State v. Bennett , 324 Conn. 744 ( 2017 )

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STATE OF CONNECTICUT v. ERICK BENNETT
(SC 18862)
Rogers, C. J., and Palmer, McDonald, Espinosa and Robinson, Js.
Argued November 8, 2016—officially released March 14, 2017
Erick Bennett, self-represented, with whom was
James B. Streeto, senior assistant public defender, for
the appellant (defendant).
Marjorie Allen Dauster, senior assistant state’s attor-
ney, with whom, on the brief, were Michael Dearington,
former state’s attorney, and Elizabeth Baran, former
senior assistant state’s attorney, for the appellee (state).
Opinion
McDONALD, J. The defendant, Erick Bennett,
directly appeals to this court following his conviction
of murder in violation of General Statutes (Rev. to 2009)
§ 53a-54a. The defendant claims that there were numer-
ous defects in his trial, the principal of which was that
the trial court violated his constitutional right to present
a defense by improperly refusing either to issue a sum-
mons to secure the attendance of a material witness in
support of a theory of third-party culpability, or to allow
the defendant to introduce that witness’ statement to
the police in lieu of her live testimony.1 We conclude
that defense counsel’s failure to locate the out-of-state
witness with any reasonable degree of certainty pre-
cludes relief regarding the issuance of a summons for
the witness and that none of the defendant’s remaining
claims warrant reversal of the trial court’s judgment
of conviction.
The jury reasonably could have found the following
facts. On the evening of July 10, 2009, the victim, Willie
Brown, and his girlfriend, Veronica Arroyo, attended a
social gathering. Around 9 p.m., the defendant and his
sister, who were casual friends with Arroyo, picked up
Arroyo to go to Raffy’s Cafe´ Bar in Meriden.
Upon arriving outside the bar, Arroyo saw Christo-
pher Benjamin, a close friend of Brown’s, and greeted
him. Brown called Arroyo on her cell phone, and after
she told him that Benjamin was at the bar, Brown pre-
vailed upon Benjamin to pick him up and bring him
there despite Arroyo’s plea to Benjamin that he not do
so because she was concerned that Brown had been
drinking and would get into trouble.
After Brown arrived, he and Arroyo began to argue
while they and others stood in the parking lot behind
the bar. When they first started to argue, the defendant
came over and told Brown to ‘‘chill out,’’ which made
Brown angry. Benjamin stepped in between the two
men and the situation deescalated, but not before Benja-
min saw the defendant holding a pocketknife at his
side. After Arroyo and Brown recommenced arguing,
Benjamin walked over to the couple. Arroyo then began
hitting and cursing at Benjamin for bringing Brown to
the bar. Brown pried Arroyo away from Benjamin, but
then began arguing with Arroyo again in the vicinity of
the defendant. Benjamin heard the defendant state: ‘‘I’m
not here for this . . . . I don’t give a fuck. I’m going
[to] kill him. I don’t care.’’ The defendant then held a
knife up to Benjamin’s neck, threatening: ‘‘[I]f I really
wanted to kill you, I can right now.’’ Benjamin walked
away, and Arroyo and Brown momentarily stopped
arguing.
After a third argument commenced between Arroyo
and Brown, the defendant and Brown exchanged words.
The two men came face-to-face, and the defendant
pushed Brown to the ground. When Brown stood up,
the defendant stabbed him in the chest several times,
inflicting mortal wounds. Brown initially was able to
get to his feet, but stumbled around and then collapsed
to the ground. Benjamin heard a woman screaming and
ran over to Brown, becoming hysterical when he saw
how badly Brown was injured.
The defendant and his sister fled the scene in his
vehicle. He spent the night at his sister’s home and
left for New York City the following day, returning to
Meriden several weeks later.
The police obtained evidence inculpating the defen-
dant shortly after the crime. Arroyo and Benjamin gave
statements identifying the defendant as the person who
had stabbed Brown. Another witness to the incident,
Brandon Hogue, described the person who stabbed
Brown as a man in a red or purple polo shirt, which
was consistent with the clothing worn by the defendant
that night. Although the police did not recover the entire
knife, they found two thumb studs—the part of a folding
knife used to open the blade—in the defendant’s vehicle
with blood on them that was consistent with Brown’s
DNA profile.
The defendant testified at trial. He denied stabbing
Brown and claimed not to know who had done so
because he had been walking to his vehicle when the
stabbing occurred. The defendant suggested through
the testimony of the mother of several of his children
that the police had planted the knife thumb studs in
his vehicle.
The defendant attempted unsuccessfully to obtain
and introduce certain evidence in support of a theory
that Benjamin or some unidentified Spanish speaking
man or men had stabbed Brown, as well as evidence
of police bias against him. Following the jury’s verdict
of guilty on the murder charge, the defendant also
unsuccessfully sought permission to file a late motion
for a new trial on the basis of a newly published report
finding certain defective procedures in the state foren-
sic laboratory. Those rulings, as well as challenges to
the propriety of certain statements made by the prose-
cutor during cross-examination and closing arguments,
are the subject of the present appeal.
I
The defendant’s principal claim is that he was
deprived of his constitutional rights to present a defense
and to compulsory process insofar as he was unable
to offer testimony from Jennifer Matias, a witness in
support of his defense of third-party culpability, or Mat-
ias’ statement she made to the police. Specifically, the
defendant contends that the trial court improperly (1)
denied his request for a material witness warrant to
obtain Matias’ appearance from out of state, and (2)
denied admission of a recorded statement that Matias
had given to the police. We disagree.
The record reveals the following additional undis-
puted facts. Matias made a 911 call to the police regard-
ing the incident at Raffy’s Cafe´ Bar. When the police
arrived thereafter, she gave them a statement about
what had prompted the call. She went to the police
station approximately one hour later and gave a second
statement, which was recorded. In her recorded state-
ment, Matias provided the following account. Matias
was visiting her mother’s apartment, located across the
street from the bar, when she heard people yelling.
She went to the window and observed approximately
twenty people standing around behind the bar watching
a fistfight. Matias could not make out any features of
the people fighting because the only light was from the
bar, but she could see that there were three black men
involved in the fight: a man in a red shirt, a man in a
yellow shirt, and a man in a white shirt. Those descrip-
tions matched the clothing worn that night by the defen-
dant (red shirt), Benjamin (yellow shirt), and Brown
(white shirt). Matias heard one or more women yelling,
‘‘Don’t do it. . . . Gun. Oh, my God. A gun.’’ After
seeing the man in the yellow shirt push the man in the
white shirt to the ground, Matias left the window to
call 911. She then heard one or more gunshots, which
brought her back to the window. She observed the man
in the red shirt flee and drive away, while the man in
the yellow shirt knelt next to the man in the white
shirt on the ground. The man in the yellow shirt was
hysterical, and stated, ‘‘ ‘Oh, I killed him. I killed him.’ ’’
Defense counsel first alerted the trial court to con-
cerns about his ability to proffer Matias as a witness
as jury selection was about to commence. He explained
that Matias had called him after she learned that he
had mailed a subpoena to her residence, and had stated
‘‘that she had been contacted by several people over
the past few months and she did not want to take any
part in this case. She was told by a woman by the name
of ‘‘Beth’’—the name of the prosecutor—’’that she did
not have to do so if she didn’t want to. Also . . . she
[stated] that . . . [t]he Meriden Police Department
indicated that if anybody had called her or had spoken
to her about this case that they would take care of it.’’
Matias hung up without telling defense counsel where
she was. Defense counsel stated his intent to file a
motion on this matter.
Shortly thereafter, the defendant filed a motion in
limine seeking to admit the recorded interview that
Matias had given to the police. The defendant argued
therein that, because the police had failed to preserve
Matias’ 911 call,2 he should be permitted to introduce
the only recording preserving her version of the inci-
dent—i.e., the interview. In his memorandum in support
of the motion, dated May 31, 2011, defense counsel
noted that Matias had informed him that she would not
be returning to Meriden until June 6, 2011.
On June 9, 2011, the trial court informed counsel that
it was deferring a ruling on the motion in limine, noting
that defense counsel was still seeking to serve a sub-
poena on Matias. Defense counsel then requested that
the court ‘‘consider giving an order that the state issue
a material witness warrant’’ for Matias. He noted that
he had attempted to serve Matias with a subpoena at
her residence and at her mother’s residence, but was
unsuccessful because she was not in Connecticut. He
added that, without personally serving Matias, ‘‘[t]he
only other remedy at the defense’s disposal would be
to ask the court for a material witness warrant which
falls pursuant to, I believe, it’s [General Statutes §] 54-
84j3 and the state has the ability to ask for [one]. I do
not have that ability. So, I would request that the court
order the state to issue a material witness warrant for
. . . Matias.’’ (Footnote added.) The trial court
declined to rule on that request, noting that defense
counsel had indicated in his motion in limine that Matias
would be returning to Meriden on June 6, 2011, and
that he still had time to serve her with a subpoena, but
suggesting that counsel could renew his request if his
efforts were unsuccessful.
During the state’s case-in-chief, defense counsel
brought to the court’s attention that he had received
information from Matias and another person that Matias
was then in Puerto Rico and did not anticipate returning
to the state. Several days later, defense counsel renewed
his request for the court to order the state to issue a
material witness warrant for Matias. The trial court then
asked: ‘‘[T]hat is pursuant to [General Statutes §] 54-82j.
Is that correct, counsel?’’ Defense counsel answered,
‘‘That’s correct, Your Honor.’’ In response to ques-
tioning from the court, defense counsel conceded that
he knew of no case in which a court had ordered the
detention of a witness for a defendant pursuant to § 54-
82j, but claimed that fundamental fairness required that
he should have access to the same discovery tool avail-
able to the state. The trial court read the text of § 54-
82j on the record and then denied counsel’s request on
the following ground: ‘‘We don’t have an address for
[Matias]. There’s no case law that this court is aware
of and the statute is clear on its face that it is a written
complaint from the state’s attorney addressed to the
clerk. So this court does not have authority pursuant
to the statute to grant the request of defense counsel
. . . .’’
Shortly before the close of the state’s case-in-chief,
the court heard argument on the defendant’s motion in
limine seeking admission of Matias’ recorded statement
to the police. Defense counsel argued that the defen-
dant’s right to present a defense would be violated
unless the trial court admitted Matias’ statement incul-
pating Benjamin—the only evidence of her version of
events because of the state’s failure to preserve the 911
call and its fault in encouraging Matias’ absence at trial.
Defense counsel asserted that the statement was admis-
sible under the residual hearsay exception. In response,
the prosecutor explained that she had not told Matias
that she did not have to appear at trial, but instead had
only told her she did not have to speak with anyone
who was harassing her about the case. The prosecutor
argued that the statement was inadmissible under the
residual hearsay exception and contained many layers
of hearsay. After the prosecutor also suggested that
Matias should not be deemed unavailable because
defense counsel could have taken greater efforts to
travel out of state to serve her, counsel responded that
he ‘‘ha[d] no address for this witness in Puerto Rico’’
and that she was unwilling to provide such information.
The trial court denied the defendant’s motion on the
ground that the statement did not satisfy the residual
hearsay exception. The court put aside the issue of
reasonable necessity, resting its ruling on the ground
that her statement was not sufficiently trustworthy. The
court reasoned that Matias had not appeared at a proba-
ble cause hearing and, thus, her account had never been
subjected to cross-examination. The court also noted
that Matias’ statement was not corroborated by the
testimony of any of the other three eyewitnesses.
A
We begin with the defendant’s claim that he was
deprived of his right to present a defense insofar as the
trial court declined to issue a material witness warrant
to obtain Matias’ appearance. On appeal, the defendant
concedes that the proper statute for a defendant to
invoke to seek the court’s issuance of a certificate for
procuring out-of-state witnesses is General Statutes
§ 54-82i,4 and that § 54-82j, which was invoked before
the trial court, addresses the state’s right to have a
warrant issued on its behalf by the clerk of the court.
The defendant nevertheless contends that he preserved
his claim under § 54-82i because his request was suffi-
ciently clear to invoke the procedures of that statute,
a proposition that the state vigorously disputes. The
defendant alternatively seeks to prevail on an unpre-
served claim under State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989), or the plain error doctrine.
We conclude that the defendant’s inability to provide
a location for Matias with any reasonable degree of
certainty is fatal to his claim that his right to present
a defense was violated by the court’s failure to issue a
certificate to summon her from out of state.
At the outset, we note that, contrary to the defen-
dant’s contention, he did not make a generalized request
for the trial court to issue a material witness warrant.
Rather, defense counsel repeatedly affirmed in
response to unambiguous questions from the court that
he was asking the court to order the state to seek the
issuance of a material witness warrant under § 54-82j.
Although this court has recognized that it can be plain
error for a trial court to fail to apply a clearly applicable
statute, even if the parties do not bring it to the court’s
attention; see Genovese v. Gallo Wine Merchants, Inc.,
226 Conn. 475, 480 n.6, 628 A.2d 946 (1993); the situation
here is a step removed from that case law. In the present
case, the defendant repeatedly invoked the wrong stat-
ute and asked the court to take a different action (order-
ing action by the state), but to achieve an end that a
different statute plainly authorized—the court’s issu-
ance of a certificate summoning the out-of-state wit-
ness. We conclude that, irrespective of whether we
assume that our clear error case law extends to such
circumstances and that the trial court had adequate
notice of the defendant’s claim to render it preserved
for appellate review, his claim fails.
We agree with the defendant that the record is ade-
quate for review. Although the state correctly points
out that the trial court never made a predicate factual
finding that Matias would be a ‘‘material’’ witness, no
reasonable trier of fact could conclude otherwise. For
the reasons that follow, we further agree with the defen-
dant that the improper denial of the use of the proce-
dures set forth in § 54-82i for procuring out-of-state
material witnesses states a cognizable constitutional
claim.
The sixth amendment to the United States constitu-
tion provides in relevant part that ‘‘[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to
have compulsory process for obtaining witnesses in his
favor . . . .’’ The sixth amendment right to secure the
compulsory attendance of witnesses on one’s behalf
and the more general right to present a defense is appli-
cable to the states through the due process clause of
the fourteenth amendment. Washington v. Texas, 388
U.S. 14, 17–19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).
It is well settled, however, that a state court’s sub-
poena power is limited to the state’s borders. See
Minder v. Georgia, 183 U.S. 559, 562, 22 S. Ct. 224, 46
L. Ed. 328 (1902) (‘‘it is not within the power of the
Georgia courts to compel the attendance of witnesses
who are beyond the limits of the [s]tate’’). For this
reason, several state courts have recognized that the
sixth amendment right to compulsory process does not
give a defendant the right to compel the attendance
of witnesses from beyond the court’s jurisdiction. See
People v. Cavanaugh, 69 Cal. 2d 262, 265, 444 P.2d 110,
70 Cal. Rptr. 438 (1968), cert. denied, 395 U.S. 981, 89
S. Ct. 2139, 23 L. Ed. 2d 768 (1969); Commonwealth v.
Edgerly, 6 Mass. App. 241, 255 and n.6, 375 N.E.2d 1
(1978); State v. Closterman, 687 S.W.2d 613, 620 (Mo.
App. 1985); State v. Smith, 87 N.J. Super. 98, 102, 208
A.2d 171 (1965); People v. McCartney, 38 N.Y.2d 618,
621, 345 N.E.2d 326, 381 N.Y.S.2d 855 (1976); State v.
Blount, 200 Or. 35, 50, 264 P.2d 419 (1953), cert. denied,
347 U.S. 962, 74 S. Ct. 711, 98 L. Ed. 1105 (1954). It was
to fill in this gap that the 1936 Uniform Act to Secure
the Attendance of Witnesses from Without a State in
Criminal Proceedings was adopted in all fifty states, as
well as the Virgin Islands and the District of Columbia.
Unif. Act to Secure the Attendance of Witnesses from
Without a State in Criminal Proceedings, 11 U.L.A. 1–2
(West 2003) (table of jurisdictions wherein 1936 uni-
form act has been adopted); see also footnote 4 of this
opinion (Puerto Rico has adopted similar reciprocal
statute). Nevertheless, ‘‘[n]either the requirements of
compulsory process nor of the [f]ourteenth [a]mend-
ment . . . demand that [a] state enact such legislation.
. . . The operation of the [u]niform [a]ct depends upon
the principles of comity, and it has no efficacy except
through the adoption of the same act by another state.’’
(Citation omitted.) State v. Blount, supra, 50; accord
People v. Cavanaugh, supra, 266 n.3.
Other courts have recognized, properly in our view,
that when a defendant has the right to secure the atten-
dance of out-of-state witnesses through the uniform act,
the improper denial of the use of such procedures can
result in a violation of the defendant’s constitutional
rights to due process and to present a defense. See
Preston v. Blackledge, 332 F. Supp. 681, 684 (E.D.N.C.
1971); State v. Brady, 122 Ariz. 228, 230, 594 P.2d 94
(1979); Rivera v. District Court of Comanche County,
851 P.2d 524, 527 (Okla. 1993). Accordingly, we agree
with the defendant that, if he were improperly denied
the procedures in § 54-82i for compelling the attendance
of a material out-of-state witness, his constitutional
rights under the sixth and fourteenth amendments were
violated. Nonetheless, the defendant cannot establish
that the trial court improperly failed to grant his request
to summon Matias from out of state under § 54-82i.
Although we have not previously addressed this ques-
tion, other jurisdictions have considered the defen-
dant’s ability to locate the witness in assessing whether
the trial court abused its discretion in refusing to issue
process for an out-of-state witness. In the seminal case
on this issue, Lancaster v. Green, 175 Ohio St. 203, 205,
192 N.E.2d 776 (1963), the court observed: ‘‘Inasmuch
as a state’s process cannot extend beyond its borders,
and, thus, the state cannot as a matter of right compel
the attendance of a witness beyond its borders but
can only procure such witnesses by the voluntary co-
operation of another state, clearly the accused must be
able to designate the witness and his location with
exactitude before any duty devolves on the court to
initiate the complex judicial process necessary under
these acts to procure the attendance of out-of-state
witnesses.’’ Other jurisdictions have followed suit,
requiring the defendant to adequately designate the wit-
ness’ location. See, e.g., People v. Williams, 114 Mich.
App. 186, 201, 318 N.W.2d 671 (1982); State v. Smith,
supra, 87 N.J. Super. 105; State v. Tindall, 294 N.C. 689,
700, 242 S.E.2d 806 (1978).
When setting forth its reasons for denying the defense
request in the present case, the trial court first stated
that there was no address available for Matias. The
defendant previously had conceded to the court not
only that he lacked this information, but also that Matias
was unwilling to provide it. The only information known
to the defendant was that Matias was in Puerto Rico.
We do not intend to suggest that the defendant necessar-
ily was required to provide a residential street address.
The defendant, however, should have indicated to the
trial court that he had, or had some means by which
he would be able to obtain, information to ascertain
Matias’ location with a reasonable degree of specificity
that would allow service of the summons. He did not
so do. Cf. State v. Smith, supra, 87 N.J. Super. 105
(‘‘general reference to ‘Royer Run, Pennsylvania,’ with-
out any designation of where the witness might be found
therein, was not enough’’); State v. Green, Docket No.
1997CA00382, 1998 WL 347092, *4 (Ohio App. June 22,
1998) (defendant failed to satisfy burden when deputy
could not locate witnesses at address given and defen-
dant was unable to offer additional information regard-
ing their location). Nor did the defendant make any
representation to this court that he would have been
able to locate Matias had the certificate been issued.
Accordingly, the defendant cannot establish that the
trial court improperly failed to issue a certificate sum-
moning Matias.
B
The defendant alternatively claims that the trial court
infringed on his right to present a defense by improperly
denying admission of Matias’ recorded statement. The
defendant contends that the trial court should have
admitted the statement: (1) as a spontaneous utterance
because Matias provided the statement approximately
one hour after her 911 call; or (2) under the residual
hearsay exception because it bore the requisite indicia
of reliability and trustworthiness insofar as she was a
neutral, disinterested witness. We conclude that the
trial court did not abuse its discretion in declining to
admit this statement.
A defendant has a constitutional right to present a
defense, but he ‘‘is [nonetheless] bound by the rules of
evidence in presenting a defense. . . . Although exclu-
sionary rules of evidence cannot be applied mechanisti-
cally to deprive a defendant of his rights, the
constitution does not require that a defendant be per-
mitted to present every piece of evidence he wishes.’’
(Internal quotation marks omitted.) State v. Andrews,
313 Conn. 266, 275, 96 A.3d 1199 (2014). Accordingly,
‘‘[i]f the proffered evidence is not relevant [or consti-
tutes inadmissible hearsay], the defendant’s right to
confrontation is not affected, and the evidence was
properly excluded.’’ (Internal quotation marks omitted.)
State v. Devalda, 306 Conn. 494, 516, 50 A.3d 882 (2012);
see also State v. Hedge, 297 Conn. 621, 634–36, 1 A.3d
1051 (2010) (defendant has constitutional right to intro-
duce evidence of third-party culpability if it is relevant
and directly connects third party to crime); State v.
Tutson, 278 Conn. 715, 746–51, 899 A.2d 598 (2006) (no
violation of constitutional right to present defense when
trial court properly excluded evidence on hearsay
grounds).
We can quickly dispose of the defendant’s first evi-
dentiary basis for admitting the statement. We agree
with the state that the defendant’s argument that Matias’
recorded statement should have been admitted as a
spontaneous utterance is not entitled to review because
he did not seek admission of that statement on that
basis. Rather, he sought admission of Matias’ earlier
statement to the police at the scene under that hearsay
exception. The defendant does not challenge the exclu-
sion of Matias’ earlier statement or claim that he is
entitled to review of an unpreserved evidentiary claim
as to her later recorded statement. ‘‘Appellate review
of evidentiary rulings is ordinarily limited to the specific
legal [ground] raised by the objection of trial counsel.
. . . To permit a party to raise a different ground on
appeal than [that] raised during trial would amount to
trial by ambuscade, unfair both to the trial court and
to the opposing party.’’ (Citation omitted; internal quo-
tation marks omitted.) State v. Sandoval, 263 Conn. 524,
556, 821 A.2d 247 (2003). Accordingly, the defendant is
not entitled to review of his claim that Matias’ recorded
statement should have been admitted as a spontane-
ous utterance.
The defendant, however, is entitled to review of his
claim that the trial court improperly precluded admis-
sion of the statement under the residual hearsay excep-
tion, the ground on which he did seek its admission.
We review that decision for an abuse of discretion,
making every reasonable presumption in favor of
upholding the trial court’s ruling. See State v. Andrews,
supra, 313 Conn. 276; see also State v. Myers, 126 Conn.
App. 239, 247, 11 A.3d 1100 (‘‘[a] court’s conclusion as
to whether certain hearsay statements bear the requisite
indicia of trustworthiness and reliability necessary for
admission under the residual exception to the hearsay
rule is reviewed for an abuse of discretion’’ [internal
quotation marks omitted]), cert. denied, 300 Conn. 923,
14 A.3d 1006 (2011).
The legal principles guiding the exercise of the trial
court’s discretion regarding the admission of hearsay
evidence under the residual exception are well estab-
lished. ‘‘An [out-of-court] statement is hearsay when it
is offered to establish the truth of the matters contained
therein. . . . As a general rule, hearsay evidence is not
admissible unless it falls under one of several well estab-
lished exceptions. . . . The purpose behind the hear-
say rule is to effectuate the policy of requiring that
testimony be given in open court, under oath, and sub-
ject to cross-examination. . . . The residual, or catch-
all, exception to the hearsay rule allows a trial court
to admit hearsay evidence not admissible under any of
the established exceptions if: (1) there is a reasonable
necessity for the admission of the statement, and (2)
the statement is supported by the equivalent guarantees
of reliability and trustworthiness essential to other evi-
dence admitted under the traditional hearsay excep-
tions.’’ (Citations omitted; internal quotation marks
omitted.) State v. Oquendo, 223 Conn. 635, 664, 613
A.2d 1300 (1992); accord Conn. Code Evid. § 8-9. We
have recognized that ‘‘[t]he residual hearsay exceptions
[should be] applied in the rarest of cases . . . .’’ (Inter-
nal quotation marks omitted.) State v. McClendon, 248
Conn. 572, 585, 730 A.2d 1107 (1999), overruled in part
on other grounds by State v. Guilbert, 306 Conn. 218,
246–53, 49 A.3d 705 (2012).
The trial court rested its decision solely on the ground
that Matias’ statement lacked sufficient reliability and
trustworthiness. One factor supporting that conclusion
was that Matias had never been subjected to cross-
examination regarding the circumstances surrounding
her observations of the incident. A declarant’s availabil-
ity for cross-examination has been deemed particularly
significant in determining whether hearsay evidence is
supported by guarantees of trustworthiness and relia-
bility. Compare State v. Sharpe, 195 Conn. 651, 665,
491 A.2d 345 (1985) (concluding that residual hearsay
exception satisfied when, among other reasons, declar-
ant was available for cross-examination), with State v.
McClendon, supra, 248 Conn. 583–84 (concluding that
exception was not satisfied when, among other reasons,
declarant was not available for cross-examination),
State v. Oquendo, supra, 223 Conn. 668 (same), and
State v. Outlaw, 216 Conn. 492, 499, 582 A.2d 751 (1990)
(same). Matias conceded in her statement that the light-
ing was too limited to make out any distinguishing fea-
tures of the people at the scene. Matias was never
subject to cross-examination to further explore her abil-
ity to properly observe the events that she reported or
her ability to accurately hear the sounds and statements
that she had reported (i.e., how far she was from the
incident, whether she has any visual or hearing impair-
ments, whether there were obstructions or distractions
at the time). Cf. State v. Sharpe, supra, 665 (citing,
in addition to facts demonstrating that declarant was
disinterested witness with no reason to make false
statement to police regarding license plate number of
strange car observed at victim neighbor’s house, that
declarant ‘‘was a witness at the trial and available for
cross-examination as to his ability to perceive the
license plate and whether he wrote the number down
and related it accurately to [the police]’’).
Additionally, the evidence at trial not only failed to
materially corroborate Matias’ statement, it contra-
dicted her statement in part. See, e.g., State v. McClen-
don, supra, 248 Conn. 584 (report unreliable for these
reasons); State v. Heredia, 139 Conn. App. 319, 331, 55
A.3d 598 (2012) (offered testimony properly deemed
unreliable when it ‘‘constituted hearsay within hearsay
and was corroborated only by other hearsay statements
rather than established facts’’), cert. denied, 307 Conn.
952, 58 A.3d 975 (2013). None of the witnesses reported
hearing any gunshots, and Brown’s injuries were
inflicted by a knife. Matias’ report that a man in a yellow
shirt was kneeling beside the victim stating, ‘‘Oh, I killed
him. I killed him,’’ was consistent with the other wit-
nesses only insofar as they reported that Benjamin wore
a yellow shirt as he knelt by Brown; no one reported
that anyone had made statements remotely consistent
with that statement or any others recounted by Matias.
Given that Matias’ report of this inculpatory statement
constituted hearsay within hearsay, the lack of corrobo-
ration bore significantly on its indicia of reliability. See
State v. Heredia, supra, 331.
Accordingly, the trial court did not abuse its discre-
tion in concluding that Matias’ statement was not
imbued with guarantees of reliability and trustworthi-
ness sufficient to support its admission under the resid-
ual exception. Because the trial court’s evidentiary
ruling was not improper, the defendant’s claim of an
infringement on his constitutional right to present a
defense on this basis must fail. See State v. Davis, 298
Conn. 1, 11, 1 A.3d 76 (2010) (‘‘[i]f . . . we conclude
that the trial court properly excluded the proffered evi-
dence, then the defendant’s constitutional claims neces-
sarily fail’’).
II
The defendant next claims that the trial court
infringed on his right to present a defense when it
denied the admission of a statement made by Arroyo
to defense counsel’s investigator, offered as a prior
inconsistent statement under State v. Whelan, 200 Conn.
743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct.
597, 93 L. Ed. 2d 598 (1986). The defendant asserts that
the trial court improperly concluded that the statement
to the investigator was (1) unreliable because it had
been given to a person other than a police officer four-
teen months after the murder occurred, and (2) not
sufficiently inconsistent with Arroyo’s testimony and
her statement to the police. The state concedes that it
was improper for the trial court to deny admission of
Arroyo’s statement to the investigator as unreliable, but
asserts that it was proper to exclude it on the ground
that it was not sufficiently inconsistent with her testi-
mony. We agree with the state that the statement to
the investigator was not sufficiently inconsistent to sat-
isfy Whelan.
The record reveals the following additional undis-
puted facts and procedural history. On the afternoon
following the murder, Arroyo voluntarily came to the
Meriden Police Department to be interviewed. Arroyo
offered the following account in that interview, which
was videotaped. Arroyo stated: ‘‘I walked in the bar
with the guy . . . who did the stabbing; I was with him
and his sister.’’ She indicated that the defendant ended
up arguing with Brown because Brown was telling
Arroyo to stop hitting Benjamin, which prompted the
defendant to urge Brown to ‘‘be cool.’’ A crowd started
to form and ‘‘five guys’’ surrounded the defendant, but
they ‘‘backed away . . . [with] enough distance [such]
that it was just [Brown], [Arroyo], and [the defendant].’’
Once Brown and the defendant started arguing face-to-
face, Arroyo intervened, the defendant shoved her, and
she fell to the ground. Although she saw no weapons,
Arroyo said that the defendant was the closest person
to Brown when he began stumbling. As she observed
Brown collapse on the ground, Arroyo saw the defen-
dant get into his car with his sister. She ran up to
the car and asked the defendant, ‘‘What the hell did
you do?’’
Despite Arroyo’s subsequent reluctance to cooperate
with the state, the state called her as a witness during
its case-in-chief. In her trial testimony, Arroyo offered
an account of the incident that departed substantively
from her statement to the police. On direct examination,
she testified that after her physical confrontation with
Benjamin, she saw Brown surrounded by and arguing
with several men. Arroyo testified that she then pushed
Brown behind her, ‘‘telling the other guy to back up
and don’t even dare, because I don’t know who the
other guy was coming behind him.’’ Once the crowd
began to ‘‘move away,’’ she saw Brown stumbling
toward a car and then suddenly fall to his knees. She
denied seeing Brown and the defendant engaged in any
arguments or altercations, although she acknowledged
that she got in between the two ‘‘to try to break things
up.’’ She also indicated that the defendant was not near
Brown when he began stumbling, asserting that the
defendant was already making his way to his car. Arroyo
did not recall approaching the defendant after Brown
fell to the ground.
The state confronted Arroyo with inconsistencies
between her testimony and the recorded statement she
had given to the police the day after the murder. Arroyo
admitted that she remembered going to the police sta-
tion, but claimed that she had no recollection of what
she had told the police officers because she had been
intoxicated. She also testified that she had identified
the defendant as the person who committed the murder
because that was what she had ‘‘heard around the
streets’’ and who the detectives were saying committed
the murder. The state was then permitted, without
objection, to introduce Arroyo’s statement to the police
as a prior inconsistent statement under Whelan.
On cross-examination, Arroyo gave an account of the
incident that tended to inculpate Benjamin or other
unidentified third parties. Arroyo testified that Benja-
min was outside the bar with a man wearing a red
T-shirt when she arrived. Benjamin made ‘‘romantic
passes’’ at Arroyo before he knew that Brown would
be joining them. She saw Benjamin holding a ‘‘carrier
knife.’’ After Brown arrived, he ‘‘had a problem’’ with
‘‘[t]he guy at the juke box’’ who was wearing a red polo
shirt. When Arroyo confronted Benjamin about bringing
Brown to the bar, she overheard a ‘‘Spanish guy saying
stuff in Spanish and people just arguing . . . .’’ Arroyo
then observed Brown arguing with four or five men,
none of whom was the defendant. During the argument,
Brown fell to the ground, got back up, and then started
hyperventilating and ‘‘making fists.’’ When another
argument ensued, the defendant walked Arroyo away
from the fight and stated that he was leaving. Turning
back to the crowd, Arroyo saw Brown stumble and fall
to the ground. Although Arroyo did not see who stabbed
Brown, she denied that the defendant did it. She further
testified that when Brown was bleeding out, she asked
Benjamin for help but he walked away.
On redirect, the state asked Arroyo why she had never
told the police about ‘‘this alleged Spanish man’’ or
‘‘group of guys’’ with whom Brown was arguing. She
testified that she was not lying when she told the police
that the defendant was the person Brown stumbled
away from because that was what she thought at the
time. Arroyo stated that she realized one year later that
the defendant did not stab Brown and that he was not
the only person wearing a red shirt on the night of
the murder.
Thereafter, the defendant sought to admit a portion5
of the statement Arroyo gave to the investigator four-
teen months after the homicide as a prior inconsistent
statement under Whelan. The signed transcript of the
relevant excerpt of that statement provides: ‘‘[Brown]
was a little bit out of control because he even, like
pushed me away to the ground because I seen another
guy coming like behind him. So I grabbed him and
pushed him toward me and told the guy don’t even get
involved. I didn’t know who he was, I don’t remember
who he is, I know he was like Spanish looking but he
could’ve just been a light skinned—he was light
skinned. By this time everything was really crazy, I
know I fell to the ground like twice. While down on the
ground I don’t know what happened, I know I remember
seeing [Benjamin] screaming and, um, I remember
[Brown] half fell to the ground. And when [Brown] was
on the ground I seen [Benjamin] over him, I don’t know
what he was doing but after that Brown still got up
and on my left I can see [the defendant] and his sister
walking toward the car to leave, he was like, ‘I’m out
of here, I don’t want to deal with this mess.’ So he left.
I was there now alone. I see [Brown] walking toward
me . . . and he just . . . fell. He just fell to the floor
. . . .’’ Following the state’s objection, the court ruled,
inter alia, that the statement to the investigator was
not sufficiently inconsistent with Arroyo’s testimony to
satisfy Whelan.
The following principles guide our analysis of the
defendant’s claims. ‘‘In State v. Whelan, supra, 200
Conn. 753 . . . we adopted a hearsay exception
allowing the substantive use of prior written inconsis-
tent statements, signed by the declarant, who has per-
sonal knowledge of the facts stated, when the declarant
testifies at trial and is subject to cross-examination.
This rule has also been codified in § 8-5 (1) of the Con-
necticut Code of Evidence, which incorporates all of
the developments and clarifications of the Whelan rule
that have occurred since Whelan was decided.’’ (Inter-
nal quotation marks omitted.) State v. Simpson, 286
Conn. 634, 641–42, 945 A.2d 449 (2008).
‘‘The admissibility of evidence, including the admissi-
bility of a prior inconsistent statement pursuant to
Whelan, is a matter within the . . . discretion of the
trial court. . . . On review by this court, therefore,
every reasonable presumption should be given in favor
of the trial court’s ruling.’’ (Citation omitted; internal
quotation marks omitted.) State v. Pierre, 277 Conn.
42, 56, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S.
Ct. 2873, 165 L. Ed. 2d 904 (2006); see also State v.
Bruno, 236 Conn. 514, 554, 673 A.2d 1117 (1996)
(whether prior statement is in fact inconsistent is matter
to be determined within trial court’s discretion); State
v. Whelan, supra, 200 Conn. 748 n.4 (same).
‘‘In determining whether an inconsistency exists, the
testimony of a witness as a whole, or the whole impres-
sion or effect of what has been said, must be examined.
. . . Inconsistency in effect, rather than contradiction
in express terms, is the test for admitting a witness’
prior statement . . . . A statement’s inconsistency
may be determined from the circumstances and is not
limited to cases in which diametrically opposed asser-
tions have been made.’’ (Citations omitted; internal quo-
tation marks omitted.) State v. Whelan, supra, 200 Conn.
748–49 n.4. ‘‘Inconsistencies may be shown not only by
contradictory statements, but also by omissions.’’ Id.,
748 n.4; see also Falls v. Loew’s Theatres, Inc., 46 Conn.
App. 610, 615, 700 A.2d 76 (1997). Finally, ‘‘the inconsis-
tency must be substantial and relate to a material mat-
ter.’’ State v. Piskorski, 177 Conn. 677, 710, 419 A.2d
866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed.
2d 194 (1979), superseded by statute on other grounds
as stated in State v. Canady, 187 Conn. 281, 283–84,
445 A.2d 895 (1982); accord State v. Christian, 267
Conn. 710, 756, 841 A.2d 1158 (2004), superseded by
statute on other grounds as stated in State v. Davalloo,
320 Conn. 123, 140, 128 A.3d 492 (2016).
Insofar as the defendant claims that the relevant com-
parison is between Arroyo’s statement to the investiga-
tor and her statement to the police, he has cited no
legal authority for the proposition that Whelan permits
the admission of a statement that is inconsistent with
another statement made by the declarant that was
admitted pursuant to Whelan. To the contrary, we have
always analyzed whether the prior statement is incon-
sistent with the declarant’s testimony at trial. See State
v. Whelan, supra, 200 Conn. 748 n.4 (‘‘[i]n determining
whether an inconsistency exists, the testimony of a
witness as a whole, or the whole impression or effect
of what has been said, must be examined’’ [emphasis
added]). Moreover, the defendant’s proposed applica-
tion of Whelan would subvert long-standing rules
regarding the limited admissibility of prior consistent
statements. If, for example, the declarant’s proffered
prior statement is inconsistent with another prior state-
ment previously admitted but is largely consistent with
the declarant’s trial testimony, admitting the former
pursuant to Whelan would, in effect, be admitting a
prior consistent statement for substantive purposes.
‘‘As a general rule, a witness’ prior consistent state-
ments are inadmissible at trial. . . . Such statements
clearly are barred by the hearsay rule if sought to be
used to prove the truth of the matters asserted therein
. . . .’’ (Citations omitted; internal quotation marks
omitted.) State v. Valentine, 240 Conn. 395, 412, 692
A.2d 727 (1997); accord Conn. Code Evid. § 6-11 (a).
Even when a prior consistent statement is admitted
under an exception to the general rule, the statement
is admitted to affect credibility only and not to establish
its truth. State v. Valentine, supra, 413. Thus, the trial
court properly limited its comparison to Arroyo’s testi-
mony at trial in determining if her statement to the
investigator was sufficiently inconsistent to permit its
admission pursuant to Whelan.
We consider in turn the inconsistencies identified by
the defendant to the trial court as the basis for the
admission of Arroyo’s statement to the investigator.
The defendant identified Brown’s behavior as one such
inconsistency. In her statement to the investigator,
Arroyo described him as ‘‘a little bit out of control
. . . .’’ In her trial testimony, Arroyo acknowledged that
she had expressed a concern about Brown getting into
trouble if he came to the bar because he had been
drinking. Arroyo testified that after Brown arrived, he
became upset with a man standing near the juke box
and engaged in arguments with both Benjamin and a
group of men. Finally, according to Arroyo, after Brown
got up from the ground amid his argument with the
group of men, he was hyperventilating and ‘‘making
fists.’’ Thus, we conclude that the statement to the inves-
tigator was not materially inconsistent with Arroyo’s
testimony on this matter.
The defendant also identified Arroyo’s description of
the location of a ‘‘light skinned,’’ ‘‘Spanish looking’’ man.
In her statement to the investigator, Arroyo indicated
that a man with those features came up behind Brown,
at which point she ‘‘grabbed [Brown] and pushed him
toward [her] and told the guy don’t even get involved.’’
At trial, Arroyo testified that she heard a ‘‘Spanish guy
saying stuff in Spanish and people just arguing’’ right
before she observed Brown arguing with four or five
men. She further testified that she ‘‘remember[ed] push-
ing [Brown] behind [her] and telling the other guy to
back up and don’t even dare, because [she did not]
know who the other guy was coming behind him.’’ On
redirect, she acknowledged that Brown had gotten into
an argument with a Spanish man. Although there are a
few nonmaterial distinctions, there is not a material
inconsistency with regard to this aspect of her state-
ment to the investigator.
The defendant also pointed to Arroyo’s description
of Benjamin’s behavior at or near the time of the stab-
bing. In her statement to the investigator, Arroyo
described Benjamin as ‘‘screaming’’ near Brown, Brown
‘‘half’’ falling to the ground, and Benjamin standing over
Brown before Brown initially got up. Arroyo did not
identify where Benjamin was after Brown got up.
Arroyo did not testify to any of these facts at trial.
Nevertheless, we do not agree that this omission alone
required admission of the statement to the investigator.
First, it is unclear what significance this portion of
Arroyo’s statement to the investigator has to determin-
ing whether the defendant or another person committed
the murder. See State v. Piskorski, supra, 177 Conn.
710 (‘‘inconsistency must be substantial and relate to
a material matter’’). It does not tend to establish that
Benjamin had caused Brown to fall to the ground, or
more importantly, that Benjamin was next to Brown
when he was stabbed and fell the final time. Second,
Arroyo’s statement to the investigator was not inconsis-
tent with her testimony that several people were stand-
ing next to Brown before he was stabbed. Although her
testimony did not indicate who was there, she testified
that the defendant was not one of them. Consequently,
the overarching effect of her testimony and her state-
ment to the investigator was the same—although she
did not know who stabbed Brown, she was certain
that the defendant was not in Brown’s vicinity when it
occurred and, therefore, could not have stabbed him.
Finally, to the extent defense counsel asserts that
Arroyo’s statement to the investigator ‘‘critically’’ noted
that Benjamin was trying to hit on her prior to Brown’s
arrival at the bar, that portion of Arroyo’s statement
was not included in the proffer to the trial court. See
footnote 5 of this opinion. In any event, because Arroyo
testified that Benjamin was making ‘‘romantic passes’’
at her, that part of her statement was not inconsistent
with her testimony.
On the basis of the foregoing, we conclude that the
trial court did not abuse its discretion in deeming
Arroyo’s statement to the investigator insufficiently
inconsistent with her trial testimony to be admitted
pursuant to Whelan. Accordingly, the defendant’s claim
that the failure to admit this statement violated his right
to present a defense necessarily fails. See State v. Davis,
supra, 298 Conn. 11.
III
The defendant next claims that the trial court abused
its discretion in failing to disclose the personnel files
of several police officers who were involved in the
murder investigation and who testified at trial. Specifi-
cally, the defendant contends that the trial court abused
its discretion in concluding, after reviewing the confi-
dential records in camera, that no information con-
tained therein was probative of those officers’ ability
to know and correctly relate the truth. Our review of
the record reveals, however, that the defendant miscon-
strues the basis of the trial court’s decision. The trial
court concluded that an in camera review was not war-
ranted because the defendant had failed to make the
requisite preliminary showing that the records would
shed some light on the officers’ ability to testify truth-
fully. The defendant has not challenged the trial court’s
conclusion that he failed to meet this preliminary bur-
den for in camera review. Accordingly, the defendant
is not entitled to review of this claim.
IV
The defendant also claims that the trial court improp-
erly limited his cross-examination of Officer Con-
stantina Benzi of the Meriden Police Department
concerning the defendant’s past interactions with that
police department that may have biased Benzi or other
police witnesses against the defendant. We disagree.
At trial, Benzi testified that on the morning after the
murder, Arroyo entered the Meriden police station
while Benzi was working at the front desk. She further
testified that Arroyo gave her a photograph and identi-
fied the person therein as the defendant’s sister, which
in turn prompted Benzi to put Arroyo in contact with
one of the detectives working on the investigation.
Benzi had no other involvement with the case, and
Arroyo corroborated Benzi’s testimony.
Prior to Benzi’s cross-examination, defense counsel
informed the court that he intended to question Benzi
about a complaint, later deemed unsubstantiated, that
the defendant had filed against Benzi three years before
the murder regarding her response to a complaint of
dog fighting in the defendant’s yard that ultimately
resulted in an injury to one of the dogs. The trial court
allowed defense counsel to inquire on cross-examina-
tion whether Benzi was biased against the defendant,
but denied counsel’s request to inquire whether other
police officers were aware of the complaint from news
coverage, or otherwise, on the ground that those inquir-
ies were not relevant to establish the bias of other
officers.
We conclude that the trial court did not abuse its
discretion in limiting cross-examination of Benzi. Nei-
ther the existence of the complaint nor its publication
gave rise to a reasonable factual basis to inquire of Benzi
whether a department wide bias against the defendant
existed. See, e.g., State v. Isabelle, 107 Conn. App. 597,
607, 946 A.2d 266 (2008) (explaining proffering party’s
obligation to establish relevancy of impeachment evi-
dence by laying proper foundation, and noting that
‘‘[n]one of the evidence in the defendant’s proffer, or
in the record as a whole, provided a factual basis to
conclude that a [department wide] bias against the
defendant had existed among the Bethel police, and
the defendant failed to state a good faith belief that
such bias had existed’’). Moreover, the introduction of
such testimony potentially would have confused the
issues of the case, creating a trial within a trial on the
collateral issue of the propriety of Benzi discharging her
firearm during the incident. See id. (‘‘[i]t is a reasonable
exercise of judicial discretion to exclude . . . evidence
the relevancy of which appears to be so slight and
inconsequential that to admit it would distract attention
which should be concentrated on vital issues of the
case’’ [internal quotation marks omitted]).
V
The defendant next claims that the trial court improp-
erly denied his request for an evidentiary hearing on
his motion for permission to file a late motion for a
new trial. We disagree.
On June 29, 2011, the jury returned its verdict. In
August, 2011, the defendant filed a motion for permis-
sion to file a late motion for a new trial on the basis
of a report issued by the National Institute of Justice
and National Forensic Science Technology Center on
July 13, 2011. That report was issued after an external
audit was conducted of the state forensic science labo-
ratory on July 11 through July 13, 2011, which con-
cluded, among other findings, that the state laboratory
was not using ‘‘validated methods for DNA analyses.’’
The defendant argued that he properly sought relief via
a motion for a new trial, not a petition for a new trial,
because the results of the external audit constituted
‘‘recently disclosed,’’ not newly discovered, evidence.
Counsel then requested an evidentiary hearing on this
matter, asserting that ‘‘[t]here’s been several reports
out there that information was disclosed to the state’s
[a]ttorney’s office [and] the governor’s office’’ before
the verdict was returned. The trial court declined to
order an evidentiary hearing, denying the motion on
the ground that the report of the audit results consti-
tuted newly discovered evidence that must be presented
by way of a petition for a new trial pursuant to Practice
Book § 42-55.
Initially, we reject the defendant’s attempt to recast
his claim on appeal as a violation of Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
See id., 87 (requiring new trial if state fails to disclose
material exculpatory evidence). The defendant neither
raised a Brady claim in his motion for a new trial nor
advanced it at oral argument on the motion. The defen-
dant also has not briefed a Brady claim as an unpre-
served issue under Golding. Accordingly, we review
the trial court’s denial of the defendant’s request for an
evidentiary hearing for an abuse of discretion. See State
v. Nguyen, 253 Conn. 639, 653, 756 A.2d 833 (2000).
We discern no error in the trial court’s conclusion
that the defendant’s purported offer of proof was insuf-
ficient to trigger the need for an evidentiary hearing.
The defendant sought a new trial on the basis of the
issuance of a report containing findings made from
an audit, all of which occurred after the verdict was
returned, not on the basis of the state’s purported
knowledge during trial that an external audit was going
to be conducted. Indeed, nothing in the report indicates
that the procedural defects identified therein were
known or suspected at the time of trial. Accordingly,
once the court properly concluded that the external
audit results constituted newly discovered evidence, it
lacked authority to consider the relief sought by the
defendant in his motion pursuant to Practice Book § 42-
53. See generally State v. Gonzalez, 106 Conn. App.
238, 261–62, 941 A.2d 989 (distinguishing procedures
required to initiate petition for new trial from those for
motion for new trial), cert. denied, 287 Conn. 903, 947
A.2d 343 (2008).
VI
Finally, we address the defendant’s claim that prose-
cutorial improprieties in cross-examination and closing
arguments deprived him of a fair trial. Having under-
gone a thorough review of the record in light of the
parties’ arguments, we conclude that only one of the
defendant’s claimed improprieties merits discussion.
Specifically, the defendant contends that the prosecu-
tor’s closing argument improperly characterized
defense counsel’s strategy in a manner suggesting that
he was attempting to mislead the jury. The state
acknowledges that the comments identified are similar
to ones that we deemed improper in State v. Albino, 312
Conn. 763, 776–78, 97 A.3d 478 (2014), but nevertheless
argues that the circumstances are distinguishable. We
agree with the state and take this opportunity to explain
the distinction.
The record reveals the following additional facts.
Two police officers watched over the defendant’s vehi-
cle while a warrant was being procured to search it.
The defendant elicited testimony from the mother of
several of his children that she had observed those two
police officers open the door and enter the vehicle
before the warrant was issued. The defendant
attempted to use this testimony to support his theory
that the police officers had planted the knife thumb
studs in his vehicle. In her rebuttal argument, the prose-
cutor described this evidence as ‘‘just another thing to
throw at you [the jury] in a case where the evidence
against the defendant is overwhelming.’’ She added:
‘‘Do you notice those detectives that sat on the car were
never asked about that when they were on the stand.
Now, if there were really, really something you want
to air out and get out in the open, wouldn’t you vigor-
ously go after them? Not if you don’t want to hear the
answer. You want to be able to boom, pop it on the
jury and see what sticks.’’ (Emphasis added.)
It is well settled that ‘‘the prosecutor, as a public
official seeking impartial justice on behalf of the people
of this state, has a heightened duty to avoid argument
[or questioning] that strays from the evidence or diverts
the jury’s attention from the facts of the case.’’ (Internal
quotation marks omitted.) State v. Albino, supra, 312
Conn. 772. Nonetheless, ‘‘in evaluating claims of impro-
priety during summation, we recognize that the privi-
lege of counsel in addressing the jury should not be too
closely narrowed or unduly hampered . . . .’’ (Internal
quotation marks omitted.) State v. O’Brien-Veader, 318
Conn. 514, 548, 122 A.3d 555 (2015). ‘‘Thus, as the state’s
advocate, a prosecutor may argue the state’s case force-
fully, [provided the argument is] fair and based upon
the facts in evidence and the reasonable inferences to
be drawn therefrom. . . . Moreover, [i]t does not fol-
low . . . that every use of rhetorical language or device
[by the prosecutor] is improper. . . . The occasional
use of rhetorical devices is simply fair argument.’’
(Internal quotation marks omitted.) State v. Ciullo, 314
Conn. 28, 37, 100 A.3d 779 (2014).
In Albino, we concluded that the prosecutor improp-
erly had characterized defense counsel’s strategy in a
manner to suggest that he employed tactics intended
to mislead the jury by (1) analogizing the strategy to
an octopus’ defense mechanism of shooting ink into
the water to attempt to muddy the waters, and (2)
referring to the strategy as a ‘‘ ‘shotgun approach. You
shoot it against the wall and you hope that something
will stick.’ ’’ State v. Albino, supra, 312 Conn. 776–77.
Notably, in deeming the argument improper, we focused
principally on the first comment and noted its similarity
in effect to language we deemed improper in State v.
Maguire, 310 Conn. 535, 557, 78 A.3d 828 (2013), in
which the prosecutor described the defense strategy
as using ‘‘smoke and mirrors.’’ State v. Albino, supra,
777–78. In Maguire, that phrase, like the improper octo-
pus analogy, ‘‘was compounded by, inter alia, state-
ments that defense counsel . . . had attempted to
sidetrack the jury through misdirection and by all of
the stuff that he tried to throw against the wall during
his closing remarks to the jury.’’ (Internal quotation
marks omitted.) Id., 778. We underscored that there is a
distinction between improper argument that disparages
the integrity or role of defense counsel and proper argu-
ment that disparages a theory of defense. See id., 776,
citing State v. Orellana, 89 Conn. App. 71, 101, 872 A.2d
506, cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005).
The comments we deemed improper in Albino and
Maguire fell into the former category, constituting a
broad disparagement of the defense strategy untethered
to any specific facts or evidence.
Conversely, in the present case, the prosecutor’s com-
ment did not imply that defense counsel had employed
some artifice to deceive the jury. Rather, the prosecu-
tor’s statements were directed at evidence that the
defendant claimed lent support to his theory that the
officers had planted the thumb studs. It was fair argu-
ment for the prosecutor to point out, albeit with rhetori-
cal flourish, that defense counsel had declined to
question the officers about their conduct because such
questioning might have yielded testimony that contra-
dicted his witness or otherwise undermined his theory.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The defendant has asserted various claims under both the state and
federal constitutions, but he has not provided an independent analysis of
the former in accordance with State v. Geisler, 222 Conn. 672, 684–86, 610
A.2d 1225 (1992). Therefore, we deem abandoned any state constitutional
claims. See, e.g., Barros v. Barros, 309 Conn. 499, 507 n.9, 72 A.3d 367 (2013)
(‘‘we will not entertain a state constitutional claim unless the defendant has
provided an independent analysis under the particular provisions of the
state constitution at issue’’ [internal quotation marks omitted]).
2
The parties stipulated that the failure to preserve the 911 call was due
to the fact that the Meriden Police Department’s telephone monitoring sys-
tem had suffered ‘‘a complete shutdown’’ for several days, including the
night of the murder, causing the loss of recordings for all incoming and
outgoing calls.
3
It is evident that the defendant meant General Statutes § 54-82j, not § 54-
84j, a point that the trial court later clarified.
4
General Statutes § 54-82i (c) provides in relevant part: ‘‘If a person in
any state, which by its laws has made provision for commanding persons
within its borders to attend and testify in criminal prosecutions . . . is a
material witness in a prosecution pending in a court of record in this state
. . . a judge of such court may issue a certificate under the seal of the
court, stating such facts and specifying the number of days the witness will
be required. Such certificate may include a recommendation that the witness
be taken into immediate custody and delivered to an officer of this state
to assure the attendance of the witness in this state. Such certificate shall
be presented to a judge of a court of record in the judicial district in which
the witness is found. . . .’’
Puerto Rico has adopted a reciprocal statute allowing for the summoning
of witnesses to testify in another state or territory in pending criminal
prosecutions. See P.R. Laws Ann. tit. 34, § 1471 (2016).
General Statutes § 54-82j provides in relevant part: ‘‘Upon the written
complaint of any state’s attorney addressed to the clerk of the superior
court for the judicial district wherein such state’s attorney resides, alleging
(1) that a person named therein is or will be a material witness in a criminal
proceeding then pending before or returnable to the superior court for such
judicial district, and in which proceeding any person is or may be charged
with an offense punishable by death or imprisonment for more than one
year, and (2) that the state’s attorney believes that such witness is likely to
disappear from the state, secrete himself or otherwise avoid the service of
subpoena upon him, or refuse or fail to appear and attend in and before
such superior court as a witness, when desired, the clerk or any assistant
clerk of the court shall issue a warrant addressed to any proper officer or
indifferent person, for the arrest of the person named as a witness, and
directing that such person be forthwith brought before any judge of the
superior court for such judicial district, for examination. . . .’’
5
The defendant argues for the first time in his reply brief that the entire
statement to the investigator was offered to contradict Arroyo’s testimony
regarding Benjamin’s behavior. The record is clearly to the contrary. Defense
counsel specifically requested ‘‘a portion’’ of that statement be admitted
under Whelan, and identified the beginning and ending points of the portion
of that statement that he sought to be admitted: ‘‘[T]he sixth line down,
beginning [Brown] was a little bit out of control. I’m claiming down to the
end of that answer in response where [she] says he just fell on the floor.’’