State v. Holley
Opinion
ROBINSON, J.
Opinion **579A jury found that, in the afternoon of June 30, 2009, the defendant, Kenny Holley, and his accomplice, Donele Taylor, invaded the East Hartford apartment of the victim, William Castillo, intending to commit a robbery. After the victim was shot fatally in the ensuing struggle, the defendant and Taylor fled by bus, taking cash and sneakers with them. The state *519now **580appeals, upon our grant of its petition for certification,1 from the judgment of the Appellate Court reversing the judgment of the trial court, rendered in accordance with the jury's verdict, convicting the defendant of, inter alia, felony murder in violation of General Statutes § 53a-54c, home invasion in violation of General Statutes § 53a-100aa (a) (1), and robbery in the first degree in violation of General Statutes § 53a-134 (a) (2).2 State v. Holley ,
In addition to responding to the state's claims, the defendant asks us to consider, pursuant to Practice Book § 84-11 (a), numerous alternative grounds on which to affirm the judgment of the Appellate Court. In particular, the defendant contends that the trial court improperly (1) admitted into evidence, over his relevance objection, testimony by Kemorine Parker about a conversation she overheard between the defendant and Taylor while they were passengers on the bus shortly after the commission of the home invasion, (2) admitted into evidence, over his hearsay objection, certain testimony by Dennis Minott, the driver of the bus, indicating that Taylor had asked him for a tissue upon boarding, (3) determined that defense counsel had asked a question of a police detective that invited an answer otherwise barred by Crawford v. Washington , supra,
The Appellate Court's opinion aptly sets forth the following facts and procedural *520history. On the basis of the evidence adduced at trial, the "jury reasonably could have found that, at the time of the events at issue, the victim ... lived in an apartment in East Hartford with his girlfriend, Tami Schultz. The victim earned money from selling sneakers both from his automobile and from his residence. At approximately 3:15 p.m. on June 30, 2009, while Schultz was out shopping, the defendant and ... Taylor entered the victim's residence. A violent struggle involving the victim ensued, during which both Taylor and the victim sustained physical injuries. **582Notably, the victim bit Taylor on his right wrist. Before the defendant and Taylor left the victim's residence, which they [had] ransacked in search of valuables, the victim sustained multiple gunshot wounds.
"When the defendant and Taylor fled the victim's residence, the defendant was in possession of property belonging to the victim, specifically, cash and a shoe box. At 3:24 p.m., the victim attempted to dial 911 on his cell phone but he was unable to do so and dialed '922' instead. He perished on his kitchen floor from a gunshot wound in the area of his left chest. A neighbor of the victim, alerted to the sound of uncharacteristically loud music, fighting, gunshots, and pleas for help originating from the victim's residence, called 911 at 3:25 p.m. By 3:30 p.m., the police arrived at the scene, where they discovered the lifeless victim.
"Immediately upon leaving the victim's residence, the defendant and Taylor proceeded to a nearby bus stop that was one-tenth of a mile from the crime scene, from which, at 3:22 p.m., they boarded a bus that transported them to downtown Hartford. At this time, the defendant was carrying a backpack that contained the cash and a shoe box. [Upon boarding, Taylor asked Minott for a tissue.] A fellow passenger, [Parker, then overheard] Taylor comment to the defendant that Taylor had been bitten by a dog, and the defendant was overheard remarking that '[i]t was a big dog.' Images of the defendant and Taylor running toward the bus stop were captured by a video surveillance camera located at a nearby convenience store, and images of the defendant and Taylor while they were on the bus were captured by a video surveillance camera located on the bus. In the video from the bus, the defendant appears to remove cash from his backpack and appears to hand something to Taylor from his backpack.
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ROBINSON, J.
Opinion **579A jury found that, in the afternoon of June 30, 2009, the defendant, Kenny Holley, and his accomplice, Donele Taylor, invaded the East Hartford apartment of the victim, William Castillo, intending to commit a robbery. After the victim was shot fatally in the ensuing struggle, the defendant and Taylor fled by bus, taking cash and sneakers with them. The state *519now **580appeals, upon our grant of its petition for certification,1 from the judgment of the Appellate Court reversing the judgment of the trial court, rendered in accordance with the jury's verdict, convicting the defendant of, inter alia, felony murder in violation of General Statutes § 53a-54c, home invasion in violation of General Statutes § 53a-100aa (a) (1), and robbery in the first degree in violation of General Statutes § 53a-134 (a) (2).2 State v. Holley ,
In addition to responding to the state's claims, the defendant asks us to consider, pursuant to Practice Book § 84-11 (a), numerous alternative grounds on which to affirm the judgment of the Appellate Court. In particular, the defendant contends that the trial court improperly (1) admitted into evidence, over his relevance objection, testimony by Kemorine Parker about a conversation she overheard between the defendant and Taylor while they were passengers on the bus shortly after the commission of the home invasion, (2) admitted into evidence, over his hearsay objection, certain testimony by Dennis Minott, the driver of the bus, indicating that Taylor had asked him for a tissue upon boarding, (3) determined that defense counsel had asked a question of a police detective that invited an answer otherwise barred by Crawford v. Washington , supra,
The Appellate Court's opinion aptly sets forth the following facts and procedural *520history. On the basis of the evidence adduced at trial, the "jury reasonably could have found that, at the time of the events at issue, the victim ... lived in an apartment in East Hartford with his girlfriend, Tami Schultz. The victim earned money from selling sneakers both from his automobile and from his residence. At approximately 3:15 p.m. on June 30, 2009, while Schultz was out shopping, the defendant and ... Taylor entered the victim's residence. A violent struggle involving the victim ensued, during which both Taylor and the victim sustained physical injuries. **582Notably, the victim bit Taylor on his right wrist. Before the defendant and Taylor left the victim's residence, which they [had] ransacked in search of valuables, the victim sustained multiple gunshot wounds.
"When the defendant and Taylor fled the victim's residence, the defendant was in possession of property belonging to the victim, specifically, cash and a shoe box. At 3:24 p.m., the victim attempted to dial 911 on his cell phone but he was unable to do so and dialed '922' instead. He perished on his kitchen floor from a gunshot wound in the area of his left chest. A neighbor of the victim, alerted to the sound of uncharacteristically loud music, fighting, gunshots, and pleas for help originating from the victim's residence, called 911 at 3:25 p.m. By 3:30 p.m., the police arrived at the scene, where they discovered the lifeless victim.
"Immediately upon leaving the victim's residence, the defendant and Taylor proceeded to a nearby bus stop that was one-tenth of a mile from the crime scene, from which, at 3:22 p.m., they boarded a bus that transported them to downtown Hartford. At this time, the defendant was carrying a backpack that contained the cash and a shoe box. [Upon boarding, Taylor asked Minott for a tissue.] A fellow passenger, [Parker, then overheard] Taylor comment to the defendant that Taylor had been bitten by a dog, and the defendant was overheard remarking that '[i]t was a big dog.' Images of the defendant and Taylor running toward the bus stop were captured by a video surveillance camera located at a nearby convenience store, and images of the defendant and Taylor while they were on the bus were captured by a video surveillance camera located on the bus. In the video from the bus, the defendant appears to remove cash from his backpack and appears to hand something to Taylor from his backpack.
"By disseminating to the public some of the still images of the defendant and Taylor from the surveillance **583footage captured on the bus, the police gained information about their identities. When the police interviewed Taylor on July 16, 2009, police observed injuries on or about his hands. Following an unrelated shooting incident in Hartford, the police came to possess a .22 caliber Beretta and determined that it previously had been owned by Taylor. Forensic analysis of the gun and of shell casings found at the crime scene involving the victim linked the gun, and thus Taylor, to the crimes. Moreover, forensic analysis of DNA samples from Taylor and of DNA obtained from the brim of a baseball cap that was found at the crime scene linked Taylor to the crimes." State v. Holley , supra,
The state subsequently charged the defendant with, inter alia, felony murder, home invasion, conspiracy to commit home invasion, burglary in the first degree, and robbery in the first degree. Id., at 582,
The defendant appealed from the judgment of conviction to the Appellate Court, raising numerous claims, including an unpreserved claim that his constitutional right to present a defense had been infringed by the trial court's conditional evidentiary ruling with respect **584to Taylor's statement to the police about the injuries to his hand.4 The Appellate Court agreed that the trial court had violated his right to present a defense because, "after the court properly excluded evidence concerning Taylor's statements to the police [pursuant to Crawford v. Washington , supra,
I
We begin with the state's claim that the Appellate Court improperly concluded that the trial court had violated the defendant's sixth amendment right to present **585a defense by, in essence, precluding him from presenting evidence regarding the nature, source, and timing of Taylor's injuries. The record and the Appellate Court's opinion reveal the following additional facts and procedural history relevant to this claim. The defendant filed a motion in limine seeking to preclude the state from introducing certain statements that were made by Taylor to the police on the ground that they were inadmissible under Crawford ,5 as testimonial hearsay *522from an unavailable witness.6 **586State v. Holley , supra,
"On December 6, 2012, the court heard oral argument on the motion in limine.
*523After the defendant's attorney described the facts, generally as set forth in his motion **587and memorandum of law in support thereof, he argued that if Taylor did not testify, the court should exclude his statements from the evidence. The prosecutor responded that the state did not intend to offer all evidence of Taylor's statements to the police, characterizing them generally as 'statements against penal interest' that may be barred under Crawford. The prosecutor, however, stated that he intended to offer evidence that Taylor told the police that he had bite marks and scratches on his hands, including a bite mark inflicted by the victim. The prosecutor characterized this portion of Taylor's statements to the police as being nontestimonial in nature. The defendant's attorney argued that the evidence was unduly prejudicial and, because Taylor would not be available for cross-examination, its admission would violate the defendant's right to confront an adverse witness. It appears that the court deferred ruling on the issue until the time of trial.
"Following additional oral argument related to the issue on January 7, 2013, the court ruled that ... it would permit the state to present evidence of Taylor's statement to the police that he had sustained a bite wound. The state argued that the statement was relevant to one or more issues in the case in light of the evidence of the 'big dog' comments made by the defendant and Taylor on the bus, shortly after the shooting.
"On January 8, 2013, outside of the jury's presence, the state called Taylor to the witness stand. Despite being ordered to do so by the court, Taylor refused to answer any questions posed to him concerning the events underlying the trial. The court held Taylor in contempt and sentenced him to six months incarceration.
"On January 9, 2013, the court revisited its ruling to admit evidence of Taylor's statement that he had sustained a bite wound. At this juncture, the court disallowed **588the statement related to the bite wound. The court stated: '[R]ight now, based on what the evidence is, because the defense hasn't challenged anything concerning that statement, I'm going to disallow the statement concerning the bite. I understand that it is a statement against penal interest; the entire confession was a statement against penal interest. But if there's even a hint anywhere that that bite was anything other than where it came from, that statement does come in, and that includes during closing argument as well. I will reopen this case if there's a hint during closing argument that the bite was anything other than what it is. So, remember, I'll stop the trial and allow [Taylor's statement] in at that point.' The court stated that it would permit Olson to testify that he had interviewed Taylor and that during the course of his interview he photographed Taylor's injuries. The court also stated that the state could present such photographs in evidence. Later, in response to an inquiry by the defendant's attorney concerning the court's ruling, the court stated that it wanted to make it 'very clear that if there's even a hint that that bite mark came from anywhere else, [then evidence of Taylor's statement] comes in.' The defendant's attorney replied, 'Right. And I made a note of that, opening the door.'
"Later, Olson testified that he interviewed Taylor on July 16, 2009, [and] observed injuries on Taylor's hands, and [that] the injuries [were photographed]. The photographs were admitted into evidence. During his testimony, Olson testified: 'He appeared to have a bite mark on his wrist and some lacerations on his other hand.' The defendant objected to Olson's testimony. The court, noting that the testimony *524was Olson's observation of the injury, overruled the defendant's objection. During subsequent examination by the state, however, Olson testified that he learned from talking to Taylor that the injury on his wrist was '[a] bite.' The court sustained **589the defendant's objection to this inquiry and denied the defendant's motion for a mistrial related to it. The court, however, provided the jury with a curative instruction directing it to disregard any testimony from Olson concerning what Taylor may have stated to him about the injury. The court instructed the jury that the nature of any marks on Taylor's hands was a factual matter for the jury to decide.7
"In addition to Olson's testimony and the photographs depicting Taylor's injuries, the state presented evidence that was relevant to the issue of Taylor's injuries from ... Minott, the operator of the bus on which the defendant and Taylor were passengers on June 30, 2009. Minott testified that one of the two black males who got on his bus at Main Street and Brewer Street asked him for 'a tissue,' [from which it could be inferred that Taylor needed to tend to a wound ] .... [T]he jury also heard evidence related to a bite injury from Parker, who described the conversation that she overheard on the bus." (Emphasis altered; footnotes added and omitted.) Id., at 602-606,
On appeal, the Appellate Court acknowledged that the defendant's constitutional challenge was unpreserved and reviewed it pursuant to the bypass rule of State v. Golding ,
On appeal to this court, the state claims that the Appellate Court improperly concluded that the trial court violated the defendant's right to present a defense by imposing a condition on its decision to preclude the statements to the police by Taylor that were otherwise barred under Crawford.11 Specifically, the state first contends that the trial court's ruling did not preclude the defendant from introducing evidence with respect to the origin of Taylor's injuries, but merely suggested that such evidence would be subject to counterproof in the form of Taylor's statement about the bite, notwithstanding the court's determination that Taylor's statement was otherwise inadmissible under Crawford. Relying on, inter alia, State v. Crespo ,
**593In response, the defendant contends that the Appellate Court properly determined that the trial court's preclusion of evidence about the nature of Taylor's injuries, under penalty of the admission of statements otherwise barred under Crawford , deprived him of a meaningful defense. The defendant argues that "[e]vidence of the source, nature, and timing of Taylor's injuries was relevant to refute the testimony of Olson, Parker, and Minott," insofar as it would have allowed the defendant to refute the prosecutor's argument, based on circumstantial evidence, that the defendant and Taylor had been present in the apartment together. The defendant further argues that the trial court's ruling and the resulting harm were clear from the record, and amounted to "implicitly instruct[ing] the defense to not challenge the nature, source, or timing of Taylor's injuries, while warn[ing] the defense of the consequences of doing so." We agree with the state, however, and conclude that the defendant has failed to establish that the trial court's ruling deprived him of the right to present a defense.
"It is fundamental that the defendant's rights to confront the witnesses against him and to present a defense are guaranteed by the sixth amendment to the United States constitution.... A defendant's right to present a defense is rooted in the compulsory process and confrontation clauses of the sixth amendment .... Furthermore, the sixth amendment rights to confrontation and to compulsory process are made applicable to state prosecutions through the due process clause of the fourteenth amendment....
"In plain terms, the defendant's right to present a defense is the right to present the defendant's version of the facts as well as the prosecution's to the jury so that it may decide where the truth lies.... It guarantees the right to offer the testimony of witnesses, and to compel their attendance, if necessary .... Therefore, **594exclusion of evidence offered by the defense *527may result in the denial of the defendant's right to present a defense." (Citations omitted; internal quotation marks omitted.) State v. Wright ,
"Although it is within the trial court's discretion to determine the extent of cross-examination and the admissibility of evidence, the preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements [of the confrontation clause] of the sixth amendment....
"These sixth amendment rights, although substantial, do not suspend the rules of evidence .... A court is not required to admit all evidence presented by a defendant; nor is a court required to allow a defendant to engage in unrestricted cross-examination.... Instead, [a] defendant is ... bound by the rules of evidence in presenting a defense .... Nevertheless, exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights .... Thus, [i]f the proffered evidence is not relevant [or constitutes inadmissible hearsay], the defendant's right[s] to confrontation [and to present a defense are] not affected, and the evidence was properly excluded." (Citations omitted; internal quotation marks omitted.) Id., at 818-19,
Because the defendant did not raise this claim at trial, we review it under the framework of State v. Golding , supra,
Because Golding does not excuse an inadequate record, the absence or inadequacy of an offer of proof12 **596may *528prevent a criminal defendant from proving on appeal that the trial court's preclusion of certain evidence violated his right to present a defense. In State v. Wright ,
Similarly, in State v. Crespo , supra,
The conditional nature of the trial court's ruling in the present case, allowing counterproof in the form statements otherwise barred under Crawford if the defendant were to challenge the provenance of Taylor's injuries as bites, does not relieve the defendant of the need to make a record demonstrating the existence of harm to his right to present a defense. In reaching this conclusion, we find particularly instructive the decision by the United States Court of Appeals for the Seventh Circuit in United States v. Wilson ,
Having reviewed the record in the present case, we agree with the state that the defendant's claim fails under the first and third prongs of State v. Golding , supra,
Thus, notwithstanding the unpreserved nature of this claim, the defendant's failure to make an offer of proof at trial renders it impossible for us to determine whether he was deprived of his right to present a defense because the record does not disclose the evidence that he would have offered to rebut the inference that Taylor had been bitten by the victim. Put differently, with no indication in the record that the defendant was prepared to offer admissible evidence in support of the theory **602that Taylor's injuries were not caused by the victim, the defendant cannot prove that the trial court's ruling violated his right to present a defense. See, e.g., State v. Wright , supra,
Moreover, the trial court's ruling was not an absolute bar to the admission of evidence pertaining to Taylor's injuries. Rather, it warned the defendant that if he introduced such evidence, the trial court would admit into evidence statements by Taylor that were otherwise barred under Crawford , if subsequently offered by the state. To be sure, the trial court's conditional ruling left the defendant with a strategic choice, one that required him to balance the benefits of attacking the provenance of Taylor's injuries with the risks of the admission of Taylor's statement that the victim had bitten him, evidence that otherwise would be barred by Crawford. This dilemma did not necessarily deprive the defendant of his right to present a defense because "[t]he criminal process ... like the rest of the legal system, is replete with situations requiring the making of difficult judgments as to which course to follow." (Internal quotation *532marks omitted.) McGautha v. California ,
Indeed, given the conditional nature of the trial court's ruling, we do not know whether, in the subsequent trial proceedings, the state would have used Taylor's potentially inadmissible statements. It is not inconceivable that, even if the defendant had introduced evidence concerning Taylor's injuries, the state might well have decided to avoid handing the defendant a potentially strong appellate issue founded on his objection to Taylor's statement under Crawford. See Luce v. United States , supra,
II
We turn next to the state's evidentiary claims, namely, that the Appellate Court *533improperly determined that the trial court had abused its discretion in admitting certain lay opinion testimony from two police officers, namely, (1) Olson's testimony that he had observed a bite mark on Taylor's hand, and (2) testimony by Jason Smola, the police detective who narrated the presentation of the bus surveillance video, indicating that an object in the defendant's backpack appeared to be a shoe box. We conclude that the trial court did not abuse its discretion as to the first matter, and that its ruling as to the second matter would be harmless even if it were an abuse of discretion.
Our consideration of these claims is informed by the following general principles concerning lay opinion testimony. Section 7-1 of the Connecticut Code of Evidence **605provides: "If a witness is not testifying as an expert, the witness may not testify in the form of an opinion, unless the opinion is rationally based on the perception of the witness and is helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue." " Section 7-1 is based on the traditional rule that witnesses who did not testify as experts generally were required to limit their testimony to an account of the facts and, with but a few exceptions, could not state an opinion or conclusion.... Section 7-1 attempts to preserve the common-law preference for testimony of facts, but recognizes there may be situations in which opinion testimony will be more helpful to the fact finder than a rendition of the observed facts." (Citations omitted.) Conn. Code Evid. § 7-1, commentary. "In some situations, a witness may not be able to convey sufficiently his or her sensory impressions to the fact finder by a mere report of the facts upon which those impressions were based. For example, a witness' testimony that a person appeared to be frightened or nervous would be much more likely to evoke a vivid impression in the fact finder's mind than a lengthy description of that person's outward manifestations.... As a matter of practical necessity, this type of nonexpert opinion testimony may be admitted because the facts upon which the witness' opinion is based are so numerous or so complicated as to be incapable of separation, or so evanescent in character [that] they cannot be fully recollected or detailed, or described, or reproduced so as to give the trier the impression they gave the witness ...." (Citation omitted; internal quotation marks omitted.) Conn. Code Evid. § 7-1, commentary.
"Because of the wide range of matters on which lay witnesses are permitted to give their opinion, the admissibility of such evidence rests in the sound discretion of the trial court, and the exercise of that discretion, **606unless abused, will not constitute reversible error." (Internal quotation marks omitted.) State v. Finan ,
A
We begin with the state's bite mark claim. The record and Appellate Court opinion reveal the following additional relevant facts and procedural history. At trial, Olson testified that he interviewed Taylor on July 16, 2009, and directed Officer Woodrow Tinsley to take photographs of the injuries to Taylor's hands.15 The state then asked Olson, *534"[w]hat was the nature of the injuries?" Olson began to respond to that question by stating that Taylor "had a bite on his wrist," but was interrupted by an objection from defense counsel. "The court, noting that the testimony was Olson's observation of the injury, overruled [that] objection." State v. Holley , supra,
On appeal, the state claims that the Appellate Court improperly determined that Olson's testimony was an improper lay opinion under § 7-1 of the Connecticut Code of Evidence. Relying on the rule's text and commentary, the state contends that, on the basis of the various matters upon which nonexpert opinion testimony has been held admissible, including the physical and mental condition of another person, it is entirely proper for a trial court to admit testimony that a witness had observed what he or she perceived to be a bite mark. The state further claims that Olson's observation was one that he or any other person could derive from their common experiences in life and that no expertise was required.16
In response, the defendant claims that the Appellate Court correctly determined that Olson's testimony violated the limitation on lay opinion testimony under § 7-**6081 of the Connecticut of Code of Evidence. Relying upon State v. Ingram ,
In determining whether the trial court abused its discretion in deeming Olson's testimony to be permissible lay opinion; see, e.g., State v. Finan , supra,
With respect to opinion evidence concerning the appearance of persons or things, we find instructive State v. Grant , supra,
We conclude that it was within the trial court's broad discretion to determine that Olson, as a lay witness, was competent to testify regarding the appearance of wounds that he had observed. Indeed, it was well within the trial court's discretion to determine that Olson's testimony that Taylor's wounds appeared to be a bite mark, based on Olson's personal observation and rational perception of Taylor's injuries, was more beneficial to the jury than a more abstract recitation or description of the size, location, and shape of the wound. See Conn. Code Evid. § 7-1, commentary; see also Turner v. State , Docket No. 1495,
**611with respect to description of victim's injuries as "bite marks"); cf. State v. Neal ,
The Appellate Court's decision in State v. Ingram , supra,
*537The Appellate Court determined that **612the trial court did not abuse its discretion in admitting the expert testimony because all three witnesses had relevant training and experience relating to their testimony, and that the court reasonably could have determined that their testimony was not within the common knowledge of the jury and therefore would be helpful to the jury in considering the issues. Id., at 402,
Finally, having accepted the defendant's invitation to view the photographic exhibits ourselves, we believe that the trial court reasonably could have determined that Olson's description of Taylor's injuries as apparent bite marks was within the realm of reason. Accordingly, we conclude that the Appellate Court improperly determined that the trial court had abused its discretion in determining that Olson's testimony was permissible lay opinion evidence.
B
We turn next to the state's claim that the Appellate Court improperly determined that the trial court had abused its discretion by admitting Smola's testimony regarding the object that had been inside of the defendant's backpack on the bus. The record and Appellate Court opinion reveal the following relevant facts and procedural history. The defendant filed a motion in limine seeking to preclude Smola from testifying that the item in the defendant's backpack, as viewed on the **613bus surveillance video, was a shoe box. The trial court denied the motion and ruled that it would permit Smola to testify "as to what it looks like. This is not [an] expert opinion." Before Smola testified and narrated portions of the bus surveillance video as it played for the jury, the defendant again objected, arguing that the contents of the backpack in the bus surveillance video presented a question of fact for the jury to determine. The trial court overruled the objection, stating that lay opinion evidence is admissible if it is relevant and comes from a competent witness. The trial court then instructed the jury that, "during this testimony there's going to be the introduction of a video.... What's in the video is for you to determine. You obviously are the ultimate arbiters of what the facts are in the case, and the testimony is offered as assistance but it's for you to determine. You can reject all, part, or none of the testimony if you wish, but you determine what it is that you see in that." The court then reminded the jury, that "once again, the narration is an aid but it's for you to determine what's actually in that video."
After Smola began testifying, the state asked Smola to narrate the events depicted in the bus surveillance video as it was played for the jury. He testified, over objection, that it was his "belief through investigation [that] it was a sneaker box" visible inside the backpack. The court then instructed the jury: "But once again ... the narrative that [was] provided, you determine what the facts are in the case." On cross-examination, Smola conceded that he did not know whether the item in the *538backpack actually was a shoe box, as that item was never recovered.
In its analysis of the defendant's claim that the trial court improperly permitted Smola to testify that the visible contours of an object in the backpack was a shoe box, the Appellate Court emphasized that the state did not present Smola as an expert witness, and Smola **614had no firsthand knowledge of the item in the backpack. State v. Holley , supra,
On appeal, the state claims that it was within the trial court's discretion to permit a witness, who was narrating portions of the bus surveillance video as it was played for the jury, to refer to identifiable objects visible on the screen. The state argues that the commentary to § 7-1 of the Connecticut Code of Evidence expressly contemplates that a lay witness may testify to the appearance of persons or things, which extends to the identity or similarity of objects. Finally, the state contends that any error was harmless because the trial court instructed the jury about its responsibility to determine what the surveillance bus video depicted, and that it could reject Smola's testimony accordingly. In response, the defendant contends that the Appellate Court properly determined that the trial court had abused its discretion in admitting the challenged testimony because Smola lacked personal knowledge and, thus, was not competent to testify about these facts. We, however, agree with the state and conclude that any impropriety in the admission of Smola's description of the item inside of the backpack was harmless error.
Although there is some division in the federal and state courts on this point, there is significant authority under rule 701 of the Federal Rules of Evidence to support the proposition that a lay witness narrating a video to a jury may state his or her impressions of what **615is depicted in the video, even if he or she did not observe those events firsthand. See, e.g., United States v. Begay ,
It is well settled that, "[w]hen an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful.... [W]hether [an improper ruling] is harmless in a particular case depends upon a number of factors, such as the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength **617of the prosecution's case.... Most importantly, we must examine the impact of the ... evidence on the trier of fact and the result of the trial.... [T]he proper standard for determining whether an erroneous evidentiary ruling is *540harmless should be whether the jury's verdict was substantially swayed by the error.... Accordingly, a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict." (Internal quotation marks omitted.) State v. Bouknight ,
Although we acknowledge that Smola's description of the object in the defendant's backpack as a shoe box was probative evidence connecting the defendant to the scene of the crime, we nevertheless have the requisite fair assurance that this testimony did not substantially affect the jury's verdict. First, Taylor was linked to the crime through DNA evidence, the injuries to his hands, and his sale of the murder weapon. The defendant's link to Taylor in the immediate aftermath of the crime was established through the surveillance video from the convenience store, which showed the two men traveling together within mere minutes of the crime, the bus surveillance video, and other evidence, such as Parker's testimony about the conversation between the defendant and Taylor on the bus, which clearly evidenced that the two men were together when Taylor was bitten.
Second, the bus surveillance video was admitted into evidence, and the jury had the opportunity to view it, along with a still image captured from the video depicting the backpack partially open to reveal a grayish white object. See State v. Edwards ,
Significantly, the trial court instructed the jury that Smola's testimony was "offered as assistance," but that the jury remained "the ultimate arbiters of what the facts are in the case," and it was free to "reject all, part, or none of the testimony if you wish, but you determine what it is that you see in that" video. The trial court reiterated this instruction during the final charge, as well.20 We presume the jury followed these instructions, particularly because the instructions were given immediately before Smola testified, and "such instructions are far more effective in mitigating the harm of potentially improper evidence when delivered contemporaneously with the admission of that evidence, and addressed specifically thereto." (Internal quotation marks omitted.) State v. Paul B. ,
Finally, Smola was subject to extensive cross-examination, in which he acknowledged that he had never physically obtained or examined the object in the backpack *541**619that appeared in the video to be a shoe box. Smola also acknowledged during cross-examination that he could not tell from the video whether the item in the backpack bore any logos, brands, or other distinctive marks like the shoe box that was recovered from the victim's apartment, which was admitted into evidence as Defendant's Exhibit E1. See State v. Edwards , supra,
III
In light of our conclusions in parts I and II of this opinion, we must address the defendant's proffered alternative grounds for affirming the judgment of the Appellate Court ordering a new trial, specifically that the trial court improperly (1) admitted Parker's testimony regarding the dog bite conversation between the defendant and Taylor, (2) admitted Minott's testimony that Taylor had asked for a tissue when boarding the bus, (3) admitted Smola's testimony that Taylor told him the backpack came from the victim's apartment in violation of Crawford v. Washington , supra,
We can quickly dispose of the defendant's claim that the trial court improperly admitted into evidence Parker's testimony regarding the dog bite conversation between the defendant and Taylor because it was not relevant to a material issue in the case.22 For the reasons aptly stated by the Appellate Court, we conclude that the trial court did not abuse its discretion in determining that Parker's testimony about the dog bite conversation was relevant evidence because it "demonstrat[ed] the defendant's intimate involvement with Taylor in the criminal events that had taken place moments prior to the conversation." State v. Holley , supra,
B
The defendant's next claim, that the trial court improperly admitted hearsay evidence by permitting Minott to testify regarding Taylor's request for a tissue, similarly requires little discussion. For the reasons aptly stated by the Appellate Court, we conclude that, because Minott's testimony that Taylor had asked him for a tissue was elicited on cross-examination by the defendant, under State v. Smith ,
*542C
The defendant's claim that the trial court improperly admitted Smola's testimony that Taylor had told him that the item in the backpack came from the victim's apartment, however, requires a more comprehensive **621discussion.23 The defendant argues that the trial court improperly applied the open door doctrine to admit this testimony, which was testimonial hearsay barred by Crawford v. Washington , supra,
The record reveals the following additional relevant facts and procedural history. The defendant's motion in limine seeking to preclude Taylor's hearsay statements included Taylor's statement to Olson that the defendant had a pair of boxed sneakers in his backpack that had been taken from the victim's apartment. The trial court granted the motion, indicating that such testimony would violate the defendant's confrontation rights under Crawford. As previously noted, the state subsequently called Taylor as a witness at trial, and he refused to testify.
Thereafter, during Smola's testimony; see part II B of this opinion; the defendant cross-examined him about his perceptions with respect to the shoe box in the video, in comparison to one taken from the victim's apartment. The following colloquy ensued:
"[Defense Counsel]: Detective, isn't it true that you cannot testify with any degree of certainty that that **622thing in the backpack came from [the victim's] apartment?
"The Court: Well, it's two questions, with any degree of certainty or cannot testify.
"[Defense Counsel]: Isn't it true that you cannot testify that [the] item, that thing in the backpack-
"[The Witness]: Someone told me that [it ] was -
"[Defense Counsel]: Objection, Your Honor.
"The Court: Well, you asked the question, counsel.
"[The Witness]: Donele Taylor said that.
"[Defense Counsel]: Your Honor-
"The Court: Quiet." (Emphasis added.)
At the request of defense counsel, the trial court excused the jury and the witness. After argument on the defendant's objection that Smola's answer was nonresponsive because the defendant had sought a yes or no answer, the trial court agreed with the state that Smola's answer was responsive to the defendant's question, albeit in greater elaboration than the defendant had sought.24 After the jury returned *543to the courtroom, **623Smola admitted on cross-examination that he had previously testified that he did not know "as a matter of fact" whether the object in the backpack was a shoe box, and that he had "just indicated to the jury that ... [he did not] know if it's a shoe box."
It is well settled that, "[s]o long as the answer is clearly responsive to the question asked, the questioner may not later secure a reversal on the basis of any invited error." State v. Brokaw , supra,
Although defense counsel framed the question to Smola in a somewhat leading manner, insofar as the question conceivably could be answered "yes" or "no," this did not mean that the trial court was required to **625strike Smola's explanatory response as not responsive.26 Courts have held that such answers may well be responsive, particularly when the question is poorly framed or broad, despite its somewhat leading nature. For example, in People v. Vincent , supra, 34 App.Div. 2d at 706,
Having reviewed authorities on both sides of this issue, we conclude that the trial court did not abuse its discretion in determining that Smola's answer was responsive to the defendant's question about his ability to testify. First, the question-although somewhat leading in nature-was ambiguous and imprecise, insofar as it questioned Smola's ability to testify about the link between the shoe box and the defendant's backpack. This was a particularly high risk question for the defendant, given his awareness that the Crawford material had been the subject of the motion in limine, with the possibility that any questioning that might hint at the source of his purported knowledge could trigger the disclosure of that material. Accordingly, we conclude **627that the trial court did not abuse its discretion in declining to sustain the defendant's objection to Smola's testimony.28
D
Finally, we address the defendant's claim that the trial court improperly denied his motion for a mistrial in response to Olson's testimony that Taylor had stated that the injury on his hand was a bite. The defendant contends that the trial court had abused its discretion in declining to declare a mistrial because the jury was present for arguments on his motion and because the court's curative instruction was delivered late and "did more harm than good" by "stress[ing] the significance" of Olson's improper testimony. The defendant further contends that Olson's testimony, when coupled with Parker's testimony about the conversation between Taylor and the defendant on the bus, was itself "sufficient to support a conviction, at a minimum, on the three conspiracy charges with which the defendant had been charged." Finally, the defendant contends that the jury reasonably could infer that Taylor did not testify because he was guilty, and that this evidence was critical to tying the defendant to Taylor. In response, the state contends that the trial court properly denied the defendant's motion for a mistrial because the trial court struck the improper testimony and instructed the jury to disregard it. The state also argues that a mistrial is unwarranted because Olson's improper testimony was a *546"minor coda to the extensive independent proof connecting Taylor to the crime scene," including DNA evidence, the sale of the murder weapon, and the surveillance videos showing him fleeing the scene. We agree with the state and conclude that the trial court did not abuse its discretion in denying the defendant's motion for a mistrial. **628"[T]he principles that govern our review of a trial court's ruling on a motion for a mistrial are well established. Appellate review of a trial court's decision granting or denying a motion for a [mistrial] must take into account the trial judge's superior opportunity to assess the proceedings over which he or she has personally presided.... Thus, [a] motion for a [mistrial] is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds.... In our review of the denial of a motion for [a] mistrial, we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion....
"In reviewing a claim of abuse of discretion, we have stated that [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 general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors.... Therefore, [i]n those cases in which an abuse of discretion is manifest or where injustice appears to have been done, reversal is required." (Citation omitted; internal quotation marks omitted.) State v. Nash ,
**629We conclude that the trial court did not abuse its discretion in determining that Olson's stricken testimony was not so prejudicial as to deprive the defendant of a fair trial. First, as requested by the defendant, the trial court gave a detailed instruction to the jury, directing it not to consider that testimony and reminding it that determining the nature of the injury was the province of the jury. The trial court reiterated this instruction in its final charge to the jury. See footnote 7 of this opinion. "As we previously have stated, [i]n the absence of an indication to the contrary, the jury is presumed to have followed [the trial court's] curative instructions.... [T]he burden is on the defendant to establish that, in the context of the proceedings as a whole, the stricken testimony was so prejudicial, notwithstanding the court's curative instructions, that the jury reasonably cannot be presumed to have disregarded it." (Internal quotation marks omitted.) State v. Cook , supra,
Second, given the presumed curative effect of these instructions, we disagree with the defendant's assessment that the trial court's refusal to excuse the jury, which caused him to make a motion for a mistrial in its presence, "thereby highlight[ed] the significance of the testimony that the jurors had just heard." Cf. State v. Edge ,
Finally, the statement that Taylor had previously indicated that his injury was a bite-even if considered more definitive evidence than the jury's interpretation of the photographic exhibits-was not overly prejudicial when considered in the light of other evidence linking Taylor to the crime scene, namely, DNA evidence from the baseball hat he dropped at the scene, the surveillance videos showing his flight, and the fact that he sold the murder weapon shortly after the murder. "Although the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial ... and the whole proceedings are vitiated.... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided." (Internal quotation marks omitted.) State v. Guilbert ,
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.
In this opinion ROGERS, C.J., and EVELEIGH and ESPINOSA, Js., concurred.
D'AURIA, J., with whom PALMER and McDONALD, Js., join, dissenting.
I agree with the Appellate Court's conclusion that the trial court improperly admitted certain testimony as lay opinions over the objections of **631the defendant, Kenny Holley. State v. Holley ,
I
I begin with Olson's testimony that Taylor had a bite on his wrist. Olson had interviewed Taylor in the weeks after the murder. During the interview, Taylor told *548Olson that the victim had bitten him while they struggled inside the victim's apartment, shortly before the victim was shot. At trial, the state asked Olson about the nature of wounds that Taylor had on him at the time of the interview, and Olson responded that Taylor had a "bite on his wrist ...." The trial court allowed the testimony on the ground that it was based on what Olson "observed."
The testimony concerning the cause of the marks on Taylor's wrist was critical evidence for the state. The state had strong evidence linking Taylor to the victim's murder, but lacked similarly strong evidence against the defendant. To implicate the defendant in the victim's murder, the state relied on testimony about a conversation between Taylor and someone else, apparently the **632defendant, while they rode on a bus just after the crime occurred. A fellow passenger on the bus testified that she overheard Taylor telling his companion, "I can't believe I got bit by the dog-by a dog," to which the companion, allegedly the defendant, responded, "that was a big dog; it was a big dog." The state suggested in its closing argument that the victim was the "big dog" that had bitten Taylor during a struggle and that the defendant's reply indicated he was aware of the size of the "big dog" that had inflicted the bite and he had witnessed the bite occur, helping to place him inside the apartment when Taylor and victim struggled. Olson's testimony helped to establish that the wounds on Taylor's wrists were, in fact, caused by a bite and, thus, bolstered the credibility and accuracy of the passenger's testimony about the statements she heard on the bus.
The Appellate Court concluded, however, that Olson's testimony was not a proper lay opinion because a lay witness generally may not testify about the cause of a wound. See State v. Holley , supra,
A
Taylor told Olson that his wounds were the result of a bite. But Olson could not testify as to what Taylor had told him because admitting Taylor's hearsay statements into evidence would have violated the defendant's constitutional right to confront his accusers. The confrontation clause of the Sixth Amendment to the United States constitution guarantees that "[i]n all criminal prosecutions, **633the accused shall enjoy the right ... to be confronted with the witnesses against him ...." U.S. Const., amend VI. This "bedrock" guarantee requires that the defendant have the opportunity to cross-examine any witness who gives testimony against him, and this applies to certain out-of-court statements that the state might seek to introduce into evidence. Crawford v. Washington ,
Taylor's statements to Olson concerning his wound being a bite mark were unquestionably testimonial in nature, as he made the statements when he confessed to Olson of having participated in the victim's murder, and, thus, were barred from admission unless they comported with Crawford. The state intended to use them as evidence of the defendant's guilt, but Taylor was unavailable for cross-examination. When called to the stand outside the presence of the jury, Taylor refused to answer any questions and was held in contempt. The defendant, thus, could not cross-examine him concerning his statements, and, consequently, they could not be admitted into evidence against the defendant. See Crawford v. Washington , supra,
B
To avoid this confrontation clause problem, the state argues that the trial court properly admitted Olson's **634testimony as a lay opinion based on his observations of Taylor's injuries, not on what Taylor had told him. I am not persuaded.
At the time the evidence was admitted, no foundation whatsoever had been laid to establish that Olson's testimony was an opinion formed on the basis of his personal observations, rather than a parroting of what Taylor had told him. Indeed, all of the information put before the trial court up to the point it admitted Olson's testimony established only that Olson had learned that Taylor's wounds were caused by a bite because Taylor had told him so.
Before trial, the defendant filed a motion in limine to exclude any of Taylor's statements to police from being admitted into evidence. As recounted by defense counsel during argument on the motion, Taylor gave two separate confessions to police. In the first, Taylor implicated himself as the shooter and said that someone else had been inside the apartment, but he did not know who that person was or what they were doing there. In the second, Taylor said that he had been in the apartment when the victim was murdered, but that the defendant had shot the victim. While giving these confessions to Olson, Taylor indicated that he still had bite marks and scratches from the struggle with the victim, and he said that the victim had bit him on his wrist. During argument on the motion, the state explained that it did not intend to offer into evidence Taylor's statement implicating the defendant, but would offer his statement that he had a bite on his wrist and that it came from the victim. The state argued that Taylor's statement was admissible because, although hearsay, it was against the speaker's penal interest, rendering it admissible. See State v. Smith ,
The admissibility of Taylor's statement, which had significant inconsistencies, came up again early in the trial. During the first day of trial, the state called as a witness Officer Woodrow Tinsley, who had photographed Taylor's injuries. When the state asked Tinsley whether he had been asked to take photographs of Taylor, the defendant's counsel objected and asked to be *550heard outside the presence of the jury. The defendant apparently was concerned that the state would attempt to elicit Taylor's statements about having a bite mark from the victim, but the state responded that it intended to ask Tinsley only whether he had photographed Taylor's injuries, not about their nature or how he received them. The state further offered, however, that it intended to have Olson testify "that in talking to ... Taylor ... Taylor at some point indicated that [he had] injuries on his hands [that] came from being bit by [the victim] during the course of the altercation that resulted in [the victim's] death." The defendant renewed his arguments that any such testimony would be barred under Crawford. After further argument, the state represented that the court had already ruled Taylor's statements admissible, stating: "I thought Your Honor had agreed with me that the statements about the bite marks were nontestimonial in nature ...." Even though the record contains no indication that the trial court had previously ruled on the matter but indeed indicates it had reserved ruling, the court agreed with the state, responding: "I had; I remember that. Everything else was barred; that was allowed in." Defense counsel protested, **636stating that "I did not believe that you had ruled on that specific part," and the court replied, "Well, if it wasn't clear, I'm ruling now: it's allowed in." The defendant continued to argue the effect of Crawford and asked permission to further brief the issue, but the trial court denied the request.
Two days later, on the third day of trial, the trial court changed its mind about admitting Taylor's statement concerning the bite mark. The court explained: "Now, I did some research on my own on the statements and right now, based on what the evidence is, because the defense hasn't challenged anything concerning that statement, I'm going to disallow the statement concerning the bite. I understand that it is a statement against penal interest; the entire confession was a statement against penal interest. But if there's even a hint anywhere that that bite was anything other than where it came from, that statement does come in, and that includes during closing argument as well. I will reopen this case if there's a hint during closing argument that the bite was anything other than what it is. So, remember, I'll stop the trial and allow it in at that point."1 The state responded: "I will intend to have-based on Your Honor's ruling, I will still intend to have [Olson] come back today and testify that he interviewed [Taylor] and during the course of that interview they took the photographs **637...." The court responded: "That's fine. But that doesn't indicate any statement."
When Olson testified, however, the state asked him whether Taylor had any injuries on him and the nature of those injuries. The following colloquy took place:
*551"[The Prosecutor]: Continuing on with the investigation into the ... homicide, did you have occasion to meet with [Taylor] on July 16, [2009]?
"[Olson]: Yes.
"[The Prosecutor]: And did you speak to [Taylor], yes or no?
"[Olson]: Yes.
"[The Prosecutor]: And, as a result of your conversations with [Taylor] and what you knew to date in the investigation, did you ask [Tinsley] to take any photographs of injuries to [Taylor]?
"[Olson]: Yes.
"[The Prosecutor]: What was the nature of the injuries?
"[Olson]: He had a bite on his wrist and-"
"[Defense Counsel]: Objection, Your Honor.
"[The Court]: I'm going to allow the testimony. That's what he observed. Thank you. You can cross-examine him about that."
The state argues that, contrary to the Appellate Court's conclusion, the trial court properly admitted Olson's testimony as a lay opinion about what had caused Taylor's injuries based on his observations of Taylor's wounds. I disagree.
Without any foundation that Olson's testimony was an opinion based on his own perceptions, rather than **638on the inadmissible information he learned from Taylor, it could not properly be admitted as a lay opinion. Lay witnesses generally must testify only to facts within their personal knowledge, not their opinions, and the jury may draw its own conclusions from those facts. See Jacobs v. General Electric Co. ,
After the evidence was admitted-and after the trial court's unfounded conclusion that the testimony was based on the witness' observations-Olson clarified that Taylor "appeared to have a bite mark on his wrist ...." (Emphasis added.) In my view, this was too little and too late to cure the trial court's error. This comment was too late to serve as a foundation for Olson's testimony because it came after the trial court had ruled the testimony admissible and, therefore, it could not possibly have served as a valid basis for the court's exercise of its discretion in admitting the testimony. Even if this after the fact remark could have somehow cured the trial court's error, it was too little because it did not establish whether Olson had reached an independent opinion based solely on the appearance of the **640wound, or whether his observations were simply consistent with what he had already heard from Taylor. In fact, shortly after this testimony, Olson specifically acknowledged that he had learned that the wound was a bite from talking to Taylor, as evidenced by the following exchange:
"[The Prosecutor]: After talking to [Taylor], yes or no, did you learn what that injury was on his wrist?
"[Olson]: Yes.
"[The Prosecutor]: And what was it?
"[Olson]: A bite."
The defendant's counsel then objected, and the trial court sustained the objection, but the import of the testimony is clear-Olson learned that Taylor's wounds were caused by a bite on the basis of what Taylor had told him.4 With nothing in the record to establish that Olson had reached an opinion independently based on his own perceptions-an opinion derived from admissible evidence-I conclude that the state failed to lay a proper foundation for the admission of this testimony.
I acknowledge that the trial court has broad discretion when ruling on evidentiary *553matters, but, in the **641present case, that discretion was constrained by the confrontation clause and the limitations on admitting a lay opinion. Ordinarily, the trial court might be permitted to infer from the circumstances that a witness' testimony was likely based on that witness' own perceptions, but, due to the constitutional implications of the evidence at issue in the present case, the trial court had a responsibility to act with greater care when considering whether to admit this evidence. The trial court's ruling to exclude evidence barred from admission pursuant to the federal constitution was critical to ensuring that the defendant received a fair trial. The court knew from the state's representations that Olson likely derived his knowledge of the bite from what Taylor had told him. It was the responsibility of the trial court to ensure that Olson's supposed opinion was not based on this hearsay, which was constitutionally inadmissible pursuant to Crawford. The state failed to lay a proper foundation for Olson's testimony, and the trial court did not insist that it do so. On this record, I am persuaded that the admission of Olson's testimony was not a proper exercise of the court's discretion.
C
Besides the lack of a proper foundation, the trial court's admission of Olson's testimony runs afoul of another requirement for admitting lay opinion testimony. A lay opinion must not only be based on the witness's perceptions, but also must be "helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue." Conn. Code Evid. § 7-1. Olson's supposed opinion on the origin of Taylor's wound was unhelpful and unnecessary because the police had taken photographs depicting how the wounds looked when Olson interviewed Taylor. Olson testified that those photographs were a fair and accurate representation of the marks on Taylor as he saw them. The helpfulness of a lay opinion describing a **642wound is diminished, if not extinguished, when the jury has a photograph that fairly and accurately depicts the wound as the witness saw it. Of course, photographs sometimes fail to capture precisely how something appeared and some additional description or an opinion may be called for to facilitate a complete understanding of what the witness saw. The state, however, laid no foundation to suggest that the photograph had not fully captured the appearance of the wound, such that Olson's opinion testimony would be of help. Indeed, the state acknowledged in its brief to this court that "Olson's testimony was cumulative of the photographs in evidence." The state was free to use the picture of Taylor's wound alone to argue that the jury should conclude that it was caused by a bite, but, given the confrontation clause problems associated with Olson's opinion testimony and the lack of any demonstrated need to present that opinion as evidence when the photograph was available, I agree with the Appellate Court that the trial court exceeded the bounds of its discretion when admitting Olson's testimony.
II
I also agree with the Appellate Court that the trial court improperly allowed Smola to testify as to his belief that the defendant was carrying a shoebox in a backpack shortly after the crime occurred. According to the information put before the trial court, the state had a video recording from a bus depicting Taylor and another person, apparently the defendant, getting onto the bus near the location of the murder shortly after it occurred. The defendant is seen carrying a backpack, which he opened to retrieve money to pay *554the bus fare. Through the small opening in the backpack, there appears to be an object of some sort inside. At an earlier probable cause hearing, Smola testified that he had no personal knowledge of what was in the backpack-he had not personally witnessed the events depicted in the **643video, and the backpack and the object inside were not recovered by police. Instead, the state proffered that Smola had a belief about what was in the backpack based on what he saw in the video. In addition, the state proffered that Taylor had told officers during his confessions that he had looked in the defendant's back-pack while on the bus and saw a shoebox inside.
The defendant moved to preclude Smola from identifying the object in the backpack because he lacked personal knowledge of what it was, but the trial court allowed him to testify as to his opinion about what the object looked like. While the video was playing before the jury at trial, the prosecutor noted that there appeared to be a backpack depicted in the video and asked Smola, "[w]ere you able to determine through your investigation what you believe is contained within that backpack?" (Emphasis added.) After the trial court overruled the defendant's objection, Smola answered: "It's my belief through investigation it was a sneaker box." (Emphasis added.) The testimony was significant for the state because the victim was known to sell shoes, and the defendant's possession of a shoebox shortly after the crime could implicate him in the robbery and murder.
In my view, however, Smola's testimony was not properly admitted as a lay opinion. The majority does not directly address the propriety of admitting his testimony, but, before concluding that any error was harmless, cites to mixed authority about whether witnesses generally may narrate events depicted in a video that the witness did not personally observe. Compare United States v. Begay ,
III
Although the Appellate Court concluded that Olson's and Smola's challenged testimony could not properly be admitted as lay opinions, it did not conduct a harmful error analysis because it had separately concluded that **645the defendant was entitled to a new trial based on a violation of his right to present a defense. State v. Holley , supra,
The state had strong evidence implicating Taylor in the victim's murder, including DNA evidence placing him inside the victim's apartment and Taylor's confessions, but the state's case against the defendant was not nearly as strong. With Taylor's statements inadmissible against the defendant, the state's case turned on its ability to present other evidence to show that the defendant had actually participated in the robbery and/or the murder. The state had no forensic evidence to accomplish this-investigators did not find either the defendant's fingerprints or DNA in the apartment. Other than Taylor's inadmissible statements, the state had no eyewitness testimony to directly implicate the defendant. Unlike Taylor, the defendant did not give any self-incriminating statements to police.
Without the challenged testimony from Olson and Smola, the state's evidence linking the defendant to the murder was limited. The state had video recordings that put Taylor together with the defendant as they ran to a bus stop and boarded a bus near the crime scene around the time the crime occurred. Those recordings, however, did not show whether the defendant had been inside the apartment with Taylor when the victim was **646murdered, leaving open the possibility that he had met up with Taylor after Taylor had left the apartment, or that the defendant had waited outside the apartment while Taylor went in, without any knowledge of what Taylor might have been doing inside.
The only other evidence that arguably could have placed the defendant inside the apartment was the testimony from another passenger on the bus, who had overheard the defendant make the "big dog" comment. The passenger testified, however, that she did not see any injuries or blood on the person who said he had been bitten. The state also called the bus driver to testify that, after boarding the bus, Taylor had asked for a tissue, presumably for his wounds, but the driver testified that he did not see anything about Taylor that would have required use of a tissue.
To connect the defendant to the murder with this evidence, the jury was required to draw a chain of inferences. The jury would first have to conclude that the defendant was the person with Taylor and then infer from their comments on the bus that Taylor had recently been bitten, that the "big dog" that bit Taylor was actually the victim, and that the defendant's knowledge of the victim's size suggested that the *556defendant had seen the victim and knew that he had bitten Taylor. From these inferences, the jury would have to be satisfied, beyond a reasonable doubt, that the defendant had participated in the crime. Without the challenged testimony from Olson and Smola, any conviction would thus turn solely on the credibility and accuracy of the testimony from the passenger and the bus driver.
Olson's and Smola's challenged testimony thus significantly filled in holes in the state's case. Olson's testimony that Taylor, in fact, had a bite wound on his wrist in the days after the murder corroborated the passenger's testimony and helped mitigate the impact **647of the evidence that neither the passenger nor the bus driver had noticed any wounds on Taylor while he was on the bus. In addition, Smola's testimony that the defendant had a shoebox with him on the bus just after the crime provided an alternative basis for inferring that the defendant had been inside the victim's apartment and had participated in the crime by suggesting that he may have taken the shoebox from the victim's apartment, implicating him in the robbery and murder. I am not sufficiently confident that the jury would have found the defendant guilty of the crimes charged without this additional evidence. I thus cannot conclude that the trial court's evidentiary errors were harmless.
The state nevertheless asserts that the admission of Olson's and Smola's challenged testimony, even if improper, was harmless. I disagree.
The state first asserts that Olson's testimony about Taylor having been bitten on his wrist was harmless because the jury could have viewed the photographs and likely would have concluded for itself that the marks were from a bite, even in the absence of Olson's testimony. I have viewed those same photographs, and, like the Appellate Court, I am not persuaded. The marks on Taylor's wrist, as depicted in the photographs, appear to be a series of small, parallel scratches, rather than a small arc of impressions that one might normally associate with a bite wound.
Moreover, the lack of clarity about what the photographs depict is demonstrated by the state's arguments to this court, which express some confusion about which of Taylor's marks were the result of a bite. Olson testified that the marks from what he believed to be a bite were on Taylor's wrist and that Taylor also had other lacerations on his hand. But, in its brief and at oral argument, the state directed this court's attention to the photographs and argued that the bite might have **648been on Taylor's hand, not his wrist, and that Olson was possibly mistaken in his testimony about where Taylor had been bitten. The state's lack of certainty, a product of the lack of foundation for Olson's testimony to begin with, demonstrates just how unclear it is from the photographs that the marks on Taylor's wrist (or hand) were caused by a bite. As a result, I disagree that Olson's confirmatory testimony concerning the nature of the marks was inconsequential.
That the marks on Taylor's wrist do not obviously resemble bite marks, along with the state's supposition that Olson might have testified incorrectly about where the bite marks were located, also undercuts, in my view, a conclusion that Olson was testifying from his own observation when he identified the marks on Taylor's wrist as being caused by a bite. The state did not seek to qualify Olson as an expert in recognizing whether marks on a person's skin were caused by a bite. Because it is not at all clear what the marks depicted in the photograph are, or what caused them, admitting Olson's testimony created a danger that the jury might infer that he knew they were bite marks from some source *557other than his observation, such as from Taylor. This would have been a fair inference for the jury given that Olson soon after stated exactly that in response to a question that plainly violated the trial court's ruling excluding Taylor's statements from evidence, which forced the trial court to strike the testimony.
As for Smola's testimony identifying the shoebox, the state asserts that the trial court's instructions to the jury mitigated any harm it might have caused. The state notes that the trial court instructed that it was up to the jury members to determine for themselves what was depicted in the video from the bus. The state argues that we must presume the jury followed this instruction and reached its own conclusions about what the video depicted, without placing added weight on Smola's testimony.
**649Of course, this argument further establishes why it was unnecessary and unhelpful to admit any opinion from Smola about what the video depicted. In any event, the court's instruction did not address the state's question and Smola's response concerning the defendant's possession of a shoebox. Specifically, as discussed previously, the state's question did not limit the basis for Smola's testimony about the defendant having a shoebox in his backpack to only what Smola had seen in the video. He was instead asked whether, as a result of his investigation generally, he had formed a belief about what was in the backpack. This question allowed Smola to draw upon a broader range of information beyond what the video depicted. The jury, thus, could have accepted the trial court's instruction to draw its own conclusion about what the video depicted, but, nevertheless, placed added weight on Smola's testimony on the basis of their belief that he had somehow confirmed-using information other than the video-that the defendant did, in fact, have a shoebox with him on the bus shortly after the crime occurred.
Lastly, I do not believe that subsequent testimony from Smola during cross-examination eliminated any harm from the improper admission of Smola's testimony regarding the shoebox. During cross-examination, the defendant's counsel asked a question presumably aimed at having Smola agree that he had no personal knowledge of what was contained in the backpack. In the course of responding, however, Smola stated that Taylor had told the police that the defendant had a shoebox with him. The defendant's counsel asked, "[i]sn't it true that you cannot testify that that item, that thing in the backpack," at which point Smola interrupted and responded, "[s]omeone told me that that was ... Taylor said that." The defendant moved to strike the answer, but the trial court allowed it because it was responsive to the question. Because the defendant **650elicited this testimony, its admission would not be precluded by Crawford if otherwise admissible. In my view, however, this exchange did not overcome any harm from the trial court's earlier improper admission of Smola's testimony about the defendant having a shoebox in the backpack because the defendant should not have been placed in the position of having to cross-examine Smola about the shoebox in the first place. If the trial court had properly excluded Smola's challenged testimony, the defendant would have had no reason to question Smola about it, and Smola's response about what Taylor had told police, which the state could not cross examine Taylor about because he was unavailable, would never have been put before the jury.
Because I am persuaded that these evidentiary errors require reversal of the defendant's *558conviction, I would affirm the Appellate Court decision on these grounds, without considering the first certified question of whether the trial court violated the defendant's constitutional right to present a defense or the defendant's alternative grounds for affirmance. I therefore take no position on how those remaining questions should be decided, and I respectfully dissent from the majority's decision to reverse the Appellate Court's judgment.
Footnotes
175 A.3d 514 (State v. Holley) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.