STATE v. BILLIE, 250 Conn. 172 (1999)

738 A.2d 586

(SC 15929)Supreme Court of Connecticut

Callahan, C.J., and Borden, Berdon, Norcott and McDonald, Js.

Syllabus
Convicted of the crimes of manslaughter in the first degree, committing a class A, B or C felony with a firearm and carrying a pistol without a permit, the defendant appealed to the Appellate Court, which reversed his conviction of commission of a class A, B or C felony with a firearm and affirmed his other convictions. The Appellate Court concluded that the trial court had abused its discretion in striking the testimony of the defendant’s expert witness regarding behavioral changes caused by a certain drug combination that the defendant allegedly had been using on the days preceding and the day of the crimes. The Appellate Court concluded, however, that the error was harmless because even if the evidence had been admitted, the jury would have returned the same verdict of guilty of manslaughter in the first degree. The defendant, on the granting of certification, appealed and the state cross appealed to this court. Held that, because the proposed testimony did not offer any expertise directly applicable to a matter at issue here and, therefore, would not have been helpful to the jury in reaching its verdict, the trial court did not abuse its discretion by excluding the testimony of the defendant’s expert witness: the proffered testimony was not based on an examination of the defendant himself or on a review of his pertinent medical records, nor was it premised on an examination of the substance allegedly ingested by the defendant or on an analysis of the behavioral effects of the drug in general, but was instead limited to the effects of each of the separate substances that the defendant had taken in combination; further, the defendant was not precluded from presenting evidence of his defense of intoxication, he having been permitted to pursue that defense by means of his own testimony and that of his other witnesses.

(One justice dissenting)Argued April 29, 1999

Officially released August 10, 1999

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Procedural History
Substitute information charging the defendant with two counts of the crime of murder and with one count each of the crimes of capital felony, conspiracy to commit murder, committing a class A, B or C felony with a firearm, carrying a pistol without a permit and larceny in the first degree, brought to the Superior Court in the judicial district of New Haven and tried to the jury befor Fracasse, J.; verdict and judgment of guilty of two counts of the lesser included offense of manslaughter in the first degree as an accessory, and one count each of committing a class A, B or C felony with a firearm and carrying a pistol without a permit, from which the defendant appealed to the Appellate Court, Lavery, Hennessy and Dupont, Js., which reversed in part the judgment of the trial court and remanded the case with direction to vacate the defendant’s conviction of the crime of commission of a class A, B or C felony with a firearm and to resentence the defendant accordingly, and, on the granting of certification, the defendant appealed and the state cross appealed to this court. Affirmed.

James P. Streeto, special public defender, for the appellant-appellee (defendant).

John A. East III, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary Nicholson, senior assistant state’s attorney, for the appellee-appellant (state).

Opinion
NORCOTT, J.

The dispositive issue in this appeal is whether the Appellate Court properly concluded that the trial court had abused its discretion in striking the

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testimony of the defendant’s expert witness.[1] The defendant, Maurice Billie, was convicted after a jury trial of two counts of manslaughter in the first degree as an accessory in violation of General Statutes §§ 53a-8[2] and 53a-55
(a)(1),[3] one count of commission of a class A, B or C felony with a firearm in violation of General Statutes §53-202k,[4] and one count of carrying a firearm

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without a permit in violation of General Statutes §29-35.[5]

On appeal to the Appellate Court, the defendant claimed, inter alia, that the trial court improperly excluded certain testimony of the defendant’s expert witness regarding behavioral changes caused by the use of a drug known as “illy”[6] that the defendant allegedly had been using on the days preceding and on the day of the crimes. State v. Billie, 47 Conn. App. 678,

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679-80, 707 A.2d 324 (1998). The Appellate Court concluded that the trial court had abused its discretion in striking the testimony because the expert witness possessed a special knowledge of the drug not common to the average person, and his testimony would have assisted the jury in considering the issue of intoxication. Id., 684. Nevertheless, the Appellate Court concluded that the error was harmless because, even if the jury had believed the evidence of intoxication and had concluded that the defendant was so intoxicated that he could not form the specific intent to cause serious bodily harm pursuant to § 53a-55
(a)(1), the jury would have returned the same verdict of guilty of manslaughter in the first degree. Id., 686.[7] The court determined that the only distinction would be that the jury would have returned a verdict of guilty under subdivision (3) of §53a-55 (a) instead of subdivision (1).[8] This certified appeal followed.

We conclude that the Appellate Court improperly determined that the trial court had abused its discretion in striking the testimony of the defendant’s expert witness regarding the substance known as illy and its effects.[9] Accordingly, we affirm the judgment of the Appellate Court upholding the defendant’s conviction, although we do so on different grounds.

The Appellate Court determined that the jury reasonably could have found the following facts. “On September 3, 1994, the defendant spent the evening drinking alcohol and smoking marijuana and illy. The next day, the defendant went to a cookout hosted by friends

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where he and two friends smoked `blunts.’[10] Later in the day, the defendant met his friend Andre Cinicola, who had a .40 caliber semiautomatic pistol in a shoulder holster. The defendant put on the holster and weapon and covered them with a leather jacket. Id., 680. The defendant decided to go to Congress Avenue in New Haven to purchase marijuana. The defendant drove a Mazda Miata and Cinicola rode in the passenger seat. While on Congress Avenue, the defendant and Cinicola were told “that members of a gang known as the Stickup Boys were nearby driving in a blue Mustang. The Stickup Boys were a gang that had recently engaged in a shooting and robbing spree in the inner city neighborhoods and housing projects in the New Haven area.” Id. The defendant and Cinicola drove off in search of the blue Mustang.

Minutes later, the defendant came upon a blue Mustang with tinted windows, and a high speed chase ensued. “The defendant positioned the Miata alongside the driver’s side window of the Mustang. Cinicola took the pistol from the defendant and fired [a total of] four shots at the Mustang. . . . One of the bullets struck the driver in the head, either killing or incapacitating him instantly and causing him to lose control of the car. The Mustang crashed into a nearby office building. The defendant also lost control of the Miata, which [then crashed into] a utility pole located seventy feet from the Mustang. The last portion of the chase and shootout was observed by three New Haven police officers who were [stationed] near the location of the car crashes.” Id., 680-81.

The police officers found Cinicola on the sidewalk next to the Miata and the defendant trapped in the

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driver’s seat. Two passengers in the backseat of the Mustang had minor injuries. The driver of the Mustang, George Goforth, had been killed by a single gunshot wound to the head. The front seat passenger, Roshwanda Crenshaw, was killed by a single gunshot wound to the chest. Ballistic testing confirmed that the bullet that killed Crenshaw was fired from Cinicola’s gun. The bullet that killed Goforth passed through his skull and was never recovered. Id., 681.

“The murder weapon was recovered near the Miata and tests revealed Cinicola’s left index fingerprint [on it]. . . . No weapon was found in the Mustang, and evidence later revealed that the defendant knew all four occupants and was a close friend of the two who were killed and that none of them was connected to the Stickup Boys. The tinted windows of the Mustang had prevented the defendant and Cinicola from identifying the occupants of the Mustang.” Id., 682.

At trial, the defendant sought to introduce the expert testimony of Jeremy August, a psychiatrist, who was to testify regarding the behavioral effects caused by the use of the drug illy. Although August did testify regarding the behavioral effects of the components of illy — namely, methanol, phencyclidine (PCP), and formaldehyde — he stated that he could not testify as to the effects of these components in combination. August testified that illy was a nonuniform mixture of a variety of chemical substances, and that he had no knowledge as to the mixture ratio of the elements in the substance allegedly ingested by the defendant. He stated that “[i]lly is not like a prescription drug so . . . the clinical presentation depends on how much each of the individual ingredients you have and the extent to which you’ve been taking the substance.” He also testified that he had neither examined the defendant nor reviewed his medical records, and that he could not testify as to the behavioral effects, if any, experienced by the defendant

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at the time that the crimes were committed. Indeed, August offered to review the defendant’s medical records in order to “make a guess as to what was actually in the concoction that he [was] presented with.” Defense counsel rejected this offer. Consequently, the trial court ordered that August’s entire testimony be stricken as irrelevant.

The defendant presented ample evidence of his drug use and the effects therefrom through his own testimony and that of his companions, Terrence Williams, Judale Wynkoop and Joseph Threatt.[11] Williams and Wynkoop testified that they had ingested illy with the defendant during the evening hours preceding the shootings. Furthermore, the defendant testified that he had been a chronic user of illy for “four or five years.” He also testified as to the behavioral changes he has experienced as a result of smoking illy.[12]

The defendant claims that the trial court abused its discretion by excluding the testimony of his expert witness. Specifically, the defendant claims that the exclusion of August’s testimony improperly precluded him from presenting the defense of intoxication. We disagree.

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As a threshold matter, we set forth the standard by which we review the trial court’s determinations concerning the exclusion of evidence. “The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997). “Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Berger, 249 Conn. 218, 230, 733 A.2d 156 (1999). Our review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did. Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985).

Concerning expert testimony specifically, we note that “the trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed. State v. Campbell, 225 Conn. 650, 654, 626 A.2d 287 (1993); State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986); State v. Palmer, 196 Conn. 157, 166, 491 A.2d 1075 (1985); Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973); Coffin v. Laskau, 89 Conn. 325, 330, 94 A. 370
(1915).” State v. Esposito, 235 Conn. 802, 834, 670 A.2d 301
(1996). “Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.”

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(Internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 354, 696 A.2d 944 (1997).

Our analysis is supported by a review of the well established rules of 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 irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. . . . 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, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) State v. Coleman, supra, 241 Conn. 788-89.

We conclude that the trial court was within its discretion in determining that August’s testimony regarding the behavioral effects of using illy did not satisfy the test articulated i State v. Correa, supra, 241 Conn. 354. “The defendant’s rights to confront and cross-examine witnesses and to present a defense do not give him the right to have admitted any evidence he chooses.”State v. Negron, 221 Conn. 315, 328, 603 A.2d 1138 (1992). In the present case, the expert’s testimony was not based upon an examination of the defendant himself or a review of his pertinent medical records, nor was it premised upon an examination of the substance allegedly ingested by the defendant. Additionally, the testimony was not based upon an analysis of the behavioral effects of illy in general. Instead, August’s testimony was limited to the behavioral effects of methanol, PCP and formaldehyde, separate substances which, as August admitted, might have very different effects when

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combined. Thus, the trial court reasonably determined that August’s testimony was irrelevant as to both the defendant’s condition immediately following the incident and the general effects of illy. Consequently, August’s proposed testimony did not offer any expertise directly applicable to a matter at issue in the present case. His testimony, therefore, would not be helpful to the jury in reaching its verdict. Thus, the trial court correctly excluded his testimony.

After a careful review of the record we conclude that, despite his claim to the contrary, the defendant was not precluded from presenting evidence of his defense of intoxication. He was permitted to pursue his defense of intoxication by means of his own testimony and that of his other witnesses. Accordingly, we conclude that the trial court did not abuse its discretion by excluding the testimony of August and, therefore, we uphold the defendant’s conviction.

The judgment of the Appellate Court is affirmed.

In this opinion CALLAHAN, C.J., and BORDEN and McDONALD, Js., concurred.

BERDON, J., dissenting.

The trial court in the present case refused to permit the jurors to consider expert testimony that was necessary in order to enable them to evaluate the sole defense that the defendant had raised. In my view, this ruling constituted an abuse of discretion for two reasons: (1) it contradicted a recent opinion rendered by this court and (2) it violated the defendant’s fundamental right under the federal constitution to present a defense. I would reverse the defendant’s conviction and order a new trial.

In the present case, the defendant, Maurice Billie, was charged with committing a number of serious crimes.[1] His sole defense was that he had been unable

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to form the requisite mens rea because he was, at all relevant times, under the influence of a substance known as “illy,” which is a mixture of phencyclidine (PCP), wood alcohol, methanol and formaldehyde. In order to establish this defense, the defendant wished to rely upon the expert testimony of Jeremy August, a psychiatrist. August would have testified to the behavioral effects of each of the constituent ingredients of illy. He also would have testified that it was not possible to assess the precise effect of illy upon the defendant, for the simple reason that it was not possible to determine the precise ratio among the various ingredients contained in the particular mixture of illy that the defendant had ingested. The trial court excluded all of August’s testimony on the ground that it was irrelevant. I agree with the Appellate Court’s conclusion that this ruling constituted an abuse of discretion. State v. Billie, 47 Conn. App. 678, 684, 707 A.2d 324 (1998).

“Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . . .” (Internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 353-54, 696 A.2d 944
(1997). As the Appellate Court cogently explained, the psychiatric expert in the present case “possessed a special knowledge of illy, not common to the average person,[2] and his testimony would have

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aided the jury in considering the issue of intoxication. The relevant issue was whether the defendant was under the influence of illy and whether the intoxication affected his capacity to form a specific intent. Testimony concerning the composition of illy and its effect would have aided the jury in considering those issues.” State v. Billie, supra, 47 Conn. App. 684.

The mantra of the majority opinion is that “the trial court has wide discretion in ruling on the admissibility of expert testimony . . . .” (Internal quotation marks omitted.) This is true. Nevertheless, “[d]iscretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. In a plain case, this discretion has no office to perform, and its exercise is limited to doubtful cases, where an impartial mind hesitates. . . . State v. Onofrio, 179 Conn. 23, 29, 425 A.2d 560 (1979). Discretion does not mean, as the majority seems to believe, an untrammeled right to do as the trial court wishes. See United States v. Brien, 59 F.3d 274, 277 (1st Cir.), cert. denied, 516 U.S. 953, 116 S.Ct. 401, 133 L.Ed.2d 320
(1995) (trial court’s discretion is not carte blanche); State
v. Chapple, [135 Ariz. 281, 296, 660 P.2d 1208 (1983)] (discretion does not mean that the court is free to reach any conclusion it wishes). If discretion were as unbridled as the majority seems to believe, a criminal defendant would be playing Russian roulette whenever his case was assigned to a judge: justice would depend upon which chambers he happened to draw. This is not justice. Rather, a trial court’s discretion must be based upon a reasoned consideration of the unique circumstances of each particular case.” (Internal quotation marks omitted.) State v. McClendon, 248 Conn. 572, 609-10, 730 A.2d 1107 (1999) (Berdon, J., dissenting). With this analytic framework in mind, I am unable to comprehend

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the majority’s determination that the trial court in the present case did not abuse its discretion.

Just a few years ago, a unanimous panel of this court — which included the author of the majority opinion in the present case — held that the trial court had abused its discretion by “exclud[ing] the testimony of a defense expert regarding the adverse effects of cocaine on the cognitive abilities of a person who ingests the drug . . . .” State v. Barletta, 238 Conn. 313, 316, 680 A.2d 1284 (1996). The result that my colleagues in the majority have reached in the present case cannot be reconciled with Barletta. In fact, the trial court’s ruling in the present case is more egregious than the ruling that the Barletta court found to be an abuse of discretion.

To begin with, the expert testimony in Barletta was highly speculative.[3] In the present case, the only uncertainty pertained to the ratio among the ingredients contained in the mixture of illy that the defendant had ingested. It is apparent that August could have informed the jury about the following two matters: (1) the behavioral effects of the individual drugs that compose illy; and (2) the range of possible reactions to differing batches of illy.[4] Significantly, the Barletta court was

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untroubled by the state’s argument that “cocaine affects people differently, [and the expert] could not testify with specificity how [the eyewitness’] cognitive abilities were likely to have been impaired . . . .” Id., 319. If that argument did not suffice to insulate the trial court’s ruling in Barletta, it cannot do so in the present case.[5]

Moreover, Barletta involved expert psychiatric testimony that was offered in order to impeach the credibility of a witness to a crime. Id., 318. In the present case, August would have testified to the defendant’s state of mind. If the jurors had been permitted to consider August’s testimony, they well may have reached the following conclusions: (1) the defendant did not possess the requisite mens rea; (2) the state had failed to establish a necessary element; and (3) the state had failed to prove the defendant’s guilt beyond a reasonable doubt.[6]

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Finally, the majority today has disregarded the defendant’s fundamental right under the sixth amendment to the federal constitution to present a defense. “In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Davis v. Alaska, [415 U.S. 308, 318, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)]. . . . State v. Beliveau, 237 Conn. 576, 585, 678 A.2d 924 (1996); State v. Barnes, 232 Conn. 740, 746, 657 A.2d 611 (1995). Thus, [w]hen defense evidence is excluded, such exclusion may give rise to a claim of denial of the right to present a defense. Chambers v. Mississippi, [410 U.S. 284, 289-90, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)]. State v Christiano, 228 Conn. 456, 474, 637 A.2d 382, cert. denied, 513 U.S. 821, 111 S.Ct. 83, 130 L.Ed.2d 36 (1994); see also State
v. Cavell, 235 Conn. 711, 720, 670 A.2d 261 (1996) (under particular circumstances, the unjustified exclusion of a witness’ testimony can amount to a deprivation of the defendant’s right to present a defense).” (Internal quotation marks omitted.) State
v. Barletta, supra, 238 Conn. 322. In the present case, the defendant’s sole defense was that he was unable to form the requisite mens rea. By excluding the testimony of the psychiatric expert witness, the court deprived the defendant of the only credible means by which he could explain this defense to the jury.[7] Without the benefit of this testimony, the jury was unable to evaluate the case mounted by the defense in an informed manner. For these reasons, the trial court’s

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ruling deprived the defendant of his fundamental right under the constitution to present a defense.

Accordingly, I dissent.