In the article “Stolen Dealer Plates Found Relevant and Probative in Vehicle Retagging Scheme,” the defendant did not prevail on his arguments that the trial court improperly allowed dealer plates belonging to his previous employer into evidence. In his appeal, he also argued that the trial court abused its discretion when it allowed another member of the conspiracy to give “impermissible opinion testimony regarding an ultimate issue of fact.”

Case Background

One of the coconspirators testified for the State, and the prosecutor asked this individual a series of questions about whether the defendant was “part of the group” of those arrested in Fairfield on February 4, 2008. Defense counsel objected, arguing that this involved an ultimate issue of fact, but the State countered, “I believe I asked him if he was part of this group. Whether he’s part of the conspiracy, I didn’t ask him that.” The court overruled the objection and allowed the questioning.

In essence, the coconspirator testified that if the defendant was not “part of the group,” he would not have been present while the vehicle plates were being changed or at the exchange point. The coconspirator further answered, “I imagine that if he wasn’t part of the group, he wouldn’t drive the car.” On appeal, the defendant characterized this testimony as impermissible lay opinion regarding an ultimate issue of fact, and the trial court erred by permitting it.

The Connecticut Code of Evidence § 7-1 is relevant to the Appellate Court’s conclusion in this matter. Pursuant to this section:

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.

Opinions are improper if they “embrace an ultimate issue to be decided by the trier of fact.” This includes legal opinions about whether or not the defendant is guilty.

The Court’s Decision

In this case, the Appellate Court concluded that the coconspirator’s testimony was proper lay opinion. It was “rationally based on his perception of the circumstances as he perceived them on the night of February 4, 2008, and when he observed prior conduct in New York.” Such testimony was helpful to the jury in determining whether the defendant had the requisite intent for committing conspiracy. In addition:

Although it is true that evidence of association is relevant to proving participation in a conspiracy… association, by itself, does not necessarily constitute intentional participation in a conspiracy. One can be “with” a group without being a conspirator, even if others in the group are, in fact, conspirators.

The nature of the coconspirator’s testimony was not the same as giving an opinion about whether the defendant “intended to agree to engage in a larceny or whether he intended to actually commit the larceny,” which are ultimate issues in this case. Because the testimony did not encompass opinions of guilt, the trial court did not abuse its discretion by allowing it.

Written by Lindsay E. Raber, Esq.

When faced with a charge of larceny, burglary, conspiracy, or attempt, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at