STATE of Connecticut v. Chihan Eric CHYUNG

During the trial, the defendant filed a motion in limine to preclude the state from making any reference to the incident involving Febles. The defendant contended that the evidence constituted inadmissible propensity evidence under § 4-5 (a) of the 2012 edition of the Connecticut Code of Evidence. The state contended that, to the contrary, the evidence was admissible under § 4-5 (c) because the state intended to use it to establish the defendants intent and to rebut his claim that the victims death was the result of a mistake or an accident.

The trial court concluded that the evidence was admissible because it was relevant to prove intent and the absence of a mistake or an accident. The court noted that there were substantial similarities between the prior conduct and the conduct at issue here. Specifically, the conduct occurred in the context of a domestic dispute, the conduct involved a firearm ... and ... there were allegations of bruising in both situations. The court also found that, even though the Febles incident occurred approximately [fourteen] years prior to the events in question here, that time frame does not preclude the states inquiry ....

Thereafter, during cross-examination of the defendant, the prosecutor described the incident involving Febles and asked the defendant if he recalled it. The defendant testified that he did not. He admitted, however, that he had had a relationship with Febles and that they eventually had broken up. On redirect examination, the defendant testified that he purchased the Glock handgun with which the victim was killed in 2000 and he did not own a Glock handgun in 1995. The trial court instructed the jury that it could consider the evidence concerning the incident with Febles only to the extent that it bore on the absence of mistake or accident.

With this background in mind, we turn to the legal principles governing the defendants claim that the evidence concerning the incident involving Febles was inadmissible propensity evidence. In order to determine whether [evidence of prior misconduct] is admissible, we use a two part test. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of [the prior misconduct] evidence must outweigh [its] prejudicial effect .... Because of the difficulties inherent in this balancing process, the trial courts 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 courts ruling. (Internal quotation marks omitted.) State v. Merriam , 264 Conn. 617, 661, 835 A.2d 895 (2003).

Because intent is almost always proved, if at all, by circumstantial evidence, prior misconduct evidence, where available, is often relied upon. State v. Baldwin , 224 Conn. 347, 355, 618 A.2d 513 (1993). Evidence of uncharged misconduct is particularly probative on the issue of intent when the uncharged misconduct is similar to the charged conduct. Id. ; see also State v. Tucker , 181 Conn. 406, 415, 435 A.2d 986 (1980) (evidence of uncharged misconduct may be used to establish a pattern of behavior and an attitude ... that is indicative of the defendants state of mind).

In the present case, the defendant claims that the probative value of the purported evidence concerning the incident involving Febles was outweighed by its prejudicial effect. Specifically, he contends that Febles statement to the police was unreliable because it was given seventeen years after the incident and she had never reported the incident before that time. The defendant further contends that, even if the incident occurred, it was too remote in time to be relevant. Finally, he claims that the evidence was unreliable and prejudicial because there was no evidence that he owned a Glock handgun in 1995.

We conclude that the trial court did not abuse its discretion when it allowed the state to question the defendant about the incident involving Febles. The evidence was relevant to prove intent and the absence of mistake or accident because of the substantial similarities between the incidents. Specifically, in both incidents, a woman with whom the defendant was romantically involved had been absent from the residence that they shared under circumstances that caused the defendant to become upset and then, after the woman returned to the residence, the defendant produced a Glock handgun. Given these similarities, if the jury believed Febles account that the defendant intentionally pinned her to the wall and held the gun to her head, it reasonably could have inferred that he followed the same pattern of behavior during the argument with the victim. Thus, the jury reasonably could have concluded that the evidence rebutted the defendants testimony that the gun accidentally discharged while he was trying to put it in his bag.

We further conclude that, given the strong similarities between the two incidents and the strongly aberrational nature of the defendants conduct-producing a gun during an argument with a domestic partner-the fourteen year gap between the incidents of misconduct did not render the evidence of the incident involving Febles irrelevant. With respect to the defendants claim that the evidence was unreliable because Febles never reported the incident to the police before she gave the statement in 2012, the defendant does not provide the evidentiary basis for this representation. In any event, even if that is the case, Febles failure to report the incident to the police immediately would not render the evidence inadmissible, but would be grist for the jury mill.

Finally, with respect to the defendants claim that there was no evidence that he owned a Glock handgun in 1995, Febles statement that he threatened her with a Glock handgun was, in and of itself, evidence that the jury was free to credit or discredit in light of the defendants denial that he owned such a gun at the time that he was involved with Febles. Moreover, even if the jury did not believe Febles statement on that point, that would not render her statement irrelevant or unduly prejudicial because the brand of the gun that the defendant held to Febles head was tangential to the evidence of the assault. Accordingly, we reject this claim. The judgment is reversed and the case is remanded to the trial court with direction to vacate the legally inconsistent guilty verdicts of murder and manslaughter in the first degree with a firearm and to grant the defendants motion for a new trial.

In this opinion PALMER, EVELEIGH, ESPINOSA, ROBINSON and VERTEFEUILLE, Js., concurred.

Section 4-5 (a) of the 2012 edition of the Connecticut Code of Evidence provides: Evidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character, propensity or criminal tendencies of that person except as provided in subsection (b). Conn. Code Evid. § 4-5(a), available at http://jud.ct.gov/Publications/Code2000.pdf.

Section 4-5 (c) of the 2012 edition of the Connecticut Code of Evidence provides: Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as 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. Conn. Code Evid. § 4-5(c), available at http://jud.ct.gov/Publications/Code2000.pdf.

We note that, technically, the state did not offer any evidence that the prior misconduct involving Febles occurred. Rather, the prosecutor questioned the defendant about the incident, and the defendant testified that he did not remember it. See State v. Mucha, 137 Conn.App. 173, 203, 47 A.3d 931 (statements and argument of counsel are not evidence), cert. denied, 307 Conn. 912, 53 A.3d 998 (2012). If the evidence concerning the incident involving Febles was inadmissible under § 4-5(a) of the Connecticut Code of Evidence ; see footnote 22 of this opinion; however, it would have been improper for the prosecutor to ask the defendant about it. See United States v. Woods, 486 F.2d 172, 175 (8th Cir. 1973) (when prosecutor asked witness whether he was under indictment by prosecutors office, prosecutor acted improperly by inject[ing] into the trial prejudicial matter which is obviously not admissible). Moreover, the trial court and the parties treated the exchange between the prosecutor and the defendant as if it were evidence that the incident involving Febles occurred. Accordingly, it is appropriate for us to address the question of whether evidence of the incident was admissible.

See footnote 24 of this opinion. Because the trial courts ruling denying the defendants motion in limine related to the information contained in Febles statement to the police, and because we are addressing this issue because it may arise on remand, all subsequent references to the evidence in this opinion are to Febles account of the 1995 incident, and not solely to the prosecutors characterization of that account while questioning the defendant at the first trial.

The defendant appears to suggest that his inability to cross-examine Febles about the brand of the gun that she claims he held to her head rendered the evidence unduly prejudicial. The defendants inability to cross-examine Febles presents a different issue, however, than the issue of whether the evidence of prior misconduct was admissible to prove intent or absence of mistake or accident. Specifically, the defendants inability to cross-examine Febles implicates his rights under the confrontation clause of the sixth amendment. Because the defendant has raised no claim under the confrontation clause on appeal, we express no opinion as to whether allowing the prosecutor to question the defendant about Febles statement without providing an opportunity for the defendant to cross-examine Febles violated that constitutional provision or whether the defendant waived that right.

The concurring justice concludes that the trial court abused its discretion when it ruled that the evidence concerning the incident with Febles was admissible because: (1) the prior misconduct occurred fourteen years before the charged conduct; and (2) the prior misconduct was not against the victim of the charged misconduct and it did not involve a completed crime. Indeed, the concurrence suggests that it is an abuse of discretion to admit prior misconduct evidence to prove intent or the absence of accident or mistake whenever the latter circumstances are present. We conclude that there is no basis in the law of this state for such a conclusion, at least not in cases in which the defendant has claimed that the harm to the victim was not intentional. Rather, we conclude that when, (1) under circumstances that are similar to those involved in the case under review, (2) a defendant has threatened a person who is similar to the victim in the case under review (3) with harm that is similar to the harm inflicted on that victim, a fact finder reasonably could conclude that the defendant has displayed a particular pattern of behavior and an attitude ... that is indicative of the defendants state of mind during the commission of the charged offense. State v. Tucker, supra, 181 Conn. at 415, 435 A.2d 986 ; see also Johnson v. State, 204 So.3d 763, 769 (Miss. 2016) (when defendant who was charged with committing aggravated domestic violence on former wife claimed that he acted in self-defense, trial court properly admitted evidence that he had threatened to kill his former wife with gun, and later threatened to kill a former girlfriend, to show intent, motive and plan because the prior assaults all were against women, where he was the aggressor ... he had initiated the contact [and] he had a prior relationship with all of the women). Indeed, the fact that a threat is not a completed crime in the sense that the defendant has actually inflicted physical injury on the threatened person does not mean that the threat does not reveal a violent, and potentially criminal, state of mind. Accordingly, we cannot conclude that evidence of a prior threat is inadmissible to prove intent or the absence of mistake or accident merely because the threat did not rise to the same level of violence or criminality as the defendants alleged conduct in the case under review, although the defendant is certainly free to argue that his past conduct shows that he does not carry out his threats. Cf. State v. Beavers, 290 Conn. 386, 404, 963 A.2d 956 (2009) (admissibility of evidence of prior misconduct to prove intent of defendant charged with arson does not depend on whether he actually [completed any prior acts of arson]; his comments about wanting to set [a] fire, as well as his threats [to his former wife, while they were married, to burn down their house] ... are equally probative of his intent to commit arson by burning down house that he shared with his mother).

With respect to the fourteen year lapse of time, while we agree with the concurrence that this raises the question of whether the conduct was too remote in time to be relevant, we see no reason to adopt a bright line time limitation and we are satisfied, for the reasons stated in the body of this opinion, that the trial courts conclusion that the Febles incident was not too remote did not constitute an abuse of discretion. See Johnson v. State, supra, 204 So.3d at 769 (evidence of threat to kill former wife thirteen years before charged assault on most recent wife was admissible to show intent). Accordingly, we conclude that the trial court here did not abuse its discretion when it determined that the jury reasonably could conclude that the evidence that the defendant had previously threatened to shoot a domestic partner in the head with a Glock handgun during an argument tended to rebut the defendants claim that the victim in the present case was shot in the head during an argument with the defendant when the Glock handgun that he was holding accidentally discharged as he was attempting to place it in his bag.

McDONALD, J., concurring.

I agree with the majority that the verdicts were legally inconsistent and must be vacated. With regard to the issue likely to arise on remand, however, I disagree with the majority that the trial court properly permitted the state to present evidence of prior uncharged misconduct of the defendant, Chihan Eric Chyung. In my view, the fourteen year gap between the misconduct and the killing in the present case, and the substantive dissimilarities of the misconduct to the killing would render it an abuse of discretion to admit such evidence to prove intent to kill and the absence of mistake.

At the outset, I note my agreement with the majority that, technically, no evidence of prior misconduct was presented to the jury. See footnote 24 of the majority opinion. The state did not present any testimony from Pamela Febles, the defendants former girlfriend, or her statement to the police, regarding the incident of misconduct. Rather, the state inquired about the incident during its cross-examination of the defendant, and the defendant replied that he had no recollection of any such incident occurring. It is well settled that counsels questions to a witness are not evidence. See Connecticut Criminal Jury Instructions (4th Ed. 2008) § 1.2-6, available at http://www.jud.ct.gov/ji/Criminal/Criminal/pdf. (last visited March 22, 2017); State v. Martinez , 95 Conn.App. 162, 182, 896 A.2d 109, cert. denied, 279 Conn. 902, 901 A.2d 1224 (2006) ; State v. Ciccio , 77 Conn.App. 368, 379-80, 823 A.2d 1233, cert. denied, 265 Conn. 905, 831 A.2d 251 (2003). Nonetheless, without objection, the trial court gave the jury a limiting instruction as to the permissible use of prior misconduct evidence, thus effectively misinforming the jury that it could rely on the states question as substantive evidence. I agree with the majority that, under these unusual circumstances, we should consider whether it would be an abuse of discretion to admit such prior misconduct evidence under § 4-5(c) of the Connecticut Code of Evidence. Conn. Code Evid. (2012) § 4-5(c), available at http://jud.ct.gov/Publications/Code2000.pdf.

I would conclude that the evidence should not be admitted for the following reasons. Most courts have recognized that [t]here is no absolute rule regarding the number of years that can separate offenses. Rather, the court applies a reasonableness standard and examines the facts and circumstances of each case. (Internal quotation marks omitted.) United States v. Cuch , 842 F.2d 1173, 1178 (10th Cir. 1988) ; accord United States v. Franklin , 250 F.3d 653, 659 (8th Cir.), cert. denied, 534 U.S. 1009, 122 S.Ct. 495, 151 L.Ed.2d 406 (2001) ; United States v. Fields , 871 F.2d 188, 197-98 (1st Cir.), cert. denied, 493 U.S. 955, 110 S.Ct. 369, 107 L.Ed.2d 355 (1989). Of course, if the acts admitted [as prior misconduct] are too remote in time, this substantially weakens their probative value and weighs in favor of exclusion. This is especially true in cases in which the evidence is probative of intent. See United States v. Rubio-Gonzalez , 674 F.2d 1067, 1075 (5th Cir. 1982) ([T]o the extent such prior acts are relevant to the matter of knowledge, rather than being relevant only to intent, remoteness may be less of a factor in determining the probative value of the evidence. The passage of time and changing circumstances are more likely to significantly change ones intent than they are to obliterate knowledge once gained.). United States v. Fields , supra, at 198 ; see also United States v. Strong , 415 F.3d 902, 905 (8th Cir. 2005) (the answer to how long is too long depends on the theory that makes the evidence admissible), cert. denied, 546 U.S. 1130, 126 S.Ct. 1121, 163 L.Ed.2d 927 (2006).

Remoteness must be looked at in light of the similarity between the charged and the extrinsic offense. United States v. Terebecki , 692 F.2d 1345, 1349 (11th Cir. 1982) ; State v. Scott , 405 S.C. 489, 506, 748 S.E.2d 236 (App. 2013) (prior misconduct analysis must reconsider the similarities and dissimilarities in determining total probative value, including a reduction in probative value predicated upon remoteness). Thus, the more striking the similarities between the facts of the crime charged and the facts of the prior bad act, the longer evidence of the prior bad act remains relevant and potentially admissible for certain purposes. State v. Gray , 210 N.C.App. 493, 507, 709 S.E.2d 477 (2011), review denied, 723 S.E.2d 540 (N.C. 2012).

In the present case, the state sought to use prior misconduct that occurred fourteen years before the defendant killed his wife to prove that the discharge of the gun was not accidental, as the defendant claimed, and that he intended to kill her. This time period should raise serious questions as to the admissibility of the evidence. See State v. Snelgrove , 288 Conn. 742, 761-62, 954 A.2d 165 (2008) ([O]rdinarily, a gap of fourteen years would raise serious questions as to whether the prior misconduct was too remote in time. The defendant was incarcerated for eleven of those years, however ....). The majority concludes that the act of producing a gun during an argument with a domestic partner is sufficiently aberrant and similar to render the fourteen year period irrelevant. In my view, there are at least two material dissimilarities that, when viewed in conjunction with the fourteen year period, sufficiently reduce the probative value of that evidence as to the issue of an accidental discharge to warrant its exclusion. First, the defendant never discharged his gun in his argument with Febles. Although the defendants action toward Febles rightly should be viewed as an implicit threat, the defendant never followed through, or attempted to follow through, with action then or thereafter. Thus, its relevance to his intent to shoot his wife is tenuous. Cf.

State v. Beavers , 290 Conn. 386, 399-408, 963 A.2d 956 (2009) (uncharged misconduct of both prior arson and threat to commit arson properly admitted to establish intent and absence of mistake in arson murder case approximately five years later where defendant claimed cigarettes accidentally started fire). Second, the threat was directed at a different victim.

Several courts have recognized that one or both of these factors will preclude admission of the prior misconduct evidence. See, e.g., Robertson v. State , 829 So.2d 901, 909-11 (Fla. 2002) (In this case, the crime with which [the defendant] was charged was the completed offense of murder against his girlfriend utilizing a handgun. The prior offense, assuming it occurred, involved a threat of violence against [the defendants] former wife, involving an assault rifle. Neither the crimes, the weapons, nor the victims are similar. ... The defendant in this case was charged with the completed , violent offense of second degree murder. The prior, alleged misconduct was an offense that threatened violence. Although such a prior threat against the victim in this case, if not too remote, may have been admissible to show intent and the absence of mistake or accident, the same cannot be said of a threat against another. [Emphasis in original; footnotes omitted.] ); Johnson v. State , 655 N.E.2d 502, 504-505 (Ind. 1995) (The court stated with regard to evidence that the defendant pointed a gun at persons other than the victim and threatened to shoot if they entered his apartment: We do not see how evidence of an incident in which the defendant confronted people other than and unrelated to the victim in this case and in which a shooting did not occur makes it more likely either that [the defendant] knew that he was killing the victim or that the shooting was not an accident.); Driver v. Commonwealth , 361 S.W.3d 877, 885-86 (Ky. 2012) (The court explained its conclusion that it was error to admit evidence of prior misconduct that occurred twelve years before the criminal conduct at issue: Because prior acts of violence or threats of violence against persons other than the victim in the case on trial have significantly less probative value than similar prior acts and threats against the same victim, as a general rule specific threats directed against third parties are inadmissible. ... [A] threat to kill or injure someone [that] is specifically directed at some individual other than the deceased is inadmissible, as it shows only a special malice resulting from a transaction with which the deceased had no connection. ... An exception has been recognized when the threat against the third person is so close in time to the charged offense as to be considered a part of the same transaction. [Citations omitted; internal quotation marks omitted.] ); Walker v. State , 116 Nev. 442, 446-47, 997 P.2d 803 (2000) (The court concluded that two prior incidents in which the defendant pointed a gun at the victim, six and ten years before the defendant murdered the victim, were clearly remote in time and less relevant to the defendants intent to kill because the prior acts did not involve the firing or attempted firing of the weapon at [the victim]. ... Therefore, because the prior bad acts offered here do not clearly establish an intent to kill, but more accurately show an intent to threaten, the logical relevance of the acts to show [the defendants] later intent is further diminished. [Citation omitted.] ); see also Hoes v. State , 35 Md.App. 61, 69-70, 368 A.2d 1080 (The relevance of the prior conduct rests upon two things: the similarity of the method of assault and the fact that it was upon the same victim. That he had shot her before in like manner is inferentially relevant to his intent to do so this time, especially in light of his admission that he had discharged the firearm. As the [s]tate pointed out, the fact that [the] appellant had shot [the victim] a few years earlier makes it less likely that shooting her this time was an accident or mistake. Had the prior assault been directed toward another victim, it would have had little or no relevance in evaluating his intent [toward the victim ].... The similarity of nature and victim creates the relevant interrelationship. [Emphasis added; footnote omitted.] ), cert. denied, 280 Md. 731 (1977).

Although I would not go so far as to assert that prior threats of violence against a different victim could never be admissible as prior misconduct evidence, those facts in conjunction with the fourteen year intervening period in the present case make it apparent that the prejudice of the prior misconduct evidence far outweighs its relevance.

I therefore respectfully concur in the judgment.

The trial court instructed the jury that it could not consider as evidence the arguments and statements of counsel in connection with addressing counsels closing arguments. The court did not instruct the jury that counsels questions to witnesses are not evidence.

In fact, Febles statement indicates that after the defendant pressed the gun to her head, he became distraught and handed the weapon over to her. Following this incident, Febles continued to cohabit with the defendant for a few more weeks without any report of him subsequently drawing a weapon.

Another dissimilarity, less material, is the circumstance surrounding each confrontation. Febles indicated that the defendant was jealous and that the fight erupted when she returned later than expected from a party. According to the defendant, his wife was angry at him for telling her that she had paid too much for new tires.

In Robertson v. State, supra, 829 So.2d at 910 nn.8 and 9, the court contrasted cases admitting evidence of prior misconduct against the same victim as the one in the charged offense and those cases in which the charged offenses and the prior offenses involved similar completed crimes of violence.

We have rejected an argument that charged and uncharged crimes must be remarkably similar in order to be relevant. See State v. Kalil, 314 Conn. 529, 543-44, 107 A.3d 343 (2014). We note, however, that, in Kalil, a case in which the issue was intent with regard to charges of burglary, the uncharged misconduct occurred hours later at another home. Id., at 545, 107 A.3d 343.