did not see either of the two men in black
carrying guns that night, and that he believed the shot came from the man
in white.
   7
     Although the defendant’s motor vehicle registration indicates that his
Cadillac is grey; see footnote 2 of this opinion; police officers who subsequently seized and photographed that vehicle indicated that it could appear
brown or gold when light hits it. In closing, the prosecutor argued to the
jury that the lighting at the scene may have altered the appearance of the
defendant’s vehicle.
   8
     Specifically, the man on that recording states: ‘‘As soon as Peto shot
him . . . . [the victim] was like Sobe don’t kill me, Sobe don’t kill me . . .
so now, he’s looking at me, so, if I let him go . . . he can paint a picture
and say he know who shot me. If the cops come pick me up, I’m not gonna
say nothing, so I’m gonna get charged with it. I know what it is. So I . . .
just blacked out, like, I’d rather have him dead that he can’t pick me out
than being alive and say he shot me.’’ Uncontested evidence adduced by
the state during the course of trial indicated that the defendant went by the
nickname ‘‘Sobe’’ and that Contreras was also known as ‘‘Peto.’’
   9
     Specifically, this court granted the defendant’s petition for certification
to appeal, limited to the following issues: (1) ‘‘Did the Appellate Court
correctly conclude that the trial court did not abuse its discretion in admitting
into evidence a [DVD] containing an audio recording of a conversation
between . . . Vilar and the defendant?’’ And (2) ‘‘Did the Appellate Court
correctly conclude that the trial court did not abuse its discretion when it
directed the jury to disregard the portion of defense counsel’s closing argument indicating that the state never had asked . . . [Rodriguez] to make
an in-court identification of the defendant?’’ State v. Rivera, 

,

 (2020).
   10
      The defendant does not dispute the fact that Vilar would have been
familiar with his voice.
   11
      The Appellate Court also declined the defendant’s invitation to invoke
its supervisory powers to heighten the requirements for admission of electronically stored information. See State v. 

 200 Conn. App.
502–503. The defendant repeats that invitation in the present appeal, and
we likewise decline to accept it. See, e.g., State v. Edwards, 

,
498, 

 (2014) (this court’s supervisory powers represent ‘‘an
extraordinary remedy that should be used sparingly’’ (internal quotation
marks omitted)).
   12
      As noted previously, the defendant’s arguments with respect to the
admissibility of the recording conflate the concept of authentication with
the best evidence rule. Although defense counsel did not mention metadata
with respect to either of these issues at trial, we pause to note that, to the
extent that the defendant now specifically claims on appeal that the absence
of metadata associated with the recording on Vilar’s cell phone categorically
precluded authentication of the copy proffered by the state at trial, that claim
lacks merit. An analysis of metadata associated with any digital evidence
may be one of several methods by which authentication is either established
or challenged, but it is not itself necessary to make a prima facie showing
of authenticity for the purpose of admission.
   13
      We note that the trial court’s admission of the recording in no way
precluded defense counsel from arguing to the jury that the recording could
not be trusted. Indeed, defense counsel was permitted to argue at length
that Vilar, who had a criminal history and experience creating audio files
for rap music, had the means, motive, and opportunity to digitally alter—
or even wholly fabricate—the recording. Although he did not do so, defense
counsel also could have pointed out to the jury that the absence of the
original recording meant that the metadata associated with that recording
were also missing. We agree with the trial court’s initial assessment that
such arguments are properly addressed to the finder of fact. See State v.
Manuel 

 (‘‘[q]uestions about the integrity of electronic data generally go to the weight of electronically [stored] evidence,
not its admissibility’’ (emphasis omitted; internal quotation marks omitted)).
   14
      Section 10-2 of the Connecticut Code of Evidence provides: ‘‘A copy of
a writing, recording or photograph, is admissible to the same extent as an
original unless (A) a genuine question is raised as to the authenticity of the
original or the accuracy of the copy, or (B) under the circumstances it
would be unfair to admit the copy in lieu of the original.’’ Because we
conclude that the DVD proffered by the state is admissible as a form of
secondary evidence under § 10-3, we need not address the defendant’s various claims with respect to this provision. See, e.g., United States v. Lanzon,

, 1301–1302 (11th Cir.) (conclusion that transcripts were admissible under rule 1004 of Federal Rules of Evidence rendered immaterial
question of whether transcripts were duplicates within meaning of rule
1003), cert. denied, 

, 

, 

 (2011).
   15
      Although the defendant also claims that the trial court’s ruling violated
his constitutional right to the effective assistance of counsel, that particular
claim was neither raised in his petition for certification to appeal nor
included in the list of questions subsequently certified by this court. See
footnote 9 of this opinion. Even if we were inclined to overlook that particular
omission and to reach the merits of that constitutional issue, that claim
would still fail under the third prong of State v. Golding, 

,
239–40, 

 (1989), as modified by In re Yasiel R., 

,
781, 

 (2015). This court’s precedent indicates that a violation
of the constitutional right to the effective assistance of counsel arises when
a defendant is ‘‘deprived of the opportunity to raise a significant issue that
is reasonably inferable from the facts in evidence.’’ State v. Arline, 

, 

 (1992). The trial court’s sua sponte restriction
did not, as the defendant claims, ‘‘[deprive] the defense of the ability to
raise reasonable doubt based on Rodriguez’ inability to identify the man in
white.’’ As noted subsequently in this opinion, defense counsel was permitted
to—and in fact did—argue in favor of that very inference to the jury by
repeatedly highlighting the stipulated fact that Rodriguez had failed to pick
the defendant out of a previously administered photographic array.
   16
      The trial court also gave a curative instruction with respect to certain
arguments made by defense counsel in closing relating to the state’s failure
to pursue a voice exemplar. See State v. 

.
Defense counsel noted that he had a ‘‘strenuous’’ objection to the trial court’s
instruction relating to the voice exemplars and the grounds for that objection.
That particular instruction is not at issue in this certified appeal. See footnote
9 of this opinion.
   17
      Because we conclude that any error by the trial court was harmless,
we do not reach the question of whether the Appellate Court correctly
concluded that defense counsel’s arguments relating to the absence of an
in-court identification from Rodriguez were improper. By extension, we also
do not reach the question of the propriety of the trial court’s curative
instruction. We note, however, that curative instructions in this context
should conform as closely as possible to the model language set forth in
Dickson. See Connecticut Criminal Jury Instructions 2.6-4, commentary,
available at https://www.jud.ct.gov/JI/Criminal/Criminal.pdf (last visited
June 13, 2022) (Noting that, in Dickson, ‘‘the Supreme Court approved the
following instruction if requested by the state: ‘An in-court identification
was not permitted because inherently suggestive first time in-court identifications create a significant risk of misidentification and because either
the state declined to pursue other, less suggestive means of obtaining the
identification or the eyewitness was unable to provide one.’ . . . If
requested, do not deviate.’’ (Citation omitted.)).
   18
      This observation can be juxtaposed with the evident prejudice that
arises in a case in which a witness, despite being unable to identify the
defendant in a nonsuggestive, out-of-court procedure, is allowed to definitively identify the defendant as the perpetrator of a crime for the first time
in court. See State v. 

 322 Conn. 439–40 (‘‘the . . . reason
that first time in-court identifications are so problematic is that, when the
state places the witness under the glare of scrutiny in the courtroom and
informs the witness of the identity of the person who has been charged
with committing the crime, it is far less likely that the witness will be hesitant
or uncertain when asked if that person is the perpetrator’’).