State v. Rivera

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STATE OF CONNECTICUT v. XAVIER RIVERA
(AC 43411)
Alvord, Elgo and Pellegrino, Js.

Syllabus

Convicted, after a jury trial, of various crimes, including murder, in connec-
tion with the shooting death of the victim, the defendant appealed. One
individual, R, witnessed the shooting and called 911, but later, R was
unable to identify the defendant in a photographic array prepared by
the police. Several weeks after the shooting, the defendant and V were
discussing the shooting in the defendant’s vehicle, and the defendant
admitted to having killed the victim. Without the defendant’s knowledge,
V had recorded the conversation on his cell phone and brought the
recording to the police and, as the police requested, V then e-mailed
the recording to the police. The state introduced a copy of V’s recording
into evidence at trial, over the defendant’s objection. Held:
1. The trial court acted within its discretion when it limited two of defense
counsel’s closing arguments by providing the jury with curative
instructions:
a. Defense counsel improperly asked the jury to engage in speculation
and improperly commented on facts not in evidence when counsel asked
the jury to consider why the state did not ask R to make an in-court
identification of the defendant, there having been no evidence in the
record on which the jury could have based such a conclusion and counsel
was well aware of the reason why the state did not make such a request;
moreover, because it was well within the court’s discretion to give its
own curative instruction to the jury, the defendant’s claim that the court
was required to use the jury instruction language set forth in State v.
Dickson (322 Conn. 410) was unavailing, as that argument was based
on an incorrect reading of Dickson, and the jury instruction language
therein was inapplicable.
b. Defense counsel’s investigative omission argument regarding the lack
of a voice exemplar taken from the defendant to question whether
it was the defendant’s voice on the recording made by V improperly
commented on facts not in evidence, the record having contained no
evidence that defense counsel ever questioned any of the state’s wit-
nesses regarding a voice exemplar, ever sought a voice exemplar, or
presented any testimony, expert or otherwise, on the subject of voice
exemplars or police investigative techniques.
2. The defendant’s claim that the trial court erred in admitting into evidence
a copy of the recording of the defendant’s confession was unavailing:
the court did not abuse its discretion because a copy of the recording,
rather than the original, was admissible pursuant to the applicable provi-
sions of the Connecticut Code of Evidence (§§ 10-1, 10-2, and 10-3) and
there was ample evidence in the record from which the court could
have concluded that admission of the copy of the recording would not
be unfair to the defendant; accordingly, because the provisions of the
Code of Evidence ensured a fair and just outcome, this court declined
to exercise its supervisory powers to heighten the requirements for the
admission of copies of digital evidence.
Argued May 15—officially released September 29, 2020

Procedural History

Substitute two part information charging the defen-
dant, in the first part, with the crimes of murder, con-
spiracy to commit assault in the first degree, unlawful
restraint in the first degree, unlawful discharge of a
firearm, and carrying a pistol without a permit, and, in
the second part, with criminal possession of a pistol or
revolver, brought to the Superior Court in the judicial
district of Fairfield, where the first part of the informa-
tion was tried to the jury before Kavanewsky, J.; verdict
of guilty; thereafter, the state entered a nolle prosequi
as to the second part of the information, and the court,
Kavanewsky, J., rendered judgment in accordance with
the verdict, from which the defendant appealed.
Affirmed.
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Kathryn W. Bare, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, former
state’s attorney, and Marc R. Durso, senior assistant
state’s attorney, for the appellee (state).
Opinion

PELLEGRINO, J. The defendant, Xavier Rivera,
appeals from the judgment of conviction, rendered after
a jury trial, of the crimes of murder in violation of
General Statutes § 53a-54a (a), conspiracy to commit
assault in the first degree in violation of General Stat-
utes §§ 53a-59 (a) (1) and 53a-48, unlawful restraint in
the first degree in violation of General Statutes § 53a-95,
unlawful discharge of a firearm in violation of General
Statutes § 53-203, and carrying a pistol without a permit
in violation of General Statutes § 29-35 (a). On appeal,
the defendant claims that the trial court abused its
discretion by (1) impermissibly limiting defense coun-
sel’s argument with curative instructions to the jury
and (2) admitting into evidence a copy of an audio
recording of the defendant over his objections. With
regard to his evidentiary claim, the defendant claims,
in the alternative, that this court should exercise its
supervisory powers to raise the threshold for the admis-
sion of copies of digital evidence. We disagree and
affirm the judgment of the trial court.
The following facts, which the jury could have reason-
ably found, and procedural history are relevant to the
defendant’s appeal. At approximately midnight on
December 24, 2016, the defendant, Alexis Vilar and
Moises Contreras travelled to the area of 287 North
Avenue in Bridgeport, where an AutoZone store and
Popeyes Louisiana Kitchen (Popeyes) are located. The
parking lot of the AutoZone was the location where a
group of car enthusiasts, including the victim, Miguel
Rivera,1 gathered to socialize on a regular basis. The
defendant, Vilar, and Contreras were travelling to the
area of the AutoZone because the defendant intended
to confront the victim there. The defendant travelled
alone in his vehicle, and Vilar and Contreras travelled
together in Vilar’s vehicle. The defendant, Vilar, and
Contreras arrived in the area of the AutoZone and
Popeyes shortly after midnight, and parked a short dis-
tance away from the gathering in the AutoZone park-
ing lot.
The defendant approached the victim on foot and
pulled him out of his vehicle. The defendant and Con-
treras then dragged the victim across the parking lot,
where the defendant struck him across the face with
his pistol and Contreras fired two shots from his
revolver. The victim pleaded with the defendant, and
the defendant proceeded to shoot him several times
with his pistol. The victim then made his way toward the
Popeyes drive-thru, where he collapsed and ultimately
died as a result of the gunshot wounds. Immediately
after shooting the victim, the defendant fled the scene
in his vehicle, and Vilar and Contreras fled together in
Vilar’s vehicle. While the incident took place, Jesus
Rodriguez was sitting in a parked vehicle in the Auto-
Zone parking lot. From his vehicle, Rodriguez witnessed
the incident in its entirety. Rodriguez then proceeded
to drive away from the scene and call 911.
On January 15, 2017, the defendant and Vilar spoke
privately in the defendant’s vehicle about the incident
that occurred on December 24, 2016. Without the defen-
dant’s knowledge, Vilar recorded the conversation on
his cell phone. During the conversation, the defendant
admitted to having killed the victim. On January 19,
2018, Vilar brought the recording to the Bridgeport
Police Department (department) and identified the
voices on the recording as himself and the defendant.
Vilar then e-mailed the recording to the police, per their
instructions. The defendant was arrested on January 31,
2017, and charged with murder, conspiracy to commit
assault in the first degree, unlawful restraint in the first
degree, unlawful discharge of a firearm, and carrying
a pistol without a permit. Following a jury trial, the
defendant was convicted of all five counts. The court
thereafter sentenced the defendant to a total effective
sentence of fifty-five years of imprisonment, with a man-
datory minimum of thirty years, and this appeal fol-
lowed. Additional facts and procedural history will be
set forth as necessary.
I
The defendant challenges his conviction of all counts
on the ground that the trial court abused its discretion
by improperly intervening in the closing arguments and,
over defense counsel’s objection, directing the jury to
disregard portions of defense counsel’s argument. Spe-
cifically, the defendant argues that the court abused
its discretion by giving the jury a curative instruction
addressing the fact that Rodriguez did not provide an
in-court identification of the defendant and a curative
instruction regarding defense counsel’s ‘‘investigative
omission’’ argument.
A
First, we address the defendant’s claim that the court
abused its discretion by giving a curative instruction
to the jury addressing the fact that Rodriguez did not
provide an in-court identification of the defendant. Spe-
cifically, the defendant claims that the court abused its
discretion by impermissibly limiting defense counsel’s
argument with this instruction. In the alternative, the
defendant claims that the court abused its discretion
by giving its own instruction to the jury instead of using
the language that was prescribed by our Supreme Court
in State v. Dickson, 322 Conn. 410, 141 A.3d 810 (2016),
cert. denied, U.S. , 137 S. Ct. 2263, 198 L. Ed. 2d
713 (2017).2 We disagree.
The following additional facts and procedural history
are relevant to our resolution of the defendant’s claims.
On January 21, 2017, Rodriguez was interviewed by
members of the department. At trial, Rodriguez was
called as a witness by the state. While Rodriguez was
on the witness stand, the state did not ask for, and
Rodriguez did not provide, an in-court identification
of the defendant. After Rodriguez’ testimony, it was
stipulated that during his interview with the depart-
ment, Rodriguez was shown an array of eight photo-
graphs, which included a photograph of the defendant,
and that Rodriguez did not identify the defendant at
that time. During closing arguments, defense counsel
made the following statement with regard to Rodriguez:
‘‘He was shown . . . an array of photographs that
included [the defendant’s] picture and . . . he did not
pick [the defendant] as the shooter . . . . And he was
in court . . . on the witness stand. Did the prosecutor
. . . say to him, hey, do you see the guy in this court-
room who you saw? . . . [D]oes the state say to him
. . . do you see the guy here in the courtroom? No,
never says anything.’’ The trial court then addressed,
outside of the presence of the jury, that portion of
defense counsel’s argument: ‘‘[T]here was a stipulation
that [Rodriguez] was shown a photo array, which
included a picture of the defendant, and yet he did not
make an identification of the defendant. . . . However,
you proceeded to say in your argument, as I believe,
whether or not that the state did not ask . . . Rodri-
guez the question then, do you see this guy in court?
And that’s clearly improper argument because the law
is that if somebody cannot make an out-of-court identifi-
cation, that the state is precluded by law from asking
the witness, do you see the guy in court?’’ The court then
provided a curative instruction to the jury regarding
this portion of defense counsel’s argument: ‘‘[W]hen
. . . Rodriguez, who testified as a witness in court, I
think it was suggested . . . the state did not ask him
whether or not he could identify the defendant here in
court. Disregard that question and any thought of that
question. . . . You don’t need to know the reason why,
but I’m telling you just to disregard that line of ques-
tioning.’’
1
We first address the defendant’s claim that the court
abused its discretion by limiting defense counsel’s argu-
ment based on the fact that Rodriguez did not provide
an in-court identification of the defendant. We conclude
that defense counsel improperly asked the jury to
engage in speculation and improperly commented on
facts not in evidence, and that it was well within the
trial court’s discretion to limit defense counsel’s closing
argument by giving a curative instruction to the jury.
Before addressing the defendant’s claim in full, we
first set forth the applicable standard of review. Our
Supreme Court has held that ‘‘[i]t is within the discretion
of the trial court to limit the scope of final argument
to prevent comment on facts that are not properly in
evidence, [and] to prevent the jury from considering
matters in the realm of speculation . . . .’’ State v.
Arline, 223 Conn. 52, 59, 612 A.2d 755 (1992). ‘‘A trial
court has wide discretion to determine the propriety
of counsel’s argument and may caution the jury to disre-
gard improper remarks in order to contain prejudice.’’
State v. Herring, 210 Conn. 78, 102, 554 A.2d 686, cert.
denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579
(1989). Accordingly, we will overturn the trial court’s
decision to limit counsel’s argument in this manner only
if the court has committed an abuse of discretion. Id.
‘‘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.’’
(Internal quotation marks omitted.) Hurley v. Heart
Physicians, P.C., 298 Conn. 371, 392, 3 A.3d 892 (2010).
In support of his argument, the defendant claims that
‘‘[defense counsel’s] argument about whether the jury
should find reasonable doubt in the inability of . . .
Rodriguez to identify [the defendant] in court was
proper.’’ This claim, however, mischaracterizes the
argument made by defense counsel at trial. Defense
counsel was not referring to Rodriguez’ inability to iden-
tify the defendant, but to the fact that the state did not
ask Rodriguez to make an in-court identification of the
defendant, as defense counsel had stated: ‘‘[H]e was in
court . . . on the witness stand. Did the prosecutor
. . . say to him, hey, do you see the guy in this court-
room who you saw? . . . [D]oes the state say to him
. . . do you see the guy here in the courtroom? No,
never says anything.’’ As evidenced by the stipulation
regarding Rodriguez, and our Supreme Court’s decision
in State v. Dickson, supra, 322 Conn. 446, on which the
defendant heavily relies, the state was precluded from
asking Rodriguez to make an in-court identification
without first requesting permission from the court. As
the record clearly shows, the state did not make such
a request, nor did it ask Rodriguez to make an in-court
identification of the defendant. Defense counsel, how-
ever, nevertheless asked the jury to consider why the
state did not ask Rodriguez to make an in-court identifi-
cation of the defendant.
As set forth previously, it is within the discretion of
the trial court to limit final arguments for the purpose
of preventing comments on facts not properly in evi-
dence, as well as for the purpose of preventing the jury
from considering matters in ‘‘the realm of speculation
. . . .’’ State v. Arline, supra, 223 Conn. 59. In asking
the jury to consider why the state did not ask Rodriguez
to make an in-court identification of the defendant,
defense counsel was asking the jury to enter ‘‘the realm
of speculation,’’ an area that is clearly off limits. See
id. Defense counsel was well aware of the reason why
the state did not ask Rodriguez to make an in-court
identification, and in fact had agreed to a stipulation
to that effect. Defense counsel, however, still proceeded
to ask the jury to speculate as to that reason, with there
being no evidence in the record on which the jury could
have based a conclusion. It is for this reason that the
trial court provided a limiting instruction to the jury,
and we see no possible alternative that the court could
have employed; defense counsel clearly asked the jury
to engage in improper speculation, and his argument
in this regard was not based on evidence on the record.
For these reasons, the trial court was well within its
discretion to limit defense counsel’s argument by giving
a curative instruction to the jury. See id.
2
Next, we address the defendant’s alternative argu-
ment, namely, that the court committed an abuse of
discretion by providing the jury with a curative instruc-
tion using language other than the language prescribed
by our Supreme Court in Dickson. Specifically, the
defendant argues that the trial court was required to use
the language from Dickson to instruct the jury because
Rodriguez was unable to make an out-of-court identifi-
cation of the defendant. Because this argument is based
on an incorrect reading of Dickson, we conclude that
it was well within the trial court’s discretion to give its
own instruction to the jury.
As established previously, the trial court has wide
discretion when determining the propriety of closing
arguments and instructing the jury to disregard
improper remarks for the purpose of avoiding preju-
dice. See State v. Herring, supra, 210 Conn. 102. Accord-
ingly, we will overturn the trial court’s decision to pro-
vide a limiting instruction to the jury only if the court
has abused its discretion. See id.
In Dickson, our Supreme Court established that ‘‘[i]n
cases in which there has been no pretrial identification
. . . and the state intends to present a first time in-court
identification, the state must first request permission
to do so from the trial court.’’ State v. Dickson, supra,
322 Conn. 445. If the court does not permit the requested
in-court identification, and the state requests an instruc-
tion, the trial court should then use the following lan-
guage to instruct the jury: ‘‘[A]n in-court identification
was not permitted because inherently suggestive first
time in-court identifications create a significant risk of
misidentification and because either the state declined
to pursue other, less suggestive means of obtaining the
identification or the eyewitness was unable to provide
one.’’ Id., 449. This means that there are several prereq-
uisites that must be met for the trial court to be required
to use the language from Dickson referenced by the
defendant: (1) the state must request permission to
make a first time in-court identification; (2) the trial
court must deny the request; and (3) the state must
then request that the trial court provide an instruction
to the jury. See id., 446–49. Because these prerequisites
were not satisfied, the jury instruction language set
forth by our Supreme Court in Dickson was not applica-
ble. Accordingly, we find that it was well within the
trial court’s discretion to use its own language for the
curative jury instruction.
B
We now turn to the defendant’s claim that the court
abused its discretion by giving a curative instruction
to the jury regarding defense counsel’s ‘‘investigative
omission’’ argument. We conclude that defense counsel
improperly commented on facts not in evidence, and
that it was well within the court’s discretion to limit
the defendant’s closing argument in this way.
The following additional facts and procedural history
are relevant to our resolution of this issue. At trial,
Jorge Cintron, a detective with the department, and
Vilar were called as witnesses by the state. While on
the witness stand, both Detective Cintron and Vilar
testified regarding Vilar’s recording of the defendant’s
confession. Neither the state nor defense counsel
addressed the topic of ‘‘voice exemplars,’’ or of the
investigative methods used by the police with regard
to the recording. Furthermore, defense counsel did not
call any witnesses.
During closing arguments, defense counsel repeat-
edly asked the jury to speculate as to why a voice
exemplar was never taken from the defendant during
the course of the police investigation, questioning
whether the voice on the recording was actually that
of the defendant. The court addressed this portion of
defense counsel’s argument by pointing out that it was
not supported by the record, and that lack of evidence
cannot be argued without a proper foundation in the
record. The court then provided a curative instruction
to the jury: ‘‘I’m going to tell you just to disregard any
suggestion that the police could have, or could not have,
or didn’t, or did—did not get a voice exemplar. I know
that’s never really been defined for you per se, but
disregard that one particular line.’’
With regard to closing arguments, our Supreme Court
has long held that, ‘‘[w]hile the privilege of counsel in
addressing the jury should not be too closely narrowed
or unduly hampered, it must never be used as a license
to state, or to comment upon, or to suggest an inference
from, facts not in evidence, or to present matters which
the jury have no right to consider.’’ State v. Ferrone,
96 Conn. 160, 169, 113 A. 452 (1921). The trial court has
wide discretion to determine the propriety of counsel’s
argument, and we will overturn the trial court’s action
limiting the scope of counsel’s argument only if the trial
court has abused this discretion. See State v. Herring,
supra, 210 Conn. 102. An abuse of discretion exists
where the trial court has decided a matter in an arbitrary
manner or based on improper or irrelevant factors,
where alternative options were available. See Hurley
v. Heart Physicians, P.C., supra, 298 Conn. 392.
In support of his argument, the defendant cites to
language employed by our Supreme Court in which the
court stated: ‘‘[D]efendants may use evidence regarding
the inadequacy of the investigation into the crime with
which they are charged as a legitimate defense strategy
. . . [and] [a] defendant may . . . rely upon relevant
deficiencies or lapses in the police investigation to raise
the specter of reasonable doubt, and the trial court
violates his right to a fair trial by precluding the jury
from considering evidence to that effect.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Wright, 322 Conn. 270, 282, 140 A.3d 939 (2016). That
language, however, actually undermines the defen-
dant’s position, as the court’s statement that ‘‘the trial
court violates [a defendant’s] right to a fair trial by
precluding the jury from considering evidence to that
effect’’; (emphasis added; internal quotation marks
omitted) id.; means that a defendant does not have a
right to simply point to alleged deficiencies or lapses
in the police investigation—any such deficiencies or
lapses must be relevant and must be supported by evi-
dence in the record. See id.
Central to our resolution of this issue is defense coun-
sel’s repeated use of the term ‘‘voice exemplar’’ while
addressing the jury. In fact, defense counsel used the
term voice exemplar only when making his investigative
omission argument to the jury; he did not use any broad
or general terms to refer to the investigation, or lack
thereof, undertaken by the police. The defendant now
claims that defense counsel was using the term ‘‘voice
exemplar’’ in a general way. ‘‘Voice exemplar,’’ how-
ever, is an inherently technical term with a technical
definition meaning a voice sample taken from an indi-
vidual ‘‘to measure the physical properties of his or her
voice . . . .’’ State v. Palmer, 206 Conn. 40, 63, 536
A.2d 936 (1988). The record contains no voice exemplar
taken from the defendant, nor does it indicate that
defense counsel ever questioned any of the state’s wit-
nesses as to whether a voice exemplar had been taken,
or could or should have been taken. Moreover, there
was no evidence that defense counsel ever sought a
voice exemplar.
Furthermore, the defendant did not present any testi-
mony, expert or otherwise, on the subject of voice
exemplars or police investigative techniques, and he
failed to introduce any relevant evidence, which
amounts to exactly what our Supreme Court cautioned
against in Wright when it stated that ‘‘[a] defendant
. . . does not have an unfettered right to elicit evidence
regarding the adequacy of the police investigation’’ and
‘‘must do more than simply seek to establish that the
police could have done more.’’ State v. Wright, supra,
322 Conn. 284. Given the lack of evidence in the record
to support defense counsel’s investigative omission
argument, ‘‘the importance of restricting comments
made during closing arguments to matters related to
the evidence before the jury’’; State v. Rios, 74 Conn.
App. 110, 119, 810 A.2d 812 (2002), cert. denied, 262
Conn. 945, 815 A.2d 677 (2003); and the court’s wide
discretion to determine the propriety of counsel’s clos-
ing argument and to instruct the jury to disregard
improper remarks to contain prejudice; State v. Her-
ring, supra, 210 Conn. 102; we conclude that the court
acted within its discretion when it provided a limiting
instruction to the jury in this regard.
II
The defendant also claims that the court abused its
discretion by admitting into evidence, over the defen-
dant’s objection, a copy of the recording of the defen-
dant’s confession made by Vilar. The defendant further
claims, in the alternative, that if the recording was prop-
erly admitted this court should exercise its supervisory
powers to heighten the requirements for the admissibil-
ity of copies of digital evidence. Finally, the defendant
claims that if this court declines to exercise its supervi-
sory powers and determines that the copy of the
recording was properly admitted into evidence, we
should conclude that the trial court abused its discre-
tion by admitting the recording into evidence based ‘‘on
Vilar’s word alone.’’ We disagree.
A
First, we address the defendant’s claim that the court
abused its discretion by admitting a copy of the
recording made by Vilar into evidence on the basis of
an incorrect interpretation of the Connecticut Code of
Evidence. We disagree.
The following additional facts and procedural history
are relevant to our resolution of this claim. At trial,
Detective Cintron was called as a witness by the state.
Detective Cintron testified that Vilar played the
recording of the defendant’s confession for him on his
cell phone, and that he instructed Vilar to e-mail the
recording to him. Detective Cintron further testified
that, after receiving the recording by e-mail, he dow-
nloaded it and saved it onto a compact disc. Addition-
ally, Detective Cintron verified that the recording on
the compact disc was exactly the same as the recording
on Vilar’s cell phone, and that it had not been altered
in any way. Before the state offered the recording as
a full exhibit, Vilar testified that the recording had not
been manipulated, and that he had listened to the
recording and identified the voices on the recording as
himself and the defendant. Defense counsel objected
to the admission of the recording on several grounds,
namely, that Vilar did not give his cell phone containing
the recording to the police, that the cell phone con-
taining the recording was no longer available, and that
there was a gap of time between when the recording
was made and when it was given to the police by Vilar.
Over defense counsel’s objections, the court admitted
the recording as a full exhibit and played it for the jury.
Before addressing the defendant’s claim in full, we
first set forth the applicable standard of review. ‘‘To
the extent a trial court’s admission of evidence is based
on an interpretation of the Code of Evidence, our stan-
dard of review is plenary.’’ State v. Saucier, 283 Conn.
207, 218, 926 A.2d 633 (2007). ‘‘We review the trial
court’s decision to admit evidence, if premised on a
correct view of the law, however, for an abuse of discre-
tion.’’ Id. ’’In order to determine the appropriate stan-
dard of review, we must look to the precise nature of
the claim raised on appeal.’’ State v. Miller, 121 Conn.
App. 775, 780, 998 A.2d 170, cert. denied, 298 Conn. 902,
3 A.3d 72 (2010). The defendant here argues that the
trial court misinterpreted §§ 10-1, 10-2, and 10-3 of the
Connecticut Code of Evidence, and thereby incorrectly
admitted a copy of the recording into evidence. Because
the admission of the recording is at issue, and because
that admission was based on the court’s interpretation
of the Code of Evidence, our standard of review for
this claim is plenary. See State v. Saucier, supra, 218.
As stated previously, the defendant argues that under
the Code of Evidence, only the original recording of
Vilar’s conversation with the defendant on Vilar’s cell
phone was admissible. Under § 10-1 of the Connecticut
Code of Evidence, which adopts the best evidence rule,
‘‘except as otherwise provided by the Code,’’ the origi-
nal of a recording must be admitted into evidence to
prove the contents of that recording. Conn. Code Evid.
§ 10-1. Section 10-3 of the Connecticut Code of Evidence
sets forth the situations in which an original recording
is not required and provides that the original of a
recording is not required, and other evidence of the
contents of the recording is admissible, if ‘‘[a]ll originals
are lost or have been destroyed, unless the proponent
destroyed or otherwise failed to produce the originals
for the purpose of avoiding production of an original
. . . .’’ Conn. Code Evid. § 10-3 (1). In the present case,
it is clear that the original recording is no longer avail-
able, as it was on Vilar’s cell phone, which was no
longer in his possession at the time of the trial. Pursuant
to § 10-3, a copy is admissible if the original is lost or
has been destroyed, so long as the proponent did not
destroy or fail to produce the original for the purpose
of avoiding its production. Conn. Code Evid. § 10-3 (1).
The defendant has failed to point to any evidence in
the record demonstrating that the original recording
was made unavailable for the purpose of avoiding its
production at trial. Vilar played the original recording
for the police and then e-mailed a copy of the recording
to the police, per Detective Cintron’s instructions. At
no time did the police request or order that Vilar turn
over the cell phone containing the original recording.
Furthermore, both Vilar and Detective Cintron verified
that the copy of the recording e-mailed to the police
was an exact copy of the original. On the basis of these
facts, we cannot conclude that the original recording
was made unavailable for the purpose of avoiding its
production. The original and copy were exactly the
same in all respects, in that the only practical difference
between them was the location where the recording
was physically stored. For this reason, there has been
no showing of a motive by the state to make the original
recording unavailable. Accordingly, the copy of the
recording satisfies the requirement of § 10-3 of the Con-
necticut Code of Evidence that the proponent did not
destroy or fail to produce the original for the purpose
of avoiding its production, and it was admissible under
§§ 10-1 and 10-3 of the Connecticut Code of Evidence.
We therefore conclude that the court’s admission of
the copy of the recording was not based on an improper
interpretation of those provisions of the Code of
Evidence.
B
Next, we address the defendant’s request that we
exercise our supervisory powers to heighten the
requirements for the admission of copies of digital evi-
dence. Although ‘‘[i]t is well settled that [a]ppellate
courts possess an inherent supervisory authority over
the administration of justice’’; (internal quotation marks
omitted) State v. Diaz, 302 Conn. 93, 106, 25 A.3d 594
(2011); ‘‘[o]ur supervisory powers are invoked only in
the rare circumstances where [the] traditional protec-
tions are inadequate to ensure the fair and just adminis-
tration of the courts . . . .’’ (Internal quotation marks
omitted.) State v. Kuncik, 141 Conn. App. 288, 292–93,
61 A.3d 561, cert. denied, 308 Conn. 936, 66 A.3d 498
(2013). Because we conclude that the provisions of the
Connecticut Code of Evidence have ensured a fair and
just outcome, we decline to exercise our supervisory
power as the defendant requests.
After reviewing the record and relevant sections of
the Connecticut Code of Evidence, we conclude that
it is clear that this case does not constitute the rare
circumstance in which we may exercise our supervisory
powers. The copy of the recording was properly admit-
ted pursuant to the Code of Evidence, and the jury was
left to determine the weight that it should be given.
Allowing the jury to make this determination ensures
a fair and just outcome, and is the only level of protec-
tion that is needed here. Accordingly, we decline to
exercise our supervisory authority to heighten the
requirements for the admission of copies of digital
evidence.
C
Having determined that the court’s admission of a
copy of the recording into evidence was based on a
correct interpretation of the Code of Evidence, and
having declined to exercise our supervisory powers to
heighten the requirements for the admission of copies
of digital evidence, we now address the defendant’s
final claim that the trial court abused its discretion by
admitting the copy of the recording into evidence ‘‘on
Vilar’s word alone.’’ Specifically, the defendant claims
that, under § 10-2 of the Connecticut Code of Evidence,
‘‘[t]he offer of a copy of the recording was unfair to
the defendant,’’ and that ‘‘the trial court should have
exercised its discretion to exclude the copy of Vilar’s
recording . . . .’’
Before addressing the defendant’s claim in full, we
again set forth the applicable standard of review. Where
the trial court’s decision to admit evidence is based on
a correct view of the law, we review that decision for
an abuse of discretion. See State v. Saucier, supra, 283
Conn. 218. The defendant claims that, even if the copy
was admitted pursuant to a correct reading of the Con-
necticut Code of Evidence, the trial court’s decision
was, nevertheless, erroneous. Accordingly, we will
overturn the trial court’s decision to admit a copy of
the recording into evidence only if the trial court com-
mitted an abuse of discretion. See State v. Herring,
supra, 210 Conn. 102. An abuse of discretion exists
where the court has decided a matter in an arbitrary
manner or on the basis of improper or irrelevant facts,
where alternative options are available. See Hurley v.
Heart Physicians, P.C., supra, 298 Conn. 392.
Section 10-2 of the Connecticut Code of Evidence
provides in relevant part that ‘‘[a] copy of a . . .
recording . . . is admissible to the same extent as an
original unless . . . it would be unfair to admit the
copy in lieu of the original.’’ Conn. Code Evid. § 10-2
(B). The defendant’s claim that it was unfair for the
trial court to admit a copy of the recording into evidence
is unavailing. There is ample evidence in the record
from which the court could have concluded that the
admission of the copy of the recording would not be
unfair to the defendant. As discussed in part II A of
this opinion, there is no evidence demonstrating that
the original of the recording was purposefully made
unavailable. Additionally, Detective Cintron verified
that the copy of the recording was exactly the same as
the original on Vilar’s cell phone and that the copy had
not been altered in any way. Furthermore, it should be
noted that the commentary to § 10-2 recognizes that
‘‘in light of the reliability of modern reproduction
devices . . . a copy derived therefrom often will serve
equally as well as the original when proof of its contents
is required.’’ Conn. Code Evid. § 10-2, commentary. For
these reasons, we conclude that the trial court’s deci-
sion that the admission of the copy of the recording
would not be unfair to the defendant was not made
in an arbitrary or improper manner, as the defendant
suggests. Accordingly, it was well within the discretion
of the trial court to admit the copy of the recording
into evidence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the defendant and the victim share the same last name, they
are unrelated.
2
The following language was prescribed by our Supreme Court for use
by trial courts when a jury instruction has been requested by the state after
a first time in-court identification has not been permitted: ‘‘[A]n in-court
identification was not permitted because inherently suggestive first time in-
court identifications create a significant risk of misidentification and because
either the state declined to pursue other, less suggestive means of obtaining
the identification or the eyewitness was unable to provide one.’’ State v.
Dickson, supra, 322 Conn. 449.