State v. Lebrick ( 2020 )

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STATE v. LEBRICK—CONCURRENCE AND DISSENT
ROBINSON, C. J., with whom MULLINS, J., joins,
concurring in part and dissenting in part. I respectfully
disagree with part I of the majority opinion, in which
the majority concludes that the state did not engage in
a diligent, reasonable, and good faith effort to procure
the in-court testimony of a witness, Keisha Parks, at
the trial at which the defendant, Horvil F. Lebrick, was
convicted of, inter alia, felony murder and home inva-
sion. Given this conclusion, the majority holds that the
Appellate Court improperly upheld the trial court’s
determination that Parks was an unavailable witness
and that the admission of her testimony from the defen-
dant’s probable cause hearing did not violate the con-
frontation clause of the sixth amendment to the United
States constitution. See State v. Lebrick, 179 Conn. App.
221, 235–36, 178 A.3d 1064 (2018). In my view, the major-
ity relies on twenty-twenty hindsight to conclude that
the state’s efforts to find Parks, which utilized compre-
hensive online resources and on the ground assistance
from an investigator with the Kings County District
Attorney’s Office to look for her at several potential
addresses in two boroughs of New York City, were not
reasonable. Because I would affirm the judgment of the
Appellate Court upholding the judgment of conviction,
I respectfully dissent.1
By way of background, I agree with the majority’s
statement of the relevant facts and procedural history.
I also agree with the general principles of law stated
by the majority, along with its conclusion in part I A
of its opinion that whether a witness is unavailable
for confrontation clause purposes presents a mixed
question of law and fact subject to plenary review.2 ‘‘The
[s]ixth [a]mendment’s [c]onfrontation [c]lause provides
that ‘[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the wit-
nesses against him.’ . . . Most of the time, this means
that a witness must appear in person and give live
testimony at trial if her statements are to be used against
the defendant. . . .
‘‘The defendant’s right to a [witness’] live testimony
in the courtroom serves many important purposes,
including allowing the jury to observe closely the [wit-
ness’] demeanor, expressions, and intonations, and
thereby determine the [witness’] credibility. . . . The
[United States] Supreme Court has emphasized that in-
court confrontation not only allows the defendant to
test the [witness’] recollection, but also compels the
witness ‘to stand face to face with the jury in order that
they may look at him, and judge by his demeanor upon
the stand and the manner in which he gives his testi-
mony whether he is worthy of belief.’ . . .
‘‘Of course, the [United States] Supreme Court has
also told us that the right to a [witness’] presence at
trial is not absolute. In [Crawford v. Washington, 541
U.S. 36, 59, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)],
the Supreme Court expressly held that the testimony
of a witness who does not appear at trial is still admissi-
ble, in the constitutional sense, if these two conditions
are met: (1) the witness ‘was unavailable to testify’; and
(2) ‘the defendant had had a prior opportunity for cross-
examination.’ . . . Accordingly, prior cross-examina-
tion alone cannot substitute for the defendant’s right
to live testimony in the courtroom unless the witness
meets the [c]onfrontation [c]lause’s requirement of
‘unavailability.’ . . . The integrity of the fact-finding
process is at stake because the [c]onfrontation [c]lause
is a procedural protection.’’ (Citations omitted.) United
States v. Smith, 928 F.3d 1215, 1226–27 (11th Cir. 2019),
cert. denied, 88 U.S.L.W. 3225 (U.S. January 13, 2020)
(No. 19-361); see, e.g., State v. Kirby, 280 Conn. 361,
364 n.1, 908 A.2d 506 (2006) (‘‘[t]he confrontation clause
of the sixth amendment is made applicable to the states
through the due process clause of the fourteenth
amendment’’ [internal quotation marks omitted]).
Consistent with the constitutional restrictions under
Crawford, § 8-6 (1) of the Connecticut Code of Evi-
dence3 allows for the admission of the ‘‘prior testimony
of an unavailable witness . . . in a subsequent trial as
an exception to the hearsay rule. . . . The two part
test for the admissibility of such testimony is as follows:
First . . . [t]he prosecution must either produce, or
demonstrate the unavailability of, the declarant whose
statement it wishes to use against the defendant. . . .
Even after the declarant is satisfactorily shown to be
unavailable, his statement is admissible only if it bears
adequate indicia of reliability . . . which serve to
afford the trier of fact a satisfactory basis for evaluating
the truth of the prior statement. . . .
‘‘In State v. Frye, 182 Conn. 476, 480–81, 438 A.2d
735 (1980), we identified five of the most common situa-
tions in which the declarant will be deemed unavailable
for the purposes of certain hearsay exceptions. The
situation relevant here states: the declarant is absent
from the hearing and the proponent of his statement
has been unable to procure his attendance . . . by pro-
cess or other reasonable means. . . . In interpreting
reasonable means, we have held that the proponent
must exercise due diligence and, at a minimum, make a
good faith effort to procure the declarant’s attendance.’’
(Citations omitted; emphasis in original; footnote omit-
ted; internal quotation marks omitted.) State v. Rivera,
221 Conn. 58, 61–62, 602 A.2d 571 (1992); see, e.g.,
Hardy v. Cross, 565 U.S. 65, 69, 132 S. Ct. 490, 181 L.
Ed. 2d 468 (2011); Ohio v. Roberts, 448 U.S. 56, 74, 100
S. Ct. 2531, 65 L. Ed. 2d 597 (1980), overruled on other
grounds by Crawford v. Washington, 541 U.S. 36, 124
S. Ct. 1354, 158 L. Ed. 2d 177 (2004); Barber v. Page,
390 U.S. 719, 724–25, 88 S. Ct. 1318, 20 L. Ed. 2d 255
(1968); State v. Wright, 107 Conn. App. 85, 89–90, 943
A.2d 1159, cert. denied, 287 Conn. 914, 950 A.2d 1291
(2008).
‘‘To take advantage of the hearsay exceptions requir-
ing unavailability, the proponent must show a good
faith, genuine effort to procure the declarant’s atten-
dance by process or other reasonable means. . . . This
showing necessarily requires substantial diligence. In
determining whether the proponent of the declaration
has satisfied this burden of making reasonable efforts,
the court must consider what steps were taken to secure
the presence of the witness and the timing of efforts
to procure the declarant’s attendance.’’ (Citations omit-
ted.) State v. Lopez, 239 Conn. 56, 75, 681 A.2d 950
(1996). ‘‘A proponent’s burden is to demonstrate a dili-
gent and reasonable effort, not to do everything con-
ceivable, to secure the witness’ presence.’’ Id., 77–78;
accord State v. Wright, supra, 107 Conn. App. 90.
‘‘[T]here is no [bright line] rule for reasonableness, and
. . . a reasonableness inquiry necessarily is [fact spe-
cific] and examines the totality of the factual circum-
stances of each particular case.’’ United States v. Smith,
supra, 928 F.3d 1228; see, e.g., Cook v. McKune, 323
F.3d 825, 835 (10th Cir. 2003) (noting that there is no
‘‘per se rule defining the measures that the prosecution
must take before a witness can be deemed unavailable’’
[internal quotation marks omitted]). ‘‘Simply put, the
[c]onfrontation [c]lause does not require the govern-
ment to make every conceivable effort to locate a wit-
ness; it requires only a [good faith] effort that is reason-
able under all of the circumstances of the case. . . .
As the [United States] Supreme Court has told us, [o]ne,
in hindsight, may always think of other things. . . .
[G]reat improbability that such efforts would have
resulted in locating the witness, and would have led to
her production at trial, neutralizes any intimation that
a concept of reasonableness required their execution.’’
(Citations omitted; internal quotation marks omitted.)
United States v. Smith, supra, 1230. ‘‘At bottom, a rea-
sonable, [good faith] effort is [case specific] and contex-
tually driven.’’ Id.
As the majority explains, four factors guide the deter-
mination of whether the state’s efforts to procure the
attendance of the witness were reasonable, namely (1)
‘‘the more crucial the witness, the greater the effort
required to secure his attendance,’’ (2) ‘‘the more seri-
ous the crime for which the defendant is being tried,
the greater the effort the [state] should put forth to
produce the witness at trial,’’ (3) ‘‘where a witness has
special reason to favor the prosecution, such as an
immunity arrangement in exchange for cooperation,
the defendant’s interest in confronting the witness is
stronger,’’ and (4) whether the state made ‘‘the same
sort of effort to locate and secure the witness for trial
that it would have made if it did not have the prior
testimony available.’’ Cook v. McKune, supra, 323 F.3d
835–36. In my view, these factors reflect the prosecu-
tor’s important role as a ‘‘minister of justice’’; Rules of
Professional Conduct 3.8, commentary; who is ‘‘not only
an officer of the court, like every attorney, but is also
a high public officer, representing the people of the
[s]tate, who seek impartial justice for the guilty as much
as for the innocent.’’ (Internal quotation marks omit-
ted.) State v. Medrano, 308 Conn. 604, 612, 65 A.3d
503 (2013).
I agree with the majority that Parks was a critical
witness to the state’s case because, as the fiancée of
one of the defendant’s accomplices, she would have
testified to the defendant’s confession that he kicked
in the door to the apartment, disarmed the victim, and
shot his way out. It is beyond cavil that the defendant
was charged with extremely serious crimes, including
felony murder and home invasion, which left him
exposed to a life sentence. I also agree that Parks had
no special reason to favor the prosecution, insofar as
there is no indication that she stood to benefit person-
ally from testifying in this case.
I part company from the majority with respect to
its analysis of the fourth factor, which considers the
reasonableness of the search in light of the efforts that
the state would have made if it did not have Parks’
prior testimony available. In contrast to the majority’s
view of the state’s efforts, my review of the record leads
me to conclude that the state’s efforts were competent
and reasonable rather than perfunctory and inadequate.
Emory L. Hightower, the inspector with the state’s crim-
inal justice division in the Hartford state’s attorney’s
office who was tasked with finding Parks, commenced
his efforts at the end of August, 2014, approximately
two months prior to the defendant’s trial. Hightower
began his investigation by reviewing police reports and
memoranda in the state’s case file for Parks’ contact
information, and he unsuccessfully called the telephone
numbers contained in the file. He then searched for
Parks in the local Hartford police database to determine
whether she had had some ‘‘police contact’’ locally,
and he also searched for her in the National Crime
Information Center (NCIC) database, which is main-
tained by the Federal Bureau of Investigation but run
locally by the Connecticut State Police and contains
criminal and motor vehicle records. Hightower’s crimi-
nal records searches also included searches for pending
matters and other police contacts in both Connecticut
and Parks’ home state of New York. These searches
were unsuccessful.
With his criminal records searches bearing no fruit,
Hightower then utilized the CLEAR database system,
which is a search engine provided by the Thomson
Reuters Corporation that searches public records on a
state by state basis. As explained by Erin Tiernam, a
CLEAR product specialist employed by the Thomson
Reuters Corporation, CLEAR is a ‘‘data aggregator’’ that
pulls from numerous public records ‘‘to search for peo-
ple, to [perform] due diligence on people, [and to] get
detailed background information, those types of
things.’’ In connection with a ‘‘person search,’’ CLEAR
uses a person’s name and date of birth to locate them
via credit header information from credit reporting
agencies, utility hookups for cable, gas, and electric
services, death records, civil court records, property
records, and motor vehicle registrations.4 Hightower
testified that his CLEAR search revealed contact infor-
mation for Parks in New York that was current through
2013, the year before trial, including several telephone
numbers and addresses.
Moving offline, Hightower turned to the New York
addresses and telephone numbers that he had found
via his CLEAR search. He called the numbers and
learned that they were either no longer in service or
no longer receiving calls. Hightower learned that Parks’
last known address was an apartment located at 819
East 22nd Street in Brooklyn, New York, that her
address before that was an apartment at 108–09 159th
Street in the Jamaica neighborhood of Queens, New
York, and that her mother lived in an apartment at
1169 Flatbush Avenue in Brooklyn.5 Hightower then
forwarded the addresses and telephone numbers to the
Office of the Kings County District Attorney, which sent
one of its investigators, Frank Garguilo, to locate Parks
at those addresses and to serve her with a subpoena.
At 12:30 p.m. on Thursday, September 25, 2014, Gar-
guilo went to the first Brooklyn address, 819 East 22nd
Street, and discovered a large house divided into several
apartments. He testified that a young woman from an
upstairs apartment let him into the building, and he
knocked on the door of the apartment believed to
belong to Parks, receiving no answer. Garguilo then
went back to his car and called one of the provided
telephone numbers, getting a voicemail recording
belonging to a ‘‘Miriam Augustine.’’ He then left a voice-
mail message but received no return call. Garguilo then
drove to 1169 Flatbush Avenue, another Brooklyn
address that Hightower identified as belonging to Parks’
mother. Garguilo knocked on that door and found no
one home. Later that day, at approximately 5 p.m., Gar-
guilo returned to the East 22nd Street address and again
checked unsuccessfully for Parks.
The following morning, Friday, September 26, 2014,
Garguilo made a third visit to the East 22nd Street
address, which was similarly unsuccessful. That morn-
ing, he also tried calling the telephone number again,
but he received the same voicemail recording. He then
attempted to locate Parks by driving to the secondary
address that Hightower had provided in the Jamaica
section of Queens; that address was for another large
single family home that had been divided into apart-
ments. Garguilo testified that no one was home in any
of those apartments. Garguilo further testified that no
one had answered the door at any of the locations
that he had visited, leaving him unable to request more
information from neighbors, which is his ordinary prac-
tice when looking for someone. Garguilo testified that
his approach also was consistent with the policy direc-
tive of the Kings County District Attorney’s Office,
which was to follow the information provided by the
agency that had requested assistance rather than to
conduct an independent investigation.
I conclude that the efforts undertaken by the state
through Hightower’s investigation, which started online
and finished with Garguilo’s on the ground efforts in
Brooklyn and Queens, are solidly on the spectrum of
those deemed to be reasonable and in good faith by
Connecticut and federal courts.6 See, e.g., State v.
Rivera, supra, 221 Conn. 62–67 (trial court did not abuse
its discretion in determining that state had demon-
strated that two witnesses who had left Connecticut
for Massachusetts and Puerto Rico were unavailable
for trial when state’s investigator, with assistance from
numerous out of state agencies, used criminal, correc-
tions, and labor department databases to discover wit-
nesses’ aliases and identification numbers, and state’s
failure to contact one of witness’ brothers was not
unreasonable because it might have narrowed investiga-
tion but would not ‘‘necessarily have found her’’); State
v. Smith, 112 Conn. App. 592, 596–98, 963 A.2d 104
(finding good faith, reasonable, and diligent effort when
state’s inspector called home of nonappearing witness
who resided in judicial district and received message
that number was not in service, left unreturned mes-
sages over multiple days on her cell phone ‘‘at varying
hours of the day and evening,’’ and visited her home
twice and place of employment once, where her boss
indicated that she could not reach her), cert. denied,
291 Conn. 912, 969 A.2d 176 (2009); State v. Wright,
supra, 107 Conn. App. 91 (good faith, reasonable and
diligent effort when state’s inspector looked for witness
over nine days, reviewed databases with driver’s license
and motor vehicle information, checked national and
local civil and criminal databases, identified witness’
social security number, and physically visited all
addresses in Bridgeport and New Haven found in
searches for witness, his mother, and his brother); State
v. Miller, 56 Conn. App. 191, 194–95, 742 A.2d 402 (1999)
(unavailability of witnesses ‘‘satisfactorily proved’’
when investigator checked witnesses’ addresses with
motor vehicles department, visited those addresses two
weeks before trial, and learned from individuals at those
addresses that witnesses had all moved out of state),
cert. denied, 252 Conn. 937, 747 A.2d 4 (2000); State v.
Sanchez, 25 Conn. App. 21, 24–25, 592 A.2d 413 (1991)
(reasonable good faith efforts to locate juvenile witness,
who had been ordered transported to airport for flight
to Puerto Rico upon her release from custody, when
state contacted investigator for juvenile court from pub-
lic defender’s office and juvenile division probation offi-
cer, probation office did not know witness’ where-
abouts, and investigator unsuccessfully attempted to
contact witness’ out of state grandmother both by tele-
phone and through welfare office); see also Hardy v.
Cross, supra, 565 U.S. 67–71 (state’s efforts to secure
presence of missing sexual assault victim were reason-
able when investigators visited her home every three
days at different times, visited and interviewed her rela-
tives and former boyfriend’s family, and checked local
hospitals, jails, medical examiner, immigration, and
post office, and state’s failure to check with her friends
or current boyfriend was not unreasonable because
persons interviewed earlier provided no reason to think
that those individuals would have information about
witness’ whereabouts); United States v. Smith, supra,
928 F.3d 1229–31 (government made good faith efforts
to locate undocumented immigrant witness, who had
been mistakenly released from custody and had fled
from jurisdiction of trial court, by having immigration
agents search address that she previously had provided,
contacting attorney who had represented her on mate-
rial witness complaint, and trying to communicate with
her by calling and sending text messages to her boy-
friend’s cell phone); Evans v. Lindsey, Docket No. 19-
1394, 2019 WL 3214661, *3 (6th Cir. July 10, 2019) (state
court reasonably concluded that witness was unavail-
able when, after testifying at preliminary hearing, ‘‘[the
detective] personally served [her] at her residence with
a subpoena for trial,’’ she appeared in person for first
day of trial but then ‘‘expressed fear about testifying
and thereafter refused to answer or respond to [the
detective’s] numerous phone calls and voicemails,’’ and
detective went to her ‘‘residence multiple times, and
checked another address, but was unable to locate [the
witness],’’ whose husband ‘‘indicated that [she] was
afraid and had left without stating where she was
going,’’ even though detective did not check ‘‘other loca-
tions, such as hospitals and jails’’); Acosta v. Raemisch,
877 F.3d 918, 929–31 (10th Cir. 2017) (state court reason-
ably concluded that prosecution engaged in good faith
efforts to produce witness at trial when investigator
visited her last known addresses, checked with post
office to see whether she had filed change of address
form, ‘‘obtained information from ‘various sources’ indi-
cating [that the witness] had no permanent residence,
lived on the streets, and was in hiding to avoid testi-
fying,’’ and engaged assistance from other investigative
units, despite state’s failure to contact relatives other
than her grandfather or to check arrest records, which
would have revealed recent arrest), cert. denied,
U.S. , 139 S. Ct. 321, 202 L. Ed. 2d 220 (2018); Young
v. Grace, 525 Fed. Appx. 153, 156–59 (3d Cir. 2013) (state
court reasonably concluded that state police detective
made good faith effort to find witness by going to his
last known address several times, speaking with his
sister, and checking in with numerous local law enforce-
ment agencies, post office, welfare department, and
department of motor vehicles), cert. denied sub nom.
Young v. Bickell, 571 U.S. 1241, 134 S. Ct. 1499, 188 L.
Ed. 2d 382 (2014); Mermer v. McDowell, Docket No.
CV 16-932-VAP(E), 2016 WL 5329623, *19–22 (C.D. Cal.
August 15, 2016) (reasonable efforts when detectives
engaged assistance from multiple law enforcement
agencies in region, checked multiple databases, contin-
uously monitored arraignments, visited and surveilled
home of witness’ father, and went to three other loca-
tions where witness had been seen), report and recom-
mendation accepted and adopted, 2016 WL 5329560
(C.D. Cal. September 21, 2016).
I respectfully disagree with the majority’s criticisms
of the state’s online and on the ground efforts as ‘‘ane-
mic,’’ ‘‘perfunctory,’’ and ‘‘unenthusiastic,’’ and, there-
fore, insufficient to satisfy the good faith and reason-
ableness standards required by the confrontation
clause. The state’s efforts in this case bear none of
the hallmarks that courts have deemed unreasonable,
namely, a complete dereliction of the duty to search,
refusing to follow unmistakably obvious leads, or failing
to react to obvious warning signs that a witness
intended to disappear. Beyond cases featuring a com-
plete absence of an effort to search,7 a paradigmatic
example of an unconstitutionally low effort is found in
Brooks v. United States, 39 A.3d 873 (D.C. 2012), in
which the District of Columbia Court of Appeals
deemed unreasonable the government’s efforts to find
a witness who had fled from the courthouse prior to
testifying at trial. Id., 879. Although the government had
tried ‘‘overnight, unsuccessfully, to contact her through
family and former addresses’’ and called local hospitals
and jails the next day, the court deemed these efforts
unreasonable on the basis of its assumption that the
witness was likely still in the vicinity. Id., 887. The
court emphasized that the prosecutor had rejected the
suggestion of defense counsel and specifically refused
to check in neighboring Virginia, where the witness had
been arrested in the past, or to contact her attorney
for assistance, even though she had expressly stated to
the prosecutor that ‘‘she needed to see her lawyer dur-
ing the lunch break . . . . Instead, the prosecutor
declared he had ‘no expectation’ that she could be
found.’’ Id., 888. The court observed that ‘‘[w]hat the
situation demanded . . . was an intensification of
efforts, a [doubling down], to search for and locate
the witness, even if it required more than an overnight
continuance of the trial. In short, this is unlike prior
cases, in which we have held that in the absence of
evidence that there was any possibility of locating [the
missing witness], no matter how remote, we cannot say
that the government failed to meet its good faith effort
requirement.’’ (Internal quotation marks omitted.) Id.
The court stated that, although it was ‘‘mindful that the
government can face real challenges in dealing with
witnesses who may be unwilling to testify for any num-
ber of reasons, some of them understandable and com-
pelling,’’ the ‘‘government’s efforts were pro forma and
plainly inadequate in light of [the witness’] demon-
strated reluctance and her importance to the govern-
ment’s case. It is difficult to imagine, in this prosecution
dependent on a sole eyewitness, that this lackadaisical
approach was equally as vigorous as that which the
government would [have] undertake[n] to prevent [the
witness] from disappearing had it not had her prior
testimony. . . . We can only infer that the govern-
ment’s vigilance had relaxed and only minimal steps
were taken to present her live testimony at [the] appel-
lant’s second trial once [the witness’] prior testimony
was in hand. . . . [Half measures] do not satisfy . . .
the [c]onfrontation [c]lause or the evidentiary require-
ment that the witness be unavailable before prior
recorded testimony may be admitted.’’ (Citations omit-
ted; internal quotation marks omitted.) Id.
Other cases holding efforts to locate a witness to be
unreasonable involve similarly perfunctory efforts that
consist of nothing more than going through the motions,
with a record showing promising stones left unturned.
See, e.g., Cook v. McKune, supra, 323 F.3d 825, 836–40
(finding state’s efforts to locate witness, who was ‘‘vital’’
to first degree murder trial and who had received immu-
nity from prosecution, to be unreasonable, ‘‘perfunc-
tory,’’ and lacking good faith when state had engaged
in ‘‘heroic’’ efforts to contact witness while he was
hitchhiking in California and Mexico before receiving
his former testimony but relied on ‘‘gentlemen’s agree-
ment’’ to have him return for trial and declined to pay
his travel expenses in advance, despite knowing that
he was ‘‘nomadic’’ and indigent, and refused to charge
him with aiding and abetting after he failed to appear);
United States v. Quinn, 901 F.2d 522, 528 (6th Cir. 1990)
(finding government’s efforts to locate critical witness,
who lived locally, to be ‘‘negligible’’ and ‘‘singularly
unenthusiastic’’ when search was initiated on Thursday
before Monday trial, government presented no evidence
that it checked public records or attempted to find
forwarding address after being told by witness’ neigh-
bor that she recently had moved, and, after being
informed that witness was at her mother’s house,
United States marshal merely drove by without stop-
ping); People v. Cromer, 24 Cal. 4th 889, 903–904, 15
P.3d 243, 103 Cal. Rptr. 2d 23 (2001) (unreasonable
efforts when state did not begin to seek witness, who
had been reported to have disappeared months before,
until just before trial, visited her former residence sev-
eral times, and, after receiving tip that witness was
living locally with her mother, delayed for two days
before visiting mother’s house once and leaving sub-
poena there); People v. Bean, 457 Mich. 677, 687–90,
580 N.W.2d 390 (1998) (state failed to exercise due
diligence when its efforts to locate witness were limited
to unsuccessful telephone calls, it failed to check for
change of address form, match telephone numbers of
witness’ relatives to addresses or check public agency
records, and it took ‘‘no steps whatsoever’’ to contact
authorities in the District of Columbia, where neighbors
and relatives informed investigators that witness had
moved with his mother); Hernandez v. State, 124 Nev.
639, 649–52, 188 P.3d 1126 (2008) (efforts to procure
attendance of out of state witness after she failed to
appear for trial were not reasonable when state called
her home, spoke only to child who mentioned family
emergency but did not speak to witness or other adult
to ascertain length of her absence or ability to return
to Nevada, and did not seek continuance to obtain such
information or to secure witness’ attendance); State v.
Harris, 279 Or. App. 446, 455–57, 379 P.3d 539 (2016)
(after reluctant teenage witness in family violence case
failed to appear in court despite being subpoenaed, ‘‘the
state made no further effort to locate her or to compel
her attendance at trial,’’ ‘‘did not attempt to locate [the
witness] through her mother, who was present at the
courthouse, or through other relatives or law enforce-
ment; [and] it did not send or even propose to send law
enforcement to get her’’ or request continuance for that
purpose [emphasis in original]), rev’d on other grounds,
362 Or. 55, 404 P.3d 926 (2017);8 State v. King, 287 Wis.
2d 756, 768–69, 706 N.W.2d 181 (App.) (holding that it
was unreasonable for state to opt to ‘‘persuade’’ witness
to come to court rather than to serve her with subpoena
when she was available, especially when state conceded
that it had wrong address for seven prior attempts at
service and had failed to serve her after being informed
by victim’s advocate that witness believed that she did
not have to come to court without subpoena), review
denied, 286 Wis. 2d 662, 708 N.W.2d 694 (2005); cf.
State v. King, 622 N.W.2d 800, 807–808 (Minn. 2001)
(reserving decision about availability but expressing
concern that state had agreed to witness’ release after
his guilty plea, when plea testimony contained incrimi-
nating statements about defendant, and ‘‘expended min-
imal efforts’’ to find witness, as state did not contact
witness’ court services worker until after trial started,
that worker made only single telephone call to witness,
and state failed to contact witness’ mother or spouse,
who lived locally).
In contrast to these cases demonstrating a constitu-
tionally inadequate effort to find a witness, I agree with
the Appellate Court that the state’s online and offline
efforts in this case were reasonable and consistent with
the prosecutor’s obligation to provide procedural jus-
tice, even though the efforts were ‘‘not exhaustive.’’
State v. Lebrick, supra, 179 Conn. App. 231–32. After
his search of criminal and law enforcement records in
Connecticut and New York was unsuccessful, High-
tower utilized the CLEAR ‘‘data aggregator,’’ which he
understood from his training and experience to be a
comprehensive resource, for his online search of
numerous public and private records.9 That online
search identified several potential addresses in Brook-
lyn and Queens where Parks might be found, which
Garguilo then checked multiple times to no avail, with
the other residents at those locations not answering
the door to furnish additional leads to Garguilo. There
is no evidence that Garguilo or Hightower ignored
potential leads; Parks did not want to be found, and
their searches of available locations simply brought
them to dead ends. Although Parks was a reluctant
witness, there is no claim that the state could or should
have acted peremptorily because of an indication that
she planned to disappear or refuse to testify. See People
v. Fuiava, 53 Cal. 4th 622, 676, 269 P.3d 568, 137 Cal.
Rptr. 3d 147 (‘‘[W]e could not properly impose upon
the [p]eople an obligation to keep periodic tabs on every
material witness in a criminal case, for the administra-
tive burdens of doing so would be prohibitive. More-
over, it is unclear what effective and reasonable con-
trols the [p]eople could impose upon a witness who
plans to leave the state, or simply disappear, long before
a trial date is set.’’ [Internal quotation marks omitted.]),
cert. denied, 568 U.S. 1069, 133 S. Ct. 788, 184 L. Ed.
2d 583 (2012). Put differently, the majority’s assessment
of the state’s efforts to the contrary runs afoul of the
maxim that ‘‘the question of whether an effort to locate a
missing witness has been sufficiently diligent to declare
that person unavailable is one that is inherently fact
specific and always vulnerable to criticism, due to the
fact that [o]ne, in hindsight, may always think of other
things.’’ (Internal quotation marks omitted.) State v.
Rivera, supra, 221 Conn. 67; see Ohio v. Roberts, supra,
448 U.S. 75–76. Accordingly, I conclude that the Appel-
late Court properly upheld the trial court’s determina-
tion that Parks was an unavailable witness for purposes
of the confrontation clause and § 8-6 (1) of the Connecti-
cut Code of Evidence.
Because I would affirm the judgment of the Appellate
Court, I respectfully concur in part and dissent in part.
1
I agree with part II of the majority opinion, in which the majority con-
cludes that the admission of the testimony of James Stephenson, the state’s
expert witness on firearm and tool mark identification, did not violate the
confrontation clause.
2
In the absence of confrontation clause concerns, for evidentiary purposes
under § 8-6 of the Connecticut Code of Evidence, ‘‘[t]he trial court has broad
discretion in determining whether the proponent has shown a declarant to
be unavailable. Only upon a showing of a clear abuse of discretion will this
court set aside on appeal rulings on evidentiary matters.’’ (Internal quotation
marks omitted.) State v. Rivera, 221 Conn. 58, 62, 602 A.2d 571 (1992).
3
Section 8-6 of the Connecticut Code of Evidence provides in relevant
part: ‘‘The following are not excluded by the hearsay rule if the declarant
is unavailable as a witness:
‘‘(1) Former testimony. Testimony given as a witness at another hearing
of the same or a different proceeding, provided (A) the issues in the former
hearing are the same or substantially similar to those in the hearing in which
the testimony is being offered, and (B) the party against whom the testimony
is now offered had an opportunity to develop the testimony in the former
hearing. . . .’’
4
I disagree with the majority’s assertion that ‘‘[t]he evidence indicates
that Hightower’s [CLEAR] search did not encompass ‘detailed reports like
lawsuits, liens, [and] judgments’ or ‘social media information’ ’’ because
there is no specific evidence as to which CLEAR subscription level was
available to Hightower. This criticism is not supported by the record. First,
although Tiernam testified that she did not know which subscription level
the state had purchased in this case, she also stated that CLEAR’s ‘‘basic’’
subscription level ‘‘includes what we would call our location services, which
would include all the credit headers, utility hookups, kind of the finding
people information,’’ with the second level providing ‘‘more detailed reports
like . . . lawsuits, liens, judgements, [and] criminal records.’’ (Emphasis
added.) Second, consistent with Tiernam’s description of CLEAR, Hightower
testified that, on the basis of his training and experience, he understood
CLEAR to ‘‘[list] any public document’’ and to provide access to the data
contained therein about civil proceedings, such as information about public
assistance and child support benefits. This evidence supports an inference
that the state—even in these challenging fiscal times—opted for the higher
level subscription to CLEAR.
I acknowledge, however, that there were several electronic sources that
Hightower was unable to search. Although Hightower had access to credit
headers via CLEAR, he did not have access to the underlying credit reports
or—in the absence of a subpoena—to banking records. He also did not have
access to Facebook or other social media sites from his office computer,
and it is not apparent from the record whether the state’s subscription to
CLEAR included the ‘‘web analytic search’’ function, which, according to
Tiernam, searches items such as ‘‘Facebook pages, LinkedIn pages, and also
just somebody’s general presence on the web.’’
Finally, Hightower also testified that there was no national database that
he could access that would allow him to see whether Parks was receiving
federal public benefits or payments from the Internal Revenue Service.
Hightower also did not inquire with immigration authorities; he testified
that he did not know whether Parks was Jamaican, like the defendant and
other individuals involved in the case.
5
Hightower testified that he did not know whether Parks owned or rented
her residences at those locations, and he did not do any additional research
to determine whether she had a landlord.
6
The reasonableness of the state’s efforts is also supported by on point
case law from our sister states. See, e.g., People v. Valencia, 43 Cal. 4th
268, 292–93, 180 P.3d 351, 74 Cal. Rptr. 3d 605 (finding good faith efforts
to locate helpful, but not critical, witness when investigator started search
several months before trial, called telephone number witness had provided in
police report, attempted to obtain new telephone number through telephone
company, checked addresses contained in motor vehicles records and spoke
to persons at those addresses, and reviewed criminal, credit, real estate,
and civil court records), cert. denied, 555 U.S. 891, 129 S. Ct. 198, 172 L.
Ed. 2d 158 (2008); Berkman v. State, 976 N.E.2d 68, 76–77 (Ind. App. 2012)
(efforts were reasonable when state, which learned that witness had left
Indiana for Florida while attempting to serve him with subpoena, believed
that witness was evading existing arrest warrants in Indiana and was unable
to contact him by telephone, even though state did not send investigator
to Florida because record did not reflect that state had possible address
for witness there), transfer denied, 984 N.E.2d 221 (Ind.), cert. denied, 571
U.S. 863, 134 S. Ct. 155, 187 L. Ed. 2d 109 (2013); Commonwealth v. Robinson,
451 Mass. 672, 675–77, 888 N.E.2d 926 (2008) (commonwealth engaged in
good faith efforts to locate witness, despite failure to search for him in New
Jersey where he reportedly had gone without leaving address or telephone
number, because he had outstanding arrest warrants in Massachusetts and
would be unlikely to return voluntarily, and investigators had checked other
potential addresses for him in Massachusetts and Rhode Island); State v.
Trice, 292 Neb. 482, 486, 495, 874 N.W.2d 286 (2016) (efforts to serve out
of state witness were reasonable when they ‘‘began well in advance of
trial and continued up to the time of trial’’ and involved ‘‘considerable
coordination with [out of state] authorities,’’ who had visited witness’
address and learned from his parents only that he had left Nebraska, with
no other information about his location provided); State v. Bailey, 163 N.C.
App. 84, 91, 592 S.E.2d 738 (finding good faith efforts from evidence that
‘‘law enforcement officers tried to subpoena [the witness] at the address
they were given, and called several phone numbers [for him] provided by’’
another witness), appeal dismissed, 358 N.C. 733, 601 S.E.2d 861 (2004);
State v. Brown, 744 A.2d 831, 835–37 (R.I. 2000) (state engaged in good faith
search for previously cooperative, subpoenaed witness who failed to appear
for trial when police from two towns unsuccessfully searched for him at
addresses where he might have been staying, repeatedly paged witness,
inquired of family members and neighbors, and checked hospitals and deten-
tion facilities throughout state); State v. Jones, 568 S.W.3d 101, 129–30
(Tenn.) (state made good faith effort to find critical witness in capital
homicide case by contacting multiple jurisdictions in Florida, where witness
was believed to be living, publishing his photograph in Florida newspaper,
and, after obtaining his telephone number from his mother, calling witness,
who indicated that he would not return to Tennessee to testify), cert. denied,
U.S. , 140 S. Ct. 262, 205 L. Ed. 2d 144 (2019); State v. Garner, Docket
No. 2016AP2201-CR, 2018 WL 1837088, *3–5 (Wis. App. April 17, 2018) (state
made reasonable efforts to locate witness, who had fled her pretrial services
program after testing positive for drugs, because she had willingly testified
at first trial and had given no indication that she would not testify at second
trial, and multiple police investigative units conducted local searches for
her over four days, including checking with her grandmother and following
up on leads suggested by defense counsel and witness’ own attorney), review
denied, 383 Wis. 2d 624, 918 N.W.2d 431 (2018).
7
See, e.g., Barber v. Page, supra, 390 U.S. 720, 723–25 (state ‘‘made abso-
lutely no effort’’ to bring witness to testify in person, despite knowledge
that witness was in federal prison approximately 200 miles away); Earhart
v. Konteh, 589 F.3d 337, 345–46 (6th Cir. 2009) (unreasonable efforts when
state did not seek to compel attendance of minor witness at sexual assault
trial, ‘‘even though it knew exactly where [she] was,’’ namely, on vacation
with her family, which constituted ‘‘complete lack of effort’’), cert. denied,
562 U.S. 874, 131 S. Ct. 178, 178 L. Ed. 2d 107 (2010); Jackson v. Brown,
513 F.3d 1057, 1083–84 (9th Cir. 2008) (search for one witness was not
diligent when detective made no effort to locate him until several weeks
into trial because ‘‘he was ‘too busy and he hadn’t had really any time to
check it out,’ ’’ but search was diligent as to second witness, who had been
subpoenaed prior to trial and then released from custody, when officer
‘‘repeatedly checked’’ to see if she had been rearrested ‘‘under any of her
aliases’’ and repeatedly visited ‘‘the street corner where she was allegedly
working . . . to no avail’’); Whelchel v. Washington, 232 F.3d 1197, 1209
(9th Cir. 2000) (state made no effort to seek attendance of witness who
was being transferred out of state by his employer); United States v. Mann,
590 F.2d 361, 367–68 (1st Cir. 1978) (finding no good faith efforts when
government misused rule 15 [a] of Federal Rules of Criminal Procedure by
allowing key witness, who was juvenile Australian citizen, to leave Puerto
Rico for Australia); Abreu v. State, 804 So. 2d 442, 444 (Fla. App. 2001)
(finding that ‘‘the state made no effort to secure [the witness’] attendance
at trial’’ despite its awareness that ‘‘[the witness] may have been reluctant
to attend the second trial because he did not care for his earlier hotel
accommodations’’), aff’d, 837 So. 2d 400 (Fla. 2003); State v. Nobles, 357
N.C. 433, 441, 584 S.E.2d 765 (2003) (‘‘the present record does not demon-
strate that [the witness] was even contacted for purposes of determining
her availability to testify at [the] defendant’s capital sentencing proceeding’’);
State v. Workman, 171 Ohio App. 3d 89, 95–96, 869 N.E.2d 713 (2007) (single
attempt to serve local witness with subpoena at her home on morning of
trial, with no other evidence offered about witness’ unavailability or state’s
efforts to locate her, was not diligent effort).
8
The Oregon Supreme Court reversed on the issue of unavailability, but
only because the defendant ‘‘objected to a continuance that would have
enabled the state to pursue other means of securing [the] witness.’’ State
v. Harris, 362 Or. 55, 57, 66–67, 404 P.3d 926 (2017).
9
The majority takes issue with Hightower’s failure to conduct a basic
Google or social media search for Parks, as well as his decision to rely on
a search of the databases available through CLEAR once his searches in
the Hartford Police Department and NCIC databases were unsuccessful.
Although the majority’s aspersion sounds good at first, given that the word
‘‘Google’’ is sufficiently ubiquitous as to be both noun and verb, it ultimately
is not a fair criticism of Hightower’s efforts, given the lack of evidence to
establish that a standard Google search would have revealed any more
information about Park’s whereabouts than the databases searched even
under a ‘‘basic’’ subscription to CLEAR. See footnote 4 of this opinion.