State v. Ayala ( 2019 )

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STATE v. AYALA—DISSENT
D’AURIA, J., with whom PALMER and ECKER, Js.,
join, dissenting. Lawyers learn early in law school what
we all know instinctively to be true: conclusions built on
hearsay can be inherently unreliable and unfair. When
a witness testifies to what another has said—unsworn
and out of court—there is a heightened potential that
the evidence is inaccurate, fabricated or lacking con-
text. In criminal cases particularly, when the out-of-
court declarant is unavailable for cross-examination,
admitting certain hearsay testimony against a defendant
can render the trial constitutionally infirm. See Craw-
ford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158
L. Ed. 2d 177 (2004) (sixth amendment confrontation
clause bars admission of testimonial hearsay against
criminal defendant unless defendant had prior opportu-
nity for cross-examination and witness is unavailable);
see also Michigan v. Bryant, 562 U.S. 344, 370 n.13,
131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011) (due process
clauses of fifth and fourteenth amendments may bar
admission of ‘‘unreliable evidence’’).
As a general matter, then, in pursuit of their truth-
seeking function, courts do not permit hearsay. See
Conn. Code Evid. § 8-2. Under certain circumstances,
however, and also in pursuit of the truth-seeking func-
tion, our evidence code makes exceptions to this gen-
eral rule and permits courts to admit hearsay. These
exceptions are most often justified when the statements
at issue were made ‘‘under circumstances that tend
to assure reliability and thereby compensate for the
absence of the oath and opportunity for cross-examina-
tion.’’ Chambers v. Mississippi, 410 U.S. 284, 299, 93
S. Ct. 1038, 35 L. Ed. 2d 297 (1973).1
In the present case, both the victim, Thomas L.
Mozell, Jr., and the defendant, Vincente Ayala, were
members of a street gang known as Piru, which had a
presence in the New Haven area. No physical evidence
or firsthand eyewitness evidence linked the defendant
to the victim’s murder in 2012. It is therefore no under-
statement to say that all of the pertinent testimony
identifying the defendant as the murderer was either
hearsay or hearsay statements ostensibly offered to
prove something other than the truth of the matter
asserted. Moreover, each of the hearsay statements was
testified to by two other gang members, Timothy
Thomas and Jordan Richard, whom the trial court deter-
mined were ‘‘significantly compromised individuals’’
who provided ‘‘extremely limited and self-serving’’ testi-
mony. None of this testimony was corroborated by any-
thing other than more hearsay. In the trial court’s words,
there was a ‘‘complete lack of any evidence supporting’’
their claims. In my view, these are hardly ‘‘circum-
stances that tend to assure reliability . . . .’’ Chambers
v. Mississippi, supra, 410 U.S. 299.
At issue in this appeal is a particular hearsay state-
ment delivered to the court through Richard, in which
one of the gang’s leaders, known as ‘‘Terror,’’ claimed
to have seen the defendant shoot the victim. The trial
court admitted the statement under the coconspirator
exception to the rule against hearsay. See Conn. Code
Evid. § 8-3 (1) (E). The majority assumes that this was
error but concludes that it was not harmful.
Given the scant evidence in this case, including the
state’s heavy reliance on uncorroborated hearsay that
came into evidence through witnesses the trial court
found to be unreliable, I am left without ‘‘a fair assur-
ance’’ that the admission of the coconspirator evidence
‘‘did not substantially affect the verdict.’’ State v. Favoc-
cia, 306 Conn. 770, 808, 51 A.3d 1002 (2012). I must
therefore confront the question of whether the trial
court erroneously admitted Terror’s statement, as the
majority assumes. I conclude it did because there is
a lack of evidence that the statement was made ‘‘in
furtherance’’ of an ongoing conspiracy, as required by
the coconspirator exception. I would therefore reverse
the trial court’s judgment. Accordingly, I respectfully
dissent.2
I
Clearly, someone in the Piru gang wanted the victim
dead. He was believed to be thinking of leaving the Piru
gang to join another gang and would perhaps retaliate
against Piru. The main question at trial was which Piru
member carried out the victim’s murder. I have no dis-
agreement with the majority’s recitation of facts that
the jury could have reasonably found to be true. I simply
summarize them here to explain why I cannot agree
with the majority that the state’s case was ‘‘sufficiently
strong’’ so as to leave me with a fair assurance that
admission of the challenged statements did not substan-
tially affect the verdict. In light of this conclusion, I
further explain why I do not find the defendant’s claim
of error harmless, if indeed it was error.
A
The victim apparently knew he was not in good stand-
ing with Piru. We know this from a statement he suppos-
edly made to his friend, Tavaris Wylie, on the night of
the murder. Wylie testified that the victim told him he
had a ‘‘funny vibe about everybody’’ in the gang; he
‘‘felt like they was rocking him to sleep’’; acting like ‘‘a
sheep in [wolf’s] clothing’’; and that he had to ‘‘[w]atch
[his] back’’ because ‘‘[t]hey was playing [him]’’ and
‘‘[c]oming for [him].’’ Although the victim expressed
that he had this ‘‘vibe’’ about everybody in the gang,
never mentioning the defendant individually, the defen-
dant was the only one on trial. As many as forty mem-
bers of Piru were in the New Haven area at that time,
however. The trial court nonetheless determined that
Wylie’s testimony was relevant to establish the defen-
dant’s motive to kill the victim and admitted it into
evidence under either the state of mind exception to
the hearsay rule or as nonhearsay. See Conn. Code Evid.
§§ 8-3 (4) and 8-1 (1). The defendant has challenged
this ruling on appeal. See part II of the majority opinion.
The victim’s fear of the gang appears to have been
well founded. We know this because Terror apparently
had ordered him murdered. Terror did not testify, and
we know virtually nothing about him other than that
he was a leader of an out-of-state faction of the Piru
gang. And yet, despite this detachment, what Terror
supposedly said both before and after the murder—
namely, his order that the victim be murdered and his
statement recounting how the murder happened—
played a prominent part in the case against the defen-
dant. In particular, Terror’s purported description of
how the murder occurred was the only eyewitness evi-
dence of the killing. No testifying witness saw the mur-
der, nor could a testifying witness say the defendant
committed it, without relying on the alleged admissions
from the defendant himself. Terror’s description of the
killing is unquestionably at issue in this appeal.
Thomas testified that Terror had initially ordered him
to kill the victim. This hearsay statement was admitted
under either the coconspirator exception to the hearsay
rule or as nonhearsay, and its admissibility is not chal-
lenged on appeal. See Conn. Code Evid. §§ 8-3 (1) (E)
and 8-1 (1). Thomas refused the order because the vic-
tim was a close friend. According to Thomas, the defen-
dant then volunteered to carry out the murder. This
hearsay statement is an admission by the defendant,
and its admissibility is not challenged on appeal. See
Conn. Code Evid. § 8-3 (1) (A). Later that evening,
Thomas claimed, he warned the victim that the gang
posed a threat to his life, although he did not mention
the defendant specifically.
The police found the victim dead in his vehicle the
next morning, a bullet to the back of his head. There
seems little doubt that someone in the gang committed
the murder, but because none of the testifying witnesses
claimed to have seen the shooting, it is less clear which
gang member pulled the trigger.
Richard gave the most contemporaneous firsthand
testimony, although he claimed to have no personal
knowledge as to who shot the victim. He testified that
on the evening of the murder, the victim sat in the
driver’s seat of his vehicle smoking marijuana with Ter-
ror, Richard and one other gang member, Montese Gilli-
ams. Richard claimed that the defendant then showed
up and entered the vehicle. At that point, Richard said,
the other occupants all told him to leave, which he did.
No one who remained in the vehicle testified at trial.
Rather, the evidence that it was the defendant who
killed the victim came in the form of three other hearsay
statements. The first two statements allegedly came
from the defendant. Years after the murder, when
Thomas and Richard faced unrelated criminal charges,
each pointed the finger at the defendant. Both testified
that the defendant had admitted to them that he had
shot the victim. Richard said that the defendant had
confessed on the night of the murder that he had shot
the victim. Thomas said that the defendant had told
him the next day that he felt badly about killing the
victim but that Terror had ordered him to do so. These
hearsay statements are also party admissions and are
not challenged on appeal. See Conn. Code Evid. § 8-3
(1) (A).
The third statement is the subject of this appeal. It
allegedly came from Terror, a leader of the New York
faction of the gang. Richard testified that he and Terror
went to the home of Terror’s mother in the Bronx, New
York, the day after the murder and remained there for
about one week. At some point while they were in New
York, Richard claimed, Terror described to him how
the defendant had murdered the victim: ‘‘[Terror] told
me that all four of them were in the car smoking. . . .
And in the midst of, you know, the joint being passed
around, he somehow handed [the defendant] the
weapon, and the entire time while [the defendant] is,
you know, playing with the—you know, fixing the gun,
cocking it back or whatever, Terror is blocking [the
defendant] so [the victim] can’t see him in the rearview
mirror, and Terror sat—[a]fter that, Terror sat back, he
looked at [the defendant], and he fired.’’ The trial court
admitted Terror’s hearsay statement, over the defen-
dant’s objection, under the coconspirator exception to
the hearsay rule. See Conn. Code Evid. § 8-3 (1) (E).
The state’s case against the defendant can therefore,
I believe, be fairly summarized as follows: The victim
said that he feared the entire gang. Members of that
gang, who were themselves involved in the victim’s
murder, then blamed the defendant for the murder via
hearsay statements. One gang member (Thomas) testi-
fied that the defendant agreed to kill the victim. Two
gang members (Thomas and Richard) claimed the
defendant admitted that he killed the victim. And a
leader of the gang (Terror) told the second gang mem-
ber (Richard) how the defendant had killed the victim.
This evidence was perhaps sufficient to convict the
defendant.3 But in a case in which every member of the
Piru gang—including everyone who was in the vehicle
with the victim that night—had the same motive (to
carry out the gang leader’s order), in my view, the evi-
dence was hardly overwhelming.
I am not the only one who thinks so. The defendant
was acquitted of the charges of carrying a pistol without
a permit and criminal possession of a firearm, which
he elected to have tried to the court. Although these
charges differ from those the jury considered, the
court’s finding turned on precisely the same factual
issue. As the court stated: ‘‘The only real issue in the
dispute before me is whether the defendant shot [the
victim] on March 16, 2012, and therefore was carrying
and possessing a pistol when he did so.’’ The court
explained that the ‘‘evidence against the defendant
rested primarily on the testimony of two witnesses,’’
Thomas and Richard, ‘‘significantly compromised indi-
viduals’’ who gave testimony that was ‘‘extremely lim-
ited and self-serving.’’ The court further stated: ‘‘The
testimony of the two gang members [Thomas and Rich-
ard] who had pointed the finger at the defendant—that
testimony was simply unconvincing to me.’’ In light of
the ‘‘complete lack of any evidence supporting’’ their
claims, the court concluded: ‘‘After considering all the
evidence, and most importantly in this case the lack
of evidence, I am left with an honest and reasonable
uncertainty in my mind that the defendant sat in the
backseat of the victim’s motor vehicle, held a pistol in
his hand, and shot [the victim].’’
In ruling on the defendant’s postverdict motion for
a judgment of acquittal on the jury’s guilty verdict on
the charges of murder and conspiracy to commit mur-
der, the trial court appropriately observed that it could
not substitute its assessment of the witnesses’ credibil-
ity for that of the jury and therefore denied the motion,
notwithstanding that the jury verdict was inconsistent
with its own finding on the weapons charges. But the
trial court sat through the trial and observed the wit-
nesses, and, therefore, in my view, its assessment of
the evidence should not be discounted in assessing the
strength of the state’s case without Terror’s statement.
E.g., State v. Kendrick, 314 Conn. 212, 223, 100 A.3d
821 (2014) (deference to fact finder appropriate when
‘‘assessment of the credibility of the witnesses . . . is
made on the basis of its firsthand observation of their
conduct, demeanor and attitude’’ [internal quotation
marks omitted]).
The majority apparently believes that in evaluating
the strength of the state’s case for harmless error pur-
poses we must ignore this inconsistent verdict. I
acknowledge that in evaluating the strength of the case,
we must begin with the assumption that the jury found
the state’s witnesses credible, which the trial court did
not. I further acknowledge the unique challenge of eval-
uating the ‘‘strength’’ of the state’s case when the jury
has found the defendant guilty beyond a reasonable
doubt. Viewed in this light, all cases on appeal are
strong cases. The question we confront—as required
by our case law—is whether the case was strong enough
to survive the removal of the contested evidence, which
the majority assumes—and I conclude—to have been
erroneously admitted. See State v. Favoccia, supra, 306
Conn. 809 (‘‘ ‘overall strength of the prosecution’s case’ ’’
among several factors considered in evaluating harm-
fulness). On the basis of my own review of the tenuous
record of hearsay evidence in this case, including the
fact that no forensic evidence implicated the defendant,
that there was no firsthand testimony of any eyewitness
who saw the shooting, and no other circumstantial evi-
dence of any kind, I have no trouble concluding that
this was not a strong case, notwithstanding that the
jury returned a verdict against the defendant. And its
strength would have diminished with the removal of
the Terror statement, which, in addition to being the
only evidence of a purported eyewitness who claimed
the defendant committed the murder, served to corrob-
orate the other hearsay that remained in this case. The
majority will admit only that the case against the defen-
dant was not ‘‘ironclad . . . .’’ Although the different
conclusions reached by different fact finders is not dis-
positive to me in light of my own independent evalua-
tion, I can think of no better, objective example of a
‘‘close case’’—and therefore, in my view, not a strong
one—than a case in which two fact finders come to
different conclusions, particularly where one of them
found the state’s main witnesses ‘‘simply unconvincing
. . . .’’ I cannot agree with the majority that the state’s
case can objectively be described as strong, even when
considering all of the evidence, let alone if Terror’s
statement to Richard is excluded.
B
The majority assumes error in the admission of Ter-
ror’s out-of-court statement to Richard under the cocon-
spirator exception to the hearsay rule; see Conn. Code
Evid. § 8-3 (1) (E); but proceeds to find that the defen-
dant has not carried his burden of proving that this
error harmed him. In large part because I disagree with
the majority that the state’s case was sufficiently strong,
I disagree with the majority’s conclusion on harm.
An evidentiary error is harmless only ‘‘when an appel-
late court has a fair assurance that the error did not
substantially affect the verdict.’’ (Internal quotation
marks omitted.) State v. Favoccia, supra, 306 Conn.
809. In searching for this fair assurance, we consider
several factors, including ‘‘the importance of the wit-
ness’ testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony
of the witness on material points, the extent of cross-
examination otherwise permitted, and, of course, the
overall strength of the prosecution’s case.’’ (Internal
quotation marks omitted.) Id.‘‘Perhaps the single most significant factor in
weighing whether an error was harmful . . . is the
strength of the case against the defendant. . . . [A]
court should be especially loath to regard any error as
harmless in a close case, since even the smallest error
may have been enough to tilt the balance in favor of a
conviction.’’ 3B C. Wright et al., Federal Practice and
Procedure (4th Ed. 2019) § 854. For reasons previously
detailed, I believe that, at best, this was a ‘‘close case.’’
Four points persuade me that if Terror’s out-of-court
statement to Richard was erroneously admitted, the
defendant has shown that its inclusion was harmful:
the absence of physical or eyewitness evidence corrob-
orating the testimony of both key witnesses; the state’s
admitted reliance on unreliable witnesses; the fact that
Terror’s statement was not entirely cumulative of other
evidence; and the fact that the declarant was not subject
to cross-examination.
First, no physical evidence connected the defendant
to the crime scene. Neither the defendant’s fingerprints
nor his DNA were found on or near the vehicle.
Although ‘‘the absence of conclusive physical evidence
. . . does not automatically render [the state’s] case
weak, that same absence surely does not strengthen
the state’s case against the defendant.’’ State v. Ceballos,
266 Conn. 364, 416, 832 A.2d 14 (2003).
Physical evidence did, however, tie Richard to the
crime scene. The police found Richard’s fingerprint on
the vehicle’s rear right interior door handle—the handle
next to the seat the shooter occupied. In fact, this evi-
dence helped establish a sufficient connection to Rich-
ard as the culprit that the trial court permitted the
defendant to make a third-party culpability argument
and instructed the jury on that theory. To warrant a
third-party culpability instruction, the evidence must
‘‘directly [connect] the third party to the crime.’’
(Emphasis in original; internal quotation marks omit-
ted.) State v. Francis, 267 Conn. 162, 174, 836 A.2d
1191 (2003). This is a ‘‘high standard.’’ Id., 175; see also
Johnson v. Commissioner of Correction, 330 Conn. 520,
564, 198 A.3d 52 (2019) (‘‘proffered evidence [of third-
party culpability] [must] establish a direct connection to
a third party, rather than raise merely a bare suspicion’’
[internal quotation marks omitted]).
According to the trial court, ‘‘a wealth’’ of evidence
pointed to Richard. Apart from his fingerprint being
found next to the shooter’s seat, Richard’s presence in
the vehicle on the night of the murder and his member-
ship in Piru meant he had the same opportunity and
motive to kill the victim as the defendant did. Richard
also tampered with evidence when he removed a cell
phone from the victim’s vehicle and destroyed it,4 fled
to New York after the murder, where he remained for
one week, and lied to the police for several years about
his involvement in the incident.
In evaluating the strength of the state’s case, I simply
do not find it impressive that Richard was able to deliver
testimony consistent with Terror’s hearsay and the testi-
mony of the prosecution’s forensics expert, James R.
Gill, the state’s chief medical examiner. Specifically,
the majority finds it remarkable that Richard was able
to place the defendant in the very seat in the car where,
according to the expert’s testimony, the killer must have
sat when he fired the fatal gunshot. But if Richard were
the killer—and a wealth of evidence suggested he was—
of course he would know where the killer was sitting!
He was in that very seat, by his own admission. His
testimony would have been more remarkable if anyone
besides Richard testified at trial that he left the car that
night so the defendant could get in. Instead, he explains
that his fingerprint was in the car (the defendant’s
wasn’t) because he was in the car before and after
the shooting. And the only corroboration for his story
comes from hearsay—testified to by himself. In all,
forensic evidence placed the killer in a particular seat.
An admission and fingerprints placed Richard in that
same seat. Unlike the majority, I make very little of the
fact that Richard (a seriously compromised witness)
claimed (without corroboration) that the defendant also
occupied that seat.
In addition to the absence of physical evidence impli-
cating the defendant, no firsthand eyewitness testimony
implicated him, either. The only statement of an eyewit-
ness to the murder was Terror’s unsworn, out-of-court
statement, delivered through Richard. Even if I assume
that this statement was admitted in error, as the major-
ity does for purposes of assessing harm, the state would
be left with no physical evidence or eyewitness testi-
mony connecting the defendant to the crime. Only one
eyewitness, Richard, even placed the defendant in the
vehicle with the victim near the time of the killing. This
compels the state to concede that its case rested on
the testimony of Thomas and Richard.5 But as the trial
court aptly observed, both suffered from serious credi-
bility problems.
This leads to my second point: although Thomas’ and
Richard’s testimony, if believed, was perhaps sufficient
to uphold the verdict, the harmlessness inquiry is more
searching than a sufficiency of the evidence inquiry.
E.g., Kotteakos v. United States, 328 U.S. 750, 765, 66
S. Ct. 1239, 90 L. Ed. 1557 (1946) (‘‘[t]he [harmlessness]
inquiry cannot be merely whether there was enough to
support the result’’); United States v. Ince, 21 F.3d 576,
583 (4th Cir. 1994) (‘‘more [stringent]’’ harmless error
inquiry ‘‘does not ask simply whether we believe that
irrespective of the error there was sufficient untainted
evidence to convict,’’ but ‘‘whether we believe it highly
probable that the error did not affect the judgment’’
[internal quotation marks omitted]).
In deference to the jury, the majority declines to
‘‘second-guess’’ the credibility of Thomas and Richard.
Although for some issues raised on appeal, we must
defer to the jury’s credibility determinations, our cases
make clear that we may consider witness credibility in
a harmless error analysis.6 E.g., State v. Ritrovato, 280
Conn. 36, 57, 905 A.2d 1079 (2006) (error not harmless
when state’s case lacked independent physical evidence
or witnesses and ‘‘[victim’s] credibility was crucial to
successful prosecution of the case’’); State v. Cortes,
276 Conn. 241, 256, 885 A.2d 153 (2005) (error not harm-
less ‘‘in a case that essentially turned on the jury’s
crediting [the complainant’s] version of the events’’).
Indeed, we have acknowledged that cases that present
the jury with a ‘‘credibility contest characterized by
equivocal evidence . . . [are] far more prone to harm-
ful error.’’ (Internal quotation marks omitted.) State v.
Favoccia, supra, 306 Conn. 816–17.
Similarly, in other contexts, we have recognized the
weakness of a case that is based largely on a defendant’s
own incriminating statements, when the veracity of the
statements was questionable and the state presented
little physical or eyewitness evidence to support the
defendant’s conviction. See, e.g., State v. A. M., 324
Conn. 190, 213–14, 152 A.3d 49 (2016) (discussing weak-
ness of state’s case in adjudicating claimed violation of
defendant’s fifth amendment right to remain silent when
state presented ‘‘no physical evidence,’’ and key witness
gave ‘‘inconsistent statements’’ and ‘‘refused to answer
certain questions during her direct testimony’’);
Lapointe v. Commissioner of Correction, 316 Conn.
225, 323, 112 A.3d 1 (2015) (discussing weakness of
state’s case in [context of claim pursuant to Brady v.
Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed.
2d 215 (1963)] when state presented minimal physical
evidence and no eyewitnesses, and its case ‘‘rested
almost entirely on [the petitioner’s own] incriminating
statements’’ that were made in unreliable circum-
stances); Gaines v. Commissioner of Correction, 306
Conn. 664, 691, 51 A.3d 948 (2012) (discussing weakness
of state’s case in context of claim pursuant to [Strick-
land v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984)] when primary evidence implicating
petitioner was testimony of two witnesses who relayed
purposed admissions by petitioner, and witnesses were
‘‘subject to substantial impeachment evidence that they
had implicated the petitioner only to serve their own
needs—either by directing suspicion away from their
own involvement in the murders or by procuring more
favorable outcomes in their other, unrelated criminal
matters’’).
Because of the broad language of our harmful error
test, requiring that we examine the ‘‘overall strength of
the prosecution’s case,’’ and because of the wide variety
of cases in which courts have considered ways in which
a key witness’ credibility has been undermined, I
respectfully disagree with the majority to the extent it
suggests we may consider witness credibility only when
the claimed error relates to the admission or exclusion
of impeachment evidence. Here, rather than impeach-
ment, the claimed error relates to corroborative evi-
dence. But both types of evidence bear on whether a
jury would be likely to find the state’s witnesses believ-
able. That, I believe, is the larger point to consider when
assessing the overall strength of the state’s case and
the ultimate question of whether we, as an appellate
court, have ‘‘a fair assurance that the error’’ in admitting
unreliable, corroborative evidence ‘‘did not substan-
tially affect the verdict.’’ (Internal quotation marks omit-
ted.) State v. Favoccia, supra, 306 Conn. 809; accord
Holmes v. South Carolina, 547 U.S. 319, 330, 126 S. Ct.
1727, 164 L. Ed. 2d 503 (2006) (‘‘where the credibility
of the prosecution’s witnesses or the reliability of its
evidence is not conceded, the strength of the prosecu-
tion’s case cannot be assessed without making the sort
of factual findings that have traditionally been reserved
for the trier of fact’’). Thus, although the jury still could
have found the defendant guilty without Terror’s hear-
say statement by believing Thomas’ and Richard’s other
testimony, that is not the question. Removing Terror’s
statement from the evidentiary calculus removes criti-
cal corroboration from Thomas’ and Richard’s testi-
mony, thus making them even less believable than they
already were. This leaves me, at least, without a fair
assurance that the trial court’s error in admitting Ter-
ror’s hearsay statement did not substantially affect the
verdict. See State v. Favoccia, supra, 809. On the basis
of the self-serving nature of Thomas’ and Richard’s testi-
mony and the discrepancies in material aspects of their
stories, I am persuaded that their credibility was subject
to significant challenge. The trial court’s specific con-
clusion that they were not credible fortifies me in my
view.
Both witnesses’ testimony was clearly self-serving.
The jury heard that Thomas only came forward about
the victim’s murder two years later, just after he had
been arrested in connection with other crimes and in
exchange for a potential sentence reduction as part of
a plea agreement with federal authorities. Similarly,
Richard admitted he was an accomplice in the victim’s
murder and was seeking consideration from the state
in return for his testimony. He apparently was never
charged. Moreover, as previously described, Richard
exhibited enough suspicious behavior to warrant a
third-party culpability charge. He also conceded that
he had lied about the incident several times, offering
three versions of his story over the years.7
There were also material discrepancies in the testi-
mony of Thomas and Richard regarding encounters that
preceded the victim’s murder. One encounter involved
Terror’s apparent desire to have the victim killed. In
short, Thomas and Richard agreed that a meeting
occurred in the bedroom of the home of Davon You-
mans, another Piru member, at which the victim was
discussed, but Thomas and Richard disagreed on the
meeting’s timing (morning versus evening), attendees
(whether Thomas and the defendant were there), and
results (whether Terror asked and whether the defen-
dant volunteered to kill the victim).8 In my view, these
discrepancies cast doubt on material facts: whether
and when the conspiracy to kill the victim formed, and
whether and when the defendant formed the intent to
kill him.
The other encounter involved the witnesses’ final
interaction with the victim. Both Thomas and Richard
agreed that the victim showed up at Youmans’ house
in the early evening prior to the murder, but their stories
diverged from there. Thomas testified that the victim
walked to Youmans’ front porch only and did not enter
the house. Thomas said that he and Richard then went
onto the front porch to warn the victim that his life
was in danger. At that point, the victim became upset
and later got into his vehicle and left. Thomas then left
with Gilliams and went home for the night. Once again,
however, Richard’s version of this encounter substan-
tially differed. Richard testified that the victim walked
into Youmans’ kitchen, purchased marijuana from
someone in the house, and left with Richard, Terror,
and Gilliams to smoke it in the victim’s vehicle, where
he ultimately was killed. Richard testified that the vic-
tim had not been to the house earlier in the day. Notably,
Richard did not mention a conversation in which he
and Thomas warned the victim of the threat on his life.
In sum, either Thomas misremembered or fabricated
Richard’s presence at his last face-to-face interaction
with his close friend or Richard hid his involvement in
this meeting from the court. Either explanation bears
on the witnesses’ credibility.
Third, I consider the role Terror’s hearsay statement
(purporting to describe the murder from inside the vehi-
cle as it occurred) played in relation to Thomas’ and
Richard’s testimony (purporting to describe events
from well before and after the murder occurred). Unlike
the majority, I am not given a ‘‘fair assurance’’ that the
erroneous admission of Terror’s statement was harm-
less simply because it contained some of the informa-
tion already testified to or because it came in through
Richard. Certainly, Terror’s statement was cumulative
of Thomas’ and Richard’s statements in a general
sense—all three identified the defendant as the shooter.
But to the extent their statements were cumulative,
they were also corroborative. Because Thomas’ and
Richard’s credibility was central to the case—and, as
previously described, in doubt—I cannot say that hav-
ing a third voice identify the defendant as the shooter
did not make Thomas’ and Richard’s firsthand accounts
more believable to the jury, even if they were not believ-
able to the trial judge. Terror’s statement was also dis-
tinct from Thomas’ and Richard’s, though. It brought
the jury far closer to the murder in time and space.
It provided the only account that allowed the jury to
visualize the defendant receiving the gun, preparing it
to fire and pulling the trigger. And the prosecutor
alluded to it in closing argument to the jury: ‘‘Richard
indicated to you he got kicked out [of the vehicle]
because there was not enough room or not enough pot.
The reality is, is Terror and the defendant do not want
him there. They need to be able to be in the backseat
and be able to maneuver . . . .’’
Fourth, I note the absence of cross-examination.
Although the defendant cross-examined Richard, the
conduit, he could not question Terror, the declarant.
Although no more was legally required, I cannot con-
clude that the defendant’s inability to ask Terror himself
about the out-of-court statement was irrelevant when
considering its effect on the jury. The defendant was
unable to probe Terror’s veracity when the statement
in question exonerated Terror at the expense of the
defendant. Especially in a situation like this, I am mind-
ful of Justice Marshall’s admonition that ‘‘[t]he conspira-
tor’s interest is likely to lie in misleading the listener
. . . . It is no victory for common sense to make a
belief that criminals are notorious for their veracity
the basis for law.’’ (Internal quotation marks omitted.)
United States v. Inadi, 475 U.S. 387, 404–405, 106 S. Ct.
1121, 89 L. Ed. 2d 390 (1986) (Marshall, J., dissenting).
Ultimately, I disagree with the majority’s assertions
that Terror’s firsthand account of the murder ‘‘added
very little’’ and ‘‘simply was not pivotal’’ to the state’s
case. To summarize, Terror’s statement was the sole
eyewitness account of the murder in a case bereft of
physical evidence pointing to the defendant. It served
to counter ‘‘a wealth’’ of evidence pointing at Richard.
It corroborated Thomas’ and Richard’s self-serving tes-
timony, which, according to the trial court, otherwise
went uncorroborated. It added details to the state’s
case, which the prosecutor referenced in closing argu-
ment, that Thomas’ and Richard’s secondhand accounts
did not provide. Finally, because Terror’s statement was
hearsay, it largely went untested by cross-examination.
Given my view that this was a close case, even when
considering all of the evidence, I cannot agree that the
erroneous admission of Terror’s supposed statement
to Richard was harmless. To the contrary, I would hold
that the defendant carried his burden of demonstrating
that the admission of this statement was harmful. In
light of this conclusion, I must address the merits of
the defendant’s evidentiary claim.
II
The defendant challenges the admission of a certain
hearsay statement allegedly made by Terror to Richard
one week after the victim’s murder. That statement,
which purported to describe how the defendant carried
out the murder, is recounted in part I A of this dissenting
opinion. The trial court admitted the statement under
the coconspirator exception to the hearsay rule. See
Conn. Code Evid. § 8-3 (1) (E).9 I conclude that this
was an abuse of discretion because there was not a
reasonable basis to determine whether the statement
was made ‘‘in furtherance’’ of a conspiracy, as required
by our rules of evidence.
A
A hearsay statement of a party opponent is admissible
on the basis of the very nature of the adversary system
itself. ‘‘[O]ne cannot claim that his own statement
should be excluded because it was not made under
oath or subject to cross-examination or in view of the
trier of fact. . . . [T]he party himself is present and
can explain, deny, or rebut any such statement.’’ 4 C.
Mueller & L. Kirkpatrick, Federal Evidence (4th Ed.
2019) § 8:44; see also Fed. R. Evid. 801, advisory com-
mittee notes, 28 U.S.C. app., p. 1063 (‘‘[a]dmissions by
a party-opponent are excluded from the category of
hearsay on the theory that their admissibility in evi-
dence is the result of the adversary system’’).
Evidence codes extend this theory in several ways.
Most relevant here, they rely on agency concepts to
justify admitting hearsay on the basis of the declarant’s
relationship to a party in the case at issue. See, e.g.,
Conn. Code Evid. § 8-3 (1) (C) (admissions of individual
authorized, under substantive agency law, to speak on
party’s behalf); Conn. Code Evid. § 8-3 (1) (D) (admis-
sions of party’s agent or employee).
The coconspirator exception is one type of agency
based extension. See J. Levie, ‘‘Hearsay and Conspiracy:
A Reexamination of the Co-Conspirators’ Exception
to the Hearsay Rule,’’ 52 Mich. L. Rev. 1159, 1163 (1954)
(‘‘[t]he usual reason given for the co-conspirators’ excep-
tion is the classical agency rationale that conspirators
are co-agents and, as such, liable for each other’s dec-
larations’’). Its roots in agency theory are tenuous,
though, making it ‘‘[t]he most controversial extension,’’
according to some prominent commentators.10 30B C.
Wright et al., Federal Practice and Procedure (2019
Ed.) § 6777. As another commentator has stated, ‘‘the
exception is fraught with problems. In terms of theory, it
is an embarrassment.’’ C. Mueller, ‘‘The Federal Cocon-
spirator Exception: Action, Assertion, and Hearsay,’’ 12
Hofstra L. Rev. 323, 324 (1984). Even the drafters of
rule 801 of the Federal Rules of Evidence conceded
that agency theory only offers limited justification for
a coconspirator statement: ‘‘the agency theory of con-
spiracy is at best a fiction and ought not to serve as a
basis for admissibility beyond that already established.’’
Fed. R. Evid. 801, advisory committee notes, 28 U.S.C.
app., p. 1064.
The ‘‘in furtherance’’ requirement plays an important
role in justifying the coconspirator exception to the
hearsay rule. It is meant to ensure that the hearsay
statement at issue is sufficiently tied to a party in the
case so that the agency theory plausibly holds: ‘‘To fall
within the [coconspirator exception], the co-conspira-
tor’s statement had to be made ‘in furtherance of’ the
conspiracy, a requirement that arose from the agency
rationale that an agent’s acts or words could be attrib-
uted to his principal only so long as the agent was acting
within the scope of his employment.’’ Bourjaily v.
United States, 483 U.S. 171, 188–89, 107 S. Ct. 2775, 97
L. Ed. 2d 144 (1987) (Blackmun, J., dissenting); 30B C.
Wright et al., supra, § 6780 (‘‘[o]nly when the conspira-
tor is trying to further the conspiracy can the [agency]
fiction be maintained’’). Indeed, although the drafters
of the Model Code of Evidence in 1942 eliminated the ‘‘in
furtherance’’ requirement, the drafters of the Federal
Rules of Evidence retained it ‘‘because they adjudged
it a useful device for protecting defendants from the
very real dangers of unfairness posed by conspiracy
prosecutions.’’ (Internal quotation marks omitted.)
United States v. Perez, 989 F.2d 1574, 1577–78 (10th Cir.
1993). This decision ‘‘should be viewed as mandating
a construction of the ‘in furtherance’ requirement pro-
tective of defendants, particularly since the Advisory
Committee was concerned lest relaxation of this stan-
dard lead to the admission of less reliable evidence.’’
(Internal quotation marks omitted.) United States v.
Lang, 589 F.2d 92, 100 (2d Cir. 1978). ‘‘[S]ome courts
construe this aspect of the rule so broadly that anything
related to the conspiracy is found to be in furtherance
of its objectives. This, of course, is precisely the result
the Advisory Committee sought to avoid by retaining
the ‘in furtherance’ requirement.’’ Garlington v.
O’Leary, 879 F.2d 277, 283 (7th Cir. 1989); see also 30B
C. Wright et al., supra, § 6777 (‘‘the rule, and particularly
its ‘in furtherance’ requirement, can best be viewed
as an effort to limit the admission of co-conspirator
statements, rather than an invitation to let such state-
ments flow unchecked through the courthouse doors’’).
Thus, the ‘‘in furtherance’’ element of the exception
‘‘is a limitation on the admissibility of coconspirators’
statements that is meant to be taken seriously.’’
(Emphasis omitted.) Garlington v. O’Leary, supra,
283.11
To determine whether a statement is in furtherance
of a conspiracy, courts ask ‘‘whether some reasonable
basis exists for concluding that the statement furthered
the conspiracy.’’ (Internal quotation marks omitted.)
State v. Carpenter, 275 Conn. 785, 845, 882 A.2d 604(2005), cert. denied, 547 U.S. 1025, 126 S. Ct. 1578, 164
L. Ed. 2d 309 (2006). A statement furthers a conspiracy
if it ‘‘in some way [has] been designed to promote or
facilitate achievement of the goals of the ongoing con-
spiracy . . . .’’ (Internal quotation marks omitted.) Id.,
844. This includes a statement ‘‘prompting the listener—
who need not be a coconspirator—to respond in a way
that promotes or facilitates the carrying out of a crimi-
nal activity . . . .’’ (Internal quotation marks omitted.)
Id. The declarant does not have ‘‘to ask a third party
expressly to do something to further the conspiracy’’;
(internal quotation marks omitted) id., 845; and the
statement need not actually further the conspiracy.
State v. Peeler, 267 Conn. 611, 631, 841 A.2d 181 (2004).
Whether a statement was made ‘‘in furtherance’’ of the
conspiracy is ultimately a question of the declarant’s
intent. See id., 632 (‘‘[i]t is enough that [the statement
is] intended to promote the conspiratorial objectives’’
[internal quotation marks omitted]).
Although, as stated, a statement from a coconspirator
to a nonconspirator may be ‘‘in furtherance’’ of the
conspiracy in some cases, ‘‘statements to non-conspira-
tors informing them of the conspiracy will generally
not qualify for admission because such statements are
rarely in furtherance of the conspiracy.’’ 30B C. Wright
et al., supra, § 6780. ‘‘[A] statement that merely . . .
spills the beans, with no intention of recruiting the
[nonconspirator] into the conspiracy does not further
the conspiracy . . . .’’ (Citation omitted; internal quo-
tation marks omitted.) State v. Carpenter, supra, 275
Conn. 845. Examples of statements that evidence a lack
of intent behind them include a ‘‘merely narrative’’
description of events underlying the conspiracy; e.g.,
United States v. Beech-Nut Nutrition Corp., 871 F.2d
1181, 1199 (2d Cir.), cert. denied sub nom. Lavery v.
United States, 493 U.S. 933, 110 S. Ct. 324, 107 L. Ed.
2d 314 (1989); idle chatter; e.g., id.; and bragging; e.g.,
United States v. Warman, 578 F.3d 320, 339 (6th Cir.
2009). In assessing a statement to a nonconspirator, a
court must often undertake a ‘‘careful examination of
the context in which it was made.’’ United States v.
Shores, 33 F.3d 438, 444 (4th Cir. 1994), cert. denied,
514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221 (1995).
B
At trial, the defendant argued that Terror’s statement
was not made ‘‘in furtherance’’ of the conspiracy
because there was not enough evidence about Terror’s
intent in making the statement. The state offered several
possible explanations, but little proof, of what Terror’s
intentions might have been. The trial court conceded
the question was ‘‘problematic’’ but nonetheless admit-
ted the statement. It inferred Terror’s intent almost
entirely from Richard’s knowledge of incriminating
information. In ruling on the defendant’s objection, it
noted that Richard was a member of Piru. Although the
trial court determined, based on the evidence presented
up to that point, that Richard was not a participant in
the murder of the victim, it noted that he ‘‘was involved
later in assisting the conspirators,’’ thereby learning
‘‘extremely prejudicial information’’ about the circum-
stances surrounding the murder. From this, the court
extrapolated that Terror more likely than not intended
to make this statement ‘‘to further involve [Richard]’’
in the incident and ‘‘to discourage [Richard] from going
to the police and revealing what he knew, thereby bring-
ing him into the conspiracy to conceal the murder. In
my view, on the basis of the very little we know about
the statement itself, the context in which it was uttered
and the actors involved, this is a huge leap of logic with
virtually no evidence to support it. I believe the trial
court should have excluded the statement because
there was not a reasonable basis to determine whether
Terror intended it to ‘‘further’’ the conspiracy and other
indicia of reliability were lacking.
In discerning a declarant’s intent, our cases suggest
that a third party’s knowledge of incriminating informa-
tion may be a factor. But we have typically relied on
evidence more closely tied to the declarant himself,
such as a declarant’s requests for help with the conspir-
acy, the declarant’s membership in a related conspiracy
with the third party, the difficulty the declarant would
have in hiding the conspiracy from the third party, a
specific statement of intent by the declarant to bring
the third party into the conspiracy, or a series of later
events to suggest the declarant was ultimately success-
ful in recruiting the third party to join or help with
the conspiracy.
For instance, the state cites State v. Camacho, 282
Conn. 328, 924 A.2d 99, cert. denied, 552 U.S. 956, 128 S.
Ct. 388, 169 L. Ed. 2d 273 (2007), in which the declarant’s
statements to his live-in girlfriend were intended ‘‘to
secure her continued cooperation in the concealment
of the crimes,’’ similar to Terror’s alleged intention of
convincing Richard not to go to the police. Id., 356. But
in Camacho, we considered as evidence of this intent
more than just the fact that the girlfriend had seen
the declarant behave suspiciously after a murder (e.g.,
hiding a gun, scrubbing clothes). We also observed that
the declarant had asked her to assist him in covering
up the murder (e.g., to avoid talking to the police). Id.We noted the fact that the girlfriend was an active
coconspirator with the declarant in a related drug-sell-
ing operation. Id. Finally, we relied on the fact that it
would have been ‘‘ ‘difficult, if not impossible’ ’’ for the
declarant to hide the conspiracy from his girlfriend any
longer, given their romantic relationship and that they
lived together. Id., 357.
The defendant points to two other cases, and in each
we cited evidence of the declarant’s intent beyond the
third party’s knowledge of incriminating evidence. In
State v. Pelletier, 209 Conn. 564, 552 A.2d 805 (1989),
the declarant’s statements to his wife were intended
‘‘to lessen any emotional trauma the [conspiracy] would
cause [his wife],’’ which would ensure her ‘‘further
cooperation . . . .’’ Id., 578. As evidence of this intent,
this court relied not only on the fact that the wife’s
house was being used as the base for hiding the fruits
of the conspiracy, but also on the fact that the declarant
had specifically ‘‘indicated that he wanted to tell [his
wife] about the [conspiracy] before she heard about it
on the news.’’ Id., 577.
In State v. Carpenter, supra, 275 Conn. 785, the
declarant’s statements to his son were intended to be
‘‘the first step in gaining . . . cooperation, moral sup-
port, future assistance and guaranteed silence in the
aftermath of the [conspiracy].’’ Id., 846. As evidence of
this intent, we relied on the fact that it would have been
‘‘difficult, if not impossible, to conceal the conspiracy’’
because the declarant and his son lived together. Id.,
847. Moreover, we could discern ‘‘no other logical expla-
nation’’ for why the declarant would have made the
statements. Id., 846. We also cited a series of ‘‘[s]ubse-
quent events’’ where the declarant and his son worked
together to carry out the conspiracy, a contract murder
(e.g., the son’s knowing assistance in finding the
intended victim of the conspiracy, the declarant’s offer
to let his son kill the victim, and the son’s help in
disposing of the murder weapon). Id., 847.
Notably, we also concluded in Carpenter that other
statements by the declarant to his longtime girlfriend
were not made in furtherance of the conspiracy. Id.,851–52. Initially, the declarant had disclosed the exis-
tence of the conspiracy to his girlfriend. Id., 849. In a
later conversation, he told her that he felt threatened
by the man who had hired him to commit the murder.
Id. Noting that the girlfriend did not portray the conver-
sation as a ‘‘serious discussion’’ and that she did not
believe him, we concluded that the declarant’s com-
ments in this later conversation were ‘‘more akin to a
casual reference to what was happening in his life than
an attempt to induce [her] to take part in the conspir-
acy.’’ Id., 852. There appeared to be no other evidence
of the declarant’s intent in making the statement.
In the present case, the trial court based its inference
about Terror’s intent on Richard’s membership in the
gang and his knowledge of incriminating information.
I do not believe this is a reasonable basis for concluding
that Terror’s statement was made with the intent to
further the conspiracy. Three reasons persuade me that
it is simply too far of an inferential leap: the statement
largely repeated what Richard already knew, the state-
ment was presented to the court without any context,
and Richard himself declined to suggest that Terror
intended to bring him further into the conspiracy. On
this record, I believe any inference that Terror feared
Richard would inform the police about the murder and
told him details about the murder in an effort to pull him
into the conspiracy is too speculative to be reasonable.
First, the statement itself did not give Richard any
new material information and, thus, there was little
reason to believe it would have actually drawn him any
further into the conspiracy. There was evidence that
Richard already knew of the plan to kill the victim,
what the murder weapon was, where it had come from,
and who had pulled the trigger. He admitted he was in
the vehicle just before the murder, that he heard the
defendant confess just after the murder, and that he
went to the scene a few minutes after that, got into
the vehicle with the victim’s body and tampered with
evidence. The trial court agreed with the defendant that
this was enough evidence against Richard to charge
the jury on third-party culpability. In this light, the only
new facts in Terror’s statement were that Terror leaned
over the defendant while he prepared the gun and
looked at the defendant before he fired. I cannot con-
clude that, given Richard’s already extensive knowledge
of and involvement with the conspiracy, this new infor-
mation was of such significance that we can reasonably
infer that Terror’s imparting it to Richard was ‘‘designed
to promote or facilitate’’ the goal of preventing him from
going to the police, thereby furthering the conspiracy.12
Second, context does not help the state’s case here,
either, because, in short, we have none. We know only
that Terror supposedly made this statement at some
point during Richard’s five or six days in New York
(anywhere from two to eight days after the murder)
and that this was the only conversation they had regard-
ing the murder. When asked what he and Terror did in
New York the rest of the time, Richard testified: ‘‘Noth-
ing. Just walked around, and that was pretty much
it.’’ None of this limited context suggests that Terror’s
statement was intended to further the conspiracy to
kill the victim. To the contrary, if Terror had intended
to bring Richard further into the conspiracy by telling
him more about it, presumably he would have men-
tioned it more than once over the course of Richard’s
near weeklong stay.
Third, Richard did not provide any insight into what
Terror might have been thinking. The state failed to
show that Richard believed Terror wanted to bring him
further into the conspiracy, which was part of its proffer
to the trial court.13
In sum, we barely know anything about Terror, whose
intent is the subject of the inquiry. And without any
context, we know even less about his intent in making
this statement to Richard—certainly nothing that would
take Terror’s statement beyond a ‘‘merely narrative’’
description of events, idle chatter or bragging. Instead,
we know only that Richard already knew all of the
material facts surrounding the murder and that he did
not think Terror’s conduct in New York was ‘‘in further-
ance’’ of anything in particular. Because I believe the
‘‘in furtherance’’ requirement ‘‘is a limitation on the
admissibility of coconspirators’ statements that is
meant to be taken seriously’’; (emphasis omitted) Gar-
lington v. O’Leary, supra, 879 F.2d 283; I conclude that
this falls short of a reasonable basis on which to admit
this evidence against the defendant.
Because of my previous conclusion that the defen-
dant has demonstrated that the admission of this evi-
dence harmed him, I would reverse the judgment of
the trial court and remand the case for a new trial.
I therefore respectfully dissent.
1
In some instances, courts have made exceptions because the hearsay
declarant was a party and, under our adversary system, ‘‘it was thought that
a party could not complain of the deprivation of the right to cross-examine
himself (or another authorized to speak for him) or to advocate his own,
or his agent’s, untrustworthiness.’’ Bourjaily v. United States, 483 U.S. 171,
190, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987) (Blackmun, J., dissenting).
Although such exceptions generally do not require an independent showing
of reliability; e.g., Fed. R. Evid. 801, advisory committee notes, 28 U.S.C.
app., p. 1063 (‘‘[n]o guarantee of trustworthiness is required in the case of
an admission’’); they nonetheless are justified, at least in part, by their
supposed trustworthiness. See 4 C. Mueller & L. Kirkpatrick, Federal Evi-
dence (4th Ed. 2019) § 8:44 (‘‘important is the fact that the party himself is
present and can explain, deny, or rebut any such statement’’).
2
I ask the reader to forgive my reversal of the usual order in opinion
writing. Because the majority affirms the judgment of conviction on the
coconspirator issue by assuming error and finding harmlessness, I meet the
majority on its terms by addressing harm first. Because I conclude that the
trial court erroneously admitted the coconspirator evidence and that this
error was harmful, I do not reach the question of whether the trial court
abused its discretion in admitting, under the state of mind exception to the
hearsay rule, the victim’s statement to his friend, Tavaris Wylie, that he
feared Piru. See part I A of this dissenting opinion. I note, however, that this
court and other courts have traditionally viewed such statements skeptically.
See, e.g., State v. Smith, 275 Conn. 205, 218, 881 A.2d 160 (2005). In my
view, the facts of this case provide even more reason to doubt the worth
of the victim’s hearsay. Therefore, in considering the strength of the state’s
case, I consider the victim’s statement to be of limited value as proof of
the defendant’s motive to murder him.
The theory of admissibility in this context reasons that a victim’s statement
of fear of a defendant is evidence that their relationship is collapsing. If the
jury infers that their relationship is indeed collapsing, it may further infer
that the defendant is so affected by the collapse that he has a plausible
motive to commit murder. See, e.g., State v. Thomas, 205 Conn. 279, 285,
533 A.2d 553 (1987) (‘‘the purpose of the evidence was to show that the
relationship had broken down, and that . . . the victim’s estrangement from
the defendant supplied the motive for him to commit murder’’). A jury is
likely to misunderstand or go beyond this permissible inference. See E.
Prescott, Tait’s Handbook of Connecticut Evidence (6th Ed. 2019) § 8.16.2,
p. 560 (‘‘[t]he failure to connect a declarant’s subjective state of mind to
the issues in the case is not an uncommon error in logical analysis’’); see
also 2 K. Broun, McCormick on Evidence (7th Ed. 2013) § 276, pp. 401–402
(‘‘the most likely inference that jurors may draw from the existence of fear,
and often the only logical inference that could be drawn, is that some
conduct of the defendant, probably mistreatment or threats, occurred and
caused the fear’’). We have also recognized ‘‘the heightened potential for
prejudice in cases such as this,’’ in which we ‘‘[allow] surrogates to speak
for the victim pointing back from the grave.’’ (Internal quotation marks
omitted.) State v. Smith, supra, 275 Conn. 218.
In this case, any inference connecting the victim’s statement of fear to
the defendant is particularly tenuous. We know almost nothing about the
nature of the relationship between the victim and the defendant other than
that they were members of the same gang. Moreover, because the victim
had no apparent reason to fear the defendant specifically, the victim’s state-
ment—that he feared ‘‘everybody’’ in the gang—was equally applicable to
all forty members of Piru in New Haven at that time. Thus, although I do
not reach the question of whether the trial court abused its discretion in
admitting the statement, in assessing the strength of the state’s case, I believe
it does little to prove that the defendant had a motive to murder the victim.
3
On appeal, the defendant does not challenge the sufficiency of the evi-
dence to convict him.
4
Even Richard’s explanation about retrieving the cell phone raised ques-
tions. Specifically, he testified that about thirty minutes after he heard a
gunshot, he met up with the defendant at the home of Davon Youmans,
another Piru member. According to Richard, the defendant claimed to have
left his cell phone in the victim’s car and asked Richard to get it for him.
Richard went to the car, saw the victim, and removed a cell phone from
the center console. On his way back to the house, he realized that he
mistakenly had taken the victim’s phone from the car and therefore
destroyed it. When Richard arrived back at the house, the defendant was
gone. The idea that Richard would not only risk going to the crime scene,
but also would get into the vehicle, seems highly counterintuitive because
he could not know when the police might arrive. Nor did Richard explain
how he later realized he had taken the wrong phone, why the defendant
had left the house without his phone without waiting for Richard to return,
or, most notably, why the police never found the defendant’s phone in the
victim’s car. The questionable nature of this testimony not only diminished
Richard’s credibility, but it also supported the defendant’s third-party culpa-
bility defense by insinuating that Richard had fabricated this testimony in
order to inculpate the defendant and exculpate himself.
5
In closing argument to the jury, the prosecutor conceded that the state’s
case depended on the testimony of Thomas and Richard: ‘‘[T]his case is not
about the physical evidence. . . . There are two crucial witnesses in this
case, and there’s no doubt about that. That is, Mr. Thomas and Mr. Richard.
. . . [I]n this case, it’s whether or not you find those two individuals to be
believable and credible.’’ On appeal, the state relies exclusively on their
testimony as evidence of the defendant’s guilt.
6
We have also noted that deference to the fact finder is most appropriate
when an ‘‘assessment of the credibility of the witnesses . . . is made on the
basis of its firsthand observation of their conduct, demeanor and attitude.’’
(Emphasis added; internal quotation marks omitted.) State v. Kendrick,
supra, 314 Conn. 223. Here, however, the evidence undermining the wit-
nesses’ credibility—namely, various forms of self-interest, including the
desire to lessen or eliminate their criminal liability—is apparent not from
subjective firsthand observation, but objectively from the transcript and
exhibits offered by the parties. We also have the determination of another
fact finder—the trial judge—who observed the witnesses’ testimony and
determined that Thomas and Richard were not credible.
7
Because Richard did not reside in Connecticut, he was flown here for
trial by the state, which also provided him room and board.
8
The majority concludes that these inconsistencies are not ‘‘irreconcil-
able’’ by speculating that there were perhaps two meetings. Or that Thomas
was mistaken about Richard’s presence. Anything is possible. But in consid-
ering the strength of the state’s case, I cannot simply overlook multiple
discrepancies on significant details in the testimony of two crucial witnesses
because an innocent explanation is ‘‘entirely possible . . . .’’ This conjec-
ture does not leave me, as it does the majority, with any more of a fair
assurance that the erroneous admission of the Terror statement did not
substantially affect the verdict.
9
Section 8-3 of the Connecticut Code of Evidence provides in relevant
part: ‘‘The following are not excluded by the hearsay rule . . . (1) . . . A
statement that is being offered against a party and is . . . (E) a statement
by a coconspirator of a party while the conspiracy is ongoing and in further-
ance of the conspiracy . . . .’’
10
Although agency is the most common justification offered for the cocon-
spirator exception, other common justifications include reliability (i.e., a
coconspirator’s statement made to further a conspiracy is a verbal act in
the best interests of the conspiracy and, therefore, likely true) and necessity.
See C. Mueller, ‘‘The Federal Coconspirator Exception: Action, Assertion,
and Hearsay,’’ 12 Hofstra L. Rev. 323, 335 (1984) (‘‘[s]ince conspiracies are
dangerous to society and hard to prove at trial, a relaxation of the hearsay
doctrine is required’’).
11
‘‘Case law suggesting that courts interpret the phrase in furtherance of
the conspiracy broadly, should not be viewed as adding anything to the
rule, but instead as respecting its broad verbiage. Indeed, the Advisory
Committee’s comments on the rule suggest the opposite intent. Courts,
consequently, often interpret the rule’s requirements, and particularly the
in furtherance requirement, strictly.’’ (Footnotes omitted; internal quotation
marks omitted.) 30B C. Wright et al., supra, § 6780.
Even so, many argue that the ‘‘in furtherance’’ requirement ‘‘seems an
imperfect measure’’ of reliability. C. Mueller, supra, 12 Hofstra L. Rev. 335.
Justice Thurgood Marshall has written: ‘‘That a statement was truly made
in furtherance of a conspiracy cannot possibly be a guarantee, or even an
indicium, of its reliability. . . . The conspirator’s interest is likely to lie in
misleading the listener . . . . It is no victory for common sense to make
a belief that criminals are notorious for their veracity the basis for law.’’
(Citations omitted; internal quotation marks omitted.) United States v. Inadi,
supra, 475 U.S. 404–405 (Marshall, J., dissenting); see also C. Mueller, supra,
357 (‘‘[a] statement may actually further a conspiracy simply by being plausi-
ble to its audience, which means that it may well fit within the circumstances
without being true’’); D. Davenport, ‘‘The Confrontation Clause and the Co-
Conspirator Exception in Criminal Prosecutions: A Functional Analysis,’’
85 Harv. L. Rev. 1378, 1387 (1972) (‘‘[m]any statements actually in furtherance
of an alleged conspiracy will be quite unreliable in whole or in part’’).
12
Unlike the majority, I consider there to be a fundamental difference
between (1) evaluating, for evidentiary purposes, whether Terror’s one hear-
say statement describing the murder furthered the conspiracy by recruiting
Richard, and (2) evaluating, for harmless error purposes, the weight Terror’s
two hearsay statements ordering the murder and describing the murder
carried with the jury. See part I B of this dissenting opinion.
13
In initially arguing against the defendant’s motion in limine to preclude
Terror’s statement, the prosecutor suggested that bringing Richard to New
York manifested Terror’s concern that he might go to the police: ‘‘Richard,
at this point, has left Connecticut and has now been in New York with the
head Piru guy [Terror], and there’s a concern on behalf of that head Piru
guy. And, I think, it could be inferred, there’s a concern on him on whether
or not they are going to let [Richard] go back to . . . Connecticut or whether
he’s going to talk to the police.’’
The state offered no proof at that time to support the inference that Terror
was concerned about Richard going to the police. The next day, however,
the state tried to bolster its claim by asking Richard about whether Terror
and other members of Piru made Richard fear for his safety while in New
York. The defendant renewed his objection. At this point, the state proffered
that Richard would testify that he felt compelled to go to New York out of
fear for his safety, which was connected to his loyalty to the gang: The
prosecutor argued to the court: ‘‘The witness has been very clear that he
felt pressured by the defendant to do certain acts and felt that he had to
go to New York with Terror. It’s [the] same sides of the same coin. It’s this
loyalty, but also concerns for his safety.’’ But Richard never said this on
the witness stand. Instead, when asked why he went to New York, he
responded only that it was ‘‘to prove [his] loyalty’’ to Terror, his superior.
When asked to draw the connection between gang loyalty and safety that
the state had relied on, he did not do so and replied only in general terms:
‘‘Well, I mean, when you’re in a gang, you know, or when you’re in the
streets, period; there’s certain people, you know, you got to watch because
it’s dangerous.’’ Contrary to the state’s representation, at no point did Richard
say or even imply that he felt frightened of Terror or that Terror tried to
bring him further into the conspiracy.