State v. Davis

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      STATE OF CONNECTICUT v. BROCK DAVIS
                   (SC 20335)
             Robinson, C. J., and McDonald, D’Auria, Mullins,
                       Kahn, Ecker and Keller, Js.

                                   Syllabus

Convicted of the crime of murder in connection with the stabbing death of
    the victim, the defendant appealed to this court, claiming, inter alia,
    that the trial court had violated his constitutional right to the effective
    assistance of counsel by failing to conduct any inquiry into defense
    counsel’s alleged conflict of interest arising from counsel’s prior repre-
    sentation of the victim’s son, D. On appeal, this court agreed with the
    defendant that the trial court had a duty to conduct such an inquiry
    when the issue was brought to that court’s attention in a motion to
    dismiss counsel and during the defendant’s sentencing hearing. This
    court also concluded, however, that the record was insufficient to deter-
    mine whether the defendant’s claim had merit and, therefore, remanded
    the case to the trial court for it to determine whether defense counsel
    had such a conflict and, if so, whether that conflict adversely affected
    her representation of the defendant. In light of that remand order, this
    court declined to reach the defendant’s additional claim that the trial
    court had improperly admitted the testimony of three lay witnesses
    identifying the defendant in surveillance video footage from a store near
    the crime scene. The footage depicted, inter alia, two men, with their
    faces visible, approaching and entering the store together before the
    victim’s murder. Additional footage from a different camera angle
    depicted the backs of two men, dressed similar to those in the other
    footage, making their way to, and then standing at, the intersection
    where the murder occurred. Subsequent footage showed one of the men
    attacking the other man and then running down the street toward the
    direction of the store. On remand, the trial court, following a hearing
    at which the defendant and defense counsel testified, determined that
    the defendant did not timely raise his conflict of interest claim and that,
    even if he had done so, he failed to establish that defense counsel was
    burdened by an actual conflict of interest that adversely affected her
    performance. After the case returned to this court, the defendant chal-
    lenged the trial court’s determination concerning counsel’s alleged con-
    flict of interest, and this court addressed the defendant’s evidentiary
    claim. Held:
1. The trial court correctly concluded that defense counsel’s prior representa-
    tion of D did not create an actual conflict of interest that adversely
    affected her representation of the defendant: even if this court assumed
    that the defendant’s conflict of interest claim was timely, there was
    no evidence that the defendant’s and defense counsel’s interests ever
    diverged with respect to any material factual or legal issue, or with
    respect to a course of action, or that counsel’s representation of the
    defendant was otherwise impaired as a result of her loyalty to D; more-
    over, the trial court credited counsel’s testimony that, during her repre-
    sentation of D, she learned nothing that she was prevented from using
    in her defense of the defendant and that the strategies and tactics she
    employed at trial were entirely unencumbered and uninfluenced by
    anything relating to her representation of D, and that court’s factual
    findings, including that defense counsel’s brief representation of D had
    no effect on the course of the defendant’s trial, were not clearly errone-
    ous; furthermore, there was no merit to the defendant’s contention that
    an attorney’s prior representation of a relative of the victim in a criminal
    case creates a per se conflict of interest.
2. The trial court did not abuse its discretion in admitting the testimony of
    three lay witnesses identifying the defendant in surveillance video foot-
    age: pursuant to the rule recently established in State v. Gore (343 Conn.
    129), lay opinion testimony concerning the identification of a criminal
    defendant depicted in a surveillance video is admissible if, in accordance
    with the provision (§ 7-1) of the Code of Evidence governing the admissi-
    bility of lay opinion testimony, it is rationally based on the perception
    of the witness and is helpful to a clear understanding of that witness’
    testimony or the determination of a fact in issue; moreover, such testi-
    mony meets the requirements of § 7-1 if, in light of the totality of the
    circumstances, there is some basis for concluding that the witness is
    more likely than the jury to correctly identify the defendant from the
    footage; in the present case, the totality of the circumstances favored
    admission of the challenged testimony, as it was undisputed that all three
    witnesses were sufficiently familiar with the defendant, and, although
    the defendant was not wearing a disguise during the commission of
    the murder and the record did not indicate whether the defendant’s
    appearance had changed between the time the surveillance video footage
    was recorded and the time of trial, the quality of the video weighed in
    favor of admission of the challenged testimony, as the subject in the
    video was wearing a hat pulled down over his ears and a winter jacket,
    and, at certain angles, his face was obscured by either the dark lighting
    or his movements; accordingly, this court could not conclude that the
    witnesses, all of whom knew the defendant exceedingly well, could be
    of no assistance to or were no better suited than the jury in identifying
    the defendant in the surveillance video footage.
3. The defendant could not prevail on his claim that it would be improper
    for this court to apply Gore retroactively to this case because Gore was
    decided on the basis of policy considerations rather than on constitu-
    tional grounds: judicial decisions generally apply retroactively to pend-
    ing cases, and this court’s application of the rule set forth in Gore did
    not give rise to any of the concerns highlighted in Neyland v. Board of
    Education (195 Conn. 174), which established the test for determining
    whether a judicial decision should be applied prospectively only,
    because, although Gore established a new principle of law by overruling
    past precedent holding that the rule limiting lay opinion testimony on
    the ultimate issue precludes the admission of lay opinion testimony
    identifying a defendant in video surveillance footage when that identifi-
    cation embraces an ultimate issue, the defendant did not argue or demon-
    strate that he relied to his detriment on one legal standard over another
    during the events underlying this case, the underlying trial, or in bringing
    the present appeal, despite being afforded an opportunity to do so in
    the supplemental briefing ordered by this court to address the applicabil-
    ity of Gore to this case; moreover, the result in this appeal would have
    been the same under the pre-Gore rule in view of the witnesses’ strong
    familiarity with the defendant and the fact that their testimony did not
    address the ultimate issue in this case insofar as the witnesses did not
    identify the defendant from the video surveillance footage depicting the
    attack but identified the defendant in footage placing him near the crime
    scene at or around the time of the attack.
       Argued November 24, 2020—officially released July 26, 2022

                             Procedural History

   Substitute information charging the defendant with
the crime of murder, brought to the Superior Court in
the judicial district of Hartford, where the court, Dewey,
J., denied the defendant’s motion to dismiss his counsel;
thereafter, the case was tried to the jury before Gold,
J.; verdict and judgment of guilty, from which the defen-
dant appealed to this court, which remanded the case
for further proceedings; subsequently, the court, Gold,
J.; issued a memorandum of decision, and the parties
filed supplemental briefs. Affirmed.
  Pamela S. Nagy, supervisory assistant public defender,
for the appellant (defendant).
   Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Sharmese L. Walcott, state’s
attorney, Gail P. Hardy, former state’s attorney, and
John F. Fahey, supervisory assistant state’s attorney,
for the appellee (state).
                          Opinion

   KELLER, J. In State v. Davis, 338 Conn. 458, 460, 258
A.3d 633 (2021), this court agreed with the defendant,
Brock Davis, that, on two separate occasions, the trial
court improperly failed to inquire into whether defense
counsel, Kirstin B. Coffin, had a conflict of interest.1
We therefore remanded the case to that court for a
determination of whether Coffin did, in fact, have such
a conflict and, if so, whether it adversely affected her
representation of the defendant. Id., 460, 475. Because
a new trial would have been required if the trial court
answered these two questions in the affirmative, we
did not reach the defendant’s additional claim that the
trial court had improperly admitted into evidence testi-
mony from lay witnesses identifying him in a surveil-
lance video recording.2 Id., 479. In accordance with
this court’s remand order, the trial court, following a
hearing, determined that the defendant had failed to
establish that Coffin was burdened by an actual conflict
of interest that adversely affected her performance. On
appeal, the defendant challenges that determination.
We reject this claim, and, because we also reject the
defendant’s remaining claim, we affirm the judgment
of the trial court.
   The defendant was convicted of murder in connec-
tion with the stabbing death of the victim, Joseph Lind-
sey, on December 9, 2015, in Hartford. Id., 460–61.
Following his conviction, the defendant was sentenced
to a term of incarceration of fifty years. Id., 460. On
appeal to this court, the defendant claimed, inter alia,
that the trial court had violated his right to the effective
assistance of counsel by failing to conduct any inquiry
into Coffin’s alleged conflict of interest when the issue
was twice brought to the court’s attention—first in a
motion to dismiss counsel, which the defendant filed
as a self-represented party on May 24, 2017,3 and again
during the defendant’s sentencing hearing on June 5,
2019.4 Id., 460, 469. We agreed with the defendant that
the trial court had a duty on both occasions to inquire
into Coffin’s alleged conflict of interest. Id., 469. How-
ever, because we could not determine, on the basis of
the record before us, whether the defendant’s conflict
of interest claim had any merit, we remanded the case
to the trial court for a determination of that question.
Id., 475. Specifically, we instructed the trial court to
conduct a hearing at which the defendant would have
the burden of establishing ‘‘(1) that [Coffin] actively
represented conflicting interests and (2) that an actual
conflict of interest adversely affected [Coffin’s] perfor-
mance.’’ (Footnote omitted; internal quotation marks
omitted.) Id., 477. The court was further instructed to
make findings of fact and conclusions of law in writing,
to be filed with the Office of the Appellate Clerk for
our review. Id., 478. We did not address the defendant’s
remaining claim that the trial court had improperly
admitted into evidence testimony from three lay wit-
nesses identifying him in surveillance video footage,
concluding that, if necessary, we would reach that claim
when the trial court submitted its written findings to
us. Id., 479.
   On remand, the trial court, Gold, J., conducted a
hearing at which both the defendant and Coffin testi-
fied. The defendant testified that the conflict of interest
alleged in his May 24, 2017 motion to dismiss counsel
was premised on Coffin’s prior representation of Tristan
Durant—the son of the victim in this case—which the
defendant stated he learned about during a February,
2017 meeting with Coffin at the prison where he was
being held. The defendant testified that he was ‘‘shocked’’
to learn of Coffin’s prior representation of Durant and
immediately asked Coffin to recuse herself, which she
declined to do. When asked why he did not raise the
issue with the trial court the next time he was in court,
on March 29, 2017, the defendant stated that he is ‘‘a
layman’’ and ‘‘kind of froze up.’’
   Coffin testified that, based on her case file notes, the
prison visit in question occurred on January 9, 2018,
not in February, 2017, as the defendant had stated.
Coffin also testified that the issue of her prior represen-
tation of Durant arose because, a day before her meet-
ing with the defendant, while reviewing a supplemental
police report in the defendant’s case, it had come to
her attention that Durant was the victim’s son. Upon
learning of Durant’s connection to the case, Coffin
spoke to the trial prosecutor, who assured her that
Durant, with whom the police had spoken only briefly
during their investigation of the victim’s murder, would
not be called as a state’s witness because he had nothing
relevant to offer about the crime. Coffin stated that,
when she met with the defendant the next day, she
informed him about her prior representation of Durant.
According to Coffin, the defendant ‘‘didn’t have a prob-
lem with it,’’ did not ask that she withdraw her represen-
tation, and did not mention the matter again until his
sentencing hearing on June 5, 2019.
   On January 3, 2022, the trial court issued a memoran-
dum of decision in which it concluded that the defen-
dant had failed to establish that Coffin was burdened
by an actual conflict of interest as a result of her prior
representation of Durant. Because a court’s duty to
inquire into an attorney’s potential conflict of interest
is triggered only when the issue is raised in a timely
manner; see, e.g., State v. Vega, 259 Conn. 374, 389, 788
A.2d 1221, cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154
L. Ed. 2d 56 (2002); the court began its analysis with
findings related to that issue. Specifically, the court
found that ‘‘Coffin’s testimony regarding when she dis-
closed to the defendant her prior representation of . . .
Durant, and how the defendant reacted to that disclo-
sure, provide[d] the accurate account of the events that
transpired.’’ In so finding, the court credited Coffin’s
testimony that the defendant had first learned of her
representation of Durant during a prison visit on Janu-
ary 9, 2018, approximately nine months after the defen-
dant filed his May, 2017 motion to dismiss counsel, and
not in February, 2017, as the defendant claimed. The
court observed that Coffin’s ability to pinpoint the pre-
cise date of the disclosure was not based solely on
memory but, rather, on ‘‘ ‘very detailed notes’ ’’ she had
taken for her file. On the basis of this finding, the court
determined that Coffin’s representation of Durant could
not have been the basis of the nondescript conflict of
interest mentioned in the defendant’s May, 2017 motion.
5
  The court further found that the defendant’s objection
to Coffin’s representation of Durant at the time of his
sentencing was not timely raised because, by that time,
the defendant had known about Coffin’s potential con-
flict for nearly eighteen months. In the court’s view,
the defendant, for strategic reasons, had ‘‘sat silent for
eighteen months waiting to see how his trial would turn
out’’ and, then, only after being convicted, brought his
alleged concern regarding Coffin’s representation of
Durant to the court’s attention.
   The court further determined that, ‘‘[e]ven if it were
to overlook the untimely nature of the defendant’s claim
and [to] consider how . . . Coffin’s representation of
. . . Durant may have impacted her ability to defend
the defendant,’’ it would conclude that the defendant
had ‘‘failed to sustain his burden of establishing that
. . . Coffin actively represented conflicting interests
that adversely affected her performance.’’ Specifically,
the court credited Coffin’s testimony that she had repre-
sented Durant in May, 2014, in connection with misde-
meanor domestic violence charges and that her
representation encompassed two court appearances
during that same month, the latter of which marked
the resolution of the case by plea agreement. The court
also credited Coffin’s testimony that she never met the
victim while representing Durant and had no reason to
think Durant possessed any information relevant to the
defendant’s case. The court further found that (1) Coffin
did not acquire any information during the course of
her representation of Durant that, due to her ongoing
duty of loyalty to him, she was prevented from using
in her defense of the defendant, (2) Coffin was told by
the prosecutor that Durant would not be called as a
state’s witness during the defendant’s trial, and (3) the
strategies and tactics Coffin employed on behalf of the
defendant were unencumbered and uninfluenced by
anything relating to her prior representation of Durant.
In sum, the court credited Coffin’s testimony that she
did not view her prior representation of Durant as creat-
ing any sort of conflict that would detract from her
representation of the defendant. In light of these find-
ings, the court concluded that, even if the defendant had
asserted a timely objection to Coffin’s alleged conflict
of interest, he failed to demonstrate that such a conflict
actually existed. Additional facts and procedural history
will be set forth as needed.
                             I
   We first consider the defendant’s claim that the trial
court incorrectly concluded that Coffin’s prior repre-
sentation of Durant did not create an actual conflict of
interest that adversely affected her representation of
the defendant. In support of this contention, the defen-
dant asserts that ‘‘the record clearly establishes [that]
there was a conflict of interest because it is undisputed
that . . . Coffin represented [Durant].’’ The defendant
further asserts that the trial court’s factual finding
regarding when he first learned of Coffin’s prior repre-
sentation of Durant is clearly erroneous, and, therefore,
the court’s ultimate legal conclusion that the defen-
dant’s conflict of interest claim was not timely raised
is also incorrect. We are not persuaded.
   ‘‘It is axiomatic that a criminal defendant’s sixth
amendment right to the effective assistance of counsel
includes the right to counsel that is free from conflicts
of interest. . . . It is a fundamental principle . . . that
an attorney owes an overarching duty of undivided loy-
alty to his [or her] client. At the core of the sixth amend-
ment guarantee of effective assistance of counsel is
loyalty, perhaps the most basic of counsel’s duties. . . .
Loyalty of a lawyer to his [or her] client’s cause is the
sine qua non of the [s]ixth [a]mendment’s guarantee
that an accused is entitled to effective assistance of
counsel. . . . That guarantee affords a defendant the
right to counsel’s undivided loyalty.’’ (Citation omitted;
footnote omitted; internal quotation marks omitted.)
State v. Davis, supra, 338 Conn. 469–70.
   As we previously have explained, when a ‘‘defendant
claims that his counsel was burdened by an actual con-
flict of interest . . . the defendant need not establish
actual prejudice. . . . [When] there is an actual conflict
of interest, prejudice is presumed because counsel [has]
breach[ed] the duty of loyalty . . . .’’ (Citations omit-
ted; internal quotation marks omitted.) Phillips v. War-
den, 220 Conn. 112, 132–33, 595 A.2d 1356 (1991); see
also Cuyler v. Sullivan, 446 U.S. 335, 349–50, 100 S. Ct.
1708, 64 L. Ed. 2d 333 (1980). ‘‘An actual conflict of
interest is more than a theoretical conflict. The United
States Supreme Court has cautioned that the possibility
of conflict is insufficient to impugn a criminal convic-
tion. . . . A conflict is merely a potential conflict of
interest if the interests of the defendant may place the
attorney under inconsistent duties at some time in the
future. . . . To demonstrate an actual conflict of inter-
est, the [defendant] must be able to point to specific
instances in the record [that] suggest impairment or
compromise of his interests for the benefit of another
party. . . . A mere theoretical division of loyalties is
not enough.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) Anderson v. Com-
missioner of Correction, 127 Conn. App. 538, 550, 15
A.3d 658 (2011), aff’d, 308 Conn. 456, 64 A.3d 325 (2013);
see Aguilar-Garcia v. United States, 517 Fed. Appx.
880, 882 (11th Cir. 2013) (‘‘a speculative or merely hypo-
thetical conflict of interest does not yield a [s]ixth
[a]mendment violation’’); see also United States v. Cos-
cia, 4 F.4th 454, 475 (7th Cir. 2021) (‘‘[a]n actual conflict,
for [s]ixth [a]mendment purposes, is a conflict of inter-
est that adversely affects counsel’s performance’’ (inter-
nal quotation marks omitted) (quoting Mickens v.
Taylor, 535 U.S. 162, 172 n.5, 122 S. Ct. 1237, 152 L. Ed.
2d 291 (2002)), cert. denied,          U.S.      , 142 S. Ct.
1127, 212 L. Ed. 2d 17 (2022).
   We are mindful that, in reviewing the defendant’s
claim, ‘‘the underlying historical facts found by the
[trial] court may not be disturbed unless they were
clearly erroneous, [but] whether those facts constituted
a violation of the [defendant’s] rights under the sixth
amendment is a mixed determination of law and fact
that requires the application of legal principles to the
historical facts of [the] case. . . . As such, that ques-
tion requires plenary review by this court unfettered
by the clearly erroneous standard.’’ (Citation omitted;
internal quotation marks omitted.) Phillips v. Warden,
supra, 220 Conn. 131. ‘‘A finding of fact is clearly errone-
ous when there is no evidence in the record to support
it . . . or when although there is evidence to support
it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has
been committed. . . . Because it is the trial court’s
function to weigh the evidence and determine credibil-
ity, we give great deference to its findings. . . . In
reviewing factual findings, [w]e do not examine the
record to determine whether the [court] could have
reached a conclusion other than the one reached. . . .
Instead, we make every reasonable presumption . . .
in favor of the trial court’s ruling.’’ (Internal quotation
marks omitted.) State v. Lawrence, 282 Conn. 141, 154–
55, 920 A.2d 236 (2007).
   In analyzing the defendant’s claim, ‘‘we are [also]
guided by our previous definition of an attorney’s con-
flict of interest. We have described an attorney’s conflict
of interest as that which impedes his paramount duty
of loyalty to his client. . . . Thus, an attorney may be
considered to be laboring under an impaired duty of
loyalty, and thereby be subject to conflicting interests,
because of interests or factors personal to him that are
inconsistent, diverse or otherwise discordant with [the
interests] of his client . . . .’’ (Internal quotation marks
omitted.) State v. Parrott, 262 Conn. 276, 287–88, 811
A.2d 705 (2003); see also State v. Crespo, 246 Conn.
665, 689–90, 718 A.2d 925 (1998), cert. denied. 525 U.S.
1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999). ‘‘Whether
a conflict of interest exists depends on a number of
factors, including, but not limited to, whether the attor-
ney has confidential information that is helpful to one
client but harmful to another; whether and how closely
the subject matter of the multiple representations is
related; how close in time the multiple representations
are related; and whether the prior representation has
been unambiguously terminated.’’ United States v.
Infante, 404 F.3d 376, 392 (5th Cir. 2005). ‘‘This question
is highly [fact sensitive].’’ Id; see also Rules of Profes-
sional Conduct 1.9.6
   Applying these principles to the present case, even
if we assume that the defendant’s objection to Coffin’s
alleged conflict of interest was timely raised, we can
perceive no basis for disturbing the trial court’s finding
that no actual conflict of interest existed. As the trial
court stated, there is simply no evidence that Coffin’s
and the defendant’s interests ever diverged with respect
to any material factual or legal issue, or to a course of
action, or that Coffin’s representation of the defendant
was otherwise impaired as a result of her loyalty to
Durant. See, e.g., Perillo v. Johnson, 205 F.3d 775, 781
(5th Cir. 2000) (‘‘actual conflict exists when defense
counsel is compelled to compromise his or her duty of
loyalty or zealous advocacy to the accused by choosing
between or blending the divergent or competing inter-
ests of a former or current client’’ (internal quotation
marks omitted)); see also Armienti v. United States,
234 F.3d 820, 824 (2d Cir. 2000) (‘‘[t]here is an actual
conflict between lawyer and client when, during the
course of the representation, the attorney’s and defen-
dant’s interests diverge with respect to a material fac-
tual or legal issue or to a course of action’’ (internal
quotation marks omitted)). To the contrary, the court
credited Coffin’s testimony that, among other things,
during her brief representation of Durant, she learned
nothing that she was prevented from using in her
defense of the defendant and that the strategies and
tactics she employed at trial were entirely unencum-
bered and uninfluenced by anything relating to her rep-
resentation of Durant. See, e.g., State v. Martin, 201
Conn. 74, 82, 513 A.2d 116 (1986) (‘‘the trial court must
be able, and be freely permitted, to rely [on] [defense]
counsel’s representation that the possibility of . . . a
conflict does or does not exist’’ (internal quotation
marks omitted)); see also United States v. Flynn, 87
F.3d 996, 1001 (8th Cir. 1996) (‘‘[i]n determining whether
a conflict of interest exists, substantial weight is given
to defense counsel’s representations’’).
  In sum, the trial court held an evidentiary hearing on
the defendant’s conflict of interest claim and issued a
thorough memorandum of decision, in which it found,
inter alia, that Coffin’s brief representation of Durant
had no effect whatsoever on the course of the defen-
dant’s trial. The court’s underlying findings were based
on credibility determinations made after hearing the
testimony of both Coffin and the defendant. ‘‘As a
reviewing court, our role is not to speculate about coun-
sel’s motives or about the plausibility of alternative
litigation strategies. Our role is to defer to the [trial
court’s] factual findings unless we can conclude they
are clearly erroneous.’’ Mickens v. Taylor, supra, 535
U.S. 177 (Kennedy, J., concurring). Having conducted
a thorough review of the record, we cannot conclude
that the trial court’s findings in this case were clearly
erroneous.
   In arguing to the contrary, the defendant cites a single
case, People v. Waite, 145 App. Div. 3d 1098, 1103, 42
N.Y.S.3d 437 (2016), appeal denied, 29 N.Y.3d 953, 76
N.E.3d 1087, 54 N.Y.S.3d 384 (2017), which, he claims,
stands for the proposition that ‘‘a conflict of interest
[actually] exists when an attorney for a criminal defen-
dant has previously represented a relative of the vic-
tim.’’ We disagree that Waite supports the defendant’s
argument. Before explaining why, however, we note
that, to the extent the defendant purports to argue that
an attorney’s prior representation of a relative of the
victim in a criminal case creates a per se conflict of
interest, we reject that contention. Indeed, ‘‘[t]he [United
States] Supreme Court has . . . recognized a per se
conflict of interest in only one circumstance—whe[n]
defense counsel is forced to represent codefendants
over [counsel’s] timely objection . . . and has declined
to extend the per se rule to other potential conflicts
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Cardoza v. Rock, 731 F.3d 169, 183 n.8 (2d
Cir. 2013), quoting Mickens v. Taylor, supra, 535 U.S.
168. The United States Court of Appeals for the Second
Circuit, however, has applied a per se exclusionary
rule in an additional context—‘‘when an attorney is
implicated in the crimes of his or her client because
the attorney cannot be free from fear that a vigorous
defense should lead the prosecutor or the trial judge to
discover evidence of the attorney’s own wrongdoing.’’
(Internal quotation marks omitted.) Cardoza v. Rock,
supra, 183, quoting United States v. Fulton, 5 F.3d 605,
611 (2d Cir. 1993). In all other cases, however, including
those in which defense counsel previously represented
the victim; see e.g., Mickens v. Taylor, supra, 164–65;
or previously represented a witness in a case; see, e.g.,
United States v. Iorizzo, 786 F.2d 52, 57–58 (2d Cir.
1986); the defendant must demonstrate that an actual
conflict existed—i.e., one that ‘‘compelled [defense
counsel] to compromise his or her duty of loyalty or
zealous advocacy to the accused by choosing between
or blending the divergent or competing interests of a
former or current client.’’ Perillo v. Johnson, supra, 205
F.3d 781. The trial court found, and we agree, that the
defendant failed to shoulder his burden in this case.
   Contrary to the defendant’s assertions, Waite does
not support, much less compel, a different conclusion.
In Waite, the issue before the court was whether the
trial court abused its discretion in disqualifying defense
counsel because he previously had represented the vic-
tim’s mother, who ‘‘testified that she had shared infor-
mation with [him] that she considered to be secret,
and she refused to waive the confidentiality of this
information or [to] agree to counsel’s representation of
[the] defendant. She further stated that she was already
uncomfortable about the prospect of testifying as a
hostile witness at the trial and that counsel’s continued
representation of [the] defendant would make this more
difficult for her.’’ People v. Waite, supra, 145 App. Div.
3d 1103–1104. In light of these circumstances, ‘‘and
particularly considering the unknown nature of the con-
fidential information that the mother had provided and
the concomitant difficulty of predicting its potential
impact [on] the trial,’’ the Appellate Division of the New
York Supreme Court concluded that the trial court’s
decision to disqualify defense counsel was a proper
exercise of that court’s authority. Id., 1104. In the pres-
ent case, however, unlike in Waite, the trial court found
that Durant was not involved in the defendant’s trial,
had no information relevant to the defendant’s case,
and was not called as a state’s witness in the case. To
the extent Waite has any relevance at all to the present
case, then, it is simply to illustrate the fact sensitive
nature of the court’s inquiry when a potential conflict
of interest is brought to its attention.
                            II
   We next address the defendant’s claim that the trial
court improperly admitted into evidence testimony
from three lay witnesses identifying him in a surveil-
lance video recording. In their principal briefs to this
court, the parties framed their analysis of this issue
around State v. Finan, 275 Conn. 60, 881 A.2d 187
(2005), which held that the ultimate issue rule set forth
in § 7-3 of the Connecticut Code of Evidence7 precludes
the admission of lay opinion testimony identifying a
defendant in video surveillance footage when that iden-
tification embraces an ultimate issue in the case. Id.,
66–67. After issuing the remand order in the present
case, this court decided State v. Gore, 342 Conn. 129,
269 A.3d 1 (2022), and State v. Bruny, 342 Conn. 169,
269 A.3d 38 (2022). In Gore, we overruled Finan and
‘‘amended § 7-3 (a) of the Connecticut Code of Evidence
to incorporate an exception to the ultimate issue rule for
lay opinion testimony that relates to the identification
of criminal defendants or other persons depicted in
surveillance video or photographs.’’ State v. Bruny,
supra, 181. In so doing, we held that ‘‘[l]ay opinion
testimony identifying a person in surveillance video or
photographs is admissible if that testimony meets the
requirements of § 7-1 of the Connecticut Code of Evi-
dence.8 That is, such testimony is admissible if the opin-
ion 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.’
Conn. Code Evid. § 7-1.’’ (Footnote added.) State v.
Bruny, supra, 181. In light of these recent decisions,
we ordered the parties to submit supplemental briefs,
addressing the issue of whether, under Gore and Bruny,
‘‘the trial court improperly admit[ted] into evidence the
testimony of [the] three lay witnesses identifying the
defendant in a surveillance video . . . .’’ In his supple-
mental brief, the defendant argues that, despite the
recent change in the law, ‘‘it was harmful error to admit
the lay witness testimony identifying [him] in a surveil-
lance video when the only issue at trial was the identity
of the perpetrator.’’ The state, on the other hand, argues
that the trial court properly admitted the testimony
under the rule established in Gore and Bruny. We agree
with the state.
  The following additional facts are relevant to our
resolution of this issue. Following the victim’s murder,
investigating officers learned that a liquor store near
the crime scene was equipped with a video surveillance
system that may have recorded events surrounding the
murder. Tyshawn Welborn, the owner of the store, pro-
vided the police with a flash drive containing the rele-
vant footage.9 The footage encompassed five different
camera views, designated as channels one, two, three,
four, and eight, and captured footage from the immedi-
ate front of the liquor store, inside of the liquor store,
and a larger view of the corner of Baltimore Street
and Albany Avenue, where the murder occurred. The
footage depicts, in relevant part, two men—one wearing
a beige jacket, blue jeans, and a dark knit cap, and
the other wearing a black sweatshirt and blue jeans—
together, with their faces visible, approaching and enter-
ing the liquor store approximately thirty minutes before
the victim’s murder. Additional footage, from a different
camera angle, depicts the backs of two men—dressed
similarly to those in the other footage—as they make
their way to, and then stand at, the intersection of
Albany Avenue and Baltimore Street.10 After several
minutes, the man in the beige jacket appears to attack
the man in the black sweatshirt, and, subsequently, the
man in the beige jacket is shown running down Albany
Avenue, toward the direction of the liquor store.
   Prior to trial, the defendant filed a motion in limine
to exclude the testimony of three witnesses, Robin Jack-
son, Everton Osbourne, and Danette Musa, whom the
state intended to call to identify the defendant from the
liquor store surveillance video footage. Relying on § 7-
3 of the Connecticut Code of Evidence and Finan, the
defendant argued that the court should preclude the
testimony of these witnesses on the ground that they
lacked a sufficient level of familiarity with him and
because their testimony ‘‘would be an opinion of fact
on an ultimate issue [in the case] . . . .’’
  A hearing was held on the defendant’s motion during
which the state adduced the testimony of the three
witnesses. Jackson testified that, although he had
known the defendant since before 2006, the two men
had grown particularly close after they were incarcer-
ated together at Enfield Correctional Institution in 2006.
Jackson described the defendant as a ‘‘good friend’’
whom he saw nearly every day. Osbourne similarly testi-
fied that, at the time of the victim’s murder, he had
known the defendant for approximately six years and
that he saw him in the neighborhood ‘‘[j]ust about every
day . . . .’’ Musa, who was an employee of the liquor
store, testified that she had known the defendant since
the store first opened five or six months before the
murder and that the defendant and the victim came
into the store together nearly every day.
   During the hearing, the state argued that Finan was
distinguishable from the present case and, therefore,
not controlling because, in that case, the witnesses—
four police officers—‘‘were asked to view [a] video of
the actual incident and they didn’t identify the defen-
dant by his face,’’ but, rather, they identified him by
other characteristics such as a ‘‘unique walk he had
. . . .’’ The state also argued that the Appellate Court’s
decisions in State v. Felder, 99 Conn. App. 18, 912 A.2d
1054 (overruled in part by State v. Gore, 342 Conn. 129,
269 A.3d 1 (2022)), cert. denied, 281 Conn. 921, 918 A.2d
273 (2007), and State v. Holley, 160 Conn. App. 578, 127
A.3d 221 (2015) (overruled in part by State v. Gore, 342
Conn. 129, 269 A.3d 1 (2022)), rev’d on other grounds,
327 Conn. 576, 175 A.3d 514 (2018), supported admis-
sion of the testimony because those decisions clarified
that, if there is a sufficient relationship between the
witness and the defendant or individual pictured in the
surveillance footage, ‘‘it becomes a fact rather than an
opinion that they’re testifying to,’’ and, in the present
case, the three witnesses had ‘‘fairly significant’’ famil-
iarity with the defendant so as to render their testimony
fact testimony rather than improper opinion testimony.
The court agreed with the state and denied the defen-
dant’s motion in limine.
   The case proceeded to trial, at which the state pre-
sented the surveillance video footage through the testi-
mony of Welborn, who testified as to the different
camera angles, explaining that channel one showed the
front of the liquor store door facing outward toward
Albany Avenue, channel two showed the front of the
store on the right side, channel three showed the inte-
rior left side and left aisle of the store, channel four
showed the counter located at the back of the store,
and channel eight showed the outside of the store look-
ing left toward the corner of Baltimore Street and Albany
Avenue. During their respective testimony, Jackson,
Osbourne, and Musa were shown clips of the original
surveillance video footage and were asked to identify
the two men depicted therein. Each witness identified
the defendant as the man in the beige jacket and blue
jeans, and the victim as the man in the black sweatshirt
and blue jeans. With this background in mind, we turn
to our analysis of the defendant’s claim.
   As we explained, this court recently held that lay
opinion testimony identifying a defendant via surveil-
lance video footage is no longer inadmissible so long
as it meets the requirements of § 7-1 of the Connecticut
Code of Evidence, namely, that ‘‘the opinion is ‘ratio-
nally 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.’ ’’ State
v. Gore, supra, 342 Conn. 148, quoting Conn. Code Evid.
§ 7-1. We further held that, in order to satisfy the ‘‘help-
ful’’ requirement of § 7-1, such testimony is admissible
only ‘‘if there is some basis for concluding that the
witness is more likely to correctly identify the defendant
from the photograph [or video] than is the jury.’’ (Inter-
nal quotation marks omitted.) State v. Gore, supra, 150.
In making that determination, we directed our courts
to apply the totality of the circumstances test utilized
by the federal courts when evaluating whether a jury
is just as capable of identifying a defendant from video
footage as a witness, which requires consideration of
four factors: (1) ‘‘the witness’ general level of familiarity
with the defendant’s appearance’’; (2) ‘‘the witness’
familiarity with the defendant’s appearance, including
items of clothing worn, at the time that the surveillance
video or photographs were taken’’; (3) ‘‘a change in the
defendant’s appearance between the time the surveil-
lance video or photographs were taken and trial, or the
subject’s use of a disguise in the surveillance footage’’;
and (4) ‘‘the quality of the video or photographs, as
well as the extent to which the subject is depicted in
the surveillance footage.’’ Id., 151.
   In the present case, the defendant does not dispute
that Jackson, Osbourne, and Musa were sufficiently
familiar with him that the first two factors support the
trial court’s decision to admit their testimony. The
defendant focuses his argument, rather, on the third
and fourth factors, arguing that the witnesses were no
more likely to correctly identify him than was the jury
because (1) there was no evidence that he changed his
appearance prior to trial or that he wore a disguise
during the commission of the offense, and (2) the sur-
veillance video was clear and in color with ‘‘no blurri-
ness or graininess.’’ We are not persuaded.
   Although the record does not reflect whether the
defendant’s appearance changed between the time the
surveillance video footage was recorded and the time
of trial, we agree with the defendant that the third factor
favors his position in that he is clearly not wearing a
disguise in the video. We disagree, however, that the
fourth factor also weighs in his favor. Contrary to the
defendant’s assertion, we conclude that the video is
‘‘[neither] so unmistakably clear [nor] so hopelessly
obscure that the witness[es] [were] no [better suited]
than the jury to make the identification.’’ (Internal quo-
tation marks omitted.) State v. Bruny, supra, 342 Conn.
185. In the video, the defendant is wearing a black hat
pulled down over his ears and a winter jacket, and, at
certain angles, his face is obscured due to either the
dark lighting or his movements. Given these facts, we
cannot say that the witnesses, all of whom knew the
defendant exceedingly well, could be of no assistance
to or were no better suited than the jury in making the
identification. See, e.g., United States v. Jackman, 48
F.3d 1, 5 (1st Cir. 1995) (when surveillance photographs
of robber, who was wearing bulky winter jacket and
baseball cap, were somewhat blurred and showed only
part of robber’s face, identification of defendant by
lay witnesses did not constitute abuse of discretion
because identification conceivably was of help to jury);
see also United States v. Allen, 787 F.2d 933, 936 (4th
Cir. 1986) (when photographs used for identification
were less than clear and depicted individual with
blurred profile, hardhat on, and most of left half of his
face hidden, identification of defendant by lay witnesses
was ‘‘especially helpful’’ to jury), vacated on other
grounds, 479 U.S. 1077, 107 S. Ct. 1271, 94 L. Ed. 2d
132 (1987). As we noted in Gore, because the test for
evaluating whether a witness, rather than the jury, is
more likely to correctly identify the defendant from a
photograph or video is a totality of the circumstances
test, ‘‘the failure to satisfy [a] single factor to support
admitting the testimony is not fatal. That weakness may
be highlighted during cross-examination and in closing
argument.’’ State v. Gore, supra, 342 Conn. 165 n.19.
Accordingly, because the totality of relevant circum-
stances indisputably favors admission of the challenged
testimony in this case, we conclude that the trial court
did not abuse its discretion in allowing the witnesses
to testify.
   We note, finally, that, in his supplemental brief, the
defendant argues that it would be improper for us to
apply Gore retroactively to his case ‘‘because that deci-
sion was based on policy considerations and not consti-
tutional grounds.’’ In support of this argument, he cites
State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996)
for the proposition that we may never apply a rule
retroactively when that rule is based on policy consider-
ations rather than on constitutional grounds.11 We dis-
agree. We previously have explained that, as a general
rule, ‘‘judicial decisions apply retroactively to pending
cases . . . .’’ (Citation omitted.) Campos v. Coleman,
319 Conn. 36, 62, 123 A.3d 854 (2015). However, ‘‘[i]n
Neyland v. Board of Education [195 Conn. 174, 179,
487 A.2d 181 (1985)], we discussed the [three part] test
set out in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.
Ct. 349, 30 L. Ed. 2d 296 (1971), for determining whether
a decision must be applied prospectively only. A com-
mon-law decision will be applied nonretroactively only
if: (1) it establishes a new principle of law, either by
overruling past precedent on which litigants have relied
. . . or by deciding an issue of first impression whose
resolution was not clearly foreshadowed . . . (2) given
its prior history, purpose and effect, retrospective appli-
cation of the rule would [impede] its operation; and
(3) retroactive application would produce substantial
inequitable results, injustice, or hardship.’’ (Internal
quotation marks omitted.) In re Daniel N., 323 Conn.
640, 652 n.7, 150 A.3d 657 (2016); see also State v.
Snelgrove, 288 Conn. 742, 758 n.8, 954 A.2d 165 (2008)
(‘‘[j]udgments rendered in decisions that are not limited
by their terms to prospective application in other cases
usually are applied retroactively to other cases pending
at the time’’ (internal quotation marks omitted)).
   Moreover, it is axiomatic that ‘‘[t]he issue of retroac-
tivity of decisional law is a question of policy to be
decided by [this court], and may be decided by the
policy consideration of whether litigants could be
deemed to have relied on past precedent or whether
the new resolution of an old issue was foreshadowed,
or whether equity, given the particular facts, requires
a prospective application only.’’ (Internal quotation
marks omitted.) Fortin v. Hartford Underwriters Ins.
Co., 139 Conn. App. 826, 836 n.4, 59 A.3d 247, cert.
granted, 308 Conn. 905, 61 A.3d 1098 (2013) (appeal
withdrawn November 26, 2014). In the present case,
it is unpersuasive to suggest that this court’s present
application of the standard set forth in Gore gives rise
to any of the concerns set forth in the preceding para-
graph. That is, although Gore does establish a new prin-
ciple of law by overruling past precedent, the defendant
has not argued, let alone demonstrated, that he relied
to his detriment on one legal standard over another
during the events underlying this case, the underlying
trial, or in bringing the present appeal; see id.; despite
being afforded an opportunity to do so in the supple-
mental briefing ordered by this court to address the
applicability of Gore to this case.12
   We recognize, however, as the defendant argues, that,
were it not for the ‘‘unusual procedural posture of this
case’’—namely, the fact that we agreed with the defen-
dant’s claim regarding the trial court’s failure to ade-
quately inquire into Coffin’s alleged conflict of interest
and, therefore, remanded the case to the trial court for
a determination of that issue—his case would have been
decided under Finan and its progeny, which were still
good law at the time of his original appeal. It is clear,
however, that the result would be the same even
under Finan.
   In Finan, this court held that the testimony of four
police officers identifying the defendant as one of two
persons depicted in video footage of a convenience
store robbery violated the prohibition in § 7-3 (a) of the
Connecticut Code of Evidence against the admission
of opinion testimony if it embraces an ultimate issue
in the case. State v. Finan, supra, 275 Conn 61–63, 67;
see State v. Gore, supra, 342 Conn. 143. We reached
this conclusion because the footage depicted the rob-
bery itself and did not capture the defendant’s face. See
State v. Gore, supra, 142; see also State v. Finan, supra,
62. As a result, the officers’ testimony was ‘‘limited to
their suspicions that the defendant was depicted on the
[video]’’; State v. Finan, supra, 63; based on ‘‘details
such as the defendant’s profile, his mannerisms and his
distinctive walk.’’ State v. Gore, supra, 142; see also
State v. Finan, supra, 63. Because the officers’ testi-
mony in Finan was clearly opinion testimony regarding
the ultimate issue in the case—whether it was the defen-
dant or someone else in the video robbing the store—
this court had no reason to distinguish between fact
and opinion testimony. See State v. Gore, supra, 143.
   Post-Finan decisions by our Appellate Court, includ-
ing State v. Felder, supra, 99 Conn. App. 18, and State
v. Holley, supra, 160 Conn. App. 578, however, did draw
such a distinction in applying Finan and concluded
that when, as in the present case, witnesses have a high
level of familiarity with the defendant, their identifica-
tion of him from a video or photograph is not a matter
of opinion, as it was in Finan, but rather one of fact.
   As we explained in Gore: ‘‘Both the Felder and Holley
decisions relied on the witness’ level of familiarity with
the defendant to distinguish between factual recogni-
tion and mere opinion.
  ‘‘In Holley, the defendant was convicted of numerous
crimes, including felony murder, in connection with a
home invasion. . . . At trial, the state presented testi-
mony from Nicole Clark, a coworker of the defendant,
who identified him on video surveillance footage taken
on a bus he rode home with his coconspirator after
committing the crimes. . . . The Appellate Court con-
cluded that Clark’s testimony that she recognized the
defendant’s face in the still photographs from the foot-
age is not characterized accurately as opinion testi-
mony as to whether the photograph depicted the
defendant. Clark recognized the defendant’s face as it
appeared in the still image based on the fact of her past
acquaintance with him; she did not merely offer an
opinion as to whether the still image depicted the defen-
dant. Thus, her testimony was based on the fact that
she recognized the defendant, not on an opinion that
the photograph depicted him. . . .
   ‘‘In Felder, the defendant was convicted of robbery
in the first degree and larceny in the third degree in
connection with a bank robbery. . . . At trial, his girl-
friend and former roommate, Michelle Mills, testified
that she recognized him in photographs taken from the
bank surveillance video. . . . Mills testified that her
recognition of the defendant was based on his head
covering, sneakers, nose and posture. . . . On appeal,
the defendant relied on this court’s decision in Finan
to argue that Mills’ testimony should have been
excluded as lay opinion testimony that went to the
ultimate issue. . . . The Appellate Court rejected the
defendant’s claim on the ground that Mills’ testimony
did not constitute opinion testimony. . . . Although
the court did not explain the reasoning that led it to that
conclusion, in the facts section, the court specifically
detailed Mills’ level of familiarity with the defendant,
listed the bases of her recognition, and stated that she
testified that she recognized the defendant.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) State v. Gore, supra, 342 Conn. 143–45.
   Based on the foregoing, in the present case, applica-
tion of the Finan rule would lead to the same result that
we have reached under the Gore standard. Specifically,
given the witnesses’ strong familiarity with the defen-
dant—which the defendant himself does not dispute—
we would be obliged to conclude that, even under
Finan, the trial court properly admitted the challenged
testimony. Moreover, the witnesses’ testimony did not
address, in violation of Finan and the pre-Gore version
of § 7-3 of the Connecticut Code of Evidence, the ulti-
mate issue in this case—namely, whether the defendant
committed the offense—because the witnesses did not
identify the defendant from the surveillance video foot-
age depicting the assault; rather, the jury was left to
conclude on its own whether, based on the totality of
the state’s evidence, the defendant was the individual
who assaulted the victim on the corner of Baltimore
Street and Albany Avenue.13 See, e.g., State v. Holley,
supra, 160 Conn. App. 618 (‘‘[The witness’] testimony
that she recognized the defendant as depicted in the
photograph at issue was not tantamount to a legal opin-
ion about his criminal culpability. The state’s case
rested on circumstantial evidence and [the defendant’s]
presence . . . on the bus . . . shortly after the vic-
tim’s murder certainly was integral to the state’s theory
of the case and to the issue of whether the defendant
was criminally liable for the several offenses at issue
in the case. [His] presence on the bus, however, did
not directly shed light on his conduct at the victim’s
residence, whether the defendant had the criminal
intent related to the offenses with which he was
charged, or whether he had entered into a conspiracy
. . . . Thus, we do not conclude that his presence on
the bus was the essence of the matters to be decided
by the jury.’’). These two facts taken together compel
the conclusion that the witnesses’ testimony in the pres-
ent case was properly admitted under Finan, its prog-
eny, and the pre-Gore version of § 7-3 of the Connecticut
Code of Evidence, and, thus, the result in this appeal
remains the same regardless of the rule applied.
      The judgment is affirmed.
      In this opinion the other justices concurred.
  1
    ‘‘In cases involving potential conflicts of interest, this court has held
that [t]here are two circumstances under which a trial court has a duty to
inquire . . . (1) when there has been a timely conflict objection at trial
. . . or (2) when the trial court knows or reasonably should know that a
particular conflict exists . . . . To safeguard a criminal defendant’s right
to the effective assistance of counsel, a trial court has an affirmative obliga-
tion to explore the possibility of conflict when such conflict is brought to
the attention of the trial judge in a timely manner.’’ (Citation omitted; internal
quotation marks omitted.) State v. Davis, supra, 338 Conn. 470; see also
United States v. Levy, 25 F.3d 146, 153 (2d Cir. 1994) (‘‘[w]hen a [trial] court
is sufficiently apprised of even the possibility of a conflict of interest, the
court . . . has an ‘inquiry’ obligation’’).
   2
     We did, however, address the defendant’s claim that the trial court further
denied his right to the effective assistance of counsel by denying his motions
to dismiss Coffin without adequately inquiring into the bases for the motions.
State v. Davis, supra, 338 Conn. 460. Specifically, in his May, 2017 motion
to dismiss counsel, the defendant argued that Coffin did not diligently pro-
vide him with copies of the state’s discovery materials or investigate informa-
tion he had provided to her; that, during a meeting with her investigator
and the defendant, she allowed her investigator to recommend that he
plead guilty; and that she violated unspecified professional and ethical legal
standards. Id., 460, 462. We disagreed with the defendant’s claim on appeal,
concluding that the trial court, in the exercise of its broad discretion, ade-
quately inquired into the bases for the defendant’s motions to dismiss counsel
before denying them. Id., 467–69.
   3
     The defendant’s May 24, 2017 motion to dismiss counsel asserted the
following four reasons why Coffin should be dismissed, only one of which
is relevant to this appeal: ‘‘(1) she failed to meet professional and ethical
standards established by the Connecticut Bar Association and the American
Bar Association, (2) she ‘refused to allow [the defendant] to view any items
that would enable [him] to come to an intelligent and informed decision as
to where [his] best interest[s] [lie] and . . . to aid in his own defense,’ (3)
she failed to investigate certain information he had provided to her, and (4)
‘[a] conflict of interest has arisen.’ ’’ State v. Davis, supra, 338 Conn. 462;
see footnote 2 of this opinion. On June 13, 2017, the trial court, Dewey, J.,
conducted a hearing on the defendant’s motion to dismiss counsel, during
which the court denied the motion without making any inquiry into the
defendant’s claim that Coffin was laboring under a conflict of interest. Id.,
462–63. The case then proceeded to trial before the court, Gold, J. Id., 464.
   4
     ‘‘[A]t the defendant’s sentencing hearing, when asked by the trial court,
Gold, J., whether he wished to address the court, the defendant . . . raised
the issue of [Coffin’s] alleged conflict of interest. Specifically, he stated that,
on two prior occasions, he had attempted to dismiss [Coffin] because he
did not have faith in her abilities and because she was ‘representing the
son of [the victim].’ ’’ State v. Davis, supra, 338 Conn. 464.
   5
     The trial court was ‘‘convinced,’’ rather, that the conflict of interest
alleged in the defendant’s May, 2017 motion to dismiss counsel, which the
defendant had drafted as a self-represented party, was not, as the defendant
now contends, a conflict of interest in the legal sense, thereby implicating
the sixth amendment to the United States constitution, but, rather, a dis-
agreement between the defendant and Coffin arising out of and related
to other complaints that he had concerning Coffin’s representation. See
footnotes 2 and 3 of this opinion. In the court’s view, the defendant had
incorrectly used a legal term of art to describe what was, in actuality, a
personal conflict between him and Coffin, entirely unrelated to her prior
representation of Durant.
   6
     Rule 1.9 of the Rules of Professional Conduct provides in relevant part:
‘‘(a) A lawyer who has formerly represented a client in a matter shall not
thereafter represent another person in the same or a substantially related
matter in which that person’s interests are materially adverse to the interests
of the former client unless the former client gives informed consent, con-
firmed in writing.
                                        ***
   ‘‘(c) A lawyer who has formerly represented a client in a matter . . .
shall not thereafter:
   ‘‘(1) use information relating to the representation to the disadvantage of
the former client except as these Rules would permit or require with respect
to a client, or when the information has become generally known; or
   ‘‘(2) reveal information relating to the representation except as these
Rules would permit or require with respect to a client.’’
   The commentary to rule 1.9 provides in relevant part: ‘‘The scope of a
‘matter’ for purposes of this Rule depends on the facts of a particular
situation or transaction. The lawyer’s involvement in a matter can also be
a question of degree. . . .
   ‘‘Matters are ‘substantially related’ for purposes of this Rule if they involve
the same transaction or legal dispute or if there otherwise is a substantial
risk that confidential factual information as would normally have been
obtained in the prior representation would materially advance the client’s
position in the subsequent matter. . . .’’ Rules of Professional Conduct
1.9, commentary.
   7
     Section 7-3 of the Connecticut Code of Evidence provides in relevant
part: ‘‘(a) General rule. Testimony in the form of an opinion is inadmissible
if it embraces an ultimate issue to be decided by the trier of fact, except
that, other than as provided in subsection (b), an expert witness may give
an opinion that embraces an ultimate issue where the trier of fact needs
expert assistance in deciding the issue. . . .’’
   8
     Section 7-1 of the Connecticut Code of Evidence provides: ‘‘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.’’
   9
     The flash drive included two versions of the surveillance footage, both
of which were played for the jury. As explained hereinafter, the three lay
witnesses identified the defendant in the video labeled ‘‘original video,’’
which had been broken down into several different clips according to the
camera that was recording. Each clip lasted several minutes, and the video
in its entirety was approximately twenty minutes. The second video, labeled
‘‘working copy,’’ was the enhanced version of the original video, and this
video was not shown to the lay witnesses.
   10
      The two men’s faces are not discernable in this footage.
   11
      In Troupe, this court modified the constancy of accusation doctrine.
See State v. Troupe, supra, 237 Conn. 287. In so doing, we ‘‘conclude[d]
that the modification of the rule that we announce[d] . . . [would] apply
only to those cases in which constancy of accusation testimony ha[d] not
yet been admitted into evidence on the date of the publication of th[e]
opinion’’ and emphasized that, because the decision to modify the doctrine
was based solely on policy considerations rather than on constitutional
grounds, and because ‘‘we have frequently given only prospective effect to
changes based on policy considerations that do not carry constitutional
implications . . . we [saw] no reason to order a new trial in [that] or any
other case in which testimony had been properly permitted under our former
version of the constancy of accusation doctrine.’’ (Citations omitted; foot-
note omitted.) Id., 305–306.
   12
      Moreover, as we explained in Gore, ‘‘trial courts have struggled to apply
[the pre-Gore version of] § 7-3 (a) of the Connecticut Code of Evidence . . .
laboring both to draw an illusory distinction between fact and opinion
testimony suggested by Finan and its progeny, and to determine when
identifications of persons in video footage or still photographs embrace an
ultimate issue. [Thus] [r]ather than apply an analysis that we have determined
to be grounded on artificial and illusory distinctions, we believe that the
better approach is to provide the trial courts with an illustration of the
application of the totality of the circumstances test that we [have] adopt[ed]
. . . .’’ (Footnote omitted.) State v. Gore, supra, 342 Conn. 138–39. We
further note that, even if we were to apply the old rule and conclude that
it required reversal of the judgment, it would provide the defendant with no
real benefit because, at any new trial, the rule adopted in Gore would apply.
   13
      This fact especially makes the holding in Finan limited to its facts and,
thus, inapplicable to the present case, as the lay witnesses in Finan identified
the defendant in surveillance video footage depicting the robbery itself. See
State v. Finan, supra, 275 Conn. 62.


      STATE OF CONNECTICUT v. BROCK DAVIS
                   (SC 20335)
             Robinson, C. J., and McDonald, D’Auria, Mullins,
                       Kahn, Ecker and Keller, Js.

                                  Syllabus

Convicted of the crime of murder in connection with the stabbing death of
   the victim, the defendant appealed to this court, claiming, inter alia,
   that the trial court had violated his constitutional right to the effective
   assistance of counsel by failing to conduct any inquiry into defense
   counsel’s alleged conflict of interest arising from counsel’s prior repre-
   sentation of the victim’s son, D. On appeal, this court agreed with the
   defendant that the trial court had a duty to conduct such an inquiry
   when the issue was brought to that court’s attention in a motion to
   dismiss counsel and during the defendant’s sentencing hearing. This
   court also concluded, however, that the record was insufficient to deter-
   mine whether the defendant’s claim had merit and, therefore, remanded
   the case to the trial court for it to determine whether defense counsel
   had such a conflict and, if so, whether that conflict adversely affected
   her representation of the defendant. In light of that remand order, this
   court declined to reach the defendant’s additional claim that the trial
   court had improperly admitted the testimony of three lay witnesses
   identifying the defendant in surveillance video footage from a store near
   the crime scene. The footage depicted, inter alia, two men, with their
   faces visible, approaching and entering the store together before the
   victim’s murder. Additional footage from a different camera angle
   depicted the backs of two men, dressed similar to those in the other
   footage, making their way to, and then standing at, the intersection
   where the murder occurred. Subsequent footage showed one of the men
   attacking the other man and then running down the street toward the
   direction of the store. On remand, the trial court, following a hearing
   at which the defendant and defense counsel testified, determined that
   the defendant did not timely raise his conflict of interest claim and that,
   even if he had done so, he failed to establish that defense counsel was
July 26, 2022                   CONNECTICUT LAW JOURNAL                                      Page 13




          

                  JULY, 2022                                 123
                                          State v. Davis
              burdened by an actual conflict of interest that adversely affected her
              performance. After the case returned to this court, the defendant chal-
              lenged the trial court’s determination concerning counsel’s alleged con-
              flict of interest, and this court addressed the defendant’s evidentiary
              claim. Held:
          1. The trial court correctly concluded that defense counsel’s prior representa-
              tion of D did not create an actual conflict of interest that adversely
              affected her representation of the defendant: even if this court assumed
              that the defendant’s conflict of interest claim was timely, there was
              no evidence that the defendant’s and defense counsel’s interests ever
              diverged with respect to any material factual or legal issue, or with
              respect to a course of action, or that counsel’s representation of the
              defendant was otherwise impaired as a result of her loyalty to D; more-
              over, the trial court credited counsel’s testimony that, during her repre-
              sentation of D, she learned nothing that she was prevented from using
              in her defense of the defendant and that the strategies and tactics she
              employed at trial were entirely unencumbered and uninfluenced by
              anything relating to her representation of D, and that court’s factual
              findings, including that defense counsel’s brief representation of D had
              no effect on the course of the defendant’s trial, were not clearly errone-
              ous; furthermore, there was no merit to the defendant’s contention that
              an attorney’s prior representation of a relative of the victim in a criminal
              case creates a per se conflict of interest.
          2. The trial court did not abuse its discretion in admitting the testimony of
              three lay witnesses identifying the defendant in surveillance video foot-
              age: pursuant to the rule recently established in State v. Gore (

), lay opinion testimony concerning the identification of a criminal
              defendant depicted in a surveillance video is admissible if, in accordance
              with the provision (§ 7-1) of the Code of Evidence governing the admissi-
              bility of lay opinion testimony, it is rationally based on the perception
              of the witness and is helpful to a clear understanding of that witness’
              testimony or the determination of a fact in issue; moreover, such testi-
              mony meets the requirements of § 7-1 if, in light of the totality of the
              circumstances, there is some basis for concluding that the witness is
              more likely than the jury to correctly identify the defendant from the
              footage; in the present case, the totality of the circumstances favored
              admission of the challenged testimony, as it was undisputed that all three
              witnesses were sufficiently familiar with the defendant, and, although
              the defendant was not wearing a disguise during the commission of
              the murder and the record did not indicate whether the defendant’s
              appearance had changed between the time the surveillance video footage
              was recorded and the time of trial, the quality of the video weighed in
              favor of admission of the challenged testimony, as the subject in the
              video was wearing a hat pulled down over his ears and a winter jacket,
              and, at certain angles, his face was obscured by either the dark lighting
              or his movements; accordingly, this court could not conclude that the
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          124                            JULY, 2022                  

                                          State v. Davis
              witnesses, all of whom knew the defendant exceedingly well, could be
              of no assistance to or were no better suited than the jury in identifying
              the defendant in the surveillance video footage.
          3. The defendant could not prevail on his claim that it would be improper
              for this court to apply Gore retroactively to this case because Gore was
              decided on the basis of policy considerations rather than on constitu-
              tional grounds: judicial decisions generally apply retroactively to pend-
              ing cases, and this court’s application of the rule set forth in Gore did
              not give rise to any of the concerns highlighted in Neyland v. Board of
              Education (

), which established the test for determining
              whether a judicial decision should be applied prospectively only,
              because, although Gore established a new principle of law by overruling
              past precedent holding that the rule limiting lay opinion testimony on
              the ultimate issue precludes the admission of lay opinion testimony
              identifying a defendant in video surveillance footage when that identifi-
              cation embraces an ultimate issue, the defendant did not argue or demon-
              strate that he relied to his detriment on one legal standard over another
              during the events underlying this case, the underlying trial, or in bringing
              the present appeal, despite being afforded an opportunity to do so in
              the supplemental briefing ordered by this court to address the applicabil-
              ity of Gore to this case; moreover, the result in this appeal would have
              been the same under the pre-Gore rule in view of the witnesses’ strong
              familiarity with the defendant and the fact that their testimony did not
              address the ultimate issue in this case insofar as the witnesses did not
              identify the defendant from the video surveillance footage depicting the
              attack but identified the defendant in footage placing him near the crime
              scene at or around the time of the attack.
                 Argued November 24, 2020—officially released July 26, 2022

                                       Procedural History

             Substitute information charging the defendant with
          the crime of murder, brought to the Superior Court in
          the judicial district of Hartford, where the court, Dewey,
          J., denied the defendant’s motion to dismiss his counsel;
          thereafter, the case was tried to the jury before Gold,
          J.; verdict and judgment of guilty, from which the defen-
          dant appealed to this court, which remanded the case
          for further proceedings; subsequently, the court, Gold,
          J.; issued a memorandum of decision, and the parties
          filed supplemental briefs. Affirmed.
            Pamela S. Nagy, supervisory assistant public defender,
          for the appellant (defendant).
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                   JULY, 2022                                  125
                                           State v. Davis

             Timothy J. Sugrue, assistant state’s attorney, with
          whom, on the brief, were Sharmese L. Walcott, state’s
          attorney, Gail P. Hardy, former state’s attorney, and
          John F. Fahey, supervisory assistant state’s attorney,
          for the appellee (state).
                                              Opinion

             KELLER, J. In State v. Davis, 

, 

 (2021), this court agreed with the defendant,
          Brock Davis, that, on two separate occasions, the trial
          court improperly failed to inquire into whether defense
          counsel, Kirstin B. Coffin, had a conflict of interest.1
          We therefore remanded the case to that court for a
          determination of whether Coffin did, in fact, have such
          a conflict and, if so, whether it adversely affected her
          representation of the defendant. Id., 460, 475. Because
          a new trial would have been required if the trial court
          answered these two questions in the affirmative, we
          did not reach the defendant’s additional claim that the
          trial court had improperly admitted into evidence testi-
          mony from lay witnesses identifying him in a surveil-
          lance video recording.2 Id., 479. In accordance with
            1
               ‘‘In cases involving potential conflicts of interest, this court has held
          that [t]here are two circumstances under which a trial court has a duty to
          inquire . . . (1) when there has been a timely conflict objection at trial
          . . . or (2) when the trial court knows or reasonably should know that a
          particular conflict exists . . . . To safeguard a criminal defendant’s right
          to the effective assistance of counsel, a trial court has an affirmative obliga-
          tion to explore the possibility of conflict when such conflict is brought to
          the attention of the trial judge in a timely manner.’’ (Citation omitted; internal
          quotation marks omitted.) State v. 

; see also
          United States v. Levy, 

 (2d Cir. 1994) (‘‘[w]hen a [trial] court
          is sufficiently apprised of even the possibility of a conflict of interest, the
          court . . . has an ‘inquiry’ obligation’’).
             2
               We did, however, address the defendant’s claim that the trial court further
          denied his right to the effective assistance of counsel by denying his motions
          to dismiss Coffin without adequately inquiring into the bases for the motions.
          State v. 

. Specifically, in his May, 2017 motion
          to dismiss counsel, the defendant argued that Coffin did not diligently pro-
          vide him with copies of the state’s discovery materials or investigate informa-
          tion he had provided to her; that, during a meeting with her investigator
          and the defendant, she allowed her investigator to recommend that he
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          126                            JULY, 2022                 

                                          State v. Davis

          this court’s remand order, the trial court, following a
          hearing, determined that the defendant had failed to
          establish that Coffin was burdened by an actual conflict
          of interest that adversely affected her performance. On
          appeal, the defendant challenges that determination.
          We reject this claim, and, because we also reject the
          defendant’s remaining claim, we affirm the judgment
          of the trial court.
             The defendant was convicted of murder in connec-
          tion with the stabbing death of the victim, Joseph Lind-
          sey, on December 9, 2015, in Hartford. 

 460–61.
          Following his conviction, the defendant was sentenced
          to a term of incarceration of fifty years. Id., 460. On
          appeal to this court, the defendant claimed, inter alia,
          that the trial court had violated his right to the effective
          assistance of counsel by failing to conduct any inquiry
          into Coffin’s alleged conflict of interest when the issue
          was twice brought to the court’s attention—first in a
          motion to dismiss counsel, which the defendant filed
          as a self-represented party on May 24, 2017,3 and again
          during the defendant’s sentencing hearing on June 5,
          plead guilty; and that she violated unspecified professional and ethical legal
          standards. Id., 460, 462. We disagreed with the defendant’s claim on appeal,
          concluding that the trial court, in the exercise of its broad discretion, ade-
          quately inquired into the bases for the defendant’s motions to dismiss counsel
          before denying them. Id., 467–69.
             3
               The defendant’s May 24, 2017 motion to dismiss counsel asserted the
          following four reasons why Coffin should be dismissed, only one of which
          is relevant to this appeal: ‘‘(1) she failed to meet professional and ethical
          standards established by the Connecticut Bar Association and the American
          Bar Association, (2) she ‘refused to allow [the defendant] to view any items
          that would enable [him] to come to an intelligent and informed decision as
          to where [his] best interest[s] [lie] and . . . to aid in his own defense,’ (3)
          she failed to investigate certain information he had provided to her, and (4)
          ‘[a] conflict of interest has arisen.’ ’’ State v. 

;
          see footnote 2 of this opinion. On June 13, 2017, the trial court, Dewey, J.,
          conducted a hearing on the defendant’s motion to dismiss counsel, during
          which the court denied the motion without making any inquiry into the
          defendant’s claim that Coffin was laboring under a conflict of interest. 

          462–63. The case then proceeded to trial before the court, Gold, J. Id., 464.
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                   JULY, 2022                                   127
                                           State v. Davis
                 4
          2019. Id., 460, 469. We agreed with the defendant that
          the trial court had a duty on both occasions to inquire
          into Coffin’s alleged conflict of interest. Id., 469. How-
          ever, because we could not determine, on the basis of
          the record before us, whether the defendant’s conflict
          of interest claim had any merit, we remanded the case
          to the trial court for a determination of that question.
          Id., 475. Specifically, we instructed the trial court to
          conduct a hearing at which the defendant would have
          the burden of establishing ‘‘(1) that [Coffin] actively
          represented conflicting interests and (2) that an actual
          conflict of interest adversely affected [Coffin’s] perfor-
          mance.’’ (Footnote omitted; internal quotation marks
          omitted.) Id., 477. The court was further instructed to
          make findings of fact and conclusions of law in writing,
          to be filed with the Office of the Appellate Clerk for
          our review. Id., 478. We did not address the defendant’s
          remaining claim that the trial court had improperly
          admitted into evidence testimony from three lay wit-
          nesses identifying him in surveillance video footage,
          concluding that, if necessary, we would reach that claim
          when the trial court submitted its written findings to
          us. Id., 479.
             On remand, the trial court, Gold, J., conducted a
          hearing at which both the defendant and Coffin testi-
          fied. The defendant testified that the conflict of interest
          alleged in his May 24, 2017 motion to dismiss counsel
          was premised on Coffin’s prior representation of Tristan
          Durant—the son of the victim in this case—which the
          defendant stated he learned about during a February,
          2017 meeting with Coffin at the prison where he was
          being held. The defendant testified that he was ‘‘shocked’’
            4
              ‘‘[A]t the defendant’s sentencing hearing, when asked by the trial court,
          Gold, J., whether he wished to address the court, the defendant . . . raised
          the issue of [Coffin’s] alleged conflict of interest. Specifically, he stated that,
          on two prior occasions, he had attempted to dismiss [Coffin] because he
          did not have faith in her abilities and because she was ‘representing the
          son of [the victim].’ ’’ State v. 

.
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          128                    JULY, 2022          

                                  State v. Davis

          to learn of Coffin’s prior representation of Durant and
          immediately asked Coffin to recuse herself, which she
          declined to do. When asked why he did not raise the
          issue with the trial court the next time he was in court,
          on March 29, 2017, the defendant stated that he is ‘‘a
          layman’’ and ‘‘kind of froze up.’’
             Coffin testified that, based on her case file notes, the
          prison visit in question occurred on January 9, 2018,
          not in February, 2017, as the defendant had stated.
          Coffin also testified that the issue of her prior represen-
          tation of Durant arose because, a day before her meet-
          ing with the defendant, while reviewing a supplemental
          police report in the defendant’s case, it had come to
          her attention that Durant was the victim’s son. Upon
          learning of Durant’s connection to the case, Coffin
          spoke to the trial prosecutor, who assured her that
          Durant, with whom the police had spoken only briefly
          during their investigation of the victim’s murder, would
          not be called as a state’s witness because he had nothing
          relevant to offer about the crime. Coffin stated that,
          when she met with the defendant the next day, she
          informed him about her prior representation of Durant.
          According to Coffin, the defendant ‘‘didn’t have a prob-
          lem with it,’’ did not ask that she withdraw her represen-
          tation, and did not mention the matter again until his
          sentencing hearing on June 5, 2019.
             On January 3, 2022, the trial court issued a memoran-
          dum of decision in which it concluded that the defen-
          dant had failed to establish that Coffin was burdened
          by an actual conflict of interest as a result of her prior
          representation of Durant. Because a court’s duty to
          inquire into an attorney’s potential conflict of interest
          is triggered only when the issue is raised in a timely
          manner; see, e.g., State v. Vega, 

, 

, cert. denied, 

, 

, 

 (2002); the court began its analysis with
          findings related to that issue. Specifically, the court
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                 JULY, 2022                                129
                                         State v. Davis

          found that ‘‘Coffin’s testimony regarding when she dis-
          closed to the defendant her prior representation of . . .
          Durant, and how the defendant reacted to that disclo-
          sure, provide[d] the accurate account of the events that
          transpired.’’ In so finding, the court credited Coffin’s
          testimony that the defendant had first learned of her
          representation of Durant during a prison visit on Janu-
          ary 9, 2018, approximately nine months after the defen-
          dant filed his May, 2017 motion to dismiss counsel, and
          not in February, 2017, as the defendant claimed. The
          court observed that Coffin’s ability to pinpoint the pre-
          cise date of the disclosure was not based solely on
          memory but, rather, on ‘‘ ‘very detailed notes’ ’’ she had
          taken for her file. On the basis of this finding, the court
          determined that Coffin’s representation of Durant could
          not have been the basis of the nondescript conflict of
          interest mentioned in the defendant’s May, 2017 motion.
          5
            The court further found that the defendant’s objection
          to Coffin’s representation of Durant at the time of his
          sentencing was not timely raised because, by that time,
          the defendant had known about Coffin’s potential con-
          flict for nearly eighteen months. In the court’s view,
          the defendant, for strategic reasons, had ‘‘sat silent for
          eighteen months waiting to see how his trial would turn
          out’’ and, then, only after being convicted, brought his
          alleged concern regarding Coffin’s representation of
          Durant to the court’s attention.
             5
               The trial court was ‘‘convinced,’’ rather, that the conflict of interest
          alleged in the defendant’s May, 2017 motion to dismiss counsel, which the
          defendant had drafted as a self-represented party, was not, as the defendant
          now contends, a conflict of interest in the legal sense, thereby implicating
          the sixth amendment to the United States constitution, but, rather, a dis-
          agreement between the defendant and Coffin arising out of and related
          to other complaints that he had concerning Coffin’s representation. See
          footnotes 2 and 3 of this opinion. In the court’s view, the defendant had
          incorrectly used a legal term of art to describe what was, in actuality, a
          personal conflict between him and Coffin, entirely unrelated to her prior
          representation of Durant.
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          130                    JULY, 2022         

                                 State v. Davis

             The court further determined that, ‘‘[e]ven if it were
          to overlook the untimely nature of the defendant’s claim
          and [to] consider how . . . Coffin’s representation of
          . . . Durant may have impacted her ability to defend
          the defendant,’’ it would conclude that the defendant
          had ‘‘failed to sustain his burden of establishing that
          . . . Coffin actively represented conflicting interests
          that adversely affected her performance.’’ Specifically,
          the court credited Coffin’s testimony that she had repre-
          sented Durant in May, 2014, in connection with misde-
          meanor domestic violence charges and that her
          representation encompassed two court appearances
          during that same month, the latter of which marked
          the resolution of the case by plea agreement. The court
          also credited Coffin’s testimony that she never met the
          victim while representing Durant and had no reason to
          think Durant possessed any information relevant to the
          defendant’s case. The court further found that (1) Coffin
          did not acquire any information during the course of
          her representation of Durant that, due to her ongoing
          duty of loyalty to him, she was prevented from using
          in her defense of the defendant, (2) Coffin was told by
          the prosecutor that Durant would not be called as a
          state’s witness during the defendant’s trial, and (3) the
          strategies and tactics Coffin employed on behalf of the
          defendant were unencumbered and uninfluenced by
          anything relating to her prior representation of Durant.
          In sum, the court credited Coffin’s testimony that she
          did not view her prior representation of Durant as creat-
          ing any sort of conflict that would detract from her
          representation of the defendant. In light of these find-
          ings, the court concluded that, even if the defendant had
          asserted a timely objection to Coffin’s alleged conflict
          of interest, he failed to demonstrate that such a conflict
          actually existed. Additional facts and procedural history
          will be set forth as needed.
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          JULY, 2022                       131
                                  State v. Davis

                                        I
             We first consider the defendant’s claim that the trial
          court incorrectly concluded that Coffin’s prior repre-
          sentation of Durant did not create an actual conflict of
          interest that adversely affected her representation of
          the defendant. In support of this contention, the defen-
          dant asserts that ‘‘the record clearly establishes [that]
          there was a conflict of interest because it is undisputed
          that . . . Coffin represented [Durant].’’ The defendant
          further asserts that the trial court’s factual finding
          regarding when he first learned of Coffin’s prior repre-
          sentation of Durant is clearly erroneous, and, therefore,
          the court’s ultimate legal conclusion that the defen-
          dant’s conflict of interest claim was not timely raised
          is also incorrect. We are not persuaded.
             ‘‘It is axiomatic that a criminal defendant’s sixth
          amendment right to the effective assistance of counsel
          includes the right to counsel that is free from conflicts
          of interest. . . . It is a fundamental principle . . . that
          an attorney owes an overarching duty of undivided loy-
          alty to his [or her] client. At the core of the sixth amend-
          ment guarantee of effective assistance of counsel is
          loyalty, perhaps the most basic of counsel’s duties. . . .
          Loyalty of a lawyer to his [or her] client’s cause is the
          sine qua non of the [s]ixth [a]mendment’s guarantee
          that an accused is entitled to effective assistance of
          counsel. . . . That guarantee affords a defendant the
          right to counsel’s undivided loyalty.’’ (Citation omitted;
          footnote omitted; internal quotation marks omitted.)
          State v. 

 338 Conn. 469–70.
             As we previously have explained, when a ‘‘defendant
          claims that his counsel was burdened by an actual con-
          flict of interest . . . the defendant need not establish
          actual prejudice. . . . [When] there is an actual conflict
          of interest, prejudice is presumed because counsel [has]
          breach[ed] the duty of loyalty . . . .’’ (Citations omit-
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          132                     JULY, 2022           

                                   State v. Davis

          ted; internal quotation marks omitted.) Phillips v. War-
          den, 

, 132–33, 

 (1991); see
          also Cuyler v. Sullivan, 

, 349–50, 

, 

 (1980). ‘‘An actual conflict of
          interest is more than a theoretical conflict. The United
          States Supreme Court has cautioned that the possibility
          of conflict is insufficient to impugn a criminal convic-
          tion. . . . A conflict is merely a potential conflict of
          interest if the interests of the defendant may place the
          attorney under inconsistent duties at some time in the
          future. . . . To demonstrate an actual conflict of inter-
          est, the [defendant] must be able to point to specific
          instances in the record [that] suggest impairment or
          compromise of his interests for the benefit of another
          party. . . . A mere theoretical division of loyalties is
          not enough.’’ (Citations omitted; emphasis in original;
          internal quotation marks omitted.) Anderson v. Com-
          missioner of Correction, 

, 

 (2011), aff’d, 

, 

 (2013);
          see Aguilar-Garcia v. United States, 

 (11th Cir. 2013) (‘‘a speculative or merely hypo-
          thetical conflict of interest does not yield a [s]ixth
          [a]mendment violation’’); see also United States v. Cos-
          cia, 

 (7th Cir. 2021) (‘‘[a]n actual conflict,
          for [s]ixth [a]mendment purposes, is a conflict of inter-
          est that adversely affects counsel’s performance’’ (inter-
          nal quotation marks omitted) (quoting Mickens v.
          Taylor, 

, 172 n.5, 

, 

 (2002)), cert. denied,          U.S.      , 

, 

 (2022).
             We are mindful that, in reviewing the defendant’s
          claim, ‘‘the underlying historical facts found by the
          [trial] court may not be disturbed unless they were
          clearly erroneous, [but] whether those facts constituted
          a violation of the [defendant’s] rights under the sixth
          amendment is a mixed determination of law and fact
          that requires the application of legal principles to the
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          JULY, 2022                       133
                                  State v. Davis

          historical facts of [the] case. . . . As such, that ques-
          tion requires plenary review by this court unfettered
          by the clearly erroneous standard.’’ (Citation omitted;
          internal quotation marks omitted.) Phillips v. 

. ‘‘A finding of fact is clearly errone-
          ous when there is no evidence in the record to support
          it . . . or when although there is evidence to support
          it, the reviewing court on the entire evidence is left
          with the definite and firm conviction that a mistake has
          been committed. . . . Because it is the trial court’s
          function to weigh the evidence and determine credibil-
          ity, we give great deference to its findings. . . . In
          reviewing factual findings, [w]e do not examine the
          record to determine whether the [court] could have
          reached a conclusion other than the one reached. . . .
          Instead, we make every reasonable presumption . . .
          in favor of the trial court’s ruling.’’ (Internal quotation
          marks omitted.) State v. Lawrence, 

, 154–
          55, 

 (2007).
             In analyzing the defendant’s claim, ‘‘we are [also]
          guided by our previous definition of an attorney’s con-
          flict of interest. We have described an attorney’s conflict
          of interest as that which impedes his paramount duty
          of loyalty to his client. . . . Thus, an attorney may be
          considered to be laboring under an impaired duty of
          loyalty, and thereby be subject to conflicting interests,
          because of interests or factors personal to him that are
          inconsistent, diverse or otherwise discordant with [the
          interests] of his client . . . .’’ (Internal quotation marks
          omitted.) State v. Parrott, 

, 287–88, 

 (2003); see also State v. Crespo, 

, 689–90, 

 (1998), cert. denied. 

, 

, 

 (1999). ‘‘Whether
          a conflict of interest exists depends on a number of
          factors, including, but not limited to, whether the attor-
          ney has confidential information that is helpful to one
          client but harmful to another; whether and how closely
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          134                             JULY, 2022                  

                                           State v. Davis

          the subject matter of the multiple representations is
          related; how close in time the multiple representations
          are related; and whether the prior representation has
          been unambiguously terminated.’’ United States v.
          Infante, 

 (5th Cir. 2005). ‘‘This question
          is highly [fact sensitive].’’ Id; see also Rules of Profes-
          sional Conduct 1.9.6
             Applying these principles to the present case, even
          if we assume that the defendant’s objection to Coffin’s
          alleged conflict of interest was timely raised, we can
          perceive no basis for disturbing the trial court’s finding
          that no actual conflict of interest existed. As the trial
          court stated, there is simply no evidence that Coffin’s
          and the defendant’s interests ever diverged with respect
          to any material factual or legal issue, or to a course of
          action, or that Coffin’s representation of the defendant
          was otherwise impaired as a result of her loyalty to
             6
               Rule 1.9 of the Rules of Professional Conduct provides in relevant part:
          ‘‘(a) A lawyer who has formerly represented a client in a matter shall not
          thereafter represent another person in the same or a substantially related
          matter in which that person’s interests are materially adverse to the interests
          of the former client unless the former client gives informed consent, con-
          firmed in writing.
                                                 ***
             ‘‘(c) A lawyer who has formerly represented a client in a matter . . .
          shall not thereafter:
             ‘‘(1) use information relating to the representation to the disadvantage of
          the former client except as these Rules would permit or require with respect
          to a client, or when the information has become generally known; or
             ‘‘(2) reveal information relating to the representation except as these
          Rules would permit or require with respect to a client.’’
             The commentary to rule 1.9 provides in relevant part: ‘‘The scope of a
          ‘matter’ for purposes of this Rule depends on the facts of a particular
          situation or transaction. The lawyer’s involvement in a matter can also be
          a question of degree. . . .
             ‘‘Matters are ‘substantially related’ for purposes of this Rule if they involve
          the same transaction or legal dispute or if there otherwise is a substantial
          risk that confidential factual information as would normally have been
          obtained in the prior representation would materially advance the client’s
          position in the subsequent matter. . . .’’ Rules of Professional Conduct
          1.9, commentary.
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          JULY, 2022                     135
                                 State v. Davis

          Durant. See, e.g., Perillo v. Johnson, 

          (5th Cir. 2000) (‘‘actual conflict exists when defense
          counsel is compelled to compromise his or her duty of
          loyalty or zealous advocacy to the accused by choosing
          between or blending the divergent or competing inter-
          ests of a former or current client’’ (internal quotation
          marks omitted)); see also Armienti v. United States,
          

 (2d Cir. 2000) (‘‘[t]here is an actual
          conflict between lawyer and client when, during the
          course of the representation, the attorney’s and defen-
          dant’s interests diverge with respect to a material fac-
          tual or legal issue or to a course of action’’ (internal
          quotation marks omitted)). To the contrary, the court
          credited Coffin’s testimony that, among other things,
          during her brief representation of Durant, she learned
          nothing that she was prevented from using in her
          defense of the defendant and that the strategies and
          tactics she employed at trial were entirely unencum-
          bered and uninfluenced by anything relating to her rep-
          resentation of Durant. See, e.g., State v. Martin, 

, 

 (1986) (‘‘the trial court must
          be able, and be freely permitted, to rely [on] [defense]
          counsel’s representation that the possibility of . . . a
          conflict does or does not exist’’ (internal quotation
          marks omitted)); see also United States v. Flynn, 

 (8th Cir. 1996) (‘‘[i]n determining whether
          a conflict of interest exists, substantial weight is given
          to defense counsel’s representations’’).
            In sum, the trial court held an evidentiary hearing on
          the defendant’s conflict of interest claim and issued a
          thorough memorandum of decision, in which it found,
          inter alia, that Coffin’s brief representation of Durant
          had no effect whatsoever on the course of the defen-
          dant’s trial. The court’s underlying findings were based
          on credibility determinations made after hearing the
          testimony of both Coffin and the defendant. ‘‘As a
          reviewing court, our role is not to speculate about coun-
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          136                    JULY, 2022           

                                  State v. Davis

          sel’s motives or about the plausibility of alternative
          litigation strategies. Our role is to defer to the [trial
          court’s] factual findings unless we can conclude they
          are clearly erroneous.’’ Mickens v. 

 (Kennedy, J., concurring). Having conducted
          a thorough review of the record, we cannot conclude
          that the trial court’s findings in this case were clearly
          erroneous.
             In arguing to the contrary, the defendant cites a single
          case, People v. Waite, 145 App. Div. 3d 1098, 1103, 

 (2016), appeal denied, 

, 

, 

 (2017), which, he claims,
          stands for the proposition that ‘‘a conflict of interest
          [actually] exists when an attorney for a criminal defen-
          dant has previously represented a relative of the vic-
          tim.’’ We disagree that Waite supports the defendant’s
          argument. Before explaining why, however, we note
          that, to the extent the defendant purports to argue that
          an attorney’s prior representation of a relative of the
          victim in a criminal case creates a per se conflict of
          interest, we reject that contention. Indeed, ‘‘[t]he [United
          States] Supreme Court has . . . recognized a per se
          conflict of interest in only one circumstance—whe[n]
          defense counsel is forced to represent codefendants
          over [counsel’s] timely objection . . . and has declined
          to extend the per se rule to other potential conflicts
          . . . .’’ (Citations omitted; internal quotation marks
          omitted.) Cardoza v. Rock, 

, 183 n.8 (2d
          Cir. 2013), quoting Mickens v. 

. The United States Court of Appeals for the Second
          Circuit, however, has applied a per se exclusionary
          rule in an additional context—‘‘when an attorney is
          implicated in the crimes of his or her client because
          the attorney cannot be free from fear that a vigorous
          defense should lead the prosecutor or the trial judge to
          discover evidence of the attorney’s own wrongdoing.’’
          (Internal quotation marks omitted.) Cardoza v. Rock,
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          JULY, 2022                      137
                                  State v. 

, quoting United States v. Fulton, 

 (2d Cir. 1993). In all other cases, however, including
          those in which defense counsel previously represented
          the victim; see e.g., Mickens v. 

 164–65;
          or previously represented a witness in a case; see, e.g.,
          United States v. Iorizzo, 

, 57–58 (2d Cir.
          1986); the defendant must demonstrate that an actual
          conflict existed—i.e., one that ‘‘compelled [defense
          counsel] to compromise his or her duty of loyalty or
          zealous advocacy to the accused by choosing between
          or blending the divergent or competing interests of a
          former or current client.’’ Perillo v. 

. The trial court found, and we agree, that the
          defendant failed to shoulder his burden in this case.
             Contrary to the defendant’s assertions, Waite does
          not support, much less compel, a different conclusion.
          In Waite, the issue before the court was whether the
          trial court abused its discretion in disqualifying defense
          counsel because he previously had represented the vic-
          tim’s mother, who ‘‘testified that she had shared infor-
          mation with [him] that she considered to be secret,
          and she refused to waive the confidentiality of this
          information or [to] agree to counsel’s representation of
          [the] defendant. She further stated that she was already
          uncomfortable about the prospect of testifying as a
          hostile witness at the trial and that counsel’s continued
          representation of [the] defendant would make this more
          difficult for her.’’ People v. 

 145 App. Div.
          3d 1103–1104. In light of these circumstances, ‘‘and
          particularly considering the unknown nature of the con-
          fidential information that the mother had provided and
          the concomitant difficulty of predicting its potential
          impact [on] the trial,’’ the Appellate Division of the New
          York Supreme Court concluded that the trial court’s
          decision to disqualify defense counsel was a proper
          exercise of that court’s authority. Id., 1104. In the pres-
          ent case, however, unlike in Waite, the trial court found
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          138                           JULY, 2022                

                                         State v. Davis

          that Durant was not involved in the defendant’s trial,
          had no information relevant to the defendant’s case,
          and was not called as a state’s witness in the case. To
          the extent Waite has any relevance at all to the present
          case, then, it is simply to illustrate the fact sensitive
          nature of the court’s inquiry when a potential conflict
          of interest is brought to its attention.
                                               II
             We next address the defendant’s claim that the trial
          court improperly admitted into evidence testimony
          from three lay witnesses identifying him in a surveil-
          lance video recording. In their principal briefs to this
          court, the parties framed their analysis of this issue
          around State v. Finan, 

, 

          (2005), which held that the ultimate issue rule set forth
          in § 7-3 of the Connecticut Code of Evidence7 precludes
          the admission of lay opinion testimony identifying a
          defendant in video surveillance footage when that iden-
          tification embraces an ultimate issue in the case. Id.,
          66–67. After issuing the remand order in the present
          case, this court decided State v. Gore, 

,
          

 (2022), and State v. Bruny, 

,
          

 (2022). In Gore, we overruled Finan and
          ‘‘amended § 7-3 (a) of the Connecticut Code of Evidence
          to incorporate an exception to the ultimate issue rule for
          lay opinion testimony that relates to the identification
          of criminal defendants or other persons depicted in
          surveillance video or photographs.’’ State v. 

. In so doing, we held that ‘‘[l]ay opinion
          testimony identifying a person in surveillance video or
          photographs is admissible if that testimony meets the
             7
               Section 7-3 of the Connecticut Code of Evidence provides in relevant
          part: ‘‘(a) General rule. Testimony in the form of an opinion is inadmissible
          if it embraces an ultimate issue to be decided by the trier of fact, except
          that, other than as provided in subsection (b), an expert witness may give
          an opinion that embraces an ultimate issue where the trier of fact needs
          expert assistance in deciding the issue. . . .’’
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                 JULY, 2022                                139
                                         State v. Davis

          requirements of § 7-1 of the Connecticut Code of Evi-
          dence.8 That is, such testimony is admissible if the opin-
          ion 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.’
          Conn. Code Evid. § 7-1.’’ (Footnote added.) State v.
          

. In light of these recent decisions,
          we ordered the parties to submit supplemental briefs,
          addressing the issue of whether, under Gore and Bruny,
          ‘‘the trial court improperly admit[ted] into evidence the
          testimony of [the] three lay witnesses identifying the
          defendant in a surveillance video . . . .’’ In his supple-
          mental brief, the defendant argues that, despite the
          recent change in the law, ‘‘it was harmful error to admit
          the lay witness testimony identifying [him] in a surveil-
          lance video when the only issue at trial was the identity
          of the perpetrator.’’ The state, on the other hand, argues
          that the trial court properly admitted the testimony
          under the rule established in Gore and Bruny. We agree
          with the state.
            The following additional facts are relevant to our
          resolution of this issue. Following the victim’s murder,
          investigating officers learned that a liquor store near
          the crime scene was equipped with a video surveillance
          system that may have recorded events surrounding the
          murder. Tyshawn Welborn, the owner of the store, pro-
          vided the police with a flash drive containing the rele-
          vant footage.9 The footage encompassed five different
             8
               Section 7-1 of the Connecticut Code of Evidence provides: ‘‘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.’’
             9
               The flash drive included two versions of the surveillance footage, both
          of which were played for the jury. As explained hereinafter, the three lay
          witnesses identified the defendant in the video labeled ‘‘original video,’’
          which had been broken down into several different clips according to the
          camera that was recording. Each clip lasted several minutes, and the video
          in its entirety was approximately twenty minutes. The second video, labeled
          ‘‘working copy,’’ was the enhanced version of the original video, and this
          video was not shown to the lay witnesses.
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          140                            JULY, 2022               

                                         State v. Davis

          camera views, designated as channels one, two, three,
          four, and eight, and captured footage from the immedi-
          ate front of the liquor store, inside of the liquor store,
          and a larger view of the corner of Baltimore Street
          and Albany Avenue, where the murder occurred. The
          footage depicts, in relevant part, two men—one wearing
          a beige jacket, blue jeans, and a dark knit cap, and
          the other wearing a black sweatshirt and blue jeans—
          together, with their faces visible, approaching and enter-
          ing the liquor store approximately thirty minutes before
          the victim’s murder. Additional footage, from a different
          camera angle, depicts the backs of two men—dressed
          similarly to those in the other footage—as they make
          their way to, and then stand at, the intersection of
          Albany Avenue and Baltimore Street.10 After several
          minutes, the man in the beige jacket appears to attack
          the man in the black sweatshirt, and, subsequently, the
          man in the beige jacket is shown running down Albany
          Avenue, toward the direction of the liquor store.
             Prior to trial, the defendant filed a motion in limine
          to exclude the testimony of three witnesses, Robin Jack-
          son, Everton Osbourne, and Danette Musa, whom the
          state intended to call to identify the defendant from the
          liquor store surveillance video footage. Relying on § 7-
          3 of the Connecticut Code of Evidence and Finan, the
          defendant argued that the court should preclude the
          testimony of these witnesses on the ground that they
          lacked a sufficient level of familiarity with him and
          because their testimony ‘‘would be an opinion of fact
          on an ultimate issue [in the case] . . . .’’
            A hearing was held on the defendant’s motion during
          which the state adduced the testimony of the three
          witnesses. Jackson testified that, although he had
          known the defendant since before 2006, the two men
          had grown particularly close after they were incarcer-
           10
                The two men’s faces are not discernable in this footage.
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          JULY, 2022                      141
                                  State v. Davis

          ated together at Enfield Correctional Institution in 2006.
          Jackson described the defendant as a ‘‘good friend’’
          whom he saw nearly every day. Osbourne similarly testi-
          fied that, at the time of the victim’s murder, he had
          known the defendant for approximately six years and
          that he saw him in the neighborhood ‘‘[j]ust about every
          day . . . .’’ Musa, who was an employee of the liquor
          store, testified that she had known the defendant since
          the store first opened five or six months before the
          murder and that the defendant and the victim came
          into the store together nearly every day.

             During the hearing, the state argued that Finan was
          distinguishable from the present case and, therefore,
          not controlling because, in that case, the witnesses—
          four police officers—‘‘were asked to view [a] video of
          the actual incident and they didn’t identify the defen-
          dant by his face,’’ but, rather, they identified him by
          other characteristics such as a ‘‘unique walk he had
          . . . .’’ The state also argued that the Appellate Court’s
          decisions in State v. Felder, 

, 

 (overruled in part by State v. Gore, 

,
          

 (2022)), cert. denied, 

, 

 (2007), and State v. Holley, 

, 

 (2015) (overruled in part by State v. Gore, 

, 

 (2022)), rev’d on other grounds,
          

, 

 (2018), supported admis-
          sion of the testimony because those decisions clarified
          that, if there is a sufficient relationship between the
          witness and the defendant or individual pictured in the
          surveillance footage, ‘‘it becomes a fact rather than an
          opinion that they’re testifying to,’’ and, in the present
          case, the three witnesses had ‘‘fairly significant’’ famil-
          iarity with the defendant so as to render their testimony
          fact testimony rather than improper opinion testimony.
          The court agreed with the state and denied the defen-
          dant’s motion in limine.
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          142                    JULY, 2022           

                                  State v. Davis

             The case proceeded to trial, at which the state pre-
          sented the surveillance video footage through the testi-
          mony of Welborn, who testified as to the different
          camera angles, explaining that channel one showed the
          front of the liquor store door facing outward toward
          Albany Avenue, channel two showed the front of the
          store on the right side, channel three showed the inte-
          rior left side and left aisle of the store, channel four
          showed the counter located at the back of the store,
          and channel eight showed the outside of the store look-
          ing left toward the corner of Baltimore Street and Albany
          Avenue. During their respective testimony, Jackson,
          Osbourne, and Musa were shown clips of the original
          surveillance video footage and were asked to identify
          the two men depicted therein. Each witness identified
          the defendant as the man in the beige jacket and blue
          jeans, and the victim as the man in the black sweatshirt
          and blue jeans. With this background in mind, we turn
          to our analysis of the defendant’s claim.
             As we explained, this court recently held that lay
          opinion testimony identifying a defendant via surveil-
          lance video footage is no longer inadmissible so long
          as it meets the requirements of § 7-1 of the Connecticut
          Code of Evidence, namely, that ‘‘the opinion is ‘ratio-
          nally 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.’ ’’ State
          v. Gore, supra, 

, quoting Conn. Code Evid.
          § 7-1. We further held that, in order to satisfy the ‘‘help-
          ful’’ requirement of § 7-1, such testimony is admissible
          only ‘‘if there is some basis for concluding that the
          witness is more likely to correctly identify the defendant
          from the photograph [or video] than is the jury.’’ (Inter-
          nal quotation marks omitted.) State v. Gore, supra, 150.
          In making that determination, we directed our courts
          to apply the totality of the circumstances test utilized
          by the federal courts when evaluating whether a jury
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           JULY, 2022                       143
                                  State v. Davis

          is just as capable of identifying a defendant from video
          footage as a witness, which requires consideration of
          four factors: (1) ‘‘the witness’ general level of familiarity
          with the defendant’s appearance’’; (2) ‘‘the witness’
          familiarity with the defendant’s appearance, including
          items of clothing worn, at the time that the surveillance
          video or photographs were taken’’; (3) ‘‘a change in the
          defendant’s appearance between the time the surveil-
          lance video or photographs were taken and trial, or the
          subject’s use of a disguise in the surveillance footage’’;
          and (4) ‘‘the quality of the video or photographs, as
          well as the extent to which the subject is depicted in
          the surveillance footage.’’ 

.
             In the present case, the defendant does not dispute
          that Jackson, Osbourne, and Musa were sufficiently
          familiar with him that the first two factors support the
          trial court’s decision to admit their testimony. The
          defendant focuses his argument, rather, on the third
          and fourth factors, arguing that the witnesses were no
          more likely to correctly identify him than was the jury
          because (1) there was no evidence that he changed his
          appearance prior to trial or that he wore a disguise
          during the commission of the offense, and (2) the sur-
          veillance video was clear and in color with ‘‘no blurri-
          ness or graininess.’’ We are not persuaded.
             Although the record does not reflect whether the
          defendant’s appearance changed between the time the
          surveillance video footage was recorded and the time
          of trial, we agree with the defendant that the third factor
          favors his position in that he is clearly not wearing a
          disguise in the video. We disagree, however, that the
          fourth factor also weighs in his favor. Contrary to the
          defendant’s assertion, we conclude that the video is
          ‘‘[neither] so unmistakably clear [nor] so hopelessly
          obscure that the witness[es] [were] no [better suited]
          than the jury to make the identification.’’ (Internal quo-
          tation marks omitted.) State v. 

 342 Conn.
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          144                    JULY, 2022          

                                  State v. Davis

          185. In the video, the defendant is wearing a black hat
          pulled down over his ears and a winter jacket, and, at
          certain angles, his face is obscured due to either the
          dark lighting or his movements. Given these facts, we
          cannot say that the witnesses, all of whom knew the
          defendant exceedingly well, could be of no assistance
          to or were no better suited than the jury in making the
          identification. See, e.g., United States v. Jackman, 

 (1st Cir. 1995) (when surveillance photographs
          of robber, who was wearing bulky winter jacket and
          baseball cap, were somewhat blurred and showed only
          part of robber’s face, identification of defendant by
          lay witnesses did not constitute abuse of discretion
          because identification conceivably was of help to jury);
          see also United States v. Allen, 

 (4th
          Cir. 1986) (when photographs used for identification
          were less than clear and depicted individual with
          blurred profile, hardhat on, and most of left half of his
          face hidden, identification of defendant by lay witnesses
          was ‘‘especially helpful’’ to jury), vacated on other
          grounds, 

, 

, 

 (1987). As we noted in Gore, because the test for
          evaluating whether a witness, rather than the jury, is
          more likely to correctly identify the defendant from a
          photograph or video is a totality of the circumstances
          test, ‘‘the failure to satisfy [a] single factor to support
          admitting the testimony is not fatal. That weakness may
          be highlighted during cross-examination and in closing
          argument.’’ State v. Gore, supra, 

 n.19.
          Accordingly, because the totality of relevant circum-
          stances indisputably favors admission of the challenged
          testimony in this case, we conclude that the trial court
          did not abuse its discretion in allowing the witnesses
          to testify.
            We note, finally, that, in his supplemental brief, the
          defendant argues that it would be improper for us to
          apply Gore retroactively to his case ‘‘because that deci-
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                 JULY, 2022                               145
                                        State v. Davis

          sion was based on policy considerations and not consti-
          tutional grounds.’’ In support of this argument, he cites
          State v. Troupe, 

, 

 (1996)
          for the proposition that we may never apply a rule
          retroactively when that rule is based on policy consider-
          ations rather than on constitutional grounds.11 We dis-
          agree. We previously have explained that, as a general
          rule, ‘‘judicial decisions apply retroactively to pending
          cases . . . .’’ (Citation omitted.) Campos v. Coleman,
          

, 62, 

 (2015). However, ‘‘[i]n
          Neyland v. Board of Education [

,
          

 (1985)], we discussed the [three part] test
          set out in Chevron Oil Co. v. Huson, 

, 

, 

 (1971), for determining whether
          a decision must be applied prospectively only. A com-
          mon-law decision will be applied nonretroactively only
          if: (1) it establishes a new principle of law, either by
          overruling past precedent on which litigants have relied
          . . . or by deciding an issue of first impression whose
          resolution was not clearly foreshadowed . . . (2) given
          its prior history, purpose and effect, retrospective appli-
          cation of the rule would [impede] its operation; and
          (3) retroactive application would produce substantial
          inequitable results, injustice, or hardship.’’ (Internal
          quotation marks omitted.) In re Daniel N., 

, 652 n.7, 

 (2016); see also State v.
            11
               In Troupe, this court modified the constancy of accusation doctrine.
          See State v. 

. In so doing, we ‘‘conclude[d]
          that the modification of the rule that we announce[d] . . . [would] apply
          only to those cases in which constancy of accusation testimony ha[d] not
          yet been admitted into evidence on the date of the publication of th[e]
          opinion’’ and emphasized that, because the decision to modify the doctrine
          was based solely on policy considerations rather than on constitutional
          grounds, and because ‘‘we have frequently given only prospective effect to
          changes based on policy considerations that do not carry constitutional
          implications . . . we [saw] no reason to order a new trial in [that] or any
          other case in which testimony had been properly permitted under our former
          version of the constancy of accusation doctrine.’’ (Citations omitted; foot-
          note omitted.) 

 305–306.
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          146                            JULY, 2022                 

                                          State v. Davis

          Snelgrove, 

, 758 n.8, 

 (2008)
          (‘‘[j]udgments rendered in decisions that are not limited
          by their terms to prospective application in other cases
          usually are applied retroactively to other cases pending
          at the time’’ (internal quotation marks omitted)).
             Moreover, it is axiomatic that ‘‘[t]he issue of retroac-
          tivity of decisional law is a question of policy to be
          decided by [this court], and may be decided by the
          policy consideration of whether litigants could be
          deemed to have relied on past precedent or whether
          the new resolution of an old issue was foreshadowed,
          or whether equity, given the particular facts, requires
          a prospective application only.’’ (Internal quotation
          marks omitted.) Fortin v. Hartford Underwriters Ins.
          Co., 

, 836 n.4, 

, cert.
          granted, 

, 

 (2013) (appeal
          withdrawn November 26, 2014). In the present case,
          it is unpersuasive to suggest that this court’s present
          application of the standard set forth in Gore gives rise
          to any of the concerns set forth in the preceding para-
          graph. That is, although Gore does establish a new prin-
          ciple of law by overruling past precedent, the defendant
          has not argued, let alone demonstrated, that he relied
          to his detriment on one legal standard over another
          during the events underlying this case, the underlying
          trial, or in bringing the present appeal; see id.; despite
          being afforded an opportunity to do so in the supple-
          mental briefing ordered by this court to address the
          applicability of Gore to this case.12
             12
                Moreover, as we explained in Gore, ‘‘trial courts have struggled to apply
          [the pre-Gore version of] § 7-3 (a) of the Connecticut Code of Evidence . . .
          laboring both to draw an illusory distinction between fact and opinion
          testimony suggested by Finan and its progeny, and to determine when
          identifications of persons in video footage or still photographs embrace an
          ultimate issue. [Thus] [r]ather than apply an analysis that we have determined
          to be grounded on artificial and illusory distinctions, we believe that the
          better approach is to provide the trial courts with an illustration of the
          application of the totality of the circumstances test that we [have] adopt[ed]
          . . . .’’ (Footnote omitted.) State v. Gore, supra, 342 Conn. 138–39. We
          further note that, even if we were to apply the old rule and conclude that
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                 JULY, 2022                                147
                                         State v. Davis

             We recognize, however, as the defendant argues, that,
          were it not for the ‘‘unusual procedural posture of this
          case’’—namely, the fact that we agreed with the defen-
          dant’s claim regarding the trial court’s failure to ade-
          quately inquire into Coffin’s alleged conflict of interest
          and, therefore, remanded the case to the trial court for
          a determination of that issue—his case would have been
          decided under Finan and its progeny, which were still
          good law at the time of his original appeal. It is clear,
          however, that the result would be the same even
          under Finan.
             In Finan, this court held that the testimony of four
          police officers identifying the defendant as one of two
          persons depicted in video footage of a convenience
          store robbery violated the prohibition in § 7-3 (a) of the
          Connecticut Code of Evidence against the admission
          of opinion testimony if it embraces an ultimate issue
          in the case. State v. 

 275 Conn 61–63, 67;
          see State v. Gore, supra, 

. We reached
          this conclusion because the footage depicted the rob-
          bery itself and did not capture the defendant’s face. See
          State v. Gore, supra, 142; see also State v. 

. As a result, the officers’ testimony was ‘‘limited to
          their suspicions that the defendant was depicted on the
          [video]’’; State v. 

; based on ‘‘details
          such as the defendant’s profile, his mannerisms and his
          distinctive walk.’’ State v. Gore, supra, 142; see also
          State v. 

. Because the officers’ testi-
          mony in Finan was clearly opinion testimony regarding
          the ultimate issue in the case—whether it was the defen-
          dant or someone else in the video robbing the store—
          this court had no reason to distinguish between fact
          and opinion testimony. See State v. Gore, supra, 143.
            Post-Finan decisions by our Appellate Court, includ-
          ing State v. 

, and State
          it required reversal of the judgment, it would provide the defendant with no
          real benefit because, at any new trial, the rule adopted in Gore would apply.
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                                 State v. Davis

          v. 

, however, did draw
          such a distinction in applying Finan and concluded
          that when, as in the present case, witnesses have a high
          level of familiarity with the defendant, their identifica-
          tion of him from a video or photograph is not a matter
          of opinion, as it was in Finan, but rather one of fact.
             As we explained in Gore: ‘‘Both the Felder and Holley
          decisions relied on the witness’ level of familiarity with
          the defendant to distinguish between factual recogni-
          tion and mere opinion.
            ‘‘In Holley, the defendant was convicted of numerous
          crimes, including felony murder, in connection with a
          home invasion. . . . At trial, the state presented testi-
          mony from Nicole Clark, a coworker of the defendant,
          who identified him on video surveillance footage taken
          on a bus he rode home with his coconspirator after
          committing the crimes. . . . The Appellate Court con-
          cluded that Clark’s testimony that she recognized the
          defendant’s face in the still photographs from the foot-
          age is not characterized accurately as opinion testi-
          mony as to whether the photograph depicted the
          defendant. Clark recognized the defendant’s face as it
          appeared in the still image based on the fact of her past
          acquaintance with him; she did not merely offer an
          opinion as to whether the still image depicted the defen-
          dant. Thus, her testimony was based on the fact that
          she recognized the defendant, not on an opinion that
          the photograph depicted him. . . .
             ‘‘In Felder, the defendant was convicted of robbery
          in the first degree and larceny in the third degree in
          connection with a bank robbery. . . . At trial, his girl-
          friend and former roommate, Michelle Mills, testified
          that she recognized him in photographs taken from the
          bank surveillance video. . . . Mills testified that her
          recognition of the defendant was based on his head
          covering, sneakers, nose and posture. . . . On appeal,
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                  JULY, 2022                                 149
                                          State v. Davis

          the defendant relied on this court’s decision in Finan
          to argue that Mills’ testimony should have been
          excluded as lay opinion testimony that went to the
          ultimate issue. . . . The Appellate Court rejected the
          defendant’s claim on the ground that Mills’ testimony
          did not constitute opinion testimony. . . . Although
          the court did not explain the reasoning that led it to that
          conclusion, in the facts section, the court specifically
          detailed Mills’ level of familiarity with the defendant,
          listed the bases of her recognition, and stated that she
          testified that she recognized the defendant.’’ (Citations
          omitted; emphasis in original; internal quotation marks
          omitted.) State v. Gore, supra, 342 Conn. 143–45.
             Based on the foregoing, in the present case, applica-
          tion of the Finan rule would lead to the same result that
          we have reached under the Gore standard. Specifically,
          given the witnesses’ strong familiarity with the defen-
          dant—which the defendant himself does not dispute—
          we would be obliged to conclude that, even under
          Finan, the trial court properly admitted the challenged
          testimony. Moreover, the witnesses’ testimony did not
          address, in violation of Finan and the pre-Gore version
          of § 7-3 of the Connecticut Code of Evidence, the ulti-
          mate issue in this case—namely, whether the defendant
          committed the offense—because the witnesses did not
          identify the defendant from the surveillance video foot-
          age depicting the assault; rather, the jury was left to
          conclude on its own whether, based on the totality of
          the state’s evidence, the defendant was the individual
          who assaulted the victim on the corner of Baltimore
          Street and Albany Avenue.13 See, e.g., State v. 

 (‘‘[The witness’] testimony
          that she recognized the defendant as depicted in the
            13
              This fact especially makes the holding in Finan limited to its facts and,
          thus, inapplicable to the present case, as the lay witnesses in Finan identified
          the defendant in surveillance video footage depicting the robbery itself. See
          State v. 

.
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          150                   JULY, 2022          

                                 State v. Davis

          photograph at issue was not tantamount to a legal opin-
          ion about his criminal culpability. The state’s case
          rested on circumstantial evidence and [the defendant’s]
          presence . . . on the bus . . . shortly after the vic-
          tim’s murder certainly was integral to the state’s theory
          of the case and to the issue of whether the defendant
          was criminally liable for the several offenses at issue
          in the case. [His] presence on the bus, however, did
          not directly shed light on his conduct at the victim’s
          residence, whether the defendant had the criminal
          intent related to the offenses with which he was
          charged, or whether he had entered into a conspiracy
          . . . . Thus, we do not conclude that his presence on
          the bus was the essence of the matters to be decided
          by the jury.’’). These two facts taken together compel
          the conclusion that the witnesses’ testimony in the pres-
          ent case was properly admitted under Finan, its prog-
          eny, and the pre-Gore version of § 7-3 of the Connecticut
          Code of Evidence, and, thus, the result in this appeal
          remains the same regardless of the rule applied.
            The judgment is affirmed.
            In this opinion the other justices concurred.