State v. Patterson

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STATE OF CONNECTICUT v. HAROLD PATTERSON
               (SC 20349)
              Robinson, C. J., and McDonald, D’Auria, Mullins,
                            Kahn and Ecker, Js.

                                     Syllabus

Convicted of two counts of the crime of murder, the defendant appealed
   to this court. The defendant was a passenger in a car when the driver
   stopped to speak to two women on a street in the city of Hartford.
   When one of two men who had been walking behind the women told
   the occupants of the car to leave, the defendant shot both men. The
   police recovered spent cartridge casings at the scene, and, prior to
   trial, the state filed a motion seeking to present evidence of uncharged
   misconduct relating to two prior shootings on two different streets in
   Hartford in support of its claim that the defendant had possessed the
   means to cause the victims’ deaths. Defense counsel objected, claiming
   that such evidence was inadmissible because it was irrelevant and more
   prejudicial than probative. The court ruled that the uncharged misconduct evidence was admissible to prove means and identity, but it limited
   the scope of the evidence to facts that connected the firearm used in
   the prior shootings to the firearm used during the shooting of the two
   victims. At trial, the state presented the testimony of S and D, the officers
   who collected the fired bullets and cartridge casings following the prior
   shootings that formed the basis of the uncharged misconduct evidence,
   the testimony of L and W, friends of the defendant who identified him
   as the shooter in those prior shootings, and J, a firearms expert who
   testified, to a reasonable degree of scientific certainty, that the cartridge
   casings from the prior shootings and the murders of the victims were
   all from the same firearm. The court instructed the jury five times during
   the trial that the uncharged misconduct evidence was being admitted
   for the limited purposes of establishing that the defendant had the means
   to murder the victims and establishing the identity of the shooter of the
   victims. On appeal, the defendant claimed that the trial court improperly
   had admitted the evidence of uncharged misconduct because J’s testimony was not relevant or material to identity, insofar as J’s methodology
   was not scientifically reliable, and because the prejudicial effect of the
   prior misconduct evidence outweighed its probative value. Held that
   the trial court did not abuse its discretion in admitting the evidence of
   uncharged misconduct tying the firearm used in the prior shootings to
   the firearm used in the murders of the victims to prove that the defendant
   was the individual who shot the victims: the defendant’s claim challenging the relevance of J’s testimony in light of its lack of scientific reliability
   was unavailing, as the defendant’s failure to request a hearing pursuant
   to State v. Porter (

) deprived the trial court of the opportunity to assess J’s methodology and, thus, the reliability of J’s testimony,
   the defendant’s claim on appeal represented an inappropriate effort to
   avoid the requirement that a challenge to scientific methodology must
   be raised at trial during a Porter hearing, and, in view of the broad
   definition of relevance, the trial court did not abuse its discretion in
   admitting J’s ballistics evidence tying the prior shootings to the shooting
   of the victims to prove the identity of the shooter; moreover, any prejudicial effect from the uncharged misconduct evidence was outweighed
   by its probative value, as the facts of the prior shootings, which were
   clearly probative of means and identity, were less severe than the facts
   of the shooting of the victims, and the court limited the extent of the
   testimony of S and D to their response to the prior shootings and
   their collection of projectiles at the scene of those shootings, and the
   testimony of L and W to their witnessing of the defendant shoot a firearm
   at those locations, so as to ensure that the relevant facts were shorn
   of prejudicial and irrelevant detail and that the jury was not distracted
   by matters that were not pertinent to the charges; furthermore, the prior
   misconduct evidence was not merely cumulative of other evidence but
   highly probative, as it was the only evidence connecting the defendant
   directly to the firearm used to shoot the victims, and L’s and W’s testi-
   mony was critical to establishing the shooter’s identity; in addition, the
   fact that the prior shootings occurred less than three months before
   the shooting of the victims contributed to the probative value of the
   uncharged misconduct evidence, and the court instructed the jury no
   fewer than five times throughout the course of the trial regarding the
   limited purpose for which the uncharged misconduct evidence could
   be used.
          Argued March 24—officially released August 9, 2022

                           Procedural History

   Substitute information charging the defendant with
two counts of the crime of murder, brought to the Superior Court in the judicial district of Hartford, where the
court, D’Addabbo, J., granted in part the defendant’s motion
to preclude certain evidence; thereafter, the case was tried
to the jury before Graham, J.; verdict and judgment
of guilty, from which the defendant appealed to this
court. Affirmed.
  Robert L. O’Brien, assigned counsel, with whom, on
the brief, was Christopher Y. Duby, assigned counsel,
for the appellant (defendant).
   Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Sharmese L. Walcott, state’s
attorney, and David L. Zagaja and John F. Fahey, supervisory assistant state’s attorneys, for the appellee (state).
                          Opinion

   D’AURIA, J. The defendant, Harold Patterson, directly
appeals from the judgment of conviction, rendered after
a jury trial, of two counts of murder in violation of
General Statutes § 53a-54a. He claims that the trial court
abused its discretion in admitting evidence of uncharged
misconduct, namely, two prior shootings involving the
alleged murder weapon, to prove identity and means.
We conclude that the trial court did not abuse its discretion by admitting the uncharged misconduct. Accordingly, we affirm the judgment of conviction.
   The jury reasonably could have found the following
facts. Early in the morning on August 25, 2008, the
defendant and two friends, Willie Walker and Mark
Mitchell, were driving in a white Nissan Maxima on
Edwards Street in Hartford. Mitchell was driving, with
the defendant in the front passenger seat and Walker
sitting behind the defendant. The defendant and his
friends saw two women walking on the street with two
men trailing behind the women. Mitchell then pulled
over to speak to the women. One of the men then
walked up to the passenger window of the car and told
the defendant and his friends to ‘‘get the fuck out of
here.’’ The defendant replied, ‘‘what you mean get the
fuck out of here,’’ pulled out a gun, and fired at the
men. Mitchell immediately drove away and brought the
defendant home.
   At approximately 3:15 a.m., Hartford police responded
to an emergency call reporting the shooting. Officers
who arrived found the bodies of two victims, Carlos
Ortiz and Lamar Gresham. Detective Argeo Diaz processed the scene and seized five spent nine millimeter
cartridge casings and a copper bullet jacket. Diaz
attended the victims’ autopsies, where he took possession of a bullet fragment removed from the leg of one
of the victims, a bullet removed from the same victim’s
arm, and a bullet removed from the second victim’s
chest. Both victims died of gunshot wounds to the chest,
lung, and heart. The case went cold for a number of
years until a new lead was brought to the attention of
detectives with the cold case unit of the Division of
Criminal Justice. The defendant was arrested and charged
with the crimes in 2016.
   Prior to trial, the state filed a motion seeking to present evidence of two prior shootings in Hartford. The
state sought to admit evidence of a June 5, 2008 shooting
on Acton Street, which resulted in the death of Raymond Hite, as well as evidence of a June 16, 2008 shooting on Mather Street, which resulted in bullets striking
a building and a vehicle. Eyewitnesses from each shooting identified the defendant as the shooter, and an analysis of the casings collected from each shooting revealed
that they were fired from the same gun used in the
present case. The state offered these prior incidents
to support its claim that the defendant possessed the
instrumentality or means, as well as the specific intent,
to cause the deaths of Ortiz and Gresham.1
   Defense counsel timely objected to the state’s
motion, arguing that the trial court should preclude
evidence of the uncharged misconduct. Specifically,
counsel argued that the prior incidents ‘‘are not relevant
or material to the issues of intent or means to the case
at bar,’’ that ‘‘the probative value of the evidence is
substantially outweighed by the danger of undue prejudice,’’ and that ‘‘admission of the evidence would be
unduly cumulative, confusing and time-consuming, and
would create distracting side issues that will complicate
the main issues in the case at hand.’’ Relying on State
v. Raynor, 

, 

 (2018),
rev’d, State v. Raynor, 

, 

(2020), the defendant argued that, ‘‘[i]n . . . light of
recent research on the validity of [ballistics] science,
it is no longer appropriate to make absolute, unquestioned statements about what the ballistics findings
were,’’ and, therefore, admitting evidence of the prior
shootings would be improper.
   The trial court, D’Addabbo, J., heard oral arguments
and issued a preliminary ruling allowing evidence of
both prior shootings. The court ruled that the evidence
was admissible to prove means and identity but inadmissible to prove intent. The court further limited the
scope of the evidence of both shootings to facts ‘‘tying
the gun to the case at hand.’’ As to the Acton Street
shooting, the court precluded testimony that the defendant shot and killed Hite. The court similarly limited
evidence of the Mather Street shooting to show only
‘‘that a witness observed the defendant in possession
of the firearm on that date and that he fired the firearm
. . . .’’ The court also ruled that expert testimony that
tied the casings from the prior shootings to the casings
found at the Edwards Street shooting was admissible
contingent on the state’s introducing other evidence
that tied the defendant to the prior shootings. The court
stated that it would give limiting instructions to the
jury when the state offered the uncharged misconduct
evidence and that it would ‘‘revisit its ruling at the
time of the offer and assess it in light of the evidence
admitted and the positions of the part[ies].’’
   At trial, when it planned to offer evidence of the
Mather Street shooting, the state asked the trial court,
Graham, J., to issue a final ruling on the uncharged
misconduct evidence. Defense counsel objected to the
‘‘whole line of inquiry . . . .’’ The court adopted Judge
D’Addabbo’s preliminary ruling that evidence of the
uncharged misconduct was admissible to prove means
and identity, with the same limitations on the scope of
the admissible evidence. Further, the court ruled that,
until the state tied the casings from the prior shootings
to the same gun that ejected the casings found on
Edwards Street, the purpose of the evidence would be
limited to proving means.
  Prior to the state’s offer of evidence of the Mather
Street shooting, the trial court instructed the jury: ‘‘I
anticipate [that] you will hear testimony to the effect
that the defendant possessed and fired a firearm on
June 16, 2008, on Mather Street in Hartford. And, as to
that evidence, the evidence is being admitted at this
time solely to the extent it bears [on the defendant’s]
having [had] the means to commit the crimes on trial
before you. That conduct . . . is not the subject of any
criminal charge in this case, and it is not being admitted
to prove the bad character of the defendant or any
propensity by him to commit crimes. And you may not
consider that evidence as establishing a predisposition
on the part of [the defendant] to commit crimes or to
demonstrate a criminal propensity to commit the crimes
charged here.’’2
  As to the Mather Street shooting, the state offered
the testimony of Officer Brian Sulliman and Stephon
Long, a friend of the defendant. Sulliman testified that,
on June 16, 2008, at about 2:50 a.m., he responded to an
emergency call regarding gunshots fired at a multiunit
building on the corner of Mather and Brook Streets.
From the scene, Sulliman collected one fired bullet from
inside of a car parked in front of the building, one fired
bullet from a bedroom in one of the units, and seven
spent nine millimeter shell casings from outside of the
building. Long testified that, on June 16, 2008, he drove
the defendant’s Dodge Durango to a building located
on the corner of Mather and Brook Streets, where the
defendant instructed him to stop. Long saw the defendant fire two or three gunshots at the building. Long
believed that the gun was a semiautomatic but could
not describe a specific model or the color of the gun.
Immediately after Long testified, the trial court again
instructed the jury that the evidence ‘‘was admitted
solely to the extent it bears [on] the [defendant’s] having
[had] the means to commit the crimes on trial before
you.’’
   As to the Acton Street shooting, the state offered the
testimony of Diaz and Walker. Diaz testified that, on
June 5, 2008, he responded to an emergency call on
Acton Street, where he located and seized two fired
bullets, a copper bullet jacket, and three spent nine
millimeter shell casings. Walker testified that, on June
5, 2008, he drove the defendant’s Dodge Durango to
Acton Street, where the defendant exited the vehicle
and fired a gun. Walker did not know what type of gun
the defendant fired but remembered that it was dark
in color. Immediately after Walker’s testimony, the trial
court instructed the jury a third time that the evidence
pertaining to the Acton Street shooting was ‘‘admitted
solely to the extent it bears [on the defendant’s] having
[had] the means to commit the crimes on trial before
you.’’
   Edward Jachimowicz, the state’s firearms expert, testified regarding the connection between the bullet casings found at all three shootings. Jachimowicz testified
that, based on a microscopic examination and comparison, he concluded that all of the shell casings, bullets,
and bullet fragments found at the Edwards Street shooting, where the victims in the present case were found,
had been fired from the same semiautomatic weapon.
Jachimowicz testified that he entered the shell casings
into the NIBIN system,3 which showed a suspected correlation to casings collected in three prior shootings.
Jachimowicz compared the physical evidence from the
prior shootings to the casings from the Edwards Street
shooting to verify the connection.4 His opinion, to a
reasonable degree of scientific certainty, was that all
of the cartridge cases from the previous shootings and
Edwards Street were from the same firearm. After Jachimowicz’ testimony concluded, the court instructed the
jury that the evidence matching the casings from the
Edwards Street shooting to the Acton Street and Mather
Street shootings was ‘‘admitted solely to the extent it
bears [on] the identity of the person who committed
the Edwards Street shootings.’’ In its final charge, the
court again instructed the jury that evidence of the
Acton Street and Mather Street shootings was admitted
‘‘solely to the extent [the evidence] bear[s] [on the
defendant’s] having [had] the means to commit the
crimes . . . and to the extent [the evidence] bear[s]
[on] the identity of the person who shot [the victims].’’5
  The jury returned a verdict of guilty on both counts,
and the court sentenced the defendant to consecutive
terms of fifty years of imprisonment on each count for
a total effective sentence of 100 years.
   On appeal, the defendant claims that the trial court
abused its discretion by admitting evidence of
uncharged misconduct. Specifically, he argues that (1)
Jachimowicz’ expert testimony was not relevant or
material to identity, and (2) the probative value of the
evidence was ‘‘vastly’’ outweighed by its prejudicial
effect. The state responds that the defendant’s relevancy claim was not preserved and is therefore unreviewable, and that the trial court did not abuse its
discretion in determining that the probative value of
the evidence outweighed its prejudicial effect.
  ‘‘[A]s a general rule, evidence of prior misconduct is
inadmissible to prove that a criminal defendant is guilty
of the crime of which the defendant is accused. . . .
Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal
behavior.’’ (Internal quotation marks omitted.) State v.
Raynor, 

, 561, 

 (2020). This
evidence may be admissible, however, for other purposes. ‘‘The well established exceptions to the general
prohibition against the admission of uncharged miscon-
duct are set forth in § 4-5 [c] of the Connecticut Code
of Evidence, which provides in relevant part that [e]vidence of other crimes, wrongs or acts of a person is
admissible . . . to prove intent, identity, malice,
motive, common plan or scheme, absence of mistake
or accident, knowledge, a system of criminal activity,
or an element of the crime, or to corroborate crucial
prosecution testimony.’’ (Internal quotation marks omitted.)
Id., 561–62.
   ‘‘We have developed a two part test to determine the
admissibility of such evidence. First, the evidence must
be relevant and material to at least one of the circumstances encompassed by the exceptions [set forth in
§ 4-5 (c) of the Connecticut Code of Evidence]. . . .
Second, the probative value of the evidence must outweigh its prejudicial effect. . . . Because of the difficulties inherent in this balancing process, the trial court’s
decision will be reversed only whe[n] abuse of discretion is manifest or whe[n] an injustice appears to have
been done. . . . On review by this court, therefore,
every reasonable presumption should be given in favor
of the trial court’s ruling.’’ (Footnote omitted; internal
quotation marks omitted.) Id., 562.
   The defendant argues that Jachimowicz’ testimony
connecting the Acton Street and Mather Street shootings to the Edwards Street shooting is not ‘‘unassailably
relevant’’ to prove identity.6 (Emphasis omitted.) Specifically, he argues that, because Jachimowicz’ methodology was not scientifically reliable, his testimony failed
to connect the two prior shootings to the shooting at
issue to establish identity, and, thus, the prior shootings
were irrelevant. The defendant concedes that whether
Jachimowicz should have been able to testify as an
expert in this case is not reviewable by this court, as
he did not request a hearing at trial pursuant to State
v. Porter, 

, 81–90, 

 (1997), cert.
denied, 

, 

, 

(1998), and acknowledges that a Porter hearing ‘‘is the
proper way to challenge the admissibility of an expert’s
opinion based on the validity of the methodology underlying that opinion.’’ Instead, through his relevancy
objection to the prior misconduct evidence, the defendant attempts to challenge on appeal Jachimowicz’ testimony connecting the Mather Street and Acton Street
shootings to the Edwards Street shooting.7 Specifically,
he asks this court to assess the relevancy of Jachimowicz’ expert testimony in light of its lack of scientific
reliability. This request represents an inappropriate
effort to avoid the requirement that a challenge to scientific methodology must be raised at trial via a Porter
hearing.
  This court in Porter ‘‘followed the United States
Supreme Court’s decision in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 

, 

,

 (1993), and held that testimony based
on scientific evidence should be subjected to a flexible
test to determine the reliability of methods used to
reach a particular conclusion. . . . A Porter analysis
involves a two part inquiry that assesses the reliability
and relevance of the witness’ methods. . . . First, the
party offering the expert testimony must show that the
expert’s methods for reaching his conclusion are reliable. . . . Second, the proposed scientific testimony
must be demonstrably relevant to the facts of the particular case in which it is offered, and not simply be valid
in the abstract. . . . Put another way, the proponent
of scientific evidence must establish that the specific
scientific testimony at issue is, in fact, derived from and
based [on] . . . [scientifically reliable] methodology.’’
(Internal quotation marks omitted.) State v. Edwards,

, 

 (2017).
   As this court has made clear, a party’s failure to
request a Porter hearing ‘‘results in waiver of that claim
and it will not be considered for the first time on
appeal.’’ (Internal quotation marks omitted.) State v.
Turner, 

, 678, 

 (2020). It is
improper for the defense to challenge the scientific
methodology underlying an expert witness’ opinion on
appeal without a trial court’s having ruled on the same
matter, as a ‘‘trial judge . . . [should] serve as a ‘gatekeeper’ and make a preliminary assessment of the validity of scientific testimony . . . .’’ State v. 

. The question of whether evidence ‘‘casts
sufficient doubt on the reliability of the methodology
employed by the . . . expert [witness] . . . must be
vested, in the first instance, in the sound discretion of
the trial court.’’ State v. 

n.7.8 Because the defendant never asked for a Porter
hearing, the trial court did not have the opportunity
to assess the expert’s methodology and, therefore, its
reliability. As such, the defendant cannot now on appeal
succeed on a relevance challenge based on his contention that the evidence lacks scientific reliability to
establish a link to the murder weapon.
   Having concluded that it is improper for this court
to assess the scientific reliability of Jachimowicz’ testimony for the first time on appeal, we now turn to the
general relevance of his testimony. When assessing the
relevance of an expert witness’ testimony, ‘‘[a] trial
court retains broad discretion . . . .’’ (Internal quotation marks omitted.) Id., 554. ‘‘[S]uch testimony is
admissible if the trial court determines that the expert
is qualified and that the proffered testimony is relevant
and would aid the jury.’’ (Internal quotation marks omitted.) Id. ‘‘Within the law of evidence, relevance is a
very broad concept. Evidence is relevant if it has any
tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the
evidence. . . . Relevant evidence is evidence that has
a logical tendency to aid the trier in the determination
of an issue. . . . One fact is relevant to another if in
the common course of events the existence of one,
alone or with other facts, renders the existence of the
other either more certain or more probable. . . . Evidence is not rendered inadmissible because it is not
conclusive. All that is required is that the evidence tend
to support a relevant fact even to a slight degree, [as]
long as it is not prejudicial or merely cumulative.’’
(Emphasis altered; internal quotation marks omitted.)
State v. Collins, 

, 587 n.19, 

,
cert. denied, 

, 

, 

 (2011).
   Given the broad definition of relevance, we conclude
that the trial court did not abuse its discretion in admitting the ballistics evidence tying the prior shootings to
the Edwards Street shooting to prove the identity of
the shooter in this case. Indeed, in Collins, this court
surveyed the decisions of a number of federal and state
courts and found that a majority of them ‘‘rejected challenges . . . to the use of uncharged misconduct evidence in cases wherein the charged offenses were
committed using the same gun that the defendant had
utilized in prior shootings.’’ Id., 590.
  Having concluded that the trial court did not abuse its
discretion in determining that Jachimowicz’ testimony
was relevant, we turn to the defendant’s argument that
the prejudicial effect of the evidence of prior misconduct outweighed its probative value. The defendant
challenges all testimony related to the prior shootings,
not only the expert testimony. He contends that the
uncharged misconduct evidence admitted at trial was
equally, if not more, severe than the charged crimes
because, even though the jury did not hear that one of
the prior shootings resulted in Hite’s death, the uncharged
misconduct still left the jury with the impression that
the defendant drove around at night and shot at buildings unprovoked.9 We disagree and conclude that any
prejudicial effect of the uncharged misconduct was outweighed by the probative value of the evidence.
   ‘‘In determining whether the prejudicial effect of otherwise relevant evidence outweighs its probative value,
we consider whether: (1) . . . the facts offered may
unduly arouse the [jurors’] emotions, hostility or sympathy, (2) . . . the proof and answering evidence it provokes may create a side issue that will unduly distract
the jury from the main issues, (3) . . . the evidence
offered and the counterproof will consume an undue
amount of time, and (4) . . . the defendant, having no
reasonable ground to anticipate the evidence, is unfairly
surprised and unprepared to meet it.’’ (Internal quotation marks omitted.) Id., 586–87.
  We find significant the degree to which the trial court
exercised its discretion to limit the extent of the evidence of the prior shootings it admitted. As to the
Mather Street shooting, the court permitted Sulliman
to testify only that he responded to a shots fired call
on the corner of Mather and Brook Streets at about
2:50 a.m., where he collected one fired bullet from inside
of a car parked in front of the building, one fired bullet
in a bedroom of one of the units, and seven spent nine
millimeter shell casings outside of the building. The
court did not permit Sulliman to testify whether anyone
was in the bedroom or car where the bullets were found,
or if anyone was injured in the shooting. Similarly,
Long’s testimony was limited to his having driven the
defendant to a building on the corner of Mather and
Brook Streets, where he witnessed the defendant fire
two or three gunshots at the building. Long did not
testify about the motive for the shooting or whether
the defendant was shooting at a particular individual.
Thus, the court took care to limit the impact of the prior
misconduct testimony on the emotions of the jurors.
   The court also limited evidence of the Acton Street
shooting. Diaz’ testimony was limited to his having
responded to a shots fired call and having collected
projectiles at the scene. Walker testified that he drove
the defendant to Acton Street, where he witnessed the
defendant exit the vehicle and fire a gun dark in color.
The trial court did not allow Walker to testify about
why he drove the defendant to Acton Street, which
would have required a convoluted narrative involving
more than five different individuals and multiple locations that would have likely confused the jury and distracted it from the main issue in the case. Most
significantly, the court did not allow the state to introduce evidence that Hite was murdered in the Acton
Street shooting, recognizing that such testimony could
unfairly impact the emotions of the jurors. In limiting
the evidence of the prior shootings, the court ensured
that the relevant facts were shorn of prejudicial and
irrelevant detail and that the jury was not distracted by
the need to hold mini-trials regarding matters that were
not pertinent to this case.10
   The trial court’s actions are significant because ‘‘the
care with which the [trial] court weighed the evidence
and devised measures for reducing its prejudicial effect
militates against a finding of abuse of discretion.’’ (Internal quotation marks omitted.) State v. Beavers, 

, 

 (2009); see 

 (by
excluding ‘‘most egregious and prejudicial uncharged
misconduct,’’ trial court did not abuse its discretion
when it admitted uncharged misconduct evidence); see
also State v. Blango, 

, 

 (trial court did not abuse its discretion by admitting
uncharged misconduct evidence because evidence was
limited to showing only that defendant displayed gun
in separate incidents), cert. denied, 

, 

 (2007).
 Because of the trial court’s careful limits on the testimony, the evidence the jury heard about the Acton
Street and Mather Street shootings, which was clearly
probative of means and identity, was much less severe
than the evidence of the Edwards Street murders. This
court repeatedly has held that ‘‘[t]he prejudicial impact
of uncharged misconduct evidence is assessed in light
of its relative ‘viciousness’ in comparison with the
charged conduct.’’ State v. Campbell, 

,
522–23, 

 (2018). ‘‘The rationale behind this
proposition is that the jurors’ emotions are already
aroused by the more severe crime of murder, for which
the defendant is charged, and, thus, a less severe,
uncharged crime is unlikely to arouse their emotions
beyond that point.’’ State v. 

. In the present case, the jury heard that the defendant fired only three to four bullets in each of the prior
shootings and heard no evidence that individuals were
injured or killed. Comparatively, the defendant was
charged with shooting and killing two people on
Edwards Street. The facts of the two prior shootings
are less severe, making it less likely that they aroused
the emotions of the jurors. See, e.g., State v. 

 (‘‘prior misconduct evidence
admitted involved only the defendant’s actual, claimed
or threatened damage of property for personal gain, as
compared to the charged crime in the . . . case, which
contemplated [an] intentional killing’’); State v. Mooney,

, 

 (seriousness of subsequent crime, larceny, paled in comparison to robbery
and felony murder charges for which defendant was
standing trial), cert. denied, 

, 

,

 (1991).
   The defendant also argues that the uncharged misconduct evidence was highly prejudicial because of the
similarities between the prior shootings and the
Edwards Street shooting.11 He contends that, because
each shooting occurred at night, involved the defendant
pulling up in a vehicle and firing multiple gunshots
either out of the window or after getting out of the
vehicle, and ended when he fled in the vehicle, the prior
misconduct evidence was too similar to the charged
conduct and, therefore, highly prejudicial. We conclude
that the uncharged misconduct was not so similar as
to have increased any prejudice to the point that it
outweighed the probative value of the evidence. The
jury heard testimony that the defendant shot at a building on Mather Street and fired gunshots on Acton Street
but that, in the present case, two victims on Edwards
Street were shot and killed.
  The defendant nevertheless contends that the present
case is analogous to Raynor, in which the defendant
was tried and convicted of murder. State v. 

. At trial, the state offered evidence
of a subsequent shooting in which the defendant allegedly used the same weapon. See 

 557–58. Specifically, the subsequent shooting and the charged crime
in Raynor involved two victims, one male and one
female who had been, or currently were, romantically
involved and were shot at outside of their own homes
at night, with dozens of gunshots having been fired.
Id., 563. Unlike the situation in the present case, the
subsequent shooting in Raynor was more similar to the
charged crime with respect to location and the profile
of the victims. Additionally, in Raynor, evidence of the
uncharged shooting was introduced through the victim,
who testified beyond the facts of the shooting itself.
Id., 564. The victim of the uncharged shooting testified
in detail about her feelings of fear during the shooting
and her efforts to follow up with the police, in addition
to facts outside the scope of the shooting that connected
her son and the defendant. Id. This court emphasized
how the victim’s testimony greatly prejudiced the defendant. See id. Thus, Raynor is distinguishable from the
present case.
   ‘‘The question of whether the evidence is unduly prejudicial, however, does not turn solely on the relative
severity of the uncharged misconduct. Instead, prejudice is assessed on a continuum—on which severity is
a factor—but whether that prejudice is undue can only
be determined when it is weighed against the probative
value of the evidence.’’ Id., 563. The evidence of the
two prior shootings was highly probative in this case.
The uncharged misconduct evidence was the only evidence connecting the defendant directly to the firearm
used on Edwards Street. Walker’s and Long’s testimony
tied the defendant to the two prior shootings, and Jachimowicz tied the gun from the prior shootings to the
charged crimes. The firearm was never recovered in
this case, and the state’s witnesses who were with the
defendant on the night of the murder were unable to
describe the weapon he used.12 The uncharged misconduct evidence was critical in establishing the identity
of the shooter in this case. Therefore, contrary to the
defendant’s contention, the prior misconduct evidence
was not merely cumulative but, rather, was highly probative. Additionally, the two prior shootings occurred
less than three months prior to the charged homicides.
This temporal proximity contributed to the probative
value of the evidence. See id., 566 n.24.
   Finally, it is significant that the trial court instructed
the jury no fewer than five times about the limited
purpose for which the uncharged misconduct evidence
could be used, stating that it was being admitted ‘‘solely
to the extent it bears [on] the [defendant’s] having [had]
the means to commit the crimes on trial before you.’’
The court gave that instruction on the following occasions: (1) prior to the state’s presenting any uncharged
misconduct evidence, (2) following Long’s testimony
regarding the Mather Street shooting, (3) following the
testimony of Walker regarding the Acton Street shooting, (4) following the direct examination of Jachimowicz, and (5) in its final charge to the jury. As this court
has held, limiting instructions ‘‘serve to minimize any
prejudicial effect that . . . evidence [of prior misconduct] otherwise may have had . . . .’’ (Citations omitted; internal quotation marks omitted.) State v. James
G., 

, 397–98, 

 (2004).
   Considering the manner in which the testimony was
limited and the numerous cautionary instructions given
to the jury, it is clear that the trial court did not abuse
its discretion in admitting the uncharged misconduct
evidence because the probative value of the evidence
outweighed its prejudicial effect.
      The judgment is affirmed.
      In this opinion the other justices concurred.
  1
     Prior to trial, defense counsel alerted the trial court to a third prior
shooting that occurred on August 9, 2008, involving the same gun. Two
people were shot in the third prior shooting, neither of whom identified the
defendant as the shooter. The state limited its direct examination of its
firearms expert, Edward Jachimowicz, to the shootings on Mather Street
and Acton Street, as those were the two shootings with eyewitnesses identifying the defendant as the shooter. Defense counsel cross-examined Jachimowicz on the third incident.
   2
     Each of the trial court’s limiting instructions was largely the same as
this first instruction.
   3
     NIBIN stands for National Integrated Ballistic Information Network.
NIBIN is a nationwide investigative system operated by the federal Bureau
of Alcohol, Tobacco, Firearms and Explosives that tracks firearms by the
‘‘microscopic marks that are left on bullets and fired cartridge cases.’’ Jachimowicz explained that, when a casing is entered into the database, the
program reads the marks on the fired cartridge case and assigns it a numerical value. When a similar casing comes in, the database checks it against
the old casings and provides a suggestion to compare the casings.
   4
     At the time of trial in 2018, the projectiles from the Mather Street shooting
had been destroyed. The trial court overruled the defendant’s objection to
Jachimowicz’ testimony that relied on these projectiles. The defendant does
not raise any issue with this ruling on appeal.
   5
     The trial court’s entire instruction to the jury about evidence that had
been admitted for a particular purpose or pertaining to the defendant’s prior
conduct was as follows: ‘‘Any testimony or evidence which I identified as
being limited to a purpose, you will consider only as it relates to the limited
purpose for which it was allowed, and you shall not consider such testimony
and evidence in finding any other facts as to any other issue.
   ‘‘The alleged conduct of the defendant on June 5, 2008, on Acton Street
in Hartford and June 16, 2008, on Mather Street in Hartford [was] admitted
for limited purposes, specifically, solely to the extent they bear [on] the
[defendant’s] having [had] the means to commit the crimes on trial before
you and to the extent they bear [on] the identity of the person who shot
Ortiz and Gresham. The court instructed you at that time, and does so again,
that you could use that evidence to the extent that you find it should be
given weight, only as to those issues and for no other purpose.
   ‘‘The events of June 5 and June 16, 2008, are not the subject of any criminal
charge in this case. This other conduct evidence is not being admitted to
prove the bad character of the defendant or any propensity or criminal
tendencies of the defendant. You may not consider this evidence as establishing a predisposition on the part of the defendant to commit crimes or a
propensity to commit the crimes charged.
   ‘‘You may consider such evidence if you believe it and further find that
it logically, rationally and conclusively supports the issues for which it is
being offered by the state, but only as it may bear on the issue of the identity
of the person who committed the crimes charged here and/or as it may bear
on the issue that the [defendant] had the means to commit the crimes
charged here. . . .
   ‘‘You may not consider evidence of such conduct of the defendant for
any purpose other than the ones I’ve told you because it may predispose
your mind uncritically to believe that the defendant may be guilty of the
offenses here charged merely because of the alleged other conduct. For
this reason, you may consider this evidence only on the issues indicated
and for no other purpose.’’
   6
     The defendant does not challenge the relevance of the testimony of the
four other witnesses who testified about the prior shootings. The defendant
similarly does not challenge the trial court’s admission of the evidence of
prior misconduct as relevant to prove means.
   7
     In its brief, the state argues that the defense never objected at trial to
Jachimowicz’ firearm identification testimony on the ground that it was not
relevant to prove means or identity because the scientific validity of firearms
identification was in doubt. We disagree. In his memorandum of law in
opposition to the state’s motion to admit prior misconduct evidence, the
defendant argued that ‘‘the declaration that the prior incidents are relevant
to show means and instrumentality may require much more evidence than
the ballistics [expert’s] simply stating it was the same firearm.’’ The defendant relied on State v. 

, and research
challenging the validity of ballistics science to support his argument. At
trial, prior to the admission of any evidence of prior misconduct, defense
counsel renewed his objection to the ‘‘whole line of inquiry’’ into prior
misconduct. Defense counsel again objected to the introduction of any
evidence, including the analysis of the casings, related to the Mather Street
shooting prior to Jachimowicz’ testimony. Each time the state offered ballistics evidence as full exhibits, defense counsel responded that he had no
objection that had not already been raised. Although we cannot now on
appeal address any issues related to the scientific basis underlying Jachimowicz’ expert opinion due to the defendant’s failure to request a Porter
hearing, the defendant did preserve his objection to the relevance of the
ballistics testimony as it concerned uncharged misconduct.
   8
     Nevertheless, the defendant improperly relies on our decision in Raynor
to challenge whether Jachimowicz’ testimony was relevant to the identity
of the shooter in light of what he deems ‘‘new law’’ that ‘‘undermines the
relevance that firearm and toolmark opinions may bear on establishing a
shooter’s identity.’’ In Raynor, we held that the trial court abused its discretion by ‘‘deny[ing] the defendant’s motion for a Porter hearing without
considering the proffered evidence challenging the methodology supporting
toolmark and firearm analysis . . . .’’ State v. 

. In doing so, we recognized, as the defendant notes, that ‘‘[s]cience . . .
is not static . . . [and] [m]ethodologies are continually challenged and
improved . . . .’’ Id., 543. This court did not, however, as the defendant
contends, ‘‘undermine’’ the general relevance of firearm analysis. Our holding
was limited to the trial court’s denial of the defendant’s request in Raynor
that it conduct a Porter hearing. See id., 543–44. Because the defendant in
the present case did not request a Porter hearing, his reliance on Raynor
is misplaced.
   Additionally, Jachimowicz did not, as the defendant argues, ‘‘make absolute, unquestioned statements’’ about his findings. Rather, Jachimowicz
properly testified that his opinion was based on ‘‘a reasonable degree of
scientific certainty . . . .’’ Although Jachimowicz’ testimony may not have
been dispositive of the shooter’s identity, that is an issue ‘‘of degree rather
than kind’’ and in no way makes his testimony inadmissible. State v. Collins,

, 587 n.19, 

, cert. denied, 

, 

, 

 (2011).
   9
     The defendant also argues that, because Jachimowicz’ methodology
lacked scientific validity, the state could not prove that the firearm involved
in the uncharged shootings was the same firearm involved in the present
case, thus making the prior misconduct evidence more prejudicial than
probative given the tenuous tie between the shootings. As discussed, however, the defendant waived any Porter claim, and, thus, to the extent his
unpreserved Porter claim masquerades as a claim of undue prejudice, we
do not review it. Additionally, to the extent the defendant argues that the
expert’s testimony, even if relevant, was insufficient to establish a link
between the shootings, our case law has established that the state does not
have to connect the weapon directly to the defendant and the crime charged
with absolute certainty. Rather, all that is necessary for the evidence to
have probative value is that the state introduces some evidence to link the
weapon to the defendant and the charged offense. See, e.g., State v. 

 325 Conn. 144–45.
   10
      Additionally, the state repackaged the items of evidence from the Acton
Street shooting in new bags because the labels on the original evidence
bags identified them as homicide evidence. Although the state did not do
this at the trial court’s behest, it is a critical factor in assessing actual
prejudice to the defendant.
   11
      The defendant argues in part that the Acton Street shooting and the
shooting in the present case are the same in that he ‘‘supposedly drove
around and started firing his gun out on the street like a maniac.’’ He attempts
to support this contention with a quotation from the prosecutor’s rebuttal
closing argument to the jury characterizing the defendant as a ‘‘hothead
. . . .’’ This argument does not hold water, as the prosecutor, in his rebuttal,
was referring to the defendant’s motive in the Edwards Street shooting at
issue, not the prior misconduct.
   12
      This is unlike Raynor, in which the trial court relied on the fact that a
witness previously had identified the recovered murder weapon as the
weapon the defendant had purchased prior to the murder and as the gun
he used to commit the charged crime. See State v. 

 337
Conn. 565–66.