State v. Komisarjevsky ( 2021 )

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STATE OF CONNECTICUT v. JOSHUA
KOMISARJEVSKY
(SC 18973)
Robinson, C. J., and Palmer, D’Auria, Mullins,
Ecker, Alvord and Keller, Js.*
Syllabus
Convicted of numerous crimes, including six counts of capital felony, in
connection with the invasion of the P family home in the town of
Cheshire that resulted in a triple murder, sexual assaults, kidnappings,
and arson, the defendant appealed to this court. The defendant, along
with his accomplice, S, entered the home around 2 a.m. and proceeded
to tie up the members of the P family, which consisted of J, her husband,
W, and their daughters, H and M. Discovering that there was no money
in the house, and concerned that his and the defendant’s DNA would
be found there, S drove J’s car to a nearby gas station to buy gasoline
and then, around 9 a.m., took J to a bank so she could withdraw a large
sum of cash. While S was gone, the defendant sexually assaulted M and
took sexually explicit photographs of her with his cell phone. After
returning to the home, S sexually assaulted J and strangled her to death.
Upon realizing that W was escaping and that the police, responding to
a 911 call from the bank, were surrounding the house, S poured gasoline
throughout the home, ignited it, and fled with the defendant in J’s car.
The defendant and S crashed the vehicle and were apprehended, while
H and M perished in the ensuing fire. S was tried first and convicted.
Prior to the defendant’s trial, the defendant filed a motion to change
the venue from the judicial district of New Haven, arguing that the
pretrial publicity surrounding his case, exacerbated by coverage of S’s
trial, would prevent him from empaneling an impartial jury. The trial
court denied the motion. The jury returned a guilty verdict, and the trial
court rendered judgment in accordance with the verdict, from which
the defendant appealed to this court. Held:
1. The trial court did not violate the defendant’s right to a fair trial by an
impartial jury in denying his motion to change the venue from the judicial
district of New Haven or in denying his challenges for cause to twelve
prospective jurors:
a. There was no merit to the defendant’s claim that the pretrial publicity
surrounding his case created an irrebuttable presumption of prejudice
that would have required moving the trial from New Haven, because,
although certain factors relevant to determining whether prejudice
should be presumed favored the defendant, namely, the nature of the
media coverage and whether the passage of time had alleviated the
impact of the prejudicial publicity, the extensive jury selection process
employed by the trial court in this case, along with the characteristics
of New Haven’s population, strongly favored the state with respect to
whether to presume prejudice: certain media coverage of the incident,
particularly remarks from a state senator calling for the defendant to
be hanged in the street by his genitalia and commentary from a bipartisan
array of state politicians citing the home invasion in support of the death
penalty, evoked the sort of community wide rush to judgment that can
trigger a presumption of prejudice, and, because the defendant’s case
was tried only several months after S was convicted and sentenced, the
passage of time between the home invasion and the defendant’s trial
did not mitigate the impact of that prejudicial publicity; nevertheless,
when compared to other geographic regions that courts have considered
sufficiently populous to permit the selection of an impartial jury, the
size and diversity of New Haven, which had an urban and suburban
population of 846,000 at the time of trial, greatly increased the feasibility
of identifying an impartial jury, and the jury selection process in the
present case, which allowed the attorneys for the state and the defendant
to assess each prospective juror’s familiarity with the case and ability to
render an impartial verdict, which afforded each party forty peremptory
challenges instead of the minimum thirty required in capital cases, and
which left open the possibility of a change in venue in the event that
individual voir dire did not result in the empaneling of an impartial jury
in New Haven, outweighed the inflammatory nature of the publicity
associated with the case such that the defendant failed to surmount the
extremely high bar necessary to establish the existence of presump-
tive prejudice.
b. The extensive pretrial publicity surrounding the defendant’s case did
not result in actual prejudice that deprived the defendant of a fair trial, as
the voir dire process by which the jury was selected was constitutionally
adequate: the individual voir dire process did not consist of the blind
acceptance of prospective jurors’ assurances of impartiality but involved
a lengthy and thorough probing of their responses to questions by the
state, the defendant, and the trial court, the defendant did not exhaust
his peremptory challenges until the voir dire of the backup alternate
jurors, after the regular and alternate jurors had been selected, or chal-
lenge for cause any juror who actually deliberated in his case, and the
trial court implemented thorough measures to ensure the jury’s continued
impartiality through daily admonishments counseling the avoidance of
any publicity; moreover, a detailed, juror by juror analysis of the jury
selection record, which focused on the extent of each juror’s exposure
to pretrial publicity and its effect on his or her case knowledge and
impartiality, revealed that each juror who deliberated at trial and sentenc-
ing repeatedly expressed his or her ability to be fair and impartial, to
apply the appropriate burden of proof and the presumption of innocence,
and not to be swayed by sympathy or to be affected emotionally after
viewing disturbing evidence; furthermore, the fact that some of the jurors
expressed sympathy for W and the P family did not indicate that they
were so impartial that they could not set aside their impressions to
return a verdict on the basis of the evidence, none of the jurors was
personally affected by the events at issue, and the fact that several
prospective jurors lost their composure and made inappropriate out-
bursts, including crying openly in court and making menacing comments
about or toward the defendant, did not deprive the defendant of a fair
trial because the trial court questioned the prospective jurors who had
witnessed the outbursts to ensure that the outbursts would not affect
the jurors’ impartiality; accordingly, in light of the deference appellate
courts afford to a trial court’s assessment of the impact of pretrial
publicity on juror impartiality, this court concluded that the trial court
had correctly determined that the pretrial publicity did not result in
actual jury prejudice.
c. The defendant could not prevail on his claim that the trial court
had abused its discretion in denying his challenges for cause to twelve
potential jurors because any error was harmless; an improper denial of
a for cause challenge is not prejudicial unless the defendant shows that
the ruling resulted in an identifiable, objectionable juror actually serving
on the jury that decided the case, and none of the twelve jurors that the
defendant challenged for cause actually deliberated on his case or
decided his guilt.
2. The trial court did not abuse its discretion in denying the defendant’s
motions for a continuance, to reopen the evidence, and for a mistrial,
which were all based on his contention that the state had improperly
failed to disclose until after the close of evidence approximately 130
pages of letters written by S while S was incarcerated, as there was no
miscarriage of justice or prejudice resulting from the late disclosure of
the letters: even if the letters, which, according to the defendant, con-
tained S’s admissions that he was the mastermind behind the home
invasion and that he previously had raped, tortured, and murdered seven-
teen other women and girls, were admissible, nothing contained therein
was exculpatory or directly supported the defendant’s theory that he
did not intend for anyone to be killed, as the letters indicated that the
home invasion was a joint venture and contradicted certain theories of
defense proffered at trial, namely, that the defendant did not engage in
anal intercourse with M and that it was S who had poured the gasoline
throughout the house; moreover, the trial court properly found that the
letters likely would have reinforced the basis for a guilty verdict and
would have served to establish certain aggravating factors needed to
secure a death sentence during the penalty phase.
3. The defendant could not prevail on his claim that the state had violated
his due process rights under Brady v. Maryland (373 U.S. 83) by failing
to disclose recordings of certain communications made by various
Cheshire police officers during and after the response to the home
invasion:
a. The trial court correctly determined that it was the defendant’s burden
to prove, by a preponderance of the evidence, the existence of a police
communications log, which J’s sister, C, claimed to have received via
e-mail several months after the home invasion and which purportedly
established that police officers were present at the P home when S
and J returned from the bank, the preponderance standard having been
consistent with the one required by federal and sister state courts for a
defendant to prove the existence of purported Brady evidence and with
the standard used by Connecticut courts to make other preliminary
determinations of fact involving a defendant’s constitutional rights; more-
over, the trial court did not commit clear error in finding that the defen-
dant had failed to prove the existence of the e-mail or the communications
log it contained by a preponderance of the evidence because, even though
the trial court found that the testimony of C was credible and that she
had no motive to help the defendant by fabricating evidence, C had
deleted the e-mail and lost her only printout of it, making it impossible
to determine its provenance, C did not know who sent the e-mail, a
search of the Cheshire Police Department’s records did not reveal a
corresponding communication, despite C’s belief that someone from the
department had sent it, and the log had not been turned over to the
defense; furthermore, any error on the part of the trial court in sustaining
the state’s objection, during an evidentiary hearing, to a question about
whether the e-mail appeared to have been created by the police was
harmless.
b. Certain undisclosed communications regarding the Cheshire Police
Department’s response to the bank’s 911 call, which the parties agreed
constituted impeachment evidence insofar as it supported the defen-
dant’s theory that the testifying officers’ embarrassment over the alleg-
edly inadequate response colored their testimony, were not material,
and, therefore, the state’s failure to disclose them did not violate Brady;
none of the communications would have impeached the veracity of the
officers who testified with respect to the principal issues disputed during
the guilt phase of the trial, namely, whether the defendant committed
an anal sexual assault of M and his intent to kill J, H, and M, as DNA
evidence recovered from M’s body provided overwhelming support for
the jury’s verdict with respect to the defendant’s sexual assault of M,
any inadequacy in the police response bore no relation to the defendant’s
theory that the DNA had been contaminated by a laboratory technician,
and none of the circumstantial evidence on which the state relied to
prove the defendant’s intent depended in any way on the observations
or veracity of the officers who testified.
c. Statements made by certain police officers describing the defendant
as ‘‘simple as they come’’ and ‘‘nobody home,’’ and S as looking ‘‘evil,’’
were not material for Brady purposes: the officer who described the
defendant’s demeanor observed the defendant only fleetingly in a police
station hallway and took no part in the response to the home invasion,
the investigation, or any interviews with the defendant, and it was not
reasonably likely that the officer’s testimony would have influenced the
jury on the issue of the defendant’s demeanor in light of more probative
evidence in the record, namely, a detective’s testimony that the defendant
was emotionless following his arrest and the recording of the defendant’s
statement to the police; moreover, the statement describing S as looking
evil was a casual observation that, in the absence of anything further,
did nothing to inform the jury’s assessment of what actually happened
in the P residence or to support the defendant’s theory that S was the
mastermind behind the home invasion and that the defendant wanted
no part in killing J, H, or M.
4. There was no merit to the defendant’s claim that the state had violated
his due process right to a fair trial by presenting evidence that it knew
or should have known to be false or misleading, namely, the testimony
of an expert witness, B, that an inflammatory photograph of female
genitalia found on the defendant’s cell phone depicted M, as that testi-
mony was not material: even if B’s testimony was false or substantially
misleading, there was no reasonable probability that it would have
affected the jury’s verdict, it having been undisputed that the other five
photographs in the exhibit containing the purportedly inflammatory
photograph were in fact of M, which corroborated the defendant’s state-
ment to the police that he had taken photographs of M for his personal
use, and the content of the image did not bear on the principally con-
tested issues in the guilt phase, that is, whether the defendant had
sexual assaulted M anally and whether he had the requisite intent to
kill; moreover, if the person depicted in the photograph was not M, it
necessarily had to have been H, which would have introduced an addi-
tional sexual assault victim to the case.
5. The defendant’s challenge to the statute (§ 18-10b) imposing certain
restrictive conditions of confinement on inmates, like the defendant,
who have been convicted of capital felony or murder with special circum-
stances was not reviewable on direct appeal: the record was insufficient
to resolve the defendant’s claims that the conditions of confinement set
forth in § 18-10b are unconstitutional on the grounds that they constitute
an ex post facto law, violate equal protection, and are excessive and
disproportionate, as there was no evidence beyond an averment of
information and belief with respect to the claimed disparate treatment
of defendants who had received life sentences after the abolition of the
death penalty, as compared to capital defendants who previously had
received life sentences, and there was no evidence as to the conditions of
confinement actually imposed on the defendant, who was incarcerated
in Pennsylvania; moreover, the proper vehicle by which the defendant
may challenge his conditions of confinement is a petition for a writ of
habeas corpus, and the defendant can present evidence that is relevant
to his claim before the habeas court, which is empowered to make
factual findings on the basis of that evidence.
Argued October 17, 2019—officially released April 12, 2021**
Procedural History
Information charging the defendant with six counts
of the crime of capital felony, four counts of the crime
of kidnapping in the first degree, three counts of the
crime of murder, and one count each of the crimes of
sexual assault in the first degree, burglary in the second
degree, arson in the first degree and assault in the sec-
ond degree, brought to the Superior Court in the judicial
district of New Haven, where the court, Blue, J., denied
the defendant’s motions for a change of venue, to
sequester the jury, to continue jury selection, to strike
the jury panel, for additional peremptory challenges
and to excuse tainted jury panels; thereafter, the case
was tried to the jury before Blue, J.; subsequently, the
court denied the defendant’s motions for a continuance,
to open the evidence, and for a mistrial; verdict of guilty;
thereafter, during the penalty phase of the proceedings,
the jury found the existence of an aggravating factor
or factors that outweighed any mitigating factors; sub-
sequently, the court, Blue, J., rendered judgment in
accordance with the jury verdict and the jury’s findings
during the penalty phase, and imposed a sentence of
death with respect to the six capital felony counts, and
the defendant appealed to this court; thereafter, the
court, Blue, J., granted in part the defendant’s motions
for augmentation and rectification of the record; subse-
quently, the court, Blue, J., granted the defendant’s
motion to correct an illegal sentence. Affirmed.
John Holdridge, with whom were Erica Barber and,
on the brief, Moira L. Buckley, for the appellant
(defendant).
Marjorie Allen Dauster, former special deputy assis-
tant state’s attorney, with whom, on the brief, were
Patrick J. Griffin, state’s attorney, Michael Dearing-
ton, former state’s attorney, Gary Nicholson, former
senior state’s attorney, Robert Scheinblum, senior assis-
tant state’s attorney, and Leonard C. Boyle, former dep-
uty chief state’s attorney, for the appellee (state).
Opinion
ROBINSON, C. J. The principal issue in this appeal
is whether Connecticut’s individual voir dire process
protected the right of the defendant, Joshua Komisar-
jevsky, to a fair trial by assessing and mitigating the
prejudicial effects of pretrial publicity about this partic-
ularly notorious case involving a home invasion in
Cheshire that resulted in multiple fatalities. The defen-
dant appeals1 from the judgment of conviction, ren-
dered after a jury trial, of, among other crimes, six
counts of capital felony in violation of General Statutes
(Rev. to 2007) § 53a-54b. On appeal, the defendant
claims, inter alia, that the trial court improperly (1)
denied his motions to change the venue of his trial from
the judicial district of New Haven (New Haven), (2)
denied his challenges for cause to twelve prospective
jurors, and (3) denied his motions to reopen the evi-
dence, for a mistrial, or for a continuance because of
the state’s belated disclosure of certain letters written
by the defendant’s accomplice, Steven Hayes. The
defendant also contends that the trial court unconstitu-
tionally applied the stringent conditions of confinement
set forth in General Statutes § 18-10b2 to the defendant
when he was resentenced after his death sentence was
vacated. Finally, the defendant contends that the state
deprived him of his due process right to a fair trial by
(1) failing to disclose certain communications among
various Cheshire police officers during and after the
response to the home invasion, in violation of Brady
v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d
215 (1963), and (2) failing to correct materially false
expert testimony about a highly inflammatory photo-
graph of female genitalia found on the defendant’s cell
phone in violation of Giglio v. United States, 405 U.S.
150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), and Napue
v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d
1217 (1959). We disagree with all of these claims and,
accordingly, affirm the judgment of the trial court.
The record reveals the following facts, which the jury
reasonably could have found, and procedural history. In
2007, the P family, consisting of W, an endocrinologist,
J, his wife, who was a nurse, and their two daughters,
seventeen year old H, and eleven year old M, lived in
a house at 300 Sorghum Mill Drive in Cheshire. In the
early evening of July 22, 2007, the defendant went to
the Stop and Shop supermarket at the Maplecroft Plaza
in Cheshire to meet a contractor who owed him wages
for construction work. While in the Stop and Shop park-
ing lot, he saw J and M, who were there shopping for
dinner. Intrigued by J’s car, a Chrysler Pacifica, the
defendant followed J and M to the P residence, and
was further impressed by their apparent prosperity.
The defendant then contacted Hayes, with whom he
had been communicating by text message about plans
to make money in some way. After spending the evening
caring for his daughter, the defendant returned to the
Stop and Shop parking lot at approximately 10 p.m.,
where he met Hayes. After driving around for a while
in the defendant’s van discussing ways to make money,
including robbing people who were using ATMs or com-
ing out of bars, the defendant remembered J and M
from earlier in the evening and told Hayes about them.
After some discussion, Hayes and the defendant came
to believe that there might be a lot of money in the P
family home.
After driving around for a while longer, the defendant
and Hayes went to Sorghum Mill Drive in the defen-
dant’s van, parked around the corner from the P family
residence, and donned rubber gloves and face masks
improvised from cut up shirts and a hat. Hayes brought
with him a pellet gun that he had purchased the day
before at a nearby Wal-Mart while accompanied by the
defendant; the pellet gun looked like a nine millime-
ter pistol.
At approximately 2 a.m. on July 23, 2007, the defen-
dant and Hayes approached the P residence and walked
around the house. They noticed that W was sleeping
on a couch in the sunroom. The defendant then entered
the house through an unlocked bulkhead door to the
basement. The defendant found a baseball bat in the
basement and carried it with him to the sunroom, where
he repeatedly struck W in the head with the bat, causing
W to make an ‘‘unearthly scream.’’ After W, who was
bleeding profusely and confused, backed into the cor-
ner of the couch and quieted down, the defendant let
Hayes into the house through the back door.
After W stirred and sat up, Hayes pointed the pellet
gun at him. The defendant then ordered W to lie down
on the couch and covered his bleeding head with a
towel; Hayes and the defendant bound W’s wrists and
ankles with a cotton rope clothesline that the defendant
had found on the basement stairs. The defendant told
Hayes to ‘‘put a bullet in’’ W if he were to move, and
said to W, ‘‘if we get the money, nobody will be hurt
. . . .’’ In response to the defendant’s questions about
whether anyone else was in the house, W told him that
J, H, and M were upstairs. Hayes and the defendant
then tied up J and M, who were sleeping in the same
bed in the master bedroom, and went into H’s bedroom
and tied her up, as well.
After talking with J and searching the house, the
defendant and Hayes concluded around 4 a.m. that there
was no money there, but they realized from the check
register and receipts in J’s purse that W and J had
approximately $40,000 in their Bank of America
accounts; they asked W and J about that money at
various points during the encounter. The defendant and
Hayes decided to wait until the bank opened at 9 a.m.,
at which point Hayes would take J there to withdraw
$15,000, an amount that they believed would not raise
a ‘‘red flag . . . .’’ The defendant and Hayes then went
back upstairs and retied the ropes binding J, H, and M,
making sure to secure them to their bedframes. The
defendant and Hayes took all of the family’s portable
and cell phones that they could find and drove the
Pacifica and the defendant’s van to a nearby condomin-
ium complex on Mountain Road, where, to avoid trig-
gering any of the neighbors’ suspicions, they parked
the defendant’s van before returning to the house in
the Pacifica.
At approximately 5 a.m., the defendant and Hayes
moved W from the sunroom down to the basement in
order to avoid the possibility that a neighbor might see
him through the sunroom window. They tied W to a
support pole in the basement with a rope, sat him on
a pillow, and rebound his feet with a plastic zip tie.
Shortly thereafter, J, acting at Hayes’ direction, called
W’s medical office and asked a nurse to cancel his
morning schedule because he was ill.
During the encounter, the defendant spoke to M sev-
eral times about her summer plans and schooling; he
also brought her water and provided her with bathroom
breaks. In the meantime, tensions continued to rise
between Hayes and the defendant because Hayes
expressed concern to the defendant about having left
traces of their DNA in the house; Hayes then proposed
burning down the house and kidnapping the victims
using the family’s vehicles. A short time later, Hayes
became angrier because he believed that the defendant
had used his real name in front of the victims, and he
proposed killing them instead. Hayes found several one
gallon bottles of windshield washer fluid in the garage
and emptied them into the kitchen sink. At approxi-
mately 8 a.m., Hayes drove the Pacifica to a nearby
Citgo service station and filled four of the containers
with gasoline, communicating with the defendant sev-
eral times on his cell phone while he was out. Hayes
then returned to the house and left those four containers
in the garage.
Shortly before 9 a.m., Hayes and J drove in the Pacif-
ica to the Bank of America branch located at the
Maplecroft Plaza near the Stop and Shop. To emphasize
the gravity of the situation to J, Hayes called the defen-
dant on his cell phone while they were driving to the
bank and asked about W, H, and M. When they arrived,
J entered the bank by herself and told Kristin Makh-
zangi, a teller, that she needed to withdraw $15,000
because two men were holding her family hostage in
their house. Because there was not enough money in
the account that J desired to use, and J lacked the
identification required to make withdrawals from her
other accounts, Makhzangi relayed this information to
Mary Lyons, the branch manager. Lyons then came out
to speak with J, who told her that the two men had
been polite and had promised to free the P family upon
receiving the money. Lyons subsequently approved the
withdrawal of $15,000 from a home equity line of credit
and notified the Cheshire police at approximately 9:21
a.m. of the ongoing hostage situation at the P family
house; she provided the police with descriptions of J
and Hayes, whom she had seen waiting in the Pacifica.
In the meantime, Makhzangi gave J $15,000 in cash,
packaged in three straps of $50 bills, from the vault. At
9:23 a.m., J exited the bank, where Hayes picked her
up in the Pacifica, and drove back to the P family house.
While Hayes was out of the house purchasing gas
and going to the bank with J, the defendant went to
check on W and H, who were still tied up in the base-
ment and on her bed, respectively. The defendant then
went to M’s bedroom and, after some additional conver-
sation, cut her clothes off and sexually assaulted her
anally.3 The defendant also took several sexually
explicit photographs of M using the camera on his cell
phone. After committing the sexual assault, the defen-
dant allowed M to shower and poured bleach on her
shorts in an attempt to eliminate traces of his DNA.
When Hayes and J returned from the bank with the
money, he and the defendant retied J’s hands and feet
and put her on the couch in the living room. Hayes and
the defendant then moved into the dining room and
argued again about whether it was necessary to kill the
family to avoid detection. Hayes initially planned to
strangle the family using nylon stockings, and he paced
around the house to ‘‘psyche himself up . . . .’’ Hayes
then went into the living room where he was alone with
J for approximately fifteen minutes, at which point he
sexually assaulted her vaginally and strangled her to
death.
Meanwhile, W’s weight had caused the ropes binding
him to loosen as he slumped over while drifting in and
out of consciousness; when he awoke, he was able to
free himself from the bindings. W heard numerous
noises from his position in the basement, including loud
thumps and the Pacifica leaving from the garage. Rather
than confront the defendant and Hayes himself, W
chose to escape the basement via the bulkhead door,
and he crawled to the home of his next door neighbor,
David Simcik, for help. When Simcik saw W, he told
his wife to call 911 because of W’s visible injuries. While
Simcik’s wife was on the phone with the police dis-
patcher, two Cheshire police officers, Dennis Boucher
and Thomas Wright, appeared, having been dispatched
in response to the call from the bank,4 and asked
whether there was anyone still in the house. W informed
them that J, H, and M were still in the house. W was
subsequently transported by ambulance to St. Mary’s
Hospital in Waterbury, where he was admitted for sev-
eral days and treated for head injuries, including the
loss of five to seven pints of blood.
In the meantime, the defendant, who had heard the
basement bulkhead door opening, yelled to Hayes that
W was escaping. Instead of chasing W, the defendant,
who saw J’s lifeless body on the living room floor, told
Hayes that they had to leave immediately. Hayes took
a bag that had the money from the bank, gave it to
the defendant, and told him to start the car. While the
defendant looked for the car keys, he saw Hayes pour-
ing copious quantities of gasoline from the windshield
washer fluid containers around the house, including in
the living room, stairways, hallway, and master bed-
room. At this time, H and M were still restrained in
their bedrooms. Realizing that the police were starting
to arrive and surround the house, the defendant started
the Pacifica in the garage as Hayes flicked a lit match
into the kitchen, igniting a pool of gasoline on the floor
and causing flames to travel toward the front hallway
of the house. The first responding police officers were
unable to gain access to the interior portions of the
house because of heat and flames from the rapidly
spreading fire, in which H and M perished.5
After Hayes jumped into the passenger seat of the
Pacifica, the defendant backed down the driveway at
a high rate of speed, first striking the front passenger
side of an unmarked police car driven by Captain Robert
Vignola, a Cheshire police detective, which had pulled
up to block the driveway, and then a small stone wall
at the front of the lawn. Vignola and Boucher, along
with another officer, Sergeant Philip Giampietro, drew
their weapons and approached the passenger side of the
Pacifica while commanding the defendant and Hayes
to exit the vehicle with their hands up. The defendant,
however, was able to recover control of the Pacifica
and drove it at a high rate of speed down Sorghum
Mill Drive, first at Sergeant Christopher Cote, who was
standing in the road with a long rifle but was able to
jump out of the way, and then toward a bend in the
road where he crashed into a pair of police cruisers
that had parked in a V formation to block the road,
causing the airbags to deploy and the vehicle to stop.
At that point, multiple police officers apprehended the
defendant and Hayes. When questioned after being
grabbed forcefully by Joseph Vitello, a Cheshire police
detective, the defendant told the officers that there were
no other accomplices, that he believed J was dead, and
that there were ‘‘two girls in the upstairs . . . front
facing bedrooms, and that they were still alive.’’6 The
officers placed the defendant and Hayes under arrest.
After his arrest, the defendant waived his rights and
gave a detailed statement to the investigating officers,
including Vitello and Rafael Medina, a state police
detective, which was admitted into evidence at trial.7
The state charged the defendant with six counts of
capital felony in violation of General Statutes (Rev. to
2007) § 53a-54b, three counts of murder in violation of
General Statutes § 53a-54a (a), four counts of kidnap-
ping in the first degree in violation of General Statutes
§ 53a-92 (a) (2) (B), one count of sexual assault in the
first degree in violation of General Statutes § 53a-70
(a) (1), one count of burglary in the second degree in
violation of General Statutes § 53a-102, one count of
arson in the first degree in violation of General Statutes
§ 53a-111 (a) (1), and one count of assault in the second
degree in violation of General Statutes § 53a-60 (a) (2).
The defendant and Hayes were tried separately in
New Haven. Hayes was tried first in the fall of 2010;
he was found guilty by a jury of, inter alia, multiple
counts of capital felony and sentenced to death. In mid-
2011, following extensive pretrial motions practice, the
defendant’s case was tried to a jury, which returned a
verdict of guilty on all counts. After a penalty phase
trial with respect to the capital felony counts, the trial
court sentenced the defendant in accordance with the
jury’s verdict to six consecutive death sentences, fol-
lowed by a term of imprisonment of 140 years. This
direct appeal followed. See footnote 1 of this opinion.
While this appeal was pending, this court held in
State v. Santiago, 318 Conn. 1, 9–10, 122 A.3d 1 (2015),
and reaffirmed in State v. Peeler, 321 Conn. 375, 377,
140 A.3d 811 (2016), that the imposition of the death
penalty on offenders convicted of capital felonies prior
to the prospective abolition of the death penalty by
statute on April 25, 2012, would violate the Connecticut
constitution’s prohibition of cruel and unusual punish-
ment. Accordingly, the trial court granted the defen-
dant’s motion to correct an illegal sentence and vacated
his death sentences; the trial court resentenced him to
a total effective sentence of six consecutive sentences
of life imprisonment without the possibility of release,
followed by a term of imprisonment of 140 years.8
On appeal, the defendant claims that (1) the trial
court improperly denied his motion to change the venue
of his trial from New Haven given the effects of prejudi-
cial pretrial publicity, (2) the trial court improperly
denied his challenges for cause to twelve prospective
jurors, (3) the trial court improperly denied his motions
for relief following the state’s disclosure of certain let-
ters written by Hayes while he was incarcerated, (4)
the prosecutor deprived him of his due process right to
a fair trial by failing to disclose certain communications
among various Cheshire police officers in violation of
Brady, (5) the prosecutor failed to correct materially
false expert testimony in violation of Napue and Giglio,
and (6) the trial court unconstitutionally applied the
stringent conditions of confinement pursuant to § 18-
10b to the defendant after his death sentences were
vacated. Additional facts and procedural history will
be set forth in the context of each claim on appeal.
I
PRETRIAL PUBLICITY AND JURY
SELECTION CLAIMS
We begin with the defendant’s claims arising from
adverse pretrial publicity about this case, which he con-
tends sent the New Haven area into ‘‘paroxysms of
inquisitional paranoia and communal hysteria.’’ Specifi-
cally, the defendant argues, inter alia, that the trial court
improperly denied (1) his motions for a change of venue
and for a new trial, and (2) his challenges for cause to
numerous jurors.9
A
Additional Relevant Facts and Procedural History
On February 4, 2011, the defendant filed a motion to
change the venue of the trial from New Haven to the
judicial district of Stamford-Norwalk (Stamford). In
that motion, the defendant argued that Stamford was
‘‘the most potentially neutral site’’ given the ‘‘unprece-
dented, prejudicial publicity surrounding this case, as
exacerbated by the recent trial of . . . Hayes,’’ during
which Hayes attempted ‘‘to deflect responsibility for
his crimes . . . .’’ In support of the motion, the defen-
dant also filed an accompanying memorandum of law
and a study that was undertaken by two psychology
professors at the John Jay College of Criminal Justice
of the City University of New York, Steven Penrod10
and Margaret Bull Kovera,11 who conducted a telephone
survey to analyze the effect of pretrial publicity in this
case on potential jurors in several judicial districts,
namely, New Haven, Fairfield, Stamford, and Danbury.12
The study was intended to determine the proportion of
qualified jurors13 who had heard about this case, the
extent and sources of their knowledge about the case,
and the degree to which they believed the defendant
was guilty and had arrived at some judgment ‘‘about
what the appropriate penalty would be for this case.’’
The study concluded that New Haven was ‘‘resound-
ingly the least favorable judicial district in terms of
juror taint, whereas [Stamford was] the most favorable
relative to affording [the defendant] the best opportu-
nity to empanel a fair and impartial jury.’’14
At a hearing on the motion to change venue, Penrod
explained the study.15 He described the pretrial publicity
as ‘‘[o]verwhelmingly negative’’ with respect to the defen-
dant, with guilt and death penalty judgments running
approximately 20 percent higher than they had in a
similar study he had performed slightly more than one
year before in connection with Hayes’ trial. Approximately
97 percent of qualified jurors in Stamford recognized
the case, and approximately 98 percent of qualified jurors
in New Haven recognized it, either immediately by name
or after being prompted with one cue, namely, that it
was a home invasion. The lowest recognition level was
in Danbury, with approximately 94 percent recognition.
The recognition of this case in all four districts studied
was comparable to the state court prosecution of Terry
Nichols, who had bombed the Alfred P. Murrah Federal
Building in Oklahoma City, after his conviction in fed-
eral court, the Menendez brothers,16 and John Walker
Lindh, the ‘‘American Taliban,’’17 in their respective
jurisdictions. Penrod opined that the ‘‘least prejudicial’’
of the four studied judicial districts would be Stamford
because it is ‘‘generally the lowest across the board’’
with respect to judgments about the defendant’s guilt
and knowledge about the case. Penrod stated, however,
that this was a matter of ‘‘relative disadvantage,’’ given
that this case reflected ‘‘the highest levels of prejudg-
ment of guilt’’ he had ever seen.
Turning to a district by district analysis of the respon-
dents’ knowledge about the case,18 Penrod noted that,
although there was a very similar reported rate of fol-
lowing the news media generally, approximately 70 per-
cent of New Haven respondents followed this case ‘‘very
closely’’ or ‘‘somewhat closely,’’ as compared to approx-
imately 49 percent in Stamford.19 He determined that
Stamford respondents had a much lower rate of case
knowledge than those in New Haven, with 2.5 percent
knowing the names of the defendant and Hayes sponta-
neously and 58 percent after receiving a cue, as com-
pared to 22 percent and 89 percent in New Haven,
respectively. In Stamford, 73 percent were aware of
Hayes’ conviction, in comparison to 88 percent in New
Haven; with respect to Hayes’ death sentence, the
awareness rates were 39 and 66 percent, respectively.
Forty-nine percent of the New Haven respondents had
seen or heard about W’s interview with Oprah Winfrey
approximately one month before the survey took place,
as compared to 31 percent in Stamford. Thirty-one per-
cent of the respondents in New Haven had heard about
the defendant’s prison journals, in comparison to 11
percent in Stamford. Interestingly, more respondents
in Stamford believed that the crimes were ‘‘disturbing/
graphic’’ than those in New Haven, 5.6 and 4.9 percent,
respectively, which is a difference that Penrod did not
believe was statistically significant.
Moving beyond general awareness to impartiality, in
Stamford, 65 percent of the respondents had ‘‘very nega-
tive’’ impressions of the defendant, as compared to 76
percent in New Haven; there were 6 and 5 percent
reports of ‘‘somewhat negative’’ impressions, respec-
tively, for each jurisdiction.20 In Stamford, 50 percent
of the respondents believed that the defendant was
‘‘definitely guilty’’ of murder, and 22 percent ‘‘probably
guilty,’’ as compared to 60 and 25 percent, respectively,
in New Haven.21 In New Haven, 71 percent of those
surveyed reported that they could decide the case based
solely on the evidence, as compared to 80 percent in
Stamford. Thirty-two percent said that they could ‘‘defi-
nitely’’ be ‘‘fair and impartial’’ in New Haven with
respect to the defendant, and 18 percent ‘‘probably’’
so, as compared to 44 and 22 percent in Stamford,
respectively. Penrod stated that the ‘‘most significant’’
difference between New Haven and Stamford was the
number of respondents who believed that they could
render a not guilty verdict, which was 15 percent in
New Haven and 30 percent in Stamford. In Penrod’s
view, this suggested that there were ‘‘twice as many
people’’ prepared not to convict in Stamford, with Stam-
ford below New Haven with respect to virtually every
measure of knowledge about the case.22 Ultimately, Pen-
rod described Stamford as ‘‘a venue that is . . . less
prejudice[d] against the defendant [and that] has a
smaller fund of knowledge [on] which that prejudice
is based.’’
During cross-examination, Penrod acknowledged
that the publicity concerning this case was ‘‘extensive’’
across all four of the surveyed districts, with the lowest
level of recognition being approximately 94 percent in
Danbury and the highest being approximately 98 per-
cent in New Haven. Penrod also acknowledged that,
with respect to some specific factors, there was greater
recognition in Stamford than in New Haven, and that
approximately 70 percent of the respondents in New
Haven reported that they could render a verdict based
just on the evidence, with approximately 50 percent of
the respondents in New Haven ‘‘definitely’’ or ‘‘proba-
bly’’ able to give the defendant a fair trial, despite that
being a ‘‘somewhat lower’’ percentage answer than in
Stamford.23
Significantly, Penrod also acknowledged that studies
indicated that more extensive voir dire processes were
beneficial for the purpose of exploring a potential
juror’s knowledge and attitudes about the case, and
that there has not been research exploring the effect
of voir dire lasting more than one hour in counteracting
the effects of pretrial publicity. He agreed that Connecti-
cut’s individual voir dire process is good—and ‘‘more
than minimal’’ for counteracting adverse pretrial public-
ity—and would be ‘‘[u]nquestionably’’ more effective
than the phone survey. Penrod also conceded that it
was not ‘‘impossible’’ to select a fair and impartial jury
from New Haven but simply that it would be ‘‘more
likely’’ to occur in Stamford, which would also present
‘‘significant difficulties’’ in that respect. Penrod agreed
with the trial court’s observation that the difficulties of
teasing out prejudices during voir dire would be present
in either location.
After the hearing, the trial court denied the defen-
dant’s motion for a change of venue. In its memorandum
of decision, the trial court emphasized that the cases
had been widely reported on throughout the state—
and, indeed, the world—observing that many of the
media materials provided had been published on the
Internet, as well as in print. The trial court noted that
‘‘at least 97 percent of Connecticut residents have at
least heard’’ of the defendant and Hayes. Relying on
Skilling v. United States, 561 U.S. 358, 130 S. Ct. 2896,
177 L. Ed. 2d 619 (2010), Rideau v. Louisiana, 373 U.S.
723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963), and State
v. Reynolds, 264 Conn. 1, 836 A.2d 224 (2003), cert.
denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254(2004), the trial court declined to presume the existence
of prejudicial publicity prior to voir dire, emphasizing
(1) that the large, diverse pool of jurors in New Haven,
with a population of more than 846,000 people, rendered
it distinct from the contaminated pool in the much
smaller rural community at issue in Rideau, (2) that
the survey respondents’ perceptions of guilt did not
arise from admissions of guilt, (3) the lapse of four
years from the crime to the time of trial, and (4) the
fact that the jury in Hayes’ case, which had received
similar publicity, had returned a verdict finding him not
guilty of one count of arson, which suggested that jury
impartiality was possible despite the extensive public-
ity. The trial court contrasted Connecticut’s ‘‘particu-
larly searching’’ individual voir dire process with the
‘‘vastly more truncated federal jury selection process
found constitutionally adequate in Skilling’’ and empha-
sized that ‘‘the parties will have ample opportunity to
inquire about the effects of pretrial publicity on the
individuals involved.’’ The court further stated that it
would revisit its decision should voir dire not produce
the requisite number of impartial jurors.
Jury selection began on March 16, 2011, and ended
on June 14, 2011.24 The court agreed with the parties’
recommendation to seat twenty-one jurors, twelve regu-
lar, six alternate, and three backup alternates. The trial
court allotted each party forty peremptory challenges,
ten more than the thirty mandated in death penalty
cases under General Statutes 54-82h (a).25 The twelfth
regular juror was selected on May 10, 2011; at that point,
the state had used twenty-one peremptory challenges
and the defendant twenty-eight. On June 8, 2011, after
the six alternates had been chosen, the defendant had
one peremptory challenge remaining. He requested
forty more for the selection of the three backup alter-
nates.26 The trial court denied that motion. Once jury
selection was concluded on June 14, 2011, with the
three backup alternates selected, each party had
exhausted its challenges. None of the alternates was
ultimately required to deliberate, and the defendant did
not challenge for cause any juror who actually decided
his guilt.
On May 16, 2011, the defendant also filed a motion
to continue the then pending jury selection in this case
for approximately three months, arguing that Senator
Edith Prague, a prominent state legislator and longtime
opponent of the death penalty, had publicly announced
her decision to withdraw her support for abolition of
the death penalty after meeting with W. In announcing
her decision, Senator Prague made comments, later
reported in the Hartford Courant, the New Haven Regis-
ter, and other print and broadcast media, that ‘‘ ‘[t]hey
should bypass the [defendant’s] trial and take that sec-
ond animal and hang him by his penis from a tree out
in the middle of Main Street.’ ’’ Senator Prague reiter-
ated her comments in television news interviews over
the following days; she expressed no regret for having
made them and emphasized her support for the P family,
calling the defendant a ‘‘ ‘monster . . . .’ ’’ The defen-
dant argued that this call for a ‘‘lynching’’ lent ‘‘legiti-
macy’’ to similar views expressed in reader comments
in online news stories about this case and further
infected the venire. The defendant argued that a three
month continuance would reduce the prejudicial effect
of Prague’s call for a lynching by allowing it to ‘‘slip from
the mind of potential jurors.’’ The trial court denied
that motion.
Over the monthslong jury selection process, the con-
duct of several prospective jurors—none who ulti-
mately served as jurors—evidenced the emotional
impact of this case. Questioning during voir dire
revealed that some prospective jurors had discussed
with each other their distaste for the defendant, includ-
ing a belief that he should immediately receive the death
penalty. Other prospective jurors became emotional,
with some refusing to enter the courtroom and others
berating the defendant and openly stating their beliefs,
either in open court or to court staff, that the defendant
should ‘‘fry,’’ or offering to execute him personally.
For example, one prospective juror, J.M.-M., after being
peremptorily challenged by the defendant, screamed at
him and called him a ‘‘[k]iller, asshole.’’ Another, B.G.,
after being excused for hardship, offered to ‘‘take care
of him right here.’’ Similarly, two alternate jurors, D.V.
and J.B., who had been selected based on their assur-
ances that they could withstand pressure and decide
the case impartially, were stricken from the panel after
they returned to court to express concern about their
impartiality after friends and coworkers had questioned
them about the case and offered unsolicited opinions.
On September 12, 2011, the defendant renewed his
motion for sequestration of the jury pursuant to Practice
Book § 42-22, arguing that sequestration was necessary
to preserve his right to an impartial jury in light of the
pretrial publicity and the notorious nature of the case.
The trial court denied this motion.
On September 15, 2011, the defendant again moved
for a change of venue from New Haven to Stamford,
and to strike the selected jury panel, arguing that the
subjective assessment of juror impartiality via the voir
dire process was insufficient to protect his rights to a
fair trial, as was demonstrated by the previously
described statements of prospective jurors J.M.-M. and
B.G. and alternate jurors D.V. and J.B. The defendant
argued that the conduct of these individuals, along with
the comments of others during voir dire, was indicative
of the adverse effects of the pretrial publicity. The trial
court denied this motion. After he was found guilty, the
defendant renewed these pretrial publicity claims in his
motion for a new trial, which the trial court also denied.
B
Review of the Defendant’s Pretrial Publicity
Claims and General Governing Principles
On appeal, the defendant relies on, among other
cases, the United States Supreme Court’s decisions in
Skilling v. United States, supra, 561 U.S. 358, and
Rideau v. Louisiana, supra, 373 U.S. 723, and contends
that, given the extensive, frenzied, and inaccurate media
publicity in this ‘‘extreme’’ case, an irrebuttable pre-
sumption of prejudice mandated moving the trial from
New Haven to Stamford, which was the Connecticut
venue mostly likely to yield an impartial jury. Arguing
that Skilling is distinguishable because it was a white
collar case that took place in the much larger city of
Houston, Texas, the defendant argues that emotional
outbursts in open court by multiple prospective jurors,
with some openly weeping or shouting at him, demon-
strated the impact on the New Haven juror pool of the
media coverage of this crime, including Hayes’ earlier
trial. The defendant contends that any presumption of
prejudice cannot be rebutted because the voir dire in
this case demonstrated that six of the eighteen seated
jurors had preconceived notions that the defendant was
guilty, ‘‘virtually all had substantial knowledge of the
case,’’ and many had been told by family, friends, and
other people that the defendant was guilty and should
be sentenced to death. Overall, the defendant argues
that ‘‘the voir dire proceedings establish beyond dispute
that the jury selection process did not produce a jury
untainted by pretrial publicity and community animus,’’
with the seated jurors’ self-assessments that ‘‘they could
be fair . . . [being] far from conclusive proof of their
impartiality.’’27 (Internal quotation marks omitted.)
In response, the state, citing, as an example, the Bos-
ton Marathon bombing case; see In re Tsarnaev, 780
F.3d 14 (1st Cir. 2015) (order denying petition for man-
damus); contends that the trial court properly applied
the factors articulated by the Supreme Court in Skilling
v. United States, supra, 561 U.S. 382–83, in denying the
motion for a change of venue, given the relatively large
and diverse jury pool in New Haven, the ‘‘porosity of
geographic boundaries due to the effects of the Internet’’
on the media coverage of this case, Penrod’s study
indicating that prospective jurors had greater aware-
ness of the crime in general, rather than of the defendant
personally, the fact that coverage of Hayes’ preceding
trial and conviction would not disadvantage the defen-
dant’s apparent strategy of asserting that Hayes was the
ringleader, and the fact that Hayes’ jury had rendered
a partial acquittal at his trial. The state also relies heavily
on the ‘‘unique’’ protections provided by Connecticut’s
constitutionally mandated individual voir dire process;
Rozbicki v. Huybrechts, 218 Conn. 386, 392 n.2, 589 A.2d
363 (1991); see Conn. Const., amend. IV; to demonstrate
that any prejudice was rebuttable due to a lack of actual
prejudice because the jury, as empaneled after a
monthslong voir dire, was one that the defendant him-
self had ‘‘accepted’’ as ‘‘actually . . . impartial,’’ and
the trial court took precautions to protect that impar-
tiality. The state posits that the jurors selected, although
aware of the crimes generally, knew nothing about the
primary contested issue in this case, namely, the role
and relative culpability of each accused. We agree with
the state and conclude that the trial court did not violate
the defendant’s right to a fair trial by an impartial jury
when it denied his motions for a change of venue from
New Haven to Stamford because there was neither pre-
sumptive nor actual prejudice resulting from the pre-
trial publicity.
We begin with the standard of review and background
legal principles. ‘‘In requesting a change of venue, a
defendant bears the burden of showing that he could
not otherwise receive a fair and impartial trial. The trial
court exercises its discretion in deciding whether to
grant such a change of venue. . . . The trial court’s
discretion is governed by Practice Book [§ 41-23], which
provides: Upon motion of the prosecuting authority or
the defendant, or upon his own motion, the judicial
authority may order that any pending criminal matter
be transferred to any other court location: (1) If the
judicial authority is satisfied that a fair and impartial
trial cannot be had where the case is pending . . . .
Despite the broad discretion vested in the trial court in
considering such a motion, its denial has constitutional
implications and appellate review requires an indepen-
dent evaluation of the circumstances upon which the
claim of an unfair trial is based. . . .
‘‘For an appellate court to reverse a conviction on the
[ground] of prejudicial pretrial publicity, a defendant
generally must prove actual juror prejudice. . . . A
defendant need not, however, show actual prejudice in
extreme circumstances whe[n] there has been inher-
ently prejudicial publicity such as to make the possibil-
ity of prejudice highly likely or almost unavoidable.
. . . A defendant cannot rely, however, on the mere
fact of extensive pretrial news coverage to establish
the existence of inherently prejudicial publicity. Promi-
nence does not, in itself, prove prejudice. . . . Rather,
[t]he defendant must demonstrate that the publicity
was so inflammatory or inaccurate that it created a
trial atmosphere utterly corrupted by press coverage.’’
(Citations omitted; internal quotation marks omitted.)
State v. Reynolds, supra, 264 Conn. 222–23; see Skilling
v. United States, supra, 561 U.S. 380–81; Murphy v.
Florida, 421 U.S. 794, 798–99, 95 S. Ct. 2031, 44 L. Ed.
2d 589 (1975); Sheppard v. Maxwell, 384 U.S. 333, 362–
63, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966); State v.
Pelletier, 209 Conn. 564, 569–71, 552 A.2d 805 (1989).
Indeed, ‘‘[t]o place our analysis of the defendant’s claim
regarding the extensive publicity in context, we must
recognize the first amendment right of a free press to
observe and publicize criminal trials. . . . It follows
naturally that the public will hear and read reports of
such proceedings. Dissemination of such information
and the accompanying publicity itself, therefore, [are]
not constitutionally objectionable. Extensive publicity
implicates the defendant’s due process rights only if it
rises to a level sufficient to preclude a fair trial for the
accused.’’ (Citation omitted; footnote omitted.) State v.
Crafts, 226 Conn. 237, 257, 627 A.2d 877 (1993).
Before we turn to the record in this case, we find
instructive a detailed review of Skilling v. United
States, supra, 561 U.S. 358, which is the United States
Supreme Court’s most recent decision concerning pre-
trial publicity. In Skilling, the court considered whether
Jeffrey K. Skilling, the chief executive officer of Enron
Corporation (Enron), had received a fair trial on crimi-
nal charges arising from the collapse of that business
in the federal district that included Houston, which had
been its home. Id., 367–68. Given the extensive and
negative pretrial publicity about the case because of
the severe economic consequences Enron’s collapse
had on the Houston area; id., 368–70; Skilling argued
‘‘that his trial ‘never should have proceeded in Houston.’
. . . And even if it had been possible to select impartial
jurors in Houston, ‘[t]he truncated voir dire . . . did
almost nothing to weed out prejudices,’ . . . so ‘[f]ar
from rebutting the presumption of prejudice, the record
below affirmatively confirmed it.’ ’’ (Citation omitted.)
Id., 377. The Supreme Court observed that ‘‘Skilling’s
[fair trial] claim thus raise[d] two distinct questions.
First, did the District Court err by failing to move the
trial to a different venue based on a presumption of
prejudice? Second, did actual prejudice contaminate
Skilling’s jury?’’ Id.The court began its analysis in Skilling with the
‘‘foundation precedent’’ of Rideau v. Louisiana, supra,373 U.S. 723, in which ‘‘Wilbert Rideau robbed a bank
in a small Louisiana town, [kidnapped] three bank
employees, and killed one of them. Police interrogated
Rideau in jail without counsel present and obtained his
confession. Without informing Rideau, no less seeking
his consent, the police filmed the interrogation. On
three separate occasions shortly before the trial, a local
television station broadcast the film to audiences rang-
ing from 24,000 to 53,000 individuals. Rideau moved for
a change of venue, arguing that he could not receive a
fair trial in the parish where the crime occurred, which
had a population of approximately 150,000 people.’’
Skilling v. United States, supra, 561 U.S. 379. The
Supreme Court held that Rideau could not receive a
fair trial because ‘‘[w]hat the people [in the community]
saw on their television sets . . . was Rideau, in jail,
flanked by the sheriff and two state troopers, admitting
in detail the commission of the robbery, kidnapping,
and murder. . . . [T]o the tens of thousands of people
who saw and heard it . . . the interrogation in a very
real sense was Rideau’s trial—at which he pleaded
guilty. . . . [The court] therefore [did] not hesitate to
hold, without pausing to examine a particularized tran-
script of the voir dire, that [t]he kangaroo court pro-
ceedings trailing the televised confession violated due
process.’’ (Citations omitted; emphasis in original; inter-
nal quotation marks omitted.) Id., quoting Rideau v.
Louisiana, supra, 725–27.
The United States Supreme Court also considered
in Skilling ‘‘two later cases in which media coverage
manifestly tainted a criminal prosecution,’’ namely,
Estes v. Texas, 381 U.S. 532, 85 S. Ct. 1628, 14 L. Ed.
2d 543 (1965), and Sheppard v. Maxwell, supra, 384
U.S. 333, both of which featured media coverage and
reporting to the extent that the reporters and television
crews physically overran the courtroom itself, creating
‘‘ ‘[b]edlam’ ’’ and a ‘‘ ‘carnival atmosphere’ ’’ around the
trial. Skilling v. United States, supra, 561 U.S. 379–80.
Relying on Murphy v. Florida, supra, 421 U.S. 798–99,
however, the court emphasized in Skilling that its ‘‘deci-
sions . . . cannot be made to stand for the proposition
that juror exposure to . . . news accounts of the crime
. . . alone presumptively deprives the defendant of due
process. . . . Prominence does not necessarily pro-
duce prejudice, and juror impartiality, we have reiter-
ated, does not require ignorance.’’28 (Citations omitted;
emphasis in original; footnotes omitted; internal quota-
tion marks omitted.) Skilling v. United States, supra,
380–81. Accordingly, the court emphasized in Skilling
that a ‘‘presumption of prejudice . . . attends only the
extreme case.’’ Id., 381.
The Supreme Court rejected Skilling’s argument ‘‘that
[it] need not pause to examine the screening question-
naires or the voir dire before declaring his jury’s verdict
void.’’ Id. The court emphasized that ‘‘[i]mportant differ-
ences separate Skilling’s prosecution from those in
which [the court has] presumed juror prejudice,’’ con-
trasting Houston’s population of more than 4.5 million
with the smaller communities at issue in its other cases,
particularly Rideau. Id., 381–82; see also footnote 28
of this opinion. The court observed that, with Houston’s
‘‘large, diverse pool of potential jurors, the suggestion
that [twelve] impartial individuals could not be empan-
eled is hard to sustain.’’ Skilling v. United States, supra,
561 U.S. 382.
The Supreme Court also considered the nature of the
media coverage, observing that, ‘‘although news stories
about Skilling were not kind, they contained no confes-
sion or other blatantly prejudicial information of the
type readers or viewers could not reasonably be
expected to shut from sight. Rideau’s dramatically
staged admission of guilt, for instance, was likely
imprinted indelibly in the mind of anyone who watched
it.’’ Id., 382–83. The court also observed that, ‘‘unlike
cases in which trial swiftly followed a widely reported
crime . . . over four years elapsed between Enron’s
bankruptcy and Skilling’s trial. Although reporters cov-
ered [Enron related] news throughout this period, the
decibel level of media attention diminished somewhat
in the years following Enron’s collapse.’’ (Citation omit-
ted.) Id., 383. The court further determined that Skilling
was not prejudiced by the ‘‘[well publicized] decision’’
of a codefendant Enron executive to plead guilty
because the District Court ‘‘took appropriate steps to
reduce that risk,’’ such as delaying jury selection pro-
ceedings by two weeks and expanding voir dire inquir-
ies to address recent publicity, including any news
about the codefendant. (Internal quotation marks omit-
ted.) Id., 384–85. ‘‘Finally, and of prime significance,’’
the court emphasized that the jury’s verdict in Skilling
demonstrated the jurors’ impartiality, insofar as they
found him not guilty ‘‘of nine [insider trading] counts.
Similarly, earlier instituted [Enron related] prosecu-
tions yielded no overwhelming victory for the [g]overn-
ment.’’ Id., 383. Thus, the court concluded that
‘‘Skilling’s trial, in short, share[d] little in common with
those in which [the court] approved a presumption of
juror prejudice,’’ emphasizing that ‘‘pretrial publicity—
even pervasive, adverse publicity—does not inevitably
lead to an unfair trial. . . . In this case . . . news sto-
ries about Enron did not present the kind of vivid,
unforgettable information [the court has] recognized as
particularly likely to produce prejudice, and Houston’s
size and diversity diluted the media’s impact.’’ (Citation
omitted; internal quotation marks omitted.) Id., 384.
The Supreme Court next turned to the actual preju-
dice claims and examined the voir dire in Skilling to
consider whether an impartial jury had in fact been
selected. Id., 385. Emphasizing the customary deference
given by appellate courts to trial courts’ assessments
of juror impartiality; see id., 386–87; the court engaged
in a detailed examination of the juror selection process,
including the use of individual voir dire in conjunction
with a ‘‘comprehensive questionnaire drafted in large
part by Skilling,’’ which was used as an initial screening
tool ‘‘to identify prospective jurors excusable for cause
and served as a springboard for further questions put
to remaining members of the array. Voir dire thus was
. . . the culmination of a lengthy process.’’ (Internal
quotation marks omitted.) Id., 388; see id., 389
(‘‘[i]nspection of the questionnaires and voir dire of the
individuals who actually served as jurors satisfie[d] [the
court] that . . . the selection process successfully
secured jurors who were largely untouched by Enron’s
collapse’’); id., 395 (The court emphasized the role of
the individual voir dire process ‘‘to uncover concealed
bias. This face-to-face opportunity to gauge demeanor
and credibility, coupled with information from the ques-
tionnaires regarding jurors’ backgrounds, opinions, and
sources of news, gave the court a sturdy foundation
to assess fitness for jury service.’’). The court further
rejected Skilling’s claims that several specific jurors
who sat at his trial were biased, noting that he had
challenged only one of them for cause. See id., 395–99.
In the wake of Skilling, it has become axiomatic that,
although ‘‘any [high profile] case will receive significant
media attention’’ and ‘‘people in general, and especially
the well-informed, will be aware of it . . . [k]nowledge
. . . does not equate to disqualifying prejudice. Distin-
guishing between the two is at the heart of the jury
selection process.’’ In re Tsarnaev, supra, 780 F.3d 15;
see also State v. Reynolds, supra, 264 Conn. 224(‘‘[j]urors need not be totally ignorant of the facts and
issues involved in a criminal trial and the fact that some
jurors have some prior knowledge about the case does
not itself constitute identifiable jury prejudice’’ (internal
quotation marks omitted)). With these principles in
mind, we now examine the record in this case to deter-
mine whether it is one in which the ‘‘community’s
knowledge . . . has . . . crossed from familiarity
. . . to . . . prejudice’’; In re Tsarnaev, supra, 23;
mindful that ‘‘the prospect of seating an unbiased jury’’
is the key to the presumed prejudice inquiry, with the
actual prejudice inquiry ‘‘turn[ing] on [the] perception
of the adequacy of the [jury selection] process’’ itself.
(Internal quotation marks omitted.) Skilling v. United
States, supra, 561 U.S. 385 n.19.
C
Presumed Prejudice
In determining whether prejudice should be pre-
sumed, we consider the following factors articulated
by the United States Supreme Court in Skilling, namely,
(1) ‘‘the size and characteristics of the community in
which the crime occurred,’’ (2) the nature of the media
coverage, (3) whether the passage of time has alleviated
the impact of any prejudicial publicity, and (4) whether
the jury’s actions and verdict, along with the jury selec-
tion procedures utilized, were consistent with imposing
a presumption of prejudice. Skilling v. United States,
supra, 561 U.S. 382–83.
Courts applying the Skilling factors have deemed
the size and characteristics of the community to be of
paramount importance. ‘‘The larger the community, the
more likely that impartial jurors can be found within
it. . . . And [i]t is well recognized that in a small rural
community in contrast to a large metropolitan area, a
major crime is likely to be embedded in the public
consciousness with greater effect and for a longer time.
. . . Thus both the size and the character of the coun-
ty’s population, while not determinative, are factors to
be considered.’’ (Citation omitted; internal quotation
marks omitted.) State v. Sowell, 148 Ohio St. 3d 554,
565, 71 N.E.3d 1034 (2016), cert. denied, U.S. ,
138 S. Ct. 101, 199 L. Ed. 2d 63 (2017). Although smaller
than the Houston and Boston metropolitan areas con-
sidered in Skilling v. United States, supra, 561 U.S. 382,
and In re Tsarnaev, supra, 780 F.3d 21, New Haven,
with an urban and suburban population of 846,000, is
significantly larger than other regions that courts have
deemed sufficiently populous to permit the selection
of an impartial jury, even in cases of local, and often
national, notoriety, particularly when expanded voir
dire procedures are employed. See, e.g., United States
v. Philpot, 733 F.3d 734, 738, 741 (7th Cir. 2013) (North-
west Indiana, with jury pool drawn from two counties
with population of about 600,000, was not ‘‘a small
town’’ that would support presumption of prejudice in
political corruption case); United States v. Jacques,
Docket No. 2:08-cr-117, 2011 WL 1706770, *1, *6, *9 (D.
Vt. May 4, 2011) (declining to move venue of trial for
widely known rape and murder of twelve year old girl
from Vermont to New York given federal district divi-
sion’s population of 500,000 and court’s intention to
enlarge jury pool and use expanded voir dire process
to assess effect of pretrial publicity); Luong v. State,
199 So. 3d 139, 144, 147–50 (Ala. 2014) (Mobile County,
Alabama, had diverse pool of more than 400,000 citizens
that functioned to mitigate against extensive pretrial
publicity in death penalty case of defendant accused
of throwing his four young children from bridge); People
v. Peterson, 10 Cal. 5th 409, 416, 441, 472 P.3d 382,
268 Cal. Rptr. 3d 56 (2020) (concluding that 700,000
residents of San Mateo County constituted sufficiently
large pool from which to draw jury in high profile death
penalty case concerning husband who killed his preg-
nant wife and unborn child), cert. denied, U.S. ,
141 S. Ct. 1440, 209 L. Ed. 2d 159 (2021); State v. Rob-
inson, 303 Kan. 11, 54–55, 74–77, 363 P.3d 875 (2015)
(no presumed prejudice in county of nearly 500,000
residents, despite survey indicating 94 percent aware-
ness and overwhelming belief in defendant’s guilt in
case involving sexually motivated serial killings of mul-
tiple women), cert. denied, U.S. , 137 S. Ct. 164,
196 L. Ed. 2d 138 (2016); State v. Kaarma, 386 Mont. 243,
251–52, 254–55, 390 P.3d 609 (no presumed prejudice
in Missoula County, Montana, with population of
approximately 110,000 and six major media outlets,
despite 90 percent juror awareness of homicide case,
given availability of questionnaire and individual voir
dire), cert. denied, U.S. , 138 S. Ct. 167, 199 L.
Ed. 2d 40 (2017); State v. Gribble, 165 N.H. 1, 5, 19–20,
66 A.3d 1194 (2013) (size of Hillsborough County, New
Hampshire, which has population of more than 400,000
and includes city of Manchester, mitigated effects of
pretrial publicity in home invasion case involving mur-
der of woman and attempted murder of her daughter,
even after trial and sentence of coconspirator). But
cf. Commonwealth v. Toolan, 460 Mass. 452, 464, 951
N.E.2d 903 (2011) (observing that ‘‘[t]he small size of
the Nantucket community weighed in favor of finding
local prejudice’’ in light of its ‘‘just over 10,000 perma-
nent residents’’ and fact that ‘‘[t]he extensive links
among the victim’s family, members of the [overall] jury
venire, and trial witnesses demonstrate[d] the network
of social relations connecting this community, of which
the victim was a valued member, and to which the
defendant was an outsider’’). The size and diversity of
New Haven, with its population of 846,000 at the time
of trial, greatly increase the feasibility of identifying an
impartial jury, meaning that this Skilling factor weighs
very strongly in favor of the state, particularly given
the much smaller populations that have been deemed
adequate to mitigate the prejudicial effect of substantial
and adverse pretrial publicity.29
With respect to media coverage and public aware-
ness, as a general proposition, even a high volume of
coverage about a sensational or particularly violent
crime does not by itself tip this Skilling factor to favor
a criminal defendant who is the subject of that publicity.
See State v. Carr, 300 Kan. 1, 67, 69, 331 P.3d 544 (2014)
(‘‘[A] quadruple [execution style] homicide and an
attempted [first degree] premeditated murder preceded
by hours of coerced sex acts and robberies naturally
[gave] rise to press coverage that some may fairly char-
acterize as at least occasionally sensational [and led to
increased purchases of home security systems]. It can
hardly help but be so. . . . Yet, overall . . . the pri-
marily factual tone of the press coverage . . . compen-
sated for its sheer magnitude, and the second Skilling
factor did not weigh in favor of presumed prejudice.’’
(Citation omitted.)), rev’d on other grounds, 577 U.S.
108, 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016); see also
State v. Reynolds, supra, 264 Conn. 223 (‘‘[o]ne who is
reasonably suspected [of] murdering [a police officer
in the line of duty] cannot expect to remain anonymous’’
(internal quotation marks omitted)). This is particularly
so, given that the impact of media coverage has become
increasingly difficult to assess. Unlike the relatively lim-
ited local television coverage considered by the United
States Supreme Court in Rideau v. Louisiana, supra,373 U.S. 725–27, in which the viewership was geographi-
cally confined and readily ascertainable, we must also
consider the reality of life in the twenty-first century.
‘‘Simply because prospective jurors may have heard
about a case through media reports does not render
them incapable of jury service, since, in today’s informa-
tion age, [when] news of community events [is] dissem-
inated virtually instantaneously by an ever multiplying
array of delivery methods, it would be difficult to find
[twelve] jurors who do not at least have some knowl-
edge of the facts of an important and tragic incident
like this one.’’ (Internal quotation marks omitted.) State
v. Addison, 165 N.H. 381, 431, 87 A.3d 1 (2013); see
State v. Gribble, supra, 165 N.H. 20 (describing difficulty
of estimating exposure to pretrial publicity given publi-
cation of news on Internet, which could be read nation-
wide, as compared to local print media or local
television); cf. United States v. Casellas-Toro, 807 F.3d
380, 386–88 (1st Cir. 2015) (considering ‘‘[the] compact,
insular community’’ in Puerto Rico in presuming preju-
dice in notorious murder case, especially when defen-
dant was ‘‘relatively unknown outside Puerto Rico’’
(internal quotation marks omitted)); United States v.
Keleher, Docket No. 20-019 (FAB), 2020 WL 4784749, *10
(D.P.R. August 17, 2020) (The court questioned whether
the First Circuit’s description in 1987 of Puerto Rico
as ‘‘ ‘a compact, insular community’ ’’ that is ‘‘ ‘highly
susceptible to the impact of local media’ ’’ remains accu-
rate given ‘‘[t]he advent of the [I]nternet and social
media (and other developments) . . . . Like the resi-
dents of Boston, it is possible that Puerto Ricans now
‘obtain their news from a vast array of sources.’ ’’).
Thus, caution about changing venue is appropriate ‘‘in
any case that draws significant national attention’’
because, ‘‘[i]f exposure to a certain level of pretrial
publicity renders a community presumptively unable
to convene an impartial jury, then no venue will be
acceptable, and no trial will be possible . . . .’’ (Inter-
nal quotation marks omitted.) Luong v. State, supra,
199 So. 3d 147.
That having been said, we acknowledge that at least
some of the coverage in the media in the present case
went beyond the reporting of even the most disturbing
facts and, instead, was at times evocative of the ‘‘lynch
mob mentality’’ or ‘‘[community wide] rush to judg-
ment’’ identified by the United States Supreme Court
as being sufficiently prejudicial to trigger a presumption
of prejudice. (Internal quotation marks omitted.) State
v. Gribble, supra, 165 N.H. 27. Commentary from a bipar-
tisan array of prominent political figures made clear
the extent to which this case affected the debate about
criminal justice public policy and, particularly, the
death penalty. Most graphic were the widely reported
comments of Senator Prague, who, as we previously
noted, was a formerly ardent death penalty opponent who
changed her position on the issue after meeting with
W, and then stated for the public record—while jury
selection was ongoing in this case—her widely reported
view that the defendant should be hanged in a public
street by his genitalia. Indeed, then Governor M. Jodi Rell
specifically cited this case in vetoing legislation repeal-
ing the death penalty. See Connecticut Executive Branch,
Press Release, Governor Rell Vetoes HB 6578, An Act
Concerning the Penalty for a Capital Felony (June 5,
2009), available at https://www.ct.gov/governorrell/
cwp/view.asp?A=3675&Q=441204 (last visited April 8,
2021). Similarly, former Governor Dannel Malloy stated
in his 2010 campaign for office that he would support
legislation prospectively repealing the death penalty,
with a prospective only repeal aimed specifically at
ensuring the executions of the defendant and Hayes.
In our view, targeted public commentary of this ilk—
above the line from the comments section and made
by prominent public officials—is sufficient to tip the
press coverage Skilling factor in the defendant’s favor,
even accounting for the twenty-first century reality of
the omnipresent media coverage of notorious crimi-
nal cases.
Turning to the remaining Skilling factors, we agree
with the defendant that the passage of several years
from when the home invasion occurred did not, by
itself, blunt the potentially prejudicial impact of the
coverage, insofar as this case was tried several months
after Hayes’ conviction and death sentence, the media
coverage of which operated to revive any dissipation
that had taken place. Cf. Skilling v. United States,
supra, 561 U.S. 383–85 (passage of four years between
Enron bankruptcy and trial minimized prejudice to Skil-
ling, although another Enron executive’s ‘‘[well publi-
cized] decision to plead guilty shortly before [Skilling’s]
trial created a danger of juror prejudice’’ that was
addressed by continuances and enhanced voir dire
(internal quotation marks omitted)); State v. Gribble,
supra, 165 N.H. 22–23 (effect of media coverage on
home invasion case tried approximately four months
after verdict in coconspirator’s trial, which had
‘‘received substantial publicity,’’ was mitigated because
defendant pleaded not guilty by reason of insanity and,
therefore, did not contest most factual allegations).
Most significant, however, the jury selection process
used in this case very strongly favors the state with
respect to whether to presume prejudice. Having denied
the motion to change venue without prejudice, the trial
court properly relied on the prospect of Connecticut’s
attorney led, individual voir dire process to give the
parties and the court a comprehensive opportunity to
assess each prospective juror’s familiarity with the case
and ability to render an impartial verdict; that process
far exceeded the more truncated process deemed con-
stitutionally adequate in Skilling.30 See, e.g., Skilling
v. United States, supra, 561 U.S. 387–89 (court led,
individual voir dire over five hour period following sub-
mission of questionnaires). Indeed, the trial court pru-
dently enhanced the utility of this extensive and
searching individual voir dire process by awarding each
of the parties forty peremptory challenges, which
exceeded the minimum of thirty mandated in capital
cases by § 54-82h (a). Coupled with the size and diver-
sity of New Haven’s population, this extensive process
strongly supports a conclusion that there was no pre-
sumptive prejudice in this case.31 See In re Tsarnaev,
supra, 780 F.3d 24–26 (relying on likelihood of extensive
voir dire process in Boston Marathon bombing case);
State v. Reynolds, supra, 264 Conn. 223–24 (relying on
individual voir dire process to mitigate effect of pretrial
publicity in extensively publicized death penalty trial
arising from killing of police officer); People v. Avila,
59 Cal. 4th 496, 499–500, 505–508, 327 P.3d 821, 173 Cal.
Rptr. 3d 718 (2014) (upholding denial of change of venue
prior to jury selection for death penalty trial arising
from widely publicized rape and murder of five year
old girl, which had been commented on by President
George W. Bush and highlighted by local radio show
encouraging execution of defendant, because county
was one of California’s most populous, and ‘‘prospec-
tive jurors would sympathize with [her] fate wherever
the trial was held,’’ two years and nine months had
passed since the crime, and ‘‘it was reasonable for the
trial court to conclude that actual voir dire—during
which the court and parties could question the jurors
[face-to-face]—was a more reliable way to measure the
effect of pretrial publicity than a survey conducted by
a person chosen by one of the parties’’), cert. denied,
575 U.S. 940, 135 S. Ct. 1712, 191 L. Ed. 2d 685 (2015);
State v. Kaarma, supra, 386 Mont. 251–52, 254–58 (trial
court properly denied motion for change of venue from
county with population of approximately 110,000,
despite fact that there had been 500 articles about delib-
erate homicide case with sympathy to victim and cover-
age of defendant’s prior bad acts, and 90 percent of
polled potential jurors had heard of case, because trial
court properly used detailed questionnaires and individ-
ual voir dire to assess impact of pretrial publicity); State
v. Addison, supra, 165 N.H. 430–31 (no presumptive
prejudice requiring transfer from Manchester, New
Hampshire, for death penalty trial for murder of city
police officer, despite fact that 98 percent of prospec-
tive jurors knew about case, because individual voir dire
enhanced with questionnaire and increased number of
peremptory challenges could be used to ensure impar-
tial panel); State v. Clinton, 153 Ohio St. 3d 422, 433–35,
108 N.E.3d 1 (2017) (no presumptive prejudice, despite
extensive publicity about prosecution for aggravated
murder and sexual assault of victim and her two minor
children, because, although most jurors knew some-
thing about facts of case, trial court took steps to
address impact of pretrial publicity, including having
potential jurors complete extensive publicity question-
naire, and using individual voir dire to weed out pro-
spective jurors with excessive knowledge of case or
apparent belief in defendant’s guilt), cert. denied,
U.S. , 139 S. Ct. 259, 202 L. Ed. 2d 173 (2018). Finally,
the trial court also prudently left open the possibility
of changing the venue should the individual voir dire
process indicate that an impartial jury could not be
empaneled in New Haven. See State v. Reynolds,
supra, 224.
As the California Supreme Court recently observed
in upholding the denial of a second change of venue in
the Scott Peterson death penalty trial,32 which was a
case of similar national notoriety arising from a hus-
band’s murder of his pregnant wife, the ‘‘publicity . . .
generated’’ in this case, ‘‘like the trials of O.J. Simpson,
the Manson family, and any number of other so-called
trials of the century before them, was intrinsic to the
case, not the place,’’ particularly given ‘‘the explosion
of cable television and the Internet as sources of infor-
mation, facilitating nationwide coverage of the case,’’
meaning it was ‘‘speculation to suppose [the] results of
jury selection would be any different anywhere else.’’
(Emphasis in original; internal quotation marks omit-
ted.) People v. Peterson, supra, 10 Cal. 5th 440. Put
differently, the endless and instant flow of informa-
tion—and in some cases disinformation—enabled by
twenty-first century media, does not stop at the political
boundaries of our judicial districts. ‘‘Instead, in a [high
profile] case such as this one, provided a sufficiently
large pool is available . . . the better answer is not to
change venue . . . but to rigorously vet potential
jurors to screen out those tainted and irrevocably biased
by pretrial publicity, to find [twelve], plus alternates,
who can decide only on the evidence admitted at trial.’’
Id., 441. We conclude, therefore, that the defendant
has not surmounted the ‘‘extremely high’’ bar; (internal
quotation marks omitted) State v. Robinson, supra, 303
Kan. 76; see also Skilling v. United States, supra, 561
U.S. 381; necessary to establish the existence of pre-
sumptive prejudice in this case, insofar as the other
Skilling factors function to outweigh the inflammatory
nature of the publicity that attended this case with
respect to the possibility of empaneling an impartial
jury.
D
Actual Prejudice
We next consider whether pretrial publicity resulted
in actual prejudice in this case.33 This requires us to
examine the record of jury selection to determine
whether it ‘‘adequately detect[ed] and defuse[d] juror
bias.’’ Skilling v. United States, supra, 561 U.S. 385.
Particularly in cases with extensive pretrial publicity
and notoriety, individual voir dire, which is mandated
by article four of the amendments to the Connecticut
constitution; see, e.g., Rozbicki v. Huybrechts, supra,
218 Conn. 392 and n.2; is critical to ensure the selection
of jurors who are sufficiently impartial to serve. See
Commonwealth v. Toolan, supra, 460 Mass. 468 (failure
to conduct individual voir dire regarding exposure to
pretrial publicity denied defendant his right to fair trial
given risk of prejudice occasioned by ‘‘small, socially
interconnected community’’ in Nantucket and extensive
pretrial publicity).
As a matter of both well established Connecticut and
federal constitutional law, ‘‘[n]o [hard and fast] formula
dictates the necessary depth or breadth of voir dire.
. . . Jury selection . . . is particularly within the prov-
ince of the trial judge. . . .
‘‘When pretrial publicity is at issue, primary reliance
on the judgment of the trial court makes [especially]
good sense because the judge sits in the locale where
the publicity is said to have had its effect and may base
her evaluation on her own perception of the depth and
extent of news stories that might influence a juror. . . .
Appellate courts making after-the-fact assessments of
the media’s impact on jurors should be mindful that
their judgments lack the [on the spot] comprehension
of the situation possessed by trial judges.
‘‘Reviewing courts are properly resistant to second-
guessing the trial judge’s estimation of a juror’s impar-
tiality, for that judge’s appraisal is ordinarily influenced
by a host of factors impossible to capture fully in the
record—among them, the prospective juror’s inflection,
sincerity, demeanor, candor, body language, and appre-
hension of duty. . . . In contrast to the cold transcript
received by the appellate court, the [in the moment]
voir dire affords the trial court a more intimate and
immediate basis for assessing a venire member’s fitness
for jury service.’’ (Citations omitted; internal quotation
marks omitted.) Skilling v. United States, supra, 561
U.S. 386–87; see also State v. Griffin, 251 Conn. 671,
710, 741 A.2d 913 (1999) (‘‘[t]he trial court is vested
with wide discretion in determining the competency of
jurors to serve’’); State v. Pelletier, supra, 209 Conn.
572 (describing trial court’s ‘‘broad discretion’’ with
respect to ‘‘determining the credibility of prospective
jurors and their ability to be impartial’’).
In assessing for actual prejudice, we are cognizant
that a lengthy voir dire process is frequently necessary
to seat a sufficient number of impartial jurors and that a
lengthy duration is not, by itself, indicative of ‘‘pervasive
prejudice permeating through the jury pool,’’ insofar as
‘‘a jury selection process of several weeks in length is
not unusual in either contemporary or historical terms.
[M]ajor cases have been known to require six weeks
or more before the jury is seated.’’ (Footnote omitted;
internal quotation marks omitted.) In re Tsarnaev,
supra, 780 F.3d 25–26; see id., 26 (‘‘it defies logic to
count the efforts the [D]istrict [C]ourt has taken to
carefully explore, and eliminate, any prejudice as show-
ing the existence of the same’’ (emphasis in original)).
This is particularly so in death penalty cases, which add
significant lines of questioning to the juror qualification
process.34 See id., 26 and n.15.
Accordingly, we now turn to a detailed analysis of
the jury selection process in the present case. Our juror
by juror35 analysis to determine whether the trial court
empaneled an impartial jury focuses on the jurors who
actually deliberated at trial and sentencing. See, e.g.,
State v. Gould, 322 Conn. 519, 531, 142 A.3d 253 (2016)
(‘‘[p]rejudice is assessed with reference to the jurors
who [found] the defendant [guilty] because [t]he consti-
tutional standard of fairness requires [only] that a defen-
dant have a panel of impartial, indifferent jurors’’
(internal quotation marks omitted)).
For the sake of relative brevity, our review does not
extensively consider the jurors’ personal background
histories, focusing instead on the portions of voir dire
relevant to the major issues in this appeal, namely, the
extent of their exposure to pretrial publicity and the
effect of that exposure on their case knowledge and
impartiality. Although the death penalty is no longer at
issue in this case, we include in footnotes a review of
each juror’s views on that topic, insofar as that subject
would have strongly informed the parties’ decision
whether to accept a particular juror.36 Finally, we note
that each selected juror repeatedly expressed his or her
ability (1) to be fair and impartial, (2) to understand
and apply the reasonable doubt burden of proof as to
each element of each charged offense, along with the
presumption of innocence, and (3) not to be swayed
by sympathy for the P family or to be affected emotion-
ally after viewing disturbing crime scene or autopsy
photographic evidence. None of the jurors who were
asked whether they had participated in the P family
memorial or charitable activities responded in the affir-
mative. None of the jurors who were asked had changed
their home security habits as a result of this case.
Finally, the trial court instructed each selected juror not
to talk about the case with anyone or to do independent
research, and to avoid media coverage of the case dur-
ing the time between jury selection and the start of
trial. We now turn to an examination of each juror’s
individual voir dire.37
1
Review of Jurors
a
M.N.
The first regular juror selected was M.N., a physi-
cian.38 When the trial court asked M.N. whether he
could be fair and impartial with respect to both the
guilt and penalty determinations, he stated: ‘‘[C]learly,
I’ve heard of this case, and, when it first happened, I
read about it in the news and saw some stories on TV.
Nonetheless, I realize that things may not always be the
way they are represented in the media, and I understand
that my charge would be to evaluate things based solely
on the evidence, evidence that would be presented dur-
ing court, and I will try my hardest to do that.’’ M.N.
had read about the case in the New York Times and
on Google News, and had ‘‘occasionally’’ seen stories
about it on television news. When asked about what
he knew about the case, M.N. stated: ‘‘I think that the
home was, I guess, the term has been used in the media,
the home was invaded, three of the four individuals
were raped and killed, and the fourth individual was
beaten, and then the house was put to fire.’’ M.N. was
familiar with Cheshire, having lived in a nearby town,
but did not know the area where the crime occurred.
M.N.’s last exposure to information about the case was
during Hayes’ trial; he was aware that Hayes was con-
victed but did not know the sentence imposed. Both
parties accepted M.N. without challenge.39
b
T.A.
The second regular juror chosen was T.A., a college
student studying criminal justice and social work who
interns with a program that assists sex offenders with
transitioning from incarceration to the community. T.A.
obtained most of his news, including knowledge about
this case, from television and stated that none of that
coverage would keep him from being fair and impartial,
particularly because he viewed the media as having ‘‘a
tendency of twisting and turning things . . . .’’ When
asked to rate how frequently he had heard about this
case on a scale of one to ten, he rated it between five
and seven. T.A. did not make a point of following the
coverage and had not read any of the books written
about the case. When questioned about his case knowl-
edge, T.A. stated that ‘‘a murder occurred in Cheshire,
and it was pertaining to the family members that, you
know, one person or two people, you know, were the
culprits of a murder.’’ T.A. believed that ‘‘three or four’’
people were killed in the incident and that two perpetra-
tors had been arrested. T.A. also knew that the other
person who was arrested had been convicted and sen-
tenced to death. T.A. was familiar with Cheshire but
not the street where the crime took place. T.A. stated
that none of that knowledge would keep him from being
fair and impartial because being a juror ‘‘pertains to
evidence and the law, so you can’t really manipulate
evidence or the law’’; he informed defense counsel that
he would consider this case on its own facts because
he did not ‘‘know [Hayes’] case. I don’t know what . . .
evidence . . . was presented to the jury to make [it]
decide that . . . .’’ He had not had ‘‘big’’ discussions
about the case with other people, having talked about
it once with his brother; T.A. did not remember his
brother’s opinion, which he emphasized would not
affect his decision making as a juror in any event. Both
parties accepted T.A. as a juror.40
c
T.M.
The third regular juror selected was T.M., an investi-
gator for a state agency working on ‘‘family issues,’’
whose responsibilities required her to testify in court
regularly.41 T.M. testified that she followed local televi-
sion news, along with some Internet news, but did not
read the New Haven Register ‘‘much.’’ T.M. had not
followed the news about this case ‘‘consistently’’ and
had no impressions about it other than that ‘‘innocent
people’’ had ‘‘suffered . . . .’’ She had not read any
books written about this case. When asked what she
knew about the case, T.M. stated that, from what she
had ‘‘been subjected to probably in the news and then
hearing it at work or wherever,’’ her impression was
that ‘‘the woman was followed from Stop and Shop to
her residence. I guess they waited outside and, at some
point . . . they kind of scoped out the neighborhood,
the area. Later that night, they broke into a basement
where [W] was, beat him up, tied him up, went upstairs
or proceeded upstairs and raped the young girls, [J],
beat them up, killed them, murdered them, and set the
house on fire, tried to escape. Or, excuse me, missing
the part where I guess she went to the bank to take
out ‘x’ amount of dollars or, you know, she was being
robbed.’’ T.M. emphasized, however, that she did not
have any preconceived ideas about the defendant’s guilt
or innocence and that she could put her knowledge
aside and keep an open mind because she has ‘‘to hear
both sides.’’ T.M. was aware that the defendant had
been caught at the scene, which indicated to her that
he was at the very least ‘‘a suspect at this point,’’
although he ‘‘may’’ or ‘‘may not’’ have committed the
crimes. T.M. did not see W’s appearance on The Oprah
Winfrey Show, although she had seen him on the news.
Her impression was that W was ‘‘suffering from a great
loss’’ but that she could still assess his credibility objec-
tively.42 T.M. had heard some discussions about Hayes’
trial and death sentence but did not believe that should
affect the defendant’s trial because he is a ‘‘[d]ifferent
individual,’’ and she did not ‘‘know the facts,’’ including
‘‘what part’’ the defendant had played, or even ‘‘if he
played a part.’’ T.M. had no preconceived notion as
to the sentence that the defendant should receive if
convicted of a capital offense, and she did not know
anything about him personally.
T.M. also testified that, prior to voir dire, two or three
of the other prospective jurors had discussed the case,
opining that ‘‘the police should have been there . . .
right away or should have done something that day.
That the two men [who] participated and that they’re
evil, things like that.’’ Those jurors thought that the
defendant and Hayes were ‘‘caught red-handed, so [they
were] guilty,’’ with one stating that the defendant should
receive life imprisonment. None of those prospective
jurors personally knew the P family or any of their
friends or colleagues. T.M. testified that these discus-
sions would not keep her from being fair and impartial
and deciding the case on the evidence heard in court.
T.M. also had discussed the case with family and
friends because it was a ‘‘hot topic’’ in the New Haven
area; although none of them had expressed a desire to
have the defendant executed, neither had any expressed
a belief that he was innocent. T.M. had never expressed
an opinion personally to anyone about the defendant’s
guilt or potential sentence. Her impression was that
‘‘[t]here’s different opinions’’ within the community,
acknowledging that many people believed that the
defendant should be executed. T.M. emphasized that
none of the community members’ views would influ-
ence her decision in any way and that she could with-
stand any pressure that she might feel because, ‘‘at
trial, you can’t listen to someone who’s not, you know,
involved in the issue or, you know, here every day, so,
no. I would have to go based on the facts that . . . I
learn during the trial. It wouldn’t have anything to do
with it.’’ T.M. said that she routinely pushes other peo-
ple’s opinions aside to reach decisions in both her pro-
fessional and personal lives. T.M. expressed confidence
in her ability to stand her ground and to consider other
people’s opinions during a difficult deliberation. Both
sides accepted T.M. as a juror.43
d
K.A.
The fourth regular juror selected was K.A., a physi-
cian.44 When asked about her familiarity with the case,
K.A. replied that she ‘‘under[stood] a family was lost
that day’’ and that ‘‘a family, a woman and her daughters
were murdered in their own homes,’’ as well as that ‘‘I
don’t remember the details, but I know that there was
also sexual abuse to some of them, including the daugh-
ters.’’ K.A. had not followed the case closely or read
anything about it recently.
K.A. had not discussed the case recently, although
her husband ‘‘ha[d] brought it up’’ to her ‘‘[i]ntermit-
tently,’’ in the context of his own religious ‘‘struggle[s]’’
with the death penalty and his sympathy for the P family.
K.A. further stated that this conversation had taken
place in the context of the Hayes verdict and that her
husband was ‘‘a bit disappointed with himself’’ for being
‘‘comfortable’’ with Hayes’ death sentence. K.A. did not
know enough about Hayes’ case to take a position dur-
ing that conversation. K.A. stated that her husband
believed that the defendant was guilty, as well, but that
his opinion had ‘‘[n]ot much’’ effect on her—and he
would ‘‘back [her] up on that,’’ as she listens to him
‘‘[c]onstructively’’ and will make up her own mind.
When questioned by defense counsel, K.A. stated that
the fact that she was a mother to two young children
would not keep her from being fair and impartial.
K.A. averred that she was proud of the criminal justice
system because ‘‘it’s part of what’s so great about this
country altogether,’’ as ‘‘it is pretty noble that we try
to give everybody the opportunity to . . . make their
case . . . for what’s happened rather than just assum-
ing . . . these are [the] facts or this is how the facts are
presented and . . . clearly this person must be guilty.
I think it’s ambitious and noble that we go beyond that
and try to make it a systematic presentation of what
the facts truly were rather than the circumstantial evi-
dence.’’ Both the state and the defendant accepted K.A.
as a juror.45
e
V.K.
The fifth regular juror selected was V.K., a mental
health counselor who works primarily with children
and adolescents.46 V.K. testified several times that she
would not have any problem being fair and impartial
to both sides, despite the fact that her sister is a victim’s
advocate who works with sexual assault victims. V.K.
testified that she was living in Spain when the murders
happened, and she had not heard anything about the
case at that time. When asked what she knew about
the case, V.K. stated that ‘‘it happened in Cheshire,’’
‘‘[t]wo daughters and . . . the mother were murdered,’’
and ‘‘the father I guess was there, but he survived. Um,
and their house was burnt down. And I guess there
[were] two suspects.’’ V.K. was aware that the first
suspect had been tried and convicted, and she
believed—but did not ‘‘know’’—that he had been sen-
tenced to death. V.K. had not followed Hayes’ trial or
other local news, choosing to follow only ‘‘important
national news’’ and ‘‘international news . . . .’’ V.K. did
not know anything about the defendant, favorable or
otherwise, including what his involvement was in the
crime. V.K. was not aware that books had been written
about this case.
V.K. had not discussed the case with friends, family,
or coworkers, although she perceived that everyone in
the community believed that the defendant was guilty.
She would, however, be able to ‘‘make a sound judgment
based on the evidence that was presented to me’’ and
to ‘‘stand by what I chose,’’ despite the beliefs of other
community members. V.K. would not let the communi-
ty’s apparent wishes factor into her decision making,
believing that her professional background left her
suited to resist peer pressure. She would make her
decision based solely on the evidence in the courtroom,
‘‘[m]ostly because I don’t know anything of the case
. . . so I really would need to hear all of the evidence
to make a sound judgment.’’ V.K. would be ‘‘honored
if [she were] asked’’ to serve on the jury because she
believed it to be an ‘‘important’’ civic obligation for her
to ‘‘do my part as a citizen.’’ She acknowledged that,
while waiting, she had discussed the case with some
of the other prospective jurors, who had made ‘‘[m]ostly
negative’’ comments about it, opining that they ‘‘could
never be . . . unbiased [toward] it and that they felt
[the defendant] was guilty.’’ V.K., however, did not
express any opinion about this case in those discus-
sions. V.K. was accepted as a juror.47 See footnote 46
of this opinion.
f
M.B.
The sixth regular juror selected was M.B., a retired
municipal social services employee. M.B. learned about
this case by reading the newspaper. When asked what
she knew about it, M.B. stated: ‘‘What I read is that
there were two people who broke into a home and
assaulted [J] and [W] and set the house on fire, and the
people who were in the home at the time, only one
person escaped, and the other three perished. . . .
[W]hat I know about it is what I’ve read. . . . I don’t
know exactly what I think about it . . . .’’ M.B. was
aware that the defendant had been arrested ‘‘directly
after he . . . left the house’’ and knew from reading
the newspaper that he had an accomplice named Hayes
who had already been tried, convicted and, she thought,
sentenced to death. Both parties accepted M.B. as a
regular juror.48
g
L.C.
The seventh regular juror selected was L.C., an archi-
tect employed by a university. L.C. had heard about
this case but did not watch television news and typically
just skimmed local newspapers for stories about her
employer. When asked what she knew about the case,
L.C. stated that ‘‘there was a murder in Cheshire,’’ but
she could not ‘‘exactly remember the date . . . and I
know the name of the family from seeing it, you know,
hearing it.’’ L.C. had not read any books about the case.
L.C. knew that there was another trial related to the
case because she passed the courthouse each day on
her way to work, and she was ‘‘racking my brains at
lunchtime’’ to remember that ‘‘there was a conviction,
but I don’t remember the sentence.’’ She had flipped
past, but had not read, stories about the Hayes trial;
she contrasted her lack of awareness of this case to
that of another homicide that she had followed more
closely because it had happened at the university where
she worked and had ‘‘affected us so much.’’ When ques-
tioned by defense counsel, L.C. explained that she could
be impartial because ‘‘I haven’t followed [the case] that
much . . . compared to most people in Connecticut
I’m probably not very knowledgeable about it. And . . .
it’s what our legal system is. I mean, that is what one
is supposed to do, and . . . I am a very ethical person.’’
She presumed that the defendant was innocent, and
she was ‘‘embarrassed to admit’’ that she did not recog-
nize him, had not heard his name before, and could not
‘‘remember the name of the first guy . . . .’’
L.C. had briefly discussed the case with her husband
in July, 2007, because they were ‘‘horrified . . . that
these deaths had happened, but, other than that . . .
we really haven’t talked about it,’’ including the verdict
or penalty in Hayes’ case. She did not have any conver-
sations with other coworkers, friends, or family mem-
bers about the case. L.C. assumed that the community
‘‘want[ed] some sort of retribution for the deaths of
. . . a woman and her two children,’’ but believed it
was her ‘‘professional duty’’ to withstand any pressure
during or after the trial.
L.C. stated that the other prospective jurors did not
discuss the case while they were waiting, other than
complaining about logistics and the inconvenience of
waiting. Both parties accepted L.C. as a juror.49
h
R.F.
The eighth regular juror selected was R.F., a munici-
pal employee with a college degree in public health.
R.F. had been exposed to ‘‘bits and pieces over the
course of . . . several months and years’’ about the
case from television coverage. R.F. had ‘‘heard’’ about
the case and ‘‘read [about it in] the newspaper’’ and
very briefly while looking at books at Barnes & Noble
bookstore; he had been aware of it from the day of the
incident when it was discussed in the breakroom at
his job, as well as in subsequent discussions with his
coworkers and his family about current events. When
asked whether he had a ‘‘preconceived idea’’ about the
defendant’s guilt from that coverage, he acknowledged
that ‘‘[p]robably, I would think he was guilty from what
I’ve read in the paper and what I’ve seen on TV,’’ but
he also had no ‘‘preconceived idea’’ of an appropriate
punishment. R.F.’s last reading about the case con-
cerned Hayes’ trial and subsequent suicide attempt.
When asked to provide a narrative of what he knew
about the case, R.F. stated that ‘‘the victims were at
. . . a food store of some sort and they were followed
home and then they broke in [at] some point later on,’’
and ‘‘tied them up. . . . I think they raped the wife
. . . and then they took her to the bank, I believe, to
try and withdraw money. They came back. He tried to
start a fire or did start a fire. They killed three of them,
and then they tried to drive away. The police stopped
them.’’ R.F. did not know which perpetrator had started
the fire or purchased the gasoline, and he could not
remember what was said in the newspaper about it; he
did not ‘‘know the details’’ of which parts were perpe-
trated by the defendant. R.F. was aware of Hayes’ name
and trial and the fact that he was found guilty and
sentenced to death, as well as that the defendant and
Hayes were arrested together, but, when questioned
about whether that would affect his impartiality or deci-
sion in this case, emphasized repeatedly that he ‘‘would
just ignore that’’ and that it ‘‘wouldn’t affect’’ him.
R.F. stated that, despite previous discussions with
family and coworkers about the ‘‘gruesome’’ nature of
the case, he did not ‘‘really remember’’ any opinions
about what should be done to the defendant or Hayes,
and he emphasized that he personally would ‘‘come in
with an open mind’’ and continue to presume that the
defendant was innocent. R.F. also understood that his
decision had to be based on the evidence presented in
court rather than ‘‘[p]ast history’’ such as newspapers
or conversations, describing himself as ‘‘pretty open-
minded,’’ despite his exposure to coverage of the case
in newspapers and on television, and conversations
with his parents, who thought it was ‘‘a pretty much
open and shut case . . . .’’
R.F. believed that the community was ‘‘angry’’ about
the case, and he indicated that some of his coworkers
had expressed opinions about it. R.F. had never posted
anything on social media about the case. Acknowledg-
ing that it would be ‘‘difficult,’’ R.F. stated that he could
reach a verdict independently, having made ‘‘unpopular
decisions’’ in the past that had made people ‘‘very angry
with me,’’ and believing that his friends and family
would not hold his decision against him. R.F. had not
heard other waiting, prospective jurors talk about the
case, other than complaining about how long the voir
dire process was taking. It did not bother him that two
potential jurors had left crying in his presence because
he could ‘‘understand them getting emotional about it,
but it didn’t really affect me.’’ Both the state and the
defendant accepted R.F. as a juror.50
i
L.K.
The ninth juror selected was L.K., a university
employee with a masters degree in psychology. L.K. had
not ‘‘read about the trial . . . or the case or anything
in a while.’’ When asked to provide a narrative of what
she knew about the case, which was a product of read-
ing newspapers, CNN’s website, and watching local tele-
vision news, L.K. stated: ‘‘[F]rom what I’ve heard, there
were two men who went into a house, and I believe
the—the father, who is [W], was, I think, asleep in
another room, and they came in, and I’m not sure if
they had, you know, hit him or something happened, but
then they ended up—the—the mother—I don’t know
if the girls woke up, too, but they ended, like, at—that
was, like, in the evening, I think.
‘‘And then the next day I know that . . . the wife
and mom went to the bank to withdraw a sum of money,
and I think that she told the tellers there that—I don’t
know if she told them details or that she was being
held captive or whatever, but she indicated something
to them, and they did report that to the police.
‘‘And then I know that there are charges—I think
there were charges of sexual assault as well, and then
I know that the house was burned down and [W] did
manage to escape, but that the other three died in the
fire.’’ L.K. testified that she was ‘‘sketchy’’ about the
details of the arrests of Hayes and the defendant. She
did not ‘‘recall’’ who had performed specific acts in the
house. The last thing she read about the case was that
Hayes had been tried and convicted, and she ‘‘believe[d]
he was sentenced to death.’’ L.K. had not seen W’s
appearance on The Oprah Winfrey Show; she had seen
him elsewhere on television and only had the ‘‘general
impression’’ that he ‘‘was a man who lost his family.’’
When asked whether she could decide the case based
solely on the evidence presented in court, given that
some of it might be consistent with what she knew and
some might be different, L.K. replied that she could do
that, along with affording the defendant his presump-
tion of innocence. She understood that ‘‘serving on a
jury and being part of this is . . . just about what is
presented here,’’ and she would ‘‘come in with the
understanding that [the] knowledge that I’ve heard and
learned or opinions that I may have come or thought
about are left . . . outside because I can only evaluate
or think about what is shown to me in . . . this court-
room.’’ When asked whether the Hayes’ verdict would
affect her thinking, L.K. observed that, ‘‘in an ideal
world, you know, we would have people who knew
nothing and just walked in . . . but that’s not the world
we live in. And, so, you need to take knowledge and
prior things that you know and realize that this trial is
not for the person, that person was convicted, that was
what happened with him, this is for someone else. It’s
an important thing to evaluate critically. . . . [M]y goal
in coming in and being a juror would be to just listen
to what I am told here.’’ L.K. acknowledged that, based
on the prior coverage and Hayes’ verdict, before coming
to court and hearing the instructions, she would have
felt that the defendant ‘‘probably was guilty but that,
you know, he hasn’t been tried.’’ She was ‘‘comfortable’’
that she could put aside any ‘‘preconceived ideas’’ that
she had about the case.
L.K. had spoken about the case over the last few
years with friends, family, and coworkers because ‘‘it’s
been a very big case’’ and believed that ‘‘the community
wants justice . . . . [Y]ou know it was a horrific
crime.’’ She believed that the general feeling was that
‘‘whoever did that should absolutely be punished for
it.’’ L.K.’s decision would not be influenced by what she
thought the community would want, emphasizing: ‘‘I
don’t want to be chosen, but . . . being a part of this
jury . . . it’s an important thing to do. I don’t think
that I could walk away or feel at rest with myself if
. . . I didn’t do it the way it was supposed to be done.
. . . [T]hese are big decisions that have to be made and
. . . this was a horrific crime, and this is someone’s
life that we’re . . . sitting here discussing, and I think
that it would be very important for me to do it in the
way that is the law and that has to be done. I couldn’t
rest with myself if I didn’t.’’ Both the state and the
defendant accepted L.K. without challenge.51
j
S.H.
The tenth juror selected was S.H., a truck mechanic.
S.H. read the New Haven Register and the Meriden
Record-Journal daily but did not remember the last
thing he had read or seen on television news about the
case. S.H. did not regularly search the Internet for news
or use it otherwise. He did not know that jury selection
was going on in this case until he reported for jury duty.
When asked what he knew about the case, S.H. stated
that he had ‘‘read the early headlines and maybe a
little bit of the follow-up on that’’ in July, 2007. S.H.
‘‘underst[ood] a couple of guys broke into a house . . .
I guess they tried to make it look like a robbery, I
believe, and they killed some people.’’ He believed that
three people had died and that two had been arrested.
S.H. thought that ‘‘a mother and a daughter [were killed]
but [was] not sure beyond that.’’ He did not know how
the victims died or the respective roles of the individuals
arrested. S.H. did not know about the Hayes trial. S.H.
did not know the defendant’s name or background. He
had not discussed the case with anyone and had no
sense of what the community wanted done with the
case. S.H. was familiar with Cheshire but had never
been near the crime scene. Both parties accepted S.H.
as a juror.52
k
J.H.
The eleventh juror selected was J.H., a corporate
compliance officer and insurance fraud investigator.
J.H. subscribed to the Meriden Record-Journal but did
not read it every day—she received it primarily to help
her parents keep up on the obituaries. When asked what
she knew about the case, J.H. stated that she had ‘‘read
somewhat about it in the newspaper’’ but ‘‘was not
really following the case, and that it was a terrible
tragedy.’’ Providing an additional narrative, J.H. recalled
that ‘‘two individuals broke into the home of [W], and
subsequently his wife and two daughters were killed.’’
When asked about whether she knew anything about
a trip to the bank, J.H. remembered having ‘‘read some-
thing about going to the bank,’’ but that was ‘‘unclear
to [her].’’ She did not know how the deaths occurred
but remembered reading ‘‘something’’ about allegations
of sexual assault. J.H. did not know how the suspects
were caught. She knew that the case of the other suspect
was ‘‘settled recently’’ and that he was found guilty, but
she did not ‘‘know any more than that,’’ including the
punishment he received. She also did not know anything
about the different activities of the two men in connec-
tion with the crime. When asked whether she knew
anything about the defendant’s background, J.H.
‘‘recall[ed] something about a father, but . . . nothing
really more than that.’’ She had not seen W on television.
J.H. did not read any books about the case or ever call
into a radio talk show to discuss it. She was a ‘‘little
bit’’ familiar with Cheshire but did not know the location
of the crime scene.
J.H. had discussed the case with family members
when it first happened, ‘‘not at length, but just to be
very sympathetic.’’ She did not discuss it with cowork-
ers. She thought the community wanted ‘‘[j]ustice’’ but
‘‘couldn’t presume to know’’ what that meant in this
case. J.H. stated that she was ‘‘used to controversy’’ and
that the feelings of the community ‘‘wouldn’t change
my vote or my opinion’’ because a juror hearing evi-
dence for several months is in a different position than
the general public. J.H. emphasized that she would con-
fine her decision to the evidence presented in court
and would not consider the ‘‘fair amount of sympathy’’
that she was sure she would feel. Both parties accepted
J.H. as a juror.53
l
C.A.
The twelfth regular juror selected was C.A., a tennis
coach. C.A. testified that he had heard ‘‘[n]ot a lot, but
some’’ about the case. He read the New York newspa-
pers ‘‘[f]airly regularly,’’ and the New Haven Register
‘‘periodically,’’ as well as watched local television news
and saw some news on the Internet. C.A. had seen news
stories about the case but had not followed the case
regularly or made a point of learning about it. C.A. knew
there was ‘‘a lot of attention, a lot of media coverage,’’
but did not ‘‘remember . . . any specific details that
stood out because it was hard to piece kind of all of it
together . . . .’’ When asked what he knew about the
events, C.A. recalled ‘‘[o]nly that it was a . . . very,
very heinous crime’’ and that ‘‘[t]here was a home break-
in, people were killed, a wife and daughters were killed,
the house was set on fire, and [that] relatively, as far
as I know, is it.’’ He did not know how the house was
set on fire or where the suspects were arrested. C.A.
had heard the defendant’s name before in the news but
did not have any impression of him from that coverage.
C.A. could not remember the last thing he had heard
about the case. He was not familiar with the neighbor-
hood in Cheshire where the crime occurred. C.A. was
aware that there had been another trial but did not
know the name of the other defendant or the result of
his case.
In stating his ability to presume the defendant inno-
cent and to decide the case based only on the evidence
in court, C.A. recognized that ‘‘the case itself hasn’t
come to trial,’’ and ‘‘everybody deserves a fair shot in
the court, not necessarily in the court of opinion or in
the court of television, newspaper, media, whatever.’’
C.A. described himself as ‘‘a facts person,’’ stating that
‘‘I want to hear everything before I make judgments.’’
C.A. testified that the other prospective jurors had
not discussed the case while they were waiting. He did
not know what the community wanted to happen with
the case and had not discussed it with his family or
friends. C.A. suggested that, ‘‘maybe, the people in
Cheshire who are close to the situation and have knowl-
edge of it would . . . want a certain verdict, but I don’t
know if I can answer that for the community at large,
basically, you know, make a general statement like
that.’’ C.A. stated that, if he did come to learn of those
opinions, they would not affect his decision in this case.
Both parties accepted C.A. as a juror.54
2
Actual Prejudice Analysis
We conclude that the defendant suffered no actual
prejudice from the extensive pretrial publicity about
this case, as both the jury and the voir dire process by
which it was selected compared very favorably to that
which the United States Supreme Court deemed consti-
tutionally acceptable in Skilling v. United States, supra,
561 U.S. 358. First, the individual voir dire process did
not consist of blind acceptances of prospective jurors’
assurances of impartiality but involved a lengthy and
thorough probing of their responses to questions by the
state, the defendant, and the trial court. The defendant
did not exhaust his peremptory challenges until the voir
dire of the backup alternate jurors—after the regular
and alternate jurors had been selected—and did not
challenge for cause any juror who actually deliberated
in this case. We also ‘‘note that the trial court took
unusually thorough measures to ensure the jury’s con-
tinued impartiality through the use of extensive daily
admonishments counseling the avoidance of any public-
ity.’’ State v. Crafts, supra, 226 Conn. 261.
Although some of the jurors in this case expressed
abstract sympathy for W and the P family based on what
had happened to them—none of which was disputed
at trial—these statements paled in contrast to those
made by certain jurors deemed impartial in Skilling,
several of whom had been personally affected by the
Enron collapse. See Skilling v. United States, supra, 561
U.S. 396 (noting that District Court properly rejected
challenge for cause in crediting juror’s statement that
he would have no trouble telling coworker who had
lost 401 (k) funds in Enron collapse of not guilty verdict,
despite fact that juror personally believed Enron’s col-
lapse was product of ‘‘ ‘greed’ ’’ and that ‘‘corporate
executives, driven by avarice, ‘walk a line that stretches
sometimes the legality of something’ ’’); id., 397 (District
Court did not commit manifest error in seating juror
who ‘‘said she was angry about Enron’s collapse and
that she, too, had been forced to forfeit [her] own 401
(k) funds to survive layoffs’’ because she ‘‘made clear
during voir dire that she did not personally blame Skil-
ling for the loss of her retirement account,’’ thought
she could be fair and impartial, and had ‘‘not [paid]
much attention to [Enron related] news . . . [so] she
quite honestly did not have enough information to know
whether Skilling was probably guilty’’ (internal quota-
tion marks omitted)); id. (District Court properly cred-
ited multiple assurances of impartiality from juror who
‘‘wrote on her questionnaire that [Skilling] probably
knew [he] [was] breaking the law,’’ after she stated that
‘‘she did not know what [she] was thinking when she
completed the questionnaire’’ (internal quotation marks
omitted)). As the United States Supreme Court
observed, ‘‘[j]urors . . . need not enter the box with
empty heads in order to determine the facts impartially.
It is sufficient if the juror[s] can lay aside [their] impres-
sion[s] or opinion[s] and render a verdict based on the
evidence presented in court.’’ (Internal quotation marks
omitted.) Id., 398–99.
Consistent with the deference that we afford to the
trial court’s assessment of juror impartiality, pre-Skil-
ling decisions from this court also support the conclu-
sion that there was no actual prejudice in this case. For
example, State v. Pelletier, supra, 209 Conn. 564, arose
from the highly publicized Purolator Armored Car rob-
bery in Waterbury, during which three guards were
shot to death. See id., 567–68. In Pelletier, this court
concluded that the trial court did not deprive the defen-
dant of a fair trial by declining to transfer his felony
murder case out of Waterbury for a new trial after
a successful appeal from the judgment of conviction
rendered at his first trial. Id., 568–69. The court rejected
the defendant’s claim that ‘‘the best evidence of actual
prejudice is found in the results of the voir dire examina-
tion of 381 venirepersons. Of those examined, the defen-
dant claim[ed] that 199 were excused for cause because
of prior knowledge of the case. [The court concluded,
however, that this] fact alone . . . [did] not establish
actual jury prejudice.’’ Id., 570. The court emphasized
that ‘‘[e]ach prospective juror was thoroughly and
extensively examined. The parties fully explored the
level and effects of each prospective juror’s exposure
to the publicity concerning the defendant. . . . While
slightly more than 50 percent of the prospective jurors
had prior knowledge of the case that would affect their
ability to be impartial, of the twelve jurors and two
alternates actually selected, none had substantial
knowledge of the case or preconceived notions of the
defendant’s guilt. It is clear that [q]ualified jurors need
not . . . be totally ignorant of the facts and issues
involved. . . . Notably, none of the jurors or alternates
selected knew of the defendant’s prior conviction. . . .
[T]here was no connection between the pretrial public-
ity and actual jury prejudice and, therefore . . . the
trial court did not abuse its discretion in denying the
defendant’s motion to transfer the prosecution.’’ (Cita-
tions omitted; emphasis added; internal quotation
marks omitted.) Id., 570–71. In particular, the court
deferred to the trial court’s decision to credit the state-
ments of ‘‘eight venirepersons . . . that their knowl-
edge of the defendant’s conviction [at his first trial]
would not affect their ability to be impartial,’’ particu-
larly when ‘‘[t]hroughout the voir dire the trial court
excused for cause those venirepersons it believed could
not be impartial.’’ Id., 572.
Similarly, in the infamous ‘‘ ‘woodchipper murder
case’ ’’; State v. Crafts, supra, 226 Conn. 258; this court
held that there was no actual prejudice requiring a new
trial because ‘‘the voir dire . . . reveal[ed] that,
although many prospective jurors were familiar with
the fact of the defendant’s arrest and of his first trial,
most had only a vague recollection of any particular
accounts of the crime.’’ Id., 259. This court also
observed that the defendant in Crafts had failed to
exhaust his peremptory challenges after unsuccessful
challenges for cause and had had the opportunity to
explore fully each juror’s exposure to pretrial publicity;
id., 259–60; and that ‘‘the trial court took unusually
thorough measures to ensure the jury’s continued
impartiality through the use of extensive daily admon-
ishments counseling the avoidance of any publicity.’’
Id., 261.
Sister state case law similarly makes clear the defer-
ence appellate courts afford to trial courts’ assessments
of juror impartiality during voir dire during notorious
trials. See, e.g., People v. Avila, supra, 59 Cal. 4th 508,
513 (local radio show broadcast during jury selection
urging death verdict and recruitment of ‘‘ ‘stealth
juror’ ’’ did not require change of venue because trial
court properly used voir dire to determine whether
prospective jurors had listened to program, and review
of voir dire ‘‘fully support[ed] the trial [court’s] estima-
tion of the jury’s impartiality’’); State v. Carr, supra,300 Kan. 76 (The court held that there was no actual
prejudice in a death penalty trial, which arose from
a crime spree culminating in a home invasion with a
quadruple homicide and sexual offenses, because,
‘‘despite widespread pretrial publicity, an unbiased jury
had been selected in Wichita [Kansas]. Eight of the
[twelve] jurors eventually seated in the defendants’ trial
held no prior opinions on guilt. The four who admitted
to forming such opinions ultimately said that they could
set their opinions aside.’’); State v. Gribble, supra, 165
N.H. 26–28 (no actual prejudice from pretrial publicity
in home invasion, double homicide case given that trial
court credited jurors’ assurances that they could decide
case based solely on evidence, despite fact that ‘‘almost
all of the prospective jurors were aware of the crimes
before jury selection,’’ and all ‘‘sixteen seated jurors
reported knowing about the crimes prior to jury selec-
tion, and most acknowledged that they had seen or
heard media accounts of the case,’’ even when trial
court had denied five challenges for cause to seated
jurors with some having previously discussed case with
others); People v. Cahill, 2 N.Y.3d 14, 36–37, 40–41, 809
N.E.2d 561, 777 N.Y.S.2d 332 (2003) (upholding denial
of venue change in case of husband accused of poison-
ing his wife after she was comatose from beating he
inflicted on her, despite facts that 86 percent of prospec-
tive jurors, including eight of twelve who sat, had heard
of case and that 52 percent ‘‘came to court with an
opinion as to [the] defendant’s guilt or innocence . . .
[because] the voir dire successfully culled out jurors
who may have been biased by pretrial publicity’’).
As the defendant points out, the appropriately lengthy
jury selection process in this case was not always the
smoothest of sailing. A number of prospective jurors
lost their composure at times, with some crying in open
court or making menacing comments about or toward
the defendant, with one, for example, calling him a
‘‘[k]iller, asshole,’’ after she was excused from jury ser-
vice. These comments were a serious breach of the
decorum expected in our state’s courthouses. Neverthe-
less, these outbursts, although inappropriate and unfor-
tunate, did not deprive the defendant of a fair trial
because the trial court queried any prospective jurors
who had witnessed them about any effect that the out-
bursts might have had on their impartiality. See State
v. Ziel, 197 Conn. 60, 65–67, 495 A.2d 1050 (1985) (com-
mentary in jury room by venire members that defendant
was guilty did not require excusal of entire panel, and
trial court properly credited testimony of two jurors
that they could remain impartial and decide case based
solely on evidence in court, despite having heard those
comments). Given the extensive voir dire conducted in
this case, we defer to the trial court’s assessment of
the credibility of these jurors in light of their answers
that they could remain fair and impartial, particularly
insofar as only one of the prospective jurors who wit-
nessed an outburst, R.F.—who saw two women leave
crying—actually sat as a juror in this case, and the
defendant did not challenge him—or any other regular
juror—for cause. See part I C 1 h of this opinion. Accord-
ingly, we conclude that the pretrial publicity did not
result in actual jury prejudice that deprived the defen-
dant of a fair trial.
E
Whether the Trial Court Improperly Denied the
Defendant’s Challenges for Cause
The defendant next claims that the trial court abused
its discretion by denying his challenges for cause to
twelve potential jurors,55 thus depriving him of a fair
trial. He argues that they could not judge his case fairly
and impartially, and the trial court improperly placed
‘‘undue reliance on [those jurors’] own assessments—
expressed with varying degrees of certainty—that they
could be fair and impartial.’’ In response, the state cites,
among other cases, State v. Campbell, 328 Conn. 444,
180 A.3d 882 (2018), and State v. Esposito, 223 Conn.
299, 613 A.2d 242 (1992), and contends, inter alia, that
the defendant cannot prevail on these claims because
he did not exhaust his forty peremptory challenges until
after the twelve main and six alternate jurors had been
seated, and, most important, no juror who decided his
guilt was one whom he had challenged for cause. We
agree with the state and conclude that any error with
respect to challenges for cause was harmless because
none of the challenged jurors actually decided his guilt.
‘‘The Connecticut constitution guarantees a criminal
defendant the right to exercise peremptory challenges
in the selection of his jury. Conn. Const., [amend. IV];
see also General Statutes §§ 54-82g and 54-82h. . . .
[W]e agree with numerous other courts throughout the
nation that it is reversible error for a trial court to force
an accused to use peremptory challenges on persons
who should have been excused for cause, provided the
party subsequently exhausts all of his or her peremptory
challenges and an additional challenge is sought and
denied.’’56 (Internal quotation marks omitted.) State v.
Esposito, supra, 223 Conn. 313; see State v. Campbell,
supra, 328 Conn. 476; State v. Kelly, 256 Conn. 23, 31,
770 A.2d 908 (2001).
‘‘[I]t is implicit in Esposito that, in determining
whether the denial of a for cause challenge was poten-
tially harmful, this court considers whether an identifi-
able, objectionable juror actually served on the jury
that decided the case, not whether the composition of
the jury would have been different in the absence of
the claimed error.’’ State v. Ross, 269 Conn. 213, 232,
849 A.2d 648 (2004); see id., 233 (failure to seek and
exercise additional peremptory challenge against spe-
cific juror after exhaustion of peremptory challenges
rendered harmless any previous improper denial of for
cause challenge because ‘‘the defendant was not forced
to accept an incompetent or objectionable juror after
his peremptory challenges had been exhausted’’). Put
differently, ‘‘the general rule is that an improper grant
or denial of a for cause challenge is not prejudicial
unless the defendant shows that the ruling resulted in
an identifiable, objectionable juror actually serv[ing] on
the jury that decided the case . . . .’’ (Internal quota-
tion marks omitted.) State v. Gould, supra, 322 Conn.
530. ‘‘Prejudice is assessed with reference to the jurors
who convicted the defendant because [t]he constitu-
tional standard of fairness requires [only] that a defen-
dant have a panel of impartial, indifferent jurors. . . .
The right to challenge is the right to reject, not to select a
juror of the defendant’s preference.’’ (Citations omitted;
internal quotation marks omitted.) Id., 531. But cf id.,
531–32 (violation under Batson v. Kentucky, 476 U.S.
79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), is ‘‘a limited
exception’’ to prejudice rule).
We conclude that the defendant cannot prevail on
his for cause challenge claims because no challenged
juror actually sat to deliberate in this case. It is undis-
puted that the defendant did not challenge for cause
any of the twelve main jurors who actually deliberated
on this case; see part I C of this opinion; and none of
the alternates or backup alternates, some of whom had
been challenged for cause, was required to participate.
Accordingly, we need not reach the merits of these
claims because any error in the trial court’s rulings on
these identified challenges for cause was harmless due
to the fact that none of those jurors deliberated with
the jury that decided his guilt.57
II
CLAIMS ARISING FROM HAYES’ LETTERS
The defendant next raises several claims arising from
the state’s disclosure, after the close of evidence, of
approximately 130 pages of letters written by Hayes
while he was incarcerated, which the Department of
Correction (department) had intercepted before they
reached their intended recipient, an unidentified
woman in North Carolina. In addition to claiming that
the state’s disclosure of the letters after the close of
evidence violated Brady v. Maryland, supra, 373 U.S.
83, the defendant also contends that the trial court
improperly denied his motions (1) for a continuance to
assess the information therein, and (2) to reopen the
evidence because the trial court had found that the
letters were not sufficiently trustworthy to render them
admissible as statements against penal interest under
§ 8-6 (4) of the Connecticut Code of Evidence.58 The
defendant argues that Hayes’ letters would have sup-
ported his theory of the case, namely, that he did not
intend for anyone to be killed, insofar as Hayes essen-
tially admitted in the letters that he was the ‘‘master-
mind’’ of the invasion of the P family home, and also
confessed to raping, torturing, and murdering seventeen
other women and girls. In response, the state contends
that the trial court properly exercised its discretion to
deny the various motions given its predicate determina-
tion that the letters were not admissible as statements
against penal interest, which also rendered them imma-
terial for Brady purposes. The state further argues that
any error was harmless because admitting the letters in
their entirety into evidence would have been extremely
prejudicial to the defendant because they contained
graphic depictions of sexual assaults—including the
assault of M that the defendant denied committing—
and descriptions of joint efforts between the defendant
and Hayes to plan and execute the crimes. We agree
with the state and conclude that the trial court did not
abuse its discretion in denying the defendant’s motions
for a continuance, mistrial, or to reopen the evidence
on the basis of the disclosure of the letters after the
close of evidence.
The record reveals the following additional relevant
facts and procedural history. After the close of evi-
dence, on October 7, 2011, the state provided the defen-
dant with 132 pages of handwritten letters from Hayes
to an unidentified woman who lived in North Carolina,
which the department had intercepted and given to the
prosecutor. On October 11, 2011, which was the day of
closing arguments, the defendant moved for a continu-
ance, claiming that he needed time to assess the letters
because they contained information that was exculpa-
tory to him, as, in addition to vividly describing the
details of what had transpired in the P residence, Hayes
confirmed his leadership role when he stated: ‘‘The [P]
home invasion was a dry run in the partnership between
[the defendant] and myself. I do now realize had we
gotten away, I would have killed [the defendant]. He
was not even close to being worthy of my partnership.
His sloppiness and lack of control would have been my
downfall . . . .’’ The defendant also argued that the
letters provided evidence of other crimes that estab-
lished Hayes’ modus operandi, given his claim therein
that he had committed seventeen other murders by
strangulation across the northeastern United States,
each of which was preceded by a sexual assault. The
trial court denied the motion for a continuance, stating
that, although it would have granted one during a court
trial, ‘‘we have the jury that’s ready to go, and [its] time
has to be considered, too, and it’s a balancing act.’’
The trial court further observed that the letters did not
appear exculpatory to the defendant. The trial court
did, however, agree to delay submitting the case to the
jury for deliberations until the following day, in order
to give the defendant and the court an additional oppor-
tunity to review the letters in more detail later that day.59
The next day, the defendant moved for permission
to reopen the defense, initially proposing to offer Hayes’
testimony to establish his lack of availability to testify
as a predicate to the admissibility of the letters.60 The
defendant also suggested that the postevidence disclo-
sure of the letters, which appeared to have been written
between August and September of 2011, could form the
basis for a motion for a mistrial, although he agreed
that the prosecutor had not been dilatory about provid-
ing the letters. Defense counsel reiterated his desire
for a continuance because he ‘‘had very little time to
actually go through [the letters] and figure out [their]
evidentiary potential,’’ observing that Hayes’ ‘‘depraved
letter . . . outlines details perceived by him and writ-
ten by him as to the events that occurred in the [P]
home; perhaps, more importantly, as he details other
crimes he’s committed, he develops [a modus operandi]
that is similar to this crime.’’ Defense counsel again
argued that the language describing the P home invasion
as a ‘‘dry run’’ and indicating that Hayes would have
killed the defendant had they escaped ‘‘clearly demon-
strates that Hayes was the mastermind and the leader,’’
which was ‘‘exculpatory in rebutting the state’s theory
that [the defendant] was the leader.’’ Defense counsel
also argued that Hayes’ claimed history of having raped
and strangled seventeen women ‘‘would indicate that,
unbeknownst to [the defendant] . . . when they
entered that house . . . Hayes had an agenda that he
[had not] exposed to [the defendant], which was to
further his [modus operandi] and to further his
depraved actions that he had done in the past.’’61 Coun-
sel argued that it was ‘‘fundamentally unfair’’ that, given
the ‘‘clear . . . exculpatory information’’ in the letters,
he did not have time to investigate ‘‘information of this
type,’’ including the identity of the woman and any
questions that might have been posed to Hayes in
responsive letters, which might provide context for his
statements. The state objected to the defendant’s
motion to reopen, arguing that the letters were hearsay
that were ‘‘unequivocally, undeniably . . . not reli-
able . . . .’’
The trial court treated the defendant’s motions as
ones for both a continuance and to reopen, and denied
both, relying on this court’s decision in Wood v. Bridge-
port, 216 Conn. 604, 583 A.2d 124 (1990). The court
determined that there was nothing in the letters that
would lead to a ‘‘miscarriage of justice’’ should the
evidence not be reopened. Assuming that Hayes would
assert the fifth amendment privilege and thus be
unavailable as a witness, the trial court nevertheless
determined that the letters were not admissible as state-
ments against penal interest under § 8-6 (4) of the Con-
necticut Code of Evidence because the statements
therein were unreliable, as Hayes’ descriptions of the
seventeen homicides were ‘‘couched in terms that
would be very difficult to allow corroboration because
no dates are given, no times [are given], no locations
are given, what he did with the bodies is not given.’’
Most important, the trial court emphasized that the
defendant ‘‘cherry-picks’’ certain portions of the letters,
while ignoring others that were ‘‘quite damning’’ to him,
with the letters in their entirety being ‘‘the seal of [the
defendant’s] doom’’ were they to be admitted into evi-
dence.62 Specifically, the trial court observed that the
letters would not benefit the defendant, even if Hayes
were to be deemed ‘‘the leader in this horrendous enter-
prise,’’ given statements therein that the defendant him-
self had admitted prior killings, Hayes stated that they
had planned to kill all of the occupants of the P house,
Hayes vividly described watching the defendant sexu-
ally assault M anally, and Hayes said that it was the
defendant who had poured the gasoline. The trial court
further concluded that the probative value of the letters
was outweighed by their prejudicial effect because lead-
ership was not relevant to the elements of the crimes,
with the content of the letters ultimately being harmful
with respect to supporting the defendant’s claim of lack
of intent.63 The trial court then denied the defendant’s
motion for a mistrial based on prejudice caused by the
late production of the letters, concluding that the state
had turned them over immediately upon receipt.
The defendant’s various claims arising from the dis-
closure of the Hayes letters after the close of evidence
are evaluated under similar, well established legal stan-
dards, and we consider them together. With respect to
the defendant’s request to reopen the evidence, we note
that, ‘‘[i]n any ordinary situation if a trial court feels that,
by inadvertence or mistake, there has been a failure to
introduce available evidence upon a material issue in
the case of such a nature that in its absence there is a
serious danger of a miscarriage of justice, it may prop-
erly permit that evidence to be introduced at any time
before the case has been decided. . . . Whether . . .
a trial court will permit further evidence to be offered
after the close of testimony in a case is a matter resting
in the sound discretion of the court. . . . Such a
reopening should not be permitted if it would result in
substantial prejudice to a party.’’ (Citations omitted;
internal quotation marks omitted.) Wood v. Bridgeport,
supra, 216 Conn. 606; see, e.g., State v. Carter, 228 Conn.
412, 420–21, 636 A.2d 821 (1994); State v. Dunbar, 51
Conn. App. 313, 320, 721 A.2d 1229 (1998), cert. denied,
247 Conn. 962, 724 A.2d 1126 (1999), and cert. denied,
247 Conn. 962, 724 A.2d 1126 (1999). In considering
‘‘whether the trial court acted within its broad discre-
tion in rejecting the defendant’s request for permission
to introduce [evidence] after the defendant had rested
his case,’’ we consider the admissibility of the proffered
evidence, as well as ‘‘the specific circumstances of the
defendant’s request, including the state’s interest in an
orderly trial process, the potential for jurors to have
placed undue emphasis on the evidence had it been
admitted, and the nature of the evidence.’’ State v. Car-
ter, supra, 425; see id., 422.
It is likewise well established that the ‘‘determination
of whether to grant a request for a continuance is simi-
larly within the discretion of the trial court. . . . The
court, in exercising its discretion, may weigh various
factors in considering a request for a continuance,
including the likely length of the delay . . . the impact
of delay on the litigants, witnesses, opposing counsel
and the court . . . the perceived legitimacy of the rea-
sons proffered in support of the request . . . [and] the
likelihood that the denial would substantially impair
the defendant’s ability to defend himself . . . . In the
event that the trial court acted unreasonably in denying
a continuance, the reviewing court must also engage
in harmless error analysis.’’ (Citations omitted; internal
quotation marks omitted.) State v. Jackson, 334 Conn.
793, 811–12, 224 A.3d 886 (2020); see, e.g., State v.
Brown, 242 Conn. 445, 459–61, 700 A.2d 1089 (1997)
(The trial court did not abuse its discretion or deny the
defendant due process in denying his midtrial motion
for a continuance to perform DNA testing on the sexual
assault victim’s jeans given the lack of evidence of
semen at the scene, the likely length of the delay for
the testing, the lack of evidence that testing was possi-
ble given the age of the exhibit, and the fact that the
defendant was not prejudiced because he could ‘‘argue
to the jury that the state, which bore the burden of
proof, had presented no scientific evidence connecting
him to the crime, and he specifically highlighted the
lack of testing on the jeans. The defendant made that
argument with the knowledge that, even if he was con-
victed, he probably would be granted a new trial if the
test results proved exculpatory.’’).
Finally, ‘‘[a]lthough the remedy of a mistrial is permit-
ted under the rules of practice, it is not favored. [A]
mistrial should be granted only as a result of some
occurrence upon the trial of such a character that it is
apparent to the court that because of it a party cannot
have a fair trial . . . and the whole proceedings are
vitiated. . . . If curative action can obviate the preju-
dice, the drastic remedy of a mistrial should be avoided.
. . . On appeal, we hesitate to disturb a decision not
to declare a mistrial. The trial judge is the arbiter of
the many circumstances [that] may arise during the
trial in which his function is to [ensure] a fair and just
outcome. . . . The trial court is better positioned than
we are to evaluate in the first instance whether a certain
occurrence is prejudicial to the defendant and, if so,
what remedy is necessary to cure that prejudice. . . .
The decision whether to grant a mistrial is within the
sound discretion of the trial court.’’ (Internal quotation
marks omitted.) State v. Guilbert, 306 Conn. 218, 270–
71, 49 A.3d 705 (2012).
‘‘The law governing the state’s obligation to disclose
exculpatory evidence to defendants in criminal cases
is well established. The defendant has a right to the
disclosure of exculpatory evidence under the due pro-
cess clauses of both the United States constitution and
the Connecticut constitution. . . . In order to prove a
. . . violation [of Brady v. Maryland, supra, 373 U.S.
83], the defendant must show: (1) that the prosecution
suppressed evidence after a request by the defense; (2)
that the evidence was favorable to the defense; and (3)
that the evidence was material. . . .
‘‘[E]vidence known to the defendant or his counsel,
or that is disclosed, even if during trial, is not considered
suppressed as that term is used in Brady. . . . Even if
evidence is not deemed suppressed under Brady
because it is disclosed during trial, however, the defen-
dant nevertheless may be prejudiced if he is unable to
use the evidence because of the late disclosure. . . .
Under these circumstances, the defendant bears the
burden of proving that he was prejudiced by the state’s
failure to make the information available to him at an
earlier time.’’ (Citations omitted; internal quotation
marks omitted.) State v. Guilbert, supra, 306 Conn.
271–72; see id., 272–74 (belated disclosure of surveil-
lance video recording did not deprive defendant of fair
trial because, ‘‘even without the video recording, the
defense was able to show inconsistencies between the
eyewitness’ descriptions of the defendant and the
shooter,’’ defense was able to ask ‘‘generally whether
the police officers had provided [the] witnesses with
information about the defendant’s appearance,’’ and ‘‘a
reasonable juror might have concluded that the video
recording corroborated some of the eyewitness tes-
timony’’).
Having reviewed the letters in their entirety, we con-
clude that the defendant’s various claims arising from
Hayes’ letters lack merit. Even if we assume, without
deciding, that the letters would have been admissible
as dual inculpatory statements against Hayes’ penal
interest; see Conn. Code Evid. § 8-6 (4);64 there is noth-
ing therein that is in any way exculpatory or directly
supports the defendant’s theory that Hayes was the
ringleader and that the defendant’s role was subservient
to Hayes—even if that were relevant to the elements
of the crimes charged. At most, the letters—including
Hayes’ statement that he would have killed the defen-
dant had they gotten away—indicate that the invasion
of the P home was a joint venture. Indeed, substantial
portions of the letters directly undercut in graphic detail
certain theories of defense proffered at trial, namely,
that the defendant did not engage in anal intercourse
with M and that it was Hayes who had poured the
gasoline before setting the house on fire.65 Thus, we
agree with the trial court’s observation that the Hayes
letters likely would have been ‘‘the seal of [the defen-
dant’s] doom’’ by both reinforcing the basis for a guilty
verdict and laying the groundwork for the existence of
several aggravating factors that the state needed to
prove to obtain a death verdict during the penalty phase.
Accordingly, we conclude that there was no miscarriage
of justice or prejudice as a result of the late disclosure
of the letters, and the trial court did not abuse its discre-
tion in denying the defendant’s motions for a mistrial,
to reopen the evidence, or for a continuance.
III
BRADY CLAIMS ARISING FROM VARIOUS CHESHIRE
POLICE COMMUNICATIONS
The defendant next claims that the state violated his
due process rights under Brady v. Maryland, supra,373 U.S. 83, by failing to disclose to trial counsel
recordings of numerous Cheshire Police Department
communications. The claims arising from these commu-
nications fall into three categories: (1) six communica-
tions concerning the police response to the home
invasion, (2) a police communications log contained in
an e-mail received in January, 2008, by C.H.-R., who is
J’s sister, and (3) two communications relevant to the
state of mind and demeanor of both Hayes and the
defendant at the time of their arrests. The defendant
argues that the state’s failure to disclose these commu-
nications deprived him of his right to a fair trial because
they would have (1) ‘‘strongly supported the defendant’s
theory that, because of their woefully inadequate
response to the 911 call from the Bank of America, the
Cheshire police were motivated by guilt, anger, and
embarrassment to undermine the credibility of the
exculpatory parts of his police statements,’’ (2)
‘‘strongly supported the defense theory that . . .
Hayes was the mastermind of the murders and that the
defendant, stunned by Hayes’ statements and actions
during the crime, was slow to process and react appro-
priately to them,’’ and (3) ‘‘constituted powerful excul-
patory evidence of the defendant’s exhaustion and
disorientation when arrested and when he waived his
Miranda rights and gave his police statements.’’ We
address each Brady claim in turn.
A
Additional Relevant Facts and Procedural History
The record reveals the following additional facts and
procedural history relevant to the defendant’s Brady
claims. Robert Sage, an inspector with the prosecutor’s
office, coordinated the discovery in this case, including
collecting evidence from the police and bringing it to
the prosecutors. That material was later distributed by
the prosecutor to defense counsel as a discovery file,
the contents of which were memorialized in a letter
from the prosecutor. Shortly after the home invasion,
Sage contacted Vignola, Cheshire’s detective captain,
and asked him to preserve any records relating to the
investigation, including audio recordings. Vignola
accommodated that request by directing Michael Win-
ters, the Cheshire Police Department’s information
technology coordinator, to capture all communications
contained in the department’s recording systems from
the incident, starting with the initial call until the end
of the incident.66
In August, 2011, shortly before trial, the defendant
moved for disclosure and examination of the state’s
evidence, including exculpatory and impeachment evi-
dence, pursuant to Brady and the rules of practice.
The defendant filed an additional disclosure motion on
August 18, 2011. After a hearing on August 22, 2011, the
trial court granted both motions, with defense counsel
acknowledging that the state had conducted this case as
an open file case and given the defendant all requested
material to that point. Subsequently, on August 25, 2011,
defense counsel sent a letter to the prosecutor, which,
inter alia, (1) observed that a compact disc (CD) that
had been provided to the defendant of recorded Chesh-
ire police communications ‘‘contains only select calls’’
and asked the state to provide all Cheshire and state
police communications recorded on July 23, 2007, from
9 a.m. through 1 p.m., and (2) sought ‘‘all documentation
related’’ to any review of the police response on July 23,
2007, in light of the ‘‘questions and widespread criticism
surrounding’’ it. The state subsequently advised the
defendant that it had provided him with all preserved
communications. In a letter dated September 19, 2011,
defense counsel responded that his review of the CD
that had been provided identified at least one call miss-
ing from the written log of communications; he also
specifically requested ‘‘the action review’’ that depart-
ment policy required following a response of the special
response team. The record does not include the state’s
response to that letter. The case then proceeded to trial.
While this appeal was pending, the defendant’s appel-
late counsel learned from reading a Hartford Courant
article that certain Cheshire Police Department commu-
nications had not been turned over to trial counsel, or
heard or publicly disclosed prior to trial.67 On August
29, 2014, the defendant filed in this court a motion for
augmentation and rectification of the record relating
to those recordings. The defendant sought a hearing
pursuant to State v. Floyd, 253 Conn. 700, 732, 756 A.2d
799 (2000) (Floyd hearing),68 to establish that the state
had failed to disclose to the defendant’s trial counsel
recordings of these communications. The defendant
argued that this failure to disclose violated Brady
because those communications were evidence that sup-
ported a defense theory that the police response in this
case was inadequate. Evidence of an inadequate police
response would have supported his attempts to attack
the credibility of various police witnesses who had chal-
lenged the veracity of the defendant’s statement to the
police, and also would have ‘‘front-loaded’’ a strategy
for mitigation in the anticipated penalty phase of the
trial.69 We referred this motion to the trial court for
action.
On September 24, 2014, the state notified the defen-
dant’s appellate counsel of the existence of additional
recordings that had not been produced to counsel,
which were discovered by Cheshire town employees
after the defendant filed his first motion for augmen-
tation and rectification of the record. On November 13,
2015, the defendant filed a second motion for augmen-
tation and rectification of the record related to those
additional calls.
The trial court held a three day Floyd hearing on the
defendant’s motions.70 In advance of the hearing, the
state and the defendant stipulated to the existence of
the recordings of numerous communications from July
or August of 2007 that had not been disclosed to the
defendant’s trial counsel prior to trial in 2011 and had
been provided to appellate counsel for the first time
in November, 2014. The parties stipulated that those
recordings were true and accurate copies and should be
marked as exhibits at the Floyd hearing.71 After hearing
testimony from Sage, counsel, and Winters; see footnote
66 of this opinion; the trial court found that the CDs
were not turned over as a result of an ‘‘error in transmis-
sion,’’ which was likely attributable to the sheer volume
of evidence in this case. The trial court found that it
was uncontested that ‘‘the three police calls described
in paragraph four on page nine of the August 19, 2014
motion . . . were not disclosed to the defense.’’72 We
address the content of these communications in detail
in part III C of this opinion. See also footnotes 82
through 84 of this opinion.
The parties disputed, however, the existence of a
communication that was described in paragraph one
on page eight of the August 19, 2014 motion for augmen-
tation, namely, the call log that C.H.-R. claimed to have
received in an e-mail. After considering testimony from
C.H.-R. and her husband, W.R., about this e-mail, the
trial court found that its existence had not been proven
by a fair preponderance of the evidence. Consistent
with our previous denial of relief in a subsequent motion
for review, we now turn to the merits of the defendant’s
Brady claims.
B
Claims Arising from the E-mail Described by C.H.-R.
We begin with the defendant’s claim that the trial
court improperly found that he had failed to prove the
existence of a call log that established the presence of
a police officer at the P residence when Hayes and J
returned from the bank in the Pacifica, which had been
relayed to C.H.-R., who is J’s sister, in an e-mail that
she received in January, 2008. The defendant first
argues that the existence of the call log was established
by the highly credible testimony of C.H.-R. and her
husband, W.R., and corroborated by both the ‘‘consis-
tent and highly suspicious pattern by the police of with-
holding or mischaracterizing critical police calls’’ and
‘‘the improbability’’ that numerous Cheshire police offi-
cers had not ‘‘arrived at the P residence in time to
observe the Pacifica returning there.’’ The defendant
also argues that the trial court improperly required him
to prove the existence of the call log by a preponderance
of the evidence, contending that, under § 9-1 (a) of the
Connecticut Code of Evidence,73 a party need only make
a prima facie showing of the authenticity of an exhibit
to the court for purposes of admissibility. Finally, the
defendant argues that the trial court abused its discre-
tion by sustaining the prosecution’s objection under
§ 7-1 of the Connecticut Code of Evidence,74 which gov-
erns the admission of lay opinion testimony, to defense
counsel’s question at the Floyd hearing to W.R. about
whether the e-mail ‘‘appear[ed]’’ to him ‘‘to be a docu-
ment that could have been created by a nonpolice or like
a layperson who was not involved in the response . . . .’’
In response, the state assumes the credibility of C.H.-
R. and W.R. but contends that their testimony neverthe-
less does not establish the existence of the call log or
the e-mail in which it was contained. The state also
cites, among other cases, State v. Thompson, 305 Conn.
412, 45 A.3d 605 (2012), cert. denied, 568 U.S. 1146, 133
S. Ct. 988, 184 L. Ed. 2d 767 (2013), and argues that the
trial court properly applied the preponderance of the
evidence standard in determining whether the call log
or e-mail existed as a predicate factual matter. Finally,
the state contends that the trial court did not abuse its
discretion in sustaining its objection to W.R.’s testimony
about the appearance of the e-mail because it was not
a proper subject for lay witness opinion testimony. We
agree with the state and conclude that the trial court
properly applied the preponderance of the evidence
standard and concluded that the defendant had not
established the existence of the communication at
issue.
The record reveals the following additional relevant
facts and procedural history. In his August 29, 2014
motion for augmentation and rectification of the record,
the defendant claimed that the state had failed to pro-
duce a police communication that C.H.-R. had received
by e-mail in January, 2008, and that she subsequently
discussed during an appearance on Katie Couric’s tele-
vision show that aired on August 19, 2013. The defen-
dant averred that that communication, as described by
C.H.-R., ‘‘establishes that ‘there actually was a police
officer at [J’s] home watching her come back to the
house and pull into the driveway,’ ’’ describing ‘‘ ‘her
car [as] a silver Chrysler Pacifica [that] is now entering
the driveway and the garage door is going up and the
car is pulling in . . . .’ ’’
At the Floyd hearing, C.H.-R. testified that she and
her parents had remained in contact with the Cheshire
police because they had concerns about the police
response to the home invasion and were angry when
the Cheshire town manager publicly commended the
police on television. C.H.-R. testified that, in early Janu-
ary, 2008, she received an e-mail that contained what
appeared to be a log of communications between the
officers before that information was ultimately released
to the public. C.H.-R. stated that the call log contained
the times and written descriptions of various communi-
cations between the responding officers. One particular
item that distressed C.H.-R. was a notation in the log
that Cheshire police officers were present and had wit-
nessed the Pacifica returning to the P family residence,
leading her to conclude that officers were present at
the house for approximately forty-five minutes before
Hayes and the defendant fled the scene and that the
officers could have prevented the deaths of J, H, and
M. C.H.-R. testified that the log document in the e-mail
did not have any logos or markings indicating that it
had originated from either the Cheshire Police Depart-
ment or the prosecutor’s office. C.H.-R. did not know
who sent the e-mail, but she assumed that ‘‘someone
from the Cheshire police sent it to me.’’75
C.H.-R. testified that she did not presently have a
copy of the e-mail printed out or saved electronically.
C.H.-R. ‘‘was afraid to keep the e-mail’’ because it was
labeled ‘‘for your eyes only or FYI only,’’ and she was
afraid to show it to anyone or tell anyone about it. She
testified, however, that she had printed a copy of the
e-mail and deleted the electronic file sometime in Febru-
ary or March of 2008. C.H.-R. showed a copy of the
printout to her husband, W.R., and to a North Carolina
news reporter who had come to their home. She did
not give the news reporter a copy of the e-mail and
asked her not to report about it given its confidential
nature. She also showed the printed copy to her parents,
who were upset by it and wrote letters to the Cheshire
police; the police claimed they had never received those
letters. She testified that W.R. had shown the printed
copy to an attorney friend, and that they subsequently
lost—and perhaps accidentally discarded—that printed
copy. No evidence of the e-mail appeared after a search
of her computer hard drive. C.H.-R. acknowledged that
the communication described in the e-mail did not
appear in the communications logs admitted into evi-
dence at trial and that recordings provided to her for
review by defense counsel did not include that commu-
nication.76
W.R. also testified at the hearing. He testified that
C.H.-R. had shown him the e-mail when he came home
one afternoon in January, 2008. He could not tell from
the e-mail or the printout the origin of the message; he
did not think that it had been forwarded by W but,
perhaps, had come from the spouse of a Cheshire police
officer. He did not think that it had come from the town
of Cheshire itself and did not know where the sender
of the e-mail had obtained the information therein. W.R.
testified that, at that time, his family was frequently
receiving e-mails from people whom they had not met—
nearly twenty to thirty times per day—offering support
and prayers. He recalled that it was about the case, and
‘‘that the Pacifica was returning, and the garage door
. . . was going up.’’ W.R. also observed that it had a list
of numerous communications between police officers
during the response. He showed a printout of the e-mail
to an attorney friend and asked about ‘‘normal police
protocol’’ in the home invasion/hostage situation. When
he got home, he placed the printout on top of his com-
puter to ‘‘save’’ or ‘‘keep it . . . .’’ The attorney did not
keep a copy of the e-mail and did not ask for one. W.R.
had never seen the police call log that was admitted
into evidence at Hayes’ and the defendant’s trials. Dur-
ing W.R.’s testimony, the trial court sustained the state’s
objection to the question whether the log in the e-mail
‘‘appear[ed] to you to be a document that could have
been created by a nonpolice or like a layperson who
was not involved in the response . . . .’’ With no argu-
ment by the defendant in response, the trial court ruled
that the question ‘‘call[ed] for an opinion [and] that
[there was] no foundation that he has some expertise
in this.’’
As we noted previously, Winters, the information
technology manager for the Cheshire Police Depart-
ment, worked at the direction of Vignola to capture,
log, and summarize the police department’s radio and
telephonic communications during the home invasion
incident, from the initial 911 call until the defendant
and Hayes were taken into custody. See footnote 66 of
this opinion. In reviewing those communications in
July, 2007, Winters denied hearing ‘‘in words or in sub-
stance a communication by or among Cheshire police
officers to the effect that someone [had] observed the
Chrysler Pacifica entering the driveway at that resi-
dence and the garage door being elevated . . . .’’ Had
he heard such a communication, he would have moved
it into the application and documented its existence in
the log. Even if Winters had missed that communication
during his manual review in 2007, it would have
remained archived on the Cheshire police servers, as
well as, presumably, the backup drives maintained at
town hall. See footnote 66 of this opinion.
After hearing argument, the trial court first deter-
mined that it was the defendant’s burden to prove the
existence of the call log by a preponderance of the
evidence, rejecting his reliance on State v. Colon, 272
Conn. 106, 864 A.2d 666 (2004), cert. denied, 546 U.S.
848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005), for the
proposition that his burden was merely to establish a
prima facie showing of the call log’s existence; the court
deemed Colon to be limited to a showing of authenticity
of an already existing document, whereas the inquiry
in this case is whether the document existed at all.
Observing that it was undisputed that the call log and
communication had never been turned over to the
defense, the trial court stated that ‘‘the only question
is whether the call [log] existed in the first place,’’ and
it concluded that it ‘‘cannot find on the basis of the
evidence presented . . . that, by a preponderance of
the evidence, such a call existed.’’ Although the trial
court agreed that C.H.-R. had ‘‘no incentive to fabricate
testimony to help’’ the defendant, it nevertheless
deemed evidence of the call log’s existence unreliable
given the lack of evidence as to the e-mail’s origin and
the fact that C.H.-R. and W.R. were ‘‘getting all sorts of
information from people they didn’t know.’’ The trial
court acknowledged that § 10-3 (1) of the Connecticut
Code of Evidence77 allows other evidence of the con-
tents of a writing, if the original is lost or destroyed,
to be established by secondary evidence, but ultimately
determined that there simply was not a preponderance
of ‘‘credible evidence’’ beyond ‘‘guesswork or specula-
tion’’ to establish the existence of the call log or the
e-mail in which it had been contained.
Having reviewed the defendant’s various claims on
this point, we first conclude that the trial court properly
required the defendant to prove the existence of the
e-mail and call log containing the communication
described by C.H.-R. by a preponderance of the evi-
dence. The existence of undisclosed evidence under
Brady ‘‘is an issue of fact for the determination of the
trial court. . . . Furthermore, the burden is on the
defendant to prove the existence of undisclosed excul-
patory evidence. . . . A finding of fact will not be dis-
turbed unless it is clearly erroneous in view of the
evidence and pleadings in the whole record . . . .
[W]hen a question of fact is essential to the outcome
of a particular legal determination that implicates a
defendant’s constitutional rights, and the credibility of
witnesses is not the primary issue, our customary defer-
ence to the trial court’s factual findings is tempered by
a scrupulous examination of the record to ascertain
that the trial court’s factual findings are supported by
substantial evidence.’’ (Citation omitted; internal quota-
tion marks omitted.) Greene v. Commissioner of Cor-
rection, 330 Conn. 1, 29, 190 A.3d 851 (2018), cert.
denied sub nom. Greene v. Semple, U.S. , 139
S. Ct. 1219, 203 L. Ed. 2d 238 (2019); see, e.g., State v.
Ouellette, 295 Conn. 173, 187–89, 989 A.2d 1048 (2010);
State v. Floyd, supra, 253 Conn. 737–38.
Although the quantum of proof necessary to establish
the existence of undisclosed evidence is a question of
first impression in Connecticut, our research reveals
federal and sister state authority that requires the defen-
dant to prove by a preponderance of the evidence the
existence of evidence that is claimed to be Brady mate-
rial, which is an inquiry that most often arises in the
context of undisclosed cooperation agreements
between prosecutors and witnesses. See, e.g., United
States v. Reese, 745 F.3d 1075, 1083 (10th Cir.), cert.
denied, 574 U.S. 894, 135 S. Ct. 235, 190 L. Ed. 2d 177(2014); Walker v. Kelly, 589 F.3d 127, 141–42 (4th Cir.
2009), cert. denied, 560 U.S. 920, 130 S. Ct. 3318, 176
L. Ed. 2d 1215 (2010); United States v. Thompson,
Docket No. 07-35-GFVT, 2011 WL 1327339, *13 (E.D.
Ky. April 4, 2011), aff’d, 501 Fed. Appx. 347 (6th Cir.
2012); People v. Giuca, 33 N.Y.3d 462, 474, 128 N.E.3d
655, 104 N.Y.S.3d 577 (2019); Commonwealth v. Spotz,
616 Pa. 164, 201, 47 A.3d 63 (2012). The preponderance
of the evidence standard is consistent with existing
Connecticut case law governing factual proof of consti-
tutional violations as a preliminary matter. See, e.g.,
State v. Thompson, supra, 305 Conn. 428 (applying pre-
ponderance standard in determining whether defendant
procured absence of potential witness for purpose of
hearsay exception under § 8-6 (8) of the Connecticut
Code of Evidence because that ‘‘standard . . . is con-
sistent with the standard used by courts in making other
preliminary determinations of fact involving a defen-
dant’s constitutional rights, such as whether a confes-
sion was voluntary’’).
Application of the preponderance of the evidence
standard is particularly apt in this case, in which the
defendant sought to establish the existence of a lost or
destroyed document or recording, the admissibility of
which is governed by § 10-3 of the Connecticut Code of
Evidence; authority applying similar rules of evidence
generally requires such proof to be by at least a prepon-
derance of the evidence.78 See, e.g., Bobcar Media, LLC
v. Aardvark Event Logistics, Inc., 354 F. Supp. 3d 375,
382 (S.D.N.Y. 2018) (applying Federal Rules of Evidence
to claimed loss of assignment of patents); Kleenit, Inc.
v. Sentry Ins. Co., 486 F. Supp. 2d 121, 125–26 (D. Mass.
2007) (applying Massachusetts law to lost insurance
policy); Coxwell v. Coxwell, 296 Ga. 311, 312–13, 765
S.E.2d 320 (2014) (lost antenuptial agreement). But see
Estate of Bossio v. Bossio, 237 W. Va. 130, 134–35, 785
S.E.2d 836 (2016) (requiring clear and convincing evi-
dence to prove existence and contents of lost docu-
ment). Accordingly, we conclude that the trial court
properly required the defendant to prove the existence
of the call log and C.H.-R.’s lost or deleted e-mail by a
preponderance of the evidence.
We further conclude that the trial court did not com-
mit clear error in finding that the defendant had not
proven the existence of the call log described in C.H.-
R.’s lost or deleted e-mail, or the e-mail itself, by a
preponderance of the evidence. Although the trial court
found C.H.-R. and W.R. to be credible, the fact that the
e-mail had been deleted and the printout lost rendered
it impossible to determine the provenance of the mes-
sage or the call log contained therein. Neither C.H.-R.
or W.R. knew who had sent the e-mail, and a search of
Cheshire’s communications server and records did not
reveal a corresponding communication. Accordingly,
we conclude that the trial court correctly concluded
that the defendant had not established the existence of
the call log claimed to have been contained in C.H.-
R.’s e-mail.
Finally, we address the defendant’s claim that the
trial court abused its discretion in sustaining the state’s
objection under § 7-1 of the Connecticut Code of Evi-
dence, governing lay opinion testimony, to a question
posed to W.R., namely, whether the e-mail ‘‘appear[ed]
to you to be a document that could have been created
by a nonpolice or like a layperson who was not involved
in the response . . . .’’ See, e.g., State v. Holley, 327
Conn. 576, 604–606, 175 A.3d 514 (2018) (setting forth
background principles and abuse of discretion standard
of review applicable to lay opinion evidence). The trial
court sustained the state’s objection to this question,
concluding that it ‘‘call[ed] for an opinion that [there
was] no foundation that he has some expertise in this.’’
We conclude that any error on this point is harmless,
given that this issue turned on the lack of proof that
the e-mail and the call log contained therein existed,
as opposed to the authenticity of those documents.
C
Whether Certain Communications Not Disclosed
by the State Were Material for Purposes
of a Brady Violation
It is undisputed that the state failed to disclose six
Cheshire police communications that form the basis of
the defendant’s Brady claim with respect to the police
response, and two communications that concern the
demeanor of the defendant and Hayes following their
arrests. Before turning to those communications, we
review the well established principles governing the
defendant’s claim under Brady v. Maryland, supra, 373
U.S. 83. ‘‘Due process principles [under the fourteenth
amendment to the United States constitution] require
the prosecution to disclose to the defense evidence that
is favorable to the defendant and material to his guilt
or punishment. . . . [Thus] [i]n order to obtain a new
trial for improper suppression of evidence, the [defen-
dant] must establish three essential components: (1)
that the evidence was favorable to the accused; (2)
that the evidence was suppressed by the state—either
inadvertently or wilfully; and (3) that the evidence was
material to the case, i.e., that the accused was preju-
diced by the lack of disclosure.’’ (Citations omitted.)
Marquez v. Commissioner of Correction, 330 Conn.
575, 592, 198 A.3d 562 (2019).
‘‘In Brady, the court held that the suppression by the
prosecution of evidence favorable to an accused upon
request violates due process [when] the evidence is
material either to guilt or to punishment, irrespective
of the good faith or bad faith of the [prosecutor]. . . .
The United States Supreme Court also has recognized
that [t]he jury’s estimate of the truthfulness and reliabil-
ity of a . . . witness may well be determinative of guilt
or innocence, and it is upon such subtle factors as the
possible interest of the witness in testifying falsely that
a defendant’s life or liberty may depend. . . . Accord-
ingly, the Brady rule applies not just to exculpatory
evidence, but also to impeachment evidence . . .
which, broadly defined, is evidence having the potential
to alter the jury’s assessment of the credibility of a
significant prosecution witness. . . .
‘‘Not every failure by the state to disclose favorable
evidence rises to the level of a Brady violation. Indeed,
a prosecutor’s failure to disclose favorable evidence
will constitute a violation of Brady only if the evidence
is found to be material. The Brady rule is based on
the requirement of due process. Its purpose is not to
displace the adversary system as the primary means by
which truth is uncovered, but to ensure that a miscar-
riage of justice does not occur. Thus, the prosecutor is
not required to deliver his entire file to defense counsel,
but only to disclose evidence favorable to the accused
that, if suppressed, would deprive the defendant of a
fair trial . . . .’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) Adams v. Commis-
sioner of Correction, 309 Conn. 359, 369–70, 71 A.3d
512 (2013); see id., 370 (noting that ‘‘a classic Brady
case . . . involv[es] the state’s inadvertent failure to
disclose favorable evidence’’).
In the present case, it is undisputed that the communi-
cations were not disclosed and constituted impeach-
ment evidence. The sole issue concerns whether they
were material under Brady, which ‘‘presents a question
of law subject to plenary review.’’ Marquez v. Commis-
sioner of Correction, supra, 330 Conn. 593. ‘‘Evidence
is material when there would be a reasonable probabil-
ity of a different result if it were disclosed. . . . A rea-
sonable probability exists if the evidence could
reasonably . . . put the whole case in such a different
light as to undermine confidence in the verdict. . . .
Materiality does not require, however, a demonstration
. . . that disclosure of the suppressed evidence would
have resulted ultimately in the defendant’s acquittal.
. . . Instead, the operative inquiry is whether, in the
absence of the evidence, the defendant received a fair
trial . . . resulting in a verdict worthy of confidence.’’
(Citations omitted; internal quotation marks omitted.)
Id., 593–94.
‘‘This calls for a careful review of that [evidence] and
its probable effect on the jury, weighed against the
strength of the state’s case and the extent to which
[the defendant was] otherwise able to [discredit the
evidence]. . . . [E]vidence that may first appear to be
quite compelling when considered alone can lose its
potency when weighed and measured with all the other
evidence, both inculpatory and exculpatory. Implicit
in the standard of materiality is the notion that the
significance of any particular bit of evidence can . . .
be determined [only] by comparison to the rest.’’ (Cita-
tion omitted; internal quotation marks omitted.) Id.,
594; see Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct.
1555, 131 L. Ed. 2d 490 (1995); United States v. Bagley,
473 U.S. 667, 675, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985);
see also Henning v. Commissioner of Correction, 334
Conn. 1, 24–26, 219 A.3d 334 (2019) (discussing more
‘‘stringent’’ and ‘‘strict’’ standard of materiality applica-
ble when ‘‘a prosecutor obtains a conviction with evi-
dence that he or she knows or should know to be false’’
(internal quotation marks omitted)). We now turn to
the undisclosed communications.
1
Police Response Communications
The first communication at issue is a call from Chesh-
ire police Sergeant Chris Cote to Officer Robert Regan,
at 9:25:15 a.m. on July 23, 2007, discussing whether and
where to attempt to intercept the Pacifica en route to
the P family residence in response to a 911 call from
the Bank of America.79 The defendant argues that this
first call supports the proposition that Cote was in a
position to locate and to stop the Pacifica, yet failed
to do so. The defendant argues that the other five calls
suggest a failure by the Cheshire police to marshal
necessary resources in a timely manner. Specifically,
the second call is an internal communication at 9:27:52
a.m. between Vignola and Cheshire Police Captain Ren
Marchand, who was the shift commander, indicating
that Vignola was ‘‘heading out’’ to the scene.80 The third
communication is one between 9:36:18 and 9:36:45 a.m.,
in which Vignola advises that he will ‘‘drive by’’ the P
family house and receives a description of it from Offi-
cer Phillip Giampietro.81 The fourth communication is
one in which the caller, who is a hostage negotiator, is
directed not to report to the station.82 The fifth commu-
nication is one in which Cheshire special response team
members are directed not to report to the station.83 The
sixth call is one in which an unidentified Cheshire police
officer appears to have briefly questioned the account
of the incident that J provided at Bank of America,
which had been relayed to the police.84
The defendant argues that these undisclosed commu-
nications would have provided further impeachment
evidence with respect to the veracity of the Cheshire
police witnesses by providing support for the theory
that their testimony was colored by their remorse for
an inadequate police response. As the defendant
acknowledges in his brief, however, the principal issues
of fact at the guilt phase of the trial were whether he
had (1) committed an anal sexual assault of M, and (2)
intended to kill J, H, and M. A review of the record,
including the parties’ closing arguments and the sup-
porting evidence, confirms that none of the undisclosed
material impeaches the veracity of the Cheshire police
witnesses in a manner that undermines our confidence
in the verdict as to the disputed fact issues. With respect
to the sexual assault of M, the recovery of the defen-
dant’s DNA from her anus provides ample and over-
whelming support for the jury’s verdict on that count,
with any inadequacy in the police response to the emer-
gency bearing no relation to his theory, proffered during
closing argument, that the rectal swab taken from M
must have been cross-contaminated with the defen-
dant’s DNA by a technician in the Connecticut Forensic
Science Laboratory (state lab), insofar as there was no
other evidence of sexual assault such as physical injury
to M’s anal area or the presence of M’s DNA on the
defendant’s penis.85
The state sought to prove the defendant’s intent to
kill by circumstantial evidence given the defendant’s
denials of such intent in his statement. The state relied
on the defendant’s motive of hiding the evidence of his
sexual assault of M and his failure to walk out of the
house and abort the crimes during the opportunities
presented when Hayes was out of the house buying
gasoline and taking J to the bank, along with his act
of retying H and M to their beds after they had been
permitted to use the bathroom and M had showered.
The state also argued that the defendant had poured
bleach on M’s shorts in an attempt to eliminate DNA
evidence. The state further relied on evidence that gaso-
line had been poured only in areas of the P home where
people were present. The state also emphasized that
gasoline was found on the defendant’s clothes and
debunked his explanation that the gasoline was the
result of his work activities by using Stop and Shop
surveillance video showing him wearing different
clothes when he stalked J and M at the store after work
than when he was arrested after perpetrating these
crimes. None of the undisclosed evidence pertaining to
the police response affected this evidence of intent in
any way, as it did not depend on the observations or
veracity of the Cheshire police witnesses. Accordingly,
we conclude that the additional evidence that would
raise the question of an inadequate police response was
not material to the guilt issues at this trial, and the state’s
failure to disclose it did not, therefore, violate Brady.
2
Communications About the Defendant’s
Appearance and Demeanor
The defendant next claims that two communications
describing his demeanor and Hayes’ appearance were
material for Brady purposes. The first communication
is one in which Shawn Patterson, a Cheshire police
officer, described the defendant to another officer as
‘‘nobody home’’ and ‘‘simple as they come.’’86 The defen-
dant argues that this communication was material to
the voluntariness of his statements, which was an issue
that he addressed in closing argument, and the waiver
of his Miranda rights, and that the trial court would
have granted his pretrial motion to suppress his state-
ment on the ground that it was not voluntary because
of sleep deprivation and injury from the collision
between the Pacifica and the Cheshire police cruisers.
In response, the state contends that Patterson’s state-
ment was not material because any information that
could be drawn from it was amply duplicated firsthand
at trial, including by Vitello’s description of the defen-
dant during the interview and the audio recording of
the defendant’s statement. We agree with the state and
conclude that Patterson’s description of the defendant
was not material.
A review of the record satisfies us that Patterson’s
description of the defendant was not material for Brady
purposes because its omission does not undermine our
confidence in the fairness of the trial or the suppression
hearing in this case. It is not reasonably likely that
Patterson’s testimony would have changed the fact find-
er’s determination on this point, given the uncontro-
verted evidence at the Floyd hearing that Patterson’s
contact with the defendant was at most a fleeting obser-
vation in the hallway of the police station; he took no
part in the response to the P home or the ensuing
investigation and was not present for the interview.87
Indeed, Patterson’s testimony was at best cumulative
of more probative evidence as to the defendant’s
demeanor, namely, Vitello’s testimony that the defen-
dant was emotionless during the period of time follow-
ing his arrest, and the lengthy recording of the
defendant’s statement, which the trial court and the
jury had the opportunity to hear for themselves. See,
e.g., State v. Wilcox, 254 Conn. 441, 458, 758 A.2d 824(2000); Morant v. Commissioner of Correction, 117
Conn. App. 279, 298–99, 979 A.2d 507, cert. denied, 294
Conn. 906, 982 A.2d 1080 (2009).
We now turn to the second communication, which
is a discussion between Cheshire Police Detective Kerry
Nastri and Connecticut State Trooper David Devito,
in which one of the two officers88 describes Hayes as
‘‘look[ing] evil.’’89 The defendant argues that this state-
ment would have supported his argument that Hayes
was the mastermind in charge of the events at the house
and that the defendant wanted no part of killing the P
family, especially when considered in light of evidence
of the defendant’s apparent slow reaction to the
unfolding events, such as Patterson’s statement. The
state argues that this statement was not material
because it was ‘‘gossip’’ that did not necessarily reflect
what Hayes or the defendant looked like at the time of
the home invasion. We agree with the state and con-
clude that this casual observation of Hayes’ appearance
as ‘‘evil’’ was not material. In the absence of any evi-
dence that the officers heard Hayes make any state-
ments that would support the defendant’s theory, an
offhand impression of Hayes as ‘‘look[ing] evil’’—with
no further elaboration—does nothing to inform the
jury’s assessment of what actually happened in the P
residence, whether considered in isolation or cumula-
tively. Accordingly, we conclude that this undisclosed
evidence was not material for purposes of Brady.
IV
NAPUE AND GIGLIO CLAIMS ARISING FROM
PHOTOGRAPH ON DEFENDANT’S
CELL PHONE
The defendant next claims that the state deprived
him of his right to a fair trial under Giglio v. United
States, supra, 405 U.S. 150, and Napue v. Illinois, supra,360 U.S. 264, among other cases, by presenting evidence
that it knew or should have known was false or highly
misleading, namely, an inflammatory photograph taken
from the defendant’s cell phone that the state’s expert
witness, John Brunetti, testified was of M in a sexually
explicit pose. In contrast to Brunetti’s testimony at the
defendant’s trial, John Farnham, an analyst at the state
lab, who also testified at the defendant’s trial, testified
as an expert witness at Hayes’ trial that the same photo-
graph was of a different female, and not M, who was
prepubescent. The defendant contends that Brunetti’s
testimony was, therefore, misleading evidence that vio-
lated his right to a fair trial because the state capitalized
on it during closing argument, insofar as it was ‘‘expo-
nentially more inflammatory by the state’s claim that
it depicted an eleven year old child,’’ and it undermined
portions of his statement stating that he did not anally
rape M, believed that she was between fourteen and
sixteen years old, and did not intend anyone to be killed
or pour gasoline at the scene. In response, the state
contends, inter alia, that ‘‘there is no reasonable possi-
bility that any falsity affected the outcome of the trial.’’
We agree with the state and conclude that there is no
reasonable likelihood that any falsity or substantially
misleading testimony by Brunetti on this point affected
the outcome of the defendant’s trial.
The record reveals the following additional relevant
facts and procedural history. At the defendant’s trial,
H. Wayne Carver II, then the state’s chief medical exam-
iner, testified about his autopsy of M. He described her
as ‘‘a young adolescent female,’’ stating that she was
eleven years old ‘‘and the body looked like it, and, at
the time of the autopsy, she weighed 124 pounds.’’
(Emphasis added.) In describing the various samples
that he took from M’s body, Carver stated that he had
taken ‘‘a sample of hairs, and I don’t think she had
much more than head hair, but, if she had other hairs,
we would have taken them and labeled them.’’ (Empha-
sis added.) Carver further stated that he performed
various ‘‘swabs and smears’’ to retrieve material from
M’s oral, vaginal, and anal areas.
Farnham, a retired state police detective who worked
in the computer crime unit at the state lab, had exam-
ined, pursuant to a search warrant, cell phones belong-
ing to the defendant and Hayes; he retrieved text
messages from both phones and photographs from the
defendant’s phone. Farnham retrieved eight photo-
graphs within the date and time period specified by
the search warrant; he testified that two depicted the
defendant and six ‘‘showed a young white female on a
bed . . . .’’ The six images were admitted into evidence
as state’s exhibit 209.90
Brunetti, who worked in the multimedia and image
enhancement section of the state lab, had reviewed the
six images in state’s exhibit 209, which were taken
between 7:27 and 9:14 a.m. on July 23, 2007. The first
five images depict a partially clothed young female,
whose head is covered; two of those images are a close-
up photograph of the female’s genital area, which is
covered by underwear. The sixth image in state’s exhibit
209 depicts an unclothed female lying on her back, with
her legs raised at close to a ninety degree angle; the
female’s genitalia and anus are covered by a black bar
that Brunetti had added to the original photograph for
‘‘[d]iscretion.’’ Brunetti opined that all six of the images
were of the same person, namely, M.91 The defendant
cross-examined Brunetti briefly but did not question
him about his conclusion that the six images all
depicted M.
In contrast to Brunetti’s testimony at the defendant’s
trial, the record, as augmented on appeal after the Floyd
hearing,92 reveals that Farnham testified at Hayes’ trial
that the sixth image was of ‘‘a different female, appar-
ently older than the first female picture that was taken,’’
and that, ‘‘[b]ased on the size of the person, it doesn’t
appear to be the same person; this person has reached
puberty.’’ (Emphasis added.) As the defendant observes
in his brief, the sixth image that was admitted into
evidence at Hayes’ trial is unredacted and ‘‘shows that
the female has reached puberty and has more than head
hair,’’ which is inconsistent with Carver’s description
of M.
‘‘Whether a prosecutor knowingly presented false or
misleading testimony [in violation of a defendant’s due
process rights] presents a mixed question of law and
fact, with the [trial] court’s factual findings subject to
review for clear error and the legal conclusions that
the court drew from those facts subject to de novo
review. . . .
‘‘[D]ue process is . . . offended if the state, although
not soliciting false evidence, allows it to go uncorrected
when it appears. . . . Regardless of the lack of intent
to lie on the part of the witness, Giglio and Napue
require the prosecutor to apprise the court when he or
she knows that the witness is giving testimony that is
substantially misleading. . . .
‘‘To establish a Napue/Giglio violation, then, the
[defendant] must demonstrate that the state’s witnesses
provided material, false or substantially misleading tes-
timony that the prosecutor failed to correct.’’ (Citations
omitted; internal quotation marks omitted.) Gomez v.
Commissioner of Correction, 336 Conn. 168, 175–76,
243 A.3d 1163 (2020); see also id., 182–83 (explaining
relationship between prosecutor’s obligations under
Napue/Giglio and prosecutor’s disclosure obligations
under Brady v. Maryland, supra, 373 U.S. 83); Greene
v. Commissioner of Correction, supra, 330 Conn. 24–25
(Napue and Giglio ‘‘do not apply to merely ‘misleading’
testimony in the first instance. Rather, those cases
require the prosecutor to correct only testimony that
is substantially misleading or false.’’ (Emphasis in
original.)).
Whether the prosecutor’s presentation of false or sub-
stantially misleading testimony constitutes a due pro-
cess violation depends on whether the evidence at issue
is material. In contrast to conventional Brady claims,
‘‘[w]hen . . . a prosecutor obtains a conviction with
evidence that he or she knows or should know to be
false, the materiality standard is significantly more
favorable to the defendant. [A] conviction obtained by
the knowing use of perjured testimony is fundamentally
unfair, and must be set aside if there is any reasonable
likelihood that the false testimony could have affected
the judgment of the jury. . . . This standard . . .
applies whether the state solicited the false testimony
or allowed it to go uncorrected . . . and is not substan-
tively different from the test that permits the state to
avoid having a conviction set aside, notwithstanding a
violation of constitutional magnitude, upon a showing
that the violation was harmless beyond a reasonable
doubt. . . . This strict standard of materiality is appro-
priate in such cases not just because they involve prose-
cutorial [impropriety], but more importantly because
they involve a corruption of the truth-seeking function
of the trial process. . . . In light of this corrupting
effect, and because the state’s use of false testimony
is fundamentally unfair, prejudice sufficient to satisfy
the materiality standard is readily shown . . . such
that reversal is virtually automatic . . . unless the
state’s case is so overwhelming that there is no reason-
able likelihood that the false testimony could have
affected the judgment of the jury. . . .
‘‘In accordance with these principles, our determina-
tion of whether [the witness’] false testimony was mate-
rial under Brady and its progeny requires a careful
review of that testimony and its probable effect on the
jury, weighed against the strength of the state’s case
and the extent to which [the defendant was] otherwise
able to impeach [the witness].’’ (Emphasis in original;
internal quotation marks omitted.) State v. Jordan, 314
Conn. 354, 370–71, 102 A.3d 1 (2014); see also Marquez
v. Commissioner of Correction, supra, 330 Conn. 593–
94. ‘‘[D]etermining materiality presents a question of
law subject to plenary review.’’ Marquez v. Commis-
sioner of Correction, supra, 593.
Assuming without deciding that Brunetti’s testimony
at the defendant’s trial that the sixth image in state’s
exhibit 209 depicted M was false or substantially mis-
leading, we conclude that it was not material and did
not violate the defendant’s due process rights under
Napue and Giglio.93 Specifically, our review of the
record demonstrates that there is no reasonable likeli-
hood that Brunetti’s testimony identifying the sixth pho-
tograph as M would have affected the jury’s verdict,
despite its inconsistency with Farnham’s testimony on
this point at Hayes’ trial. First, there is no dispute that
the other five images in state’s exhibit 209 were of M,
which corroborates the defendant’s statement to the
police that he took photographs of M for his ‘‘personal
use.’’ Second, the content of the image does not bear
on any of the contested issues in the guilt phase, and
particularly whether the sexual assault that the defen-
dant had committed was by anal intercourse rather than
the claimed cunnilingus, or whether he had the requisite
intent to kill.94 Third, if the person in the image at issue
was not M, based on the timing of the photograph,
it had to have been H, which would have added the
differently inflammatory specter of an additional sexual
assault victim to the case. Indeed, the entirely tangential
nature of this issue is borne out by the defendant’s
failure to cross-examine Brunetti on this point, despite
having had access to Farnham’s testimony at Hayes’
trial and indications in the photographs—namely, dif-
ferent bedding as a backdrop—that suggest that the
images were of different people. Accordingly, we con-
clude that any misleading testimony on this point was
not material under Napue and Giglio, and did not
deprive the defendant of a fair trial.
V
CONDITIONS OF CONFINEMENT
Finally, the defendant claims that the trial court
unconstitutionally applied the stringent conditions of
confinement set forth in § 18-10b after his death sen-
tence was vacated and he was resentenced to life
imprisonment without the possibility of release and
subsequently transferred to a prison in Pennsylvania.
Specifically, the defendant contends that the restrictive
conditions of confinement set forth in § 18-10b, as
implemented by an administrative directive of the
department, constitute an ex post facto law, violate
equal protection, and are excessive and disproportion-
ate, in violation of the eighth amendment to the United
States constitution and article first, §§ 8 and 9, of the
Connecticut constitution. In response, the state relies
on State v. Campbell, supra, 328 Conn. 444, and argues
that this claim is not ripe for review because the record
lacks evidence or factual findings regarding the defen-
dant’s conditions of confinement or the procedures uti-
lized by the department in determining those
conditions. We agree with the state and conclude that
this conditions claim, although ripe, is not reviewable
in this direct appeal.
In Campbell, the defendant, Jessie Campbell III,
argued that his penalty phase claims were not moot,
despite the abolition of the death penalty, because he
would suffer collateral consequences as a result of the
previously imposed death sentence, namely, the imposi-
tion of restrictive conditions of confinement pursuant
to § 18-10b. See State v. Campbell, supra, 328 Conn. 461.
We agreed with the state’s argument that Campbell’s
conditions of confinement claim was not yet ripe for
review95 because those conditions ‘‘have not yet been
settled, as [Campbell] ha[d] not yet been resentenced.
Additionally, there ha[d] been no factual findings as to
how, if at all, [Campbell’s] confinement, after resentenc-
ing, would differ from those of any inmate who is simi-
larly situated.’’ Id., 462–63. We further concluded that,
‘‘because [Campbell’s] argument centers on a potential
challenge to conditions of confinement, the proper vehi-
cle for those claims is a petition for a writ of habeas
corpus.’’ Id., 463. Accordingly, we dismissed the appeal
in Campbell ‘‘with respect to his claims challenging the
penalty phase and the sentence of death.’’ Id., 466; see
id., 463 n.5 (deeming penalty phase claims challenging
death sentence moot).
Although the defendant in this case has been resen-
tenced, in contrast to Campbell, whose resentencing
was still hypothetical, rendering a challenge thereto not
ripe; see id., 464; that is a distinction without a differ-
ence with respect to the reviewability of the merits of
the defendant’s claim in this appeal. With respect to
the equal protection challenge in particular, which
focuses on the claimed disparate treatment of defen-
dants who had received life sentences after the abolition
of the death penalty as compared to capital defendants
who had previously received life sentences, there is no
evidence in the record beyond an averment of informa-
tion and belief in the defendant’s brief as to the treat-
ment of similarly situated inmates. Additionally, there is
no evidence as to the conditions of confinement actually
imposed on the defendant, who is presently incarcer-
ated in Pennsylvania. Any merit with respect to the
defendant’s § 18-10b claims aside, they implicate his
conditions of confinement. ‘‘It is well established that
the proper vehicle by which a defendant may challenge
his conditions of confinement is a petition for a writ
of habeas corpus. . . . The present case illustrates per-
fectly why a habeas petition is the proper vehicle. In the
habeas court, the defendant will have the opportunity
to present any and all evidence that is relevant to his
claim. That court is empowered to make factual findings
on that evidence. This court is not.’’ (Citation omitted.)
Id., 465–66. Accordingly, we leave the merits of the
defendant’s conditions of confinement claim under
§ 18-10b to a subsequent habeas corpus proceeding.96
The judgment is affirmed.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Robinson, Justices Palmer, D’Auria, Mullins,
Ecker, and Judges Alvord and Keller. Although Justice Mullins was not
present when the case was argued before the court, he has read the briefs
and appendices, and listened to a recording of the oral argument prior to
participating in this decision.
The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** April 12, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The defendant appealed directly to this court pursuant to General Stat-
utes § 51-199 (b) (4).
2
General Statutes § 18-10b provides in relevant part: ‘‘(a) The Commis-
sioner of Correction shall place an inmate on special circumstances high
security status and house the inmate in administrative segregation until a
reclassification process is completed under subsection (b) of this section,
if . . . (2) the inmate is in the custody of the Commissioner of Correction
for a capital felony committed prior to April 25, 2012, under the provisions
of section 53a-54b in effect prior to April 25, 2012, for which a sentence of
death is imposed in accordance with section 53a-46a and such inmate’s
sentence is (A) reduced to a sentence of life imprisonment without the
possibility of release by a court of competent jurisdiction, or (B) commuted
to a sentence of life imprisonment without the possibility of release.
‘‘(b) The commissioner shall establish a reclassification process for the
purposes of this section. The reclassification process shall include an assess-
ment of the risk an inmate described in subsection (a) of this section poses
to staff and other inmates, and an assessment of whether such risk requires
the inmate’s placement in administrative segregation or protective custody.
If the commissioner places such inmate in administrative segregation pursu-
ant to such assessment, the commissioner shall require the inmate to com-
plete the administrative segregation program operated by the commissioner.
‘‘(c) (1) The commissioner shall place such inmate in a housing unit for
the maximum security population if, after completion of such reclassification
process, the commissioner determines such placement is appropriate, pro-
vided the commissioner (A) maintains the inmate on special circumstances
high security status, (B) houses the inmate separate from inmates who are
not on special circumstances high security status, and (C) imposes condi-
tions of confinement on such inmate which shall include, but not be limited
to, conditions that require (i) that the inmate’s movements be escorted or
monitored, (ii) movement of the inmate to a new cell at least every ninety
days, (iii) at least two searches of the inmate’s cell each week, (iv) that no
contact be permitted during the inmate’s social visits, (v) that the inmate
be assigned to work assignments that are within the assigned housing unit,
and (vi) that the inmate be allowed no more than two hours of recreational
activity per day.
‘‘(2) The commissioner shall conduct an annual review of such inmate’s
conditions of confinement within such housing unit and the commissioner
may, for compelling correctional management or safety reasons, modify any
condition of confinement, subject to the requirements of subparagraphs (A)
to (C), inclusive, of subdivision (1) of this subsection. . . .’’
3
Whether the defendant had sexually assaulted M anally was a disputed
issue during the guilt phase of the trial. In his statement, the defendant
admitted to sexually assaulting M by performing oral intercourse on her,
stating that he believed she was between the ages of fourteen and sixteen
years old. He denied performing other sexual acts with M. The jury, however,
reasonably could have concluded that the defendant had anal intercourse
with M on the basis of the testimony of H. Wayne Carver II, then the state’s
chief medical examiner, that semen containing the defendant’s DNA was
found in M’s anus during her autopsy, with the lack of visible injuries to
that area not inconsistent with penetration having occurred. The state’s
DNA testing eliminated Hayes, along with W, J, and H, as potential sources
of the DNA found in M.
4
The Cheshire Police Department initiated a radio broadcast alerting all
units about the ongoing hostage situation at 9:26 a.m. Captain Robert Vignola,
who was the incident commander, testified that responding police units
acted to create a perimeter and surround the house, and to close the sur-
rounding roadways; they had been ordered not to approach the house by
Captain Ren Marchand, who was at the police station and had relied on
information that J had relayed to Lyons that the defendant and Hayes had
not mistreated them to that point but would kill them if the police were called.
5
Testimony from H. Wayne Carver II, then the state’s chief medical exam-
iner, and Malka Shah, an assistant medical examiner, established that H
and M, who also sustained severe burns, were killed by asphyxiation from
inhaling smoke containing toxic carbon monoxide.
6
The officers spoke to the defendant after Hayes did not answer any of
their questions, stating only that ‘‘things just got out of control.’’
7
The defendant moved to suppress this statement and an additional state-
ment that he had made concerning two break-ins in the neighborhood that
the state wished to offer as uncharged misconduct evidence. The defendant
argued that he had not made a voluntary, knowing, and intelligent waiver
of his privilege against self-incrimination pursuant to Miranda v. Arizona,
384 U.S. 436, 86 S. Ct.1602, 16 L. Ed. 2d 694 (1966), because he had made
those statements while sleep deprived and under the influence of injuries
sustained in the vehicle crash while fleeing. Following an evidentiary hearing
on August 23, 2011, the trial court denied the motion to suppress, concluding
that the defendant’s arguments were speculative and unsupported by the
evidence. The defendant does not directly challenge the trial court’s ruling
on the motion to suppress in this appeal, although it is implicated by one
of his Brady claims. See part III C 2 of this opinion.
8
In resentencing the defendant, for double jeopardy purposes, the trial
court vacated three of the defendant’s murder sentences and his sexual
assault sentence pursuant to this court’s decision in State v. Polanco, 308
Conn. 242, 245, 61 A.3d 1084 (2013).
9
We note that the defendant suggests, but does not address in detail,
additional claims of error arising from the pretrial publicity and jury selec-
tion, which we decline to review. See footnote 27 of this opinion.
10
Penrod, who holds the position of distinguished professor, has focused
his experimental research on jury decision making, including the effect on
juries of exposure to pretrial publicity. He has administered surveys to
assess the effects of pretrial publicity in approximately twenty-five civil and
criminal cases over a twenty-five year period in connection with providing
expert testimony on pretrial publicity and venue matters.
11
Kovera consulted with Penrod in developing the study. She has con-
ducted numerous studies on jury decision making and the effects of pretrial
publicity, and has published two books and more than fifty scientific journal
articles and book chapters. Like Penrod, she also has testified as an expert
witness in numerous venues, including Iowa, New York, Maryland, and
Canada.
12
At the hearing on the motion to change venue, Penrod testified that the
defendant’s attorneys had selected the four judicial districts. Penrod was
familiar with them because he had also performed a similar study in connec-
tion with Hayes’ trial.
13
Penrod stated that his researchers did not ask questions about case
knowledge until after they had preliminarily established that the juror would
be qualified to serve on a jury in Connecticut by verifying their age, United
States citizenship, residence in the district being studied, and their qualifica-
tion to serve on a death penalty jury under United States Supreme Court
case law. The study excluded without further inquiry those survey respon-
dents who reported knowing any person involved in the case, including
attorneys and witnesses.
14
The defendant suggested the judicial district of Fairfield as an alternative
to Stamford.
15
In addition to Penrod, Celia Lofink, a psychologist who had assisted
the defendant’s legal team by tracking media coverage of this case, testified
at the hearing. Lofink testified that her research, conducted by capturing
Google Alerts to news articles using the defendant’s last name and W’s name
indicated that there were 1808 media reports about this case from the date
of the offense through the date of the hearing. Lofink’s results reflected
worldwide coverage, although the majority of the articles were from Con-
necticut. Lofink then presented the court with a chronologically organized
table identifying each article by title and source, along with a flash drive
containing the text and any reader comments accompanying those articles,
both of which were admitted into evidence as court exhibits. Lofink testified,
however, that she was not aware of any technology that would allow her
to determine how many people had actually read each article.
16
The case of Lyle and Erik Menendez, two young men who killed their
wealthy parents in Beverly Hills, California, in 1989, involved a nationally
televised trial at which they claimed self-defense from physical and sexual
abuse. They were tried jointly, with a separate jury for each brother; the juries
hung at the first trial, but the brothers were convicted at their second trial
before a single jury. See Biography.com Editors, Erik Menendez Biography
(last modified November 17, 2020), available at https://www.biography.com/
crime-figure/erik-menendez (last visited April 8, 2021).
17
John Walker Lindh is an American citizen who was captured in Afghani-
stan in 2001, where he had lent aid to Osama Bin Laden’s terrorist organiza-
tion, Al Qaeda, and participated in a prison uprising that led to the death
of a Central Intelligence Agency officer. See, e.g., C. Rosenberg, ‘‘ ‘American
Taliban,’ Held 17 Years, Nears Release,’’ N.Y. Times, May 22, 2019, p. A1.
18
Once a survey respondent established some knowledge of the case, the
survey progressed to open-ended questions to assess additional knowledge
of the incident, followed by specific inquiries about whether the respondent
(1) had read a book written about the case, (2) had seen a television interview
of W by Oprah Winfrey, (3) had heard about journals the defendant had
written in prison, (4) had learned of the Hayes trial and verdict, (5) had
followed the media coverage of this case, (6) could be fair and impartial
and render a verdict based only on the evidence presented at trial in this
case, and (7) believed that the defendant should be executed.
With respect to more granular knowledge of the case, the most prominent
answer among the 1284 people across the four judicial districts who recog-
nized the case was that 60 percent provided some information about the
victims, with 42 percent being aware that the victims were the wife and
daughters, and 25 percent, the next largest category, being aware that the
husband escaped. Fifty-five percent had some information about the perpe-
trators, with more than half remembering that there were multiple perpetra-
tors, 9 percent being aware of their status as parolees, and 10 percent being
aware of Hayes’ conviction. With respect to the crime itself, 58 percent were
aware of some detail, with 30 percent being aware of the sexual assaults,
robbery, or fire. Thirty-three percent categorized the crime as ‘‘horrible’’
or ‘‘heinous.’’
Turning to death qualification, Penrod stated that, across the four judicial
districts, approximately two-thirds of those persons surveyed would not
automatically vote for the death penalty, and approximately 75 percent
would not allow their personal views on the death penalty to preclude them
from rendering a guilty verdict.
19
In New Haven, more respondents could offer greater detail about the
case, with most able to offer an average of five or six details rather than
the two or three provided by respondents in the other districts.
20
Conversely, in New Haven, 2.5 percent of the population reported a
‘‘positive’’ impression of the defendant, as compared to 1.6 percent in Stam-
ford. In New Haven, 27 percent of the respondents could not suggest the
most compelling evidence against the defendant, as compared to 48 percent
in Stamford.
21
Fifteen percent of the respondents in Stamford did not know how to
answer the question regarding their certainty as to the defendant’s guilt, as
compared to 6 percent in New Haven.
22
Penrod stated in response to questions from the trial court that the
margin of error was 5 or 6 percent depending on various underlying factors
in the study. With that margin of error factored in, Penrod still believed
that it was a significant enough difference to move the trial from New Haven
to Stamford, particularly given the lower volume of coverage in the Stamford
Advocate as compared to the New Haven Register.
23
Penrod explained that the intersection of those who believed that they
could be fair and impartial, yet who had also prejudged the defendant’s
guilt, raised concerns of ‘‘conformity prejudice,’’ in which jurors ‘‘worry
about how they will be perceived in the broader community if they come
back with a verdict that’s at odds with community expectations about
things.’’ Penrod described conformity prejudice as a concept that is rooted
in social norms about jury service as a civic responsibility, and as indicating
that pretrial publicity has an ‘‘endur[ing]’’ effect that lasts through the presen-
tation of trial evidence and into deliberations. The concept of conformity
prejudice extends from guilt to the death penalty determination. Penrod
believed that conformity prejudice was a ‘‘reasonable concern’’ in this case
because there was ‘‘so much knowledge about the case’’ and a ‘‘clear senti-
ment toward guilt,’’ with ‘‘part of that knowledge . . . about the nature of
the case and the perception of it being a gruesome case.’’ He explained that
the concept of conformity prejudice drove the decision to move Timothy
McVeigh’s federal trial for the Oklahoma City bombing from Oklahoma City
to Denver, given the concern that it would be difficult for jurors to return
to the community having not returned its desired verdict—a concern that
Penrod believed extended to this case.
With respect to conformity prejudice, Penrod noted that studies have
shown a differing response rate to the question about whether the respon-
dent can be fair and impartial, where people are significantly—nearly 60
percent—more likely to admit difficulties remaining impartial during a sur-
vey than they would in response to a question from a judge during jury
selection. Penrod also testified that studies indicate that people have diffi-
culty recognizing their own biases, including those arising from the effects
of pretrial publicity, and are attuned to give ‘‘socially desirable response[s]’’
to questions on this topic. Penrod observed that the very effect of the juror
oath administered by an authority figure, namely, the trial judge—even
during voir dire—might be to reinforce, rather than to alleviate, the effect
of conformity prejudice.
24
We discuss the voir dire of individual jurors in detail in part I D of
this opinion.
25
The trial court had denied the defendant’s request for a total of sixty
peremptory challenges, which would be twice the number statutorily granted
to the state.
26
The defendant argued that the additional challenges were necessary to
preserve his right to an impartial jury in light of pretrial publicity that
resulted in both overt and conformity prejudice. For a discussion of confor-
mity prejudice, see footnote 23 of this opinion.
27
The defendant also appears to raise, as independent claims of error,
arguments that the trial court improperly (1) declined to discontinue jury
selection after Senator Prague made her lynching comments, (2) denied his
motions to dismiss various panels of prospective jurors based on certain
outbursts in court by prospective jurors, (3) declined to award him additional
peremptory challenges, (4) denied his motions to sequester the jury, (5)
denied his request to use a jury questionnaire, (6) denied his motion to
preclude supporters of the P family from wearing pins from the P Family
Foundation in the courtroom, (7) denied his motion to remove newspaper
boxes located outside the courtroom, (8) failed sua sponte to require that
jurors inform the court of exposure to publicity or communications about
the case, or to staunch the flood of comments by the state or to permit the
defendant relief from the gag order to respond publicly, and (9) failed
sua sponte to instruct the venirepersons not to discuss the case among
themselves. To the extent that these nine arguments constitute independent
claims of error outside the purview of the constitutional claims regarding
actual or presumed prejudice, we decline to reach them because we agree
with the state’s argument that they are inadequately briefed, with virtually
no independent legal analysis. See, e.g., Lafferty v. Jones, 336 Conn. 332,
375 n.30, 246 A.3d 429 (2020), cert. denied, U.S. , 141 S. Ct. 2467,
209 L. Ed. 2d 529 (2021); State v. Buhl, 321 Conn. 688, 725–26, 138 A.3d 868(2016). We do, however, consider their factual predicates within the context
of the actual and presumptive prejudice claims, which we address in
great detail.
28
For a review of other United States Supreme Court pretrial publicity
decisions relied on in Skilling, compare Patton v. Yount, 467 U.S. 1025,
1032–34, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984) (deferring to trial court’s
decision to credit jurors’ statements of impartiality in retrial of defendant
accused of murdering high school student in case of local notoriety, given
passage of 4 years from time of crime to trial and 1.5 years from reversal
of initial conviction to trial, despite fact that all but 2 of 163 panel members
questioned had heard of case, and 8 of 14 seated jurors and alternates had
at one time believed defendant to be guilty), and Murphy v. Florida, supra,421 U.S. 800–801 (‘‘The voir dire indicates no such hostility to [the] petitioner
by the jurors who served in his trial as to suggest a partiality that could
not be laid aside. Some of the jurors had a vague recollection of the robbery
with which [the] petitioner was charged and each had some knowledge of
[the] petitioner’s past crimes, but none betrayed any belief in the relevance
of [the] petitioner’s past to the present case. Indeed, four of the six jurors
volunteered their views of its irrelevance, and one suggested that people
who have been in trouble before are too often singled out for suspicion of
each new crime—a predisposition that could . . . operate [only] in [the]
petitioner’s favor.’’ (Footnotes omitted.)), with Irvin v. Dowd, 366 U.S. 717,
719, 727–28, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961) (pretrial publicity was
prejudicial in case involving detailed reporting of defendant’s extensive
criminal history, details of his confession to murder and robbery spree, and
his offer to plead guilty to avoid death penalty in newspaper that was
circulated to 95 percent of small, rural community of only 30,000 people,
with 8 of 12 seated jurors believing he was guilty, despite assurances of
impartiality).
29
This principle has, of course, also been applied in notorious cases in
larger metropolitan areas. See United States v. Warren, 989 F. Supp. 2d 494,
499–500, 502–504 (E.D. La. 2013) (denying motion to transfer venue for
New Orleans police officers’ retrial in Danziger Bridge shooting case after
Hurricane Katrina because district had population of 1.5 million, nearly
three years had passed since first trial, and court would utilize questionnaires
and individual voir dire to identify potential jury prejudice); United States
v. Mitchell, 752 F. Supp. 2d 1216, 1220–27 (D. Utah 2010) (no presumed
prejudice in Elizabeth Smart kidnapping case given district’s population of
2.8 million, despite fact that 9000 to 10,000 residents participated in search
for her); State v. Sowell, supra, 148 Ohio St. 3d 565–66 (‘‘widespread’’ pretrial
publicity of serial rapist/murder case did not deprive defendant of fair trial
when jury was selected after extensive voir dire, which included individual
questioning as to effect of pretrial publicity, from county that included city
of Cleveland with population of more than 1.2 million).
We acknowledge, however, that even a relatively large population may
not necessarily obviate the need to move a trial in a particularly notorious
case. See United States v. Casellas-Toro, 807 F.3d 380, 386–88 (1st Cir. 2015)
(size of District of Puerto Rico, with 3 million residents, was balanced by
its ‘‘ ‘compact, insular’ ’’ population and media market, especially when
federal trial held after conviction of reviled defendant in commonwealth
court was ‘‘relatively unknown’’ outside of Puerto Rico); People v. Boss, 261
App. Div. 2d 1, 3–6, 701 N.Y.S.2d 342 (1999) (trial of police officer defendants
charged with murder of Amadou Diallo should be moved from New York
City given overwhelming and sensational pretrial publicity—including adver-
tisements taken out by American Civil Liberties Union against defendants,
commentary by public officials and opinion writers, and mass demonstra-
tions—on point that ‘‘the two undisputed facts, namely that [forty-one] shots
were fired and that . . . Diallo was unarmed, conclusively establish [the]
defendants’ guilt and are dispositive of all possible factual and legal issues,’’
including ‘‘[routine] . . . assertions [by prospective jurors] that [the] defen-
dants were motivated by racial prejudice’’).
30
Although not directly relevant to whether the defendant could get a fair
trial in New Haven, we also find it significant that Penrod’s study reflected
extremely high levels of case awareness among potential jurors in Stamford.
This means that an exercise of discretion to transfer this case to Stamford
would not have obviated the need for a searching and lengthy voir dire
process like that employed in New Haven to identify twelve suitable jurors
plus alternates. That suggests, of course, that transferring the case to Stam-
ford would not have dramatically reduced obstacles to picking an impartial
jury or have reduced the need for a searching voir dire process to reach
that end. See United States v. Tsarnaev, 968 F.3d 24, 55 (1st Cir. 2020)
(District Court did not abuse discretion in denying motion to change venue
of Boston Marathon bombing trial from Boston, Massachusetts, because
polling data showed ‘‘public awareness and attitudes were not materially
different in, for example, Springfield or New York City,’’ rendering it ‘‘not
a case where almost everybody locally knows something and very few
elsewhere know of it’’), petition for cert. granted (U.S. March 22, 2021) (No.
20-443); State v. Robinson, supra, 303 Kan. 71 (noting high case recognition
in counties outside venue of origin in upholding denial of motion to transfer
venue on statutory grounds); cf. United States v. Casellas-Toro, supra, 807
F.3d 386–88 (prejudicial publicity warranted transfer when defendant was
son of federal judge in Puerto Rico, which had ‘‘ ‘insular’ ’’ population and
media market, coverage of trial was massive and carried live on television,
Internet, and radio, with entire baseball stadium erupting in cheers when
he was convicted of related charges in commonwealth court, despite its
size of three million residents, particularly given that case was ‘‘relatively
unknown’’ outside of Puerto Rico); United States v. Gordon, 380 F. Supp.
2d 356, 365 (D. Del. 2005) (transferring political corruption case from Wilmin-
gton, Delaware, to Philadelphia, Pennsylvania, because of ‘‘the extensive
publicity [the] case has received’’ in Delaware, including ‘‘hundreds of news-
paper articles and editorials, which strongly support[ed] the view that a
substantial percentage of Delawarians [were] likely to have concluded that
the defendants [were] guilty as charged,’’ almost everyone in county where
alleged crimes occurred had heard about case and substantial majority
already had formed opinions about it, and case could be tried in nearby
Philadelphia, where it had ‘‘generated little or no publicity’’ without undue
inconvenience), rev’d on other grounds, 183 Fed. Appx. 202 (3d Cir. 2006).
31
In the present case, the jury found the defendant guilty on all counts,
rather than having returned a split verdict, the latter of which has been
deemed indicative of impartiality weighing against the presumption of preju-
dice. See, e.g., Skilling v. United States, supra, 561 U.S. 383–84; State v.
Carr, supra, 300 Kan. 74. Nonetheless, our review of the record demonstrates
that the evidence was overwhelming. Indeed, the defendant conceded the
vast majority of the factual issues in the guilt phase—in particular, his
participation in the home invasion—choosing to challenge only whether he
had sexually assaulted M anally, rather than orally as he had confessed,
and whether he had the requisite intent to kill. Accordingly, we conclude
that the jury’s verdict does not support a finding of presumptive prejudice.
See State v. Townsend, 211 Conn. 215, 228–29, 558 A.2d 669 (1989) (noting
that publicity about plea negotiations and defendant’s offer to plead guilty
to murder in exchange for five year sentence was ‘‘not as inherently prejudi-
cial as in a case in which a defendant denies any involvement in a crime,
but nonetheless has considered pleading guilty in exchange for a reduced
sentence,’’ because defendant did not ‘‘[dispute] the events leading up to
the victim’s death’’ but, instead, appeared to challenge whether he had ‘‘the
requisite intent for murder’’); see also Luong v. State, supra, 199 So. 3d 148(Given ‘‘[the defendant’s] admission that he threw each of his children off
the bridge, the fact that [the defendant] was not acquitted of any of the
charged offenses does not either support or rebut a presumption of jury
bias or impartiality. The evidence in [the] case simply did not create any
inference from which the jury could conclude that he killed some, but not
all, of his children.’’); State v. Gribble, supra, 165 N.H. 23 (defendant’s
admission to participation in crimes and plea of not guilty by reason of
insanity reduced prejudice from media reporting on coconspirator’s trial
that ‘‘described the defendant’s involvement in the crime’’ because he ‘‘admit-
ted as much when he pleaded not guilty by reason of insanity’’).
32
The Peterson trial originally was moved from the rural jurisdiction in
which the murder happened to San Mateo County, which had a larger
population. See People v. Peterson, supra, 10 Cal. 5th 438.
33
Having concluded that no presumption of prejudice arose on the record
in this case, we need not directly consider the question of whether any
such presumption is rebuttable, an issue not resolved by the United States
Supreme Court in Skilling; see Skilling v. United States, supra, 561 U.S.
385 n.18; and not clearly addressed by that court’s earlier precedents, which
were inconsistent with respect to whether to examine the transcript of voir
dire after determining that prejudice existed. See, e.g., United States v.
Casellas-Toro, supra, 807 F.3d 388–89. Those few courts that have directly
considered this issue have, however, concluded that the presumption is in
fact rebuttable, both before and after Skilling was decided, in a process
akin to the actual prejudice inquiry. See United States v. Wilcox, 631 F.3d
740, 749 (5th Cir.), cert. denied, 563 U.S. 1015, 131 S. Ct. 2921, 179 L. Ed.
2d 1260 (2011); United States v. Campa, 459 F.3d 1121, 1143 (11th Cir. 2006);
United States v. Chagra, 669 F.2d 241, 250 (5th Cir.), cert. denied, 459 U.S.
846, 103 S. Ct. 102, 74 L. Ed. 2d 92 (1982); Luong v. State, supra, 199 So.
3d 167 (Parker, J., dissenting).
34
We note that the First Circuit recently concluded that the Boston Mara-
thon bomber, Dzokhar Tsarnaev, was entitled to a new penalty phase trial.
United States v. Tsarnaev, 968 F.3d 24, 56 (1st Cir. 2020), petition for cert.
granted (U.S. March 22, 2021) (No. 20-443). Although the court held that
the District Court had not abused its discretion in declining to move the
trial out of Boston, Massachusetts; id., 55–56; it also concluded that the
extent of the voir dire conducted—the presumed adequacy of which had
been a key to its earlier mandamus decision in In re Tsarnaev, supra, 780
F.3d 25–26, not to move the trial from Boston—was in fact inadequate to
ensure the impartiality of the jurors. See id., 58–59.
35
‘‘In accordance with our usual practice, we identify jurors by initial[s] in
order to protect their privacy interests.’’ (Internal quotation marks omitted.)
State v. Holmes, 334 Conn. 202, 207 n.6, 221 A.3d 407 (2019).
36
With respect to the death penalty, all of the jurors testified that they
(1) understood the jury’s exclusive role in the sentencing decision, (2) would
keep an open mind during a sentencing phase despite evidence heard during
the guilt phase supporting convictions of intentional murder and the sexual
assault of an eleven year old girl, and (3) would keep an open mind with
respect to the claimed mitigating factors, including relatively minor involve-
ment in the crime, reduced mental capacity, and a troubled childhood.
37
Out of an abundance of caution, and to give the most expansive consider-
ation possible to the defendant’s actual prejudice claims, we also reviewed
the voir dire of the six alternate jurors, along with the three backup alternate
jurors. See, e.g., State v. Crafts, supra, 226 Conn. 260. We do not discuss
them in detail, insofar as ‘‘[p]rejudice is assessed with reference to the jurors
who [found] the defendant [guilty] because [t]he constitutional standard of
fairness requires [only] that a defendant have a panel of impartial, indifferent
jurors.’’ (Internal quotation marks omitted.) State v. Gould, supra, 322 Conn.
531. None of the six alternates who sat at trial, G.B., C.T., C.H., Ch.G., C.J.,
and R.D., was needed to deliberate in this case. Similarly, the three backup
alternate jurors, I.L., M.S., and M.M., were dismissed prior to the start of
the trial and did not sit with the jury for any part of this case. Our review
of their voir dire testimony indicates that, consistent with the regular jurors,
each of the alternates and backup alternates expressed relatively modest
levels of knowledge about this case and the defendant’s background in
particular, did not know anything about the defendant’s background, stated
limited support for the death penalty as a general matter, and had an open
mind and understanding of the state’s burden of proof with respect to both
the guilt and penalty phases in this case. We acknowledge, however, that
the defendant raised challenges for cause to several of these alternate and
backup alternate jurors based on case knowledge, which the trial court
rejected on the basis of its assessment of the jurors’ understanding of and
ability to apply the presumption of innocence; the defendant did not exercise
peremptory challenges as to any of them. See part I E of this opinion.
38
M.N. did not have any personal or professional contacts with W.
39
With respect to the death penalty, M.N. believed that ‘‘it’s something
that should be reserved only for heinous crimes that were done . . . inten-
tionally and thought out beforehand.’’ He quantified his support for it as a
three on a scale of one to ten. When asked hypothetically about whether
the death penalty was ‘‘the only appropriate penalty’’ for a premeditated
murder, M.N. stated that his view would ‘‘depend on additional details,’’
such as whether the victim in the hypothetical had suffered ‘‘additional pain
and torture . . . .’’ When asked about this case, he stated: ‘‘The accused’s
crimes are horrible, and those are the kind of crimes that I think are the
ones where the death penalty is appropriate, but I would consider mitigating
circumstances if I was instructed to do so.’’
40
T.A. had ‘‘no qualms with’’ the death penalty because it was provided
by law, and he quantified his support for it as a five on a scale of one to
ten. His moderate support for the death penalty was dependent on the
circumstances of the case. When asked about his ideal world, T.A. stated
he would not have the death penalty because it is inconsistent with his
ideals as a social worker to help people after understanding their actions.
T.A. also acknowledged the need for proof of aggravating and mitigating
factors, stating that, before making the death penalty decision, he would
want to know ‘‘what caused that person to do that type of crime or . . .
his history’’; he believed a person’s past could ‘‘definitely’’ shape his or
her life.
41
T.M. had previous personal experience with homicide trials, having
testified as an alibi witness at the murder trial of a close friend one decade
before, at which her friend was convicted.
42
T.M. also stated candidly that W’s presence during the proceedings
‘‘might’’ influence her by ‘‘putting [herself] in his shoes . . . . I would feel
bad. I would be hurting for him and with him.’’ The trial court, however,
credited T.M.’s statement that, although her ‘‘heart goes out to him and his
family,’’ that sympathy ‘‘wouldn’t influence [her] decision based on what
happened with the trial . . . .’’
43
With respect to the death penalty, T.M. knew from a college research
project that it is ‘‘expensive.’’ T.M. did not ‘‘feel strongly either . . . way’’
and was ‘‘in between’’ on the death penalty, although she ‘‘would rather not
see anybody [get] the death penalty.’’ She characterized her support as a
three or four on a scale of one to ten, with it being potentially appropriate
depending on the circumstances of the case.
44
K.A. did not know W personally or professionally and could not think
of any mutual acquaintances.
45
When asked about the death penalty, K.A. stated her ‘‘ethical’’ opinion
that ‘‘it is not a good solution to [crime] in our country or anywhere.’’ She
placed her support of it at a five on a scale of one to ten. Nevertheless,
K.A. stated she did not know it was ‘‘a legal issue’’ and, consistent with her
desire to be ‘‘fairly objective in [her] day-to-day activities,’’ emphasized
that she could follow the instructions of the court because ‘‘I believe in
our system.’’
46
We note that V.K. was the last prospective juror of the day on April
7, 2011, but that the transcript of her voir dire is apparently incomplete,
proceeding directly to adjournment from the defendant’s questioning of her.
There is no transcript of V.K.’s being accepted as a juror or the trial court’s
instructions to her. Neither party has claimed, however, that this omission
has rendered the record inadequate for review or that there was a challenge
to the qualification of V.K.—or any other regular juror—to serve.
47
With respect to the death penalty, V.K. had not ‘‘really . . . thought
about it,’’ but she described her support for it as ‘‘in the middle,’’ quantified
as a five on a scale of one to ten. When asked whether she believed that
the death penalty could be appropriate in some cases, V.K. stated that ‘‘it
would really matter on what the case . . . was . . . .’’ When asked whether
she could think of a situation herself in which the death penalty would be
appropriate, V.K. stated that ‘‘I really . . . can’t answer that. I really don’t
know.’’ When asked to consider whether she would impose the death penalty
in the case of a horrendous crime, she replied in the negative ‘‘because I
don’t really believe in killing somebody like for an eye for an eye kind of . . .
philosophy . . . .’’ Nevertheless, V.K. also stated that she could imagine a
situation in which the evidence would support a vote for the death penalty
and that she would follow the instructions of the court and apply them to
the evidence.
48
M.B. testified that she had ‘‘mixed feelings’’ about the death penalty,
describing it as a ‘‘weighty’’ and ‘‘very difficult’’ decision. She quantified her
support for the death penalty as a five or six on a scale of one to ten but
stated that she would not have it in a country where she made the law.
Although M.B.’s husband favored the death penalty, including for the defen-
dant, she testified that his belief would not influence her because ‘‘I have
a strong sense of myself.’’
49
With respect to the death penalty, L.C. stated that, ‘‘in the past, I was
not in favor of it’’ because she questioned whether it was ‘‘morally right
for us as a society to put someone to death,’’ but she had become more
‘‘ambivalent’’ about the issue over time. She quantified her current support
for the death penalty as a five on a scale of one to ten, acknowledging that
there might be some extreme situations in which the death penalty could
be appropriate, but emphasized her ‘‘hope that I could be very sure that
. . . it was beyond any reasonable doubt.’’ When asked by defense counsel,
L.C. stated that her change in opinion about the death penalty had nothing
to do with this case.
50
R.F. believed that the death penalty ‘‘should be used on . . . a case-
by-case basis,’’ for serious cases such as those involving ‘‘several murders,
maybe like Ted Bundy,’’ with his support for the death penalty being ‘‘a five
or a six’’ on a scale of one to ten. R.F. had not given a lot of ‘‘serious
thought’’ to the legality or morality of the death penalty or the pending
public policy debate. He personally believed that the death penalty did not
serve a ‘‘legitimate purpose’’ because he viewed life in prison as potentially
worse, based on what he had seen of prisons on television.
51
With respect to the death penalty, L.K. stated that she could follow the
law and make the ‘‘right decision,’’ but that she had ‘‘always . . . felt’’ that
she was not personally ‘‘a big supporter of it . . . .’’ L.K. quantified her
support for the death penalty as a three or four on a scale of one to ten,
observing that, although ‘‘there are certain crimes that it definitely fits,’’ she
was concerned about the imperfection of the criminal justice system and
making sure that innocent people were not executed. She emphasized that
she did not ‘‘think that death is the only appropriate punishment,’’ deeming
that decision dependent ‘‘on . . . the situation, based on mitigating factors,’’
and stated that ‘‘I do not think that I would walk in and because . . . people
had been murdered just say that the death penalty was the option.’’
52
With respect to the death penalty, S.H. testified that ‘‘I guess debates
[have] been going on for years with that. I don’t feel on or off about it.’’ He
clarified that he did not ‘‘have an opinion to weigh either way’’ on the issue
and lacked sufficient knowledge to quantify his support on a scale of one
to ten. S.H. testified that he would be able to participate in a death penalty
deliberation, including a vote to impose either it or a life sentence, but
would have to ‘‘hear argument’’ about it.
53
J.H. described herself as ‘‘on the fence’’ about the death penalty because
of her Catholic faith; she acknowledged that, ‘‘if a personal tragedy did
happen to me, I can’t say how I would react in that circumstance.’’ She
quantified her support for the death penalty as a five on a scale of one to
ten, calling it a ‘‘difficult question’’ that she never had to consider before.
If given a choice to create her own laws, J.H. said ‘‘it would be hard for
me to enact the death penalty.’’ J.H. further testified that she was ‘‘really
undecided’’ about the death penalty morally but could follow the law and
return a death verdict if ‘‘that was the appropriate penalty,’’ although she
recognized that ‘‘it will be very difficult to be in this position.’’
54
With respect to the death penalty, C.A. had ‘‘periodically’’ engaged in
discussions of it over the years, and he did ‘‘not believe in the death penalty
except for cases . . . with very extreme circumstances.’’ He quantified his
support for the death penalty as a five on a scale of one to ten, stating that
he had become less supportive of the death penalty as he got older, perhaps
because of his Catholic faith. C.A. believed that the state should have the
power to kill a citizen only under ‘‘certain circumstances,’’ such as for crimes
that are ‘‘[v]ery heinous in nature, and I think each case . . . or each situa-
tion is different . . . I think you have to listen to . . . the facts and then
bear judgment on it, but to put a blanket statement over, you know, would
you do it here and not there? I think that has to be handled very care-
fully . . . .’’
55
Specifically, the defendant claims that the trial court improperly denied
his challenges for cause to prospective jurors E.M., C.G., V.J., P.L., S.W.,
W.V., B.F.-S., M.C., S (no first name indicated), J.W., J.P., and C.P., thus
requiring him to expend peremptory challenges on them.
56
We note ‘‘the sources in our law of the defendant’s right to an impartial
jury and his correlative right to have a biased venireperson removed for
cause. Both the federal and state constitutions guarantee to an accused the
right to a public trial by an impartial jury. U.S. Const., amends. VI and XIV;
Conn. Const., art. I, § 8. Furthermore, General Statutes § 54-82f provides in
relevant part: ‘If the judge before whom the [voir dire] examination is held
is of the opinion from the examination that any juror would be unable to
render a fair and impartial verdict, the juror shall be excused by the judge
from any further service upon the panel, or in the action, as the judge
determines.’ ’’ State v. Esposito, supra, 223 Conn. 308–309; see also Practice
Book § 42-12 (providing language substantially identical to § 54-82f). ‘‘[T]he
trial court is vested with wide discretion in determining the competency of
jurors to serve, and that judgment will not be disturbed absent a showing
of an abuse of discretion. . . . In exercising this discretion the trial court
must zealously protect the rights of the accused.’’ (Citation omitted; internal
quotation marks omitted.) State v. Esposito, supra, 310.
57
To the extent that the defendant claims that he was prejudiced because
he was required to exhaust his allotted peremptory challenges on these
jurors prior to the conclusion of jury selection, thus depriving him of the
opportunity to use those challenges on other jurors whom he also deemed
objectionable, thereby affecting the composition of the panel as a whole,
this claim is foreclosed by our decision in State v. Ross, supra, 269 Conn.
233–34. See also State v. Pelletier, supra, 209 Conn. 572–73 (‘‘[T]he defendant
did not accept any juror or alternate whom he requested to be removed for
cause. Therefore, even if those prospective jurors were biased, the defendant
was not harmed because those individuals never became members of the
jury.’’).
58
Section 8-6 of the Connecticut Code of Evidence provides: ‘‘The follow-
ing are not excluded by the hearsay rule if the declarant is unavailable as
a witness . . . (4) Statement against penal interest. A trustworthy statement
against penal interest that, at the time of its making, so far tended to subject
the declarant to criminal liability that a reasonable person in the declarant’s
position would not have made the statement unless the person believed it
to be true. In determining the trustworthiness of a statement against penal
interest, the court shall consider (A) the time the statement was made
and the person to whom the statement was made, (B) the existence of
corroborating evidence in the case, and (C) the extent to which the statement
was against the declarant’s penal interest. . . .’’
59
After closing arguments, the trial court readdressed the parties with
respect to the letters. The court stated that it would review the letters and
then hear arguments the next day from the parties as to their admissibility,
as well as any desired relief. Consistent with its directive from earlier in
the day, the trial court then charged the jury, but it did not submit the case
to the jury for deliberation at that time.
60
When asked by the trial court, defense counsel indicated that he had
not yet spoken with Hayes’ attorneys, but he agreed with the trial court’s
observation that ‘‘[i]t’s hard to imagine [Hayes] not taking the fifth amend-
ment . . . .’’
61
The defendant emphasized that the police had found numerous pairs
of female sneakers when they searched Hayes’ home and had found H’s
sneakers in Hayes’ vehicle, which was consistent with his ‘‘constantly’’
talking in the letters about his sneaker fetish and the fact that he claimed
to have taken sneakers as trophies in connection with his past murders.
The defendant also contended that Hayes’ descriptions of himself as a ‘‘great
hunter’’ and Hayes’ statements of sadistic pleasure supported the defendant’s
theory that he personally lacked intent to kill during the home invasion.
62
In its colloquy with defense counsel, the trial court described the letters
as, ‘‘at a minimum, a bare minimum, a mixed blessing for you because, if
you view . . . Hayes as truthful, he is one of the great serial killers [in]
modern American history. He claims to have killed seventeen people prior
to this incident in pretty horrific ways, but he also says extremely, and I
mean extremely, inculpatory things about [the defendant such] that it would
be hard to imagine you wanting to put on. He says that [the defendant] had
the proper evil intent, he says that [the defendant] poured gas on [the
victims] and set the fire.’’ The court further observed that Hayes had written
that the defendant ‘‘said, suppose we’re going to kill everybody anyway,
this is at an early stage, he says that [the defendant] announces that he is
going to sexually assault the eleven year old girl which later on . . . Hayes
purports to have personally witnessed. He says that . . . [the defendant]
was the one who actually killed the girls. And he says that they went into
this enterprise with the . . . joint plan of killing everybody. So, under these
circumstances, I just don’t see how, if it’s true, that it helps you at all, and,
of course, if it’s not true, then I don’t see how it could be relevant.’’ Although
defense counsel demurred, stating that ‘‘I don’t believe it’s appropriate for
me to address trial tactics with the court in a public forum,’’ the trial court
emphasized that the information was ‘‘necessary for [it] to address this
question because the evidence has closed’’ and could only ‘‘reopen . . . to
avoid a miscarriage of justice.’’ The trial court questioned how these ‘‘damn-
ing things’’ in the letters would mean that reopening ‘‘would avoid a miscar-
riage of justice . . . .’’ The trial court acknowledged that, if ‘‘hypothetically
. . . Hayes had committed seventeen murders prior to this event, how you
could argue from that that Hayes was the leader’’; however, the letters also
stated that the defendant himself had told Hayes that ‘‘he had killed before,’’
making it ‘‘very hard for [the court] to term this as exculpatory.’’
63
The trial court did, however, leave open the possibility that the letters
could be admissible ‘‘in the penalty phase of the trial should we, hypotheti-
cally, get there,’’ given the relaxed rules of evidence in that stage of the pro-
ceedings.
64
We agree with the trial court’s observation that, assuming that Hayes
was unavailable to testify, the admissibility of his letters as declarations
against penal interest was nevertheless highly doubtful, given that (1) they
were written four years after the crimes to a woman whom Hayes understood
to be simpatico in his passions for evil, and (2) there was no apparent
corroboration of times, dates or places of his claimed prior seventeen homi-
cides. See State v. Bryant, 202 Conn. 676, 699, 523 A.2d 451 (1987) (‘‘the
focus on time appears to arise from the belief that declarations made soon
after the crime suggest more reliability than those made after a lapse of
time [during which] a declarant has a more ample opportunity for reflection
and contrivance’’). Compare State v. Snelgrove, 288 Conn. 742, 769–70, 954
A.2d 165 (2008) (third party’s statement to fellow inmate that he had killed
victim was inadmissible when third party ‘‘was suffering from psychiatric
problems at the time that he made the statement,’’ which lacked corrobora-
tion and was made two to three years after murder and defendant’s arrest),
with State v. Rivera, 268 Conn. 351, 369–71, 844 A.2d 191 (2004) (dual
inculpatory statement was admissible when made to close family member
in confidence, on his own initiative, and within five months of homicide).
65
Although the defendant suggests that the prejudicial portions of the
Hayes letters could have been redacted, the state accurately notes that the
defendant did not raise the possibility of redaction before the trial court. This
precludes us from considering the possibility of redaction in determining
whether the trial court abused its discretion in denying the defendant’s
motions. In any event, as the state also points out, redaction of the portions
that were prejudicial to the defendant might well have affected the context
of the remaining statements in a manner inconsistent with our case law
governing the admission of declarations against penal interest. See, e.g.,
State v. Bryant, 202 Conn. 676, 696–97, 523 A.2d 451 (1987) (‘‘where the
disserving parts of a statement are intertwined with self-serving parts, it is
more prudential to admit the entire statement and let the trier of fact assess
its evidentiary quality in the complete context’’).
66
Winters testified that he used software that allowed him to ‘‘mark’’ or
‘‘tag’’ recordings of various individual transmissions on the telephone and
radio systems, and then to move them into another software application
that would ‘‘recreate the incident.’’ After reviewing the various telephone
lines and radio channels, Winters moved the calls that he had tagged as
relevant to the software application; he then created a compact disc (CD)
for Vignola that contained those communications. Winters also created, at
Vignola’s request, a written log that summarized, but did not transcribe
verbatim, the time and nature of the communications. This process depended
on Winters’ judgment to determine the relevance of each communication.
Winters testified that the system did not automatically back up the
recordings, and he manually copied the sound files to CDs on a weekly
basis as a backup. Several years later, the town replaced the Cheshire
emergency communications system after it was severely damaged by a
lightning strike in December, 2010. When he subsequently received a request
for a review of additional communications in connection with the motions
for augmentation in this case, Winters stated that the originals had been
destroyed by the lighting strike, but he was able to review the backup drives
that he had created, which were stored off-site at Cheshire’s town hall. See
footnote 67 of this opinion. He did not, however, remember the existence
of those drives at the time that defense counsel had made the initial request
for additional communications in 2011.
67
Appellate counsel observed that the calls described in the Hartford
Courant article were not identified in the call log and discovery memorandum
that the state had produced prior to trial. She could not find any evidence
of those communications after she searched the files of all three attorneys
who had represented the defendant at trial and listened to the CDs that she
found therein. She then contacted Neil Dryfe, the chief of the Cheshire
police, who produced a flash drive of those calls, which had been found in
a backup storage location in town hall. See footnote 66 of this opinion.
Appellate counsel testified, however, that she subsequently learned that the
recordings of the missing communications had in fact been produced to
attorneys for Hayes, who was tried first.
68
‘‘Pursuant to State v. Floyd, supra, 253 Conn. 700, a trial court may
conduct a posttrial evidentiary hearing to explore claims of potential Brady
violations . . . when a defendant was precluded from perfecting the record
due to new information obtained after judgment. . . . In order to warrant
such a hearing, a defendant must produce prima facie evidence, direct or
circumstantial, of a Brady violation unascertainable at trial. . . . The trial
court’s decision with respect to whether to hold a Floyd hearing is reviewable
by motion for review pursuant to Practice Book § 66-7 . . . .’’ (Citations
omitted; internal quotation marks omitted.) State v. Ouellette, 295 Conn.
173, 182 n.7, 989 A.2d 1048 (2010).
69
In particular, the defendant claimed that the inadequacy of the police
response was a relevant circumstance in this case for consideration by the
jury in its capital sentencing determination. At the Floyd hearing, Todd
Bussert, who was one of the attorneys who represented the defendant at
trial, testified that he had reviewed the CD of dispatch calls found in his
trial file in advance of cross-examining Vignola, the Cheshire police detective
captain. The defense strategy, in connection with ‘‘front-load[ing]’’ mitigation
for the anticipated penalty phase, was to raise the question of whether the
tragedy might not have occurred if the Cheshire police had responded
differently. Bussert’s objective in cross-examining Vignola was to establish
the sequence of the police response and to demonstrate that the Cheshire
police ‘‘didn’t actually engage anyone; they just kind of set up a perimeter.’’
70
At the Floyd hearing, the trial court also considered a separate augmen-
tation and rectification motion filed on November 13, 2015, that encom-
passed certain testimony and exhibits from Hayes’ trial with respect to the
photographs that the defendant had taken of M. We address the defendant’s
claims relating to those items in part IV of this opinion.
71
As described in the stipulation, the relevant recordings are (1) ‘‘[a]
recording numbered 173251 (CH10 09001C58) [in] the call log provided by
the [s]tate to defense trial counsel and admitted at trial as [d]efendant’s
[e]xhibit #A. Call from Cheshire Police Sergeant Chris Cote to Officer Robert
Regan, acting as dispatcher, in response to request of Officer Donald Miller
for a call,’’ (2) ‘‘[a] recording numbered 173309 (CH1 000A724) [in] the call
log provided by the [s]tate to defense trial counsel and admitted at trial as
[d]efendant’s [e]xhibit #A in which Cheshire Police Captain Robert Vignola
states he will do a drive-by of 300 Sorghum Mill Drive, Cheshire, and the
house is described by Officer Philip Giampietro,’’ (3) ‘‘[a] recording desig-
nated CH10 09001CCB 669; in which Shawn Patterson, a Cheshire [p]olice
[o]fficer, speaks with Officer Brian Schechter,’’ (4) ‘‘[a] recording designated
CH10 09001D4C 669; the relevant speakers are a Cheshire Detective Kerry
Nastri and . . . Connecticut State Trooper David Devito,’’ (5) ‘‘[a] recording
designated CH11 0A00327B; the relevant speaker is Cheshire Police Captain
. . . Vignola; internal call from Captain Ren Marchand, shift commander.
The time of the call was 9:27:52 a.m. on July 23, 2007,’’ (6) ‘‘[a] recording
designated CH17 10002AA5; the relevant speaker is Cheshire Police Officer
Jeff Sutherland. The time of the call was 9:33:26 a.m. on July 23, 2007. This
call was included on a dis[c] produced in discovery on or around September
13, 2007 (Item #87). It is included among other calls in Call #173292 [in] the
call log, [d]efense [e]xhibit A,’’ (7) ‘‘[a] recording designated
CH17 10002AA7. The time of the call was 9:35:23 a.m. on July 23, 2007. This
call was included on a dis[c] produced in discovery on or about September
13, 2007 (Item #87). It is included among other calls in Call #173292 [in] the
call log, [d]efense [e]xhibit A,’’ and (8) ‘‘[a] recording designated
CH10 09001C57 (Time: 9:23:12); the relevant speakers are [Officer Regan]
and Cheshire Police Lieutenant Joe Mazzini. The time of the call was 9:23:12
a.m. on July 23, 2007.’’
72
The defendant withdrew claims arising from the 9:33:26 a.m. broadcast
by Cote indicating that he was approaching Sorghum Mill Drive and the
9:35:23 a.m. broadcast by an officer who sounded like Cote, indicating that
he was on the rear side of the P family residence at that time.
73
Section 9-1 (a) of the Connecticut Code of Evidence provides: ‘‘The
requirement of authentication as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the offered evidence
is what its proponent claims it to be.’’
74
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.’’
75
C.H.-R. testified that she originally thought that the e-mail had been
created by the Cheshire police and forwarded to her by her brother-in-law,
W. C.H.-R. later asked W about the e-mail around the time of trial, and W
denied sending the e-mail to her or having any awareness of the informa-
tion therein.
76
C.H.-R. testified that she had discussed the police response with Vitello,
who stated that he could not speak to her about the evidence until after
the trial; she had informed him of her concern that the police were present
when the Pacifica returned. She also discussed her concerns about the
police response with the prosecutor before the trial, although none of the
reports that he had showed them included the initial police response time.
Sage, an inspector with the prosecutor’s office, counseled C.H.-R. not to
discuss the information publicly until after the trial.
77
Section 10-3 of the Connecticut Code of Evidence provides: ‘‘The original
of a writing, recording or photograph is not required, and other evidence
of the contents of such writing, recording or photograph is admissible if:
‘‘(1) Originals lost or destroyed. All originals are lost or have been
destroyed, unless the proponent destroyed or otherwise failed to produce
the originals for the purpose of avoiding production of an original; or
‘‘(2) Original not obtainable. No original can be obtained by any reasonably
available judicial process or procedure; or
‘‘(3) Original in possession of opponent. At a time when an original was
under the control of the party against whom it is offered, that party was
put on notice, by the pleadings or otherwise, that the contents would be a
subject of proof at the proceeding, and that party does not produce the
original at the proceeding; or
‘‘(4) Collateral matters. The contents relate to a collateral matter.’’
78
Accordingly, we agree with the trial court that the issue presented in
this case, which concerned the existence of both the missing e-mail and
the call log contained therein, is—contrary to the defendant’s argument—
distinct from the authentication inquiry governed by § 9-1 of the Connecticut
Code of Evidence, under which the trial court exercises its discretion in
determining whether there is a prima facie case showing that a specific
item of evidence is what its proponent claims it to be. See, e.g., State v.
Carpenter, 275 Conn. 785, 856–57, 882 A.2d 604 (2005) (authentication of
identity of speaker on recording), cert. denied, 547 U.S. 1025, 126 S. Ct.
1578, 164 L. Ed. 2d 309 (2006); State v. Colon, supra, 272 Conn. 188–89
(authentication of written confession to police). This authentication inquiry
would have arisen in the present case had, for example, the e-mail itself
been presented to the trial court, thus requiring the trial court to consider
the authenticity of both the e-mail and the call log contained therein.
79
The recording of the first communication provides in relevant part: ‘‘[A
Male Voice]: Hey, what’s up?
‘‘ [A Male Voice]: We’re taking 911s from the bank. Apparently some family
is tied up and being held hostage, and they’re forcing the woman to go to
the bank and withdraw a large amount of cash to pay the captors. Mazzini
is here now. Don is getting basic information on it, but it sounds like we
might be in this for a little bit.
‘‘[A Male Voice]: All right. Where is it?
‘‘[A Male Voice]: The lady is at Bank of America, Don? The lady just left,
possibly with the captors in a Chrysler Pacifica heading out Vespucci’s side
of Maplecroft.
‘‘[A Male Voice]: Do you want to put that on the air? Joe, what do you
want to do? Do you want to try to find that car or what do you want to
do? We’re going to put that out on [indiscernible]. Just left Bank of America,
the captors might be in the car with her, Chrysler Pacifica. . . . The bank
manager is the one that called us. The lady doesn’t even—didn’t want to
notify the police because they have her family tied up. [Indiscernible.]
***
‘‘[A Male Voice]: . . . Chrysler Pacifica, color gray, coming out of
Maplecroft Plaza [indiscernible] West Main Street toward Sorghum Mill
Road.
‘‘[A Male Voice]: All right. What color is the Pacifica? . . .
‘‘[A Male Voice]: . . . [Indiscernible] But—why don’t you just head down
toward that area and see if we can intercept this car.
‘‘[A Male Voice]: I’m on Maple now. . . . [Indiscernible.] Turned onto
West Main Street, the Pacifica [indiscernible] gray Pacifica. . . .’’
80
The recording of the second communication provides: ‘‘[A Male Voice]:
300 Sorghum Mills? . . . Is the lady still at the bank? . . . Chrysler Pacif-
ica? . . . All right. We’re heading out.’’
81
The recording of the third communication provides in relevant part: ‘‘[A
Male Voice]: [Indiscernible.] Going to do a drive-by [indiscernible] . . . .
‘‘[A Male Voice]: Okay, as soon as you get past Hotchkiss Ridge, just look
on your left, you’ll see the house. Again, the front faces Hotchkiss Ridge,
the driveway comes out onto Sorghum. The vehicle is in the driveway.’’
82
The recording of the fourth communication provides in relevant part:
‘‘[A Male Voice]: I need to know whether you want me in or not. I’m the
hostage negotiator, and I got paged. . . .’’
‘‘[A Male Voice]: Not at this time. . . .’’
83
The recording of the fifth communication provides in relevant part: ‘‘[A
Male Voice]: We want to know, Brian and I are out on West Johnson . . .
[indiscernible] if you want us to come in and start suiting up?
‘‘[A Male Voice]: We’ll call you if we need anything—if we need you.’’
84
The recording of the sixth communication provides in relevant part:
‘‘[A Male Voice]: All right. Did you get that so far? . . . Apparently she
came into the bank, she tried to get some money out. . . . One of the
accounts was in the husband’s name, and then she says, well, my kids are
at home tied up, so we don’t know if they really are or if she was just trying
to get money out of the bank at this point. . . . The car is at the house
from what I understand.
‘‘The car is at the house. She got $15,000 in cash in three envelopes with
$5000 a piece. They’re all strapped. So $15,000 dollars in $50 bills.’’
85
We note that the defendant argued that the officers had watched him
when he went into the bathroom at the police station to make sure that he
did not wash himself, and that the swab had in fact detected the defendant’s
sperm on his penis, which was consistent with his account in his statement
that he ejaculated after committing an oral sexual assault on M. Although
the defense acknowledged Carver’s testimony that the lack of physical injury
was not inconsistent with sexual assault, the defense contended that it was
unlikely given the size differences between M and the defendant, along with
the lack of consent.
In rebuttal, the state emphasized that there was no support for the defense
theory because it was Carver himself who had taken the swab from M and
not a technician. The state also reemphasized Carver’s testimony about the
elasticity of the anus rendering the lack of injury to the area ‘‘not unusual
. . . .’’ Finally, the state emphasized that there was no evidence that the
police had supervised the defendant while he was in the bathroom at the
police station, which would support the state’s argument that he had the
opportunity to wash his penis while in there, along with the fact that the
swabs were not taken from the defendant until at least fifteen hours after
his arrest. On this point, Vitello testified on cross-examination that the police
had provided the defendant with a bathroom break during the interview;
no one went in the bathroom with him, but they left the door partially ajar.
86
In the first communication, the following exchange occurred between
Patterson and Officer Brian Schechter: ‘‘[Patterson]: I was talking to the—
I was with the detective when he was talking. That kid is like, there is
nobody home, dude.
‘‘[Schechter]: Which one? The older one or the younger one?
‘‘[Patterson]: The younger one. The darker haired dude.
‘‘[Schechter]: Really?
‘‘[Patterson]: There is nobody . . . that dude is fucking simple as they
come.’’
87
Specifically, Patterson testified at the Floyd hearing that he had been
called to the station around noon on July 23, 2007, to help cover ‘‘routine
calls’’ in Cheshire in the aftermath of the incident; he had no role in
responding to the P home that morning. While standing in a hallway near
a bulletin board, Patterson observed the defendant for several seconds being
escorted by several detectives into the booking area. Patterson did not
participate in any interviews of or have any conversations with the defendant
at any time. He recalled making the comment to a fellow officer about the
defendant that was captured on the recording, describing his observation
that ‘‘no one was home’’ ‘‘and ‘‘simple as they come’’ as reflecting what he
felt was a lack of emotion that was unusual for a person who had just
been arrested.
88
Neither Nastri nor Devito testified at the Floyd hearing, and the trial
court did not make any finding as to which speaker made the ‘‘looked evil’’
comment. Although the defendant argues that Nastri made the ‘‘looked evil’’
comment, the state disagrees, observing that the flow of the conversation
demonstrates that it was Devito who had made the observation, given that
there was no evidence that Devito had responded to the scene, and Cheshire
Police Lieutenant Jay Markella testified at trial that Nastri had responded
to the scene and entered the house with him as part of the department’s
special response team.
89
The second communication consisted of the following conversation:
‘‘[A Male Voice]: Did the officers get hurt in the cars at all?
‘‘[A Male Voice]: No, they were not in the cars.
‘‘[A Male Voice]: The cars looked wrecked.
‘‘[A Male Voice]: Oh they—they are.
‘‘[A Male Voice]: They are totaled, right?
‘‘[A Male Voice]: They are totaled. . . . They had placed the cars so that
no one would drive into the area, and there was a little gap between them,
and the guy tried to—
‘‘[A Male Voice]: Oh, I see what he did . . . he tried to park [indiscernible].
. . . He hit them hard, huh?
‘‘[A Male Voice]: Oh yeah. . . . And they—I’m sure their car, you know
the victim’s car was—
‘‘[A Male Voice]: I saw the troop. I saw the troop. . . . I saw the two
dirtbag cars. . . . There was a red pickup and there was like a minivan.
‘‘[A Male Voice]: Yeah.
‘‘[A Male Voice]: I think that those are the two scumbags.
‘‘[A Male Voice]: Yup.
‘‘[A Male Voice]: Wow, I mean that—the older guy just looked evil.
‘‘[A Male Voice]: Yeah?
‘‘[A Male Voice]: He just looked evil. I mean you got—you know what?
Your heart just breaks as an officer watching that stuff. You know—I mean
it’s heartbreaking for all of us to investigate it. You know? Cuz we have
families and all that crap too you know.
‘‘[A Male Voice]: Well we have—Out of all the guys that went in . . . I
think I was probably the only one who didn’t have children . . . and we
have [employee assistance programming] coming in tomorrow. . . .’’
90
Defense counsel objected to state’s exhibit 209 on the ground that its
prejudicial effect outweighed its probative value. The trial court overruled
that objection. The defendant does not challenge that ruling in this appeal.
91
Brunetti determined that all six of the photographs depicted the same
person, despite the fact that ‘‘the last image is more of an image that’s a
close-up photograph,’’ which did not contain ‘‘a lot of the surrounding area
that you see in the previous five images . . . .’’ Brunetti based his opinion
on ‘‘some telltale signs that . . . led [him] to the conclusion that it was
the same person. And the last photograph, what’s consistent about that
photograph, as compared to two or three of the other images, is that the
person in the last photograph has some type of a cloth over the upper face
chest area that proceeds under the left arm, and the arm’s bent back,
apparently past the head, and you could see the cloth going out, and it’s
consistent [in] both of those photographs. In addition, the female that’s in
that photograph has pretty much a pronounced chest cavity when she’s
lying on her back, you could see the bones of her chest cavity and they are
consistent in both those images also.’’
92
During the pendency of this appeal, on November 13, 2015, the defendant
filed a motion to augment the record pursuant to, inter alia, State v. Floyd,
supra, 253 Conn. 700, to add to the record in this case a transcript of
Farnham’s testimony at Hayes’ trial, along with the unredacted counterpart
to state’s exhibit 209 at Hayes’ trial under seal. The defendant argued that
this augmentation was necessary to establish a violation of Napue v. Illinois,
supra, 360 U.S. 264, and its progeny. After a hearing, the trial court granted
the defendant’s motion over the state’s objection and added the transcript
and a copy of the exhibit—the authenticity of which was stipulated by all
counsel—to the record for purposes of this appeal. This court subsequently
upheld that decision when it granted a motion for review filed by the state
but denied the relief requested.
93
Accordingly, we need not consider the state’s arguments that (1) the
testimony at issue constituted a mere inconsistency in opinion that did not
rise to the level of false or misleading testimony, and (2) there was no due
process violation because the defendant was aware of the claimed falsity
through his review of the Hayes’ trial record during trial preparation, and
was not precluded from responding to it. But see Gomez v. Commissioner
of Correction, supra, 336 Conn. 189–90 (stating that, ‘‘although the burden
is one shared by defense counsel and the trial court, the onus ultimately is
on the prosecutor to not knowingly seek a conviction on the basis of false
testimony and, should a state’s witness testify falsely, to take such remedial
measures before the jury retires as are necessary to ensure that it is not
deceived,’’ and adopting case-by-case multifactor approach to whether case
is ‘‘[an] exceptional [one] in which disclosure to defense counsel, standing
alone, is sufficient to satisfy a prosecutor’s obligations and to vindicate a
defendant’s rights under Napue’’). We also need not consider the state’s
request that we reconsider our decision on the motion for review upholding
the trial court’s decision to grant the defendant’s request to make Farnham’s
testimony at Hayes’ trial and the unredacted photograph part of the trial
record in this case. See footnote 92 of this opinion.
94
We acknowledge, as the defendant argues, that his claim regarding his
estimation of M’s age was discussed at closing argument in the context of
the state’s attack on the credibility of his statements that he did not pour
the gasoline, intend anyone to be killed, or sexually assault M anally.
Although the state argued that these assertions, which included an attack
on the defendant’s claimed belief that M was fourteen to sixteen years old,
lacked credibility, its argument was not based on the photographs but,
instead, focused on the likely content of the conversation about summer
plans and school that the defendant claimed to have had with M.
95
‘‘The doctrines of mootness and ripeness both implicate justiciability.
. . . Mootness implicates this court’s subject matter jurisdiction, raising a
question of law over which we exercise plenary review. . . . An issue is
moot when the court can no longer grant any practical relief. . . . [T]he
rationale behind the ripeness requirement is to prevent the courts, through
avoidance of premature adjudication, from entangling themselves in abstract
disagreements . . . . Accordingly, in determining whether a case is ripe, a
. . . court must be satisfied that the case before [it] does not present a
hypothetical injury or a claim contingent [on] some event that has not and
indeed may never transpire.’’ (Citations omitted; internal quotation marks
omitted.) State v. Campbell, supra, 328 Conn. 463.
96
We note that, while this appeal was pending before this court, the United
States Court of Appeals for the Second Circuit issued its decision in Reynolds
v. Quiros, 990 F.3d 286 (2d Cir. 2021), which considered a variety of constitu-
tional challenges to § 18-10b brought by Richard Reynolds, a former death
row inmate who had been resentenced under that statute following this
court’s decision in State v. Santiago, supra, 318 Conn. 1. In Reynolds, the
Second Circuit held that (1) § 18-10b is an unlawful bill of attainder in
violation of article I, § 10, of the United States constitution, and (2) the risk
classification imposed on Reynolds by the defendants, who are numerous
officials of the department, violated his rights under the equal protection
clause of the fourteenth amendment to the United States constitution
because the defendants failed to establish a rational basis for why he was
classified more strictly than similarly situated former death row inmates.
See Reynolds v. Quiros, supra, 300, 301. The Second Circuit also held,
however, that the United States District Court for the District of Connecticut
had improperly granted Reynolds’ motion for summary judgment with
respect to his eighth amendment and due process claims by deciding genuine
issues of material fact about whether his conditions of confinement, pursuant
to § 18-10b, in the Special Circumstances Unit at Northern Correctional
Institution were in fact ‘‘properly characterized as ‘solitary confinement.’ ’’
Id., 294. We emphasize that our dismissal of the defendant’s appeal with
respect to his conditions of confinement claim is without prejudice to any
facial or as applied challenges to § 18-10b that he may bring in a subse-
quent proceeding.